1. This is a plaintiffs' appeal arising out of a suit for recovery of possession of property which was transferred so long ago as 16th January 1865 under a sale-deed executed by Mt. Chunni, the mother, and Mt. Tursa Kunwar, the widow of Jawahir Lal, deceased, whose reversioners the present plaintiffs are The learned Subordinate Judge found that the sale could not have been without legal necessity, and the transferees had discharged the burden that lay on them. It appears that Jawahir Lal, when he died, left a mother and a widow named above and a daughter Mt. Jhamman Kunwar. Probably Mt. Jhamman Kunwar's son Jagannath Prasad was not born then. Jhamman Kunwar was married to Raghabar Dayal who was the son of Chhote Lal. If Jagannath Prasad who was born subsequently had survived Mt. Jhamman Kunwar his mother, the plaintiffs would have had no locus standi to sue. As it happened he died on 9th March 1917 and his mother died after him on 14th July 1921. Succession accordingly opened on the death of Mt. Jhamman Kunwar and the plaintiffs are entitled to challenge this old alienation. The fact that this is a very old transaction as to which oral evidence has by mere lapse of time become almost extinct is patent. It would be very hard on the representatives of the original transferee to expect complete and exhaustive evidence showing the way in which the money obtained by the ladies was utilized for purposes of necessity.
2. The deed, however, contains an express recital to the effect that decretal amounts of certain named creditors and others were due by the executants' ancestor, and they had borrowed money under bonds and pro-notes from Chhote Lal and made payments to those creditors. The sale consideration, which was Rs. 4000 was set off against the entire amount which had been so borrowed for the payment of the debts. The executants acknowledged that they had applied the amount towards the payment of their ancestral debts. Recitals in a deed of sale with regard to the existence of legal necessity for an alienation by a Hindu widow are not in themselves evidence of such necessity without substantiation by evidence aliundi, Brij Lal v. Mt. Inda Kunwar A.I.R. 1914 P.C. 38. But even though the onus lies upon the legal representatives of the transferee to prove the necessity for the sale yet having regard to the great lapse of time, it would not be reasonable to expect that full and detailed evidence would be forthcoming as to the state of things which gave rise to the sale-deed in question, as would be the case if alienations made at more or less recent dates were concerned. In such circumstances presumptions are permissible to fill in the details which have been obliterated by time: Chintamanibhatka Venkata Reddi Pantulu Garu v. Rani Saheba of Wadhwan A.I.R. 1920 P.C. 64. Furthermore, it is not absolutely necessary for a transferee to establish the actual existence of family necessities, or to show that the money advanced by him was utilized for such purposes. 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 existence. The recital in the document is clear evidence of a 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: Banga Chandra Dhur Biswas v. Jagat Kishore Acharjya Chawdhuri A.I.R. 1916 P.C. 110.
3. We have therefore to consider whether the circumstances of this case are such as would justify us in holding that the recital contained in the sale-deed was correct and that the representation made to the transferee was true, or that reasonable enquiry would have shown that it was well-founded.
4. In 1865, several years after Jawahir Lal's death, when Mt. Jhamman Kunwar must have been alive, and indeed it is the plaintiffs' case that she was at that time the daughter-in-law of Chhote Lal, there could be no reasonable expectation that she would not give birth to any male child, so that after the death of the two ladies the property would go over to distant reversioners. It is therefore impossible to presume in favour of the plaintiffs as the learned Counsel for the appellants asks us to presume, that Chhote Lal might have had a design in his mind to protect the interest of his son who had married the daughter of Jawahir Lal.
5. It is also clear to us that there is no force in the contention strongly urged on behalf of the appellants that the estate in the hands of the widows was large, and that the income which they derived from it were ample and adequate for the purpose of paying off all the outstanding debts of the deceased owner in addition to maintaining the ladies. Two villages Ulaithapur and Maheshpur had been usufructuarily mortgaged under a deed dated 16th July 1859, and were not redeemed till within a couple of months of the execution of the disputed sale-deed. The ladies therefore could not have accumulated any income arising out of this property which would have sufficed for the purpose of paying off the debts that might have been outstanding. Village Katni had been sold in the lifetime of Jawahir Lal, and its sale consideration realized not long after August 1861. Whether the ladies utilized this consideration in paying off certain other old debts, or whether they spent it for some other purpose, is not a question which is capable of a definite answer now. The transferee, however, was not responsible for any past mismanagement by the Hindu widows. There remained village Gularia. The learned advocate for the appellants has drawn our attention to the khewat and the khatauni printed on pp. 115 and 128 of the book and tried to show that the net profit is considerable. But these documents are not a safe guide to the profits of this village in the year 1864, for they are documents which were prepared in 1919 to 1920. On the other hand the receipt printed at p. 151 shows that the village was leased out in 1863 and the total annual income then was about Rs. 325. This would hardly have been sufficient to maintain the two widows and their daughter. That the income was found insufficient by Jawahir Lal himself is clear from the circumstances that during his lifetime he was borrowing from time to time small sums of money on registered documents. On 12th December 1859 he borrowed Rs. 200, and created a further charge on the mortgaged property, and agreed to allow the mortgagee to deduct Rs. 24 per year out of the taufir payable to him. On 26th May 1860 he again borrowed a further sum of Rs. 200 with interest at 1/12 per cent per mensem. On 1st March 1861, Rs. 300 bearing interest at 2 per cent per mensem were borrowed by him and a share in village Gularia was hypothecated. On 10th March 1861 he had to borrow a sum of Rs. 100 by executing a bond. Then on 22nd March 1861 he borrowed a further sum of Rs. 200. It is not by any means clear that these are the only documents which he executed and the only loans he took. But they do indicate that even Jawahir Lal found himself driven to borrowing small sums of money from time to time in order to meet his necessities. It was therefore not at all strange if at his death his widows were faced with the same difficulty, particularly when they had to discharge the previous debts which had been left unpaid by Jawahir Lal. There was some dispute between Mt. Chunni and Mt. Tursa Kunwar, and they referred their dispute to arbitration, and the arbitrators delivered an award on 18th August 1861. That award provided that they should take the property half and half and pay the debts due from Jawahir Lal half and half, and that so far as possible the payment of the debts should be made out of the profits; but that both the parties had power to sell or mortgage the property belonging to each of them to such an extent as was needed to pay off the debts due as well as to meet some purely household wants.
