D.S.R. Varma, J.
1. Heard both the Counsel.
2. This second appeal is filed challenging the judgment and decree dated 19.11.1996 passed by the Court of District Judge, Vizianagaram in A.S. No. 79/1995.
3. By the impugned judgment and decree, the lower appellate Court reversed the judgment and decree dated 1.12.1994 passed by the Court of District Munsif, Srungavarapukota in O.S. No. 291/1982 and thereby decreed the suit filed by the plaintiffs for recovery of possession and for other reliefs. Thus aggrieved by the reversal of the judgment of the Trial Court, the original defendants filed this second appeal.
4. For the sake of convenience, the parties shall be referred to as plaintiffs and defendants i.e., as per their array in the original suit in O.S. No. 291/1982.
5. The brief facts of the case are that the suit lands originally belong to one late Chalumuri Perinaidu and Chalumuri Appadamma is his wife. They had a son and daughter by names Narayana and Simhachalam. Chalumuri Narayana married Appadamma @ Simhachalam, who is the daughter of Ramba Sannibabu and Appadamma. Simhachalam i.e., the sister of Narayana, married one Godela Narayana and the plaintiffs are their children. The Defendants 1 and 2 are the brothers of Simhachalam @ Appadamma who is no other than the wife of late Narayana and daughter-in-law of Perinaidu and they are also sons of Ramba Sannibabu and Appadamma i.e., the parents of Simhachalam @ Appadamma. As the Defendants 1 and 2 died during the pendency of the suit, their legal heirs were added as Defendants 4 to 15 to the suit and Defendant No. 3 is the son of one Bandari Suramma, who was the daughter of the sister of late Perinaidu and he is claming right in Item No. 11 of the suit schedule property through his mother. His case is that Adapureddi Appalanaidu is the brother of Suramma and he got executed sale deed dated 18.5.1937 in respect of Item 11 of the plaint schedule property and another item by both the widows and since then the said Appalanaidu was enjoying the said lands as purchaser and later after his death, his sister Suramma enjoyed them and after her death, he (Defendant No. 3) is enjoying them as adopted son. The relationship between the parties is not disputed.
6. Chelumuri Narayana died issueless in the year 1927. As the mother of said Narayana i.e., Appadamma is enjoying the entire properties, Simhachalam @ Appadamma who is the wife of Narayana filed suit in O.S. No. 13/1927 on the file of Subordinate Court, Visakahapatnam for possession in the capacity of sole heir. The said suit was decreed and in pursuance of the decree, possession was also given to Simhachalam @ Appadamma. As Appadamma i.e., the mother-in-law of Simhachalam was unable to maintain herself, filed suit in O.S. No. 734/1934 on the file of District Munsif, Chodavaram against Simhachalam (daughter-in-law) for maintenance and in that suit they have entered into compromise in LA. No. 944/1935 and by virtue of the said compromise, both Appadamma (mother-in-law) and Simhachalam (daughter-in-law) executed a registered sale deed dated 18.5.1937, Ex.B-1 in favour of Ramba Sannibabu, father of Defendants 1 and 2, conveying two acres of wet land and a tiled house in discharge of earlier debts. As per the said compromise, the remaining property was divided into two equal shares and Items 1 to 10 of plaint schedule and some other items had fallen to the share of Simhachalam @ Appadamma (daughter-in-law) and half share in Item No. 11 and some other properties had fallen to the share of Appadamma (mother-in-law).
7. For convenience Simhachalam i.e., the widow of late Narayna will be referred to as 'the daughter-in-law'.
8. With respect to Item Nos.1 to 10 daughter-in-law executed registered sale deed dated 22.10.1943, Ex.B-2 in favour of her mother i.e., Appadamma and put her in possession and since then the said vendee and after her death, her sons, who are Defendants 1 and 2 were enjoying the property. With respect to Item No. 11, daughter-in-law and Appadamma (mother-in-law) executed registered sale' deed dated 18.5.1937 Ex.B-4 in favour of one Adapureddi Appalanaidu, and the 3rd defendant is claiming right over the suit schedule property in Item No. 11 through him.
9. It is to be noted that the property inhered by both the widows i.e., Stmhachalam (daughter-in-law) and Appadamma (mother-in-law) is widow estate and they will have only life interest in the said properties, which originally belong to late Perinaidu, since the transaction is prior to 1956. The admitted and undisputed legal position is that up to 1927, the rights of widowed daughter-in-laws were only to the extent of right of maintenance. By 1937 the life interest had been created. After the advent of Hindu Succession Act, 1956, absolute ownership had been confered on them and there is no question of devolving back on the reversioners. Since the impugned transactions were prior to 1956, as noted above, the widowed daughter-in-law was having only life interest in the property.
