Himachal Pradesh High Court
Devi Singh & Ors vs Bhim Singh (Deceased) Through His Lrs & … on 27 July, 2026
2026:HHC:31473
IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA
RSA No. 40/2026 a/w
RSA No.39/2026
Reserved on: 07.07.2026
.
Decided on: 27.07.2026
RSA No. 40/2026
Devi Singh & ors. .....Appellants
Versus
of
Bhim Singh (deceased) through his LRs & ors. ....Respondents
RSA No. 39/2026
Devi Singh & ors.
rt .....Appellants
Versus
Bhim Singh (deceased) through his LRs & ors. ....Respondents
______________________________________________________________
Coram:
The Hon'ble Mr. Justice Romesh Verma, Judge.
Whether approved for reporting?1 Yes
For the Appellants: Mr. Jia Lal, Advocate, vice Mr. G. R.
Palsra, Advocate.
For the Respondents: Mr. Kulwant Chauhan, Advocate, for
respondents No. 1(a),4, 5 and 6.
Mr. Ankush Dass Sood, Sr. Advocate
with Mr. Kiran Kumar, Advocate, for
respondents No. 2 and 3.
1Whether reporters of the local papers may be allowed to see the judgment? Yes.
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Romesh Verma, Judge
The present appeals arise out of the judgments and
decrees, dated 24.12.2025, as passed by the learned Additional
.
District Judge-II, Mandi, District Mandi, H.P., whereby the
appeals filed by the present appellants/plaintiffs/non-counter
claimants have been dismissed and the judgment and decree,
dated 30.05.2015, as passed by the learned Civil Judge (Junior
of
Division),Chachiot at Gohar, District Mandi, dismissing the suit
of the appellants/plaintiffs and decreeing the counter claim of
the defendants/respondents, has been affirmed.
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2 Brief facts of the case are that originally the
appellant/plaintiff No.1, Devi Singh filed Civil Suit No. 53/2011
for declaration and injunction as a consequential relief under
Sections 34 to 38 of the Specific Relief Act before the learned
trial court on 4.5.2011 on the ground that the land comprised
in Khata Khatauni No. 39/39, bearing Khasra Nos. 107,113,
118,121, 123,132 and 142, Kitta 7 measuring 8-1-18 Bighas,
situated in Mohal Batand/84, Tehsil Chachiot, Distt. Mandi
H.P. and the land comprised in Khata Khatauni No. 21/21,
bearing Khasra Nos. 31,153,154,166,168,169,177,181,182,188
and 208 Kitta 11 measuring 13-13-8 Bighas, situated in Mohal
Tikkar/83, Tehsil Chachiot, Distt. Mandi H.P. is the joint Hindu
family ancestral and coparcenary property, as recorded in the
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name of his father Bhim Singh i.e. defendant No. 1, who is the
Karta of the family. The proforma defendants are his brother,
sisters, and step mother.
.
3 It is pertinent to mention here that during the
pendency of the suit, proforma defendants No.5 and 6 Hira and
Mala respectively were transposed as plaintiffs No. 2 and 3.
Mother of the plaintiff namely Manghari was the first wife of the
of
defendant No. 1, but got divorced. It was averred that for the
purpose of cultivation, defendant No.1 permitted the plaintiff to
remain in the landed property at Mohal Batand in the month of
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September 1984 and since then he is in peaceful possession of
the same. The land situated at Mohal Tikkar/83 was given for
cultivation to brothers of the plaintiff i. e. defendant No. 4
namely Diwan and Khem Singh (now deceased), who is survived
by his LRs i.e. wife and two sons, i.e. proforma defendants No.
8, 9 and 10. Defendant No. 1 lives intermittently in Mohal
Batand with the plaintiff and usually lives in Mohal Tikkar in
the ancestral house.
4 As per the plaintiffs, defendant No. 1 is an old man
being maintained by his all family members as per their legal
obligations including the plaintiffs and defendant No.1 has got
no legal necessity to dispose of any part of the suit land. But
the plaintiff came to know from his son on 1.5.2011 that the
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part of the suit land had been sold by defendant No. 1 in favour
of defendants No. 2 and 3, namely, Dharmender Singh and
Nand Lal respectively. Plaintiff No.1 made inquiry and search of
.
the revenue record and came to know that without the consent
of the plaintiffs, defendant No. 1 had illegally sold Khasra No.
107 measuring 5-2-8 Bighas of the suit land, situated in Mohal
Batand, vide registered sale deed No. 105 dated 16.4.2011 and
of
mutation to this effect had been attested by the revenue
authority concerned on 23.4.2011, vide mutation No.83 behind
the back of the plaintiffs. The aforesaid sale deed has been
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procured by the defendants No. 2 and 3 on account of
retaliation to the long civil litigation in the Civil Courts with
respect to the adjoining land of this Khasra number on the
boundary of Mohal Suraha with their father.
5 It is the case of the plaintiffs that the alleged sale
deed has been procured by defendants No. 2 and 3, without
delivery of possession, in connivance with the interested
witnesses and defendant No. 1, whereas there was no legal
necessity for the same. Though, the plaintiffs made requests to
defendants No. 1 to 3 to cancel the alleged sale deed as the suit
land is ancestral joint Hindu family property and even to
receive the alleged sale consideration amount, but they declined
to admit the legal claim of the plaintiffs over the suit land and
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further threatened to alienate the suit land and dispossess the
plaintiff No.1 from his peaceful joint possession. Therefore, the
suit was instituted by the plaintiffs seeking declaration on the
.
ground that the suit land be declared as joint Hindu family
ancestral and coparcenary property and defendant No. 1 be
restrained to alienate the same to third person or make
unlawful interference over the same. Further sale deed No. 105
of
dated 16.4.2011 qua the part of the suit land i.e. Khasra No.
107 having been executed by defendant No. 1 in favour of
defendants No. 2 and 3 and mutation on the basis of same in
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the revenue record be declared as illegal, wrong, null and void
and having no binding effect upon the rights of the plaintiff.
6 The defendants 1 to 3 contested the suit by filing
written statement, wherein preliminary objections, qua
maintainability, enforceability, estoppel, valuation, etc. were
raised. On merits, it was denied that the suit land is joint
Hindu family ancestral and coparcenary property of the plaintiff
and the others. It was averred that the suit land is self acquired
property of defendant No.1. Plaintiff No.1 never resided with
defendant No.1 nor they constituted joint Hindu family. In fact
the plaintiff No.1 has been residing with one, Hira s/o Karmu
and rendering all the help to him, as such in lieu of services
rendered by plaintiff No.1 to Hira Singh, he gifted his entire
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property to the extent of 21-0-0 bighas in favour of plaintiff.
Neither plaintiff No.1 resided with his father i.e. defendant No.1
nor he rendered any services to him.
.
