1. The legal representatives of defendant-1 and defendants 2 to 6 in L. C. Suit No. 44/1961 on the file of the Munsiff, Laxmeshwar, are the appellants in this second appeal. The plaintiffs who are respondents 1 and 2 in this second appeal instituted the said suit for a declaration that the alienation of the suit schedule property made by their father Parashuram in favour of defendant-1 Devendrappa was not binding on them and for partition and separate possession of their 2/3rds share in the suit property. Their case was that the suit land belonged to the joint family consisting of their father Parashuram and themselves that Parashuram alienated it in favour of defendant-1 under a sale deed dated 12-6-1942, although, the said transaction was not supported by legal necessity or family benefit and that therefore the alienation was not binding on them. They also pleaded that the consideration alleged to have been paid under the said sale deed was inadequate. Defendant-2 is the son of defendant-1. Defendants 3 to 6 are the sons of defendant-2. They pleaded that the sale deed was executed in favour of the 1st defendant by the father of the plaintiffs for the purpose of discharging two mortgage debts contracted by him earlier, that the consideration paid under the sale deed was actually utilised for discharging those antecedent debts and that therefore, the sale was binding on the plaintiffs. They also pleaded that the transaction was supported by legal necessity and family benefit. The plaintiffs did not file any rejoinder stating that the antecedent debts in question were not in existence on the date of the sale nor did they plead that the said debts were avyavaharika debts. At the conclusion of the trial, the learned Munsiff came to the conclusion that the defendants had not proved that the sale in favour of the 1st defendant was binding on the plaintiffs and accordingly made a decree in their favour. The lower appellate Court has affirmed the said decree. Hence, this second appeal.
2. Sri S. R. Bannurmut, learned Counsel for the appellants contended that the decision of the lower appellate Court which proceeded on the basis that in the instant case where the father had sold the property in order to discharge his antecedent debts, it was necessary to prove that there was legal necessity or family benefit in order to sustain the sale was erroneous, in the absence of any plea on the part of the plaintiffs that the antecedent debts were tainted with immorality. Shri Raghuramachar, learned Counsel for the respondents, did not dispute the correctness of the legal proposition put forward by the learned Counsel for the appellants. He, however, argued that in the instant case the defendants had not established the existence of the debts for discharging which the sale deed in question was executed by the father of the plaintiffs. The sale deed is dated 12-6-1942. The suit was instituted in the year 1961 and the learned Munsiff tried it in the year 1967 nearly 25 years after the date of the sale deed in question. By the, time the case was taken up for trial, defendant-1 who had purchased the property under the sale deed was dead. The father of the plaintiffs who had executed the sale deed had died before the institution of the quit. The defendants in support of their case relied upon the recital in the sale deed Exhibition stating that it had been executed by the father of the plaintiffs in favour of defendant-1 for the purpose of discharging two mortgaged loans which he had obtained from Shivangouda Patil under two registered mortgage deeds dated 27-3-1924 and 24-11-1930 and that the said mortgage deeds had been handed over to defendant-1 with the endorsements of discharge recorded on them by the mortgage. They also produced before the Court Exhibit-D-2 which was the certified copy of the registered mortgage deed dated 24-11-1930 and Exhibit-D-3 which was the certified copy of the registered mortgage deed dated 27-3-1924, in order to prove that there existed before Exhibit-D-1 came into existence two mortgage debts referred to above. They also produced Exhibit-D-4 which was a part of the original of Exhibit, D-3. They stated that the remaining part of Exhibit D-4 and the original of Exhibit D-2 had been lost by them. The certified copies were received as secondary evidence in the case. Exhibits D-2 and D-3 prove that the, father of the plaintiffs had borrowed Rs. 1,100/- under the original of ExhibitD-3 and Rs. 400/- under the original of Exhibit-D-2. The plaintiffs who were aware of the contents of Exhibit-D-1, the sale deed, before they instituted the suit, did not state in the course of their plaint that the two debts referred to in Exhibits-D-2 and D-3 were not in existence on the date of Exhibit-D-1. The 2nd defendant who was examined as D. W. 1 stated in the course of his evidence that the debts in question were discharged as stated in one of the recitals contained in Exhibit D-1. Defendant-4 who was the son of Shivangouda Patil, in whose favour the documents had been executed, also stated that the said documents had been executed by Parashuram, the father of the plaintiffs.
3. It was argued by Sri Raghuramachar that the evidence before the Court was not sufficient to establish the existence of the two antecedent debts on which the defendants relied. The debts in question, as mentioned earlier, were respectively of the year 1924 and of the year 1930. The trial of the suit out of which this appeal arises took place in the year 1967. Both the mortgagor and the mortgagee were dead by the time the trial commenced. In these circumstances, it may not be reasonable to expect any better evidence than what has been produced by the defendants in this case. I am of the view that the observations made by the Privy Council in Banga Chandra v. Jagat Kishore, (AIR 1916 PC 110) would furnish true guidance with regard to the assessment of the evidence in cases of this nature. That was a case in which certain transactions entered into by two widows who had life estate in the properties in question came up for consideration while determining their binding nature on the reversioners. In that connection the Privy Council observed as follows:
'If the deeds were challenged at the time or near the date of their execution so that independent evidence would be available, the recitals would deserve but slight consideration, and certainly should not be accepted as proof of the facts. But, as time goes by, and all the original parties to the transaction and all those who could have given evidence on the relevant points have grown old or passed away, a recital consistent with the probability and circumstances of the Case, assumes greater importance, and cannot lightly be set aside, for it should be remembered that the actual proof of the necessity which justified the deed is not essential to establish its validity. It is only necessary that a representation should have been made to the purchaser that such necessity existed, and that he should have acted honestly and made proper enquiry to satisfy himself of its truth. The recital is clear evidence of the representation and, if the circumstances are such as to justify a reasonable belief that an enquiry would have confirmed its truth then when proof of actual enquiry has become impossible, the recital, coupled with such circumstances, would be sufficient evidence to support the deed. To hold otherwise would result in deciding that a title becomes weaker as it grows older, so that a transaction - perfectly honest and legitimate when it took place - would ultimately be incapable of justification merely owing to the passage of time.'
4. It is no doubt true that D. W. 3, the scribe of Exhibit-D-1, has stated that no consideration was paid in his presence and that no other documents were shown to him when he wrote Exhibit D-1. The above statement of D. W. 2 does not in any way militate against the truth of the recital in Exhibit-D-1 that the vendor in Exhibit D-1 had handed over to the vendee the two mortgage deeds referred to above with the endorsements of discharge made by the mortgagee on them. I am of the view that in the instant case the recitals in Exhibit D-1 have to be accepted particularly in view of the fact that the plaintiffs have not pleaded that the debts in question were not at all in existence. I am satisfied from the material on record that the defendants have proved that the father of the plaintiffs had contracted two mortgage debts as stated in Ex. D-1 earlier and had executed the sale deed Ex. D-1 in favour of defendant-1 for discharging the said two debts. Since 'those two debts have not been characterised as 'avyavaharika' debts, the alienation made for discharging them must be held to be binding on the plaintiffs irrespective of the fact that there was no other legal necessity or family benefit supporting Exhibit D-1.In view of the foregoing, the decrees passed by the Courts below, have to be set aside. They are, accordingly, set aside. The suit stands dismissed. In the circumstance, the parties shall bear their own costs throughout.
5. Appeal allowed.