10. Daughter-in-law also executed Ex.B-3 registered Will dated 10.4.1973 in favour of her brothers i.e., Defendants 1 and 2.
11. Aggrieved by the action of both the widows in alienating the widow estate under Exs.B-2 and B-4 and also in executing registered Will dated 10.4.1973 under Ex.B-3 in favour of Defendants 1 and 2, since both the widows i.e., Appadamma (mother-in-law) and daughter-in-law have only life interest in property and after their death, the plaintiffs being the reversionary heirs, filed the present suit for recovery of possession by ejecting the defendants and for future profits.
12. The defendants filed written statement mainly contending that though daughter-in-law and Appadamma (mother-in-law) who are the widows, have life interest in the properties, they sold the property for legal necessities, which is permissible under law and the same is binding on the plaintiffs. To prove the legal necessities, the defendants referred to the recitals in Ex.B-2 sale deed. They further contended that the sale deeds were more than fifty years old and a presumption has to be drawn in their favour. They stated that the transactions were of the year 1937 and 1943 and if there was any real grievance, suit ought to have been filed after the executions of sale deeds and filing of the suit in the year 1982 is barred by limitation. They further contended that daughter-in-law died somewhere in the year 1977 and after her death, filing the suit only for recovery of possession without seeking for declaration for cancellation of sale deeds in question, is not maintainable. With these contentions, the defendants sought for dismissal of the suit.
13. Basing on the above pleadings, the Trial Court framed the following questions:
1. Whether the plaintiffs are entitled to the suit properties?
2. Whether the sale deeds dated 18.5.1937 and 22.10.1993 are for legal necessities and whether it binds the plaintiffs?
3. Whether Will dated 10.4.1973 is true, valid and binding on the plaintiffs?
4. Whether this Court has pecuniary jurisdiction to maintain this suit?
5. Whether this suit is bad for multifariousness?
6. Whether the plaintiffs are entitled for possession of the plaint schedule land?
7. Whether the plaintiffs are entitled to profits as to what amount?
8. To what relief?
14. In support of the case of the plaintiffs P.Ws. 1 to 4 were examined and Exs.A-1 to A-7 were marked. On behalf of the defendants D.Ws. l and 2 were examined and Exs.B-1 to B-4 were marked.
15. The main question before the Trial Court was whether the sale deeds dated 18.5.1937, Ex.B-4 and 22.10.1943 Ex.B-2 were executed for legal necessities and, if so, whether the said sale deeds are binding on the plaintiffs. Though there are no recitals in Ex.B-4 sale deed with regard to discharge of legal necessities, since the said document was more than forty years old and considering the other evidence available on record, the Trial Court held that Ex.B-4 sale deed executed by daughter-in-law and Appadamma (mother-in-law) was to meet the legal necessities and as such it binds the plaintiffs.
16. Considering the evidence available on record and also considering the recitals in Ex.B-2 sale deed executed by daughter-in-law, the Trial Court held that the sale deed was executed to meet the legal necessities. The Trial Court also held that since the disputed sale deeds were more than forty years old, no person who is acquainted with the facts of the transactions can be examined. Therefore, in view of Section 90 of the Indian Evidence Act, the Trial Court held that Exs.B-2 and B-4 requires no proof. Further with regard to Will dated 10.4.1973, Ex.B-3 which is said to have been executed by daughter-in-law in favour of Defendants 1 and 2, the Trial Court disbelieved the same, since the said Will is not proved by examining the attestors. However, the trial Court observed that even if the Will is assumed to be genuine, it affects only the properties of daughter-in-law as on the date of her death, but not the suit properties, which she parted even by 1943. With regard to all other issues viz., whether the Court has pecuniary jurisdiction; whether the suit is bad for multifariousness etc, the Trial Court answered all other issues in affirmative. However, as the main issue was answered in favour of the defendants, the Trial Court ultimately considering the decisions cited by the defendants and material available on record, dismissed the suit holding the Exs.B-2 and B-4 were executed to meet the legal necessities and as such they are binding on the plaintiffs.
17. When the plaintiffs carried the matter in appeal, the lower appellate Court basing on the material available on record framed the following issues for considering:
1. Whether the presumption drawn by the lower Court with regard to Exs.B2 and B-4 under Section 90 of Evidence Act is liable to be set aside?
2. Whether Exs.B-2 and B-4 sale deeds are binding on the plaintiff as held by the lower Court?
3. Whether Ex.B-3 is true, valid and binding on the plaintiff?
4. Whether and what are the reliefs to which the plaintiffs are entitled and the decree and judgment of the lower Court is liable to be set aside?
