RAJMANI PATEL Vs. MOHAN LAL

JUDGEMENT

(1.) DEFENSIBILITY of the judgment and decree dated 6.12.88 passed in First Appeal No. 25/85 by a learned Single Judge of this Court reversing the judgment and decree passed by the learned 3rd Additional District Judge, Rewa in C.S. No. 50 -A/8 A is called in question by the defendants Nos. 1 and 2 invoking the jurisdiction of this Court under Clause 10 of the Letters Patent.

(2.) THE respondent No. 1. Mohanlal instituted the aforesaid suit for declaration that the sale -deed (Ex. D -1) executed by Ramsakhi, the defendant No. 3, to the suit, in favour of the defendants Nos. 1 and 2, the appellants, herein, in respect of the agricultural land comprising of Khasra Nos. 403, 404, 410, 235, 236, 259; 260, 228, 221, 263, 234. 304 and 485 total area measuring 5.02 acres situated in village Silpari, tehail Hazur in the district of Rewa for a consideration or Rs. 20,000/ - was null and void on the basis that no consideration has passed in the said transaction; defendant No. 3. Ramsakhi was not in a fit state of mind to execute it; and he was not competent to alienate the suit property inasmuch as the same had fall on to the share of the plaintiff in a previous partition which had taken place between him and Ramsakhi, his father. There was also prayer for perpetual injunction restraining the defendants No. 1 and 2 not to interfere in the possession of the plaintiff. To subetantiate these reliefs the plaintiff had pleaded that he and his lather alongwith defendant No. 4 constituted a joint family and the disputed properly belonged to the joint family. There was a partition of the family property in July. 1979 and in the said partition the disputed land was allotted in favour of the plaintiff and since then he is in exclusive possession of the same, It was pleaded by the plaintiff that a 'pulli' was prepared evidencing that the disputed land was allotted to the plaintiff and he had become "Bhoomiswami' of the same and thereafter, with his permission the name of defendant No. 4 was recorded in the revence papers. As relationship between the plaintiff and his father became strained and the mental condition of Ramsakhi deteriorated the defendant Nos. 1 and 2 though aware of the situation, get Ex. D -1 registered without passing of consideration. With the aforesaid averments the reliefs as indicated above, were sought for by the plaintiff. Defendants No. 3 and 4 supported the case of the plaintiff. It is pertinent to state here, defendant No. 4 is the son of the plaintiff through his other wife and has been living with defendant No. 3, Ramsakhi.

(3.) THE learned trial Judge framed nine issues. The main issues were whether Ramsakhi had purchased the disputed land from and out of the income of the joint family property; whether there was partition between the plaintiff and his father in the year 1979; whether defendant No. 3 was in a fit state of mind at the time of execution of the sale -deed and whether the defendant No. 3 had any saleable interest in the suit land. Considering the oral and documentary evidence on record he reached the conclusions that the suit land was purchased out of the income derived from the joint Hindu family property; there was no partition between the father and the son; Ramsakhi was fully competent the execute the sale -deed in favour defendants Nos. 1 and 2 the defendant No. 3 was mentally fit to execute the sale -deed: and he had saleable interest in the property as the plaintiff had not been able to establish exclusive ownership. The learned trial Judge also addressed himself with regard to existence of legal necessity, and came to hold that the disputed land was alienated for legal necessity. Arriving at these conclusions the court below did no accept the stand of the plaintiff and accordingly dismissed the suit. Feeling aggrieved by the aforesaid dismissal the plaintiff preferred the First Appeal before this Court. Before the learned Single Judge, existence of legal necessity was highlighted and the learned Judge, observed that though no specific issue was framed in regard to existence of legal necessity, parties have adduced avoidance and therefore, non -framing of the issue did not fatally affected the case of the plaintiff. He has further held that it was for the alliance to plead and prove that the property was sold of the legal necessity of the joint family. He further concluded that as the trial Judge had put the onus on the plaintiff to plead and prove the legal necessity, the judgment was quite pregnable. The learned Judge has also opined that as the sale -deed was executed by the father of the plaintiff in respect of the undivided interest without the consent of the appellant the same is unvalid.