REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 3264 OF 2011

Kehar Singh (D) Thr. L.Rs. & Ors.           .. Appellant(s)

Versus

Nachittar Kaur & Ors.          .. Respondent(s)

J U D G M E N T

Abhay Manohar Sapre, J.

1) This appeal  is filed by the legal  representatives of  the

original plaintiff   against the final judgment and order dated

20.04.2006 passed by the High Court of Punjab & Haryana at

Chandigarh  in  R.S.A.  No.  1734 of  1968 whereby the  High

Court allowed the appeal filed by the respondents(defendants)

and dismissed the suit filed by the original plaintiff.

2) In order to appreciate the factual and legal controversy

involved  in the appeal, it is necessary to state the facts  in

detail infra.

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3) The appellants are the legal representatives of the

original plaintiff whereas the respondents are the legal

representatives of the original defendants, who were brought

on record during the pendency of this litigation consequent

upon the death of both plaintiff and the defendants.

4) The dispute in this appeal is between the son, father and

the purchasers of  the suit  land from father.  It  relates to a

land measuring around 164 Kanals 1 Marla entered in

rectangle No.46 Killa Nos. 8/1, 19/2, 21/2, 22/2, 23, 24 and

rectangle No.52, Killa Nos. 1/2, 2, 3, 4, 5, 6, 7, 8, 12/1, 13,

14, 15, 16, 17, 18, 23, 24, 25 entered in Khata  No.6/9

Jamabandi   1957­58 at present entered in  Khata  No.2/2

Jamabandi 1962­63 situated in Village Bhamian Kalan,

Tehsil Ludhiana (hereinafter referred to as  "suit land" ).

5) One Pritam Singh(defendant No.1) was the owner of the

suit land. He sold the suit land on 25.04.1960 by registered

sale deed to Tara Singh(defendant No.2) and Ajit

Singh(defendant No.3) for Rs.19,500/­.   Both vendees

namely, Tara Singh and Ajit Singh were placed in possession

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of the suit land.

6) On 27.11.1964, Kehar Singh s/o Pritam Singh  filed a

civil suit (Case No. 429/325 of 1964) against Tara Singh and

Ajit Singh in the Court of Sub­Judge 2nd class, Ludhiana.  

7) The suit was founded  inter alia  on the allegations that

the suit land was and continues to be an ancestral property

of the family of which the plaintiff is one of its members along

with  his father­  Pritam Singh, that the  plaintiff's family is

governed by the custom, which applies to sale of family

property  inter se  family  members, that the  plaintiff has a

share in the suit land along with his father­ Pritam Singh as

one of the coparceners, that Pritam Singh had no right to sell

the suit land without obtaining the plaintiff's consent, which

he never gave to his father for sale of the suit land, that there

was no legal necessity of the family which could permit

Pritam Singh to sell the suit land to defendant Nos. 2 and 3,

that the suit land and the rights of the parties to the suit are

governed by the provisions of the Punjab Custom (Power to

Contest) Act, 1920 (hereinafter referred to as “the Act” ).

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8) The  plaintiff prayed for a relief of declaration  on the

aforementioned allegations  that first, the  sale  made by his

father­Pritam Singh in favour of Tara Singh and Ajit  Singh

vide sale deed dated 25.04.1960  in relation to the suit land

be declared as not binding on the plaintiff;  Second, the sale

in question is void and does not convey any right, title and

interest in favour of defendant Nos. 2 and 3.

9) The defendants contested the suit. According to them,

the suit land was not ancestral one; that the parties were not

governed by any custom; that the sale deed in question was

executed for consideration and for legal necessity of the

family; that the sale was made for discharge of family debts

and for improving the farming; that the defendant Nos.2 & 3

are the  bona fide  purchasers of the suit land for

consideration.

10) The Trial Court framed issues. Parties adduced their

evidence.  By  Judgment/decree  dated  17.12.1966, the  Trial

Court decreed the plaintiff’s  suit. It  was held that  the suit

land was an ancestral property and   there was no legal

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necessity to sell the suit land.

11) Defendant Nos.2 & 3 felt aggrieved and filed first appeal

(C.A. No.31 of 1967) before the first Appellate Court. By

judgment/decree dated 11.06.1968, the first Appellate Court

partly allowed the defendants’ appeal and modified the

judgment/decree of the Trial Court.  