18. The lower appellate Court taking into consideration the decisions relied on by the Counsel for the plaintiffs/appellants and on re-appreciation of evidence on record, and also considering the scope of Section 90 of the Indian Evidence Act and relying on the commentary on Law of Evidence, 11th edition by CD. Field in third volume, held that the defendants did not discharge the burden placed on them to prove that prior to execution of sale deeds, their predecessors in title made enquiries whether the execution of sale deeds was to meet the legal necessities. Also holding that since Ex.B-2 transaction is prior to the litigation between both the widows and as D.W.1 did not substantiate the case of the defendants and taking the conduct of the parties, the lower appellate Court doubted passing of consideration under Ex.B-2 and accordingly negatived the presumption drawn by the trial Court in favour of the defendants under Section 90 of the Indian Evidence Act. The lower appellate Court held that Exs.B-2 and B-4 are not binding on the reversioners and further held that they are not proved either by documentary evidence or supported by consideration. With regard to Ex.B-3 Will said to have been executed by daughter-in-law in favour of Defendants 1 and 2, the lower appellate Court held that it is not binding on the plaintiffs. With regard to mesne profits the lower appellate Court held that the same could be ascertained by filing a separate application. The lower appellate Court also held that the plaintiffs are the absolute owners of the property and however, held that title of the plaintiffs cannot be decided in this suit, as the defendants set up reversionary rights and hence left open for the parties to agitate their rights in appropriate proceedings. With these findings the lower appellate Court set aside the judgment and decree of the Trial Court and decreed the suit of the plaintiffs. Aggrieved by the same, the defendants filed this second appeal.
19. In the second appeal the learned Counsel appearing for the defendants - appellants raised the following substantial questions of law:
1. Whether the Courts below were right in holding that a mere suit for recovery of possession is maintainable without declaration that registered sale deeds under Exs.B-1, B-2 and B-4 are invalid;
2. Whether the Courts below were right in entertaining the suit after forty years of execution of the registered sale deeds under Exs.B-1, B-2 and B-3 in favour of defendants?
3. Whether the Courts below were correct in not dismissing the suit as hopelessly barred by limitation?
4. Whether the lower appellate Court has properly drawn the legal presumption under Section 90 of the Indian Evidence Act in favour of the defendants in respect of sale deeds under Exs.B-1, B-2 and B-4 dated 18.5.1937, 22.10.1943 and 18.5.1937 respectively?
20. It is pertinent to note that both the Counsel submitted that the present second appeal is confined only to the extent of Items 1 to 10 covered by Ex.B-2 and the Item No. 11 covered under Ex.B-4 and rest of the suit schedule property is not under challenge.
21. To answer the substantial questions of law raised under Issue Nos. l to 3, it is necessary to look into the admitted facts available on record, since they are mixed questions of fact and law.
22. Originally the property belonged to one late Perinaidu. Daughter-in-law (Simhachalam) and mother-in-law (Appadamma) were having only life interest in the property of late Perinaidu. By virtue of the compromise in O.S. No. 743/ 1934 on the file of District Munsif Court, Chodavaram, the properties were divided among them and it is the case of the defendants that daughter-in-law and mother-in-law (Appadamma) executed sale deeds Exs.B-2 and B-4 to discharge legal necessities. However, whether the said execution was for legal necessities or not, will be considered in the course of the judgment. For the present purpose, only in order to answer the substantial questions of law raised under grounds 1 to 3, whether the suit for recovery of possession is maintainable without seeking for declaration of cancellation of sale deeds and whether the suit is barred by limitation or not, the facts are being referred to.
23. The plaintiffs are the legal heirs of the daughter of late Perinaidu. After the death of Perinadu, the estate devolved on the widows and their interest is for their life and hence they are limited owners and after their death, again the property devolves back on the heirs of last owner i.e., the reversioners. There is no dispute on behalf of both the parties with regard to this legal position. The case of the plaintiffs is that since they are the reversioners, after the death of widows i.e., daughter-in-law (Simhachalam) and mother-in-law (Appadamma), the property shall devolve back on the plaintiffs.
24. However, the settled legal position prevailing prior to 1956 is that the limited owners can dispose of the property under two contingencies viz., (1) for religious purpose, provided it was conducive, directly or indirectly to the spiritual benefit of the deceased owner from whom the property was inherited and (2) to meet the legal necessity i.e., in case of need or for the benefit of the estate. Except under these two circumstances, the limited owners cannot alienate the estate. In the present case, the averment of the defendants is that to meet the legal necessity, the sale deeds were executed. However, if the reversioners are aggrieved by such alienations, they can challenge or sue the same.
25. As per the decisions of the Privy Council in Venkatanarayana v. Subbmiah, AIR 1915 PC 124, and Sandur Singh v. Paridip Singh, AIR 1917 PC 196, during the subsistence of limited estate, a revisioner could sue for a declaration that the alienation by limited heir was not binding on the reversioner. The proposition laid down in these two judgments is unexceptionable. However, it is to be further seen that the property is enjoyable during the lifetime of limited estate holder and the same enures to the benefit of the revisioners only after the death of the limited estate holder.
