Holding

The High Court cannot disturb the factual findings of the lower courts on the basis of good evidence, and the sale was for legal necessity and the mother was estopped, so the appeal is allowed.

Summary

The case concerned a sale of a portion of a block of houses in Rae Bareli by Parmeshwar Din Misra (defendant No. 2), who claimed exclusive ownership, to K.C. Kapoor (appellant). The plaintiff‑mother and her two grand‑sons challenged the sale, alleging that the property was joint Hindu family property, that the sale was not for legal necessity, and that the mother was estopped from contesting it. The trial court and the District Judge held that the family was a joint Hindu family, the sale was for legal necessity (kutumbarthe), and the mother was estopped; the High Court reversed this on a second appeal. The Supreme Court held that the High Court erred in interfering with the factual findings of the lower courts, affirmed the estoppel and legal necessity doctrines, and restored the lower courts' decree.

Issues considered

Whether a second appeal under CPC s.100 permits the High Court to interfere with findings of fact based on good evidence.
Whether the plaintiff‑mother is estopped from challenging the sale.
Whether the sale of the property was for legal necessity under the doctrine of kutumbarthe in a joint Hindu family.
Whether the purchaser is entitled to protection under Section 41 of the Transfer of Property Act.
Whether the plaintiff‑mother had a valid title under the Hindu Women’s Right to Property Act, 1937 and the Hindu Succession Act, 1956.

Legislation cited

Subjects

estoppellegal necessityjoint Hindu familykutumbarthesecond appealCPC s.100Section 41Transfer of Property ActHindu Women’s Right to Property ActHindu Succession Actsale of family propertygood management

Judgment

907 A

K. C. KAPOOR

v.

RADHIKA DEVI (DEAD) BY L. RS. B
& OTHERS

October 15, 1981

[A.D. KOSHAL, V. BALAKRISHNA BRAD! AND
R.B. MISRA, JJ.)
c
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- D
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 E
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 F
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 G
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."
H
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~
908 SUPREME COURT REPORTS [1982] I s.c.R.

A 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
B 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
c 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 '.-.
D 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,
E 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 be desired, but then pleadings are not to be construed in a
hypertechnical manner. In fact, no objection to the Jack of particulars was
taken at the stage when issues were framed or later when statements of par-
ties~ counsel were recorded on a subsequent occasion or during the course of
arguments addressed to the trial court, the District Judge and the High Court'
F even though the issue of estoppel was hotly contested before all three of them.
All these circumstances unmistakably indicate that the case put fonvard by
defendant No. 1 was throughout understood by the plaintiff to be that it was
the belief induced in him by the representation of plaintiff No. 1 which made
him acct'.'pt 1hc title of defendant No. 2 as being exclusive. (923 C-H]

I : 3. The declaration of plaintiff No. l, in the presence of the appellant,
G that the property belonged to her son and that he was at liberty to deal with it
as he liked. does not suffer from any ambiguity and makes it clear that she had
nothing to do with the property. (921 A-B]

1 : 4. The onus of proof of the allegation that she was the owner of a half
share in the property at the time of the sale was on her and she was duty bound
H to depose to facts which would make section 3 of the Hindu Women's Right to
Property Act, 1937 applicable to her case. Her failure to depose to the existence
thereof n1ust result in a finding that she has failed to prove thct i$S1J.e. [92'1 E-F]
k.c. KAPOOR v. RAhHIKA oEvi 909

l : 5. In view of the fact that on Shiv Du1arey Misra's death all his pro- A
perty was mutated in favour of his son to the exclusion of plaintiff No. 1 and
was all along beiag dealt with by him as its sole and absolute owner without any
objection whatsoever having been raised by her at any point of time to such ex-
clusion or dealing leads to the presumption that plaintiff No. 1 had relinquished
her share in favour of her son either immediately after her husband's death or at
any other point of time prior to the disputed sale. In the above situation the
appellant was fully justified in accepting her word on the point of ownership, the 8
said section 3 notwithstanding. [922 G-H, 923 A]

2 : I. That the disputed sale was for legal necessity is clear from the
following: {a) The written statement of the appellant contains a definite plea in

-- para 15 to the effect that if the disputed house is proved to be joint Hindu family
property, its transfer was made by the karta for legal necessity so that it was
binding on the family; (b) no objection by the plaintiffs was taken at any stage
of the trial to any lack of particulars of the legal necessity in the plea so set up;
(c) in the said para it \Vas specifically asserted that the disputed house was sold
c
by defendant No. 2, "for the purpose of building a more profitable and advanta-
geous house at Lucknow with a view to dispose of a construction which was old
." and in perilous condition and which was of no present utility." The appellant
was, therefore, had the right to let in evidence that putting up a second storey in D
the Lucknow house constituted legal necessity. Nor was any on objection taken

• at the evidence stage to such right; {d) the appellant was a total stranger to the
family of the plaintiffs and in the very nature of things could not have had any
personal knowledge referable to the actual tnanner in and the precise source from
which either the Lucknow house or, for that matter, the Rae Bareli property was
acquired, such manner and source being within the special knowledge of plaintiff
No. 1 and her son, defendant No. 2, both of whem had stayed away from the E
witness box and had thus deprived the Court of the only real evidence which
could throw light on the source of the consideration paid for the purchase of
Lucknow house; (e) the salary of defendant No, 2 which was no more than
Rs. 240 per mensem was too meagre to have sufficed for the maintenance of his
family and any savings therefrom were out of question and (f) defendant No. 2
was not only the karta of the fatnily and its sole adult male member at the time
oft he sale but was also the father of the only other two coparceners for whom
he must naturaUy be having great affection and whose interests he would surely
F
protect and promote, rather than jeopardise, there being no allegation by the
plaintiffs that he was a profligate or had other reason to act to their
detriment. (924 C-H, 925 A-E, G-H, 926 A, D-E, 927 B-C]

2 : 2. The Lucknow house being the property of the joint Hindu family
consisting of defendant No. 2 and his sons and the disputed sale being an act
of good management, the sale is "Kutumbarthe''. and justified by legal G
necessity. (927 C-D)

Nagindas Maneklal and Othtrs v. Mohomed Yusuf Mitchel/a, ILR (1922) 46
Bombay 312, approved and applied.

