1. This is a Letters Patent Appeal. The plaintiff sued in 1925 to set aside a sale-deed executed on 24th October 1914, by the father and grandfather of the plaintiffs, who were at that period minors. The sale-deed purported to be for Rs. 3,550. The plaintiffs allege that the sale-deed was not for legal necessity. The Court of first instance decreed the suit unconditionally. The lower appellate Court reversed that decree and made the decree in favour of the plaintiffs conditional on the payment by plaintiffs of nearly all the sale consideration. In second appeal, a learned Judge of this Court has restored the decree of the Court of first instance.
2. The case deals solely with the question of the burden of proof on legal necessity. The sale consideration according to the sale-deed, consisted of Rs. 1,600 cash before the Sub-Registrar, Rs. 200 paid to one Babban Lal and Rs. 1,432 to be paid between the years 1915 and.1918. It was found that the latter amount of Rs. 1,432 was not in fact paid and this is admitted. Babban Lal was produced for the defendants in regard to the payment to him but he did not show that it was for any legal necessity existing at the date of sale and his evidence was not believed by the trial Court. The lower appellate Court did not allude to Babban Lal proving legal necessity and, therefore, that Court did not rely on his evidence for that purpose.
3. The lower appellate Court based its judgment largely on the fact that the sale-deed was executed by all the members of the family who were then adults and then stated:
Looking at this fact from the commonsense point of view, I think it raises a strong; presumption that the deed in question was executed for consideration and for legal necessity. In view of this fact and the presumption arising from it, I think the onus in the case before us shifted to the plaintiffs respondents and we have, therefore, to see whether the evidence produced on their behalf rebuts the presumption and discharges the onus.
4. The lower appellate Court then considered that the plaintiffs had failed to discharge that onus and, therefore, legal necessity was proved. The learned Judge of this Court did not agree with this view of the law. Certain rulings have been produced, such as Balwant-v. Babaji [l884] 8 Bom. 602 and Dhanraj Rai v. Ram Naresh Rai A.I.R. 1924 All. 912, but we consider that although the fact that all the adult members of a family joined in the execution of a deed of transfer is sufficient to supply any lacuna that may exist in the evidence of legal necessity, that fact alone cannot supply the evidence of legal necessity when there is no evidence of legal necessity on the record. Accordingly, as in the present case, the lower appellate Court relied solely on this presumption and the evidence of Babban Lal has not been believed, we consider that the judgment of the learned Judge of this Court was correct. We, therefore, dismiss this Letters Patent appeal.