IN THE HIGH COURT OF KARNATAKA KALABURAGI BENCH PRESENT THE HON BLE MR. JUSTICE RAVI MALIMATH AND THE HON BLE MR. JUSTICE BUDIHAL R. B.

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1 1 IN THE HIGH COURT OF KARNATAKA KALABURAGI BENCH ON THE 10 TH DAY OF APRIL, 2015 PRESENT THE HON BLE MR. JUSTICE RAVI MALIMATH AND THE HON BLE MR. JUSTICE BUDIHAL R. B. IN R.F.A.No.1275/2007 BETWEEN R.F.A.No.1275/2007 C/w R.F.A.CROB.No.27/2007 Bheemashankar S/o Gurusangappa Malagar Age : 43 Years R/o B. Bagewadi Tq. & Dist.Bijapur.... APPELLANT (BY SRI. SRIVATSA SENIOR COUNSEL FOR SRI. B.V. JALDE, ADVOCATE ) AND 1. Suresh S/o Bheemshi Suryavanshi Aged : 21 Years

2 2 C/o Manjunath Rava Factory Manjunath Nagar Near Darga Jail Road Bijapur Arun S/o Bheemshi Suryavanshi Aged 19 years C/o Suresh B. Suryavanshi Manjunath Nagar Near Darga Jail Road, Bijapur Smt.Kasturi Bai W/o Bheemshi Suryavanshi Aged 53 Years C/o Suresh B. Suryavanshi Manjunath Nagar Near Darga Jail Road, Bijapur Smt.Jayabai W/o Dhondiba Kale Aged : 32 Years R/at B. Bagewadi Tq. & Dist.Bijapur. 5. Smt.Sunanda W/o Ramesh Joshi Aged 29 years R/at Reddy Building, 4 th Main Channayyan Palya, Bannerghatta Road, Bangalore Smt.Sharada D/o Bheemshi Suryavanshi

3 3 Aged 27 years C/o Suresh B. Suryavanshi Manjunath Nagar Near Darga Jail Road Bijapur Smt.Manjula D/o Bheemshi Suryavanshi Aged 25 years C/o Suresh B. Suryavanshi Manjunath Nagar Near Darga Jail Road Bijapur Smt.Renuka D/o Bheemshi Suryavanshi Aged 23 years C/o. Suresh B. Suryavanshi Manjunath Nagar Near Darga Jail Road, Bijapur RESPONDENTS (SRI. RAVINDRA REDDY, ADVOCATE ) THIS RFA FILED U/SEC.96 R/W ORDER 41 RULE 1 CPC AGAINST THE JUDGMENT AND DECREE DATED : PASSED IN OS NO.1/2005 ON THE FILE OF THE CIVIL JUDGE (SR.DN) BASAVAN BAGEWADI, DECREEING THE SUIT FOR DECLARATION, PARTITION AND SEPARATE POSSESSION.

4 4 IN R.F.A.CROB.No.27/2007 BETWEEN 1. Suresh Bhimashi Suryavanshi Age : 20 Years, Occu: Agriculture 2. Arun Bhimashi Suryavanshi Age : 17 Years M/G by brother First Appellant Both are R/o Basavan Bagewadi Bijapur Dist CROSS OBJECTORS (BY SRI. SANGAMESH G. PATIL ) AND 1. Smt.Kasturibai W/o Bhimashi Suryavanshi Age : 52 Years Occu: Household Work R/o B. Bagewadi, Bijapur Dist Yashawant Bhimalshi Suryavanshi Age : 33 Years, Occu: Agriculture R/o B.Bagewadi, Bijapur 3. Jayabai W/o Dhondiba Kale Age : 31 Years Occu: Household work

