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PETITIONER: K. C. KAPOOR

       Vs.

RESPONDENT: RADHIKA DEVI (DEAD) BY L. RS. & OTHERS

DATE OF JUDGMENT15/10/1981

BENCH: KOSHAL, A.D. BENCH: KOSHAL, A.D. ERADI, V. BALAKRISHNA (J) MISRA, R.B. (J)

CITATION:  1981 AIR 2128            1982 SCR  (1) 907  1981 SCC  (4) 487        1981 SCALE  (3)1565

ACT:      Second Appeal-It  is not open, in second appeal, to the High Court  to interfere  with the finding of facts based on good evidence  of the  trial court-Code  of Civil Procedure, section 100.

HEADNOTE:      Estoppel by  conduct and  construction or  pleadings in the absence of an application under order Xl C.P.C.      Sale  for   legal  necessity   of  joint  Hindu  family property-"Kutumbarthe" explained.      Sheo Dularey  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 Sunil. 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 onwards, 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 purchased  by his  late father, to the appellant vide sale deed  Exhibit A  l. In  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 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 whereof funds are required."      On 17-9-1964  his mother  (Plaintiff No. 1) and his two sons (Plaintiff  Nos. 2  & 3) instituted a suit claiming the

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share in the said property and to have the 908 sale covered by Exhibit A-l 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 District Judge failed. But the High Court, accepting a second appeal cancelled sale deed Exhibit A-l and  passed a  decree for  possession  of  the  disputed property in favour of the plaintiffs. Hence the appeal after obtaining spccial leave.      Allowing the appeal, the Court, ^      HELD :1  :1 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 good 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 pleadings. A combined reading of paragraphs 14 and 16 of the written statement gave sufficient notice to the  plaintiffs   of  what   case  they  had  to  meet.  The representation said  to have been made by plaintiff No. 1 is set out  in paragraph  14,  while  the  plea  that  she  was estopped from  contesting the sale is taken in paragraph 16. Undoubtedly, the written statement is inartistically drafted and leaves much to be desired, but then pleadings are not to be  construed  in  a  hypertechnical  manner.  In  fact,  no objection to  the lack of particulars 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 estoppel was  hotly contested  before all three of them. All these circumstances  unmistakably indicate that the case put forward 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. I which made him accept the title of defendant No. 2 as being exclusive. [923 C-H]      l: 3.  The declaration  of  plaintiff  No.  1,  in  the presence of the appellant, 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 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 must  result in  a finding that she has failed to prove the issue. [922 E-F]

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909      1: 5.  In view of the fact that on Shiv Dularey 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 whatsoever  having been raised by her at any point of  time   to  such  conclusion  or  dealing  leads  to  the presumption that  plaintiff No. I had relinquished her share in favour  r 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 said section 3 notwithstanding. [922 G-H, 923 A]      2: 1. 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 was specifically asserted that  the disputed  house was sold by defendant No. 2, "for  the purpose  of  building  a  more  profitable  and advantageous 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  1) 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 manner  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 whom  had stayed  away  from  the 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  family and its sole adult male member at the time of the sale  but was  also the  father of  the only  other  two copartners 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  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  ’G of good management, the sale is "Kutumbarthe" and justified by legal necessity. [927 C-D]      Nagindas  Maneklal   and  others   v.   Mohomed   Yusuf Mitchella, ILR (1922) 46 Bombay 312, approved and applied.      Hunoomanpersaud  Pandey   v.  Mussumat  Babooee  Munraj Koonweree, (1856) 6 Moo. I.A. 393, referred to. 910

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JUDGMENT:  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.      G.L. Sanghi and R.P. Gupta for the Appellant.      G.C. Mathur and C.P. Lal for Respondent Nos. 2 & 3.      The Judgment of Court was delivered by      KOSHAL. J. This is an appeal by special leave against a judgment 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  suit, which  was dismissed  by the 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 defendant 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 should also be awarded mesne profits. While accepting the second appeal, the High  Court decreed  the suit  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:      Sheo Dularey Misra-Radhika Devi (Plaintiff No. 1)                Parmeshwar Din Mishra (Defendant No. 2) Gajendra Narain                                        Sunil (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  block of  Houses in  that town  by means of two sale-deeds (Exhibits  2 and 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 911 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 l951, his entire property was mutated  in the  name of  defendant No.  2, both  in the revenue records  as well  as in  the registers maintained by the Rae  Bareli Municipal  Committee. From then onwards till the date  of the  disputed sale-deed (Exhibit A-I) defendant No. 2  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 the 12th January 1959 to one Imam Ali for a consideration of Rs, 800 (vide Exhibit A-19). In the  years 1960  and 1961  defendant No.  2 constructed a one-storey 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 defendant No.  2 on the 14th February 1964 in respect of the western portion  of the said block of houses for Rs. 6500 in

