SHRIKRISHNA PANDITRAO BAHIRATH Vs. ANGAD SHIVAJI BAHIRATH

JUDGEMENT

(1.) This appeal is directed against the judgment and order dated 7-2-2006 passed by the District Judge, Parbhani dismissing Regular Civil Appeal No. 60 of 2003 filed by the appellants.

(2.) Respondents 1 and 2 are the sons and respondent No. 3 is unmarried daughter of respondent No. 5. Respondent No. 4 is the wife of respondent No. 5 and mother of respondents 1 to 3. By a sale deed dated 8-3-1996 respondent No. 5 sold the suit agricultural land to the appellants. The respondents 1 to 4 filed a suit bearing Regular Civil Suit No. 124 of 2000 challenging the alienation, and for partition of the suit property alleging that the suit property was a joint family property of which the respondent No. 5 was only a karta and he had no right to sell the suit property. Appellants contested the suit contending that the sale was made for legal necessity. The trial Court decreed the suit holding that the legal necessity was not proved and that the respondents 1 to 4 had l/5th share each in the property and passed a decree for partition and separate possession of their share. The appeal filed by appellants-purchasers was dismissed by the lower appellate Court. Aggrieved appellants are in appeal.

(3.) Learned counsel for the appelfants submitted that the sale of the suit property was for legal necessity. She submitted that there was a recital in the sale deed that the sale was effected for repayment of the loan of a bank. The trial Court ought to have held that there was a legal necessity for the sale. Mere recital in the sale deed which is executed just few years prior to the suit about the existence of legal necessity is not the proof of the legal necessity. The recital of legal necessity in the sale deed can at best be used to corroborate any substantive evidence of legal necessity adduced by the parties. The weight of the recitals in the sale deed may increase as time passes and other evidence of legal necessity vanishes in oblivion by passage of time. But that is not the case here. For the purpose of proving that the respondent No. 5 was indebted to bank the appellants could have easily examined an officer of the bank to prove the debt and/or produced the extract of the loan account of the respondent No. 5 duly certified under the Banker's Books Evidence Act. None of these things was done. The burden of proving the necessity was on the appellants which they have failed to discharge. The Courts have accordingly held that the appellants have not proved the legal necessity. The said finding of fact is a possible finding of fact based on appreciation of evidence and not open for challenge in the second appeal.