- 1 - NC: 2025:KHC-D:4717 RSA No. 100455 of 2016 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 12TH DAY OF MARCH, 2025 BEFORE THE HON'BLE MR. JUSTICE E.S.INDIRESH REGULAR SECOND APPEAL NO. 100455 OF 2016 (PAR-) BETWEEN: NAGARAJ S/O. SHANKRAPPA BEVINKATTI, AGE: 39 YEARS, OCC: AGRICULTURE, R/O: BYAHATTI-580023, TQ: HUBBALLI, DIST: DHARWAD. …APPELLANT (BY SRI. SANJAY S. KATAGERI, ADVOCATE) AND: 1. BHEEMAVVA D/O. RUDRAPPA JAGAD, AGE: 28 YEARS, OCC: HOUSEHOLD WORK AND AGRICULTURE, R/O: BYAHATTI-580023, TQ: HUBBALLI, AFTER MARRIAGE KNOWN AND CALLED AS BHARATI W/O. NINGAPPA KANAKUR, R/O: NEERSAGAR-581204, TQ: KALGHATAGI, DIST: DHARWAD. 2. YELLAVVA W/O. RUDRAPPA JAGAD, AGE: 69 YEARS, OCC: HOUSEHOLD WORK AND AGRICULTURE, R/O: BYAHATTI-580023, TQ: HUBBALLI, DIST: DHARWAD. 3. BASAPPA S/O. RUDRAPPA JAGAD, AGE: 48 YEARS, OCC: AGRICULTURE, R/O: BYAHATTI-580023, TQ: HUBBALLI, DIST: DHARWAD. 4. RENAVVA D/O. RUDRAPPA JAGAD, AGE: 38 YEARS, R/O: BYAHATTI-580023, TQ: HUBBALLI, DIST: DHARWAD. …RESPONDENTS (BY SRI. RAJASHEKHAR B. HALLI, ADVOCATE FOR R1; R2-R4 SERVED AND UNREPRESENTED) MOHANKUMAR B SHELAR Digitally signed by MOHANKUMAR B SHELAR Location: HIGH COURT OF KARNATAKA DHARWAD BENCH - 2 - NC: 2025:KHC-D:4717 RSA No. 100455 of 2016 THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION 100 OF CPC PRAYING TO PASS AN JUDGMENT & DECREE BY SETTING ASIDE THE JUDGMENT AND DECREE PASSED IN R.A.NO.51/2014 DATED 26.03.2016 ON THE FILE OF THE II- ADDITIONAL SENIOR CIVIL JUDGE HUBBALLI CONFIRMING THE JUDGMENT AND DECREE PASSED IN O.S.NO.1026/2012 DATED 06.08.2014 ON THE FILE OF THE PRINCIPAL CIVIL JUDGE AND JMFC HUBBALLI, AND ALLOW THIS APPEAL WITH EXEMPLARY COSTS, IN THE INTEREST OF JUSTICE AND EQUITY. THIS APPEAL COMING ON FOR DICTATING JUDGMENT THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: THE HON'BLE MR. JUSTICE E.S.INDIRESH ORAL JUDGMENT 1. This appeal is preferred by defendant No.4 challenging the judgment and decree dated 26.03.2016 in R.A.No.51/2014 on the file of the II Additional Senior Civil Judge, Hubballi1, dismissing the appeal and confirming the judgment and decree dated 06.08.2014 in O.S.No.1026/2012 on the file of the Principal Civil Judge and JMFC, Hubballi2 decreeing the suit of the plaintiff. 2. For the sake of convenience, the parties are referred to as per their ranking before the Trial Court. 1 hereinafter referred to as ‘First Appellate Court’ 2 hereinafter referred to as ‘Trial Court’ - 3 - NC: 2025:KHC-D:4717 RSA No. 100455 of 2016 3. It is the case of the plaintiff that the suit land bearing Sy.No.1258 measuring 3 acres 26 guntas and house property G.P.C. No.395 (Item No.2) are the ancestral property of plaintiff and defendants No.1 to 3. It is stated that the father of the plaintiff – Rudrappa died leaving behind the defendants No.1 to 3 and plaintiff to succeed to the estate of joint family property. It is further stated that the suit schedule ‘A’ property has been alienated in favour of the defendant No.4 by the defendants without the consent of the plaintiff and accordingly the plaintiff filed O.S.No.1026/2012 before the Trial Court seeking relief of partition and separate possession. 4. After service of notice, the defendants No.1 and 2 failed to appear before the Trial Court and accordingly placed ex-parte. Defendant No.4 entered appearance and filed detailed written statement denying the averments made in the plaint. It is stated in the written statement that the defendant No.4 has purchased the suit schedule - 4 - NC: 2025:KHC-D:4717 RSA No. 100455 of 2016 property and is in possession of the same. It is also stated that the father of the plaintiff, died on account of asthma and during the said period, the suit schedule property was sold in favour of defendant No.4 for family necessity and therefore sought for dismissal of the suit. 5. The Trial Court based on the pleadings on record, has framed issues for its consideration. In order to establish their case, the plaintiff has examined herself as PW.1 and produced 3 documents and same were marked as Exs.P.1 to P.3. The defendant has examined three witnesses as DW.1 to DW.3 and got marked 2 documents as Exs.D.1 to D.2. 