5 5 4. Sunanda W/o Ramesh Joshi Age : 28 Years Occu: Household work Both are R/o Reddy Building 4 th Main, Banneragatta Road, Channayyan Palya, Bangalore. 5. Sharada D/o Bhimashi Suryavanshi Age : 26 Years, Occu : Household work 6. Manjula D/o Bhimashi Suryavanshi Age : 24 Years, Occu : Household work 7. Renuka D/o Bhimashi Suryavanshi Age : 22 Years, Occu : Household work 8. Bhimashankar Gurusangappa Malgar Age : 42 Years, Occ: Business R/o B. Bagewadi, Bijapur Dist RESPONDENTS (SRI. RAVINDRA REDDY, ADVOCATE FOR R1, R3 TO R7, SRI. B.V. JALDE, ADVOCATE FOR R8, R2 IS DEAD ) THIS RFA.CROB FILED U/O XLI R 22 OF CPC AGAINST THE JUDGMENT AND DECREE DATED PASSED IN OS NO.1/2005 ON THE FILE FO THE CIVIL JUDGE (SR.DN) BASAVAN BAGEWADI, DECREEING THE SUIT FOR DECLARATION,

6 6 PARTITION AND SEPARATE POSSESSION AND HOLDING THAT THE SALE IS MADE BY THE DEFENDANT NO.2 FOR FAMILY NECESSITY IN FAVOUR OF THE 8 TH RESPONDENT/DEFENDANT. These RFA & RFA.CROB been heard and reserved for Judgment, this day Budihal J., pronounced the following: Date of reserving the Judgment : Date of pronouncement of the Judgment : JUDGMENT R.F.A.No.1275/2007 is preferred by appellant/defendant no.8 being aggrieved by the judgment and decree dated : passed by the Civil Judge Sr.Dn, Basavan Bagewadi, in O.S.No.01/ R.F.A.Crob.No.27/2007 is preferred by respondent nos.1 and 2/plaintiffs challenging the finding of the trial court that the alienation made by defendant nos.1 and 2 are for the family necessity and benefit of the estate.

7 7 3. Since this R.F.A., and R.F.A.Crob., are arising out of the same judgment and decree passed by the trial court and since common questions of law and facts are involved in both the matters, parties are also same, these two matters are taken up together to dispose off them by common judgment. 4. The brief facts leading to the case before the trial court is that the respondent nos.1 and 2 in R.F.A.No.1275/2007 filed the suit before the trial court for the relief of declaration to declare that the sale deed executed by defendant nos.1 and 2 dated : in favour of the appellant/defendant no.8 with respect to the land sy.no.9/2b measuring 4-acres is not binding on the rights of the plaintiffs and for partition and separate possession of their 1/9 th share by metes and bonds. Propositus of the family of the plaintiffs and defendant nos.1 to 7 before the trial court is one Bhimshi, who died on leaving behind his wife, the first respondent herein and appellants in cross appeal and respondent nos.2 to 7 as his legal heirs. The appellants in

8 8 cross appeal who were original plaintiffs and respondent nos.1 to 7 who were the original defendants in the suit succeeded to the suit property. During the lifetime of Bhimshi, he was enjoying the suit property as manager of the joint family and had constructed a farm house in the suit land. After the death of Bhimshi, Yeshwanth, the elder son who was the defendant no.2 in the suit started to look after the affairs of the family and subsequently he being addicted to bad habits, mis-managed the properties and executed the sale deed in favour of the appellant/defendant no.8 behind the back of the plaintiffs and defendant nos.1 to 7. It was not for family necessity and same is not binding on them. Appellants in the cross appeal came to know about the said illegal transaction only when the appellant/defendant no.8 came to the suit property. Hence immediately, the plaintiff nos.1 and 2 before the trial court demanded their share and filed the suit for declaration and partition. 5. The appellant in R.F.A.No.1275/2007, who was the defendant no.8 before the trial court in the suit filed his written

9 9 statement contending that suit property was purchased by Bhimshi out of his own earnings from its previous vendor Ramsingh s/o Narasingh Rajput, by regd. Sale deed dated : for consideration of Rs.52,000/- and Bhimshi had constructed farm house in the suit land. But, he denied the existence of joint family and contended that sale made by respondent nos.1 and 2/original defendant nos.1 and 2 for family necessity. He further contended that respondent nos.1 and 3 to 7 in R.F.A.No.1275/2007 and first appellant in cross appeal executed a deed of consent on stamp paper and confirmed and rectified the said transaction. After purchase, defendant no.8 has improved the suit property and respondents/defendant nos.1 to 7 have requested him to allow them to stay in the farm house till they get accommodation and they continued in permissive possession of the farm house and subsequently he requested to vacate the farm house and give the vacant possession of the same. But the appellants in cross appeal have filed the suit and hence he