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favour of  K.C. Kapoor,  defendant No.  1 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 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 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.  1 succeded  to a  half share in his property, being his widow, while the other half 912 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 a possession of the  property sold by virtue of sale-deed Exhibit A-l 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.      4.  In   the  written  statement  the  stand  taken  by defendant No.  1 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  was  made  for  legal  necessity.  In  this connection the  contents of  paragraph  15  of  the  written statement may be quoted here with advantage:-           "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 construction which was old and in perilous      condition and  which was of no persent utility. Even if      the house in suit is proved to be joint family property      the transfer is for legal necessity 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:      "14. That defendant  No. 2 represented to the answering           defendant No.  1 that defendant No. 2 was the sole           owner of  house, a portion of which is the subject           matter of  dispute, and  in fact  he has all along           been acting  as sole  owner of the properties left           by his  father. The answering defendant No. I 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 consideration and without notice."      16.  That defendant  No. 2  executed the  sale-deed  in           favour of  the answering defendant with the active           consent and 913           approval of plaintiff No. I and plaintiff No. 1 is           estopped from asserting her right against it."      Statements of  counsel for parties were recorded by the

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trial court on the 27th April, 1965 when it framed 8 issues, of which issues nos. I to 3, S and 7 were:      "1.  Whether plaintiffs  and defendant  No. 2  formed a           joint family  ? If  so, who  was the  Karta 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 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 ?      7.   Whether the  suit by  plaintiff No. 1 is barred by           estoppel ?"      Statements of  learned counsel  for  the  parties  were again re  corded on  28th May  1965 and  31st May,  1965. On behalf of defendant 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  portion   is  not  more  than  the  share  of      Parmeshwar Din  and the  . alienation  is valid and can      not be  impeached by  the plain tiffs. Disputed portion      was sold  with  the  active  consent  and  approval  of      plaintiff No.  l and  she is  estopped from 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 defendant  No. 2  was the  Karta  and  that plaintiffs Nos. 2 and 3 acquired an interest by birth in the property left by their grand-father.      In deciding  issue No.  3 the  trial court took note of the following facts:      (a)  The joint  Hindu family  consisting of  the  three           plaintiffs   and    defendant   No.   2   received           Compensation for the Zamindari, 914      (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 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 (Exhibit  A-21) was  accorded by the Lucknow           Municipality on  28th June  1960 and  the building           was completed in 1961.      (g)  There is  no evidence to show that defendant No. 2           had income  of his  own from  which he  could save           enough money to be spent on the said building      (h)  Plalntiff No.  1, who  was actively conducting the           case on  behalf of  the plaintiffs,  and defendant           No. 2, had both stayed away from the witness-box.      Taking all  these facts  into consideration  the  trial court concluded  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           exhibit A-I  was in a dilapidated condition and on           14th July 1964, i.e., less than 5 months after the           sale, the  municipal authorities  isssued a notice

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         to defendant  No.l 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 & 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 construct a           new building thereon.      (ii) Construction of  a building  in Lucknow would have           been more  rewarding income-wise than erecting one           at Rae Bareli. 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. 13      Issue No.  5 was  decided by  the trial  court  against defendant No. I 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. I could           not be  regarded as  a purchaser without notice of           the fact  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.      In relation  to issue  No. 7  the trial  court remarked that it  was the duty of defendant No. I to give the details of  the  mis-representation  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. 1.      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 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 Transfer of Property Act to the facts of the case. Taking up  the last  point first, the learned District Judge decided it  against defendant  No. I  for the  following two reasons; 916      (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  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  to  have  consented  to  the