6. The Trial Court after considering the material on record, by its judgment and decree dated 06.08.2014, decreed the suit and feeling aggrieved by the same, the defendant No.4 has preferred R.A.No.51/2014 on the file of the First Appellate Court and same was resisted by the plaintiff. The First Appellate Court after re-appreciating the material on record, by its judgment and decree dated - 5 - NC: 2025:KHC-D:4717 RSA No. 100455 of 2016 26.03.2016, dismissed the appeal, consequently confirmed the judgment and decree in O.S.No.1026/2012. Feeling aggrieved by the same, the defendant No.4 has preferred this Regular Second Appeal. 7. This Court vide order dated 03.10.2023 formulated the following substantial question of law: “Whether the finding of the Trial Court and the First Appellate Court that the appellant did not demonstrate the legal necessity in respect of item No.A of the suit schedule is perverse and contrary to the material available on record?” 8. I have heard Sri.Sanjay S Katageri, learned counsel appearing for the appellant and Sri.Rajashekhar B Halli, learned counsel appearing for respondent No.1. 9. Learned counsel appearing for the appellant contended that the schedule ‘A’ property was sold in favour of the defendant No.4 as per Ex.D.2 dated 20.04.2007 and prior to that, agreement of sale was executed as per Ex.D.1 and the said aspect of the matter - 6 - NC: 2025:KHC-D:4717 RSA No. 100455 of 2016 was not considered by both the Courts below and accordingly sought for interference of this Court. In this regard, he places reliance on the judgment of the Hon’ble Supreme Court in the case of Kehar Singh (dead) through Legal Representatives and Others vs. Nachittar Kaur and Others reported in (2018) 14 SCC 445. 10. Per contra, learned counsel appearing for the respondents submitted that the impugned judgment and decree passed by both the Courts below requires to be confirmed as there is concurrent findings of fact and accordingly sought for dismissal of the appeal. 11. In the light of the submission made by the learned counsel appearing for the parties, I have perused the records and the finding recorded by both the Courts below. In order to understand the relationship between the parties, the genealogy of the joint family of late Rudrappa Jagad is as follows: - 7 - NC: 2025:KHC-D:4717 RSA No. 100455 of 2016 Rudrappa Jagad (Propositus) =Yallavva Jagad (Deft.No.1) Basappa Renavva Bhimavva Jagad Jagad Jagad Deft.No.2) (Deft.No.3) (Plff.) 12. Perusal of the same would indicate that the original propositus Rudrappa Jagad was owner of the suit schedule property and he died leaving behind his wife and children namely plaintiff and defendants No.1 to 3. It is the case of the plaintiff that suit schedule property was sold by her father, without the consent of the plaintiff and there was no legal necessity to sell the suit schedule property. In the backdrop of these aspects, I have carefully considered Exs.D.1 and D.2. Perusal of Ex.D.1 – agreement of sale executed on 15.04.2006, wherein it is stated that the suit schedule property would be sold in favour of defendant No.4 by executing ₹15,000/- as advance amount and on the very same day the possession - 8 - NC: 2025:KHC-D:4717 RSA No. 100455 of 2016 of the suit schedule property was handed over to defendant No.4. The said agreement of sale was signed by the plaintiff. Thereafter, the registered sale deed was executed as per Ex.D.2. In that view of the matter, as the suit schedule ‘A’ property has been sold by defendants No.1 to 3 at the instance of the plaintiff in favour of defendant No.4, I am of the view that the suit schedule property has been sold for family necessity by father of the plaintiff. In this regard, it is necessary to extract para Nos.20 to 22 and 26 of the judgment of the Hon’ble Supreme Court in the case of Kehar Singh supra which reads as under: “20. 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: “Article 254 254. 