Hunoomanpersaud Pandey v. Mussumat Babooee Munraj Koonweree, (1856) 6
H
Moo. I.A. 393, referred to,
9io SUPREME CbURT REPORTS [1981] 1 s.c.il.

A CIVIL APPELLATE JURISDICTION : Civil Appeal No. 515
of 1970.

Appeal by special leave from the judgment and order dated
the 19th February, 1970 of the Allahabad High Court (Lucknow)
Bench) Lucknow in Second Appeal No. 362 of 1966.
B
G.L. Sang hi and K.P. Gupta for the Appellant.

G.C. Mathur and C.P. Lal for Respondent Nos. 2 & 3.

--
The Judgment of Court was delivered by

c KosHAL. J. This is an appeal by special leave against a judg·
ment of a learned Single Judge of the High Court of Allahabad
dated 19th February, 1970 reversing in a second appeal the first
appellate decree passed on 1st June, 1966 by the District Judge,
Rae Bareli in confirmation of the decree of the trial Court. The ~.
prayer made by the plaintiffs in the snit, which was dismissed by the
D first two Courts, was to the effect that a sale-deed executed on 14th
February, 1964 (Exhibit A-1) by defendant No. 2 in favour of defen· •
dant No. 1 in respect of a portion of a block of houses situated in
Rae Bareli, be cancelled, and that possession of that portion be
delivered to the plaintiffs who shonld also be awarded mesne profits.
While accepting the second appeal, the High Court decreed the suit
E except in regard to mesne profits.

2. Most of the facts giving rise to this appeal are undisputed
and may be briefly stated with reference to the following pedigree·
table :

F Sheo Dularey Misra·Radhika Devi (Plaintiff No. l)
I
Parmeshwar Din Mishra (Defendant No. 2)
I

Gajendra Narain Su nil
G (Plaintiff No. 2) (Plaintiff No. 3)

In the years 1916 and 1918 Sheo Dulary Misra (S.D. Mishra for
short), who was a leading lawyer at Rae Bareli, purchased a bloek
of Houses in that town by means of two sale-deeds (Exhibits 2 and
H 3), both executed by one Shambhu Dayal. In the year 1931 S.D.
Mishra filed a suit against his father and brothers for a declaration
k.c. KAPOOR v. RAbltiKA DEVI (Koshal, J.) 9 li

that he was the absolute owner of the Rae Bareli houses above A
mentioned as also of a 4 annas and 9 pies share in proprietory
Zamindari situated in Mohal Badri Prasad of village Tera Baraula
in Pargana and District Rae Bareli. On the 29th August 1931 a
decree based on a compromise (Exhibit 5) was passed in that suit to
the effect that S.D. Mishra was the exclusive owner of the Rae Bareli
houses and also of a half of the salid 4 annas and 9 pies share in the
Zamindari.

On the death of S.D. Misra in 1951, his entire property was mu-

-
tated in the name of defendant No. 2, both in the revenue records as
well as in the registers maintained by the Rae Bareli Municipal Com-
mittee. From then onwards till the date of the disputed sale·deed c
(Exhibit A-1) defendant No. 2 was in possession of the entire pro-
perty 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 the 12th January 1959 to one
Imam Ali for a consideration of Rs, 800 (viae Exhibit A-19). In
the years 1960 and 1961 defendant No. 2 constructed a one-storey D
building on a plot of land in Khurshid Bagh, Lucknow, where
he was employed as a clerk in the Department of Health of the
Government of Uttar Pradesh and where he was residing with his
wife and children.

The disputed sale-deed (Exhibit A-1) was executed by defen- E
dant No. 2 on the 14th February 1964 in respect ot the western
portion of the said block of houses for Rs. 6500 in favour of
K.C. Kapoor, defendant No. I who is the sole appellant before us.
In that sale-deed defendant No. 2 described himself as "exclusive
and complete owner" of the Rae Bareli property and claimed that
F
he was "in possession and occupation thereof with powers of transfer
of all kinds ......... ". The necessity for the sale was thus described
by him:

"I am constructing a house in Mohalla Khurshed Bagh
City Lucknow, the lower portion whereof has already been
constructed and for the construction of the upper portion G
whereof funds are required."