26. The Privy Council in the decision reported in Janaki Animal v. Narayanaswamy, AIR 1916 PC 117, while discussing the nature of widows rights over her husband's property inherited, held that her right is of the nature of a right of property, her position is that of owner, her powers in that character are however limited, but so long as she is alive, no one has any vested interest in the succession. Therefore, even if a suit is filed challenging the alienations made by the limited estate holder, the revisioners or their heirs at the most could get a declaration that the alienations are not binding on them. But however, they will be able to enjoy the property only after the death of the limited estate holder.
27. Further as per the decisions reported in Bijoy Gopat v. Krishna, AIR 1907 P 34 IA 87, and Ramajeswara v. Bhaisalheb, AIR 1927 PC 227, reversioners were however not bound to sue for such a declaration for they might refrain from taking any action during the lifetime of the limited heir and leave it to the actual reversioner to sue the alienee to have it set aside or for possession of the property. The reason is that they are not affected by such alienation till her death and as the alienation being always for life of limited owner.
28. So it can be taken that an option is , left to the revisioners or their heirs either to challenge the said alienations during the lifetime of limited estate holder or for possession of the property after her death.
29. As per the decision reported in Jaikamma v. Mattareddi, AIR 1956 AP 141 (FB), (at Paragraph No. 63), a suit for declaration however does not stand in the way to recover possession of property on the death of female limited owner by suit filed in time prescribed by Article 141 of the Limitation Act of 1908. In the present case, the plaintiffs who are the heirs of the reversioner, filed the suit in the year 1982 in time after the death of the daughter-in-law on 6.7.1977, for recovery of possession. Therefore, as per the decision referred to above in Jaikamma's case (supra), the suit for recovery of possession and mesne profits, is not barred by limitation prescribed under Section 141 of the Limitation Act of 1908.
30. Further the Hon'ble Supreme Court in the decision reported in Radha Rani v. Hanuman Prasad, : 1SCR1 , held that the reversioners can file a suit after the death of limited heir, for possession only, by 'treating the sales made by her as null and void by ignoring them. From this it is clear that the reversioners can file suit only for possession even without seeking declaration for cancellation of sales executed by limited estate holder. Hence, the objections that suit for mere possession without seeking for declaration for cancellation of sale deeds is not sustainable.
31. The other decisions relied on by the defendants on this aspect are not applicable, since the facts and circumstances therein are not similar to the facts and circumstances of the present case and hence they are not being referred to.
32. In view of the above discussion and following the judgments referred to above it is held that mere suit for possession is maintainable and the suit is not barred by limitation. Accordingly the substantial questions of law raised under grounds Numbers 1 to 3 is answered in favour of the defendants.
33. Now the other substantial question of law that is required to be answered is whether the sale deeds Exs,B-2 and B-4 are binding on the plaintiffs and with regard to the drawing of presumption under Section 90 of the Indian Evidence Act. In order to consider this mixed question of law and fact, it is necessary to look into the facts and the evidence available on record.
34. At the cost of repetition it is to be noted that daughter-in-law (Simhachalam) and mother-in-law (Appadamma) are the widows and they were the life estate holders upon their respective shares. After the death of Perinaidu, as Appadamma (mother-in-law), who is his wife, was exclusively enjoying the properties, daughter-in-law filed suit for recovery of possession and obtained decree in her favour. Thereafter, as the mother-in-law (Appadamma) the widow of late Perinaidu was unable to maintain herself, filed suit for maintenance against daughter-in-law and in that suit, both the widows entered into compromise and by virtue of the compromise, both of them executed a registered sale deed dated 18.5.1937 Ex.B1 in favour of Ramba Sannibabu, who is the father of Defendants 1 and 2, in discharge of earlier debts. The remaining property was divided into two equal shares. Daughter-in-law executed registered sale deed in respect of Item Nos.1 to 10 under Ex.B-2 dated 22.10.1943 in favour of her mother Rambha Appadamma and put her into possession. Both the widows i.e., daughter-in-law and mother-in-law, jointly executed Exs.B-4 sale deed dated 18.5.1937 in favour of one Adapureddi Appalanaidu with respect to Item No. 11. Further daughter-in-law also executed registered Will Ex.B-3 dated 10.4.1973 in favour of her brothers i.e., Defendants 1 and 2.
35. As already recorded except Item Nos. l to 10 under Ex.B-2 and Item No. 11 in Ex.B-4, the other items are not pressed by both the Counsel upon instructions.
36. However, since the arguments are advance keeping in view both Exs.B-2 and B-4 and also since substantial questions of law covers both the documents, I would like to consider the circumstances covering both Exs.B-2 and B-4.
