BANSI LAL Vs. KULDIP RAJ

JUDGEMENT

(1.) This civil second appeal is directed against the judgment and decree of District Judge, Udhampur, upholding on first appeal the judgment and decree of Sub Judge, Udhampur, decreeing the plaintiffs-respondents' suit for declaration that sale deed dated October 15, 1965 executed by Devidayal respondent No. 5, now dead, in favour of the appellant, pertaining to one shop situate at Reasi, is null and void, with the consequential relief of possession of the said shop.

(2.) The plaintiffs-respondents, out of whom respondents 1 and 2 are the sons of Devidayal, respondent No. 3 his mother and respondent No. 4 his widow, brought a suit for declaration with consequential relief of possession alleging : that Devidayal was by habit a drunkard and a gambler who would spend all money on these vices; that he had no necessity to alienate any property belonging to the joint family of which all of them were members, but he still executed a sale deed on 15-10-1965 in respect of the suit shop in favour of the appellant without receiving any consideration; and that whatever consideration he received from the vendee he spent it on gambling and drinking. The suit was resisted by the appellant vendee on the ground that the sale was for legal necessity as the vendor Devidayal had to maintain his family consisting of himself and the plaintiffs-respondents and had also to educate his sons, namely, respondents 1 and 2. He also stated that part of the sale consideration was utilized for liquidating an earlier mortgage debt of Rs. 1,100/- as the very said shop had be.en mortgaged by Devidayal in his favour for a sum of Rs. 1,100/- vide mortgage deed dated 20-10-1963.

(3.) On the pleadings of the parties, a number of issues were raised by the trial Court, The parties joined the issues and led evidence on them. The learned Sub Judge on consideration of the same decreed that plaintiffs-respondents suit, holding the plaintiffs and Devidayal were members of a joint Hindu family, that the suit shop was ancestral property of the plaintiffs, and that the sale was vitiated by the fact that Devidayal being a habitual drunkard and gambler, had spent the entire sale proceeds on immoral pursuits. Without categorically holding whether or not any legal necessity existed, it decided the issue in regard to legal necessity against the appellant by holding that he had failed to prove that he made any enquiry about the existence of legal necessity before purchasing the suit shop. It further held that even if the sum of Rs. 1,100/ relating to mortgage debt which was included in the sale price was proved to have been paid to Devidayal at the time of the execution of the mortgage deed, yet it was not enough to discharge his burden and the appellant was further required to prove that this sum was also obtained by Devidayal for legal necessity. On appeal, the findings with regard to the jointness of the family and the character of the suit property were confirmed by the learned District Judge, who also held that even though Devidayal was compelled to raise money by the sale of the suit shop in order to maintain himself and his family members, yet the sale was vitiated because the money so obtained had been spent by him not on the maintenance of the family, but on immoral pursuits like drinking and gambling. He further found that the passing of the consideration of Rs. 1,100/ at the time of the execution of the mortgage deed was not proved and that only Rs. 100/- out of the aforesaid sum were proved to have been paid by the appellant to Devidayal. He accordingly upheld the judgment and decree of the trial Court and dismissed the appeal.