SUBODHKUMAR AND ORS. versus BHAGWANT NAMDEORAO MEHETRE AND ORS.

Citation: [2007] 2 S.C.R. 1 · Decided: 25-01-2007 · Supreme Court of India · Bench: ARIJIT PASAYAT · Disposal: Dismissed

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Judgment (excerpt)

( 
SUBODHKUMAR AND ORS. 
V. 
BHAGWANT NAMDEORAO MEHETRE AND ORS. 
JANUARY 25, 2007 
[DR. ARIJIT PASA YAT AND S.H. KAPADIA, JJ.] 
Hindu Law-Sale of part of ancestral property by Karla with consent 
of all coparceners except one-Separate Sale effected by opposing coparcener 
A 
B 
of the same /and-Suit for possession of land by successors-in-title of karta C 
against successors-in-title of opposing coparcener-Tria/ Court decreed the 
suit holding that the alienation was for legal necessity-Appellate Court 
also dismissing the appeal but holding that the legal necessity was not a 
'fact in issue '-High Court dismissing the Second Appeal -Correctness of-
Held, the alienation for legal necessity becomes irrelevant since neither the 
opposing coparcener nor his successors-in-title filed a suit for partition. 
D 
A Karta of Hindu Undivided Family had five sons. The Karta and four 
sons entered into an agreement of sale with respondents for selling part of 
their ancestral lands and thereafter executed a sale deed. The fifth son opposed 
the transaction and entered into a separate agreement of sale for selling part 
of the sold lands with appellants. 
E 
The respondents-plaintiff filed a suit for possession of lands before trial 
court contending that the agreement entered into by the opposing son with 
the appellants-defendants was a fabricated antedated document The appellants 
contested the suit contending that their agreement of sale was genuine and F 
first in point of time: that they were not aware of the agreement executed by 
the Karta in favour of the respondents: and that the transaction was not for 
legal necessity. The trial court decreed the suit holding that the transaction 
was for legal necessity. The appellate court also dismissed the appeal but beld 
that the legal necessity for possession was not a 'fact in issue' The High Court 
dismissed the second Appeal of the appellants holding that the transaction G 
was on account of legal necessity. 
In appeal to this court, the appellants contended that there was no legal 
necessity for the Karta and his four sons to execute the conveyance in favour 
H 
2 
SUPREME COURT REPORTS 
[2007] 2 S.C.R. 
A of the respondents; that the conveyance was executed without the consent of _ 
one of the coparceners; that the opposing son entered into a conveyance with 
them in respect of his undivided share and was it earlier in point of time. 
Dismissing the appeal, the Court. 
B 
HELD: A karta has power to alienate for value the joint family property 
either for necessity or for benefit of the estate. He can alienate with the consent 
of all the coparceners of the family. When he alienates for legal necessity he 
alienates an interest which is larger than his undivided interest. When the 
Karta, however, conveys by way of imprudent transaction, the alienation is 
C voidable to the extent of the undivided share of the non-consenting coparcener. 
Neither the opposing son nor his successors-in-title instituted a suit for 
partition and for demarcation of their share by metes and bounds. In the suit 
for possession filed by the respondents, the issue of legal necessity becomes 
irrelevant. A mere declaration that transaction was imprudent or was not for 
legal necessity in such a suit cannot give any right to the appellants to get 
D their share without taking appropriate proceedings in accordance with law. 
The legal necessity in the present suit for possession was not a "fact in issue". 
(Paras 12 & 16) (6-B-F; 11-DJ 
Suni/ Kumar & Anr. v. Ram Parkash & Ors., AIR (1988) SC 576; 
Sidheshwar Mukherjee v. Bhubneshwar Prasad Narain Singh & Ors., AIR 
E (1953) SC 487 and Balamukund s. Kanz/a Wati & Ors., AIR (1964) SC 1385, 
referred to. 
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1584 of2004. 
From the Judgment and Final Order dated 24.3.2003 of the High Court 
F of Judicature at Bombay, Nagpur Bench, Nagpur in S.A. No. 128/1990. 
G 
H 
V.A. Mohta, A.K. Sanghi and Neelkanth Nayak for the Appellants. 
Satyajit A. Desai, Anagha S. Desai, Amo! N. Suryawanshi, Vikram Saluja 
and venkateswara Rao Anumolu for the Respondents. 
The Judgment of the Court was delivered by 
KAPADIA, J. I. The short question which arises for consideration in 
this civil appeal is : whether on the facts and circumstances of the case the 
lower appellate court was right in holding that the issue of legal necessity 
SUBODHKUMAR v. BHAGWANT NAMDEORAO MEHETRE [KAPADIA, J.]3 
even if decided in favour of defendant 

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