7 It was specifically denied that defendant No.1 had
directed and permitted the plaintiff to remain in possession of
the suit land, situated at Mohal Batand since 1984. As a matter
of fact, the plainitff had been given some of the landed property
of
in Mohal Tikkar, which he got sold through defendant No.1 to
Roop Chand and Gulab Chand for a sale consideration of
Rs.80,000/- and the entire money of sale consideration was
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usurped by the plaintiff himself exclusively. As per defendants
No. 1 to 3, the plaintiff No.1 never assisted and helped
defendant No.1 in his needs, whereas defendant No.1 is having
no source of income and he has to maintain even family of his
predeceased son late Sh. Khem Singh. Defendant No.1 being an
old man remained ill for a long period and remained admitted
in IGMC Shimla for months together where he was operated
and for that purpose, huge money was required and accordingly
spent on his treatment, however plaintiff No.1 did not render
any help in spite of the repeated requests made by defendant
No.1. Defendant No.1 had to obtain loan for his treatment as
such, he had no alternate but to dispose of the suit land.
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8 It was averred by defendants No.1 to 3 that the sale
deed which was executed by defendant No.1 in favour of
defendants No. 2 and 3 was on account of legal necessity. The
.
plaintiff has got no locus standi to challenge the sale deed and
defendant No.1 is at liberty to dispose of the property as he
likes.
9 The proforma defendants filed separate written
of
statement to the plaint as instituted by the plaintiff. The
proforma defendants denied the claim as made by the plainitffs
and filed written statement on the same lines as was filed by
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defendants No. 1 to 3. The proforma defendants prayed for
dismissal of the suit as filed by the plaintiffs.
10 The defendants No. 2 and 3 apart from filing the
written statement also instituted counter claim seeking decree
of injunction by restraining the plaintiffs to cause any
interference over the land comprised in Khasra No.107,
measuring 5-2-8 Bighas, situated in Mohal Batand, Tehsil
Chachiot, District Mandi, H.P.
11 The plaintiffs/non-counter claimants filed written
statement to the counter claim, as filed by defendants No. 2
and 3 and refuted all the averments as made in the written
statement and prayed for dismissal of the counter claim.
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12 Defendants No. 2 and 3 also filed replication to the
written statement, as filed by the plaintiffs/non-counter
claimants, reiterating therein the averments as made in the
.
counter claim.
13 The learned trial court on 06.10.2012/30.10.2012
framed the following issues:-
“1. Whether the suit land is the joint Hindu family
coparcenary property. If so, its effect? OPPof
2. Whether the defendant No. 1 is liable to be restrained
from alienating the suit land through a decree of
permanent prohibitory injunction, as prayed for? OPP
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3. Whether the sale deed No. 105 dated 16.4.2011
executed in favour of defendants No. 2 & 3 qua KhasraNo. 107 and mutation attested on its basis are liable to be
declared null and void, as prayed for? OPP
4. Whether the present suit is not maintainable?, as
alleged? OPD
5. Whether no enforceable cause of action has accrued in
favour of plaintiff, as alleged? OPD
6. Whether the plaintiff is estopped to file the present suit
by his own act and conduct, as alleged? OPD
7. Whether the suit is not properly valued for the purpose
of court fee and jurisdiction, as alleged? OPD
8. Whether the plaintiff is liable to be restrained from
causing any interference over the part of the suit land i.e.
Khasra No. 107 as the same had been purchased by
counter claimants, as alleged? OPD
8A. Whether the defendant No. 1 had sold part of suit
land i.e. Khasra No. 107 to defendants No. 2 & 3 for legal
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9. Relief.”
14 The learned trial court directed the parties to
adduce evidence in support of their contentions to corroborate
.
their respective case and ultimately, the learned trial court vide
its judgment and decree dated 30.05.2015 dismissed the suit of
the plaintiffs/appellants and decreed the counter claim, as filed
by defendants No. 2 and 3.
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15 The plaintiffs/appellants, feeling dissatisfied by the
judgment and decree, dated 30.05.2015, as passed by the
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learned trial court, preferred two appeals before the learned
first Appellate Court on 09.06.2015 and 02.06.2022, which too
came to be dismissed vide judgment and decree dated
24.12.2025.
16 Still feeling aggrieved by the aforesaid judgments
and decrees, the plaintiffs/appellants have preferred the
present regular second appeals before this Court.
17 With consent of the learned counsel for the parties,
the present appeals are finally heard on the following
substantial question of law:-
Whether the judgments and decrees of both the
learned Courts below are perverse in which the
pleadings and evidence led by the appellants have
been totally ignored?
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18 It is contended by Mr. Jia Lal, learned vice counsel
for the appellants that the impugned judgments and decrees,
.
as passed by the learned Courts below, are erroneous, wrong
and, thus, liable to be quashed and set aside. He has submitted
that the learned Courts below have erred in law by mis-
appreciation and mis-construction of the oral as well as
documentary evidence placed on record, as a result of which
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great prejudice has been caused to the plaintiffs. He has further
submitted that after accepting the present appeals, the suit as
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instituted by the plaintiffs deserves to be decreed and the
counter claim as instituted by defendants No. 2 and 3 deserves
to be rejected.
19 On the other hand, Mr. Ankush Dass Sood, learned
Senior Advocate, assisted by Mr. Kulwant Chauhan, Advocate,
appearing for the respective respondents/defendants has
defended the impugned judgments and decrees, as passed by
the learned Courts below. He has submitted that there are
concurrent findings of fact returned by the Courts below,
therefore, this Court, while exercising the power under Section
100 of CPC, has very narrow and limited power to interfere in
the well reasoned judgments and decrees as passed by the
learned Courts below. The learned courts below, after thrashing
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entire evidence, as placed on record, have rightly dismissed the
suit filed by the plaintiffs and have decreed the counter claim
as filed by defendants No. 2 and 3 by invoking legal provisions
.
of law.
20 I have heard the learned counsel for the parties and
have perused the record carefully.
21 As observed above, the appellants/plaintiffs had
of
instituted a civil suit before the learned trial court seeking
declaration and injunction as a consequential relief on the
ground that suit land situated at Mohal Batand and Tikkar is
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joint Hindu Family ancestral and coparcenary property of the
plaintiffs having been recorded in the name of their father,
defendant No. 1, who is the Karta of the family. It is the case of
the plaintiffs that defendant No.1 had permitted plaintiff No.1
to cultivate the landed property at Mohal Batand in the month
of September 1984 and since then he is in possession of the
said land. It is further case of the plaintiffs that defendant No.1
had given the suit land situated at Mohal Tikkar to his brother
defendant No. 4 namely Diwan and brother namely Khem Singh
(now deceased), who is survived by his LRs i.e. wife and two
sons, i.e. defendant No. 8, 9 and 10. Defendant No. 1 is an old
man being maintained by his all family members as per their
legal obligations including the plaintiff and thus, defendant
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No.1 has got no legal necessity to dispose of any part of the
suit land. Defendant No. 1 Bhim Singh has illegally sold Khasra
No. 107 measuring 5-2-8 Bighas of the suit land situated in
.
Mohal Batand, vide registered sale deed No. 105 dated
16.4.2011 and mutation to this effect was attested by the
revenue authority concerned vide mutation No.83, dated
23.4.2011, behind the back of the plaintiffs. Defendants No. 2
of
and 3, with a mala fide intention, got the sale deed executed in
their favour in an illegal manner and the same has been
procured by them without delivery of possession that too in
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connivance with the interested witnesses and defendant No. 1,
who had no legal necessity for the same. The suit land is joint
Hindu family ancestral coparcenary property, therefore, the
same could not have been sold by defendant No.1 without
express consent of the plaintiffs.
