Full Judgment Text
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PETITIONER:
K. C. KAPOOR
Vs.
RESPONDENT:
RADHIKA DEVI (DEAD) BY L. RS. & OTHERS
DATE OF JUDGMENT15/10/1981
BENCH:
KOSHAL, A.D.
BENCH:
KOSHAL, A.D.
ERADI, V. BALAKRISHNA (J)
MISRA, R.B. (J)
CITATION:
1981 AIR 2128 1982 SCR (1) 907
1981 SCC (4) 487 1981 SCALE (3)1565
ACT:
Second Appeal-It is not open, in second appeal, to the
High Court to interfere with the finding of facts based on
good evidence of the trial court-Code of Civil Procedure,
section 100.
HEADNOTE:
Estoppel by conduct and construction or pleadings in
the absence of an application under order Xl C.P.C.
Sale for legal necessity of joint Hindu family
property-"Kutumbarthe" explained.
Sheo Dularey Misra, in terms of a compromise decree
dated 29th August, 1931 was declared the exclusive owner of
a block of houses situated in Rae Bareli and also one half
of 4 annas and 9 pies share in a Zamindari. He died in 1951
leaving his widow, his son Parmeshwar Din Misra and grand-
sons Gajendra Narain and Sunil. His entire property was then
mutated in the name of his son Parmeshwar Din Misra both in
the revenue records as well as in the registers maintained
by the Rae Bareli Municipal Committee. From then onwards,
Parmeshwar Din Misra was in possession of the entire
property left by his father and also acted as its exclusive
manager. He received compensation for some of the zamindari
property, a part of which was also sold by him on 12th
January, 1959 for a consideration of Rs. 800. In the year
1960 and 1961, he constructed a one-storey building on a
plot of land in Khurshid Bagh, Lucknow, where he was
employed and residing with his wife and children. On 14th
February, 1964, he sold the western portion of the block of
houses purchased by his late father, to the appellant vide
sale deed Exhibit A l. In that sale deed he described
himself, as "exclusive and complete owner" of the Rae Bareli
property and claimed that he was "in possession and
occupation thereof with powers of transfer of all kinds.. ".
The necessity for the sale was thus described by him: "I am
constructing a house in Mohalla Khurshed Bagh, City Lucknow,
the lower portion whereof has already been constructed and
for the construction of the upper portion whereof funds are
required."
On 17-9-1964 his mother (Plaintiff No. 1) and his two
sons (Plaintiff Nos. 2 & 3) instituted a suit claiming the
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share in the said property and to have the
908
sale covered by Exhibit A-l set-aside on the ground that the
transaction was not for any necessity of the family. The
trial court dismissed the suit holding: (i) all the three
plaintiffs and defendant No. 2 formed a joint Hindu family
of which defendant No. 2 was the karta and his two sons
(Plaintiffs 2 & 3) acquired an interest by birth in the
property left by their grand-father; (ii) the Lucknow house
was the property of the said joint Hindu family; (iii) the
disputed sale was and act of good management and was in the
circumstances for the benefit of the family and, therefore,
for legal necessity; (iv) the vendee (appellant) was not
entitled to any protection under section 41 of the Transfer
of Property Act; and (v) it was the duty of defendant No. I
to give the details of misrepresentation constituting
estoppel in the written statement, which was not done so
that the evidence on the point could not be looked into. The
first appeal before the District Judge failed. But the High
Court, accepting a second appeal cancelled sale deed Exhibit
A-l and passed a decree for possession of the disputed
property in favour of the plaintiffs. Hence the appeal after
obtaining spccial leave.
Allowing the appeal, the Court,
^
HELD :1 :1 The findings given by the first appellate
court on the point of estoppel was eminently reasonable and
the short ground on which the High Court turned the tables
on the appellant was untenable. That finding being a finding
of fact and being based on good evidence, it was not open to
the High Court to interfere with it in a second appeal. [923
B-C]
1: 2. Proper foundation was laid for the plea of
estoppel in the pleadings. A combined reading of paragraphs
14 and 16 of the written statement gave sufficient notice to
the plaintiffs of what case they had to meet. The
representation said to have been made by plaintiff No. 1 is
set out in paragraph 14, while the plea that she was
estopped from contesting the sale is taken in paragraph 16.
Undoubtedly, the written statement is inartistically drafted
and leaves much to be desired, but then pleadings are not to
be construed in a hypertechnical manner. In fact, no
objection to the lack of particulars was taken at the stage
when issues were framed or later when statements of parties’
counsel were recorded on a subsequent occasion or during the
course of arguments addressed to the trial court, the
District Judge and the High Court, even though the issue of
estoppel was hotly contested before all three of them. All
these circumstances unmistakably indicate that the case put
forward by defendant No. 1 was throughout understood by the
plaintiff to be that it was the belief induced in him by the
representation of plaintiff No. I which made him accept the
title of defendant No. 2 as being exclusive. [923 C-H]
l: 3. The declaration of plaintiff No. 1, in the
presence of the appellant, that the property belonged to her
son and that he was at liberty to deal with it as he liked,
does not suffer from any ambiguity and makes it clear that
she had nothing to do with the property. [921 A-B]
1: 4. The onus of proof of the allegation that she was
the owner of a half share in the property at the time of the
sale was on her and she was duty bound to depose to facts
which would make section 3 of the Hindu Women’s Right to
Property Act, 1937 applicable to her case. Her failure to
depose to the existence thereof must result in a finding
that she has failed to prove the issue. [922 E-F]
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909
1: 5. In view of the fact that on Shiv Dularey Misra’s
death all his property was mutated in favour of his son to
the exclusion of plaintiff No. I and was all along being
dealt with by him as its sole and absolute owner without any
objection whatsoever having been raised by her at any point
of time to such conclusion or dealing leads to the
presumption that plaintiff No. I had relinquished her share
in favour r of her son either immediately after her husband
s death or at any other point of time prior to the disputed
sale. In the above situation the appellant was fully
justified in accepting her word on the point of ownership,
the said section 3 notwithstanding. [922 G-H, 923 A]
2: 1. That the disputed sale was for legal necessity is
clear from the following: (a) The written statement of the
appellant contains a definite plea in para 15 to the effect
that if the disputed house is proved to be joint Hindu
family property, its transfer was made by the karta for
legal necessity so that it was binding on the family, (b) no
objection by the plaintiffs was taken at any stage of the
trial to any lack of particulars of the legal necessity in
the plea so set up; (c) in the said para it was specifically
asserted that the disputed house was sold by defendant No.