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         ostensible ownership  of the  property vesting  in           their father.      On the question of sextuple, the learned District Judge discussed in  detail the  evidence produced before the trial court and  concluded that  on 22nd January, 1964, when a sum of Rs.  1000 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. S  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 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 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 the  sale,  she  was  estopped  from attacking disputed sale- deed.      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:      (a)  Defendant No.  2 was the only adult male member of      the family at the time of the sale. He had throughout 917           been managing  the property  of his father and was           the Karta of the joint Hindu family aforesaid.      (b)  The sale  had  come  about  with  the  consent  of           plaintiff No.  1 who  was  the  only  other  adult           member of the family. B      In the  result, the  learned District  Judge upheld the finding 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 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.      On the  above findings,  the first appeal was dismissed with costs.      7.   Before the High Court it was conceded on behalf of defendant No.  I that  the widow of S.D. Misra had inherited half of  his property by reason of the provisions of section 3 of  the Hindu  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 commencement 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 up the question of  estoppel, reliance  in  support  of  which  was placed on  behalf of defendant No. l on a portion of his own testimony as  W-3 which  when freely  translated, would read thus:           "Parmeshwar Din  told his mother that a portion of

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    the   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  residence (of  the  family).      Then Parmeshwar  Din’s mother  said: ’It is your thing;      do as you wish." 918      The learned  Single Judge  was of the opinion that this statement could  not estop  plaintiff No. I from challenging the sale  in so  far as  her share in the disputed house was concerned. His reasons were:           "The above-cited  statement of  respondent  No.  1      (defendant No.  I) does  not indicate  if  the  portion      which was  being actually  sold was  then specified  to      appellant No.  I (plaintiff  No. 1) 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 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. 1 with the following findings:      (a)  There was  no pleading  by defendant  No. 1 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.  1 had  himself stated  that to  his           knowledge 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 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 cancelled sale  deed Exhibit  A-l 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  length   we  have  no  hesitation  in  recording  our disagreement with  the High Court on the findings reached by it in relation to both the 919 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 acceptable evidence and a correct appreciation thereof.      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.  I 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 the learned  District Judge  and the  case proceeded  on the

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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  defendant No. I that plaintiff No. I succeeded to  a life  estate in a half share in the property of her  husband in  pursuance of the provisions 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  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  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  his  entire  property  was           mutated in  the name  of his son (defendant No. 2)           to the  exclusion of the former’s widow (Plaintiff           No. 1).      (b)  Right up  to the  date of  the disputed  sale that           property was  managed exclusively by defendant No.           2.      (c)  No objection to the exclusion of her name from the           records  of  the  revenue  department  or  of  the           municipal 920           committee  or   from  the   management  was   ever           preferred by  plaintiff No. 1 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  (vide   exhibit  A-19)  again  without  any           objection on the part of plaintiff No. 1.      (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 . property in dispute. The reply           of defendant No. 2 as contained in his letter 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           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 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."           Presumably defendant  No. 1  was  quite  satisfied      with this  reply and  asked defendant  No. 2 to furnish      copies of  the municipal  records which  were shown  to      defendant No. 1 on the 22nd January 1964 at the Lucknow      residence of defendant No. 2. (f)  According to  the testimony  of defendant No. 1 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

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    was at  that stage  that defendant No I told his mother      about the  proposed sale  and she consented thereto. In      the words of defendant No. 2 921           she declared:  "It is your thing; do as you wish."           The A  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.  1  that  the  property belonged to  the defendant  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 not mean that defendant  No. 2  had 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  l? 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.  I purchasing it  or plaintiff  No. I being consulted about it. In the absence of any 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.      Learned counsel  for the  plaintiff  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. 1 had not acted on it but had  purchased the  property  on  the  strength  of  the representations made  to him by defendant No. 1. G Now it is true that  defendant No.  I had made enquiries regarding 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 executed. Till then defendant No. I was not fully satisfied about 922 the title  of defendant  No. 2  and had  not only raised the question with  defendant No. I at Lucknow but even after 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. 1. This was presumably done to ally the lurking suspicion in the mind of defendant No. 2 as to  the title to the entire property vesting in defendant No. 2      It was  contended on  behalf of the plaintiffs that the representation made by the lady could not have been taken at its face  value by any prudent purchaser in view of the fact