3. This litigation started on the 17th September 1964 with the
. institution of a suit by the three plaintiffs. It was claimed therein
that on the death of S. D. Misra, plaintiff No. I succeded H
to a half share in his property, being his widow, while the other half
912 siJPREME couilT RrPoRis [l 9sii i s.t.~.
A was inherited by defendant No.2 so, however, that his sons (plaintiffs
Nos. 2 and 3) had an interest therein by birth. In other words,
while half of the property left by S.D. Mishra was claimed
to belong exclusively to Radhika Devi, Plaintiff No. 1, in respect of
the other half the assertion was that it belonged to a coparcenary
consisting of defendant No. 2 and his two sons. The relief of
B possession of the property sold by virtue of sale-deed Exhibit A-1
was prayed for in consequence of the cancellation of that document
which was sought to be set aside for the reason that the transaction
covered by it was not for any necessity of the said family.

c
4. In the written statement the stand taken by defendant
No. I was that defendant No 2 was the sole owner of the entire
block of houses above mentioned and had full power to alienate the
same, but that even if it was proved to be coparcenary property as
--
alleged, the sale would still be good as it wa3 made for legal neces-
sity. In this connection the contents of paragraph 15 of the written
statement may be quated here with advantage :-
D
"That defendant No. 2 sold the house in suit for the
purpose of building a more profitable and advantageous
house at Lucknow and with a view to dispose of a cons-
truction which was old and in perilous condition and which
was of no persent utility. Even if the house in suit is pro-
ved to be joint family property the transfer is for legal neces-
sity by the Karta and is binding on the joint family and
the plaintiffs."

Two other material pleas were put forward in paragraph 14
and 16 of the written statement and are extracted below:
F
"i4. That defendant No. 2 represented to the answering
defendant No. I that defendant No. 2 was the sole
owner of house, a portion of which is the subjcct-
matter of dispute, and in fact he has all along been
acting as sole owner of the properties left by his father.
G The answering defendant No. 1 also made diligent and
reasonable enquiries about the right, title and interest
of defendant No. 2 and his sole power to transfer it,
and as such the answering defendant is a transferee in
good faith for considetation and without notice."
H
16. That defendant No. 2 executed the sale-deed in favour
of the answering defendant with the active consent and
K.c. KAPOOR v. RADHIKA DEVI (Kasha/, J.) 913

approval of plaintiff No. 1 and plaintiff No. I is estop- A
ped from asserting her right against it."

Statements of counsel for parties were recorded by the trial
court on the 27th April, 1965 when it framed 8 issues, of which
issues nos. 1 to 3, 5 and 7 were :
8
"I. Whether plaintiffs and defendant No. 2 formed a joint
family? If so, who was the Karla of the family ?

2. Whether plaintiffs Nos. 2 and 3 have interest in the
house in suit by birth ?

3. Whether defendant No. 2 had a legal necessity to sell c
the house ? If so, its effect ?

5. Whether defendant No. I is a transferee for value in
good faith and is entitled to protection of Section 41
.
.; of the Transfer of Property Act ?
D
7. Whether the suit by plaintiff No. I is barred by estop-
pel ?''
Statements of learned counsel for the parties were again re·
corded on 28th May 1965 and 31st May, 1965. On behalf of defen-
dant No. 1 a part of his case was stated like this : E

"Defendant is a purchaser for value in good faith and
without notice. In any view of the case the disputed por-
tion is not more than the share of Parmeshwar Din and the
alienation is valid and cannot be impeached by the plain-
tiffs. Disputed portion was sol1 with the active consent
and approval of plaintiff No. l and she is estopped from F
challenging the transaction,"

5. In its jugment the trial court held that all the three plaintiffs
and defendant No. 2 formed a joint Hindu family of which defen-
dant No. 2 was the Karla and that plaintiffs Nos. 2 and 3 acquired
an interest by birth in the property left by their grand-father. G
In deciding issue No. 3 the trial court took note of the
following facts :

(a) The joint Hindu family consisting of the three plaintiffs H
and defendant No. 2 received compensation for the
Zamindari,
914
•
SUPREME COURT REPORTS (1982) l S.C.11..

A (b) The family had income from the Zamindari.

(c) The family derived rent from the said block of houses.

(d) S.D. Misra was a successful lawyer, which circums-
tance made it probable that he had left behind some
•
8 cash in addition to other property.

(e) On 12th January 1959 defendant No. 2 received
Rs. 800 as consideration for the sale covered by
Exhibit A-19.

(f) Sanction for plan of the building of the Lucknow house
c (Exhibit A-21) was accorded by the Lucknow Muni-
cipality on 28th June 1960 and the building was com-
pleted in 1961.

(g) There is no evidence to show that defendant No. 2
,
had income of his own from which , he could save
D enough money to be spent on the said building.

(h) Plaintiff No. I, who was actively conducting the case
on behalf of the plaintiffs, and defendant No. 2, had
both stayed away from the witness-box.

E Taking all these facts into consideration the trial court conclu-
ded that the Lucknow house was the property of the said joint Hindu
family. It went on to point out that the disputed sale was an act of
good management in view of the following circumstances :

(i) The portion of the block of houses sold through exhi-
F bit A-I was in a dilapidated condition and on 14th
July 1964, i.e., Jess than 5 months after the sale, the
municipal authorities isssued a notice to defendant No. I
pointing out that the building purchased by him was
in a dangerous condition and requiring him to demolish
it within 3 days, so that defendant No. 2 was under
G an obligation to pull down the building and either
leave the site underneath un·built (which would have
meant a loss of some income to the family) or to con·
struct a new building thereon.

(ii) Construction of a building in Lucknow would have
H
been more rewarding income-wise than erecting one at
Rae Bareli.
K.C. KAPOOR v. RADHIKA DEVI (Koshal, J.) 915

(iii) Defendant No. 2 was employed at Lucknow and it was A
in the interest of the family to put on a second storey
in the house there.