2, "for the purpose of building a more profitable and
advantageous house at Lucknow with a view to dispose of a
construction which was old and in perilous condition and
which was of no present utility." The appellant was,
therefore, had the right to let in evidence that putting up
a second storey in 1) the Lucknow house constituted legal
necessity. Nor was any on objection taken at the evidence
stage to such right; (d) the appellant was a total stranger
to the family of the plaintiffs and in the very nature of
things could not have had any personal knowledge referable
to the actual manner in and the precise source from which
either the Lucknow house or, for that matter, the Rae Bareli
property was acquired, such manner and source being within
the special knowledge of plaintiff No. 1 and her son,
defendant No. 2, both of whom had stayed away from the
witness box and had thus deprived the Court of the only real
evidence which could throw light on the source of the
consideration paid for the purchase of Lucknow house; (e)
the salary of defendant No, 2 which was no more than Rs. 240
per mensem was too meagre to have sufficed for the
maintenance of his family and any savings therefrom were out
of question and (f) defendant No. 2 was not only the karta
of the family and its sole adult male member at the time of
the sale but was also the father of the only other two
copartners for whom he must naturally be having great
affection and whose interests he would surely protect and
promote, rather than jeopardise, there being no allegation
by the plaintiffs that he was a profligate or had other
reason to act to their detriment. [924 C-H, 925 A-E, G-H,
926 A, D-E, 927 B-C]
2: 2. The Lucknow house being the property of the joint
Hindu family consisting of defendant No. 2 and his sons and
the disputed sale being an act ’G of good management, the
sale is "Kutumbarthe" and justified by legal necessity. [927
C-D]
Nagindas Maneklal and others v. Mohomed Yusuf
Mitchella, ILR (1922) 46 Bombay 312, approved and applied.
Hunoomanpersaud Pandey v. Mussumat Babooee Munraj
Koonweree, (1856) 6 Moo. I.A. 393, referred to.
910
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JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 515 of 1970.
Appeal by special leave from the judgment and order
dated the 19th February, 1970 of the Allahabad High Court
(Lucknow) Bench) Lucknow in Second Appeal No. 362 of 1966.
G.L. Sanghi and R.P. Gupta for the Appellant.
G.C. Mathur and C.P. Lal for Respondent Nos. 2 & 3.
The Judgment of Court was delivered by
KOSHAL. J. This is an appeal by special leave against a
judgment of a learned Single Judge of the High Court of
Allahabad dated 19th February, 1970 reversing in a second
appeal the first appellate decree passed on 1st June, 1966
by the District Judge, Rae Bareli in confirmation of the
decree of the trial Court. The prayer made by the plaintiffs
in the suit, which was dismissed by the first two Courts,
was to the effect that a sale-deed executed on 14th
February, 1964 (Exhibit A-1) by defendant No. 2 in favour of
defendant No. 1 in respect of a portion of a block of houses
situated in Rae Bareli, be cancelled, and that possession of
that portion be delivered to the plaintiffs who should also
be awarded mesne profits. While accepting the second appeal,
the High Court decreed the suit except in regard to mesne
profits.
2. Most of the facts giving rise to this appeal are
undisputed and may be briefly stated with reference to the
following pedigree table:
Sheo Dularey Misra-Radhika Devi (Plaintiff No. 1)
Parmeshwar Din Mishra (Defendant No. 2)
Gajendra Narain Sunil
(Plaintiff No. 2) (Plaintiff No. 3)
In the years 1916 and 1918 Sheo Dulary Misra (S.D.
Mishra for short), who was a leading lawyer at Rae Bareli,
purchased a block of Houses in that town by means of two
sale-deeds (Exhibits 2 and 3), both executed by one Shambhu
Dayal. In the year 1931 S.D.Mishra filed a suit against his
father and brothers for a declaration
911
that he was the absolute owner of the Rae Bareli houses
above A mentioned as also of a 4 annas and 9 pies share in
proprietory Zamindari situated in Mohal Badri Prasad of
village Tera Baraula in Pargana and District Rae Bareli. On
the 29th August 1931 a decree based on a compromise (Exhibit
5) was passed in that suit to the effect that S.D. Mishra
was the exclusive owner of the Rae Bareli houses and also of
a half of the salid 4 annas and 9 pies share in the
Zamindari .
