KEHAR SINGH (D) THR. LRS & ORS.versusNACHITTAR KAUR & ORS.

986                      [2018]REPORTS
               SUPREME COURT    9 S.C.R. 986                [2018] 9 S.C.R.


A                   KEHAR SINGH (D) THR. LRS & ORS.
                                        v.
                         NACHITTAR KAUR & ORS.
                         (Civil Appeal No. 3264 of 2011)
B                              AUGUST 20, 2018
                     [ABHAY MANOHAR SAPRE AND
                       SANJAY KISHAN KAUL, JJ.]
             Punjab Custom (Power to Contest) Act, 1920: Dispute between
      plaintiff-son, father and the defendants-purchaser of the suit land
C
      from father – Suit for declaration that the sale deed in relation to
      the suit land was not binding on the plaintiff and sale in question
      was void and does not convey any right, title and interest in favour
      of purchasers – Held: The sale deeds reflected the factum of family
      debts – The plaintiff ’s father, being a Karta of the family, had every
D     right to sell the suit land belonging to family to discharge the debt
      liability and spend some money to make improvement in agriculture
      land for the maintenance of his family – Once the factum of existence
      of legal necessity stood proved, then, no coparcener (son) has a
      right to challenge the sale made by the Karta of his family – The
      plaintiff being a son was one of the coparceners along with his
E
      father – He had no right to challenge such sale in the light of
      findings of legal necessity being recorded against him – It was more
      so when the plaintiff failed to prove by any evidence that there was
      no legal necessity for sale of the suit land or that the evidence
      adduced by the defendants to prove the factum of existence of legal
F     necessity was either insufficient or irrelevant or no evidence at all –
      Suit liable to be dismissed – Hindu law – Right of Karta to sell
      family property.
            Dismissing the appeal, the Court
             HELD: It came in evidence that firstly, the family owed
G     two debts and secondly, the family also needed money to make
      improvement in agriculture land belonging to the family. The
      plaintiff’s father, being a Karta of the family, had every right to
      sell the suit land belonging to family to discharge the debt liability
      and spend some money to make improvement in agriculture land
H     for the maintenance of his family. These facts were also mentioned
                                       986
 KEHAR SINGH (D) THR. LRS & ORS. v. NACHITTAR KAUR                            987
                       & ORS.

in the sale deed. A case of legal necessity for sale of ancestral             A
property by the Karta was, therefore, made out on facts. In other
words, the defendants were able to discharge the burden that lay
on them to prove the existence of legal necessity for sale of suit
land to defendant Nos. 2 and 3. The defendants thus satisfied the
test laid down in Hindu law as explained by Mulla in Article 254
                                                                              B
(2) read with Article 241 (a) and (g). The reasoning and the
conclusion arrived at by the High Court is just and proper. [Paras
26, 27, 29] [993-C-F; 994-A]
       Charan Singh v. Gehl Singh, 1974 PLR 125; Darshan
       Singh v. Ram Pal Singh & Anr., AIR 1991 SC 1654:
       [1990] 3 Suppl. SCR 212 – referred to                                  C
       Hindu law by Mulla (Article 254) – referred to
                          Case Law Reference
1974 PLR 125                        referred to               Para 14
[1990] 3 Suppl. SCR 212             referred to               Para 15         D
       CIVIL APPELLATE JURISDICTION : Civil Appeal No. 3264
of 2011
       From the Judgment and Order dated 20.04.2006 of the High Court
of Punjab and Haryana at Chandigarh in Regular Second Appeal No.
1734 of 1968
                                                                              E
       Ms. Jyoti Mendiratta, Gagan Gupta, Abhishek Atrey, P. N. Puri,
Abhishek Puri, Ms. Reeta Dewan Puri, Advs. for the appearing parties.
       The Judgment of the Court was delivered by
       ABHAY MANOHAR SAPRE, J. 1. This appeal is filed by the
legal representatives of the original plaintiff against the final judgment    F
and order dated 20.04.2006 passed by the High Court of Punjab &
Haryana at Chandigarh in R.S.A. No. 1734 of 1968 whereby the High
Court allowed the appeal filed by the respondents(defendants) and
dismissed the suit filed by the original plaintiff.
       2. In order to appreciate the factual and legal controversy involved
in the appeal, it is necessary to state the facts in detail infra.            G
       3. The appellants are the legal representatives of the original
plaintiff whereas the respondents are the legal representatives of the
original defendants, who were brought on record during the pendency of
this litigation consequent upon the death of both plaintiff and the
defendants.                                                                   H
988             SUPREME COURT REPORTS                           [2018] 9 S.C.R.


