1. The defendant, who has purchased the suit property from the father of the plaintiffs, representing himself and them being minors, has filed this appeal challenging the decision of the lower Appellate Court in decreeing the suit for partition and separate possession filed for 2/3rd share.

2. At the time of admitting the second appeal, the following substantial question of law has been framed:

(a) Is not the father of the respondents entitled to alienate the ancestral property including the sons interest for the benefit of the family and also for their welfare

(b)Are not the respondents bound to prove that their father alienated the ancestral property for illegal or immoral purposes.

(c)Is not the burden on the respondents to prove that the alienation of the ancestral property by their father was not their benefit and the benefit of the family.

(d)Is not the appellant entitled to claim the alienated property as a share of his alienor against the non-alienated co-owner in the suit filed by the non-alienated co-owner for setting aside the alienation and partition by way of equitable consideration.

3. Facts in brief :

In order to decide the issues raised in this appeal, the factual matrix involved requires a proper narration ;

3.1. Under Exhibit A-1, dated 10.11.1988, a registered sale deed has been executed by the father of the plaintiffs on his part as well as representing them as the Kartha of the family indicating the legal necessity and the interest of the minor children. The sale consideration under Exhibit A-1 was Rs. 4,050/-. After the execution of the sale deed, the father of the plaintiffs died. Thereafter, the plaintiffs filed the suit for partition and separate possession, represented by their mother as they were minors at the point of time, contending that there was no legal necessity for the sale and their father was leading an immoral life by indulging in drinking and for that purpose, the suit property has been sold. It has been further stated that the suit property has been in possession and enjoyment of the plaintiffs. The plaint also proceeds on the basis that a legal notice has been given on behalf of not only the plaintiffs but also other sisters to the defendant seeking for partition. Since the request was refused, the plaintiffs were constrained to file the suit.

4. A written statement has been filed by the defendant stating that he is a bona fide purchaser for consideration and the statement that the plaintiffs father was leading an immoral life by using the money in drinking is not true. The defendant in pursuant to the sale under Exhibit A-1, has been in possession and enjoyment of the suit property by improving the same. The sale proceeds have been used for the benefit of the minors and for family necessity. The suit has been filed without any bona fides with the sole intention of getting more money.

5. The plaintiffs filed Exhibits A-1 to A-15 in support of their case, whereas Exhibits B-1 and B-2 were marked on behalf of the defendant. Four witnesses have been examined on behalf of the plaintiffs and as against the three on behalf of the defendant.

6. The trial Court by considering the averments made in Exhibit A1, together with the evidence of D.Ws.2 and 3 as against P.Ws.1 to 4 was pleased to dismiss the suit by holding that the averments that the plaintiffs father was leading an immoral life was not true. The said judgment and decree of the trial Court was reversed by the lower Appellate Court basing reliance upon the evidence of P.Ws.1 to 4. Challenging the same, the present appeal has been filed.

7. Findings of the trial Court:

The Trial Court rejected the evidence of P.Ws.1 and 2 as interested witnesses. P.W.1 is the mother of the plaintiffs and P.W.2 is the brother-in-law. P.W.3 speaks about the other properties and income earned by the family. The evidence of P.W.4 has been rejected by the trial Court, as he has stated that he has been drinking for 1 to 3 years, while the father of the plaintiffs died much before the said period. The trial Court has rejected the evidence of P.W.4 by holding that his contention that he had been drinking with the plaintiffs deceased father cannot be true. Reliance had been made by the trial Court on Exhibit A-1, which clearly stipulates that the sale has been effected for the family necessity in order to perform the marriage of the daughter. The trial Court has made reliance upon D.Ws.2 and 3. D.W.2 is the attestor of the document executed, under Exhibit A-1, which is a registered one. D.W.3, who is a respectful person in the locality having held the post of President of the Village Panchayat, has stated that the deceased vendor, who is the father of the plaintiffs, was not leading an immoral life. The trial Court has given a further finding that in view of the categorical statement of P.W.1 that her deceased husband died in the hospital, nothing prevented her from producing any document to substantiate her case that the death was due to excessive drinking. The fact that there was a debt as submitted by P.W.3 has also been taken note of by the trial Court. The averments that the suit property has been sold for a lesser value has not been proved with any evidence. Even as per the evidence of P.W.1, the defendant has taken possession and improved the suit property after the sale. When the plaintiffs alleged that the deceased was leading an immoral life, it is for them to establish their case, which they have failed to do. Accordingly, the trial Court dismissed the suit.