37. Now the case of the plaintiffs, as discussed above, is that the sale deeds under Exs.B-2 and B-4 are not binding on them and that they are entitled for property of late Perinaidu as reversioners. They further stated that the limited estate owners are entitled only to enjoy the property and they cannot alienate. They contended that even if there was any alienation to avert the pressure on the property and to meet the legal necessities, the alienees under Exs.B-2 and B-4 i.e., Ramba Appadamma and Adapureddi Appalanaidu or their heirs, who are the present defendants, have to prove that before purchasing such property, sufficient and reasonable enquiries were made with regard to existence of legal necessity for execution of sale deeds, since the property was widow estate and since the vendors were having only life interest in the property. They contended that since the defendants failed to prove that their predecessors in title made any enquiries with regard to existence of legal necessities for execution of Exs.B-2 and B-4, the said alienations are not binding on plaintiffs. In other words the case of the plaintiffs is that the defendants did not discharge the burden placed on them.
38. As already noted the life estate holders can alienate the property for two purposes i.e., (1) for religious purposes, provided it was conducive directly or indirectly to the spiritual benefit of the deceased owner from whom the property was inherited and (2) to meet the legal necessity or, for the benefit of the estate. The strong case of the defendants is that the sale deeds were executed by both the widows to meet the legal necessities.
39. The settled position as per the decisions reported in Lala Brijlal v. T. Kunwa, AIR 1914 PC 38, Medai Dalavoi v. Nainar Tevan, AIR 1922 PC 307, Kondama v. Kandasamy, AIR 1924 PC 56, Rangaswami v. Nachiappa, AIR 1918 PC 196, Subrahmanyam v. Soorayya, : AIR1950Mad514 (FB), and Pedda Eliah v. P. Gonganna, AIR 1957 AP 776, whenever an alienation by a limited heir is impeached, the burden lies on the alienee or his heir or representatives or transferees as the case may be to prove (a) that there was actual necessity and (b) that the alienee made reasonable enquiry as to existence of necessity and acted in honest belief. Therefore, the onus of proving the legal necessity is placed on the alienees. In the present case, since the defendants are the legal heirs of the original alienees, the burden is cast on them.
40. In the present case, the Defendants 1 and 2 are the sons of the original vendee i.e., Appadamma under Ex.B-2 and Appadamma is the mother of daughter-in-law. So the burden is cast on them to prove that prior to purchase, their predecessor in title i.e., Appadamma made reasonable enquiries with regard to existence of legal necessities for execution of Ex.B-2.
41. The original vendee Ramba Appadamma under Ex.B-2, died long back and therefore, the suit was instituted against her legal heirs, who are the Defendants 1 and 2. These two defendants also died during the pendency of the suit i.e., even before the trial of the suit commenced and their legal heirs were added as Defendants 4 to 15. Further the Defendant No. 3 is the adopted son of Suramma, who is daughter of the sister of late Perinaidu and both mother-in-law and daughter-in-law executed Ex.B-4 with respect to Item No. 11 in the plaint schedule property in favour of Adapureddi Appalanaidu, who is the brother of Suramma. After the death of Adapureddi Appalanaidu, Suramma enjoyed the property and after her death the Defendant No. 3 is enjoying the property and now the burden is cast on him to prove the legal necessity of both the widows to execute Ex.B-4. Therefore, virtually the third generation of the original vendees, are the contesting defendants in the suit and the burden is cast on them to prove the legal necessity of mother-in-law and daughter-in-law for executing Exs.B-2 and B-4.
42.. In order to discharge the burden placed on them, the defendants relied on the recitals in Ex.B-2 sale deed and other evidence on record and contended that Exs.B-2 and B-4 were executed to meet the legal necessities. But the plaintiffs relying on the decisions reported in Kishori Lal v. Bhawani Shankar, AIR 1940 PC 145, contended that recitals alone cannot be relied upon and they have to be substantiated and corroborated by other evidence. But from a perusal of the facts in this judgment Kishori Lal v. Bhawani Shankar (supra), it is clear that this judgment is not applicable to the facts of the present case, inasmuch as it was a case where a deed of mortgage and the recitals therein were under challenge. That being the subject-matter, it was held as noted above. But the facts and circumstances in the present case are all together different.
43. There are later judgments of Privy Council directly on the point involved in the present case. In Govindu v. Venkatapathi, AIR (33) 1946 Mad. 427. Leach, C.J., speaking for the Bench held that where owing to the lapse of time it is impossible to produce evidence of necessity in support of an alienation by a Hindu widow or evidence of inquiry by the alienee and there is no ground for suspecting abuse by the widow of her power to alienate for a necessary purpose, the Court can disregard the ordinary rule of Hindu Law and draw an inference in favour of the validity of the alienation.