The trial court concluded that the sale was, in the circumtances
above mentioned, for the benefit of the family and, therefore, for
legal necessity. B

Issue No. 5 was decided by the trial court against defendant
No. 1 for the following reasons :

• (a) Defendant No. I knew that the property sold to him

- had descended from S.D. Misra who had left behind a
widow and a son, so that defendant No. 1 could not
be regarded as a purchaser without notice of the fact
c
that the plaintiffs had an interest in the house.

(b) Defendant No. 1 did not consult any lawyer to make
sure that defendant No. 2 was the sole owner of the
property sold as asserted by the latter.

,. The trial court, therefore, held that defendant No. I was
not entitled to any protection under section 41 of the Transfer of
Property Act.
E
In relation to issue No. 7 the trial court remarked that it was
'"" the duty of defendant No. 1 to give the details of the mis-representa-
tion constituting estoppel in the written statement, which was not
done so that the evidence on the point could not be looked into.
Issue No. 7 was thus decided against defendant No. I.
F
Legal necessity for the disputed sale having been found by
the trial court to be established, it dismissed the suit with costs.

6. It is also necessary to recount at some length the findings
arrived at by the learned District Judge in appeal. The conclusions
reached by the trial court that the plaintiffs and defendant No. 2
formed a joint Hindu family and that the said block of houses G
belonged to that family were not challenged before him and the
main contest in the course of the first appeal embraced points of
legal necessity and estoppel as also the applicability of section 41 of
the Transf~r of Property Act to the facts of the case. Taking up
the last pomt first, the learned District Judge decided it against H
defendant No, l for the following two r~aso11s ;
916 SUPREME COURT REPORTS [1982] 1 S.C.R

A (a) Defendant No. I had had notice that the building in
dispute originally belonged to S.D. Misra and that the
latter died leaving behind a widow, a son and a grand-
son. Thus defendant No. 2 was posted with the know-
ledge that at the time of the sale in his favour persons
B other than defendant No. 2 had interest in the property
in dispute.

(b) Plaintiffs Nos. 2 and 3 were minors on the date of the
sale and even at the time of the institution of the suit
and could not, by reason of their minority, be deemed •
c to have consented to the ostensible ownership of the
property vesting in their father. -
On the question of estoppel, the learned District Judge dis-
cussed in detail the evidence produced before the trial court and
concluded that on 22nd January, 1964, when a sum of Rs. 1000 ~-·
n was paid by defendant No. I to defendant No. 2 as earnest money
through receipts Exhibit A.-26, plaintiff No. I gave her consent
to her transaction of sale in the presence of defendant No. I as
well as that of Radha .Krishan D.W. 5 and Gopal Nath Chopra,
D.W. 6, both of whom were attesting witnesses to that receipt.
He went on to hold that the trial court was in error when it refused
E to look into the evidence on the point with the observation that the
particulars of the consent of plaintiff No. I were not given in the
pleadings. The learned District Judge was firmly of the opinion
that the statement in para 16 of the written statement to the effect
that the sale had taken place with the active consent and approval
of plaintiff No. I was enough to raise the question of estoppel and
F that it was not necessary for defendant No. I to further mention in
his peladings the particulars of such consent or the details of the
evidence by which the same was to be proved. The learned District
Judge concluded that by reason of the consent given by plaintiff
No. I to tl.e sale, she was estopped from attacking disputed sale-
deed.
G
On the question of legal necessity, the District Judge took note
of all those facts which the trial court had taken into consideration,
as also of the following additional circumstances :
H
(a) Defendant No. 2 was the only adult male member of
the family at the time of the sale. He had throughout
k.c. KAPOOR v. RADHiKA DEVI (Koshai, J.) 917
been managing the property of his father and was the A
Karla of the joint Hindu family aforesaid.

(b) The sale had come about with the consent of plaintiff
No. I who was the only other adult member of the
family. B
In the result, the learned District Judge upheld the find-
' ing of the trial court that the Lucknow house belonged to the
joint Hindu family. He further held, for more or less the same
reasons as had weighed with the trial court in that behalf, that the
- sale was an act of prudence on the part of defendant No. 2 who
had wisely sold a dilapidated building, and instead of pulling it
c
down and incurring expense over its re-construction, had raised
money for the purpose of building the first floor of the new house
at Lucknow which was a big city as compared to the "small and
sleepy town" of Rae Bareli.
D
On the above findings, the first appeal was dismissed with
costs.

7. Before the High Court it was conceded on behalf of
defendant No. 1 that the widow of S.D. Misra had inherited half of
his property by reason of the provisions of section 3 of the Hindu E
Women's Right to Property Act, 1937 (for short the 1937 Act), that
she had become the full owner of that half share on the commence-
ment of the Hindu Succession Act in 1956 (hereinafter referred to
as the 1956 Act) and that she was, therefore, not bound by any sale
of her share effected by her son unless she was estopped from
challenging it. The learned Single Judge, therefore, at once took F
up the question of estoppel, reliance in support of which was placed
on behalf of defendant No. I on a portion of his own testimony as
DW-3 which when freely translated, would read thus :

"Parmeshwar Din told his mother that a portion of the
G
Rae Bareli house was in ruins and yielded low rent, that
the family (ham log) were residing at Lucknow and that he
wanted to sell a portion of the Rae Bareli house and make
the Lucknow house two-storeyed which would result in a
better rent yield and would also provide comfort for resi-
dence (of the family). Then Parmeshwar Din's mother said:
'It is your thing; do as you wish."
918 SUPREME cOIJRt REPORTS (198i] I s.c.R.

