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RamadhIn Singh Vs. Gajraj Singh and anr. - Court Judgment

LegalCrystal Citation
Subject Family
CourtAllahabad
Decided On
Reported inAIR1939All513
AppellantRamadhIn Singh
RespondentGajraj Singh and anr.
Excerpt:
- .....the sale was executed for legal necessity and was valid. the trial court found that out of the sale consideration, rupees 2400, there was no necessity for rs. 1150. it decreed the suit on the condition of the payment of rupees 2400 by the plaintiff within two months. on appeal the learned civil judge found that there was legal necessity for a major portion of the sale consideration, that is rs. 2000, and upheld the sale and dismissed the plaintiff's suit. on appeal to this court, the decision of the learned civil judge was upheld by the learned single judge.2. it has been urged on behalf of the appellant that the sale was without legal necessity and was therefore invalid. as stated above, the sale was for rs. 2400. out of it, rs. 1250 were needed to pay off a mortgage dated 15th.....
Judgment:

Ganga Nath, J.

1. This is a plaintiff's Letters Patent appeal from the decision of a learned single Judge of this Court. The appeal arises out of a suit brought by the plaintiff against the defendants-respondents to set aside a sale deed executed on 18th August 1882 by the plaintiff's grand, mother, Mt. Kausilla, in favour of the defendants' ancestors. The plaintiff's case was that the sale was without legal necessity and was not binding on him. The property belonged to Tansukh Eai, who was the last male owner. He died in 1881 leaving his widow Mt. Kausilla, who succeeded to the property as a Hindu widow. She died in 1911 leaving a daughter, Mt. Inder Kuer, the mother of the plaintiff. Mt. Inder Kuer succeeded to the property on the death of Mt. Kausilla. Mt. Inder Kuer died in 1925 leaving the plaintiff as the heir. The defendants contended that the sale was executed for legal necessity and was valid. The trial Court found that out of the sale consideration, Rupees 2400, there was no necessity for Rs. 1150. It decreed the suit on the condition of the payment of Rupees 2400 by the plaintiff within two months. On appeal the learned Civil Judge found that there was legal necessity for a major portion of the sale consideration, that is Rs. 2000, and upheld the sale and dismissed the plaintiff's suit. On appeal to this Court, the decision of the learned Civil Judge was upheld by the learned single Judge.

2. It has been urged on behalf of the appellant that the sale was without legal necessity and was therefore invalid. As stated above, the sale was for Rs. 2400. Out of it, Rs. 1250 were needed to pay off a mortgage dated 15th August 1880 which had been executed by Tansukh Rai. Rs. 400 were paid in cash before the execution of the mortgage deed. According to the defendants, this money was needed for the marriage of Mt. Kausilla's daughter, that is the plaintiff's mother. Rs. 250 were paid before the Sub-Registrar. Rs. 500 were left with the vendee to be paid subsequently to the vendor when she needed it. It has been proved by the defendants that the whole of this consideration was duly paid to the vendor. The learned Civil Judge has found that out of this consideration there was a valid necessity for Rs. 2000. As regards the balance of Rs. 400 he was of the opinion that it was not taken at the time of the execution of the sale and that therefore, even if it was spent on valid necessities, it could not be regarded as such a necessity as to justify the sale. This opinion of the lower Court is not correct, because the money was left with the vendee and was taken in small sums from time to time when it was needed. This fact itself shows that this money was required for actual needs which were contemplated at the time of the sale. There is nothing to show that the needs for which the money was taken subsequently out of this balance of Rs. 400 did not form part of the needs that existed and were in the contemplation of the vendor at the time of the sale. If a person needs money for maintenance and leaves a part of the consideration with the vendee and takes money out of it as it is needed, it cannot be said that the alienation is not justified by legal necessity. Similarly a person might need money for the marriage or education of his children which might take place after the alienation.