8. Findings of the lower Appellate Court:

The lower Appellate Court decreed the suit by reversing the judgment and decree of the trial Court by substantially relying upon the evidence of P.Ws.1 to 4. The lower Appellate Court has held that the plaintiffs family was having sufficient properties augmenting income, as seen from the evidence of P.Ws.1 to 3. Therefore, it cannot be said that there was a family debt at the time of execution of Exhibit A1. The fact that the deceased was admitted in the hospital for stomach pain would lead to an inference that the death was due to excessive drinking. Even though both the parties have not proved the year of marriage of the eldest daughter, in view of the evidence of P.Ws.1 and 2, it has to be accepted that the marriage has been conducted by P.W.1. The defendant has not proved the fact that as to how the sale consideration was used to the family of the plaintiffs. Accordingly, the judgment and decree of the trial Court was reversed by the lower Appellate Court by decreeing the suit as prayed for.

9. Approach of the lower Appellate Court:

The lower Appellate Court has totally abdicated its duty imposed upon it under Order 41 Rule 31 and Section 96 of the Code of Civil Procedure. While the lower Appellate Court is the final Court of fact and law, this Court can only entertain the second appeal, when it involves a substantial question of law. It has to consider the entire evidence available on record and give a decision based upon the findings to the effect as to how the trial Court was wrong in its conclusion. The lower Appellate Court has not made any discussion over the factual findings rendered by the trial Court both on documentary and oral evidence.

10. The evidence of P.Ws.1 to 4 was discussed in detail by the trial Court for rejecting the same. There is nothing on record to suggest that the reasonings rendered by the trial Court were not correct. The trial Court has considered the demeanour of the witnesses and gave cogent and proper reasons for not accepting the same. Which the lower Appellate Court has never bothered to look into. Reliance has been made by the trial Court on the evidence of D.Ws.2 and 3, who are the attesting witness to Exhibit A-1 and an independent witness given by a man of repute. The lower Appellate Court has not bothered to consider the said evidence, which has been taken note of by the trial Court while dismissing the suit.

11. When the plaintiffs have alleged that there is an inadequate consideration under Exhibit A-1 and the trial Court has given a finding that there is nothing on record to substantiate the said case. The lower Appellate Court has not gone into the said issue. The evidence of P.W.1 has taken note of by the trial Court to the effect that the suit property has been handed over to the defendant in pursuant to the execution of Exhibit A-1 and substantial improvement has been made over the same has also been overlooked. It is pertinent to note that in the plaint, an averment has been made that the suit property has been in possession and enjoyment of the plaintiffs. The finding of the trial Court that when the plaintiffs alleged that their father was leading an immoral life and for that purpose alone, Exhibit A-1 has been executed, it is for them to prove the said factual assertion has been given a go by. The lower Appellate Court has fixed the reliance wrongly on the appellant to prove the facts, which the plaintiffs alone can establish. The finding of the lower Appellate Court that it is P.W.1, who conducted the marriage of the eldest daughter has no basis and the same is contrary to Exhibit A-1. More so, the onus is on P.W.1 to prove the same and not on the appellant. The fact that Exhibit A-1 itself speaks about the legal necessity, which is supported by the evidence of D.Ws.1 to 3 has not been taken note of. Admittedly, there was a debt even during the life time of the deceased father of the plaintiffs and when there is a case, it is for the plaintiffs to substantiate that the said debt has been obtained for immoral purposes. The findings of the trial Court that the evidence of P.W.4 cannot be looked into as his statement that he had been drinking along with the father of the plaintiffs could not be correct, since it has been stated by him that he was drinking only for 2 to 3 years and the deceased died even before that, has never been discussed by the lower Appellate Court. Therefore, this Court has got no hesitation to hold that the approach of the lower Appellate Court is based upon no evidence, contrary to the pleadings, irrelevant on deciding the consideration and therefore, liable to be set aside.