A The learned Single Judge was of the opinion that this state-
ment could not estop plaintiff No. I from challenging the sale in 'o
far as her share in the disputed house was concerned. His reasons
were:

"The above·cited statement of respondent No. 1
B (defendant No. I) does not indicate if the portion which
was being actually sold was then specified to appellant
No. I (plaintiff No. I) by respondent No. 2 (defendant
No. 2). So if in these circumstances she did not resist the
proposal saying that Parmeshwar Din was at liberty to do
as he chose since it was his property, it can by no means
c be construed to mean that she thereby readily agreed even
for the sale of her share by her son."

The question of legal necessity was also determined by the
learned Single Judge against defendant No. l with the following
findings: '- •
D
(a) There was no pleading by defendant No. I in his
written statement to the effect that the house at
Lucknow was the property of the said joint Hindu
family. Besides, in his deposition as DW-3, defendant
No. I had himself stated that to his knowledge
E Parmeshwar Din was the sole owner of that house.

(b) Merely because S.D. Misra possessed property and
cash at the time of his death and that property
continued to yield some income thereafter did not
furnish reasons enough for the Court to presume that
F the Lucknow house belonged to the joint Hindu
family. A presumption to that effect could only be
raised if it was shown that there was sufficient nucleus
for the acquisition of that house.

In view of the above findings the learned Single Judge
G cancelled sale deed Exhibit A-I and, accepting the appeal, passed a
decree for possession of the disputed property in favour of the
plaintiffs.

8. After hearing learned counsel for the parties at great
H length we have no hesitation in recording our disagreement with the
High Court on the findings reached by it in relation to both the
K.C. KAPOOR v. RAD lllKA DEVI (Koshai, J.) 9J9

points canvassed before it, namely, those of estoppel and legal A
necessity, and are fully satisfied that it stepped outside the limits of
its jurisdiction when it interfered with the conclusions of the fact
arrived at by the learned District Judge on the basis of fully accept-
able evidence and a correct appreciation thereof.
B
9. Before we proceed to detail our reasons for differing with
the view expressed by the High Court we would like to advert to
that aspect of the case which concerns the rights of plaintiff No. 1

• in the property inherited by her husband. The trial Court acted
on the assumption that the entire property left by S.D. Misra on his
death vested in the joint Hindu family consisting of his widow, son
and grand-sons. No challenge to this assumption was made before
c
the learned District Judge and the case proceeded on the basis that
it was correct. B-fore the High Court, however, the assumption was
assailed and, as already stated, it was conceded on behalf of defen-
dant No. I that plaintiff No. 1 sncceeded to a life estate in a half
share in the property of her husband in pursuance of the provisions D
of section 3 of the 1937 Act and that such an estate ripened into
• absolute ownership on the enforcement of the 1956 Act. This
concession, in our opinion, could be said to have been correctly
made only on the assumptions (I) that S.D. Misra died intestate or
that if he left a will, he devised a half share in the disputed house
to plaintiff No. I and (2) that the share to which plaintiff No. I E
succeeded was not relinquished in favour of defendant No. 2 or
otherwise transferred to him by her right up-to the time when the
disputed sale took,place.

10. We shall now take up the question of estoppel. Plaintiffs
Nos. 2 and 3 being minors that question does not arise in their case F
and it is only in relation to the half share of plaintiff No. I in the
disputed property that it calls for a decision. In this connection the
following facts which are undisputed may be taken note of:

(a) On S.D. Misra s death bis entire property was mutated
in the name of his son (defendant No. 2) to the G
exclusion of the former·s widow (Plaintiff No. I).

(b) Right up to the date of the disputed sale that property
was managed exclusively by defendant No. 2.
H
(c) No objection to the exclusion of her name from the
records of the revenue department or of the municipal
920 SUPREME couRt REPORTS [19s2j 1 s.c.il.
A committee or from the management was ever preferred
by plaintiff No. I who fully acquiesced in such
exclusion all through.

(d) Defendant No. 2 alone received compensation for the
Zamindari and sold a portion thereof as sole owner
8 (vide exhibit A-19) again without any objection on the
part of plaintiff No. I.

(e) When negotiations for the disputed sale were initiated,
defendant No. I enquired from defendant No. 2 as to
how the latter had acquired full ownership of the •
c propi::rty in dispute. The reply of defendant No. 2 as
contained in his Jetter from Lucknow dated 14th
January 1964 (exhibit A-25) was:

"Regarding our talks about the sale of my
house at Station Road, Rae Bareli and regarding
your enquiry about the title to the said house, I
D
have to inform you that I am the absolute owner
of the portion of house proposed to be sold."

"I own all responsibility and give you word
of honour that there is absolutely no dispute about
E my title to the portion proposed to be sold and
you should have no hesitation on that score.

"Further I may add that I realize the rent of
the shops which you can enquire from the
tenants."
p
Presumably defendant No. I was quite satisfied
with this reply and asked defendant No. 2 to furnish
copies of the municipal records which were shown to
defendant No. I on the 22nd Jannary 1964 at the
Lucknow residence of defendant No. 2.
G
(f) According to the testimony of defendant No. I as
DW-3 and of the two witnesses (Radha Krishan-DW-5
and Gopal Nath Chopra-DW-6) who attested receipt
exhibit A-26, it was at that stage that defendant No. I
H told his mother about the proposed sale and she
consented thereto. In the words of defendant No. 2
K.C. KAPOOR v. RADHIKA DEVI (Koshal, J.) 921

A
she declared : "It is your thing; do as you wish." The
evidence of these three witnesses was not challenged
during the course of their cross-examination.