On the death of S.D. Misra in l951, his entire property
was mutated in the name of defendant No. 2, both in the
revenue records as well as in the registers maintained by
the Rae Bareli Municipal Committee. From then onwards till
the date of the disputed sale-deed (Exhibit A-I) defendant
No. 2 was in possession of the entire property left by his
father and also acted as its exclusive manager. He received
compensation for some of the Zamindari property, a part of
which was also sold by him on the 12th January 1959 to one
Imam Ali for a consideration of Rs, 800 (vide Exhibit A-19).
In the years 1960 and 1961 defendant No. 2 constructed a
one-storey building on a plot of land in Khurshid Bagh,
Lucknow, where he was employed as a clerk in the Department
of Health of the Government of Uttar Pradesh and where he
was residing with his wife and children.
The disputed sale-deed (Exhibit A-1) was executed by
defendant No. 2 on the 14th February 1964 in respect of the
western portion of the said block of houses for Rs. 6500 in
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favour of K.C. Kapoor, defendant No. 1 who is the sole
appellant before us. In that sale-deed defendant No. 2
described himself as "exclusive and complete owner" of the
Rae Bareli property and claimed that he was "in possession
and occupation thereof with powers of transfer of all
kinds.. ". The necessity for the sale was thus described by
him:
"I am constructing a house in Mohalla Khurshed
Bagh City Lucknow, the lower portion whereof has
already been constructed and for the construction of
the upper portion whereof funds are required."
3. This litigation started on the 17th September 1964
with the institution of a suit by the three plaintiffs. It
was claimed therein that on the death of S. D. Misra,
plaintiff No. 1 succeded to a half share in his property,
being his widow, while the other half
912
was inherited by defendant No.2 so, however, that his sons
(plaintiffs Nos. 2 and 3) had an interest therein by birth.
In other words, while half of the property left by S.D.
Mishra was claimed to belong exclusively to Radhika Devi,
Plaintiff No. 1, in respect of the other half the assertion
was that it belonged to a coparcenary consisting of
defendant No. 2 and his two sons. The relief of a possession
of the property sold by virtue of sale-deed Exhibit A-l was
prayed for in consequence of the cancellation of that
document which was sought to be set aside for the reason
that the transaction covered by it was not for any necessity
of the said family.
4. In the written statement the stand taken by
defendant No. 1 was that defendant No 2 was the sole owner
of the entire block of houses above mentioned and had full
power to alienate the same, but that even if it was proved
to be coparcenary property as alleged, the sale would still
be good as it was made for legal necessity. In this
connection the contents of paragraph 15 of the written
statement may be quoted here with advantage:-
"That defendant No. 2 sold the house in suit for
the purpose of building a more profitable and
advantageous house at Lucknow and with a view to
dispose of a construction which was old and in perilous
condition and which was of no persent utility. Even if
the house in suit is proved to be joint family property
the transfer is for legal necessity by the Karta and is
binding on the joint family and the plaintiffs."
Two other material pleas were put forward in paragraph
14 and 16 of the written statement and are extracted below:
"14. That defendant No. 2 represented to the answering
defendant No. 1 that defendant No. 2 was the sole
owner of house, a portion of which is the subject
matter of dispute, and in fact he has all along
been acting as sole owner of the properties left
by his father. The answering defendant No. I also
made diligent and reasonable enquiries about the
right, title and interest of defendant No. 2 and
his sole power to transfer it, and as such the
answering defendant is a transferee in good faith
for consideration and without notice."
16. That defendant No. 2 executed the sale-deed in
favour of the answering defendant with the active
consent and
913
approval of plaintiff No. I and plaintiff No. 1 is
estopped from asserting her right against it."
Statements of counsel for parties were recorded by the
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trial court on the 27th April, 1965 when it framed 8 issues,
of which issues nos. I to 3, S and 7 were:
"1. Whether plaintiffs and defendant No. 2 formed a
joint family ? If so, who was the Karta of the
family ?
2. Whether plaintiffs Nos. 2 and 3 have interest in
the house in suit by birth ?
3. Whether defendant No. 2 had a legal necessity to
sell the house ? If so, its effect ?
5. Whether defendant No. I is a transferee for value
in good faith and is entitled to protection of
Section 41 of the Transfer of Property Act ?
7. Whether the suit by plaintiff No. 1 is barred by
estoppel ?"
Statements of learned counsel for the parties were
again re corded on 28th May 1965 and 31st May, 1965. On
behalf of defendant No. 1 a part of his case was stated like
this: E
"Defendant is a purchaser for value in good faith
and without notice. In any view of the case the
disputed portion is not more than the share of
Parmeshwar Din and the . alienation is valid and can
not be impeached by the plain tiffs. Disputed portion
was sold with the active consent and approval of
plaintiff No. l and she is estopped from challenging
the transaction,"
5. In its jugment the trial court held that all the
three plaintiffs and defendant No. 2 formed a joint Hindu
family of which defendant No. 2 was the Karta and that
plaintiffs Nos. 2 and 3 acquired an interest by birth in the
property left by their grand-father.
In deciding issue No. 3 the trial court took note of
the following facts:
(a) The joint Hindu family consisting of the three
plaintiffs and defendant No. 2 received
Compensation for the Zamindari,
914
(b) The family had income from the Zamindari.
(c) The family derived rent from the said block of
houses.
(d) S.D. Misra was a successful lawyer, which circums-
tance made it probable that he had left behind
some cash in addition to other property.
(e) on 12th January 1959 defendant No. 2 received Rs.
800 as consideration for the sale covered by
Exhibit A-19.