12. Whether the suit is a bona fide one

In the plaint itself, it has been specifically stated that the legal notice has been issued not only on behalf of the plaintiffs, but the sisters as well. The said averment by itself would show that the suit is not filed with any bona fide intention. When the sisters do not have a title, there is no occasion for issuing the legal notice on their part. The plaintiffs have not asked for the partition of other properties, in which, the sisters also have a share. It is no doubt true that the non inclusion of other properties belong to the other family would not bother the suit, but it speaks about the conduct of the parties. The suit has been filed even when the plaintiffs were minors representing by the mother, few years after the death of the father. The suit is also filed on the basis of averment that the plaintiffs are in possession, whereas the evidence of P.W.1 is very specific and clear that it is the appellant, who has been enjoying the suit property and has made improvement over the same. P.W.2 is none other than the brother-in-law, whos wife also was a party to the legal notice. The above said facts would clearly indicate that there is a lack of bona fides in filing of the suit.

13. Duty of the lower Appellate Court:

As discussed above, the lower Appellate Court is a final Court of fact and law. While deciding the appeal, which is a statutory one and continuation of the suit, the lower Appellate Court will have to keep in mind its responsibilities and duties. While there is no dispute that any appeal is a re-hearing of the suit and the Court can reappraise and review the entire evidence, it is bound to keep in mind the findings recorded by the trial Court on oral and documentary evidence. It should not forget that the trial Court had an advantage and opportunity of seeing the demeanour of the witnesses and therefore, the findings over the same normally shall not be disturbed. Hence, until and unless, the approach of the trial Court in its appraisal of the evidence is erroneous, contrary to the well established principles of law, the same cannot be set aside, more so, without giving reasons for the same.

14. In Sara Veeraswami v. Talluri Narayya, AIR 1949 PC 32 [LQ/PC/1948/55] : (1949) 1 MLJ 97 [LQ/PC/1948/55] the judicial committee of the privy council has stated as follows:

... but if the evidence as a whole can reasonably be regarded as jusfifying the conclusion arrived at the trial, and especially if that conclusion has been arrived at on conflicting testimony by a Tribunal which saw and heard the witnesses, the appellate Court will bear in mind that it has not enjoyed this opportunity and that the view of the trial Judge as to where credibility lies is entitled to great weight. This is not to determining which side is telling the truth or is refraining from exaggeration. Like other Tribunals, he may go wrong on a question of fact, but it is a cogent circumstance that a Judge of first instance, when estimating the value of verbal testimony, has the advantage (which is denied to Courts of appeal) of having the witnesses before him and observing the manner in which their evidence is given.

15. Similarly, in SarjuRamdeo Sahu Pershad v. Jwaleshwari Pratap Narain Singh AIR 1951 SC 120 [LQ/SC/1950/37] , the Honble Apex Court in paragraph 7 has stated as follows:

7. The question for our consideration is undoubtedly one of fact, the decision of which depends upon the appreciation of the oral evidence adduced in the case. In such cases, the appellate Court has got to bear in mind that it has not the advantage which the trial Judge had in having the witnesses before him and of observing the manner in which they deposed in Court. This certainly does not mean that when an appeal lies on facts, the appellate Court is not competent to reverse a finding of fact arrived at by the trial Judge. The rule is and it is nothing more than a rule of practice-that when there is conflict of oral evidence of the parties on any matter in issue and the decision hinges upon the credibility of the witnesses, then unless there is some special feature about the evidence of a particular witness which has escaped the trial Judges notice of there is a sufficient balance of improbability to displace his opinion as to where the credibility lies, the appellate Court should not interfere with the finding of the trial Judge on a question of fact.

