TMI Blog1980 (1) TMI 207X X X X Extracts X X X X X X X X Extracts X X X X ..... n favour of the same mortgagee for a sum of ₹ 1,000 in respect of ten items of land including the land previously mortgaged under Exhibit 93. Both the mortgages were possessory mortgages but it appears from evidence that the land was leased back to the mortgagor for a stipulated rent. Parisa Chougule died on June 15, 1934 leaving behind him three sons, Bhupal an adult and Anna and Dhanpal, minors. On July 11, 1934, Bhupal borrowed a further sum of ₹ 131 and executed a simple mortgage Exhibit 91 in respect of the very ten items of land covered by Exhibit 92. On May 1, 1935, Bhupal purporting to act as the Manager of the joint family and the guardian of his minor brother executed a deed of sale Exhibit 90 in favour of Ganesh Datta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al by the second defendant the Assistant Judge, Kolhapur affirmed the finding of the Trial Court that there was legal necessity to the extent of ₹ 2600 only, that the value of the land was ₹ 4,000 and that there was no pressure on the estate justifying the sale. The Assistant Judge found that there was no evidence to show that the defendant made any bonafide enquiry to satisfy himself that there was sufficient pressure on the family justifying the sale. He however, held that the suit of the first plaintiff was liable to be dismissed as it was barred by limitation. He, therefore, modified the decree of the Trial Court by granting a decree in favour of the second plaintiff only for possession of a one third share in the lands subj ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e courts below that the sale was not binding on the plaintiffs. The courts below appeared to think that notwithstanding the circumstance that there was legal necessity to a large extent it was incumbent on the second defendant to establish that he made enquiry to satisfy himself that there was sufficient pressure on the estate which justified the sale. We are unable to see any substance in the view taken by the courts below. When the mortgagee is himself the purchaser and when the greater portion of the consideration went in discharge of the mortgagors, we do not see how any question of enquiry regarding pressure on the estate would arise at all. Where ancestral property is sold for the purpose of discharging debts incurred by the father an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s Court in Balmukand v. Kamla Wati Ors.(4) That was a suit for specific performance of an agreement of sale executed by the manager of the family without even consulting the other adult members of the family. The object of the sale was not to discharge any antecedent debts of the family nor was it for the purpose of securing any benefit to the family. The only reason for the sale of the land was that the plaintiff wanted to consolidate his own holding. The Court naturally found that there was neither legal necessity nor benefit to the estate by the proposed sale and the agreement therefore, could not be enforced. We do not see what relevance this case has to the facts of the present case. We accordingly allow the appeals and dismiss the s ..... X X X X Extracts X X X X X X X X Extracts X X X X
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