(f) Sanction for plan of the building of the Lucknow
house (Exhibit A-21) was accorded by the Lucknow
Municipality on 28th June 1960 and the building
was completed in 1961.
(g) There is no evidence to show that defendant No. 2
had income of his own from which he could save
enough money to be spent on the said building
(h) Plalntiff No. 1, who was actively conducting the
case on behalf of the plaintiffs, and defendant
No. 2, had both stayed away from the witness-box.
Taking all these facts into consideration the trial
court concluded that the Lucknow house was the property of
the said joint Hindu family. It went on to point out that
the disputed sale was an act of good management in view of
the following circumstances:
(i) The portion of the block of houses sold through
exhibit A-I was in a dilapidated condition and on
14th July 1964, i.e., less than 5 months after the
sale, the municipal authorities isssued a notice
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to defendant No.l pointing out that the building
purchased by him was in a dangerous condition and
requiring him to demolish it within 3 days, so
that defendant No. 2 was under & an obligation to
pull down the building and either leave the site
underneath un-built (which would have meant a loss
of some income to the family) or to construct a
new building thereon.
(ii) Construction of a building in Lucknow would have
been more rewarding income-wise than erecting one
at Rae Bareli.
915
(iii)Defendant No. 2 was employed at Lucknow and it was
A in the interest of the family to put on a second
storey in the house there
The trial court concluded that the sale was, in the
circumtances above mentioned, for the benefit of the family
and, therefore, for legal necessity. 13
Issue No. 5 was decided by the trial court against
defendant No. I for the following reasons:
(a) Defendant No. I knew that the property sold to him
had descended from S.D. Misra who had left behind
a widow and a son, so that defendant No. I could
not be regarded as a purchaser without notice of
the fact that the plaintiffs had an interest in
the house.
(b) Defendant No. 1 did not consult any lawyer to make
sure that defendant No. 2 was the sole owner of
the property sold as asserted by the latter.
The trial court, therefore, held that defendant No. I
was not entitled to any protection under section 41 of the
Transfer of Property Act.
In relation to issue No. 7 the trial court remarked
that it was the duty of defendant No. I to give the details
of the mis-representation constituting estoppel in the
written statement, which was not done so that the evidence
on the point could not be looked into Issue No. 7 was thus
decided against defendant No. 1.
Legal necessity for the disputed sale having been found
by the trial court to be established, it dismissed the suit
with costs.
6. It is also necessary to recount at some length the
findings arrived at by the learned District Judge in appeal.
The conclusions reached by the trial court that the
plaintiffs and defendant No. 2 (; formed a joint Hindu
family and that the said block of houses belonged to that
family were not challenged before him and the main contest
in the course of the first appeal embraced points of legal
necessity and estoppel as also the applicability of section
41 of the Transfer of Property Act to the facts of the case.
Taking up the last point first, the learned District Judge
decided it against defendant No. I for the following two
reasons;
916
(a) Defendant No. I had had notice that the building
in dispute originally belonged to S.D. Misra and
that the latter died leaving behind a widow, a son
and a grand son. . Thus defendant No. 2 was posted
with the know ledge that at the time of the sale
in his favour persons other than defendant No. 2
had interest in the property in dispute.
(b) Plaintiffs Nos. 2 and 3 were minors on the date of
the sale and even at the time of the institution
of the suit and could not, by reason of their
minority, be deemed to have consented to the
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ostensible ownership of the property vesting in
their father.
On the question of sextuple, the learned District Judge
discussed in detail the evidence produced before the trial
court and concluded that on 22nd January, 1964, when a sum
of Rs. 1000 was paid by defendant No. I to defendant No. 2
as earnest money through receipts Exhibit A.-26, plaintiff
No. I gave her consent to her transaction of sale in the
presence of defendant No. I as well as that of Radha Krishan
D.W. S and Gopal Nath Chopra, D.W. 6, both of whom were
attesting witnesses to that receipt. He went on to hold that
the trial court was in error when it refused to look into
the evidence on the point with the observation that the
particulars of the consent of plaintiff No. I were not given
in the pleadings. The learned District Judge was firmly of
the opinion that the statement in para 16 of the written
statement to the effect that the sale had taken place with
the active consent and approval of plaintiff No. I was
enough to raise the question of estoppel and that it was not
necessary for defendant No. I to further mention in his
peladings the particulars of such consent or the details of
the evidence by which the same was to be proved. The learned
District Judge concluded that by reason of the consent given
by plaintiff No. I to the sale, she was estopped from
attacking disputed sale- deed.
On the question of legal necessity, the District Judge
took note of all those facts which the trial court had taken
into consideration, as also of the following additional
circumstances:
(a) Defendant No. 2 was the only adult male member of
the family at the time of the sale. He had throughout
917
been managing the property of his father and was
the Karta of the joint Hindu family aforesaid.
(b) The sale had come about with the consent of
plaintiff No. 1 who was the only other adult
member of the family. B
In the result, the learned District Judge upheld the
finding of the trial court that the Lucknow house belonged
to the joint Hindu family. He further held, for more or less
the same reasons as had weighed with the trial court in that
behalf, that the sale was an act of prudence on the part of
defendant No. 2 who had wisely sold a dilapidated building,
and instead of pulling it down and incurring expense over
its re-construction, had raised money for the purpose of
building the first floor of the new house at Lucknow which
was a big city as compared to the "small and sleepy town" of
Rae Bareli.
On the above findings, the first appeal was dismissed
with costs.