A            4. The dispute in this appeal is between the son, father and the
      purchasers of the suit land from father. It relates to a land measuring
      around 164 Kanals 1 Marla entered in rectangle No.46 Killa Nos. 8/1,
      19/2, 21/2, 22/2, 23, 24 and rectangle No.52, Killa Nos. 1/2, 2, 3, 4, 5, 6,
      7, 8, 12/1, 13, 14, 15, 16, 17, 18, 23, 24, 25 entered in Khata No.6/9
      Jamabandi 1957-58 at present entered in Khata No.2/2 Jamabandi 1962-
B
      63 situated in Village Bhamian Kalan, Tehsil Ludhiana (hereinafter
      referred to as “suit land” ).
             5. One Pritam Singh(defendant No.1) was the owner of the suit
      land. He sold the suit land on 25.04.1960 by registered sale deed to Tara
      Singh(defendant No.2) and Ajit Singh(defendant No.3) for Rs.19,500/-.
C     Both vendees namely, Tara Singh and Ajit Singh were placed in possession
      of the suit land.
            6. On 27.11.1964, Kehar Singh s/o Pritam Singh filed a civil suit
      (Case No. 429/325 of 1964) against Tara Singh and Ajit Singh in the
      Court of Sub-Judge 2nd class, Ludhiana.
D
             7. The suit was founded inter alia on the allegations that the suit
      land was and continues to be an ancestral property of the family of
      which the plaintiff is one of its members along with his father- Pritam
      Singh, that the plaintiff’s family is governed by the custom, which applies
      to sale of family property inter se family members, that the plaintiff has
E     a share in the suit land along with his father- Pritam Singh as one of the
      coparceners, that Pritam Singh had no right to sell the suit land without
      obtaining the plaintiff’s consent, which he never gave to his father for
      sale of the suit land, that there was no legal necessity of the family
      which could permit Pritam Singh to sell the suit land to defendant Nos. 2
F     and 3, that the suit land and the rights of the parties to the suit are
      governed by the provisions of the Punjab Custom (Power to Contest)
      Act, 1920 (hereinafter referred to as “the Act” ).
              8. The plaintiff prayed for a relief of declaration on the
      aforementioned allegations that first, the sale made by his father-Pritam
G     Singh in favour of Tara Singh and Ajit Singh vide sale deed dated
      25.04.1960 in relation to the suit land be declared as not binding on the
      plaintiff; Second, the sale in question is void and does not convey any
      right, title and interest in favour of defendant Nos. 2 and 3.
             9. The defendants contested the suit. According to them, the
      suit land was not ancestral one; that the parties were not governed by
H
 KEHAR SINGH (D) THR. LRS & ORS. v. NACHITTAR KAUR                               989
        & ORS. [ABHAY MANOHAR SAPRE, J.]

any custom; that the sale deed in question was executed for consideration        A
and for legal necessity of the family; that the sale was made for discharge
of family debts and for improving the farming; that the defendant Nos.2
& 3 are the bona fide purchasers of the suit land for consideration.
       10. The Trial Court framed issues. Parties adduced their evidence.
By Judgment/decree dated 17.12.1966, the Trial Court decreed the                 B
plaintiff’s suit. It was held that the suit land was an ancestral property
and there was no legal necessity to sell the suit land.
      11. Defendant Nos.2 & 3 felt aggrieved and filed first appeal
(C.A. No.31 of 1967) before the first Appellate Court. By judgment/
decree dated 11.06.1968, the first Appellate Court partly allowed the            C
defendants’ appeal and modified the judgment/decree of the Trial Court.
      12. It was held by the first Appellate Court that the suit land was
an ancestral property of the family; that the parties to the suit are governed
by the custom; that defendant Nos.2 & 3 were able to prove legal
necessity for the family partially to the extent of Rs.7399/- ; and lastly,      D
the reversioners of Pritam Singh would, therefore, be entitled to get
possession of the suit land after the demise of Pritam Singh on payment
of Rs.7399/- and the sale in question would not be binding on their
reversionary interests.
      13. Defendant Nos. 2 and 3 (purchasers of the suit land) felt              E
aggrieved and filed second appeal before the High Court. During the
pendency of second appeal, the Punjab Custom (Power to Contest)
Amendment Act, 1973 came into force w.e.f. 23.01.1973.
       14. The High Court, by order dated 22.04.1974, allowed the second
appeal and dismissed the suit in view of the law laid down by the High           F
Court of Punjab & Haryana in the case of Charan Singh vs. Gehl
Singh, 1974 PLR 125 wherein it was held that the Amendment Act of
1973 was retrospective in nature and, therefore, in the light of the
amendment, the plaintiff had no right to challenge the alienation made by
his father under the custom prevailing at the relevant time.
                                                                                 G
      15. The plaintiff felt aggrieved and filed appeal in this Court. This
Court disposed of the said appeal along with other appeals involving the
similar point (See Darshan Singh vs. Ram Pal Singh & Anr., AIR
1991 SC 1654). It was held by this Court that the Amendment of 1973
made in the Act is retrospective in nature and that the law laid down by
the High Court of Punjab & Haryana in the case of Charan Singh                   H
990             SUPREME COURT REPORTS                           [2018] 9 S.C.R.