3. In order to prove the validity of an alienation, a transferee ought to prove either that there was legal necessity in fact or that he made proper and bona fide inquiries as to the existence of such necessity and did all that was reasonable to satisfy himself as to the existence of such necessity. Even if he fails to prove that there was necessity in fact, the alienation will be; upheld if he proves that he made such inquiries as aforesaid and that the facts represented to him were such as, if true, would have justified the transaction. He| is not bound to see or prove that the money paid or advanced by him was actually applied to meet the necessity. There is nothing to show what needs were represented to the vendee and whether he did or did not make any inquiry to satisfy himself of the existence of the needs represented to him. Both the vendor and the vendee; have died and more than 50 years have passed since the sale. All the direct evidence that was available at the time of the sale has disappeared. Where such a long period elapses since the sale took place, it is not reasonable to expect such full and; detailed evidence of the circumstances which; gave rise to the sale as in the case of alienation at a more recent date, and presumptions are permissible to fill in the details which have been obliterated by time : vide Chintamanibhatla Venkata Reddi v. Rani Sahera of Wadhwan (1920) 7 A.I.R. P.C. 64.

4. In this case there is evidence to show, that the sale was made with the consent, direct or implied, of the persons who were interested in the reversion at the time of the sale. The sale deed and the receipts of the payment of the consideration were attested and signed by the own brother of the widow's husband and his first cousin. They were the persons who would have been entitled to succession if the widow and her daughter had died. The daughter who was the nearest reversioner entitled to succeed to the property on the death of the widow was a minor. Even she, after succeeding to the property, never challenged the validity of this sale during her life-time. Consent by reversioners affords sufficient evidence to show that the alienation was made under circumstances which rendered it lawful and valid. In Rangasami Gounden v. Nachiappa Gounden (1918) 5 A.I.R. P.C. 196 their Lordships of the Privy Council observed:

When the alienation of the whole or part of the estate is to be supported on the ground of necessity, then, if such necessity is not proved aliunde, and the alienee does not prove inquiry on his part, and honest belief in the necessity, the consent of such reversioners as might fairly be expected to be interested to quarrel with the transaction, will be held to afford a presumptive proof which, if not rebutted by contrary proof, will validate the transaction as a right and proper one.

5. The plaintiff has not produced any evidence to rebut the presumption which the consent of the reversioners raises in this case. It has been proved beyond any doubt that out of the consideration, at least Rs. 1250 were required to pay off a prior mortgage. There is nothing to show that it was possible to raise this sum of money without selling the property in dispute. In the absence of any such proof, it cannot be said that the sale of the property in dispute to raise this sum of money was not justified. It was not incumbent on the vendee to prove how the balance of the sale consideration was applied. All that was necessary for him to show was that there was a pressing need to meet which the sale of the property was essential. In Sri Krishen Das v. Nathu Ram their Lordships observed:

The statement that, 'where a father has sold ancestral property for the discharge of his debts, if the application of the bulk of the proceeds is accounted for, the fact that a small part is not accounted for will not invalidate the sale, although in itself a correct statement of the law, is not a complete statement of the law; a sale will not necessarily be invalidated wherever the part of the consideration not accounted for cannot be described as small.

The true question which falls to be answered in such cases is whether the sale itself was one which was justified by legal necessity. This is the point of view from which the matter should be approached.

Where the sale has been held to be justified, but there is no evidence as to the application of a portion of the consideration, a presumption arises that it has been expended for proper purposes, and for the benefit of the family.

6. In Gauri Shanker v. Jiwan Singh their Lordships again observed:

A sale of joint property will not be set aside merely because a part of the proceeds is not proved to have been applied to purposes of necessity. The real question that has to be considered is this : whether the sale itself was justified by necessity. If the purchaser has acted honestly, if the existence of a family necessity for sale is made out, and the price is not unreasonably low, he (the purchaser) is not bound to account for the application of the price.

7. Taking all these facts into consideration, we find that the learned Civil Judge was right in upholding the sale. There is no force in the appeal. It is therefore ordered that it be dismissed with costs.


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