44. In similar circumstances in Banga Chandra v. Jagat Kishore, AIR 1916 PC 110, it was held as under:
'7. But in such a case as the present their Lordships do not think that these recitals can be disregarded, nor on the other hand, can any fixed inflexible rule be laid down as to the proper weight which they are entitled to receive. 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 light 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 recitals 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.'
45. Further in Chintamani Bhatka Venkata Reddi v. Rani Saheba of Wadhwan, AIR 1920 PC 64, it was held as under:
'9. It is not disputed that the onus lay upon the defendant to prove the necessity for the sale, but having regard to the great lapse of time since the transaction took place, that is, about 82 years, perhaps the highest on record, it will not be reasonable to expect such full and detailed evidence as to the state of things would gave rise to the sale in question as in the case of alienations made at more or less recent dates. In such circumstances, presumptions are permissible to fill in the details which have been obliterated by time.'
46. Similarly in Mangniram Sitaram v. Kasturbhai Manibhai, AIR 1922 PC 163, it was also held as under:
'11. At the lapse of 100 years, when every party to the original transaction has passed away, and it becomes completely impossible to ascertain what were the circumstances which caused the original grant to be made, it is only following the policy which the Courts always adopt, of securing as far as possible quiet possession to people who are in apparent lawful holding of an estate, to assume that the grant was lawfully and not unlawfully made.'
47. In the decision reported in Thimmanna Bhatta v. Rama Bhatta, AIR 1938 Mad. 300, similar view, as laid down above, was expressed. In Govindu's case (supra) Leach C.J. speaking for the Bench, taking into consideration the above judgments Banga Chandra v. Jagat Kishore Chintamani Bhatka Venkata Reddi v. Rani Saheba of Wadhwan, Mangni Ram Sitaram v. Kasturbhai Manibhai and Thimmanna Bhatta v. Rama Bhatta, (supra) observed that 'we consider that the cases quoted provide ample authority for the Court disregarding the ordinary rule of Hindu Law and drawing an inference in favour of the validity of the alienation. In such circumstances it would be unreasonable not to recognize an exception to the rule; otherwise grave injustice might result'.
48. The Full Bench of the Madras High Court in Subrahmanyam v. Soorayya (supra) disagreed with the above view of Leach CJ. in Govindu's case (supra) in disregarding the ordinary rule of Hindu Law and in introducing an exception to the rule, on grounds of real or fancied hardship. The relevant portion in the Full Bench judgment of the Madras High Court at Paragraph No. 15 is extracted as under for better appreciation:
'We do recognize that Hindu Law as now administered by us is to a large extent Judge made law, but we are not prepared to follow Leach C.J. in 'disregarding the ordinary rule of Hindu Law' and in introducing 'an exception to the rule' on grounds of real or fancied hardship. Of recent years, views have been advanced and have also received judicial encouragement, which have tended to enlarge the rights of Hindu female heirs. Hindu reversioners have become the pet aversion of some Judges and matters have been stretched in favour of alienees from limited owners almost to bursting point. This point would, in our opinion, be reached if we were to hold in this case, without any recital of necessity in the sale deed and without any evidence of the existence of such necessity or bona fide inquiry by the alienee, that a sale by a limited owner by which she converted immovable property into cash, is binding on the reversioners solely by reason of the lapse of a long time since the alienation. The Hindu Law which recognizes the rights of reversioners, and it is not for us to abrogate well-established rules on the ground that they are not sufficiently progressive.'
49. But from a careful reading of facts of the above Full Bench judgment of the Madras High Court in Subrahmanyam's case (supra) and the judgment in Govindu 's case (supra), would disclose two contingencies with regard to proof of alienations made by life estate holder for legal necessities after long lapse of time viz., firstly where the deed of alienation contain no recitals whosoever as regards the legal necessity, but its challenge by reversioners after long lapse of time, where it is almost impossible to establish the legal necessity of limited estate holder or the bona fide enquiry made by the purchaser with regard to existence of legal necessity, since burden lies on the alienees; secondly where there are recitals in the document of alienation regarding the legal necessity of the limited estate holder and bona fide inquiry by the alienee, but its challenge after long lapse of time, where the alinees are not available to speak about the contents of the documents regarding the legal necessity, but however, some evidence is available to prove the legal necessity.
50. Answering the first contingency, where there are no recitals in sale deed and its challenge after long lapse of time by reversioners, Leach C.J. in Govindu's case (supra) speaking for the Bench held that production of evidence of necessity in support of alienation and evidence of enquiry by alienee is impossible, owing to long lapse of time. Considering the second contingency where there are recitals in sale deed with regard to existence of legal necessity or bona fide inquiry by the alienee, but alienees are not available to lead evidence for proving the legal necessity owing to long lapse of time, but some evidence is available to prove the legal necessity, the Full Bench of Madras High Court in Subrahmanyam's case (supra) held that owing to long lapse of time, presumption in favour of the validity can be drawn.