10 10 made counter claim for grant of possession of the said farm house in his favour and sought for dismissal of the suit. 6. Trial court has framed 8-issues and answered Issue Nos.1 to 3 Affirmative, Issue Nos.4 to 6 Negative and Issue No.7 in the Affirmative and decreed the suit of the plaintiffs/appellants in cross appeal and while answering Issue No.3 trial court has wrongly held that 8 th respondent has proved that there was legal necessity for the joint family. The said finding is erroneous and illegal. 7. Heard the arguments of the learned senior counsel appearing for appellant/defendant no.8 and also the arguments of the learned counsel appearing for appellant nos.1 and 2 in the cross appeal. 8. Learned senior counsel appearing for the appellant/defendant no.8 during the course of his argument made the submission that after the death of Bhimshi, it was defendant no.2 Yeshwant who was managing the property and for the family

11 11 of the plaintiffs/defendant nos.1 to 7, there was a loan in the banks, societies and with private persons and to discharge the said family debt, defendant nos.1 and 2 took out the suit schedule property for sale. Learned senior counsel further made the submission that even Yeshwant was found HIV Positive and for his treatment also, he raised the loan with private persons, in the society and banks and for that also the family was forced to sell the suit schedule property and as defendant no.8 who is appellant in R.F.A.No.1275/2007 offered the price of Rs.1,04,000/- for purchase of the said property. The defendant nos.1 and 2 in the suit who were the wife and eldest son of deceased Bhimshi accepted the said offer and agreed to sell the suit schedule property in favour of appellant/defendant no.8. Accordingly, registered sale deed was effected in the office of the Sub Registrar and defendant nos.3 to 7 have also signed the registered sale deed as witnesses. Learned senior counsel further made the submission that subsequent to the registration of the sale deed also, the defendant nos.3 to 7 and plaintiff no.1 Suresh also signed the

12 12 affidavit acknowledging and consenting to the sale transaction effected between appellant/defendant no.8 and defendant nos.1 and 2. Hence, the learned senior counsel made the submission that when once the parties have signed to the sale deed as witnesses and subsequently they have executed Ex.D-1, the affidavit, consenting and agreeing for the sale transaction, there conduct is important and subsequently they cannot go back against their own conduct and they are estopped again to raise the contention that the sale deed is not for family necessity and not binding on the minor plaintiffs who filed the suit before the trial court. 9. Learned senior counsel made the submission that out of Rs.1,04,000/- sale consideration amount, the appellant/defendant no.8 paid Rs.70,000/- to the societies and bank loans and purchased NSC in the name of minor plaintiff no.2 Arun and remaining amount of Rs.24,000/- was given to the defendant nos.1 to 7. Hence it is his submission that the sale effected was because of the family necessity and benefit of the

13 13 estate and the mother defendant no.1 Kasturibai wife of deceased Bhimshi was acting as karta of the family and she along with her eldest son Yeshwant sold the property in favour of appellant/defendant no.8. Learned senior counsel further made the submission that the plaintiffs before the trial court have sought only declaration that the sale transaction is not binding on the plaintiffs share but they have not sought for declaration for cancellation of the said sale deed. Hence on that ground also, the suit itself is not maintainable. Regarding the contention of the plaintiffs before the trial court, that no prior permission was obtained from the competent court U/Sec.8 of the Hindu Minority and Guardianships Act for the sale of the minor share in the suit schedule property, learned senior counsel made the submission that taking permission from the competent court is only in respect of absolute property of a minor and if the minor is having a joint share in the joint family property, taking such permission is not necessary as the karta of the family is always competent to alienate the joint family property for the family