22 On the other hand, the suit has been resisted by the
defendants primarily on the ground that in case suit land is
found to be ancestral one, then the sale as executed by
defendant No.1 in favour of defendants No. 2 and 3 is for legal
necessity. Though in para 2 of the written statement, it was
denied that the suit land is joint Hindu family ancestral and
coparcenary property and it was claimed that the suit land is
self acquired property of defendant No.1. Plaintiff No.1 never
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resided with defendant No.1 nor he constituted Joint Hindu
family. In fact plaintiff No.1 had been residing with one Hira s/o
Karmu and said Hira Singh gifted his entire property to the
.
extent of 21-0-0 Bighas in favour of plaintiff.
23 As per case of the defendants, the plaintiff No.1 had
been given some land in Mohal Tikkar which he got sold
through defendant No.1 to Roop Chand and Gulab Chand for a
of
sale consideration of Rs.80,000/- and the entire money of sale
consideration was taken away by plaintiff No.1 himself
exclusively. Plaintiff No.1 never assisted and helped defendant
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No.1 in his needs. Defendant No.1 being an old man had no
source of income and he had to maintain family of his
predeceased son late Sh. Khem Singh, consisting of his widow
and two sons, for their education and maintenance. Being an
old person, he fell ill for a considerable period and remained
admitted in IGMC Shimla for various months, and there, he
was operated and he had to spend hefty amount on his
treatment, however no help was rendered by plaintiff No.1 in
spite of repeated requests made by defendant No.1. As a result
of which, defendant No.1 had to raise loan for the said
necessity as he had got no other alternate but to dispose of the
suit land and the sale which was executed by him in favour of
defendants No. 2 and 3 was for legal necessity.
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24 In counter claim, filed by defendants No. 2 and 3, it
was claimed that on the basis of sale deed, which was executed
by defendant No.1 in their favour, they have become owners in
.
possession of the suit land bearing Khasra No.107, measuring
5-2-8 Bighas, situated in Mohal Batand, Tehsil Chachiot,
District Mandi, H.P., therefore, the plaintiff may be restrained
from causing any interference over the suit land in any manner.
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25 In order to substantiate their case, plaintiff No.1
Devi Singh entered into the witness box as PW1 and tendered
in evidence his affidavit, Ext. PW1/A, wherein he stated that
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the suit land is joint Hindu family ancestral and coparcenary
property and his father i.e. defendant No.1 is entered as owner
of the suit land. His father is ‘Karta’ of the joint family. In order
to maintain the joint land in a proper manner, defendant No.1
in the month of September, 1984 had given the suit land
situated at Mohal Batand to plaintiff No.1 and since then, he is
in peaceful possession of the same. The suit land situated at
Mohal Tikkar was given to his brother namely Diwan,
defendant No.4 and defendants No.8 to 10, legal heirs of late
Sh. Khem Singh, his brother. He stated that his father is an old
person and the entire family maintains and looked after him
from the usufructs of the suit land. In order to alienate the suit
land, defendant No.1 had got no legal necessity, as plaintiff
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No.1 along with his sisters had contributed financially for the
treatment of their father in 2010 at Mandi and Shimla. On
1.5.2011, his son, Topender told him that defendant No.1 had
.
executed a sale deed in favour of defendants No. 2 and 3 by
selling part of the suit land at Mohal Batand. When PW1
inquired about the same after obtaining necessary revenue
papers, it came to his knowledge that his father had sold
of
Khasra No. 107 measuring more than 5 Bighas, situated at
Mohal Batand in favour of defendants No. 2 and 3 at his back
and necessary mutation had also been attested.
rt
26 As per PW1, defendants No. 2 and 3 had
intentionally got executed sale deed in their favour on account
of enmity and long standing litigation between them. He stated
that till date, he is in possession of suit land bearing Khasra
No. 107 and the possession of the same has not been delivered
to defendants No. 2 and 3, therefore, after decreeing the suit,
sale deed as executed by defendant No. 1 in favour of
defendants No.2 and 3 may be cancelled.
27 In his cross-examination, he stated that defendant
No.1 Bhim Singh is his father and he is more than 80 years old.
He is an agriculturist. They are three brothers and reside along
with family at Mohal Batand. He stated that his Khata is
separate from his father. Name of his second brother is Diwan.
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He is residing separately at Mohal Tikkar. He stated that his
father is also residing separately and he resides in a separate
home at Mohal Tikkar. PW1 further stated that he occasionally
.
used to come to Mohal Batand. He stated that his third brother
namely Khem Singh had expired and in his family, he is
survived by his wife and two sons and they are also residing
separately. He stated that for the last 35-40 years, they are
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residing separately. He stated that his income is very limited
and even income of his brothers is also very limited. He stated
that he is having land to the extent 20-22 bighas. Hira Singh
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had executed a gift deed by giving 20-22 Bighas land in his
favour. He earns Rs.10,000/- to 15,000/- per annum from the
agriculture. His father obtained some land through grant of
nautor, which is about more than 4 Bighas. His father had
purchased some land measuring 5-6 Bighas and had got some
land from his maternal side. He stated that he cannot say what
is the extent of the land, which his father got from his mother.
Self stated that it must be about 5 Bighas. He denied that at
Mohal Tikkar, some land was given to him by his father. He
stated that he does not know that his father had sold land at
Mohal Tikkar to Roop Chand and Gulab Chand. Self stated that
his father must have sold. He stated that he did not institute
any suit against them. He denied that the said land was given
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to him and that the same was sold by him for a sum of
Rs.80,000. He denied that he kept the entire sale consideration
of Rs.80,000/- and did not give anything to his father. He
.
stated that he had told his counsel about the execution of the
sale deed in favour of Roop Chand and Gulab Chand, but he
did not file any suit against them.
28 As per PW1, his sister-in-law is having two sons,
of
who are studying in Mandi. He admitted that their education
expenses are being borne by defendant No.1. Both the sons of
deceased brother are studying in Mandi College. They are
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residing in a rented accommodation at Mandi. He stated that
his father is not feeling well for the last 5-6 years. Eye of his
father was operated about 5 years ago and the said operation
was conducted at Mandi and the same was got done by him. He
stated that he cannot place any material on record to show
that the said operation was got conducted by him and at the
relevant time, he spent about Rs.10,000/- for the said
operation. In 2010, defendant No.1 was suffering from kidney
problem and he was taken for check up initially at Bagshad and
thereafter at Mandi. At Mandi, defendant No.1 remained
admitted in Hospital for about 8-10 days. He does not know
how much amount was spent on treatment. Self stated that
Rs.5000/- to Rs.7,000/- must have been spent on the same.