51. It is to be further noted that though the Full Bench of the Madras High Court in Subrahmanyam's case (supra) disagreed with the view expressed by Leach C.J. in Govindu's case (supra) in disregarding the ordinary rule of Hindu Law and drawing an inference in favour of the validity of the alienation, agreed with the actual decision in the case and further held as noted above.
52. Therefore the quintessence of the above two judgments i.e., Subrahmanyam v. Soorayya and Govindu v. Venkatapathi (supra) is to the effect that if there are recitals in the sale deeds executed by limited estate holders with regard to existence of legal necessity or bona fide inquiry by the alienees, but the alienees are not available to prove the same by leading evidence, by virtue of the long lapse of time, but however some evidence is available with regard to existence of legal necessity, the said recitals in the sale deed, would gain significance. However, where there are no recitals at all in the sale deeds executed by limited estate holder with regard to existence of legal necessity, the legal necessity can be established by the alienees, provided the said alienations are challenged within a reasonable period of time, after their execution.
53. Therefore, keeping in view the above proposition of law, it is necessary to look into the facts on record. From the judgment of the trial Court, the recitals in Ex.B-2 were noted in the un- numbered paragraph after the Paragraph No. 9. The same are extracted as under for ready reference:
'..........A perusal of recitals in Ex.B-2 sale deed reveals that the consideration is mentioned as Rs. 10,500/- out of this, Rs. 300/- is mentioned as promissory note debt due to one Goru Appanna contacted for meeting the expenses in O.S. No. 743/34 on the file of the District Munsif Court, Chodavaram, Rs. 380/- is borrowed to purchase cattle and expenses for cultivation and Rs. 280/- for paying land revenue and for other expenses. Rs. 360/- is to discharge promissory note executed to Gompa Appalanaidu and Rs. 100/- promote debt due to Chalumuri Bangarayya Rs. 80/- for the expenses of Ex.B-2 sale deed.'
54. As already noted above, the Defendants 4 to 15 who are on record are the third generation of the original alienees, which means the controversy is between the third generation of alienees, regarding the proof of the legal necessity of the limited estate holder, while alienating the property in the years 1937 and 1943 under Exs.B-4 and Ex.B-2. The suit was filed in the year 1982 and this shows that after about forty years from the date of alienations, the suit came to be filed. Admittedly, both the plaintiffs and the defendants were minors and it is too much for the minors who are the second generation of the original vendees to speak under what circumstances the alienations were made by the limited estate holder and, therefore, the recitals in Ex.B-2 document as extracted above, would gain significance and the said recitals have to be believed, both on account of the explicit reference of legal necessity and also owing to the fact that the defendants are totally incapable of adducing any evidence in order to prove the legal necessity of the limited estate holder in the year 1937, which could have been possible only by their great grandfathers. Another factor, of course, as already discussed in the earlier paragraphs that the plaintiffs, nor their predecessors who are the original reversioners did not protest the alienations by limited estate holders in the year 1937 or 1943. No doubt such non-challenge may not affect their filing of the present suit, as held above, but filing after long lapse of time, resulted in obliteration of possible evidence. Therefore, in view of the recitals in the sale deed and in view of the peculiar facts and circumstances of the case, the presumption would enure in favour of the alienees.
55. Coming to the evidence available on record it is to be seen that P.Ws.2 and 3 stated that they do not know the financial position of both the widows. Though D.W.1 was examined, his evidence does not through much light on the legal necessities of the widows, since he stated that he was very young by the execution of sale deed under Ex.B-4. But on the other hand the recitals in Ex.B-2 clearly shows that they were executed to discharge the debts, for cultivation and to pay land revenue etc. P.Ws.2 and 3 also deposed that they do not know the financial positions of both the widows. Admittedly Appadamma (mother-in-law) had to file a suit for maintenance against daughter-in-law. Further there is no evidence on record to show that daughter-in-law got any regular income or profits from agriculture. Further both the widows have entered into Court litigation and there is also no evidence that they have no other debts. In the light of these circumstances, though it is contended that the entire property is more than sufficient to meet the necessities of the single soul i.e., the daughter-in-law, it can be presumed that the financial position of both the widows was not sound.
56. It is to be further seen that it is very difficult after lapse of long time, particularly when the original reversioners are not on record as on the date of the filing of the suit, nor the original alienees, to decide the rights of the parties. It is also pertinent to note that some of the items in the suit schedule property were given up, for various reasons. Further it is more difficult to reopen and settle the rights of all the parties at this distance of time, more particularly under the circumstances, which have already been discussed above. Hence, this Court has no other option to believe the recitals made in Ex.B-2 and similarly under the circumstances in which Ex.B-4 was executed.
