SURAJ SHANKARRAO NEVSE AND ANR.versusIQBAL ABBAS BAGWAN AND ORS.

                      Sonali Mane                                               22-SA-480-2017.docx



                                     IN THE HIGH COURT OF JUDICATURE AT BOMBAY

                                             CIVIL APPELLATE JURISDICTION

                                             SECOND APPEAL NO. 480 OF 2017

                      Suraj Shankarrao Nevse And Anr.                        … Appellants
                               Versus

                      Iqbal Abbas Bagwan (Decd.) Thr. Lrs.

                      Dilshad Iqbal Bagwan And Ors.                          … Respondents



                      Mr. Rahul S. Kate for the Appellants.
                      Mr. Utkarsh Pondkule a/w Mr. Rupesh A. Zade for Respondent Nos. 1 a
                      to 1d.


                                                         CORAM        : SANDEEP V. MARNE, J.

                                                         DATE         : 9 SEPTEMBER 2026.

                      P.C. :


                      1)            The Appeal challenges Judgment and decree dated 4 December
                      2015 passed by the Ad-hoc District Judge-2, Baramati dismissing the
                      Civil Appeal No. 45 of 2010 and confirming the decree of the Trial Court
                      dated 18 February 2010, passed by the Joint Civil Judge, Junior Division,
                      Baramati, in Regular Civil Suit No. 66 of 1998. The First Appellate Court
                      has reversed the findings of the Trial Court on the issues of limitation
                      as well as suit properties being ancestral properties. However, the First
                      Appellate Court has agreed with the finding of the Trial Court that the
                      suit properties were alienated by father-Defendant No.2 vide sale deeds
                      dated 18 June 1986 because of legal necessity. Thus, on the issue of
                      legal necessity, there are concurrent findings of fact by both the Courts.
   MANE
   SONALI
   DILIP
Digitally signed by
MANE SONALI DILIP                                     ___Page No.1 of 5___
Date: 2026.09.11
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2)            I have heard Mr. Kate, the learned counsel appearing for the
Appellants and Mr. Pondkule, the learned counsel appearing for
Respondents and have considered the submissions canvassed by them.



3)            The suit was instituted by the Plaintiffs challenging the sale
deeds dated 18 June 1986 and seeking a declaration that the same are
not binding on their share. Plaintiffs' father (Defendant No.2) executed
the said two sale deeds dated 18 June 1986 in favour of Defendant No.1
during minority of the Plaintiffs. It was the case of Defendant No.1-
Purchaser that the suit property was alienated by Defendant
No.2/Father due to the legal necessity. On the other hand, it was the
assertion of the Plaintiffs that there are no requirement of funds by
Defendant No.2-Father and that he was addicted to liquor and
gambling and hence sold the ancestral suit property in which Plaintiffs
have a share. The suit was resisted by Defendant No.1 on the ground of
limitation, as well as by taking the plea that the suit property is not the
ancestral property. The Trial Court accepted the version of Defendant
No.1 on both the issues and proceeded to hold that the suit was not
within limitation and that suit properties are not ancestral properties.
These two findings are however reversed by the First Appellate Court
holding that the suit is within limitation and that the suit properties
are the ancestral properties.



4)            Thus, the only issue that remains to be decided was about
existence of legal necessity for Defendant No.2-father to execute the
sale deeds dated 18 June 1986.




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5)            According to Mr. Kate, Defendant No. 1 gave an emphatic
admission during the course of his cross-examination that no member
of family of Defendant No.2 was seriously ill during the period 1983 to
1986, when payments are shown to have been made by Defendant No.1
to Defendant No.2. I have gone through the cross-examination of
Defendant No.1 and there appears to be an admission of absence of any
serious illness of family member of Defendant No.2 during 1983-1986.
However, there are at least three factors which indicate the need for
funds by Defendant No.2. Witness Bashir Bagwan deposed before the
Trial Court that Defendant No.2 used to borrow money from him for the
purpose of medical treatment of his intellectually disabled daughter.
Plaintiff No.1 admitted in his cross-examination that the said daughter
(Padmini) passed away at the age of 10 years. It has also come in
evidence that both the Plaintiffs were minors at the time of alienation
of the suit properties and were taking their education. Thus, there is
evidence on record to demonstrate the legal necessity of funds for
medical treatment and education. There is total absence of any
evidence that Defendant No.2 was addicted to liquor and gambling as
sought to be suggested by the Plaintiffs. Defendant No.2 was alive
when the suit was decided. However, Plaintiffs took a chance and did
not examine Defendant No.2 and withheld his evidence from the Court.
In my view, therefore, there is some material on record to presume
existence of legal necessity, which is also reflected in the recitals to the
sale deeds.



6)            Mr. Kate has relied on judgment of this Court in Basheer S/o
Amir Patel (since Deceased) Through its L.Rs. Madina Bee Bashir Patel
& Ors. Vs. Dnyaneshwar S/o Bhikarchand Through its L.Rs. Dattu
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Dnyaneshwar Sonawane & Ors.1 in which it is held in paragraph 17 as
under:



              17.        The learned District Judge has considered this aspect in
              paragraphs 15 observed that, no doubt, there was outstanding amount of
              loan of Tagai. However, there was no pressing demand for recovery of
              said loan. There was neither any attachment nor any notice for sale of
              the suit land. At the most, it can be said that there was dues and the said
              dues are from 1954-55. The liability was not pressing liability. In the case
              of Smt. Rani and another (supra), the Apex Court has held that legal
              necessity does not mean actual compulsion. It means pressure upon the
              estate which in law may be regarded as serious and sufficient. The onus
              of legal necessity may be discharged by the alienee by proof of actual
              necessity or by proof that he made proper and bona fide enquiries about
              the existence of the necessity and that he did all that was reasonable to
              satisfy himself as to the existence of the necessity. Perusal of the recitals
              in the sale deed shows that the property was sold for meeting private
              expenses. It, however, does not refer to either Govt. debt or debt obtained
              privately. No material is produced on record by the defendant No. 2 as
              regards the legal necessity at the time of the execution of the sale deed
              dated 8-4-1969. No material is also produced by defendant No. 2 to show
              that he had made proper and bona fide enquiries and he did all that was
              reasonable to satisfy himself as to the existence of the necessity. If the
              tests laid down by the Apex Court in the case of Smt. Rani and another
              (supra) are applied to the present case, I do not find that the learned
              District Judge committed any error in holding that the defendant No. 2
              did not establish expenses of legal necessity.




         No doubt, legal necessity means the existence of circumstances
requiring alienation of ancestral property. In the present case,
Defendant No.1 has established existence of circumstances which
would have necessitated alienation of suit property by Defendant No.2.
The case does not involve total absence of evidence regarding existence
of any compulsive eventuality requiring alienation of the suit property.




1 2015 (5) Mh.L.J. 853
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7)       In view of the above discussion, I am not inclined to interfere in
the concurrent findings of fact recorded by the Trial and First Appellate
Court on the issue of existence of legal necessity. No substantial
question of law is involved in the Appeal. The Second Appeal is
accordingly rejected.


                                                     [SANDEEP V. MARNE, J.]




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