K. C. KAPOOR versus RADHIKA DEVI (DEAD) BY L.RS. & OTHERS

Citation: [1982] 1 S.C.R. 907 · Decided: 15-10-1981 · Supreme Court of India · Bench: A.D. KOSHAL · Disposal: Appeal(s) allowed

Cited by 1 judgment(s) · see the full citation network in Lexace

Judgment (excerpt)

• <! 
907 
A 
K. C. KAPOOR 
v. 
RADHIKA DEVI (DEAD) BY L. RS. 
& OTHERS 
October 15, 1981 
[A.D. KOSHAL, V. BALAKRISHNA BRAD! AND 
R.B. MISRA, JJ.) 
Second Appeal-It is not open, in second appeal, to the High Court to inter-
fere with the finding of facts based on good evidence of the trial court-Code of 
Civil Procedure, section 100 . 
Estoppel by conduct and construction of pleadings in the absence of an appli-
cation under Order XI C.P.C. 
• 
Sale for legal necessity of joint Hindu family property-" Kutumbarthe'' 
explained. 
Sheo Du1arey Misra, in terms of a compromise decree dated 29th August, 
1931 was declared the exclusive owner of a block of houses situated in Rae Bareli 
and also one half of 4 annas and 9 pies share in a Zamindari. He died in 
1951 leaving his widow, his son Parmeshwar Din Misra and grand-sons Gajendra 
Narain and SuniI. His entire property was then mutated in the name of his 
son Parmeshwar Din Misra both in the revenue records as well as in the 
registers maintained by the Rae Bareli Municipal Committee. From then on-
wards, Parmeshwar Din Misra was in possession of the entire property left by 
his father and also acted as its exclusive manager. He received compensation 
for some of the zamindari property, a part of which was also sold by him on 
12th January, 1959 for a consideration of Rs. 800. In the year 1960 and 1961, 
he constructed a one-storey building on a plot of land in Khurshid Bagh, 
Lucknow, where he was employed and residing with his wife and children. On 
14th February, 1964, he sold the western portion of the block of houses purcha-
sed by his late father, to the appellant \'ide sale deed Exhibit A-1. Jn that sale 
deed he described himself, as "exclusive and complete owner" of the Rae Bareli 
property and claimed that he was "in possession and occupation thereof with 
powers of transfer of all kinds ......... ". The necessity for the sale \Vas thus des· 
cribed by him : "I am constructing a house in Mahalia Khurshed Bagh, City 
Lucknow, the lower portion whereof has already been constructed and for the 
construction of the upper portion whereof funds are required." 
On 17-9-1964 his mother (Plaintiff No. !) and his two sons (Plaintiff Nos. 2 
& 3) institPt~d a suit claiming the share in the said property and to have th~ 
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908 
SUPREME COURT REPORTS 
[1982] I s.c.R. 
sale covered by Exhibit A-1 set-aside on the ground that the transaction was not 
for any necessity of the family. The trial court dismissed the suit holding: (i), all 
the three plaintiffs and defendant No. 2 formed a joint Hindu family of which 
defendant No. 2 was the karta and his two sons (Plaintiffs 2 & 3) acquired an 
interest by birth in the property left by their grand-father; (ii) the Lucknow 
house was the property of the said joint Hindu family; (iii) the disputed sale was 
and act of good management and was in the circumstances for the benefit of the 
family and, therefore, for legal necessity; (iv) the vendee (appellant) was not 
entitled to any protection under section 41 of the Transfer of Property Act; and 
(v) it was the duty of defendant No. I to give the details of misrepresentation 
constituting estoppel in the written statement, which was not done so that the 
evidence on the point could not be looked into. The first appeal before the 
Di'itrict Judge failed. But the High Court, accepting a second appeal cancelled 
sale deed Exhibit A-I and passed a decree for possession of the disputed property 
in favour of the plaintiffs. Hence the appeal after obtaining special leave. 
Allowing the appeal, the Court, 
HELD : 1 : L The findings given by the first appellate court on the point 
of estoppel was eminently reasonable and the short ground on which the High 
Court turned the tables on the appellant was untenable. That finding being a 
finding of fact and being based on glJod evidence, it was not open to the High 
Court to interfere with it in a second appeal. [923 B-C] 
1 : 2. 
Proper foundation was laid for the plea of estoppel in the plead-
ings. 
A co1nbined reading of paragraphs 14 and 16 of the written statement 
gave sufficient notice to the plaintiffs of what case they had to meet. The repre-
sentation said to have been made by plaintiff No. 1 is set out in paragraph 14, 
while the plea that she was estopped fron1 contesting the sale is taken in para-
graph 16. Undoubtedly, the written statement is inartistically \lrafted and 
leaves much to

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