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TMI Blog1970 (12) TMI 99X X X X Extracts X X X X X X X X Extracts X X X X ..... of the plaintiff and the defendant No. 1. 4. The plaintiff alleged that the alienation by the de facto guardian was not for necessity nor for consideration and was not binding upon her. Accordingly, she wanted the alienations to be set aside. 5. The defendants 1. 3. 4 and 5 contested; the defendants 1 and 5 filed one joint written statement, while the defendants 3 and 4 filed another. They contended that the sale was for legal necessity and the minor had benefited by the transaction. 6. The trial court found that the defendant No. 5 was the maternal uncle of the plaintiff. He found that Ext. C was not valid nor genuine. There was no necessity for the transaction and as such the plaintiff was not bound by the alienation. He further found that the defendant No. 1 acquired no title under Ext. C and accordingly Exts. A and B were also not operative. He however, came to hold that the suit was barred by limitation as it was filed on 14th May, 1960 and applying Article 44 of the old Limitation Act of 1908, the suit was beyond the period of limitation. The plaintiff was found to have attained majority sometime in 1952 and, therefore, the bar of limitation was applied. 7. The learned ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . The learned trial judge was clearly wrong in holding that the suit was barred by limitation once he found that the sale was not for legal necessity and did not bind the minor. 12. But in view of the finding recorded by the lower appellate court that the sale is for legal necessity, it now becomes necessary to examine as to whether that finding is correct. 13. Ordinarily such a finding is on a question of fact and in second appeal there would be no scope for interference. But in this case I am satisfied, as I would presently show that the learned appellate Judge has committed serious errors of record and has omitted to consider material features and aspects available from the record in coming to his conclusions. Therefore, I propose to discuss the materials afresh to find out whether the conclusions reached by the lower appellate court which have reversed the conclusion of the trial court are justified. 14. The three items of legal necessity were indicated in the original sale deed, Ext. C. They were: (i) Repayment of creditor's dues, (ii) Repayment of loan made for the obsequies of the minor's father: and (iii) To incur the marriage expenses of the minor. The sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es of Netrananda. As I have already stated, in Ext. C. it was clearly stated that the fifth defendant had incurred loan- for the said purpose and it had to be paid. In view of his clear statement in his cross-examination at the triaL the Question of repayment of the loan incurred for the purpose of the Sudhi ceremony does not arise. D. W. 4 (defendant No. 5) in his evidence nowhere indicated the extent of expenditure incurred by him for the purpose of the Sudhi ceremony. D. W. 6 ("defendant No. 11 has stated that he spent about Rs. 125/- in the Sudhi ceremony and the defendant No. 5 had spent about Rs. 35/- in that connection and in all about Rs. 200/- had been spent for the Sudhi ceremony of Netrananda. It is not the case of the defendant No. 1 that he had incurred any loan for the Sudhi ceremony. nor was it his case that he was paid the aforesaid amount of Rs. 125/- which he had advanced by wav of loan to meet the expenses. The defendant No. 5 as has been already noticed, clearly admitted that he incurred no loan for the purpose. The defendants 1 and 5 were both relations of Netrananda who died leaving behind only a minor daughter. Thus, even if they had spent some money for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reversing decision this is an instance of reversal as all the material findings were being reversed -- to meet the reasonings of the trial court and indicate its own reasons for the conclusions to be reached. In the facts of the present case, it was the duty of the appellate Court to discuss the entire evidence afresh, take notice of the features which were duly noticed by the trial court and on his own independent reasonings, the appellate court should have come to the conclusions which it ultimately reached. This is an instance where the learned appellate Judge has failed to discharge his duties as a final court of fact. He has overlooked admissions of defence witnesses on very important features. He shirked his duty and avoided to discuss the evidence. On several occasions, he either misquoted the evidence or partially referred to it so that the true import of the evidence was not brought to the focus. He omitted to take stock of the entire material and failed to take a cumulative view of the materials. I am at a loss to know that the learned appellate Judge failed to discharge his duty with the minimum amount of care expected from a final court of fact and reached conclusions w ..... X X X X Extracts X X X X X X X X Extracts X X X X
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