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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 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 No. 1 but on the circumstance 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 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 that  she  has failed to prove the issue.      Again, even  if it  be assumed  that  plaintiff  No.  I 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 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.  1 and was all along being dealt with by  him as  its sole  and absolute  owner  without  any objection whatsover  having been  raised by her at any point of time to such exclusion or dealing. 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 not withstanding.      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 the short ground on which the High  Court  turned  the  tables  on  defendant  No.  I  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 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, hower, furnishes  a complete  answer to  the contention. The representation said  to have been made by plaintiff No. I 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. I’’ 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 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 pleadings are not to

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be construed  in such a hypertechnical manner and what is to be seen is whether the allegations made in paragraphs 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 particulars 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 estoppel  was  hotly contested before  all three of them. All these circumstances 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. l which made him accept the title of defendant No. 2  as bein  exclusive. In  this view of the matter it is too late in the day for the plaintiffs 924 to raise  the contention  under consideration and we have no hesitation in rejecting it as untenable.      11. 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 coparcenary 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 to  his knowledge defendant No. I was the sole owner of  that house. We are clearly of the opinion that the High Court  erred in taking either of these circumstances as a minus  point for defendant No. 1. 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 family. Was  it then incumbent on defendant No. I 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.      It may  also 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 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 perilous condition and which was of no present utility." In view of this averment it was fully open to defendant  No. 1  to prove  by evidence that putting up a second  storey   in  the  Lucknow  house  constituted  legal necessity and, in the process, to establish that the 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. l  on the  ground of his failure to take a specific plea in the  written statement abount the ownership of that house vesting in the coparcenary.

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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 exclusive ownership of defendant No. 2; and that knowledge, in the circumstances of the case,  could be  no more than a belief arising 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. 1 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 manner 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. I  and defendant  No. 2 only. That  part of  the deposition of defendant No. I which the High Court has pressed into service against him, cannot, therefore, form the basis of solution to the question of the ownership of the property.      12. In  the present  case  both  plaintiff  No.  l  and defendant No.  2 have  stayed away  from the witness-box and have thus deprived the Court of the only real evidence which could throw  light on  the source  of the consideration paid for the  purchase of  the Luck- 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.  1 who was actively 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 whether  or not  defendant No. l has been able to  discharge the  burden of  proving that  the Lucknow house was  purchased with  joint Hindu  family  funds.  This important aspect  of the  matter was  completely lost on the High Court  although it  was an  unassailable ground when it formulated the  proposition that  before a presumption could be raised  that a  property acquired  by a member of a joint Hindu family  could be  regarded  as  the  property  of  the family, it  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.  Misra left immovable property  and cash  at the  time of  his death and that 926 property continued to yield some income thereafter, but paid no heed  to at  least three  other  important  circumstances which had  been listed  by the trial court in support of the finding that  a sufficient nucleus for the purchase had been proved. Those circumstances are:      (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-l9.      (c)  No  evidence   had  been  produced  to  show  that           defendant No.  2 had  income of his own from which           he could  have saved  enough money  to be spent on           the Lucknow building.

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    We may  add that there is definite evidence in the form of 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 more 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  were  out  of question.      Although each  of the  facts just  above taken note of, when considered  in isolation,  may not  enable the Court to raise a  presumption of  the sufficiency  of  the  requisite nucleus, collectively they constitute a formidable array and practically a  clincher in  favour of  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’ case. The onus of proof of the issue on the defendant was, therefore, 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.      13. The High Court did not express any dissent from the conclusion concurrently  reached by  the trial court and the learned 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 defendant No. 2 was not only the Karta 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 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  out in  Nagindas Maneklal and others v.  Mahomed Yusuf Mitchella,(1) is not to be strictly construed. In that case the facts were very similar to those obtaining here  and may  be briefly recapitulated. The 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 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 "necessity" for the sale. In repelling the contention, Shah, J., who  delivered the  leading  judgment  of  the  Division

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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      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 present in 928      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 separate  short note  of  his  own  and  relied  upon  the following passage  in  Hunoomanpersaud  Pandey  v.  Mussumat Babooee Munraj Koonweree,(1)           "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  no.      affected by  the precedent 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 rearded."                                         (Emphasis supplied)      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 alienation of property property of a joint Hindu family by its Karta are identical.      15. The  perimeters of  the expression  kutumbarthe, as interpreted in  Nagindas’s case (supra) which meets with our unqualified,  approval,  fully  embrace  the  facts  of  the present case  in so  far as legal necessity for the disputed sale is concerned.      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 ccedings in this Court. S.R.                                   Appeal allowed. 929