- 1 - sa155.94.odt IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD 902 SECOND APPEAL NO. 155 OF 1994 1. Abaji s/o Jaywanta age 21 years, occ. Agriculture r/o Somthana, Tq Biloli Dist. Nanded. 2. Bhaurao s/o Jayawanta age major, occ. Agriculture r/o Somthana, Tq. Biloli Dist. Nanded. 3. Vithal s/o Jayawanta age major, occ. Agriculture r/o Somthana, Tq. Biloli Dist. Nanded. 4. Vastchalabai w/o Jayawanta age 47 years, occ. Household & agriculture r/o Somthana,Tq. Biloli Dist. Nanded. Died through her LRs. 4-1 Madhurikabai w/o Baburao age 25 years, occ. Household r/o Sugaon, Tq. Kandhar Dist. Nanded. ….Appellants VERSUS 1. Datta s/o Kishan age 45 years, occ. Agriculture r/o Somthan, Tq. Biloli Dist. Nanded. 2. Jayawanta s/o Irba age 50 years, occ. Agriculture 2025:BHC-AUG:1005 - 2 - sa155.94.odt r/o Somthan, Tq. Biloli Dist. Nanded. 3. Pandurang s/o Bapuji age 50 years, occ. Agriculture r/o Somthana,Tq. Biloli Dist. Nanded. 4. Raosaheb s/o Nagoji age 28 years, occ. Agriculture r/o Somthana, Tq. Biloli Dist. Nanded. 5. Baburao s/o Shivram age 24 years, occ. Agriculture r/o Somthana, Tq. Biloli Dist. Nanded. 6. Jijabai w/o Govindrao age 30 years, occ. Agril r/o Somthana, Tq. Biloli Dist. Nanded. 7. Dadarao s/o Kishan age 40 years, occ. Agril r/o Somthana,Tq. Biloli Dist. Nanded. …..Respondents Smt. M. A. Kulkarni., Advocate for Appellants CORAM : R. M. JOSHI, J. DATE : 14th JANUARY, 2025. JUDGMENT : 1. This appeal is preferred by original Plaintiffs taking exception to the judgment and decree passed by learned Trial Court which is confirmed by the First Appellate Court to the extent of sale- deed dated 10.03.1977 executed by Defendant No. 1 in favour of - 3 - sa155.94.odt Defendant No. 6 which has been held to be valid and binding on Plaintiffs. 2. Present appeal is filed with a specific contention that in view of the provisions of Sections 47 and 48 of Maharashtra Cooperative Societies Act, the property mortgaged to the cooperative society cannot be sold and any such transaction is hit by the said provisions. Second issue sought to be canvassed before this Court is about legal necessity for which the subject property was sold by Defendant No. 1 on behalf of himself as well as Plaintiffs. 3. Heard learned counsel for the Appellants/Plaintiffs. None appears for Respondents/Defendants. It is the contention of learned counsel for the Appellants that admittedly the subject property was mortgaged with the cooperative society and as such the provisions of Section 47 and 48 of the Cooperative Societies Act would apply to the present case. It is her contention that the learned Trial Court as well as the First Appellate Court have failed to take into consideration the said aspect. On the point of legal necessity, it is sought to be contended that there is no evidence to indicate that the transaction in question was done for legal necessity. - 4 - sa155.94.odt 4. While admitting the appeal, it was observed that the point of legal necessity involves substantial question of law. During the course of hearing, it is sought to be contended that the bar created by Sections 47 and 48 of Maharashtra Cooperative Societies Act would also amount to substantial question of law involved in this appeal. 5. There is no dispute about the fact that the Plaintiffs had sought declaration that sale-deed dated 10.03.1977 executed by Defendant No. 1 in favour of Defendant No. 6 is not valid and binding on their share. Defendants thus took specific plea about sale of the property by Karta of joint family i.e. Defendant No. 1 for legal necessity. This Defendant led evidence to the extent that the said property was sold for the purpose of meeting the debts created in favour of the cooperative society. Apart from this, document of sale itself indicates so. This Defendant, therefore, has discharged initial burden of proving that the sale of the property was by Karta of the joint family for legal necessity. The onus therefore shifted upon the Plaintiffs to prove otherwise. There is no evidence to indicate that the property was sold not for legal necessity. Satisfaction of debt created in favour of the society and sale of the property can certainly be - 5 - sa155.94.odt considered as legal necessity. Findings of fact recorded by both the Courts below since are in consonance with the evidence on record are not found to be perverse. 6. As far as contention of learned counsel for Appellants/Plaintiffs about application of Sections 47 and 48 of the Act is concerned, it is settled position of law that the person who has sold such mortgage property is not entitled to claim that the sale is not valid. It may be open for the society or the person in whose favour the mortgage is created to claim so. Thus, this Court finds no substance in the contention of learned counsel for the Appellants/Plaintiffs. As such, substantial questions of law framed herein are answered in negative. Appeal stands dismissed. 7. Pending application, if any, does not survive and stands disposed of. ( R. M. JOSHI) Judge dyb