Vijayavva vs Maritammappa

H.G. Ramesh, J.—This second appeal is by the plaintiffs. I have heard the learned counsel appearing for the appellants and perused the judgments of the two Courts below.

The first Appellate court has modified the judgment of the Trial Court inter alia by holding that the registered sale deed dated 18.05.2001- Ex. D1 was executed by defendant No. 1 (father) in favour of defendant No. 2 for legal necessity.

The sole contention urged by the appellants'' counsel is that the aforesaid finding of the first Appellate Court that there was legal necessity to sell the property namely, 2 acres of land referred to in the sale deed-Ex. D1 is erroneous.

As notice above, the sale deed Ex. D1 was executed by defendant No. 1--father in favour of defendant No. 2. Defendant No. 1 and plaintiff No. 1 are father and mother. Plaintiff Nos. 2 to 5 are their children. Defendant No. 2 is the purchaser of the property referred to in the sale deed--Ex. D1.

It is relevant to refer to the following observations made by the first Appellate Court on the aspect of legal necessity pleaded by the purchaser defendant No. 2:

"15. In the pleadings, the defendant No. 2 has stated that because of family legal necessity the defendant No. 1 sold 2 acres of land in his favour and that sale deed has been attested by the plaintiff No. 1 and he has not disclosed what was the family legal necessity. But the defendant No. 1 who sold the land has pleaded that he incurred heavy expenses for medical treatment of his parents who were suffering from T.B. and Cancer and to meet out those expenses he sold the land.

D.W. 1 has spoken to the fact of diseases of his parents and medical expenses spent by him for their treatment. In the cross-examination he has stated that totally Rs. 80,000/-has been spent for medical treatment of his parents and therefore, in order to clear off that debt he sold the land in favour of the defendant No. 2.

P.W. 1 who is the wife of defendant No. 1 and who attested the sale deed at Ex. D1 in her cross-examination at page 5 and in para 2 has specifically admitted that her father-in-law was suffering from T.B. prior to his death and her mother-in-law was suffering from cancer prior to her death. She has also admitted that herself and defendant No. 1 have incurred heavy expenses for medical treatment of her in-laws. She has admitted that money was borrowed from society. But no document of Society has been produced. In the cross-examination at page 4 the P.W. 1 has admitted that there may be money necessity to her family. In the cross-examination at page 2 P.W. 1 has admitted that her father-in-law was sick during his last days and treatment was given to her father-in-law by the doctor by name Habib at Hubli and lot of money was spent for medical treatment. She has vehemently stated that she spent money for last rites of her father-in-law and she alone spent the money for medical expenses. There is no material on record to show that the plaintiff No. 1 was having independent income apart from the suit lands. These admissions show that the parents of the defendant No. 1 were suffering from serious diseases and lot of money was spent for their medical treatment. These admissions of P.W. 1 support the stand taken by the defendant No. 1 and also it supports the case of the defendant No. 2 that there was family legal necessity for the sale of 2 acres of land in his favour.

If really there was no family legal necessity, then the plaintiff No. 1 now who is denying such necessity ought not have put her LTM on the registered sale deed at Ex. D1 that too before the sub-registrar. Till today she is denying her LTM on the sale deed. But the evidence of D.W. 3 and 4 clearly show that plaintiff No. 1 put her signature on the sale deed which presupposes that only because of family legal necessity, the defendant No. 1 and plaintiff No. 1 sold 2 acres of land in favour of the defendant No. 2 and the defendant No. 1 only executed the sale deed because his name was alone appearing in the record of rights.

The trial court while dealing with these issues has stated that except the oral evidence of defendant No. 1 there is no documentary evidence to prove the family legal necessity and therefore on that ground only the trial court come to the conclusion that the defendant No. 2 has failed to establish that the land was sold for family legal necessity. The trial court has not bestowed its attention to the above referred oral evidence available on record while deciding these material issues, which are affecting the rights of the defendant No. 2. The trial court being the fact finding court ought to have noticed the vital admissions given by the P.W. 1 and also D.W. 1 in respect of family legal necessity, which has not been done. In my opinion the above-referred oral evidence of the parties is sufficient to hold that there was family legal necessity for the defendant No. 1 to sell 2 acres of land in favour of the defendant No. 2. To prove the family legal necessity always there is no necessity to adduce the documentary evidence. In the absence of documentary evidence also such fact can be proved by leading oral evidence and that has been done in this case. Accordingly I hold that the finding of the trial court in this regard is erroneous and not based on materials on record, which requires to be set aside........................................................."

(underlining supplied)

I find no legal infirmity in the aforesaid finding recorded by the first Appellate Court, as it is based on a proper appreciation of the evidence on record. In my opinion, no substantial question of law arises for determination in this second appeal. No ground to admit the appeal. The appeal is accordingly dismissed.

Appeal dismissed.