Sale Of Family Property

Source: The Hitavada      Date: 27 Aug 2018 12:11:19

 


 

 

 

 

 

 

 

 

 

The appeal in this case was filed by the legal representatives of the original plaintiff against the final judgement and order passed by the Punjab & Haryana  High Court at Chandigarh, on April 20, 2006, whereby the HC had allowed the appeal filed by the respondent-defendants and dismissed the suit filed by the original plaintiff.

IN THE judgement of the case – Kehar Singh (dead) through LRs & Others v. Nachittar Kaur & Others, delivered on August 20, 2018, Justice Abhay Manohar Sapre and Justice Sanjay Kishan Kaul, at the Supreme Court, have held that “once the factum of existence of legal necessity stood proved, then, in our view 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 father-Pritam Singh. He had no right to challenge such sale in the light of findings of legal necessity for sale of the suit land 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.
The appeal in this case was filed by the legal representatives of the original plaintiff against the final judgement and order passed by the Punjab & Haryana High Court at Chandigarh, on April 20, 2006, whereby the HC had allowed the appeal filed by the respondent-defendants and dismissed the suit filed by the original plaintiff.


The main question, which survived for consideration by the Supreme Court in appeal, was whether the High Court was justified in holding that the sale made by the defendant No. 1- Pritam Singh in favour of defendants No. 2 and 3 was for legal necessity and, if so, whether it was legal and valid sale.


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 was felt that it was not necessary to examine this question in this appeal.
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:


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 to the extent mentioned in Article 223, and even of ancestral immovable property to the extent mentioned in 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 ancestral debt, and was not incurred for immoral or illegal purposes
(Article 294).”


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 their families;


(c) Marriage expenses of male coparceners, and of the daughters coparceners;


(d) Performance of the necessary funeral or family 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 a pre-existing debt;


These 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 fulfill tax obligations incurred by a family business, such alienation can be classified as constituting legal necessity.” (Hindu Law by Mulla -22nd Edition).
The HC, after taking note of the these principles of Hindu Law, dealt with this question on facts in para 12 of its judgement which reads:


12. In the light of the aforesaid legal position, now it has 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 defendants’ witness - 13 has stated that amount of Rs 5,500/-was paid by him as earnest 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.”


In the Supreme Court’s considered opinion, the approach, reasoning and the conclusion arrived at by the HC on the question of legal necessity 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 HC while appreciating the evidence on record.
It has come in evidence that firstly, the family owed two debts and secondly, the family also needed money to make improvement in agricultural land belonging to the family. Pritam Singh being 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 agricultural land for the maintenance of his family. These facts also find mention in the sale deed.
In the “considered opinion” of the apex court, a case of legal necessity for sale of ancestral 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 defendants – 2and 3. The defendants thus satisfied the test laid down in Hindu Law as explained by Mulla in Article 254 (2) read with Article 241 (a) and (g) quoted above. In view of this legal position, the Supreme Court dismissed the appeals.