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Madhav Krishna Deshpande Vs. Shiddaya Danappaya - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtMumbai
Decided On
Case Number Second Appeal No. 918 of 1917
Judge
Reported in(1920)22BOMLR79
AppellantMadhav Krishna Deshpande
RespondentShiddaya Danappaya
DispositionAppeal allowed
Excerpt:
hindu law - widow-alienation-legal necessity-consent of reversioner-burden of proof to show necessity.;in the case of an alienation by a hindu widow, as soon as the alienee on whom first the onus lies to show that the alienation was for legal necessity proves that the reversioners have consented, the onus shifts to the person impeaching the alienation to show that there was no legal necessity.;hangasami gounden v. naehiappa gounden (1918) 21 bom. l.r. 640, p.c., followed.;where an alienation by a hindu widow is attacked on the ground that she has sold more than what was justified by legal necessity, the burden of proof lies on the plaintiff to show that so much of the land as was required as the plaintiff says would suffice for the legal necessity could have been sold, otherwise one is..........but of the price for the land which was realised in 1901, rs. 500 were required by the widow for legal necessity. now the alienation of 1901 was an alienation by the widow of part of the property left to her by her husband with the consent of the reversioners. such consent was held, in rangasami gounden v. nachiappa gounden (1918) l.r. 46 indap 72, 84 : 21 bom. l.r. 640 to afford a presumptive proof, which would validate the transaction(sic) as a right and proper one if not rebutted by contrary proof. see the remarks of their lordships at p. 84. as soon as, therefore, the defendants, on whom first the onus lay to show that the alienation was for legal necessity, did prove that the reversioners had consented, the onus shifted to the plaintiff to show that there was no legal necessity......
Judgment:

Norman Macleod, Kt., C.J.

1. On the 3rd September 1901 Balawa the widow of one Danapaya deceased sold the plaint property to the 1st and 2nd defendants with the consent of her two daughters, the nearest and only reversioners at the time. In 1909 Balawa adopted the present plaintiff, and the plaintiff has now brought this suit for a declaration that the sale-deed of 1901 was not binding on him and that he was entitled to recover possession of the plaint lands from defendants 1 and 2. It must be noted that Balawa is still, alive. The plaintiff is a minor suing by his maternal uncle and it looks very much like an attempt on the part of the widow to set aside an alienation made by her in 1901, because as a matter, of fact the plaintiff would know nothing about what was being done in his name.

2. The trial Court directed that on the plaintiff paying to the defendants within three months from the date of the order the sum of Rs. 800, the sum spent for improvements by the defendants the defendants should put the plaintiff in possession of the plaint lands.

3. On appeal, the lower appellate Court has amended the decree of the lower Court by directing that the plaintiff should pay Us. 500 in addition to Rs. 800 as it had been proved that but of the price for the land which was realised in 1901, Rs. 500 were required by the widow for legal necessity. Now the alienation of 1901 was an alienation by the widow of part of the property left to her by her husband with the consent of the reversioners. Such consent was held, in Rangasami Gounden v. Nachiappa Gounden (1918) L.R. 46 IndAp 72, 84 : 21 Bom. L.R. 640 to afford a presumptive proof, which would validate the transaction(sic) as a right and proper one if not rebutted by contrary proof. See the remarks of their Lordships at p. 84. As soon as, therefore, the defendants, on whom first the onus lay to show that the alienation was for legal necessity, did prove that the reversioners had consented, the onus shifted to the plaintiff to show that there was no legal necessity. Neither of the lower Courts seem to have noticed that at a particular point of the trial the onus of proving legal necessity shifted. The legal necessity is set out in the sale deed: Rs. 400 were due to the defendants by Danapaya and Rs. 100 were due to one Irappa, and Rs. 400 were required for Balawa's maintenance owing to famine at the time. It is not disputed that the year 1901 was a famine year in the District of Bijapur. Therefore the suggestion that Balawa ought to have maintained herself out of the other 44 acres of her husband's property is hardly one to be relied upon by the plaintiff. But certainly the onus lay on the plaintiff to show that none of the Rs. 400 was required for legal necessity by the widow. She had to support herself and her daughters, and it would certainly appear that even if not the whole of Rs. 400, she would require Borne of it.

4. Then the question arises whether the widow over-sold, or in other words sold more than was necessary, in the circumstances at the time. There certainly may be cases where a widow may sell far more of the property than is required at the time for legal necessity. Now it is quite possible that in this case a portion of the Rs. 900 may not have been required actually by the widow for legal necessity, but it lay upon the plaintiff to show that so much of the land as was required, as the plaintiff says would suffice for the legal necessity, could have been sold, otherwise one is entitled to presume that the widow could not have sold less than she did in order to realize what was required at any rate to pay off her husband's debts, and to provide herself with maintenance until the famine was over. In Bal Krishna Das v. Hira Lal (1918) I.L.R. 41 All. 338 the daughter of a separated Hindu sold a house,-which had been the property of her father in his life-time, and had been previously mortgaged by herself and her mother jointly. The debt at the time of the sale amounted to Rs, 7,775, and the house was sold for Rs. 19,500. On the other hand it was found that the house was not one which could have been divided and sold piecemeal. On these facts it was held that the reversioner to the last male owner was not entitled to recover the house from the vendees.

5. We are, therefore, of opinion that the plaintiff has not satisfied the onus which lay on him, and that therefore, the judgments in the lower Courts cannot be supported. The suit must be dismissed with costs throughout, the decree of the lower appellate Court being reversed.

Heaton, J.

6. I agree. I only add a few words because it might be supposed that we were in second appeal interfering with a decision arrived at on the evidence by the Court of first appeal. The evidence, or rather the facts found, as set out in the judgment of the Court of first appeal, show that the sale, which the plaintiff now seeks to set aside, was a legal and proper sale. Because the facts found establish, first of all, that as regards Its. 500 out of Rs. 900 of the consideration, there was undoubtedly necessity for the sale. They also establish that as regards the remaining Rs. 400, whether there was necessity or not is a matter of conjecture and speculation. But the facts found also show that the nearest reversioners specifically assented to the sale. We have, therefore, facts found which so far as they go must compel the conclusion that the sale as a whole was a proper and legal sale. Before a Court could be justified in holding the contrary, there would have to be other evidence, there would have to be other facts proved which would rebut the conclusion which I have just stated and would support something better than a merely conjectural or speculative inference. There are not in this case other facts of that nature proved. I think, therefore, that the decision of the lower appellate Court was a decision which was wrong in law. Therefore I think the appeal must b3 allowed.


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