12) It was held by the first Appellate Court that the suit land

was an ancestral property of the family; that the parties to the

suit are governed by the custom; that defendant Nos.2 & 3

were able to prove legal necessity for the family partially to

the extent of  Rs.7399/­ ; and lastly,   the reversioners of

Pritam Singh would, therefore, be entitled to get possession of

the suit land after the demise of Pritam Singh on payment of

Rs.7399/­  and the sale in question would not be binding on

their reversionary interests.

13) Defendant Nos. 2 and 3 (purchasers of the suit land) felt

aggrieved and filed second appeal before the  High Court.

During the pendency of second appeal, the Punjab Custom

(Power to  Contest) Amendment  Act, 1973 came into force

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w.e.f. 23.01.1973.  

14) The High Court, by order dated 22.04.1974, allowed the

second appeal and dismissed the suit in view of  the law laid

down by the High Court of Punjab & Haryana in the case of

Charan Singh vs. Gehl Singh, 1974 PLR 125 wherein it was

held that the Amendment Act of  1973 was retrospective  in

nature  and, therefore, in the light of the amendment, the

plaintiff had no right to challenge the alienation made by his

father under the custom prevailing at the relevant time.  

15) The plaintiff felt aggrieved and filed appeal in this Court.

This Court disposed of the said appeal along with other

appeals involving the similar point  (See   Darshan Singh vs.

Ram Pal Singh & Anr., AIR 1991 SC 1654).  It  was  held  by

this Court that the Amendment of 1973 made in the Act is

retrospective in  nature  and  that the law  laid  down by the

High Court of Punjab & Haryana in the case of Charan Singh

(supra) is correct and does not need any reconsideration. It

was also held that since the High Court while deciding the

second appeal did not examine the question involved in the

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appeal in the context of principles of Hindu Law,  the matter

has to be remanded to the High Court for deciding the second

appeal afresh in the light of the principles of Hindu law. This

is how the  matter was remanded to the High Court for

deciding the second appeal afresh.

16)  On remand, the  High  Court asked the parties as to

whether they want to lead any additional evidence to enable

the  High  Court to decide the appeal, as directed by this

Court. The parties stated that they do not want to lead any

additional evidence and the High Court could decide the

appeal on the basis of evidence already adduced.  

17) By impugned order, the High Court allowed the appeal

filed by the defendants and dismissed the suit. It was held

that the suit  land was an ancestral property of  the  family;

that Pritam Singh being a Karta had a right to sell the suit

land; that there did exist a legal necessity of the family for

which the suit  land was required to be sold by Karta; that

there were two debts (Taccavi loan and one private loan) on

the family and secondly the family had an agriculture land

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which needed improvement; that with a view to discharge the

loan liability and to undertake the improvement on the land,

the Karta­Pritam Singh sold the suit land for valuable

consideration; that these  facts  were duly  mentioned  in  the

sale deed in question; that the sale was, therefore, bona fide,

legal and  made for  valuable consideration. It is, therefore,

binding on the plaintiff.

18) The plaintiff felt aggrieved and filed the present appeal

by way of special leave in this Court.  

19) Heard learned counsel for the parties.

20) The main question, which now survives for consideration

in this  appeal, is  whether the  High Court  was justified in

holding that the sale made by defendant No.1­Pritam Singh in

favour of defendant Nos. 2 and 3 was for legal necessity and,

if so, whether it was legal and valid sale.

21) So far as the nature and character of the suit  land is

concerned, it  was  held to  be ancestral land  and  since  no

challenge  was  made to this finding, it is  not  necessary to

examine this question in this appeal.  

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22)  Mulla in his classic work "Hindu Law" while dealing

with the right of a father to alienate any ancestral property

said in Article 254, which reads as under:

“Article 254

254.  Alienation by father – A Hindu father as such has special powers of alienating coparcenary property, which  no other  coparcener  has.   In the  exercise  of these powers he may:

(1) make a gift of ancestral movable property to the extent mentioned in Article 223, and even of ancestral immovable property to the extent mentioned in Article 224;

(2) sell or mortgage ancestral property, whether movable or  immovable, including the interest of his sons, grandsons and great­grandsons therein, for the  payment  of  his own  debt,  provided the debt was an antecedent debt, and was not incurred for immoral or illegal purposes(Article 294).”           