7. Before the High Court it was conceded on behalf of
defendant No. I that the widow of S.D. Misra had inherited
half of his property by reason of the provisions of section
3 of the Hindu Women’s Right to Property Act, 1937 (for
short the 1937 Act), that she had become the full owner of
that half share on the commencement of the Hindu Succession
Act in 1956 (hereinafter referred to as the 1956 Act) and
that she was, therefore, not bound by any sale of her share
effected by her son unless she was estopped from challenging
it. The learned Single Judge, therefore, at once took up the
question of estoppel, reliance in support of which was
placed on behalf of defendant No. l on a portion of his own
testimony as W-3 which when freely translated, would read
thus:
"Parmeshwar Din told his mother that a portion of
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the Rae Bareli house was in ruins and yielded low
rent, that the family (ham log) were residing at
Lucknow and that he wanted to sell a portion of the Rae
Bareli house and make the Lucknow house two-storeyed
which would result in a better rent yield and would
also provide comfort for residence (of the family).
Then Parmeshwar Din’s mother said: ’It is your thing;
do as you wish."
918
The learned Single Judge was of the opinion that this
statement could not estop plaintiff No. I from challenging
the sale in so far as her share in the disputed house was
concerned. His reasons were:
"The above-cited statement of respondent No. 1
(defendant No. I) does not indicate if the portion
which was being actually sold was then specified to
appellant No. I (plaintiff No. 1) by respondent No. 2
(defendant No. 2). So if in these circumstances she did
not resist the proposal saying that Parmeshwar Din was
at liberty to do as he chose since it was his property,
it can by no means be construed to mean that she
thereby readily agreed even for the sale of her share
by her son."
The question of legal necessity was also determined by
the learned Single Judge against defendant No. 1 with the
following findings:
(a) There was no pleading by defendant No. 1 in his
written statement to the effect that the house at
Lucknow was the property of the said joint Hindu
family. Besides, in his deposition as DW-3,
defendant No. 1 had himself stated that to his
knowledge Parmeshwar Din was the sole owner of
that house.
(b) Merely because S.D. Misra possessed property and
cash at the time of his death and that property
continued to yield some income thereafter did not
furnish reasons enough for the Court to presume
that the Lucknow house belonged to the joint Hindu
family. A presumption to that effect could only be
raised if it was shown that there was sufficient
nucleus for the acquisition of that house.
In view of the above findings the learned Single Judge
cancelled sale deed Exhibit A-l and, accepting the appeal,
passed a decree for possession of the disputed property in
favour of the plaintiffs.
8. After hearing learned counsel for the parties at
great length we have no hesitation in recording our
disagreement with the High Court on the findings reached by
it in relation to both the
919
points canvassed before it, namely, those of estoppel and
legal A necessity, and are fully satisfied that it stepped
outside the limits of its jurisdiction when it interfered
with the conclusions of the fact arrived at by the learned
District Judge on the basis of fully acceptable evidence and
a correct appreciation thereof.
9. Before we proceed to detail our reasons for
differing with the view expressed by the High Court we would
like to advert to that aspect of the case which concerns the
rights of plaintiff No. I in the property inherited by her
husband. The trial Court acted on the assumption that the
entire property left by S.D. Misra on his death vested in
the joint Hindu family consisting of his widow, son and
grand-sons. No challenge to this assumption was made before
the learned District Judge and the case proceeded on the
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basis that it was correct. B. fore the High Court, however,
the assumption was assailed and, as already stated, it was
conceded on behalf of defendant No. I that plaintiff No. I
succeeded to a life estate in a half share in the property
of her husband in pursuance of the provisions of section 3
of the 1937 Act and that such an estate ripened into
absolute ownership on the enforcement of the 1956 Act. This
concession, in our opinion, could be said to have been
correctly made only on the assumptions (I) that S.D. Misra
died intestate or that if he left a will, he devised a half
share in the disputed house to plaintiff No. I and (2) that
the share to which plaintiff No. I succeeded was not
relinquished in favour of defendant No. 2 or otherwise
transferred to him by her right up-to the time when the
disputed sale took place.
10. We shall now take up the question of estoppel.
Plaintiffs Nos. 2 and 3 being minors that question does not
arise in their case and it is only in relation to the half
share of plaintiff No. I in the disputed property that it
calls for a decision. In this connection the following facts
which are undisputed may be taken note of:
(a) on S.D.Misra s death his entire property was
mutated in the name of his son (defendant No. 2)
to the exclusion of the former’s widow (Plaintiff
No. 1).
(b) Right up to the date of the disputed sale that
property was managed exclusively by defendant No.
2.
(c) No objection to the exclusion of her name from the
records of the revenue department or of the
municipal
920
committee or from the management was ever
preferred by plaintiff No. 1 who fully acquiesced
in such exclusion all through.
(d) Defendant No. 2 alone received compensation for
the Zamindari and sold a portion thereof as sole
owner (vide exhibit A-19) again without any
objection on the part of plaintiff No. 1.
(e) When negotiations for the disputed sale were
initiated, defendant No. I enquired from defendant
No. 2 as to how the latter had acquired full
ownership of the . property in dispute. The reply
of defendant No. 2 as contained in his letter from
Lucknow dated 14th January 1964 (exhibit A-25)
was:
"Regarding our talks about the sale of my
house at Station Road, Rae Bareli and regarding
your enquiry about the title to the said house, I
have to inform you that I am the absolute owner of
the portion of house proposed to be sold."
"I own all responsibility and give you word
of honour that there is absolutely no dispute
about my title to the portion proposed to be sold
and you should have no hesitation on that score.