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Defendant No.1 was accompanied by his son Diwan, defendant
No.4. He does not know name of the doctor, who treated his
father. Thereafter, defendant No.1 was taken to Shimla, but he
.
does not know how he went to Shimla. He does not know for
how many days, he remained at Shimla. Self stated that he
remained there for about more than 1 month. He must have
been taken to Shimla in the month of July and August. When
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defendant No.1 was taken to Shimla, he was accompanied by
his brother defendant No.4. He does not know how much
amount was spent on account of his treatment at Shimla and
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he stated that the said fact must be known to his brother
Diwan. He stated that he gave Rs.10,000/- for the treatment of
defendant No.1, whereas his sisters also gave Rs.18,000/- and
Rs.20,000/- respectively to defendant No.1. He does not know
on account of his illness, defendant No.1 raised loan from how
many persons. He stated that on account of the illness, the
amount, which was spent on treatment must be known to his
father and brother Diwan Singh. He does not know that entire
treatment was got done by raising loan. Land comprised in
Khasra Nos. 106 and 107 is Khadeter. He stated that he does
not know about Khasra number of the land which was given to
his father as nautor and the land which was inherited by his
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father from his maternal side. He denied that suit land is not
joint Hindu family coparcenary property.
29 PW2 Smt. Mala tendered in evidence her affidavit,
.
Ext. PW2/A. In her deposition, she has stated that the suit
land is joint Hindu family ancestral and coparcenary property
and her father, defendant No.1, is registered owner in the
revenue record. The land situated at Mohal Batand is about 8
of
bighas and the land at Mohal Tikkar is about 13 ½ Bighas. She
reiterated the averments as made by PW1. She stated that land
at Mohal Batand was given to the plaintiff No.1 in September
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1984 and since then, he is in possession of the same, whereas
the land situated at Mohal Tikkar was given to defendants No.
4, 8 and 10. She stated that her father had got no legal
necessity to sell the suit land in any manner. She stated that
she along her brothers and sisters got treated her father at
Mandi and Shimla in 2010.
30 In her cross-examination, she stated that all the
brothers and sisters were looking after defendant No.1. She
submitted that for the last 25-35 years they are residing
separately. She admitted that at Mohal Batand some land was
in possession of his father, which was Khadeter. Her father fell
ill in 2010 and before that he was perfectly alright. Prior to that,
treatment was not got done by anyone. Her Father fell ill in
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July-August. She stated that initially her father was taken to
Bagshad and thereafter Mandi and finally to Shimla. She
remained at Mandi for 4-5 days. Defendant No.1 was
.
accompanied by her brother Diwan to Mandi and thereafter to
IGMC. She stated that she does not know for how many days
they remained in Shimla. Self stated they must have
remained there for 10 days.
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31 As per PW2, when they remained in Shimla,
expenses of the treatment must have been borne by her brother
Diwan. She does not know how much amount was spent on the
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treatment of her father. Self stated that initially they used to
say Rs.60,000/- and thereafter they started saying that more
than Rs.1,50,000/- was spent on his treatment. She does not
know as to from how many persons her father had raised loan
for his treatment. She stated that factum of raising loan was in
the knowledge of defendants No. 1 and 4. She stated that
during treatment of her father, she never remained wtih him.
They never brought any medicine during his treatment. Self
stated that money was given to plaintiff No.1, who gave the
same to Diwan at Mandi. She stated that she had given
Rs.20,000/- and her sister had given Rs.18,000/-, whereas her
brother/plaintiff had given Rs.10,000/- for treatment of their
father. She denied that the suit land is not joint Hindu family
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ancestral and coparcenary property. She does not know that
the land was sold to Gulab Chand about 10-12 years ago. She
does not know that the land which was sold at Mohal Tikkar
.
had been given by her father to the plaintiff. She denied that
the said land was sold at the behest of the plaintiff. She stated
that she does not know that the entire sale consideration was
taken away by the plaintiff and no money was given to their
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father. She stated that they did not file any suit against Roop
Chand and Gulab Chand. Self stated that the suit was to be
instituted by Diwan. She stated that she does not have any
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objection with respect to sale of the said land in favour of Roop
Chand and Gulab Chand. She admitted that plaintiff No.1 is
residing separately and his Khata is separate. She denied that
the plaintiff No.1, did not help his father, defendant No.1 in any
manner. She denied that defendant No.1 got his treatment
after raising loan.
32 In order to rebut the case of the plaintiffs, defendant
No.1, Bhim Singh, entered the witness box as DW1. He stated
that he is having three sons and two daughters. His elder son is
Devi Singh, whereas Khem Singh was younger to him, who has
died and his third son is Diwan. Names of his daughters are
Hira Devi and Mala Devi. The plaintiff No.1 and defendant No.4
are residing separately. The plaintiff lives in Mohal Batand and
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22
defendant No.4 Diwan lives in Mohal Tikkar. He stated that he
had given more than 1 ½ Bigha of land at Mohal Tikkar and 3
Bighas of land at Mohal Batand. The plaintiff No.1 sold the
.
land which was given to him at Mohal Tikkar for sale
consideration of Rs.80,000/- to Roop Chand and Gulab Chand.
Plaintiff No.1 kept the entire sale consideration with him and
did not give even a single penny to him.
of
33 As per DW1, some land came to him from the
maternal side. He obtained grant of nautor, which is about 4
Bighas. He had purchased land measuring 6 bighas from one
rt
Dalaru. He stated that his second son Khem Singh had expired
about 22 years ago. He is survived by his two sons and widow.
The names of sons are Gopal and Laxman Singh. When his son
Khem Singh expired, at that time, age of his children was about
2 years and 1 years. He stated that he is looking after and
maintaining the said children. The children of Khem Singh are
residing with him. He further stated that sons of Khem are
studying in college and he is bearing all the expenses of their
education along with expenses of their mother. He stated that
he is not feeling well and about 2-3 years ago, he had urine
problem. He was treated at Bagshad, Mandi and thereafter at
Shimla. He remained admitted in Shimla for about 10-15 days
for the purpose of treatment. He was accompanied by his son
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Diwan and on his treatment, a sum of Rs.1,50,000/- was
spent. After operation, he used to go to Shimla for follow up in
jeep. He has no independent source of income. For the purpose
.
of his treatment, he sold the part of the suit land at Mohal
Batand to Nand Lal and Dharmender. Apart from the Khadeter,
the land, which is cultivable, is still with the plaintiff. He stated
that for his treatment, Diwan had obtained loan from Mohan
of
Singh and Chura Mani and in order to repay the loan amount,
he sold part of the suit land at Mohal Batand. In cross-
examination, nothing favourable could be extracted by the
rt
plaintiffs in order to impeach his testimony.
34 Diwan Singh, brother of the plaintiff and youngest
son of defendant No.1 entered the witness box as DW2 and
tendered in evidence his affidavit, Ext. DW2/A, wherein he has
also testified on the same lines as has been done by DW1. He
stated that about three years ago, his father was seriously ill
and he was taken to Zonal Hospital Mandi, where he remained
admitted for about 10-11 days and thereafter he was taken to
Shimla for his treatment. His father was operated in Shimla
and considerable amount was spent on his treatment. When his
father remained at Mandi and Shimla, on his treatment, they
spent more than about Rs. 1,50,000/- and the said amount
was raised in the form of loan. His father used to go to Shimla
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24
for check up/follow-up and he used to take his father to
Shimla. He stated that the entire expenses on his treatment
was borne by his father i.e. defendant No.1. He stated that his
.
brother and sister did not contribute for treatment of his father.