A     (supra) is correct and does not need any reconsideration. It was also
      held that since the High Court while deciding the second appeal did not
      examine the question involved in the appeal in the context of principles
      of Hindu Law, the matter has to be remanded to the High Court for
      deciding the second appeal afresh in the light of the principles of Hindu
      law. This is how the matter was remanded to the High Court for deciding
B
      the second appeal afresh.
            16. On remand, the High Court asked the parties as to whether
      they want to lead any additional evidence to enable the High Court to
      decide the appeal, as directed by this Court. The parties stated that they
      do not want to lead any additional evidence and the High Court could
C     decide the appeal on the basis of evidence already adduced.
              17. By impugned order, the High Court allowed the appeal filed
      by the defendants and dismissed the suit. It was held that the suit land
      was an ancestral property of the family; that Pritam Singh being a Karta
      had a right to sell the suit land; that there did exist a legal necessity of
D     the family for which the suit land was required to be sold by Karta; that
      there were two debts (Taccavi loan and one private loan) on the family
      and secondly the family had an agriculture land which needed
      improvement; that with a view to discharge the loan liability and to
      undertake the improvement on the land, the Karta-Pritam Singh sold the
E     suit land for valuable consideration; that these facts were duly mentioned
      in the sale deed in question; that the sale was, therefore, bona fide,
      legal and made for valuable consideration. It is, therefore, binding on the
      plaintiff.
            18. The plaintiff felt aggrieved and filed the present appeal by
F     way of special leave in this Court.
            19. Heard learned counsel for the parties.
             20. The main question, which now survives for consideration in
      this appeal, is whether the High Court was justified in holding that the
      sale made by defendant No.1-Pritam Singh in favour of defendant Nos.
G     2 and 3 was for legal necessity and, if so, whether it was legal and valid
      sale.
             21. So far as the nature and character of the suit land is concerned,
      it was held to be ancestral land and since no challenge was made to this
      finding, it is not necessary to examine this question in this appeal.
H
 KEHAR SINGH (D) THR. LRS & ORS. v. NACHITTAR KAUR                          991
        & ORS. [ABHAY MANOHAR SAPRE, J.]

       22. Mulla in his classic work “Hindu Law” while dealing with the     A
right of a father to alienate any ancestral property said in Article 254,
which reads as under:
                             “Article 254
       254. Alienation by father – A Hindu father as such has
       special powers of alienating coparcenary property, which             B
       no other coparcener has. In the exercise of these powers
       he may:
       (1) make a gift of ancestral movable property to the extent
           mentioned in Article 223, and even of ancestral
           immovable property to the extent mentioned in                    C
           Article 224;
       (2) sell or mortgage ancestral property, whether movable
           or immovable, including the interest of his sons,
           grandsons and great-grandsons therein, for the
           payment of his own debt, provided the debt was an                D
           antecedent debt, and was not incurred for immoral or
           illegal purposes(Article 294).”
      23. What is legal necessity was also succinctly said by Mulla in
Article 241, which reads as under:
                                                                            E
                             “Article 241
       241. What is legal necessity- The following have been held
       to be family necessities within the meaning of Article 240:
       (a) payment of government revenue and of debts which
           are payable out of the family property;                          F
       (b) Maintenance of coparceners and of the members of
           their families;
       (c) Marriage expenses of male coparceners, and of the
           daughters of coparceners;
                                                                            G
       (d) Performance of the necessary funeral or family
           ceremonies;
       (e) Costs of necessary litigation in recovering or
           preserving the estate;
                                                                            H
992            SUPREME COURT REPORTS                        [2018] 9 S.C.R.