"Further I may add that I realize the rent of
the shops which you can enquire from the tenants."
Presumably defendant No. 1 was quite satisfied
with this reply and asked defendant No. 2 to furnish
copies of the municipal records which were shown to
defendant No. 1 on the 22nd January 1964 at the Lucknow
residence of defendant No. 2.
(f) According to the testimony of defendant No. 1 as DW-3
and of the two witnesses (Radha Krishan-DW-5 and Gopal
Nath Chopra-DW-6) who attested receipt exhibit A-26, it
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was at that stage that defendant No I told his mother
about the proposed sale and she consented thereto. In
the words of defendant No. 2
921
she declared: "It is your thing; do as you wish."
The A evidence of these three witnesses was not
challenged during the course of their cross-
examination.
These facts would conclusively show that by declaring
in the presence of defendant No. 1 that the property
belonged to the defendant No. 2 and that he was at liberty
to deal with it as he wished, plaintiff No. I represented to
defendant No. I that her son was the sole owner of the
property and that she had nothing to do with it. Her
declaration is, therefore, a clincher on the point of
estoppel and we find it impossible to agree with the learned
Single Judge when he says that the declaration did not mean
that defendant No. 2 had the permission of plaintiff No. I
to deal with the latter’s share of the property. In our
opinion the declaration does not suffer from any such
ambiguity as the learned Single Judge has read into. In
giving the details of the proposed sale the son had not told
the mother that he was selling only his own half share in
that part of the block of houses situated in Rae Bareli
which was proposed to l? be sold. He said in clear terms
that a portion of the Rae Bareli house was to be sold and
his mother declared that he was the sole arbiter in the
matter of the disposal of the property. There was no
proposal to sell only defendant No. 2’s undivided half share
nor did any question arise of either defendant No. I
purchasing it or plaintiff No. I being consulted about it.
In the absence of any qualifying words limiting the proposed
sale to such a share, the lady must be taken to have
understood the statement made to her by her son as carrying
its plain meaning, i.e., that the sale was to be of the
entire portion chosen for the purpose and her consent must
be construed accordingly.
Learned counsel for the plaintiff vehemently argued
that even if the declaration made by plaintiff No. 1 be
interpreted as we have done, it would create no estoppel
against her inasmuch as defendant No. 1 had not acted on it
but had purchased the property on the strength of the
representations made to him by defendant No. 1. G Now it is
true that defendant No. I had made enquiries regarding the
title of defendant No. 2 to the property in dispute and the
latter had made an unequivocal representation that he alone
was the owner thereof, but then it was only after the lady
had been consulted and had told her son to go ahead with
what he thought proper as he was the owner of the property
that receipt exhibit A-26 was executed. Till then defendant
No. I was not fully satisfied about
922
the title of defendant No. 2 and had not only raised the
question with defendant No. I at Lucknow but even after the
assurance given by the latter in communication exhibit A-25
insisted on the municipal records being produced for his
inspection. The inquiry into the title was, therefore, very
much in progress when defendant No. 2 consulted his mother
in the presence of defendant No. 1. This was presumably done
to ally the lurking suspicion in the mind of defendant No. 2
as to the title to the entire property vesting in defendant
No. 2
It was contended on behalf of the plaintiffs that the
representation made by the lady could not have been taken at
its face value by any prudent purchaser in view of the fact
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that one-half of the property left by S.D. Misra had
admittedly devolved on plaintiff No. 1. This contention
suffers from two important infirmities. Under section 3 of
the 1937 Act, plaintiff No. I would have succeeded to a half
share only if S.D. Misra had died intestate. So the question
would be whether or not S.D. Misra left a will. The
concession made before the High Court on the point of
inheritence of a half share by plaintiff No, I was obviously
based not on any facts within the knowledge of defendant No.
1 but on the circumstance that nobody had talked of any will
by S.D. Misra. Whether or not such a will was made was a
fact specially within the knowledge of plaintiff No. I and,
as stated earlier, that she remained absent from the witness
box so that the Court is left in the dark as to what was the
actual state of affairs. The onus of proof of the allegation
that she was the owner of a half share in the property at
the time of the sale was on her and she was duty bound to
depose to facts which would make section 3 aforesaid
applicable to her case. Her failure to depose to the
existence thereof must result in a finding that she has
failed to prove the issue.
Again, even if it be assumed that plaintiff No. I
succeeded to a half share in the property of S.D. Misra,
there was no impediment in the way of her relinquishing that
share in favour of her son either immediately after her
husband’s death or at any other point of time prior to the
disputed sale. This aspect of the matter cannot be lost
sight of in view of the fact that on S. D. Misra’s death all
his property was mutated in favour of his son to the
exclusion of plaintiff No. 1 and was all along being dealt
with by him as its sole and absolute owner without any
objection whatsover having been raised by her at any point
of time to such exclusion or dealing.
923
In the above situation defendant No. I was fully
justified in A accepting her word on the point of ownership,
the said section 3 not withstanding.
The above discussion of the evidence has been entered
into by us merely to show that the finding given by the
learned District Judge on the point of estoppel was
eminently reasonable and that the short ground on which the
High Court turned the tables on defendant No. I was
untenable. That finding of the District Judge being a
finding of fact and being based on good evidence, it was not
open to the High Court to interfere with it in a second
appeal.