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 - 9 - NC: 2025:KHC-D:4717 RSA No. 100455 of 2016 sons, grandsons and great-grandsons 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).” 21. What is legal necessity was also succinctly said by Mulla in Article 241, which reads as under: “Article 241 241. 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 of 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; 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 fulfil tax obligations incurred by a family business, such alienation can be classified as constituting legal necessity.” (See Hindu Law by Mulla “22nd Edition”) 22. The High Court, after taking note of the aforementioned legal principles of Hindu Law, dealt - 10 - NC: 2025:KHC-D:4717 RSA No. 100455 of 2016 with this question on facts in para 19, which reads as under: (Nachhittar Kaur case, SCC OnLine P&H) “19. 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 DW 13 has stated that an amount of Rs 5500 was paid by him as earnest money, Rs 500 was spent for purchasing stamp papers 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, for payment of Taccavi loan and an amount of Rs 12,566 was paid at the time of registration of the sale deed. DW 1 Shri Gopal, who was an Assistant in the DC office, Ludhiana, has stated that Pritam Singh vendor was granted loan of Rs 3000 in the year 1995 and he did not pay a penny from the said loan till 20-11-1964. DW 2 Ram Dass, a tubewell mechanic, has proved that Pritam Singh had spent Rs 4000 for installing a tubewell in the year 1963. DW 9 Sat Pal, Additional Wasil Baqa Nawis, Ludhiana, has proved that the vendor Pritam Singh had taken various loans from the department for purchase of seeds bag, Rs 500 for repair of house and Rs 2500 for purchasing pumping set. This witness further stated that a sum of Rs (sic) Singh had purchased a Rehri for Rs 1025 from him in the year 1961. DW 11 Dalip Singh has proved that Pritam Singh had borrowed a sum of Rs 3000 from him in the year 1959 by executing a pronote. This witness has also stated that Pritam Singh had performed marriage of his 5 children.” 26. Once the factum of existence of legal necessity stood proved, then, in our view, no co-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 co-coparceners 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 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.” - 11 - NC: 2025:KHC-D:4717 RSA No. 100455 of 2016 13. Following the declaration of law made by the Hon’ble Supreme Court and by looking into the records, which makes clear that defendants No.1 to 3, were served and remained absent and accordingly placed ex-parte. The defendant No.4 alone contested the matter on merits. Even before the First Appellate Court, defendants No.2 and 3 were placed ex-parte. In that view of the matter, I find force in the submission made by the learned counsel appearing for the appellant that the plaintiff has filed collusive suit challenging the sale deed made in favour of defendant No.4 despite the suit schedule property has been sold for the family necessity. Both the Courts below have committed an error in misconstruing Exs.D.1 and D.2 and have arrived at an erroneous conclusion that the suit ‘A’ schedule property has not been sold for legal necessity. The said finding recorded by both Courts below is contrary to Exs.D.1 and D.2 and the evidence has not been considered in a right perspective. Hence, the substantial question of law referred to above favours defendant No.4 as the Item No.’A’ of suit schedule property has been sold - 12 - NC: 2025:KHC-D:4717 RSA No. 100455 of 2016 for legal necessity of the plaintiff and defendants No.1 to 3. 14. Accordingly, I pass the following: ORDER i) The appeal is allowed. ii) Judgment and decree dated 26.03.2016 in R.A.No.51/2014 on the file of II Additional Senior Civil Judge, Hubballi is hereby set aside. iii) Judgment and decree dated 06.08.2014 in O.S.No.1026/2012 on the file of the Principal Civil Judge and JMFC, Hubballi is hereby set aside. iv) Suit in O.S.No.1026/2012 on the file of the Principal Civil Judge and JMFC, Hubballi is dismissed. Sd/- (E.S.INDIRESH) JUDGE SH CT-MCK List No.: 1 Sl No.: 34