MAHESH GROVER, J
This is an appeal by the plaintiff which is directed against the judgments of the learned Trial Court dated 7.8.2006 and that of the learned First Appellate Court dated 2.12.2008
The plaintiff-appellant filed a suit challenging the sale of Gair Mumkin Bara and one plot situated in the abadi of Mauza Salempur Bangar, Tehsil Jagadhri which is ancestral property of the parties to the suit in the hands of respondent no. 1 in favour of other respondents vide sale deed dated 23.8.1999 It was pleaded that the suit property being ancestral could not be alienated except for legal necessity and that his rights have been affected prejudicially by the aforesaid sale.
Respondent nos. 1 and 2 arrayed as defendant nos. 1 and 2 filed a joint written statement and pleaded that the plaintiff has no locus to file the suit. It was further pleaded that the requisite Court fee had not been affixed. It was next pleaded that the property was not ancestral and they had right to alienate the same and the sale was for legal necessity.
Parties went to trial on the following issues:-
1. Whether the suit property is ancestral of the parties, if so its effect?OPP.
2. If issue no. 1 is proved in affirmative, then whether the defendant no. 1 could not have executed the sale deed dated 23.8.99 in favour of the defendant no. 2?OPP
3. Whether the suit of the plaintiff is false and frivolous?OPD
4. Relief.
Both the Courts came to the conclusion that the suit of the plaintiff deserves to be dismissed. Even if the property was ancestral yet the same was alienated for legal necessity.
The aforesaid findings recorded by both the Courts below are assailed by way of instant regular second appeal in which learned counsel for the appellant has contended that the findings are erroneous and deserve to be set aside. He pleaded that once the findings regarding property being ancestral are recorded then the sale deed which was made by respondent no. 1 and 2 in favour of respondent no. 3 necessarily has to be set aside. He thus pleaded that the appeal deserves to succeed. According to the learned counsel for the appellant following questions of law arise for the consideration of this Court:-
i) Whether Karta can sold the joint family property without any legal necessity?
ii) Whether the sale deed without consideration, is not illegal in the eyes of law?
iii)Whether the sale deed executed by respondent no. 1 in favour of respondent no. 2, is not just to bye-pass the rights of appellant as well as respondent no. 3 & 4?
I have heard learned counsel for the appellant and have perused the impugned judgments.
The appellant is son of respondent no. 1-Kura Ram and respondent no. 2-Raj Kumar is his brother. Kura Ram and Raj Kumar have said to have alienated the property in favour of respondent nos. 3 and 4. In the sale deed there was specific stipulation that the property is being sold as the amount is needed for the treatment of illness of Kura Ram and to meet the household expenses. There is indeed a finding that the property was ancestral but if the factum of legal necessity had been pleaded by the vendor who was the Karta of the family and there is also evidence on record in the shape of the testimony of the appellant himself that he had separated from his father about 10 years back and that his father Kura Ram had also suffered injuries for which he has got treatment from a hospital wherein he spent about Rs. 30,000/- to Rs. 35,000/- then the plea of the respondents adequately stands corroborated.
In this view of the matter, the findings recorded by both the Courts below cannot be termed to be perverse or erroneous so as to warrant interference in a regular second appeal. The questions of law which have been raised by the appellant are therefore answered to mean that for the reason that there is sufficient material on record the property which was ancestral could have been alienated by the Karta of the family for legal necessity and the sale deed cannot be termed to be a sham transaction and has necessarily held to be valid and legal piece of document creating legal right in favour of the vendees. Thus, the appeal being devoid of any merit is hereby dismissed.
May 07, 2009 (Mahesh Grover)rekha Judge