16. The same ratio has been followed in SarjuRamdeo Sahu Pershad v. Jwaleshwari Pratap Narain Singh (supra) case referred to above in paragraph No. 15, which is as follows:

15. The duty of the appellate Court in such cases is to see whether the evidence taken as a whole can reasonably justify the conclusion which the trial Court arrived at or whether there is an element of improbability arising from proved circumstances which, in the opinion of the Court, outweighs such finding.

17. The Honble Apex Court has also held in the following judgments as follows:

(i) In RadhaPrasad Singh v. Gajadhar Singh AIR 1960 SC 115 [LQ/SC/1959/156] : (1960) 1 MLJ 33 [LQ/SC/1959/156] :

14. The position in law, in our opinion, is that when an appeal lies on facts it is the right and the duty of the appeal Court to consider what its decision on the question of facts should be; but in coming to its own decision it should bear in mind that it is looking at the printed record and has not the opportunity of seeing the witnesses and that it should not lightly reject the trial Judges conclusion that the evidence of a particular witness should be believed or should not be believed particularly when such conclusion is based on the observation of the demeanour of the witness in Court. But, this does not mean that merely because an appeal Court has not heard or seen the witness it will in no case reverse the findings of a trial Judge even on the question of credibility, if such question depends on a fair consideration of matters on record. When it appears to the appeal Court that important considerations bearing on the question of credibility have not been taken into account or properly weighed by the trial Judge and such considerations including the question of probability of the story given by the witnesses clearly indicate that the view taken by the trial Judge is wrong, the appeal Court should have no hesitation in reversing the findings of the trial Judge on such questions. Where the question is not of credibility based entirely on the demeanour of witnesses observed in Court but a question of inference of one fact from proved primary facts the Court of appeal is in as good a position as the trial Judge and is free to reverse the findings if it thinks that the inference made by the trial Judge is not justified.

(ii) In T.D. Gopalan v. Commissioner of Hindu Religious & Charitable Endowments , AIR 1972 SC 1716 [LQ/SC/1972/299] : (1972) 2 SCC 329 [LQ/SC/1972/299] : (1973) 1 MLJ 43 [LQ/SC/1972/299] ;

9. The High Court next proceeded to reproduce a summary of the statement of each of the witnesses produced by the defendants. No attempt whatsoever was made to discuss the reasons which the learned District Judge had given for not accepting their evidence except for a general observation here and there that nothing had been suggested in the cross-examination of a particular witness as to why he should have made a false statement. We apprehend that the uniform practice in the matter of appreciation of evidence has been that if the trial Court has given cogent and detailed reasons for not accepting the testimony of a witness the appellate Court in all fairness to it ought to deal with those reasons before proceeding to form a contrary opinion about accepting the testimony which has been rejected by the trial Court. We are, therefore, not in a position to know on what grounds the High Court disagreed with the reasons which prevailed with the learned District Judge for not relying on the evidence of the witnesses produced by the defendants.

(iii) In MadhusudanDas v. Narayanibai, AIR 1983 SC 114 [LQ/SC/1982/179] : (1983) 1 SCC 35 [LQ/SC/1982/179] :

8. At this stage, it would be right to refer to the general principle that in an appeal against a trial Court decree, when the appellate Court considers an issue turning on oral evidence it must bear in mind that it does not enjoy the advantage which the trial Court had in having the witnesses before it and of observing the manner in which they gave their testimony. When there is a conflict of oral evidence on any matter in issue and its resolution turns upon the credibility of the witnesses, the general rule is that the appellate Court should permit the findings of fact rendered by the trial Court to prevail unless it clearly appears that some special feature about the evidence of a particular witness has escaped the notice of the trial Court or there is a sufficient balance of improbability to displace its opinion as to where the credibility lies. The principle is one of practice and governs the weight to be given to a finding of fact by the trial Court. There is, of course, no doubt that as a matter of law if the appraisal of the evidence by the trial Court suffers from a material irregularity or is based on inadmissible evidence or on a misreading of the evidence or on conjectures and surmises the appellate Court is entitled to interfere with the finding of fact.

