Decision Cited:

In Charan Singh vs. Gehl Singh, 1974 PLR 125 the High Court of Punjab and Haryana has held that, It was also sought to be argued that the Punjab Legislature enacted the Punjab Pre-emption (Repeal) Act, 1973 (Punjab Act No. 11 of 1973), on 6th April 1973., in which it was provided (sic) that on and from the date of the (sic) of the Punjab Preemption (Repeal) Act 1973, no Court shall pass a decree in any suit far Pre-emption. According to the learned counsel, the Amending Act was also passed (sic) the Punjab Pre-emption (Repeal) Act, 1973 where in a specific provision was made preventing a Court to pass a decree in any suit far pro emotion thereby showing its clear intention to give retrospective (sic) the Pre-emption Act and making the same applicable to the pending or coding In case the (sic) had also intended to give the (sic) effect, then a similar provision as enacted in the Punjab Pre-emption (Repeal) Act, 1973, would have been made in the Amending Act This argument again is without any merit. In the presence of section 7 as it stands after the amendment made by the Amending Act, it was not at all (sic) to make a similar provision as was made in the Punjab Preemption (Repeal peal) Act as that would have, on the face of ii, been a surplus age. Moreover, from the Statement, of Objects and Reasons it is crystal clear that the legislature intended to achieve the same object by amending section 7 as was intended to be achieved by enacting the Punjab Preemption (Repeal) Act. It will be doing injustice to the Legislature if the question of retrospective or prospective nature of a provision is decided merely on the basis that different language was employed in the two Amending Acts passed on the same day, especially when the language in the Amending Act leaves no doubt about its retrospective nature. Thus viewed from any angle, the only possible conclusion that can be arrived at is that the Amending Act is retrospective in effect and no decree can be passed by the Court in favour of the reversioners after its enforcement.

Hindu Law by Mulla “22^nd Edition”

Article 254

 

Alienation by Father – A Hindu father as such has special power 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-­grand sons therein, for the payment of his own debt, provided the debt was an antecedent debt, and was not incurred for immoral or illegal purposes (Article 294).

 

ARTICLE 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 debts which are payable out of the family property;

(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;

 

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 fulfill tax obligations incurred by a family business, such alienation can be classified as constituting legal necessity.

Facts of the case:

Pritam Singh (“defendant No.1”) as a “Karta” of his family owned land admeasuring 164 Kanals 1 Marla (“suit land”) which is the ancestral property of his family. On 25/04/1960 said defendant No.1 sold said suit land to  Tara Singh and Ajit Singh (“defendant No. 2 & 3”) for consideration of Rs.19,500/- and handed them possession of said suit land. Thereafter, Kehar Singh (“Appellant”) s/o Pritam Singh filed civil suit against defendant No. 2 & 3 in the Trial Court and contentions were made that, (i) he had share in the said suit land as coparceners (ii) his father had no right to sell suit land without obtaining prior consent from him (iii) that there was no legal necessity of the family which could permit defendant no.1 to sell suit land and the rights to the parties to the suit are governed by the provision of “Punjab Custom Act, 1920”. It was prayed by appellant that sell deed executed between defendant no. 1 and defendant no.2&3 be declared as not binding on him and said sale be termed as void. Whereas, the contentions made by the appellant were disagreed by the defendant 2 & 3. The Trial Court after hearing both the parties to the suit gave its decree in favour of the appellant.

 

Thereafter, appeal was filed by the defendant 2 & 3 in appellant court against decree of the Trail Court. On hearing parties to appeal, the decree passed by Trail Court was modified and partly allowed by the appellant court. The defendant No. 2 & 3 filed second appeal before High Court against the order passed by the appellant court. During the pendency of second appeal, “Punjab Custom (Power Contest) Amendment Act, 1973” came into force on 23/01/1973. Vide High Court dated 22/04/1974 second appeal allowed in view of law laid down by High Court of Punjab and Haryana in Charan Singh vs. Gehl Shing, 1974 PLR 25, wherein it was held that the Amendment Act of 1973 was retrospective in nature and therefore, in the light of the amendment, the appellant had no right to challenge the alienation made by his father under the custom prevailing at the relevant time.

 

The appellant felt aggrieved as appeal was allowed by High Court and appeal was filed in Supreme Court. However, said remanded to High Court for deciding the second appeal afresh in the light of the principles of “Hindu Law”. On remand no additional evidence were adduced by any party. The High Court allowed the second appeal filed by defendant no. 2&3 and it was held that, “the suit land was ancestral property of family; that Pritam Singh being a Karta had right to sell the suit land; that there did exist a legal necessity of family for which the suit land was required to be sold by Karta. That, there were two debts on the family and secondly the family had agricultural land which needed improvement; that with a view to discharge the loan liability ad to undertake the improvement on the land. The karta sold the suit land for valuable consideration; that the facts were duly mentioned in the sale deed in question; that the sale was, therefore, bona fide, legal and made for valuable consideration.” Also, defendants were able to discharge the burden that lay on them to prove the existence of legal necessity for sale of suit land to defendant 2&3. The defendants have thus satisfied the test laid down in “Hindu Law”  as explained by Mulla in Article 254(2) read with Article 241(a) & (g).

 

The appellant felt aggrieved and filed the present appeal before Supreme Court. Wherein, Supreme Court was concur with the view taken by the High Court and called up no interference and accordingly dismissed said appeal.

Issues before Supreme Court:

 

Sale made by the Defendant No.1 in Favour of defendant no. 2&3 was for legal Necessity and if so, whether it was legal and valid sale?

Supreme Court’s Verdict:

The factum of existence of legal necessity stood proved and in view of Supreme Court, no co-coparcener (son) has right to challenge the sale made by the Karta of his family. The appellant being son was one of co-coparcener 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 appellant 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.

 

Acelegal Analysis:

Once the ancestral property is sold by the Karta of the family member for the benefit of the family due to any such need, thereafter no coparcener has right, claim, interest in such property and shall have no right to sue or file suit against purchaser of such property.