HARCHARAN SINGH Vs. SARABJIT SINGH

JUDGEMENT

(1.) The contesting defendants, who had purchased the property from the 5 th defendant are the appellants before this Court. The 5 th defendant's sons challenged the alienation made by the father on 16.05.1986 in respect of the portion of the property stating that the property was the absolute property of the 5 th defendant and that in any event, the sale had been made by the 5 th defendant for a consideration of Rs. 10,000/- for valid necessities. The trial Court as well as the appellate Court have found that it was a matter of admission not merely by the 5 th defendant but also by the contesting defendants themselves that the property was ancestral. The trial Court had referred to the categoric admission of DW-2 Hari Singh that the suit land was an ancestral property, which Jarnail Singh got from his father Karam Singh. He latter held the property in common along with his brother Major Singh. The trial Court and the appellate Court, therefore, held that in view of the admission and the revenue record showing that the property had been entered in the Jamabandi as belonging jointly to the 5 th defendant's father Karam Singh and his brother Major Singh to an extent of 5/12 th share, the plaintiffs had established that the property was the ancestral property. The finding of the trial Court and appellate Court as regards the character of property has come through proper appreciation of oral evidence and I find that there is nothing substantial to urge as a proposition of law to dislodge the finding given by the trial Court and the appellate Court regarding the character of property.

(2.) If the properties were to be taken as the ancestral properties in the hands of the 5 th defendant, the father as a Karta had no doubt a right to sell the property to bind the junior members also, so long as the sale could be supported by the legal necessity or family benefit. Legal necessity is understood as such necessity, which is in the nature of a requirement for any debts binding on the family or valid expenses incurred antecedent to the sales. An immediate impending debt would also be relevant to consider whether there was a pressure on the estate that impelled the father to sell the ancestral property.

(3.) The proof of such necessity is on the purchaser to support his own purchase and in this case, the attempt of contesting defendants was to show that the father was contesting a murder case and he had borrowed some money from the defendant's father Major Singh. It was also contended that the family had borrowed some money for marriage expenses of the daughter. The trial Court has found that the sale deed itself did not make any such recital on any debt. The sale deed refers to cash consideration of Rs. 10,000/- out of which Rs. 4,000/- was said to have been paid before the Registering Officer. The trial Court has observed that the debt, if it had existed is ought to have been recited in the sale deed itself. It has also adverted to the evidence as artificial adduced on the side of the defendants that the scribe was asked to make a recital regarding the debt but he omitted to do so by mistake. The trial Court has, therefore, reasoned that generally speaking the purpose of the sale of land is often incorporated in the sale deed and if it is not so recited and sought to be brought through evidence for the first time, it cannot be given any weightage. The Court has also observed that so called debt for solemnization of the marriage was also not proved to have been the cause for the sale.