1. One Narayan Dhere, respondents 1 to 3 and respondent 4 had filed the suit from which the present appeal arises for recovery of possession of property which admittedly belonged to one Ganesh. Appellant 1, who was defendant 1, claims under an agreement for sale purporting to be executed by Ganesh's widow Laxmibai on 15-9-1945. By that agreement Laxmibai purported to sell the property in suit to defendant 1 a minor for a consideration of Rs. 6,000.
Inasmuch as Laxmibai was only a limited owner her husband having died before 1937 she could sell only for legal necessity, and the agreement for sale said that the legal necessity was debts, one of Rs. 4,000 due to one Dandavate, and other miscellaneous debts of Rs. 1,000/- incurred by Laxmibai for paying doctors and for other medical expenses. Defendant 2 was the father of defendant 1 who has taken the sale deed on behalf of defendant 1. Defendant 2 is also the brother of Laxmibai.
2. The defence was that defendant 1 was in possession of the property and has entered into the sale deed in part performance of the contract for sale. The sale was for legal necessity because Rs. 4000 were due to Dandavate upon a mortgage executed by Laxmibai; Rs. 1000 were due to one Indirabai Deshpande and Rs. 500/- were due to one Acchute.
Defendant 1 said that his father had as a matter of fact paid Indirabai Deshpande and Acchute and produced receipts passed by them for the sums of Rs. 1000 and Rs. 500/- respectively. The mortgage in favour of Dandavate was by Laxmibai. But it was said that it was binding because Ganesh died indebted to one Atre upon a simple mortgage dated 18-11-1918.
In the year 1922 Laxmibai executed a simple mortgage in favour of one Parwatibai Patankar for a sum of Rs. 1500, part of which was borrowed in order to pay off Atre and was utilised to pay him off. The remaining amount of Rs. 887-8-0 was supposed to have been utilised for the purpose of rebuilding the house in suit. Laxmibai paid Parwatibai Patankar in part by selling an open plot belonging to her for a sum of Rs. 1400/- on 24-5-1928. She paid off the amount realised to Parwatibai Patankar who however was not paid off fully.
Parwatibai sued upon the mortgage and obtained a decree for sale of the property in suit. In order to pay off Parwatibai Laxmibai executed on 21-1-1926 a mortgage in favour of one Jog for a sum of Rs. 999/-. She mortgaged the same property to Dandavate in 1937 for a sum of Rs. 2000 Out of these Rs. 1100/- were paid to Jog and Rs. 900 were utilised by Laxmibai for repairing the house in suit.
3. The plaintiffs claimed however that even apart from legal necessity the agreement for sale was not executed by Laxmibai. She died within four days after the alleged execution of the agreement. The plaintiffs said that Laxmibai was unconscious for a number of days before she died and her thumb impression was taken to the agreement for sale while she was still unconscious.
4. The learned trial Judge held that he was not satisfied that Laxmibai had executed the agreement for sale. He said in the second instance that legal necessity for the sale was not proved. A contention was raised before him with regard to the want of mutuality in regard to the contract for sale because the agreement for sale was taken by the natural guardian of defendant 1 arid there was no mutuality.
But the learned trial Judge said that defendant 1 even though a minor could enter into a contract for purchase of property through defendant 2 if it was beneficial to him, but because of the failure of his defences he has given the plaintiff a decree for possession.
5. Defendants 1 and 2 have come in appeal, and it appears to me in the first instance that in this case the burden was upon defendant 1 to show that Laxmibai had executed the agreement for sale. Its execution was denied by the plaintiffs. It, was true that the plaintiffs admitted that it bore the thumb impression of Laxmibai.
As a matter of fact they themselves led the evidence of one witness Saraswatibai who deposed that Laxmibai's thumb impression was taken in her presence while she was unconscious. But that does not alter the fact that Laxmibai could sign. It had to be 'explained consequently why Laxmibai's thumb impression was taken to the document if she was conscious and until that was done it cannot possibly be said that the burden had shifted on to the plaintiffs to show that Laxmibai was unconscious at the time when she gave her thumb impression.
That is apart from the fact that execution of document implies that when a person gives even his or her thumb impression to it he or she must understand that they were executing a document and what the document was. Now, the only reason which was given as to why Laxmibai's thumb impression was taken to the document was that she had been given an injection by the doctor who used to attend upon her and the doctor said she would feel better after she got the injection.