(emphasis supplied)

18. The above said settled position of law has also been followed and proved by a subsequent judgment of the Apex Court in JagdishSingh v. Madhuri Devi AIR 2008 SC 2296 [LQ/SC/2008/996] : (2008) 10 SCC 497 [LQ/SC/2008/996] : which is as follows:

36. Three requisites should normally be present before an appellate Court reverses a finding of the trial Court:

(i) it applies its mind to reasons given by the trial Court;

(ii) it has no advantage of seeing and hearing the witnesses; and

(iii) itrecords cogent and convincing reasons for disagreeing with the trial Court.

37. If the above principles are kept in mind, in our judgment, the decision of the High Court falls short of the grounds which would allow the first appellate Court to reverse a finding of fact recorded by the trial Court. As already adverted earlier, the High Court has virtually reached a conclusion without recording reasons in support of such conclusion. When the Court of original jurisdiction has considered oral evidence and recorded findings after seeing the demeanour of witnesses and having applied its mind, the appellate Court is enjoined to keep that fact in mind. It has to deal with the reasons recorded and conclusions arrived at by the trial Court. Thereafter, it is certainly open to the appellate Court to come to its own conclusion if it finds that the reasons which weighed with the trial Court or conclusions arrived at were not in consonance with law.

19. In a recent pronouncement while considering the scope of Order 41 Rule 31 of the Code of Civil Procedure, it has been held by the Apex Court in H. Siddiqui (Dead) by Lrs v. A. Ramalingam AIR 2011 SC 1492 [LQ/SC/2011/358] : (2011) 4 SCC 240 [LQ/SC/2011/358] : (2011) 4 MLJ 887 (SC) [LQ/SC/2011/358] as follows:

18. The said provisions provide guidelines for the appellate Court as to how the Court has to proceed and decide the case. The provisions should be read in such a way as to require that the various particulars mentioned therein should be taken into consideration. Thus, it must be evident from the judgment of the appellate Court that the Court has properly appreciated the facts/evidence, applied its mind and decided the case considering the material on record. It would amount to substantial compliance of the said provisions if the appellate Courts judgment is based on the independent assessment of the relevant evidence on all important aspect of the matter and the findings of the appellate Court are well founded and quite convincing. It is mandatory for the appellate Court to independently assess the evidence of the parties and consider the relevant points which arise for adjudication and the bearing of the evidence on those points. Being the final Court of fact, the first appellate Court must not record mere general expression of concurrence with the trial Court judgment rather it must give reasons for its decision on each point independently to that of the trial Court. Thus, the entire evidence must be considered and discussed in detail. Such exercise should be done after formulating the points for consideration in terms of the said provisions and the Court must proceed in adherence to the requirements of the said statutory provisions.

20. Therefore, following the ratio laid down in the judgments referred supra, this Court is of the view that the lower Appellate Court has not performed his duty and allowed the appeal by taking into consideration all irrelevant factors.

21. Power under Section 100 of the Code of Civil Procedure:

When the lower Appellate Court has abdicated its duty and allowed the appeal on extraneous and irrelevant consideration or that there is no evidence, then the power under Section 100 of the Code of Civil Procedure will have to exercise by the High Court by restoring the well merited judgment and decree of the trial Court, which has been rendered by a thorough appreciation of fact and law. When the findings of the lower Appellate Court are perverse, this Court findings can set aside the same and restore the well merited findings of the trial Court.