Before parting with the question of estoppel, we may
briefly notice another contention put forward on behalf of
the plaintiffs whose learned counsel urged that no plea of
estoppel could be countenanced for the reason that no proper
foundation was laid for it in the pleadings. A combined
reading of paragraphs 14 and 16 of the written statement,
hower, furnishes a complete answer to the contention. The
representation said to have been made by plaintiff No. I is
set out in paragraph 14 while the plea that she was estopped
from contesting the sale is taken in paragraph 16. It is
true that the plea last mentioned is linked with "the active
consent and approval of plaintiff No. I’’ and not in so many
words with the said representation. It can also not be
disputed that defendant No. I did not specifically state
that he purchased the disputed property in the belief that
the representation was true and that he would not have
entered into the transaction but for that belief. Thus
undoubtedly the written statement is inartistically drafted
and leaves much to be desired, but then pleadings are not to
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be construed in such a hypertechnical manner and what is to
be seen is whether the allegations made in paragraphs 14 and
16 gave sufficient notice to the plaintiffs of what case
they had to meet. In this connection we may refer to the
significant fact that no objection to the lack of
particulars was taken at the stage when issues were framed
or later when statements of parties’ counsel were recorded
on a subsequent occasion or during the course of arguments
addressed to the trial Court, the District Judge and the
High Court. even though the issue of estoppel was hotly
contested before all three of them. All these circumstances
unmistakably indicate that the case put forward by defendant
No. I was throughout understood by the plaintiffs to be that
it was the belief induced in him by the representation of
plaintiff No. l which made him accept the title of defendant
No. 2 as bein exclusive. In this view of the matter it is
too late in the day for the plaintiffs
924
to raise the contention under consideration and we have no
hesitation in rejecting it as untenable.
11. We may now attend to the controversy about the
legal necessity for the disputed sale. The contest on the
point is restricted to that half share of the property sold
which belonged to the coparcenary consisting of the son and
grand-sons of S. D. Misra. In this connection the High Court
observed that not only defendant No. I did not plead in his
written statement that the Lucknow house was the property of
the coparcenary but that he also stated in the witness box
as DW-3 that to his knowledge defendant No. I was the sole
owner of that house. We are clearly of the opinion that the
High Court erred in taking either of these circumstances as
a minus point for defendant No. 1. In so far as the written
statement is concerned it contains a definite plea in para
15 to the effect that if the disputed property is proved to
joint be Hindu family property, its transfer was made by the
Karta for legal necessity so that it was binding on the
family. Was it then incumbent on defendant No. I to further
plead how he propsed to prove the legal necessity? This
question was pointedly posed to learned counsel for the
plaintiffs during the course of arguments and although his
answer was in the affirmative, he could quote neither law
nor precedent in support of the same.
It may also be pointed out that no objection by the
plaintiffs was ever taken at any stage of the trial to any
lack of particulars of the legal necessity set up by
defendant No. I in paragraph 15 of the written statement. On
the other hand they were fully posted about what case they
have to meet on the point by reason of the contents of that
paragraph itself in which it was specifically asserted that
the disputed house was sold by defendant No. 2 "for the
purpose of building a more profitable and advantageous house
at Lucknow and with a view to dispose of a construction
which was old and in perilous condition and which was of no
present utility." In view of this averment it was fully open
to defendant No. 1 to prove by evidence that putting up a
second storey in the Lucknow house constituted legal
necessity and, in the process, to establish that the Lucknow
house was owned by the said coparcenary. Again, no objection
was taken at the evidence stage to the right of defendant
No. I to show that the Lucknow house was so owned and
thereby to prove the existence of legal necessity for the
sale. No fault can thus be found with the case of defendant
No. l on the ground of his failure to take a specific plea
in the written statement abount the ownership of that house
vesting in the coparcenary.
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925
Nor was the High Court right in putting the
construction that A it did on the testimony of defendant No.
I as DW-3 to the effect that to his knowledge defendant No.
2 was the sole owner of the Lucknow house. Obviously all
that he meant was that according to such knowledge as he
had, the Lucknow house vested in the exclusive ownership of
defendant No. 2; and that knowledge, in the circumstances of
the case, could be no more than a belief arising from what
he was told by defendant No. 2 who had been at pains to
stake his claim to the exclusive ownership of all the
property under his control, including the property left by
his father. In this connection we cannot lose sight of the
fact that defendant No. 1 was a total stranger to the family
of the plaintiffs and in the very nature of things could not
have had any personal knowledge referable to the actual
manner in and the precise source from which either the
Lucknow house or, for that matter, the Rae Bareli property
was acquired, such manner and source being within the
special knowledge of plaintiff No. I and defendant No. 2
only. That part of the deposition of defendant No. I which
the High Court has pressed into service against him, cannot,
therefore, form the basis of solution to the question of the
ownership of the property.
12. In the present case both plaintiff No. l and
defendant No. 2 have stayed away from the witness-box and
have thus deprived the Court of the only real evidence which
could throw light on the source of the consideration paid
for the purchase of the Luck- now house. There may be some
force in the argument that no duty was cast upon defendant
No. 2 to appear as a witness in as much as he was not a
contesting party, but than such an excuse is not open to
plaintiff No. 1 who was actively contesting the case in the
trial Court on behalf of herself and her two grand-children.