14 14 necessity and benefit of the estate. Hence learned senior counsel made the submission that the trial court ignoring all these legal as well as factual aspects, decreed the suit in respect of shares of plaintiffs and defendant nos.4 & 6, which is not sustainable in law and hence sought to allow the appeal and to set aside the judgment and order under appeal. 10. In support of his contention, learned senior counsel appearing for the appellant/defendant no.8 in R.F.A.No.1275/2007 relied upon the following decisions :- 1. AIR 1971 SC AIR 1967 SC AIR 1996 SC AIR 1995 SC AIR 2013 SC AIR 2001 SC AIR 2004 KER 126

15 Learned counsel appearing for the appellant/cross objectors in Cross Appeal No.27/2007 during the course of his argument, made the submission that the sale of the suit schedule property in favour of defendant no.8 is not for family necessity and benefit of the estate. The family of plaintiffs and defendant nos.1 to 7 was not at all having debts requiring the sale of the suit schedule property. Learned counsel made the submission that defendant no.2 Yeshwant, who is the elder brother of the plaintiffs was managing the properties and he addicted to bad vices. He was also suffering from HIV positive. So for his vices defendant no.2 Yeshwant might have borrowed the loans from his friends and that from society or bank, but, it cannot be said that said borrowing is for the family necessity or benefit of the estate. Learned counsel submits that even though the plaintiffs led the evidence before the trial court to show about all these factual aspects, even then, the trial court wrongly observed that the sale was for family necessity and benefit of the estate. Hence learned counsel submit that challenging the said finding recorded by the

16 16 trial court, the cross objectors preferred the cross objections. Learned counsel submits that no prior permission from the competent court was obtained for the sale of the minor s share in the suit schedule property and hence the sale transaction to the extent of minors/plaintiffs share it was not at all binding on the plaintiffs. So far Ex.D-1 the affidavit said to be consenting and acknowledging the sale of the property by defendant nos.1 and 2 i.e. the mother and elder brother of the plaintiffs in favour of defendant no.8, learned counsel made the submission that it is not a registered document and hence the share of the minors will not pass to the defendant no.8 under that document Ex.D-1 and the trial court has rightly observed in this regard. Learned counsel further made the submission that the father of the plaintiffs and defendant nos.2 to 7 and the husband of defendant no.1 constructed farm house in the suit land by spending an amount of Rs.10,00,000/-. Therefore, the sale of the property for a meager sum of Rs.1,04,000/- also goes to show that the transaction is unconscionable. Hence learned counsel submits that on that

17 17 ground also the sale is not binding on the share of the minor plaintiffs. Learned counsel submits that even till today the plaintiffs and defendant nos.1 to 7 are residing in the said farm house and possession of the property never handed over to the defendant no.8. Hence he submits that the appeal preferred by the appellant/defendant no.8 in R.F.A.No.1275/2007 be dismissed and the cross appeal No.27/2007 preferred by the cross objectors/plaintiffs no.1 and 2 be allowed and the finding recorded by the trial court that the sale of the suit schedule property is for the legal necessity and benefit of the estate of the family of the plaintiffs and defendant nos.1 to 7 be set-aside. 12. We have perused the oral evidence of PWs-1 and 2, documents Ex.P-1 to Ex.P-24, oral evidence of DWs-1 and 2 and the documents Ex.D-1 to Ex.D-39, judgment and decree passed by the trial court, grounds urged in the appeal memorandum of appellant/defendant no.8 and also the grounds urged in the RFA.CROB preferred by the cross objectors/plaintiff nos.1 and 2

18 18 and also the decision relied upon by learned senior counsel for the appellant, which are referred above. 13. When the suit was filed by the plaintiff nos.1 and 2, plaintiff no.2 was minor and plaintiff no.1 Suresh has been mentioned as minor guardian for plaintiff no.2 Arun. Regarding the relationship of the parties between plaintiffs and defendants no.1 to 7, it is not in dispute and the suit schedule property was also the family land which was purchased by Bhimshi Suryawanshi during his life time i.e. in the year 1995 and after his death the suit schedule property is the family property of the plaintiffs and defendants no.1 to 7 is also not in dispute. Though it is contended by the plaintiffs in the suit that the defendant no.1 and defendant no.2 the mother and the elder brother of the plaintiffs, it is necessary to find out whether really the interest of defendant nos.1 and 2 was adverse to the interest of the plaintiffs or it is the defendants who sets up the plaintiffs to file this suit in order to avoid the sale transaction made in favour of the defendant no.8. Looking to the oral evidence of PW-1, plaintiff no.1 Suresh has