His father had no independent source of income. His father is
an old aged person. He stated that since his father had no
source of income therefore in order to repay the loan amount he
of
sold the suit land bearing Khasra No. 107 to Nand Lal and
Dharmender. He stated that the land which was sold was
Khadeter and prior to sale of the land, his father had talked to
rt
everyone. When his father sold the suit land to Nand Lal and
Dharmender on the very same day, possession of the same was
handed over to them.
35 DW3, Gopal Singh, is son of Late Sh. Khem Singh.
He entered into the witness box and filed his affidavit, Ext.
DW3/A, wherein he has also reiterated the testimonies of DW1
and DW2. He stated that his father expired in 1993 and at the
relevant time he was hardly 3 years old, whereas his younger
brother was one year old. After the death of his father, the
entire amount of maintenance is being paid by his grandfather.
They do not have any independent source of income. His
grandfather is an old man and has no source of income. For the
purpose of treatment, his grandfather had to raise loan and in
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order to repay the loan amount, his grandfather sold the suit
land bearing Khasra No. 107 at Mohal Batand in favour of
Nand Lal and Dharmender. He stated that before selling the
.
suit land his grandfather had taken the consent of all the
stakeholders.
36 DW4 Joginder Singh, who remained Tehsildar from
2009 to January 2012, stated that the sale deed Ext. DW4/A
of
was executed by defendant No.1 in favour of defendants No. 2
and 3 and same was got registered by him. He stated that at
the time of execution of the sale deed, he had inquired from
rt
defendant No.1 Bhim Singh who had acknowledged the
execution of the sale deed and at the relevant time his mental
condition was perfectly alright.
37 DW5 Nand Lal in his testimony stated that
defendant No.1 on 16.4.2011 executed a sale deed with respect
to Khasra No. 107 at Mohal Batand with respect to area
measuring 5-2-8 Bighas at Tehsil Chachiot. They purchased
the suit land for total sale consideration of Rs.1,00,000/- and
out of the total amount, his father, Laxman Singh paid
Rs.50000/- to defendant No.1 and remaining 50% of the sale
consideration was paid at the time of execution of the
registration of the sale deed in Tehsil Office. He stated that
Bhim Singh in the months of June and July 2010 was
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26
seriously ill and he was got treated in Mandi and Shimla. He
stated that Bhim Singh sold the suit land for his domestic
needs and on account of the fact that he had to incur lot of
.
expenses for his treatment, thus, he raised loan and in order to
repay the loan amount, he sold the part of the suit land.
38 PW1/B is copy of jamabandi for the year 2005-06
and as per the same, defendant No.1 Bhim Singh is the owner
of
of the suit land including Khasra No. 107 at Mohal Batand. The
copy of the sale deed has been placed on record as Ext. DW4/A.
In the sale deed, it has been incorporated by defendant No.1
rt
Bhim Singh that he is suffering from kidney ailment and he
was got operated in the year 2011. For the purpose of his
treatment, he asked for money from his relatives as his sons do
not maintain and look after him. His sons did not give any
money for his treatment, therefore, he had to raise loan and in
order to repay the said amount, he is selling the part of the suit
land i.e. Khasra No. 107 to Dharmender and Nand Lal for a
total sale consideration of Rs.1,00,000/-.
39 The case, as set up and projected by the plaintiffs
before the Courts below, is that the total suit land being joint
Hindu family ancestral and coparcenary property could not
have been alienated by defendant No.1 in favour of defendants
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27
No. 2 and 3 without obtaining consent from the other
coparceners.
40 The learned trial court framed the issues with
.
respect to the said fact whether the suit land is joint Hindu
family coparcenary property and said issue No.1 was answered
partly in affirmative and the learned trial court came to the
conclusion that Bhim Singh defendant No.1 inherited the suit
of
land from his father, grandfather etc. hence, the suit land is
joint Hindu family ancestral and coparcenary property. The
learned trial court came to the conclusion that it is proved on
rt
record from copies of mutations, Ext. DW5/A and Ext. DW5/B
that deceased Bhim Singh and his brother Ram Singh had
inherited some immovable property from their mother i.e from
maternal side.
41 Plaintiffs had not led any evidence on record to
prove the fact that the deceased Bhim Singh had blended his
self acquired property that is received by way of inheritance
from maternal side, self purchased and his nautor land in the
joint Hindu family property, meaning thereby, defendant No.1
had kept the property acquired by him separate and had not
blended the same into common stock of joint Hindu family
property.
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42 The said issue was answered partly in affirmative in
favour of the plaintiffs by the learned trial court and the said
findings came to be affirmed by the learned first appellate
.
Court. The learned first appellate court in para 75 of its
judgment came to the conclusion that part of the suit land
situated at Mohal Batand, as described in copy of jamabandi
Ext. PW1/B which includes Khasra No.107 having been sold to
of
defendants No. 2 and 3 by defendant No.1, is joint Hindu family
ancestral and coparcenary property, whereas rest of the suit
land situated at Mohal Tikkar, as described in copy of
rt
Jamabandi, Ext. PW1/C excluding nautor land as well as land
purchased by defendant No.1 from Dalaru is also joint Hindu
Family and coparcenary property. Therefore, contention of the
learned counsel for the appellants that defendant No.1 being
owner of joint Hindu family ancestral and coparcenary
property, could not have alienated and sold the part of the suit
land in favour of defendants No. 2 and 3 has been partly
accepted by the learned Courts below and the said findings
have not been challenged by the respondents either by filing
independent appeal or by filing of cross objections, therefore,
this Court holds that the part of the suit land situated at Mohal
Batand, as described in copy of jamabandi Ext. PW1/B which
includes Khasra No.107, having been sold to defendants No. 2
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29
and 3 by defendant No.1 is joint Hindu family ancestral and
coparcenary property.
43 Now, the prime and vital question to be determined
.
and as has been raised by the learned counsel for the
appellants is whether alienation which has taken place qua the
part of suit land is on account of legal necessity or not.
44 The learned counsel for the respondents have
of
vehemently argued that in case the Court comes to the
conclusion that the suit land bearing Khasra No. 107 is joint
Hindu family ancestral and coparcenary property in that event
rt
on account of legal necessity, the said alienation is legal and
valid.
45 It has come in the written statement of defendant
No.1 that plaintiff No.1 never assisted and helped defendant
No.1 in his day to day needs. It is case of defendant No.1 that
he had no independent source of income and he had to
maintain family of his pre-deceased son for their upkeep and
education. Defendant No.1 was an old aged person and he
usually remained ill. For a long period, he remained admitted
in IGMC Shimla, where he was operated. For the said purpose,
he incurred lot of expenses and for post operation follow up he
had to go to Shimla. He stated that neither the plaintiff No.1
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30
nor his daughters rendered any monetary help for incurring the
expenses for his treatment either at Mandi or Shimla.
