Rameshwar and Others vs Roopkishore and Others

Jarat Kumar Jain, J.—THIS second appeal under Section 100 of the Code of Civil Procedure is filed against the judgment and decree passed by 1st ADJ, Ujjain in Civil Appeal No. 22-A/ 2013 on 22.10.2013 whereby the judgment and decree passed by Civil Judge, Class-I, Badnagar in Civil Suit No. 31A/ 2006 on 28.07.2011 has been affirmed.

Brief facts of this case are that the appellants and Respondent No. 1 are the real brothers and admittedly their father Mohanlal got the land of Survey No. 682 area 2.853 hectare (New Survey No. 1162 area 2.85 hectare) and Survey No. 1355 area 0.42 hectare (New Survey No. 673 area 0.04 hectare), total area 2.895 [in brief "suit land"] in a partition between him and his brothers. Thus, the suit land is the coparcenary property. The appellants/ plaintiffs filed the suit that their father Mohanlal died in the year 1981. Since the year 1981 till the year 2003-04, the Respondent No. 1 gave them share in the agriculture income from the suit land but thereafter Respondent No. 1 stopped to give the share in the income from the suit land. Then they got the knowledge about the registered sale deed which was executed by their father Mohanlal in favour of their brother Respondent No. 1 - Roopkishore. The suit land is a coparcenary property. Thus, their father Mohanlal has no authority to sell the suit land to Respondent No. 1. They never gave consent for sale. Each appellant has 1/3rd share in the suit land. Thus, the sale deed is not binding on the appellants and is void.

The Respondent No. 1 resisted the suit on the ground that the father (Mohanlal) had sold the suit land as Karta of HUF with the consent of appellants and they have signed the sale deed . Mohanlal has sold the suit land for legal necessity i.e. to repay the loan of the Bank. The Respondent No. 1 has purchased the suit land after paying full consideration of Rs.10,000-00. Thus, he is the exclusive owner of the suit land.

The Trial Court framed 7 Issues. Both the parties adduced their evidence. The Trial Court has dismissed the suit. The plaintiffs/appellants have filed the appeal. Learned first appellate Court has dismissed the appeal and affirmed the judgment and decree passed by the Trial Court. Being aggrieved with this judgment, the appellants have filed this second appeal.

Learned Senior Counsel for the appellants submits that the Courts below have not considered that the suit land is a coparcenary property. Thus, the appellants/plaintiffs have birth right in the suit land. Therefore, their father Mohanlal was not competent to sell the suit land. For this purpose he rely upon the judgment of Hon''ble apex Court in the case of Rohit Chauhan Vs. Surinder Singh and Others, .

Learned Senior Counsel further submits that the appellants had never gave consent for execution of sale deed and denied their signatures on the sale deed . The Respondent No. 1 failed to prove the consent for the execution of the sale deed , even the decree passed by the Courts below is not justified. Learned Senior Counsel for the appellants submits that the appeal be admitted on the following substantial questions of law :

"(i) Whether, the decree passed by the first appellate Court could be sustained which has been passed ignoring the well settled principle of law that the coparcener has a birth right in the coparcenary property?

(ii) Whether, the first appellate Court has wrongly held that the appellants had consented to the execution of the sale deed ignoring the material evidence on record ?"

After hearing learned Senior Counsel for the appellants, I have perused the record.

So far as the first substantial question of law is concerned, learned first appellate Court in para 15 of the impugned judgment held that the suit land in the hand of Mohanlal was a coparcenary property, therefore, his sons i.e. appellants and Respondent No. 1 being a coparcenary have birth right. But Mohanlal, being a Karta of joint Hindu family, is competent to alienate the suit land for legal necessity. Thus, it is not correct that the first appellate Court ignored the well settled principle of law that the coparcener has a birth right in the coparcenary property.

So far as the second substantial question of law is concerned, learned Courts below gave a finding that father Mohanlal has sold the suit land to the Respondent No. 1 with the consent of appellants and appellants have signed the registered sale deed as a consenter. This finding of fact is based on proper appreciation of evidence. Even otherwise also Mohanlal being a Karta of HUF was competent to sell the coparcenary property for legal necessity without the consent of the other coparcener. Mohanlal has sold the suit land to repay the Bank loan i.e. for legal necessity. Therefore, the sale deed is binding on the appellants.

In view of the above, I am of the considered view that the Courts below have properly appreciated the evidence on record and reached the correct conclusion that the appellants have failed to prove their case and this finding of fact cannot be challenged in this second appeal. The questions of fact raised by the appellants do not call for any interference. No substantial question of law is involved in this appeal. Consequently, appeal fails and is hereby dismissed in limine. No costs.