19 19 been examined as PW-1 in the suit. In the examination in chief he has mentioned about all the averments that he has contended in the plaint and looking to the cross examination made on behalf of defendant no.8, he deposed that they are three brothers and five sisters. Sunita and Jayabai already got married about eight years back. He studied upto PUC first year. Thereafter he was not admitted to college and about two years back he dis-continued his education. He is not at all looking after plaintiff no.2. After the demise of their father, it is the mother, who is looking after them. After the demise of his father, his mother and they altogether looking after the property. So this evidence of PW-1 clearly goes to show that after the demise of Bhimshi Suryawanshi, the husband of defendant no.1 and the father of plaintiffs and defendant nos.2 to 7, it is defendant no.1, the mother of the plaintiffs herself is looking after the welfare of the plaintiffs also. This clearly goes to show that even though the plaintiffs are under the care and custody of the defendant no.1 mother, who is natural guardian after the demise of Bhimshi Suryawanshi, but, even then,

20 20 for the purpose of filing this suit, it has been shown in the cause title that plaintiff no.1 is the minor guardian of plaintiff no.2 Arun Bhimshi Suryawanshi. This also goes to show that the suit filed by plaintiffs is collusive in nature along with defendant nos.2 to It is the specific defence of the defendant no.8 in the written statement filed before the trial court in the suit that there was a huge family debt of the plaintiffs and defendant nos.1 to 7 family and defendant no.2 Yeshwant was suffering from HIV positive. He has also borrowed loan from his friends and even from the banks and societies, which loan he has not at all repaid and for the purpose of payment of the loan amount borrowed by the family and as there was necessity for the plaintiffs and defendant nos.1 to 7 family to sell the suit schedule property, it was sold and he purchased the property for the sale consideration amount of Rs.1,04,000/-. So it was his contention that the sale of the property is for legal necessity and for the benefit of the estate. It is no doubt true that the burden is on the part of defendant no.8 to prove the said fact. So far as the plaintiffs evidence in this

21 21 regard, PW-1 is not having personal knowledge about the family affairs because looking to his cross examination, he has shown his ignorance that the family borrowed loan of Rs.50,000/- for the purpose of discharging the loan amount, but he has admitted in his cross examination that his brother Yeshwant was suffering from Aids and for that purpose he has borrowed loan from his friends. Defendant no.8 has been examined as DW-1. In his examination in chief, he has stated in the affidavit evidence that after the death of Bhimshi, defendant no.2 was detected to have been suffering from HIV Aids, for which, defendant no.2 had to spent huge money by raising loan as the family of the plaintiffs was not having any earning male member in the family. The family had to raise loan for medical treatment of defendant no.2 and as such the financial position of the family was very weak and the plaintiffs family debts were increasing and they were pressed for repayment of the loan and they have raised the loan of Rs.50,000/- in the month of February, 2000 from VSSSN Basavana Bagewadi to repay the loan by creating charge over the

22 22 suit land and he has also deposed that again the defendant no.2 was forced to raise loan of Rs.1,00,000/- on from the same society, not only to repay the previous loan of Rs.50,000/- but also to pay the remaining amount among creditors of the family of the plaintiffs. He has also deposed in his evidence that ultimately due to legal necessity and mounting loan of the family of the plaintiffs, they were forced to take the suit land for sale and he purchased the suit land from the plaintiffs and other defendants on for Rs.1,04,000/- and said price was the just and reasonable price of the suit land at that point of time. He deposed, he has paid the entire sale consideration of Rs.1,04,000/- a day prior to and on the defendant no.2 repaid the said loan of VSSSN Basavan Bagewadi by paying Rs.70,000/- out of the sale price paid by him in the said loan account of defendant no.2 and out of the remaining amount of Rs.34,000/- an amount of Rs.10,000/- was invested in the NSC scheme by purchasing the Certificate No.31EE under Regd.No and the remaining balance amount of Rs.24,000/- was utilized by