A            (f)   Costs of defending the head of the joint family or any
                   other member against a serious criminal charge;
             (g) Payment of debts incurred for family business or other
                 necessary purpose. In the case of a manager other
                 than a father, it is not enough to show merely that the
B                debt is a pre-existing debt;
                   The above are not the only indices for concluding as
                   to whether the alienation was indeed for legal
                   necessity, nor can the enumeration of criterion for
                   establishing legal necessity be copious or even
C                  predictable. It must therefore depend on the facts of
                   each case. When, therefore, property is sold in order
                   to fulfil tax obligations incurred by a family business,
                   such alienation can be classified as constituting legal
                   necessity.”
D                  (see Hindu Law by Mulla “22nd Edition”)
            24. The High Court, after taking note of the aforementioned legal
      principles of Hindu law, dealt with this question on facts in para 12,
      which reads as under:
             “12. In the light of the aforesaid legal position, now it has
E            to be examined as to whether the defendants have
             discharged their onus to prove the existence of the legal
             necessity at the time of the impugned sale deed.
             Defendant Tara Singh, while appearing as DW 13 has
             stated that amount of Rs.5,500/- was paid by him as earnest
F            money, Rs.500/- was spent for payment of Taccavi loan
             and registration of sale deed and Rs.934/- was paid to the
             vendor, about 3-4 days prior to the registration of the sale
             deed, for payment of Taccavi loan an amount of Rs.12,566/
             - was paid at the time of registration of the sale deed. DW
             1 Shri Gopal, who was an Assistant in the DC office,
G            Ludhiana has stated that Pritam Singh vendor was granted
             loan of Rs.3,000/- in the year 1995 and he did not pay a
             penny from the said loan till 20.11.1964. DW 2 Ram Dass,
             a tubewell mechanic has proved that Pritam Singh had
             spent Rs.4,000/- for installing a tubewell in the year 1963.
             DW 9 Sat Pal, Additional Wasil Baqa Nawis, Ludhiana has
H
 KEHAR SINGH (D) THR. LRS & ORS. v. NACHITTAR KAUR                             993
        & ORS. [ABHAY MANOHAR SAPRE, J.]

        proved that the vendor Pritam Singh had taken various                  A
        loans from the department for purchase of seeds bag.
        Rs.500/- for repair of house and Rs.2,500/- for purchasing
        pumping set. This witness further stated that Pritam Singh
        had purchased a Rehri for Rs.1,025/- from him in the year
        1961. DW 11 Dalip Singh has proved that Pritam Singh
                                                                               B
        had borrowed a sum of Rs.3,000/- from him in the year
        1959 by executing a pronote. This witness has also stated
        that Pritam Singh had performed marriage of his 5
        children.”
       25. In our considered opinion, the approach, reasoning and the
conclusion arrived at by the High Court on the question of legal necessity     C
as to whether it existed in this case while selling the suit land by Pritam
Singh or not does not call for any interference as the same was rightly
dealt with by the High Court while appreciating the evidence on record.
       26. It has come in evidence that firstly, the family owed two debts
and secondly, the family also needed money to make improvement in              D
agriculture land belonging to the family. Pritam Singh, being a Karta of
the family, had every right to sell the suit land belonging to family to
discharge the debt liability and spend some money to make improvement
in agriculture land for the maintenance of his family. These facts were
also mentioned in the sale deed.                                               E
        27. In our considered opinion, a case of legal necessity for sale of
ancestral property by the Karta (Pritam Singh) was, therefore, made
out on facts. In other words, the defendants were able to discharge the
burden that lay on them to prove the existence of legal necessity for sale
of suit land to defendant Nos. 2 and 3. The defendants thus satisfied the      F
test laid down in Hindu law as explained by Mulla in Article 254 (2) read
with Article 241 (a) and (g) quoted above.
       28. Once the factum of existence of legal necessity stood proved,
then, in our view, no co-coparcener (son) has a right to challenge the
sale made by the Karta of his family. The plaintiff being a son was one        G
of the co-coparceners along with his father-Pritam Singh. He had no
right to challenge such sale in the light of findings of legal necessity
being recorded against him. It was more so when the plaintiff failed to
prove by any evidence that there was no legal necessity for sale of the
suit land or that the evidence adduced by the defendants to prove the
                                                                               H
994              SUPREME COURT REPORTS                          [2018] 9 S.C.R.


A     factum of existence of legal necessity was either insufficient or irrelevant
      or no evidence at all.
             29. We are, therefore, of the considered opinion that the reasoning
      and the conclusion arrived at by the High Court is just and proper. We,
      therefore, concur with the view taken by the High Court calling for no
B     interference.
            30. In view of the foregoing discussion, the appeal fails and is
      accordingly dismissed.
      Devika Gujral                                                Appeal dismissed.

C




D




E




F




G




H