These facts would conclusively show that by declaring in the
presence of defendant No. I that the property belonged to the defen- B
dant No. 2 and that he was at liberty to deal with it as he wished,
plaintiff No. I represented to defendant No. I that her son was the
sole owner of the property and that she had nothing to do with it.
Her declaration is, therefore, a clincher on the point of estoppel and
• we find it impossible to agree with the learned Single Judge when
he says that the declaration did nnt mean that defendant No. 2 had c
the permission of plaintiff No. I to deal with the latter's share of
the property. In our opinion the declaration does not suffer from
any such ambiguity as the learned Single Judge has read into. In
giving the details of the proposed sale the son had not told the
mother that he was selling only his own half share in that part of
the block of houses situated in Rae Bareli which was proposed to D
be sold. He said in clear terms that a portion of the Rae Bareli
house was to be sold and his mother declared that he was the sole
arbiter in the matter of the disposal of the property. There was no
proposal to sell only defendant No. 2's undivided half share nor did
any question arise of either defendant No. 1 purchasing it or
plaintiff No. 1 being consulted about it. In the absence of any E
qualifying words limiting the proposed sale to such a share, the
lady must be taken to have understood the statement made to her
by her son as carrying its plain meaning, i.e., that the sale was to
be of the entire portion chosen for the purpose and her consent
must be construed accordingly.
F
Learned counsel for the plain tiff vehemently argued that even
if the declaration made by plaintiff No. 1 be interpreted as we have
done, it would create no estoppel against her inasmuch as defendant
No. I had not acted on it but had purchased the property on the
strength of the representations made to him by defendant No. J.
Now ~t is true that defendant No. I had made enquiries regarding G
the title of defendant No. 2 to the property in dispute and the
latter had made an unequivocal representation that he alone was the
owner thereof, but then it was only after the lady had been consulted
and had told her son to go ahead with what he thought proper as
he was the owner of the property that receipt exhibit A-26 was B
execute\), Till then c!efendant No. I w~s not fully satisfied about
922 SUPREME COURT REPORTS [1982] l s.c.R.

A the title of defendant No. 2 and had not only raised the question
with defendant No. l at Lucknow but even afcer the assurance given
by the latter in communication exhibit A-25 insisted on the municipal
records being produced for his inspection. The inquiry into the
· title was, therefore, very much in progress when defendant No. 2
consulted his mother in the presence of defendant No. I. This was
B presumably done to ally the lurking suspicion in the mind of defen-
dant No. 2 as to the title to the entire property vesting in defendant
No. 2

It \\as contended on behalf of the plaintiffs that the representa-
tion made by the lady could not have been taken at its face value •
c by any prudent purchaser in view of tlie fact that one-half of the
property left by S.D. Misra had admittedly devolved on plaintiff -
No. 1. This contention suffers from two important infirmities.
Under section 3 of the 1937 Act, plaintiff No. I would have
succeeded to a half share only if S.D. Misra had died intestate. So
the question would be whether or not S.D. Misra left a will. The _.,._,
D concession made before the High Court on the point of inheritence
of a half share by plaintiff No, I was obviously based not on any
facts within the knowledge of defendant 'fo. I but on the circum-
stance that nobody had talked of any will by S.D. Misra. Whether
or not such a will was made was a fact specially within the knowledge
of plaintiff No. I and, as stated earlier, that she remained absent
E from the witness box so that the Court is left in the dark as to what
was the actual state of affairs. The onus of proof of the allegation
that she was the owner of a half share in the property at the time
of the sale was on her and she was duty bound to depose to facts
which would make section 3 aforesaid applicable to her case. Her
failure to depose to the existence thereof must result in a finding
F that she has failed to prove the issue.

Again, even if it be assumed that plaintiff No. l succeeded to
a half share in the property of S.D. Misra, there was no impediment
in the way of her relinquishing that share in favour of her son either
immediately after her husband's death or at any other point of time
G prior to the disputed sale. This aspect of the matter cannot be lost
sight of in view of the fact that on S.D. Misra's death all his property
was mutated in favour of his son to the exclusion of plaintiff No. I
and was all along being dealt with by him as its sole and absolute
owner without any objection whatsover having been raised by her
H at any point of time to such exclusion or dealing.
K.C. KAPOOR v. RADHIKA DEVI (Koshal, J.) 923

In the above situation defendant No. I was fully justified in A
accepting her word on the point of ownership, the said section 3
notwithstanding.

The above discussion of the evidence has been entered into
by us merely to show that the finding given by the learned District
Judge on the point of estoppel was eminently reasonable and that B
the short ground on which the High Court turned the tables on
defendant No. 1 was untenable. That finding of the District Judge
being a finding of fact and being based on good evidence, it was not
open to the High Court to interfere with it in a second appeal.