6. The contention before us is that this award somehow or other curtailed the powers which Mt. Tursa Kunwar possessed as a Hindu widow. We are unable to go to this length. No doubt Mt. Chunni and her legal representative might have been in a position to enforce the terms of this award against Mt. Tursa Kunwar, but it is difficult to hold that by virtue of this award the powers of Mt. Tursa Kunwar were curtailed and that she was deprived of the ordinary rights of a Hindu widow to transfer property for legal necessity. The plaintiffs cannot claim to be the representatives of Mt. Chunni and as such entitled to enforce the terms of this award against her. Apart from this the award itself provided for their right to transfer the property in case of necessity and for the purpose of paying off the debts of the deceased, though no doubt it directed that as far as possible the debts should be paid off out of the profits. The defendants have produced documentary evidence to show that Jawahir Lal was heavily indebted. They do not profess to supply an exhaustive list of all the debts owing from him. These debts can be classified into two groups, (a) those due to Chhote Lal and (b) those due to other creditors. The endorsement on the back of the bond of 12th December 1859, shows that the entire amount of principal due on it was paid off by Chhote Lal. It came to Rs. 200. Again the endorsement on the mortgage-deed dated 1st March 1861 shows that Rs. 425 were paid to the mortgagee by Chhote Lal. Similarly the bond dated 10th March 1861 shows that Rs. 100 were borrowed from Chhote Lal in addition to the sum of Rs. 1500 which was due to him from Jawahir Lal. Lastly the endorsement on the mortgage-deed dated 22nd March 1861, shows that Rs. 280 were paid by Chhote Lal. These documents alone show that Rs. 2505 were due to Chhote Lal. It is possible that there might have been other pro-notes and bonds which are not now forthcoming. The rate of interest mentioned in the deed of 10th March 1861 was 2 per cent per mensem. If that rate applied to the previous loan of Rs. 1500 also the total amount due to Chhote Lal would be well over Rs. 4000. Even if a lower rate had been fixed for this amount, the amount due to Chhote Lal on these documents alone would not have been very much under Rs. 3000.
7. In addition to this indebtedness we find that Rs. 2000 were due to the mortgagees which were paid off shortly before the sale-deed was executed. There were Rs. 200 with interest at Rs. 1/12 per cent per mensem as debt due on 26th May 1860 on which a decree was subsequently obtained. There was also another decree for Rs. 424-12-0. This being the state of affairs of the family, there is no ground for suspecting that the recital in the sale-deed of 1865 was false and had been made intentionally with some ulterior motive. After a lapse of 60 years the defendants have succeeded in showing that at least Rs. 3000 out of Rs. 4000 would have been due to Chhote Lal. Under these circumstances they cannot be expected to lead complete evidence showing the necessity for the entire sum of Rs. 4000. That a representation was made to him by the two widows is clear from the deed itself. That Mt. Jhamman Kunwar, who remained alive till 1921, did not seek to get the deed avoided in her lifetime is also a circumstance which cannot altogether be ignored. The other reversioners, viz., the ancestors of the present plaintiffs also did not think it fit to obtain a declaration that this transfer would not be binding on the reversioners beyond the lifetime of the widows. They have waited for all these years and now call upon the great grandsons of Chhote Lal the original transferee, to justify the alienation. In view of the pronouncements of their Lordships of the Privy Council we agree with the view taken by the Court below that the defendants have under the circumstances of this case discharged the burden which lay upon them. The mere fact that Chhote Lal was connected with the ladies through the marriage of his son or that he belonged to the legal profession can at best raise a mere suspicion in one's mind, which cannot be made the basis for a finding that he had, either through undue influence over the widows or in some other improper way, managed to get entered in the sale-deed false recitals for the protection of his own family. In view of the long interval of time the evidence no doubt is meagre, but we are convinced that no case has been made out for interference with the decree of the Court below.
8. We accordingly dismiss this appeal with costs including fees in this Court on the higher scale.