Laxmibai could not sign because her hand was ailing because of the injection. Now, the doctor who gave the injection was not examined. It is true that it appears that the plaintiffs had taken out a summons for the same doctor but inasmuch it was defendant 1 who had to explain why Laxmibai's thumb impression was taken when she could sign, the mere fact that the plaintiffs had taken out a summons for the same doctor was not a good reason for the defendants not to examine him.
The plaintiffs after all did not examine the doctor. That may give rise to an inference that the doctor would not have supported the plaintiff's case if they had asked him whether Laxmibai wasconscious on the 15th of September. But that does not make any difference.
What defendant 1 had to show was that Laxmibai was conscious not only when the doctor gave her injection but also at the time when she is alleged to have executed the agreement for sale, and if the explanation as to why her thumb impression was taken was that she could not give Her signature because she had taken an injection, then it is obvious that the doctor should have been asked as to whether there was anything in his injection which would make it painful for Laxmibai to sign.
Ordinarily an injection need not cause so much pain that an hour afterwards a person to whom it had been given is not in a position to make a signature because of the pain caused by the injection. Then again it has got to be remembered that if Laxmibai was not in a 'position to sign immediately after the injection there was no reason why an attempt should not have been made to wait for some time when the effect of the injection had worn out.
The doctor, had given the injection to Laxmibai in order that she might feel better. Laxmibai admittedly lived for four days more. It was the case of defendant 2 who was examined on behalf of defendant 1 that she was conscious right upto the end. In that case it does not appear that there was any hurry to take Laxmibai's thumb impression. But even if for any particular reason defendant 2 was afraid that she might die, if really Laxmibai remained alive for four days there was no good reason why her signature should not have been taken to the same document later.
Mr. Tulzapurkar who appears on behalf of defendant 1 says that that would have made the defendant's case worse. I do not see that at all. The document purports to show itself that Laxmibai's thumb impression was taken to the document because she was not in a position to sign. If subsequently Laxmibai was in a position to sign then if her signature was taken it is obvious that the case of defendant 1 would have been clinched. I fail to understand how it could possibly have become worse.
6. There is besides a suspicion about the agreement for the reason that admittedly the writer of the document and the stamp vendor both say that they had been taken to Laxmibai's house for the purpose of execution. Now, the writer says that he took his own pen and ink with him which a writer may easily do because he may not be certain that he would get pen and ink at the house where he was going.
But Laxmibai's thumb impression having been taken the writer had made the endorsement about her thumb impression mentioning that the dastur was his. He has admittedly done this with the same pen and ink with which the body of the document has been written. But the signatures of the two attesting witnesses are in an entirely different ink. There is no reason forthcoming why a different ink has been used for the purpose of the signatures of the attesting witnesses.
Out of the two attesting witnesses one who was a pleader had admittedly died at the time when the suit came for trial. The other was a tenant living in the property in suit portions of which had been rented. He supported the case of the defendants. As against this evidence the plaintiffs examined two witnesses; one of them Kashibai daughter of plaintiff 1. She said that Laxmibai used to be unconscious during four or five days prior to her death.
That evidence was obviously interested. The plaintiffs examined besides one Saraswatibai whodeposed that she was present actually at the time when the thumb impression of Laxmibai was taken to the agreement for sale. But it is difficult to accept her evidence. She admittedly was at loggerheads with defendant 2.
It appears that after Laxmibai's death defendant 2 took Kabulayats from the tenants of the property in suit. Subsequently there was a quarrel between him and Laxmibai about a mori. There was also a criminal case; defendant 2 had to sue her and obtain a decree for rent; but even apart from these things her evidence is highly suspicious-for the reason that she admitted that she used to work in the arsenal in the days in which the agreement was taken from Laxmibai. She admittedly used to be off till about 5-30 p.m. every day.
Now, if defendant 2 wanted to take the thumb impression of Laxmibai while she was unconscious there was no reason why he should have taken the thumb impression of Laxmibai to the document in the presence of this witness.
There does not seem to have been any hurry and secondly it was not as if the witness was attending to Laxmibai throughout the 24 hours. She could not as a matter of fact do so. Even alter she came home she would naturally require sometime to go home to take her meals and get clean. It is impossible to accept therefore her evidence that defendant 2 took Laxmibai's thumb impression to the agreement for sale in her presence.
7. All the same the burden was upon, defendant 1 and he has failed to discharge it.
8. Coming next to the question of legal necessity, legal necessity has not been made out. There was a debt of Atre which Laxmibai had to pay. But it was not necessary to borrow an amount of Rs. 1500/- in order to pay off Atre whose debts amounted to only Rs. 600 and odd. The remaining Rs. 900 is alleged to have been taken for repairing the house.