It is in the light of this significant circumstance that the
Court must decide whether or not defendant No. l has been
able to discharge the burden of proving that the Lucknow
house was purchased with joint Hindu family funds. This
important aspect of the matter was completely lost on the
High Court although it was an unassailable ground when it
formulated the proposition that before a presumption could
be raised that a property acquired by a member of a joint
Hindu family could be regarded as the property of the
family, it must be shown that the family owned other
property which could be regarded as a nucleus providing a
sufficient source for the later acquisition. Furthermore, in
assessing the evidence on that point, the High Court
referred only to two facts, namely, that S.D. Misra left
immovable property and cash at the time of his death and
that
926
property continued to yield some income thereafter, but paid
no heed to at least three other important circumstances
which had been listed by the trial court in support of the
finding that a sufficient nucleus for the purchase had been
proved. Those circumstances are:
(a) The family received compensation for the
Zamindari.
(b) on 12th January 1959, defendant No. 2 received Rs.
800/- as consideration for the sale covered by
exhibit A-l9.
(c) No evidence had been produced to show that
defendant No. 2 had income of his own from which
he could have saved enough money to be spent on
the Lucknow building.
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We may add that there is definite evidence in the form
of exhibit A-99 to the effect that in 1965 the family of
defendant No. 2 consisted of nine souls and that he was then
holding a subordinate position in the office of the Director
of Health Service, U P., at Lucknow with a salary of no more
than Rs. 240 per mensem. It goes without saying that his
salary was to meagre to have sufficed for the maintenance of
the family and that any savings therefrom were out of
question.
Although each of the facts just above taken note of,
when considered in isolation, may not enable the Court to
raise a presumption of the sufficiency of the requisite
nucleus, collectively they constitute a formidable array and
practically a clincher in favour of such a presumption,
especially in the absence of any attempt on the part of the
plaintiffs to produce evidence showing that defendant No. 2
had any source of income of his own other then his salary.
And then the failure (referred to above) of plaintiff No. I
to step into the witness-box is enough for the Court to
raise another presumption, namely, that her deposition would
not have supported the plaintiffs’ case. The onus of proof
of the issue on the defendant was, therefore, very light and
stood amply discharged by the facts noted in that behalf by
the trial court, with whose finding on the point the first
appellate court concurred. No case at all was thus made out
for interference by the High Court with that finding.
13. The High Court did not express any dissent from the
conclusion concurrently reached by the trial court and the
learned
927
District Judge that the disputed sale constituted an act of
prudence A on the part of defendant No. 2 and was on that
account for the benefit of the family. We find ourselves in
full agreement with that conclusion which too is based on
fully reliable evidence and follows logically therefrom, as
also with the reasons given by the two courts in support
thereof. However, we may point to another significant factor
which lends strength to that conclusion, the same being that
defendant No. 2 was not only the Karta of the family and its
sole adult male member at the time of the sale but was also
the father of the only other two coparceners for whom he
must naturally be having great affection and whose interests
he would surely protect and promote, rather than jeopardise,
there being no allegation by the plaintiffs that he was a
profligate or had other reason to act to their detriment.
14. The Lucknow house being the property of the joint
Hindu family consisting of defendant No. 2 and his sons and
the disputed sale being an act of good management, the
latter must be held to be justified by legal necessity,
which expression, as pointed out in Nagindas Maneklal and
others v. Mahomed Yusuf Mitchella,(1) is not to be strictly
construed. In that case the facts were very similar to those
obtaining here and may be briefly recapitulated. The joint
Hindu family had serveral houses, one of which was in such a
dilapidated condition that the Municipality required it to
be pulled down. The adult coparceners contracted to sell it
to a third person. The joint family was in fairly good
circumstances and it was not necessary to sell the house
which, however, could not be used by the family for
residence and would not have fetched any rent. In a suit for
specific performance of the contract to sell instituted by
the purchaser, the minor coparceners contended that the
contract did not affect their interest in the absence of
"necessity" for the sale. In repelling the contention, Shah,
J., who delivered the leading judgment of the Division
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Bench, referred to the manner in which the expression
kutumbarthe had been construed by Vijnanesvara in the
Mitakshara and observed:
"The expression used must be interpreted with due
regard to the conditions of modern life. I am not at
all sure that Vijnanesvara intended to curtail the
scope of the word kutumbarthe while explaining it. I do
not see any reason why a restricted interpretation
should be placed upon the word ’necessity’ so as to
exclude a case like the present in
928
which defendants Nos. I and 2, on all the facts proved,
properly and wisely decided to get rid of the property
which was in such a state as to be a burden to the
family. I think that the facts of the case fairly
satisfy the test."
Fawcett., J., who agreed with these observations added
a separate short note of his own and relied upon the
following passage in Hunoomanpersaud Pandey v. Mussumat
Babooee Munraj Koonweree,(1)
"But where, in the particular instance, the charge
is one that a prudent owner would make, in order to
benefit the estate, the bona fide lender is no.
affected by the precedent mismanagement of the estate.
The actual pressure on the estate, the danger to be
averted, or the benefit to be conferred upon it, in the
particular instance, is the thing to be rearded."
(Emphasis supplied)
Although these remarks were made in relation to a
charge created on the estate of an infant heir by its
manager under the Hindu law, it is well settled that the
principles governing an alienation of property property of a
joint Hindu family by its Karta are identical.
15. The perimeters of the expression kutumbarthe, as
interpreted in Nagindas’s case (supra) which meets with our
unqualified, approval, fully embrace the facts of the
present case in so far as legal necessity for the disputed
sale is concerned.
16. In the result, the appeal succeeds and is accepted.
The judgment impuged before us is set aside and that of the
District Judge restored. There will be no order as to costs
of the pro ccedings in this Court.
S.R. Appeal allowed.
929