22. Considering the said principle, the Honble Apex Court in Dineshkumar v. Yusuf Ali AIR 2010 SC 2679 [LQ/SC/2010/587] : (2010) 12 SCC 740 [LQ/SC/2010/587] : 2010 (4) LW 783 [LQ/SC/2010/587] : (2010) 8 MLJ 786 [LQ/SC/2010/587] has held that in a case, where the findings are perverse, the power under Section 100 of the Code of Civil Procedure will have to be exercised. The following passage of the Honble Apex Court is apposite:

25. Thus, the law on the subject emerges to the effect that Second Appeal under Section 100 CPC is maintainable basically on a substantial question of law and not on facts. However, if the High Court comes to the conclusion that the findings of fact recorded by the Courts below are perverse being based on no evidence or based on irrelevant material, the appeal can be entertained and it is permissible for the Court to re-appreciate the evidence.

23. Applying the ratio laid down by the Honble Apex Court and in the light of the discussions made above, this Court is of the view that the judgment and decree of the lower Appellate Court warranting interference in exercise of the power under Section 100 CPC.

24. Burden of proof on immoral life:

The next question for consideration is as to whether on whom the burden of proof regarding the immoral life said to have been lead by the deceased father of the plaintiffs lies. It has been alleged in the plaint that the deceased father of the plaintiffs was leading an immoral life. It is to be seen that the suit was filed by the minors represented by the mother and not by the plaintiffs, after attaining majority. It is nobodys case that the deceased father was living separately. When the plaintiffs specifically alleged that the father was leading an immoral life and the sale consideration was used for that purpose, it is for them to substantiate their case. More so, when the document executed under Exhibit A-1, which is not disputed, specifically states about the family necessity supported by evidence of D.Ws.1 to 3. Certainly, the appellant cannot produce any evidence, which the plaintiffs alone can produce. It would be practically impossible for the appellant to produce any evidence to show that the deceased was leading an immoral life. However, in the case on hand, the appellant did produce an independent witness in support of his case, which was accepted by the trial Court. It is one thing to say that the appellant will have to make enquiries about the family necessity for the sale, but another thing to say that he has to establish the fact that the said amount has been utilised for the said purpose. Considering the issue, it has been held by a Division Bench of this Court in Santhanavenugopalakrishnanand Others v. K.V. Venugopal and Others (1976) 2 MLJ 134 as follows:

Further in cases like this, it would be a practical impossibility for the alience who is brought to the threshold of the Court on the facts adverted by the minor challenging coparcener to prove that the consideration which passed under one or other alienations made by the father-manager or the manager was rightfully or properly utilised by their vendors. It would be unreasonable to expect such meticulous proof of appropriation and treatment of such consideration nearly 15 or 20 years after the date of such alienation.

25. Hence considering the ratio laid down by the Honble Division Bench of this Court, which has been rendered basing reliance upon the judgment of the Honble Apex Court rendered in LuharAmrit Lal Nagji v. Doshi Jayantilal Jethalal and Others, AIR 1960 SC 964 [LQ/SC/1960/153] : (1962) 1 MLJ 134 [LQ/SC/1960/153] , this Court agrees with the submission of the learned counsel for the appellant by holding that as held by the trial Court, the onus is on the plaintiffs to show that the conduct of their father was immoral either before the execution of the sale or thereafter. It is also equally on them to show that the sale consideration was not utilised for the purpose, for which, the suit property has been sold.

26. Family necessity burden of proof:

Mr. V. Raghavacheri, learned counsel, placing reliance upon the judgments of the Honble Apex Court in Sunil Kumar and Another v. Ram Parkash and Others AIR 1988 SC 576 [LQ/SC/1988/20 ;] : (1988) 2 SCC 77 [LQ/SC/1988/20 ;] : BaljinderSingh v. Rattan Singh (2008) 16 SCC 785 [LQ/SC/2008/1608] : (2008) 7 MLJ 903 [LQ/SC/2008/1608] and that of this Court in P. Subramania Chettiar v. Tmt. Amirtham and Others (2002) 3 MLJ 718 submitted that the burden of proof is on the alienee to show that the sale was towards the family necessity and therefore, the judgment and decree of the lower Appellate Court will have to be sustained.