46 A stand has been taken that in order to incur the
.
expenses for his treatment he had to raise loan and as such, in
order to repay the loan amount, he had to execute the sale deed
in favour of defendants No.2 and 3. The said fact was
corroborated when he entered the witness box, where he
of
categorically stated that for the purpose of his treatment, he
had to spend more than Rs.1,50,000/-. He had got no
independent source of income and in order to bear the
rt
expenses he had to raise loan and for the purpose of repayment
of loan, he had sold the part of suit land at Mohal Batand in
favour of defendants No.2 and 3. He stated that on his
treatment, his younger son Diwan, defendant No.4 had raised
loan from Mohan Singh and Churamani.
47 The said fact has also been corroborated by DW2,
Diwan, whereby he stated that his father is an old aged person
and on account of his illness, he was taken to Zonal Hospital,
Mandi and thereafter he was admitted in Shimla, where he was
got operated. While undergoing treatment at Shimla,
considerable amount was spent on his treatment. His father
had no independent source of income. Neither plaintiff No.1, his
brother, nor his sisters, contributed for treatment of defendant
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31
No.1 in any manner. He has stated that his father has borne all
the expenses of his treatment and in order to repay the loan
amount, he sold the part of the suit land in favour of
.
defendants No. 2 and 3.
48 DW3 Gopal Singh has also deposed on the same
lines that his father Khem Singh had died in the year 1993 and
at the relevant time he was hardly 3 years old, whereas his
of
younger brother was about 1 year old. He stated that they had
no independent source of income and his grandfather was
looking after them. His grandfather and mother were bearing
rt
their day to day expenses and also for their education. His
grander father was an old and ailing person and he had no
source of income. For the purpose of his treatment and in order
to look after them, his grander father had to raise loan and in
order to repay the said amount, he sold the part of the suit
land to defendants No. 2 and 3.
49 It has come on record that defendant No. 1 was
having three sons namely Devi Singh, plaintiff and Khem Singh,
who predeceased his father and is succeeded by his two sons
and widow and third son is Diwan. The case as projected by the
plaintiffs that the suit land being joint Hindu family ancestral
and coparcenary property could not have been alienated
without express consent of the other coparceners has been
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32
contested by defendant No.1 by taking a stand that the sale
deed, which was executed by him in favour of defendants No. 2
and 3 was on account of the legal necessity.
.
50 In order to prove the same, in case pleadings and
evidence as led by the defendants are seen, it is established on
record that defendant No.1 was an old and ailing person and he
had no independent source of income. He used to look after
of
family of Khem Singh, who predeceased to defendant No.1. The
defendants have led evidence that sons of late Khem Singh were
studying in college at Mandi and PW1 has admitted in his
rt
testimony that it is only defendant No.1 Bhim Singh who was
looking after, maintaining and educating them. Apart from
looking after family of Khem Singh, when defendant No.1 fell ill,
he was taken to Hospital at Mandi and then to Shimla.
51 It has come on record that defendant No.1 was
operated and about more than Rs. 1,50,000 was spent on his
treatment. Being an old man having no independent source of
come, he had to obtain loan from his relatives and the said fact
has been duly corroborated By DW2 Diwan Singh. It has also
come on record that in order to repay the said loan amount,
part of the suit land was sold by defendant No.1 for total sale of
Rs.1,00,000/- in favour of defendants No. 2 and 3. The factum
of illness of defendant No.1 has been admitted by PW-1 and
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33
PW-2. It is also admitted by plaintiff and his sister that on
account of illness the defendant No.1 was treated at Bagshaad,
Mandi and thereafter in Shimla. The factum of treatment and
.
hospitalization of DW-1 has rather been admitted by plaintiff
and his witness. During the pendency of suit, defendant No.1,
Bhim Singh, expired, however in his written statement, which
is duly signed by him and while making deposition in the
of
witness box as DW1, he has himself stated that his relatives
including his sons did not help him financially for his
treatment, therefore, he raised the loan. In order to repay the
rt
said loan, he sold the suit property to defendants No.2 and 3.
The said fact could not be rebutted by plaintiff in any manner.
52 As observed above, perusal of sale deed, Ext.
DW4/A shows that there is stipulation in the deed that
defendant No.1 was suffering from kidney ailment and he was
operated in IGMC Shimla, in the year 2011. For the purpose of
his treatment, he raised loan from the relatives as his sons did
not look after him. It has been incorporated in the sale deed
that his sons did not give any money for his treatment,
therefore, in order to repay the loan amount, he sold the part of
the suit land in Mohal Batand to defendants No. 2 and 3 for
total sale consideration of Rs.1,00,000/-
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34
53 The defendants have been able to establish that on
account of legal necessity defendant No.1 was constrained to
sell the suit land being Karta of the family, therefore, there is
.
no illegality, perversity or infirmity in the impugned judgments
and decrees as passed by the learned Courts below. The said
concurrent findings of fact as returned by the learned Courts
below are well reasoned, cogent, authentic and valid.
of
54 The Hon’ble Apex Court has held that right of Karta
to sell joint family property is well settled. Karta enjoys wide
discretion with regard to existence of legal necessity and in
rt
what way such necessity can be fulfilled it depends upon facts
of the each case.
55 The Hon’ble Supreme Court after analyzing concept
of legal necessity applied on Mulla’s Hindu Law observed that a
Hindu father has special power of alienating coparcenary
property, which no other coparcener has. In the exercise of this
power, he may make a gift of ancestral immovable property and
even of ancestral movable property. He may sell or mortgage
ancestral property, whether movable or immovable including
the interest of his sons, and grandsons, great grandsons for the
payment of his own debt; provided the debt was an antecedent
debt and was not incurred for immoral or illegal purposes.
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35
56 What is legal necessity was also succinctly said by
Mulla in Article 241, which reads as under:
.
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;
(b) maintenance of coparceners and of the members of
of
their families;
(c) marriage expenses of male coparceners, and of the
daughters of coparceners;
(d) performance of the necessary funeral or family
rt
ceremonies;
(e) costs of necessary litigation in recovering or preserving
the estate;
(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 debt is apre-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 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.”
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36
57 The Hon’ble Supreme Court in M.R. Vinoda vs.
M.S. Susheelama (dead) by LRs., (2021) 20 SCC 180, has
held as follows:
.
“25. Read in this light, it can be validly argued that the
relinquishment deed dated 13th March 1969, Exhibit P-2,
executed by the fourth defendant would be invalid.
However, in the present case, other aspects have to be
noticed to decide the relinquishment deed’s validity. First,
we must again refer to the superior power that the Kartaof
enjoys and, consequently, his greater rights and duties
than other members. A Karta can alienate the property
when other coparceners have given consent. It is also
rt
settled that a Karta may alienate the joint family property
for value, either for legal necessity or for the benefit of theestate, to bind the interests of all the undivided members
of the family, whether they are adults or minors or
widows. There are no specific grounds to prove theexistence of legal necessity, and it must therefore depend
on the facts of each case. A Karta has wide discretion in
the decision over the existence of legal necessity and as toin what way such legal necessity can be fulfilled.
However, it is observed this exercise of power and rightsby Karta is not beyond challenge on the limited ground of
lack of existence of legal necessity or absence of benefit tothe estate.