Before parting with the question of estoppel, we may briefly c
notice another contention put forward on behalf of the plaintiffs
whose learned counsel urged that no plea of estoppel could be
countenanced for the reason that no proper foundation was laid for
it in the pleadings. A combined reading of paragraphs 14 and 16
of the written statement, bower, furnishes a complete answer to the
contention. The representation said to have been made by plaintiff D

• No. 1 is set out in paragraph 14 while the plea that she was estopped
from contesting the sale is taken in paragraph 16. It is true that
the plea last mentioned is linked with "the active consent and
approval of plaintiff No. l" and not in so many words with the said
representation. It can also not be disputed that defendant No. I did
not specifically state that he purchased the disputed property in the E
belief that the representation was true and that he would not have
entered into the transaction but for that belief. Thus undoubtedly
the written statement is inartistically drafted and leaves much to be
desired, but then pleading• are not to be construed in such a

..
hypertechnical manner and what is to be seen is whether the allega-
F

..
tions made in paragrapns 14 and 16 gave sufficient notice to the
plaintiffs of what case they had to meet. In this connection we may
refer to the significant fact that no objection to the lack of parti-
culars was taken at the stage when issues were framed or later when
statements of parties' counsel were recorded on a subsequent occasion
or during the course of arguments addressed to the trial Court the
District Judge and the High Court. even though the issue of est;ppel G
was hotly contested before all three of them. All these circumitances
unmistakably indicate that the case put forward by defendant No. I
was throughout understood by the plaintiffs to be that it was
the. belief induced in him by the representation of plaintiff No. 1
which made him accept the title of defendant No. 2 as bein exclusive. H
In this view of the matter it is too late in the day for the plaintiffs
924 SUPREME COURT REPORTS (1982] I S.C.R.

A to raise the contention under consideration and we have no hesita•
tion in rejecting it as untenable.

ll. We may now attend to the controversy about the legal
necessity for the disputed sale. The contest on the point is restricted
to that half share of the property sold which belonged to the copar-
B cenary consisting of the son and grand-sons of S. D. Misra. In this
connection the High Court observed that not only defendant No. I
did not plead in his written statement that the Lucknow house was
the property of the coparcenary but that he also stated in the witness
box as DW-3 that co his knowledge defendant No. 1 was the sole
owner of that house. We are clearly of the opinion that the High
c Court erred in taking either of these circumstances as a minus point
for defendant No. I. In so far as the written statement is concerned it
contains a definite plea in para 15 to the effect that if the disputed
property is proved to joint be Hindu family property, its transfer was
made by the Karta for legal necessity so that it was binding on the
D family. Was it then incumbent on defendant No. 1 to further plead
how he propsed to prove the legal necessity? This question was
pointedly posed to learned counsel for the plaintiffs during the
course of arguments and although his answer was in the affirmative,
he could quote neither law nor precedent in support of the same.
•
E It may aiso be pointed out that no objection by the plaintiffs
was ever taken at any stage of the trial to any lack of particulars of
the legal necessity set up by defendant No. I in paragraph 15 of the
written statement. On the other hand they were fully posted about
what case they have to meet on the point by reason of the contents
of that paragraph itself in which it was specifically asserted that the
F disputed house was sold by defendant No. 2 "for the purpose of
building a more profitable and advantageous house at Lucknow and
with a view to dispose of a construction which was old and in peri-
lous condition and which was of no present utility." In view of
...
this averment it was fully open to defendant No. I to prove by evi-
dence that putting up a second storey in the Lucknow house consti-
tuted legal necessity and, in the process, to establish that the
G Lucknow house was owned by the said coparcenary. Again, no
objection was taken at the evidence stage to the right of defendant
No. I to show that the Lucknow house was so owned and thereby
to prove the existence of legal necessity for the sale. No fault can
thus be found with the case of defendant No. 1 on the ground of
H his failure to take a specific plea in the written statement abount the
ownership of that house vesting in the coparcenary.
K.C. KAPOOR v. RADHIKA DEVI (Koshal, J.) 925

Nor was the High Court right in putting the construction that A
it did on the testimony of defendant No. I as DW-3 to the effect
that to his knowledge defendant No. 2 was the sole owner of the
Lucknow house. Obviously all that he meant was that according to
such knowledge as he had, the Lucknow house vested in the exclu-
sive ownership of defendant No. 2; and that knowledge,. in the
circumstances of the case, could be no more than a belief arising
B
from what he was told by defendant No. 2 who had been at pains
to stake his claim to the exclusive ownership of all the property
under his control, including the property left by his father. In this

... connection we cannot lose sight of the fact that defendant No. I
was a total stranger to the family of the plaintiffs and in the very
c
nature of things could not have had any personal knowledge referable
to the actual manner in and the precise source from which either the
Lucknow house or, for tha1 matter, the Rae Bareli property was acqui-
red, such manner and source being within the special knowledge of
plaintiff No. I and defendant No. 2 only. That part of the deposi-
tion of defendant No. I which the High Court has pressed into
service against him, cannot, therefore, form the basis of solution to
D
the question of the ownership of the property .

• 12. In the present case both plaintiff No. I and defendant
No. 2 have stayed away from the witness-box and have thus depri-
ved the Court of the only real evidence which could throw light on
the source of the consideration paid for the purchase of the Luck- E
now house. There may be some force in the argument that no duty
was cast upon defendant No. 2 to appear as a witness in as much
as he was not a contesting party, but than such an excuse is not open
to plaintiff No. I who was activeli contesting the case in the trial
Court on behalf of herself and her two grand-children. It is in the
light of this significant circumstance that the Court must decide F
whether or not defendant No. l has been able to discharge the bur-
den of proving that the Lucknow house was purchased with joint
Hindu family funds. This important aspect of the matter was comp-
' . letely lost on the High Court although it was an unassailable
ground when it formulated the proposition that before a presump-
tion could be raised that a property acquired by a member of a G
~oint Hindu family could be regarded as the property of the family,
1t must be shown that the family owned other property which could
be regarded as a nucleus providing a sufficient source for the later
acquisition. Furthermore, in assessing the evidence on that point
the High Court referred only to two facts, namely, that S.D. Misr~ H
left immovable property and cash at the time of his death and that
926 SUPREME COURT REPORTS [1982] l S.C.R.