 23) What is legal necessity was also succinctly said by Mulla

in Article 241, which reads as under:  

“Article 241

241. What is legal necessity­ The following have been held to be family necessities  within the  meaning of Article 240:

(a) payment of government revenue and of debts which are payable out of the family property;

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(b) Maintenance of coparceners and of the members of their families;

(c) Marriage expenses of male coparceners, and of the daughters of coparceners;

(d) Performance of the necessary funeral or family ceremonies;

(e) Costs of necessary litigation in recovering or preserving the estate;

(f) Costs of defending the head of the joint family or any other member against a serious criminal charge;

(g) Payment of debts incurred for family business or other necessary purpose.  In the case of a manager other than a father, it is not enough to show merely that the debt is a pre­existing debt;

The above are not the only indices for concluding as to whether the alienation was indeed for legal necessity,  nor can the enumeration  of criterion for establishing legal necessity be copious or even predictable.   It must therefore depend on the facts of each case.   When, therefore, property is sold in order to fulfil tax obligations incurred by a family business, such alienation can be classified as constituting legal necessity.”  

(see Hindu Law by Mulla “22nd Edition”)

24) The High Court, after taking note of the aforementioned

legal principles of Hindu law, dealt with this question on facts

in para 12, which reads as under:  

“12.  In the light of the aforesaid legal position, now it

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has to be examined as to whether the defendants have discharged their onus to prove the existence of the legal necessity at the time of the impugned sale deed. Defendant Tara Singh,  while  appearing as DW 13 has stated that amount of Rs.5,500/­ was paid by him as earnest money, Rs.500/­ was spent for payment of Taccavi loan and registration of sale deed and Rs.934/­ was  paid to the  vendor, about  3­4  days  prior to the registration of the sale  deed, for  payment of  Taccavi loan an amount of Rs.12,566/­ was paid at the time of registration of the sale deed.  DW 1 Shri Gopal, who was an Assistant in the DC office, Ludhiana has stated that Pritam Singh vendor was granted loan of Rs.3,000/­ in the year 1995 and he did not pay a penny from the said loan till 20.11.1964.   DW 2 Ram Dass, a tubewell mechanic has proved that Pritam Singh had spent Rs.4,000/­  for  installing a tubewell in the year 1963. DW 9 Sat Pal,  Additional  Wasil  Baqa Nawis,  Ludhiana has proved that the vendor Pritam  Singh  had taken various loans from the department for purchase of seeds bag.  Rs.500/­  for repair  of  house and Rs.2,500/­ for purchasing pumping set.  This  witness further  stated that Pritam Singh had purchased a Rehri for Rs.1,025/­ from him in the year  1961.  DW 11 Dalip Singh has proved that Pritam Singh had borrowed a sum of Rs.3,000/­ from him in the year 1959 by executing a pronote.  This witness has also stated that Pritam Singh had performed marriage of his 5 children.”     

25) In our considered opinion, the approach, reasoning and

the conclusion arrived at by the High Court on the question of

legal  necessity  as to  whether it existed in this case  while

selling the suit land by Pritam Singh or not does not call for

any  interference as the same was rightly dealt with by the

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High Court while appreciating the evidence on record.

26) It has come in evidence that firstly,  the family owed two

debts and secondly, the family also needed money to make

improvement in agriculture land belonging to the family.

Pritam Singh, being a Karta of  the family, had every right to

sell  the suit  land belonging to family to discharge the debt

liability and spend some  money to  make improvement in

agriculture land for the maintenance of his family. These facts

were also mentioned in the sale deed.

27)    In our considered opinion, a case of legal necessity for

sale of  ancestral property by the Karta  (Pritam Singh) was,

therefore, made out on facts. In other words, the defendants

were able to discharge the burden that lay on them to prove

the existence of legal necessity for sale of suit land to

defendant Nos.  2 and 3.  The defendants  thus satisfied  the

test laid down in Hindu law as explained by Mulla in Article

254 (2) read with Article 241 (a) and (g) quoted above.

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28) Once the factum of existence of legal  necessity stood

proved, then, in our view, no co­coparcener (son) has a right

to challenge the sale made by the Karta of his  family.  The

plaintiff being a son was one of the co­coparceners along with

his father­Pritam Singh. He had no right to challenge such

sale in the light of findings of legal necessity being recorded

against him. It was more so when the plaintiff failed to prove

by any evidence that there was no legal necessity for sale of

the suit land or that the evidence adduced by the defendants

to prove the factum of existence of legal necessity was either

insufficient or irrelevant or no evidence at all.

29) We are, therefore,  of the considered opinion that  the

reasoning and the conclusion arrived at by the High Court is

just and proper. We, therefore, concur with the view taken by

the High Court calling for no interference.

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30) In view of the foregoing discussion, the appeal fails and

is accordingly dismissed.  

                         …...……..................................J.

           [ABHAY MANOHAR SAPRE]

………...................................J.        [SANJAY KISHAN KAUL]

New Delhi; August 20, 2018  

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