27. There is absolutely no difficulty in appreciating the exposition of law canvassed before this Court by the learned counsel. In a suit filed by the minor, it is for the alienee to satisfy the Court regarding the legal necessity and that he has made enquiries towards the same. But the question for consideration is the extent of proof and the onus on the alienee. It is no doubt true that the alienee has to prove the legal necessity, but it cannot be said that he has to prove the usage of the sale consideration. When there is a specific recital of the document that the sale is for a family necessity, which has not been disproved by the plaintiffs and the same has been supported by the evidence produced by the alienee, then, it can be safely concluded that he has discharged his burden. It is not necessary for the alienee to show that the every bit of consideration was actually used for the family necessity. The alienee can have no control over the usage of money after the sale, unless he is in possession to manage the same. Considering the said proposition of law, it has been held by the Honble Apex Court in Radhakrishnadasv. Kaluram AIR 1967 SC 574 [LQ/SC/1962/158] in the following manner:

Where an alienation, by way of sale of the family property made by a Hindu father is challenged by his sons on the ground of want of legal necessity then it is now well established that what the alienee is required to establish his legal necessity for the transaction and that it is not necessary for him to show that every bit of the consideration which he advanced was actually applied for meeting family necessity. The reason is that the alienee can rarely have the means of controlling and effecting the actual application of the money paid or advanced by him unless he enters into the management himself.

28. Following the said ratio, the Honble Division Bench in Santhanavenugopalakrishnanand Others v. K.V. Venugopal and Others (supra), has held in the following manner:

10. It is therefore, fairly clear that the challenges made by a minor in the matter of alienation or borrowing made by their elders including their father, cannot lightly be accepted by Courts unless the facts in each of those cases do satisfy the norms laid down by the various decisions cited above.

29. Therefore, this Court is of the view that applying the said ratio to the facts on hand, the lower Appellate Court has totally misconstrued the materials available on record in fixing onus on the appellant.

30. Effect of recitals in a document:

As discussed above, Exhibit A-1 clearly speaks about the purpose for which, the sale was effected, that is, for family necessity and the welfare of the children. The recitals are admissible in evidence. As they themselves do not clinchingly prove the legal necessity, they are very important factors to be taken into consideration. More so, when no sufficient evidence has been let in by the plaintiffs to rebut the recitals made.

31. It has been held in Raniv. Santa Bala AIR 1971 1028 as under:

Recitals in a deed of legal necessity do not by themselves prove legal necessity. The recitals are, however, admissible in evidence, their value varying according to the circumstances in which the transaction was entered into. The recitals may be used to corroborate other evidence of the existence of legal necessity. The weight of the existence of legal necessity. The weight to be attached to the recitals varies according to the circumstances.

32. The Apex Court in considering the very same issue has held, in Sunderdasand Others v. Gajananao and Others AIR 1997 SC 1686 [LQ/SC/1996/2194] : (1997) 9 SCC 701 [LQ/SC/1996/2194] , as follows:

No attempt was made in his evidence to get out the clear recitals in the sale deed that he had entered into the transaction for family necessity.

Hence, the ratio laid down by the Honble Apex Court in the above said two judgments would clearly show that the lower Appellate Court is totally erroneous.

33. In fine, the substantial questions of law raised are answered in favour of the appellant and against the respondents. Accordingly, the second appeal is allowed by setting aside the judgment and decree of the lower Appellate Court made in A.S. No. 68 of 1996 and restoring the judgment and decree of the trial Court made in O.S. No. 303 of 1994. However, there is no order as to costs.