23 23 the members of the family of the plaintiffs to repay the loans raised by the family for its maintenance and legal necessity. The evidence of this DW-1 regarding purchasing the NSC certificate in the name of minor plaintiff is supported by the documentary evidence. Materials also goes to show that the society loan has been repaid by defendant no.2 Yeshwant. During the course of cross examination of DW-1, nothing has been elicited from his mouth so as to dis-believe the evidence of DW-1 that he made the enquiry that the financial position of the plaintiffs and defendant nos.1 to 7 family and he ascertained that the family was in huge debts to be payable to the private persons and also to the society and hence he purchased the property from the plaintiffs and defendant nos.1 to 7 family and it was for legal necessity and benefit of the estate. Even while cross examining PW-1 Suresh also, it has been suggested specifically that Yeshwant repaid the society loan of Rs.70,000/- out of the sale consideration of the land. For this, PW-1 has deposed that he might have repaid the amount of Rs.70,000/-. But, he shown his ignorance about

24 24 purchasing NSC certificate of Rs.10,000/- in the name of plaintiff no.2. So there is no denial of this suggestion, showing the ignorance about the suggestion made by the counsel is not a denial of the case of the defendant no.8. We have also perused the documents Ex.D-3, the original sale deed under which defendant no.8 purchased the suit schedule property from the plaintiffs and defendant nos.1 to 7. Perusing the contents of the sale deed, it is mentioned that defendant no.1 Kasturibai wife of Bhimshi Suryawanshi and defendant no.2 Yeshwant son of Bhimshi Suryawanshi are the vendors in favour of defendant no.8 Bheemashankar S/o Gurusangappa Malagar, it is mentioned in the sale deed that for their family necessity and also to repay the family debts, they took out the property for sale and as the defendant no.8 offered highest price and as it is a reasonable price according to the market value, they agreed to sell the property and on that day itself they handed over the possession of the property to the defendant no.8. So also we have perused the documents Ex.D-19 issued from Basaveshwara Clinical Laboratory, Basavana

25 25 Bagewadi stating that Yeshwant, defendant no.2 was having HIV Positive I & II. Ex.D-20 issued from VSSSN Basavana Bagewadi, wherein, it is stated that Yeshwant S/o Bhimshi Suryawanshi i.e. defendant no.2 borrowed Rs.50,000/- from their bank on and Rs.1,00,000/- on and on he has repaid the loan amount. We have also perused Ex.D-37, this is the form of application for purchase of NSC certificate, it is for an amount of Rs.10,000/- purchased in the name of Arun Bhimshi Suryawanshi i.e. plaintiff no.2. Looking to these documentary evidence so also the oral evidence of DW-1 and the cross examination of PW-1, the contents of sale deed Ex.D-3 goes to show that the family of the plaintiffs and defendant os.1 to 7 was in financial difficulty having the debts with VSSSN society and with other private persons as admitted by PW-1 during the course of his cross examination. Therefore, these materials goes to show that defendant no.8 has made the bonafide enquiry before making the purchase of the said land and only after ascertaining that there was legal necessity and for the

26 26 benefit of the estate of the family of plaintiffs and defendant nos.1 to 7, they are going to sell the property, he made the purchase. Even the trial court has also recorded affirmative finding on the issue no.2 in this connection and held that the sale of the property was for the family necessity and benefit of the estate of the plaintiffs and defendant nos.1 to 7. To dis-prove the same, as we have already observed above that there is no material on the side of the plaintiffs or defendant nos.1 to 7, even though in the plaint, it was contended by the plaintiffs that defendant no.2 Yeshwanth was addicted to bad vices but no cogent and satisfactory material has been placed before the court to accept the contention of the plaintiffs that he was addicted to bad vices and for his vices only he borrowed the loan and not for the family necessity. Hence the trial court recorded the finding after appreciating the materials placed by both the parties. There is no reason for us to interfere with the said finding and to reverse it. 15. It is the contention of the plaintiffs and defendant nos.3 to 7 that they are not parties to the sale transaction. It is