26. This Court in Kehar Singh (Dead) Through Legal
Representatives and Others v. Nachittar Kaur and Others,
analysing the concept of legal necessity had relied on
Mulla’s Hindu Law to observe:
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37
“20. Mulla in his classic work Hindu Law while dealing
with the 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
no other coparcener has. In the exercise of these powers
he may: (1) make a gift of ancestral movable property tothe extent mentioned in Article 223, and even of ancestral
immovable property to the extent mentioned in Article 224;
of
(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 antecedent
rt
debt, and was not incurred for immoral or illegal purposes(Article 294).”
21. xxx xxx xxx
26. 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 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
factum of existence of legal necessity was either
insufficient or irrelevant or no evidence at all.”
38. In our opinion, Article 60 would not apply as this is
not a case of transfer of property made by a guardian of a
ward. Article 109 applies to a plaint for setting aside the
father’s alienation of ancestral property governed by
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38
Mitakshara law. As per Article 109, the suit must be filed
within 12 years when the alienee takes possession of the
property. When we apply Article 109, the suit would be
barred by limitation as it was filed in 1994, nearly 24
.
years after the relinquishment deed (Exhibit P-2) was
executed to the fourth defendant in favour Patel
Mallegowda branch and nearly 21 years after the Plaintiff
No.3 attained majority in 1973. For the same reason, the
suit would be barred under Articles 58 and 59 of the
Limitation Act as it had been filed post three years from
of
the date the right to sue first accrued as per Article 58
and when the facts entitling the plaintiffs to have the
instrument or decree cancelled or set aside or the contract
rescinded first came to the knowledge of the plaintiffs as
rt
per Article 59. The High Court, in our opinion, rightly
rejected the specious and untrue plea of the plaintiffs that
till two months before the filing of the suit, they were
unaware and did not know about execution of the
relinquishment deed by their elder brother, the fourth
defendant.”
58 The perusal of the records shows that the sale deed
has been executed by father of the parties for the payment of
his own debt and it is also matter of record that said debt was
not incurred for immoral or illegal purposes, rather the debt
was on account of his treatment which was conducted at
Shimla and for that purpose, he incurred more than
Rs.1,50,000 and when his sons refused to pay the said amount,
then he was constrained to raise the loan from his relatives and
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39
in order to repay said amount he had to execute the sale deed
in favour of defendants No. 2 and 3.
59 Similarly the Hon’ble Supreme Court in C. A. No.
.
5340/2017, titled as Dastagirsab vs. Sharnappa, decided
16.09.2025 has held in para 11 as under:-
“11 Right of a Karta to sell joint family property is well
settled. Karta enjoys wide discretion with regard to
existence of legal necessity and in what way suchof
necessity can be fulfilled. Whether legal necessity existed
justifying the sale would depend on facts of each case. In
Beereddy Dasaratharami Reddy vs. V. Manjunath & Anr.,
rt
this Court succinctly elucidated:
“6. Right of the Karta to execute agreement to sell or sale
deed of a joint Hindu family property is settled and is
beyond cavil vide several judgments of this Court
including Sri Narayan Bal v. Sridhar Sutar (1996) 8 SCC
54] , wherein it has been held that a joint Hindu family iscapable of acting through its Karta or adult member of the
family in management of the joint Hindu family property.
A coparcener who has right to claim a share in the joint
Hindu family estate cannot seek injunction against theKarta restraining him from dealing with or entering into a
transaction from sale of the joint Hindu family property,albeit post alienation has a right to challenge the
alienation if the same is not for legal necessity or for
betterment of the estate. Where a Karta has alienated a
joint Hindu family property for value either for legal
necessity or benefit of the estate it would bind the interest
of all undivided members of the family even when they
are minors or widows. There are no specific grounds that::: Downloaded on – 29/07/2026 20:30:17 :::CIS
40establish the existence of legal necessity and the
existence of legal necessity depends upon facts of each
case. The Karta enjoys wide discretion in his decision
over existence of legal necessity and as to in what way.
such necessity can be fulfilled. The exercise of powers
given the rights of the Karta on fulfilling the requirement of
legal necessity or betterment of the estate is valid and
binding on other coparceners.”
xxx xxx xxx
of
60 From the aforesaid explosion of law, whereby the
rights of ‘Karta’ to sell the joint family property have been
rt
settled as in the present case, whereby the father of the parties
sold the part of suit property in order to incur the expenses for
his treatment, therefore, on account of legal necessity, the
‘Karta’ i.e. defendant No.1 was not barred from alienating or
selling part of the suit land in favour of defendants No. 2 and 3.
61 Apart from above, the most interesting fact in the
present case is that it has come in the evidence of the
defendants that part of the suit land was given to plaintiff No.1
at Mohal Tikkar and he sold the said land to Roop Singh and
Gulab Chand for a total sale consideration of Rs.80,000/-
through defendant No.1, however, he kept the entire sale
consideration with him and did not pay anything to defendant
No.1, therefore, on account of his conduct, plaintiff No.1 is
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41
estopped to challenge the sale deed as executed by defendant
No.1 in favour of defendants No. 2 and 3. On the one hand, he
himself had sold the part of the suit land for a total sale
.
consideration of Rs.80,000/- and on the other hand, when
defendant No.1, was in dire need of money for his medical
treatment, and sold part of the suit land at Mohal Batand on
account of legal necessity, the suit came to be instituted by the
of
plaintiffs. The plaintiffs cannot be permitted to approbate and
reprobate that on the one hand plaintiff No.1 himself has sold
the joint Hindu family ancestral and coparcenary property to
rt
Gulab Chand and Roop Chand and on the other hand he has
challenged the alienation of part of the suit land in favour of
defendants No. 2 and 3 by defendant No.1.
62 The defendants No. 2 and 3 have been able to
establish and prove execution of the sale deed for sale
consideration of Rs.1,00,000/- and on the strength of the sale
deed, they have become owners in possession of the suit
property and it has come in the evidence also that after
execution of the sale deed on the very same day, the possession
of the suit land was delivered to purchasers i.e. defendants No.
2 and 3. Therefore, on the strength of title, the learned courts
below have rightly granted decree of injunction in favour of the
counter claimants and there is no perversity infirmity or
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42
illegality in the same. Being owners of the suit property,
defendants No. 2 and 3 are well within their right to restrain
the plaintiffs/non-counter claimants from interfering in their
.
possession in any manner. There are concurrent findings of fact
as returned by the learned Courts below and after appreciating
oral as well as documentary evidence placed on record, both the
courts below have determined and adjudicated the point in
of
controversy in legal and valid manner.
63 The Hon’ble Supreme Court in catena of judgments
has held that the first appellate is the final court of the fact. No
rt
doubt, second appellate court exercising the power under
Section 100 CPC can interfere with the findings of fact on
limited grounds such as – (a) where the finding is based on
inadmissible evidence; (b) where it is in ignorance of the
relevant admissible evidence; (c) where it is based on
misreading of evidence; (d) where it is perverse, but that is not
case in hand.
64 The Hon’ble Supreme Court while dealing with scope
of interference under Section 100 in Hero Vinoth (minor) vs.
