Arvind @ Abasaheb Ganesh Kulkarni vs. Anna @  Dhanpal Parisa Chougule  

FACTS OF THE CASE 

In this case Parisa Chougule executed two mortgage to favour of Ganesh Kulkarni  for a sum of Rs. 1600/- and Rs. 1000/- to respected 10 item of his land and Both  mortgages were possessory mortgages but the land was leased back to the  mortgagor for a stipulated rent. After the death of Parisa the Bhupal, the Major son  of Parisa executed a simple mortgage on the same land and borrowed 131/- Rupees. 

Bhupal was purporting to act as the Manager of the joint family and the guardian  of his minor brother executed a deed of sale in favour of Ganesh Kulkarni in  respect of four out of the ten items of land mortgaged therefore the six of the items  which were mortgaged were released from the burden of the mortgages. But After  become Major of age by Anna and Dhanpal filed the suit against sale deed in out  of which this appeal arises for a declaration that the sale deed was not for legal  necessity and not for the benefit of the estate and therefore, not binding on them.  They also prayed that joint possession of their two third share may be given to  them. 

ISSUE IN THE CASE 

-There was no such compelling pressure on the estate as to justify the sale and  therefore, enquiry regarding not need or possibility. 

– Whether the sale deed was executed for legal necessity? 

ARGUMENTS  

In this case on April 15, 1930 Parisa Chougule executed a deed of mortgage in  favour of Ganesh Dattatraya Kulkarni for a sum of Rs. 1600 in respect of single  item of land and On August 25, 1933, again Parisa Chougule execute another deed  of mortgage in favour of the same mortgagee for a sum of Rs. 1,000 in respect of  ten items of land including the land previously mortgaged. Both the mortgages  were possessory mortgages but the land was leased back to the mortgagor for a  stipulated rent. Parisa Chougule died on June 15, 1934 leaving behind him three  sons, Bhupal an adult and Anna and Dhanpal, minors.  

Bhupal borrowed a further sum of Rs. 131 and executed a simple mortgage in  respect of the very ten items. Bhupal purporting to act as the Manager of the joint  family and the guardian of his minor brother executed a deed of sale in favour of  Ganesh Dattatraya Kulkarni in respect of four out of the ten items of land  mortgaged. The consideration for the sale was Rs. 3050 and was made up of the  amounts of Rs. 1600 Rs. 1000 and Rs. 131/- due under three mortgages and a sum  of Rs. 200 received in cash by Bhupal on the date of sale. Six of the items which  were mortgaged were released from the burden of the mortgages. The family was  also relieved from the burden of paying rent to the mortgagee under the lease back.  Surely all this was for the benefit of the family. 

Anna and Dhanpal filed the suit out of which this appeal arises for a declaration  that the sale deed dated May 1, 1935 was not for legal necessity and not for the  benefit of the estate and therefore, not binding on them. They also prayed that joint  possession of their two third share may be given to them.  

The Trial Court found that there was no such compelling pressure on the estate as  to justify the sale and therefore, the sale was not for the benefit of the family and  hence not binding on the two plaintiffs. A decree was granted in favour of the two  plaintiffs for joint possession of two third shares of the lands subject to their  paying a sum of Rs. 1733/5 and 4 ps. to the second defendant. The Assistant Judge 

found that there was no evidence to show that the defendant made any bonafide  enquiry to satisfy him-self that there was sufficient pressure on the family  justifying the sale.  

He however, held that the suit of the first plaintiff was liable to be dismissed as it  was barred by limitation the first plaintiff as well as the second defendant preferred  second appeals to the High Court. The High Court allowed the appeal filed by the  first plaintiff and dismissed the appeal filed by the second defendant. The legal  representatives of the second defendant have preferred these appeals after  obtaining special leave from this Court under Article 136 of the Constitution. 

The value of the land sold under the deed of sale was found by the Courts below to  be Rs. 4000. Even if that be so it cannot possibly be said that the price of Rs. 3000  was grossly inadequate. It has further to be remembered that there were continuous  dealings between the family of the plaintiffs and the family of the second  defendant, over a long course of years. In those circumstances it is impossible to  agree with the conclusion of the courts below that the sale was not binding on the  plaintiffs.  

JUDGEMENT 

The Trial Court found that there was no such compelling pressure on the estate as  to justify the sale and therefore, the sale was not for the benefit of the family and  hence not binding on the two plaintiffs. 

On appeal by the second defendant the Assistant Judge, Kolhapur found that there  was no evidence to show that the defendant made any bonafide enquiry to satisfy  him that there was sufficient pressure on the family justifying the sale. 

We do not see how any question of enquiry regarding pressure on the estate would  arise at all. Where ancestral property is sold for the purpose of discharging debts  incurred by the father and the bulk of the proceeds of the sale are so accounted, the  fact that a small part of the consideration is not accounted for will not invalidate  the sale. 

The courts below appeared to think that notwithstanding the circumstance that  there was legal necessity to a large extent it was incumbent on the second  defendant to establish that he made enquiry to satisfy himself that there was  sufficient pressure on the estate which justified the sale. 

REFERENCES 

1 https://indiankanoon.org/doc/1886529/ 

2 https://lawplanet.in 

3 https://dullbonline.wordpress.com/2017/08/07/arvind-v-anna-1980-2-scc-387-air-1980-sc-645/ 

This Article is written by Sachin Chopade from Dr. Babasaheb Ambedkar Marathwada  University of Aurangabad, Maharashtra. Intern at Legal Vidhiya.

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