27 27 only defendant nos.1 and 2 who have executed the sale deed and hence the said sale transaction is not at all binding on the plaintiffs and other defendants. Perusing the sale deed Ex.D-3, it is true that executant of the sale deed are only defendant nos.1 and 2, but in the witness column to the said document on page no.5, it goes to show that except plaintiff no.2, all other defendants and plaintiff no.1 have signed the sale deed as witnesses. This goes to show that they were knowing about the execution of the sale deed by defendant nos.1 and 2. If really it was not for family necessity and benefit of the estate and the consideration amount agreed for Rs.1,04,000/- was very meager as contended by the plaintiffs, the plaintiff no.1 Suresh and the other defendants should not have signed the sale deed as witnesses when once they have put their signature as witnesses to the sale deed Ex.D-3 knowing fully well about the transaction entered into between the defendant nos.1 and 2 on the one side and defendant no.8 on the other. Subsequently they are not permitted to contend that they were not having knowledge about

28 28 the said sale transaction and even with regard to its contents. They are estopped to raise such contention. In this connection, learned counsel for the appellant/defendant no.8 relied upon the decision reported in 1) AIR 1995 SUPREME COURT 1205, in the case of Mahboob Sahab, Appellant.Vs. Syed Ismail and others, Respondents. (C) Evidence Act (1 of 1872), S.115-Estoppel by conduct Sale of land by Muslim father Son attesting sale deed NO objection raised by son though sale was against his interest Son is estopped from challenging sale subsequently. 2) AIR 2013 SUPREME COURT 1241, in the case of The Rajasthan State Industrial Development and Investment Corporation and Anr..Vs. Diamond and Gem Development Corporation Ltd. and Anr., (A) Evidence Act (1 of 1872), S.115 Civil P.C. (5 of 1908), O.6, R.2 Approbate and reprobate

29 29 Principle of Inhere in rule of estoppel by election. We have perused the principles enunciated in the said decision also. The material placed on record by way of oral and documentary evidence from both the sides also goes to show that after the demise of Bhimshi Suryawanshi, it is the defendant no.1, who was the mother of plaintiffs and defendant nos.2 to 7 was the karta of the family and along with her, her eldest son was also helping her in the management of the family affairs and both of them have executed the sale deed in respect of the suit schedule property and hence it is the sale transaction by the manager or karta of the family for family necessity and benefit of the estate. So the sale transaction is binding on the plaintiffs as well as the other defendants, even though they are not parties to the sale transaction. It is the case of the defendant no.8, who is appellant herein that the plaintiff no.1 Suresh and other defendants have also executed the document Ex.D-1, which is the affidavit, wherein the plaintiff no.1 Suresh and defendant nos.3 to 7 have

30 30 mentioned in the said affidavit that as there was a family debt, the mother and brother took out the said property for sale for Rs.1,04,000/- in favour of Bheemashankar S/o Gurusangappa Malagar, i.e. defendant no.8 and further for the said sale, they are not having any sort of objection and they have consented for the same. It is also mentioned in the said affidavit that Smt.Kasturibai, who is the defendant no.1 is the guardian of minor plaintiff no.2 Arun and from the sale consideration, she has purchased the NSC for Rs.10,000/- in the name of plaintiff no.2 on and they have signed this document with their free volition. Looking to this document also, the plaintiffs as well as defendant nos.1 to 7 consented for the sale of the said property but the trial court while referring to the document Ex.D-1 observed that it is not a registered document. Therefore, the share of the minor plaintiffs and defendant nos.4 & 6 will not be transferred in favour of the purchaser and accordingly the trial court ultimately held that the alienation of the said property is not binding to the extent of the shares of the plaintiffs and defendant

31 31 nos.4 & 6. This view of the trial court is not correct because once it has been held by the trial court on appreciation of the material that the said alienation by the defendant nos.1 and 2 is for the family necessity and benefit of the estate and defendant no.1 the mother being the karta of the family, the said alienation is binding on all the members of the family even including the minor plaintiff. Under the sale deed Ex.D-3, when the ownership in respect of the entire property has been already transferred to defendant no.8, the question of holding that Ex.D-1 is not a registered document hence title will not pass does not arise at all because the trial court has already recorded affirmative finding on Issue No.2. In this connection, learned senior counsel relied upon the decision reported in 1) AIR 1971 SUPREME COURT 1028, in the case of Smt.Rani and another, Appellants.Vs. Smt.Santa Bala Debnath and others, Respondents. 2) AIR 1967 SUPREME COURT 574, in the case of Radhakrishnadas and another, Appellants.Vs.