But no evidence whatsoever is forthcoming whether any permission was applied for from the Municipality for repairing the house nor in order to show what expenditure incurred upon the repairs was. Laxmibai was obviously conscious when she executed the mortgage in favour of Parwatibai Patankar that she could sell only for legal necessity. That is why the document mentions the purposes for which the amounts were borrowed.
If subsequently the amount was spent Laxmibai would naturally take care to keep with her documents showing that she had applied to the Municipality for permission to repair the house, and she would also keep the receipts for the amounts which she had paid in repairing the house. It was not a small amount; it was an amount of something like Rs. 900.
Even if Laxmibai did not keep with herself any papers about the application which she would make to the Municipality for permission to repair the house, there could be no difficulty in obtaining in the case of a Municipality like Poona certified copies of the applications made by her for the purpose.
If legal necessity for this amount of Rs. 900/-was not proved then in that case there was no reason whatsoever for entering into any further transactions because the whole of the amount of the mortgage of Parwatibai was paid off by the sale of the site belonging to Laxmibai. The site fetched Rs. 1400/- and if all that had been borrowed from Parwatibai had been Rs. 600 and odd the sale of the plot would have extinguished the whole of the debt.
Coming next to the first mortgage in favour of Dandavate, here again another amount of Rs. 900 is alleged to have been taken for repairing thehouse. There was no evidence of any application to the Municipality for repairing the house nor is there any evidence of any payments actually made when the house was repaired.
It was in evidence that the house was originally two-storeyed, and it appears that now it is three-storeyed; but even if we accept that a third floor had been added what amount would be required would depend upon what the storey was. There is no evidence as to what the third storey was. In any case evidence in the shape of the actual bills paid which could have been most convincing is not forthcoming.
9. Finally Rs. 4,000 is alleged to have been due to Dandavate upon his mortgage for Rs. 4000. So far as the remaining amount is concerned, the agreement for sale only mentions a sum of Rs. 1000 owed by Laxmibai for debts incurred for medical expenses. The receipts which are produced are for Rs. 1500. They are from two persons, Indirabai Deshpande and one Acchute. Their names do not appear in the agreement for sale.
Subsequently it appears that one Mr. Bhopatkar on behalf of the plaintiffs gave a notice to defendant 1 to which defendant 2 appears to have given a reply. Defendant 2 did not mention the debts that were due to Indirabai Deshpande and Acchute; nor are these persons examined in order to prove the payments. Defendant 2 said that he had undertaken the liability to pay off these two creditors. He appears to have made an application for adjustment of his debts against Dandavate.
In that application he did not mention the debts due to Indirabai and Acchute the liability to pay off whom he deposed had been undertaken by him. It is obvious therefore that it is not at all proved that there were any debts owed by Laxmibai to these two.
10. In my opinion therefore the legal necessity for the transaction in question has not been proved. If there was no legal necessity to borrow Rs. 1500 from Parwatibai, there was no further necessity to borrow anything at all. If it was not necessary to make any repairs there would have been no necessity whatever to borrow from Dandavate.
11. Finally it appears to me that apart from anything else in this case defendant 2 had no authority to enter into the contract for sale on behalf of defendant 1. That was what their Lordships of the Privy Council decided in Mir Sarwarjan v. Fakhruddin Mahomed, 39 Ind App 1 (PC) (A).
It is pointed out on behalf of the appellant that that was a case of a suit for specific performance of a contract; but it seems to me that that does not make any difference; the question is of the authority of defendant 2 to bind the minor by a contract for the purchase of immovable property and if defendant 2 had no authority to enter into that contract, then on the principle of mutuality the contract would riot be binding even upon the other parties, i.e. Laxmibai or persons who succeed to her husband's estate on her death.
12. It is said however that in case the contract did not throw any burden upon the minor, there was no reason why the_ contract should not be binding upon him. But this was not a contract for an executed consideration. Just as Laxmibai had to convey the property under the contract to defendant 1, defendant 1 had to pay her consideration amounting to Rs. 6000. That defendant 2 says that out of them he paid Rs. 1600/- does not make any difference.
In any case at no time did the minor pay off Dandavate. The contract bound the minor to pay off Dandavate and to pay off other debts described to amount to Rs. 1000, and then to pay the remaining amount to Laxmibai. I fail to understand how in these circumstances it can be said that the contract threw no burden whatsoever upon the minor. In my opinion, the contract was not binding upon the minor because defendant 2 had no authority to enter into it. Consequently it would not bind Laxmibai also.
13. The appeal will therefore be dismissedwith costs.