Seshammal, (2006) 5 SCC 545 has held as under:
18. It has been noted time and again that without
insisting for the statement of such a substantial question
of law in the memorandum of appeal and formulating the
same at the time of admission, the High Courts have been::: Downloaded on – 29/07/2026 20:30:17 :::CIS
43issuing notices and generally deciding the second appeals
without adhering to the procedure prescribed under
Section 100 of the CPC. It has further been found in a
number of cases that no efforts are made to distinguish.
between a question of law and a substantial question of
law. In exercise of the powers under this section in
several cases, the findings of fact of the first appellate
court are found to have been disturbed. It has to be kept
in mind that the right of appeal is neither a natural nor an
inherent right attached to the litigation. Being a
of
substantive statutory right, it has to be regulated in
accordance with law in force at the relevant time. The
conditions mentioned in the section must be strictly
fulfilled before a second appeal can be maintained and no
rt
court has the power to add or to enlarge those grounds.
The second appeal cannot be decided on merely equitable
grounds. The concurrent findings of facts will not be
disturbed by the High Court in exercise of the powers
under this section. Further, a substantial question of law
has to be distinguished from a substantial question of
fact. This Court in Sir Chunilal V. Mehta and Sons Ltd. v.
Century Spg. & Mfg. Co. Ltd. (AIR 1962 SC 1314) held
that :
“The proper test for determining whether a question of law
raised in the case is substantial would, in our opinion, bewhether it is of general public importance or whether it
directly and substantially affects the rights of the parties
and if so whether it is either an open question in the
sense that it is not finally settled by this Court or by the
Privy Council or by the Federal Court or is not free from
difficulty or calls for discussion of alternative views. If the
question is settled by the highest court or the general
principles to be applied in determining the question are::: Downloaded on – 29/07/2026 20:30:17 :::CIS
44well settled and there is a mere question of applying those
principles or that the plea raised is palpably absurd the
question would not be a substantial question of law.”
19. It is not within the domain of the High Court to
.
investigate the grounds on which the findings were
arrived at, by the last court of fact, being the first
appellate court. It is true that the lower appellate court
should not ordinarily reject witnesses accepted by the
trial court in respect of credibility but even where it has
rejected the witnesses accepted by the trial court, the
of
same is no ground for interference in second appeal when
it is found that the appellate court has given satisfactory
reasons for doing so. In a case where from a given set of
circumstances two inferences of fact are possible, one
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drawn by the lower appellate court will not be interfered
by the High Court in second appeal. Adopting any other
approach is not permissible. The High Court will, however,
interfere where it is found that the conclusions drawn by
the lower appellate court were erroneous being contrary to
the mandatory provisions of law applicable or its settled
position on the basis of pronouncements made by the
Apex Court, or was based upon inadmissible evidence or
arrived at by ignoring material evidence.
20. to 22 xx xxxxxx
23. To be “substantial” a question of law must be
debatable, not previously settled by law of the land or a
binding precedent, and must have a material bearing on
the decision of the case, if answered either way, insofar
as the rights of the parties before it are concerned. To be a
question of law “involving in the case” there must be first
a foundation for it laid in the pleadings and the question
should emerge from the sustainable findings of fact
arrived at by court of facts and it must be necessary to
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45
decide that question of law for a just and proper decision
of the case. An entirely new point raised for the first time
before the High Court is not a question involved in the
case unless it goes to the root of the matter. It will,
.
therefore, depend on the facts and circumstance of each
case whether a question of law is a substantial one and
involved in the case, or not; the paramount overall
consideration being the need for striking a judicious
balance between the indispensable obligation to do justice
at all stages and impelling necessity of avoiding
of
prolongation in the life of any lis.”
65 The Hon’ble Supreme Court in Annamalai vs.
rt
Vasanthi, 2025 INSC 1267, has held as follows:-
“16. Whether D-1 and D-2 were able to discharge the
aforesaid burden is a question of fact which had to be
determined by a court of fact after appreciating the
evidence available on record. Under CPC, a first appellatecourt is the final court of fact. No doubt, a second
appellate court exercising power(s) under Section 100 CPC
can interfere with a finding of fact on limited grounds,such as, (a) where the finding is based on inadmissible
evidence; (b) where it is in ignorance of relevant
admissible evidence; (c) where it is based on misreading
of evidence; and (d) where it is perverse. But that is notthe case here.
17. In the case on hand, the first appellate court, in
paragraph 29 of its judgment, accepted the endorsement
(Exb. A-2) made on the back of a registered document
(Exb. A-1) after considering the oral evidence led by the
plaintiff-appellant and the circumstance that
signature(s)/thumbmark of D-1 and D-2 were not::: Downloaded on – 29/07/2026 20:30:17 :::CIS
46disputed, though claimed as one obtained on a blank
paper. The reasoning of the first appellate court in
paragraph 29 of its judgment was not addressed by the
High Court. In fact, the High Court, in one line, on a.
flimsy defense of use of a signed blank paper, observed
that genuineness of Exb. A-2 is not proved. In our view,
the High Court fell in error here. While exercising powers
under Section 100 CPC, it ought not to have interferedwith the finding of fact returned by the first appellate
court on this aspect; more so, when the first appellateof
court had drawn its conclusion after appreciating the
evidence available on record as also the circumstance that
signature(s)/thumbmark(s) appearing on the document
(Exb.A-2) were not disputed. Otherwise also, while
rt
disturbing the finding of the first appellate court, the HighCourt did not hold that the finding returned by the first
appellate court is based on a misreading of evidence, or is
in ignorance of relevant evidence, or is perverse. Thus,
there existed no occasion for the High Court, exercisingpower under Section 100 CPC, to interfere with the finding
of the first appellate court regarding payment ofadditional Rs. 1,95,000 to D-1 and D-2 over and above
the sale consideration fixed for the transaction.
18. Once the finding regarding payment of additional sum
of Rs.1,95,000 to D-1 and D-2 recorded by the firstappellate court is sustained, there appears no logical
reason to hold that the plaintiff (Annamalai) was not
ready and willing to perform its part under the contract
particularly when Rs. 4,70,000, out of total consideration
of Rs. 4,80,000, was already paid and, over and above
that, additional sum of Rs.1,95,000 was paid in lieu of
demand made by D-1 & D-2. This we say so, because an
opinion regarding plaintiff’s readiness and willingness to::: Downloaded on – 29/07/2026 20:30:17 :::CIS
47perform its part under the contract is to be formed on the
entirety of proven facts and circumstances of a case
including conduct of the parties. The test is that the
person claiming performance must satisfy conscience of.
the court that he has treated the contract subsisting with
preparedness to fulfil his obligation and accept
performance when the time for performance arrives.”
66 As observed above, the Hon’ble Apex Court has
repeatedly held that the scope of interference under Section 100
of
CPC is limited and the interference will be in those cases where
the judgments are perverse and based on no evidence. On
rt
perusal of the impugned judgments and decrees, this court is of
the opinion that the same are valid, legal and sustainable in the
eyes of law and there is no infirmity and illegality in the same.
and no interference of any kind is required in the same. The
substantial question of law is answered accordingly.
67 No other point was urged by either of the parties.
68 In view of aforesaid discussions and for the reasons
stated hereinabove, there is no merit in these appeals and the
same are accordingly dismissed, leaving the parties to bear
their own costs. Pending application, if any, also stands
disposed of.
(Romesh Verma)
July, 2026 Judge
(pankaj)
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