A property continued to yield some income thereafter, but paid no
heed to at least three other important circumstances which bad been
listed by the trial court in support of the finding that a sufficient
nucleus for the purchase had been proved. Those circumstances
are:

B (a) The family received compensation for the Zamindari.

(b) On 12th January 1959, defendant No. 2 received
Rs. 800/- as consideration for the sale covered by
exhibit A-19.

c
-
(c) No evidence had been produced to show that defen-
dant No. 2 had income of his own from which he
could have saved enough money to be spent on the
Lucknow buildmg.

We may add that there is definite evidence in the form of
D exhibit A-99 to the effect that in 1965 the family of defendant No. 2
consisted of nine souls and that he was then holding a subordinate
position in the office of the Director of Health Service, U.P., at
Lucknow with a salary of no JLore than Rs. 240 per mensem. It
goes without saying that his salary was to meagre to have sufficed
•
for the maintenance of the family and that any savings therefrom
E were out of question.

Although each of the facts just above taken note of, when
considered in isolation, may not enable the Court to rdse a presum-
ption of the sufficiency of the requisite nucleus, collectively they
constitute a formidable array and practically a clincher in favour of
F such a presumption, especially in the absence of any attempt on the
part of the plaintiffs to produce evidence showing that defendant
No. 2 had any source of income of his own other then his salary.
And then the failure (referred to above) of plaintiff No. I to step into
the witness·box is enough for the Court to raise another presumption,
namely, that her deposition would not have supported the plaintiffs' '<
G case. The onus of proof of the issue on the defendant was, there-
fore, very light and stood amply discharged by the facts noted in
that behalf by the trial court, with whose finding on the point the
first appellate court concurred. No case at all was thus made out
for interference by the High Court with that finding.
H
13. The High Court did not express any dissent from the
conclusion concurrently reached by the trial court and the 1earned
K.C. KAPPOR v. RADHIKA DEVI (Koshal, J.) 927

District Judge that the disputed sale constituted an act of prudence A
on the part of defendant No. 2 and was on that account for the
benefit of the family. We find ourselves in full agreement with that •
conclusion which too is based on fully reliable evidence and follows
logically therefrom, as also with the reasons given by the two courts
in support thereof. However, we may point to another significant
factor which lends strength to that conclusion, the same being that B
defendant No. 2 was not only the Karla of the family and its sole
adult male member at the time of the sale but was also the father of
the only other two coparceners for whom he must naturally be
having great affection and whose interests he would surely protect
and promote, rather than jeopardise, there being no allegation by
the plaintiffs that he was a profligate or had other reason to act to c
their detriment.

14. The Lucknow house being the property of the joint
Hindu family consisting of defendant No. 2 and his sons and the
disputed sale being an act of good management, the latter must be
held to be justified by legal necessity, which expression, as pointed D
out in Nagindas Maneklal and Others v. Mohomed Yusuf Mitche/la,( 1)
is not to be strictly construed. In that case the facts were very

• similar to those obtaining here and may be briefly recapitulated .
A joint Hindu family had serveral houses, one of which was in
such a dilapidated condition that the Municipality required it to be
pulled down. The adult coparceners contracted to sell it to a third E
person. The joint family was in fairly good circumstances and it
was not necessary to sell the house which, however, could not be
used by the family for residence and would not have fetched
any rent. In a suit for specific performance of the contract
to sell instituted by the purchaser, the minor coparceners contended
that the contract did not affect their interest in the absence of F
"necessity" for the sale. In repelling the contention, Shah, J., who
delivered the leading judgment of the Division Bench, referred to
the manner in which the expression kutumbarthe had been construed
by Vijnanesvara in the Mitakshara and observed :

"The expression used must be interpreted with due G
regard to the conditions of modern life. I am not at all sure
that Vijnanesvara intended to curtail the scope of the word
kutumbarthe while explaining it. I do not see any reason
why a restricted interpretation should be placed upon the
word 'necessity' so as to exclude a case like the presnt in H
(1) ILR(1922) 46 Bombay :m.
928 SUPREME COURT REPORTS (1982] I S.C.R..

A which defendants Nos. I and 2, on all the facts proved,
properly and wisely decided to get rid of the property
which was in such a state as to be a burden to the family.
I think that the facts of the case fairly satisfy the test."

Fawcett., J., who agreed with these observations added a
ll separate short note of his own and relied upon the following passage
in Hunoomanpersaud Pandey v. Mussumat Babooee Munraj
Koonweree,(')

"But where, in the particular instance, the charge is
one that a prudent owner would make, in order to benefit
the estate, the bona fide lender is not affected by the pre-
...
c cedent mismanagement of the estate. The actual pressure
on the estate, the danger to be averted, or the benefit to be
conferred upon it, in the particular instance, is the thing to
-
be regarded."
(Emphasis supplied)
D
Although these remarks were made in relation to a charge
created on the estate of an infant heir by its manager under the
Hindu law, it is well settled that the principles governing an aliena-
tion of property property of a joint Hindu family by its Karla are
•
identical.
E
15. The perimeters of the expression kutumbarthe, as inter-
preted in Nagindas's case (supra) which meets with our unqualified, <
approval, fully embrace the facts of tre present case in so far as
legal necessity for the disputed sale is concerned.

F 16. In the result, the appeal succeeds and is accepted. The
judgment impuged before us is set aside and that of the District
Judge restored. There will be no order as to costs of the pro-
ceedings in this Court.

S.R. Appeal allowed.
G
(!) [1856] 6 Moo. I.A. 393.