32 32 Kaluram (dead) and after him his heirs and legal representatives and others, Respondents. 16. It is the contention of the plaintiffs in the plaint and also in the oral evidence that prior to the sale of the suit schedule property even in respect of share of the minor plaintiffs, the defendant nos.1 and 2 or defendant no.8 have not at all obtained prior permission of the competent court under the provisions of Hindu Minority and Guardianship Act. But, it is not the absolute property of the minor plaintiff. It is the joint family property of plaintiffs and defendant nos.1 to 7, wherein minor is also having share in the said property. When that is so, if the karta sold the property for legal necessity and benefit of the estate, the said transaction is binding even on the shares of minors in the family. Therefore, question of obtaining prior permission U/Sec.8 of Hindu Minority and Guardianship Act does not arise at all. In this regard, learned senior counsel for the appellant/defendant no.8 herein also relied upon the decision reported in

33 33 1) AIR 1996 SUPREME COURT 2371, in the case of Sri. Narayan Bal and others, Appellants.Vs. Sridhar Sutar and others, Respondents. 2) AIR 2004 KERALA 126(1), in the case of Ramandas Menon, Appellant.Vs. Sreedevi, Respondent. We have perused the principles enunciated in the said decision and as we have observed that it is not the absolute property of the minor, no such permission is required as contended by the plaintiffs. 17. With regard to the possession of the property is concerned, it is the contention of the plaintiffs that they are in possession of the suit schedule property and possession is not at all handed over to the defendant no.8. We have perused the sale deed Ex.D-3, wherein there is a clear recital about handing over the possession of the suit schedule property in favour of appellant/defendant no.8. In the oral evidence also DW-1 has

34 34 deposed about the same. Regarding the evidence of PW-2, no importance can be attached to his evidence as he has falsely deposed before the court that he has not given any evidence in the case before the Family Court Case No.274/2003. There afterwards his deposition was shown to him and then after seeing the same, he admitted that the signature on the said deposition is his signature and same was marked as per Ex.D-2. This goes to show he is not fair and honest in giving true facts before the court. Not only that, he is the resident of Bijapur and he does not know about the transaction between the plaintiffs, defendant nos.1 to 7 and defendant no.8. We have also perused the documents Ex.D-5 the mutation entry under the sale deed, the name of the purchaser defendant no.8 has been mutated to the suit land and the ROR produced at Ex.D-6 also goes to show the name of defendant no.1 Smt.Kasturibai and defendant no.2 Yeshwant has been rounded off and name of defendant no.8 has been entered in the col.no.9 Kabjedar and col.no.12 Cultivator column. So also the document Ex.D-7 is ROR standing in the

35 35 name of defendant no.8. We have perused the other documents, Ex.D-8 to Ex.D-16 which also supports the contention of the appellant/defendant no.8 that after the purchase of the suit land, he has installed the pump set in the said land and converted the said land into irrigated land. In the evidence of Suresh, it has come on record that the said land was the dry land. Perusing all these materials on record they goes to show that the possession of the property was handed over to appellant/defendant no.8 and as he contended that he allowed the plaintiffs and defendant nos.1 to 7 to stay in the house of the said land till they get the accommodation, perusing all these entire materials on record, we are of the opinion that the trial court has not correctly appreciated the materials produced by both the parties and wrongly comes to the conclusion in decreeing the suit of the plaintiffs holding that they are entitled to their share and the alienation of the suit schedule property is not binding on the shares of the plaintiffs and defendant nos.4 and 6.

36 Hence, we allow the appeal and set aside the judgment and decree of the trial court and dismiss the suit of the plaintiffs. Consequently the appeal/cross objection No.27/2007 is also hereby dismissed. Sd/- JUDGE Sd/- JUDGE SGS