57. Further in Chintamani Bhaktha's case (supra) it was held that presumptions are possible and permissible to fill in details which have been obliterated by time and that if the deeds are challenged at nearest point of time, the independent evidence requires to be adduced, but if time passes and people die, the recitals assume significance. The Hon'ble Apex Court in Sree Sree Iswar Gopal Jieu Thakur v. Pratapmal Bagaria and Ors. 1951 SCR 332, held that where the issue is whether there was legal necessity for a particular transaction, if all the original parties to the transaction and those who could have given evidence on the relevant points have passed away, a recital consisting of the principal circumstances of the case assumes greater importance and cannot be lightly set aside. In the decision reported in Gangadharan v. Janardhana Mallan, : AIR1996SC2127 , the Hon'ble Apex Court held that on an overall consideration of fact, if it is found, that the sale consideration had been utilized for satisfaction of antecendent debts, the purchaser had also satisfied as regards legal necessity of alienation, a belated challenge after twelve years in that case, could not be entertained.
58. As already discussed above, since the legal necessities are proved from the recitals and also from the other circumstances, the sale deeds executed prior to 1943 i.e., executed more than forty years before filing of the suit, cannot be negated.
59. The Court below relying on the judgments of other High Courts held that though presumption can be granted with regard to execution of sale deeds under Section 90 of the Evidence Act, but the contents of the documents cannot be given presumption and they have to be proved by leading evidence and the Court below also doubted the passing of the consideration under Ex.B-2. This finding cannot be accepted in view of the above discussion. The disputed documents were more than forty years old and in view of the facts and circumstances of the case and following of the judgments of the Apex Court, recitals in sale deeds were relied upon to come to the conclusion that they were executed to meet the legal necessities. In these circumstances and in the absence of any evidence to show that the recitals in Ex.B-2 are not genuine, the same cannot be doubted, and the presumption under Section 90 of the Indian Evidence Act, has to be invariably given.
60. Therefore, considering the material available on record and in view of the above discussion and following the decisions referred to supra, the substantial question of law raised by the Counsel for the plaintiffs is answered in favour of the defendants and finding of the Trial Court in this regard is confirmed and the findings of the lower appellate Court are set aside.
61. The finding with regard to legal necessities is already given above. Now the point is with regard to passing of consideration. As already discussed above presumption has to be given in favour of the recitals. Further as per the decision reported in Rani v. Santabala, : 2SCR603 , the burden is on the plaintiffs to prove that the sale deeds were not supported by consideration. P.Ws.2 and 3 who were examined on behalf of the plaintiffs did not lead any evidence that no consideration was passed on while executing Exs.B-2 and B-4. Hence, they failed to discharge the burden placed on them. Therefore as per the decision of the Apex Court, since the recitals in sale deeds show that consideration was passed on and the other circumstances discussed above, show the existence of legal necessity and since the sale deeds were challenged after long lapse of time and there are no grounds to doubt the bona fides presumption has to be given in their favour.
62. The Counsel for the plaintiffs relying on the decision of the Madras High Court in Govindu's case (supra) contended that since daughter-in-law alienated the widow property under Ex.B-2 in favour of her mother no presumption for legal necessities can be extended. The law laid down in this judgment, cannot be made applicable to the present facts, since there is no evidence on record to show that daughter-in-law intentionally executed Ex.B-2 in favour of her mother for a meager amount. On the other hand, both the widows executed Ex.B-1 owing to a compromise in a judicial proceeding and in Ex.B-2 there are specific recitals which speak about the existence of legal necessities and the other evidence and circumstances available on record also justify the execution of Ex.B-2. In these circumstances, the argument sought to be raised on behalf of the plaintiffs that Ex.B-2 was executed in favour of close relative for a meager amount, intentionally to defeat the rights of reversioners, cannot be accepted. Further as per the decision of the Full Bench of the Madras High Court in Subrahmanyam v. Sorrayya (supra), presumption in favour of alienations are permissible in the light of recitals in sale deed with regard to existence of legal necessity.
63. With regard to Ex.B-3 Will it is to be noted that as recorded by both the Courts the same is not proved by examining any of the attestors and as observed by the Trial Court the properties mentioned in the said Will are not suit property, and as both the Counsel in this appeal confined their dispute only with regard to Ex.B-2, on which finding is already given, the findings of the Courts below on Ex.B-3 are hereby confirmed.
64. In view of the above, the second appeal is allowed to the extent indicated above and the decree and judgment of the lower appellate Court is set aside and the judgment and decree of the Trial Court are hereby confirmed. No costs.