No Co-Coparcener Has Right To Challenge Sale Made By Karta To Meet Legal Necessity: SC Dismisses 54-Yr-Old Suit Filed By Son Against His Father [Read Judgment]

‘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.’

Dismissing a suit filed in the year 1964 by a son against his father, the Supreme Court has observed that no co-coparcener has a right to challenge the sale made by the Karta of his family, once the factum of the existence of legal necessity stood proved.

The suit filed by the son in the year 1964, triggered by a sale of ancestral property by his father, outlived both father and son when it reached the Supreme Court.  Their legal representatives kept the suit alive, against the 2006 order of Punjab and Haryana High Court that had dismissed it.

The trial court had decreed the suit which was partly modified by the appellate court. The high court, in second appeal, dismissed the suit. The apex court remanded it to the high court for deciding the second appeal afresh in the light of the principles of Hindu law. As the parties stated that they do not want to lead any additional evidence, the high court again dismissed the suit holding that Pritam Singh being a karta had a right to sell the suit land; that there did exist a legal necessity of the family for which the suit land was required to be sold by Karta. It also noted that the factum of legal necessity was mentioned in the sale deed to the effect that sale was done with a view to discharge the loan liability and to undertake the improvement on the agricultural land.

The bench of Justice Abhay Manohar Sapre and Justice Sanjay Kishan Kaul (in Kehar Singh vs. Nachittar Kaur), referred to Mulla’s "Hindu Law" Article 254, of which deals with the right of a father to alienate any ancestral property. Article 241 which defines ‘legal necessity’ was also taken note of.

Upholding the high court judgment, the bench observed: “It has come in evidence that firstly, the family owed two debts and secondly, the family also needed money to make improvement in agriculture land belonging to the family. Pritam Singh, being a Karta of the family, had every right to sell the suit land belonging to family to discharge the debt liability and spend some money to make improvement in agriculture land for the maintenance of his family. These facts were also mentioned in the sale deed.”

It also observed that the defendants satisfied the test laid down in Hindu law as explained by Mulla in Article 254 (2) read with Articles 241 (a) and (g).

Article 254(2) states that a father as kartha can sell or mortgage ancestral property, whether movable or immovable, including the interest of his 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. As per Article 241, payment of debts incurred for family business or other necessary purpose is included in the definition of legal necessity.

Dismissing the 54-year-old suit, the bench said: “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.”