1. These two cross-appeals arise out of the same suit. One Sheo PraSad Lal was the original owner of the property in suit. He died in 1868, leaving a widow Mt. Hansrani and three daughters Mt. Karorpati, Mt. Indarpati and Mt. Ramkali, Mt. Indarpati died before her mother. The latter died in 1910, leaving her other two daughters surviving her. Mt. Ramkali died in 1911 without leaving any issue and Mt. Karorpati thus became entitled to the entire property which her father had left. She died in 1928, leaving two sons who are the plaintiffs in this suit. They challenge certain transfers which were made by their mother Mt. Karorpati and their maternal grandmother, Mt. Hansrani. These alienations may be divided into three sets:
On 9th January 1877, Mt. Hansrani executed a simple mortgage bond for Rs. 600 in favour of one Parwarish Lal, by which she hypothecated a one anna share in the village of Barhara Baraipar and on 23rd November 1879, she executed a simple money bond for Rs. 609 in favour of the same Parwarish Lal. In 1882 Parwarish Lal sued for recovery of the amount due under both the above mentioned bonds and a compromise decree was passed for sale of a one anna two pie share in the village of Barhara Baraipar. The said share was sold in execution and it was purchased by the defendant's father who is now dead.
2. Mt. Hansrani executed three mortgage bonds, one on 29th July 1884, for Rs. 500; another on 4th June 1885, for Rs. 250 and the third on 12th February 1886, for Rs. 400, all three being in favour of the defendant's father. On 29th July 1890, the amount due under these three bonds was Rs. 2,650, and on that date Mt. Hansrani executed a sale-deed in respect of a 10 pie share in the same village in lieu of Rs. 2,250 out of the total amount of Rs. 2,650 which was due from her. Mt. Hansrani on some date which does not appear from the record, had executed a deed of gift in favour of her two daughters, Mt. Karorpati and Mt. Ramkali in respect of a six pie share each. On 9th September 1890, Mt. Karorpati executed a simple mortgage bond for Rs. 600 in favour of the defendant in respect of her six pie share. In 1893 the defendant sued on foot of that mortgage and obtained a decree and in execution thereof he purchased the said share.
3. It is alleged on behalf of the plaintiffs that there was no legal necessity for any of the above mentioned alienations. The defence is that all the transfers in question were executed by Mt. Hansrani and Mt. Karorpati respectively for legal necessity and are valid and binding upon the plaintiffs. The defendant also pleaded that the suit was barred under Section 11, Civil P.C., in respect of the first set of alienations. The Court below has accepted the plea of res judicata in respect of the first sot of alienations. It has held that the second set of alienations were for legal necessity, but that there was no legal necessity for the alienation made by Mt. Karorpati. Mt. Karorpati instituted a suit (suit No. 115 of 1921), to avoid the auction sale in favour of the defendant's father which had taken place on 20th December 1883, and that suit was ultimately dismissed by this Court on 30th March 1926. It is obvious that that judgment operates as res judicata in respect of the mortgage bond of 9th January 1877, the money bond of 23rd November 1879 and the auction sale of 20th December 1883. The appeal of the plaintiffs is chiefly directed against the lower Court's finding in respect of the mortgage bonds which were executed by Mt. Hansrani in 1884, 1885 and 1886 and the sale deed which she executed on 29th July 1890. The first of these documents is dated 29th July 1884 and under it a sum of Rs. 500 was borrowed, ostensibly in order to pay off two prior bonds dated 27th June 1884 and 28th June 1884, as well as certain other debts which are said to have been contracted for the marrisge of one of the daughters. This bond was executed by Mt. Hansrani's brother on her behalf and it was attested by Harihar Prasad, who was related to Mt. Hansrani and was a son of Parwarish Lal. According to the recitals in the bond Mt. Hansrani had to pay the two prior bonds of which mention has already been made and also had to meet the expenses of the marriage of her daughter. The second bond is dated 4th June 1885, and was for Rs. 250.
4. It was executed on behalf of Mt. Hansrani by the father of the plaintiffs and was attested by her son-in-law, Kishan Chand. According to the recitals in the deed the money was required because Mt. Hansrani had fallen into debt on account of her daughter's marriage and because she had had to purchase bullocks and pay Government revenue. The third bond was executed on 12th February 1886 and was for Rs. 400. It was executed on behalf of Mt. Hansrani by her son-in-law, Kishan Chand, and according to the recitals in the bond, the money was required in order to purchase more bullocks, to pay land revenue and to liquidate certain debts, Two witnesses have been examined on behalf of the defendant to prove legal necessity. One is a Kalwar named Jian and the other is Kishan Chand, son-in-law of Mt. Hansrani. Jisn's evidence as regards necessity appears to be based entirely on hearsay and such is also the case of Kishan Chand's evidence in respect of the bond of 1884. As regards the bond of 1885 and the bond of 1886, we have carefully scrutinized the evidence of Kishan Chand and we are of opinion that little reliance can be placed upon it. The question remains whether, apart from the oral evidence, there is material on the record which would justify the lower Court's finding that the alienations in question were made for legal necessity. There can be no doubt that the recitals in the various bonds as regards legal necessity have the appearance of having been carefully prepared as a safeguard in case of subsequent litigation; but on the other hand, we have to bear in mind that every one who could have thrown any light on the matter apart from Kishan Chand is dead and that the defendant was therefore faced with considerable difficulty in his task of proving necessity.
5. It was found by this Court in their judgment of 30th March 1926 (First Appeal No. 367 of 1922), that Mt. Indarpati was married in 1877 and it is admitted by Jian, a witness for the defendant, that Mt. Karorpati was married seven or eight years later, i.e., somewhere about 1884. It is true that Jian has said that Mt. Indarpati was married about 40 years ago, which if correct would be somewhere about 1890; but we do not think that much importance can be attached to this old man's calculation of time and it was clearly established in the previous litigation that Mt. Indarpati was married in 1877. Thus it is a fact that at the time when the first of these three bonds was executed Mt. Hansrani had a daughter to be married and that she was actually married at about that time. It is therefore not unreasonable to suppose that Mt. Hansrani may have been in need of borrowing money for the expenses of that marriage; and as regards the other necessities which are recited in the deeds, the payment of revenue is an obligation which has to be met by the zamindar and the purchase of bullocks from time to time is also necessary. It is of course impossible for the defendant, after all these years, to give any satisfactory proof as regards the existence of necessity or to establish that he made any inquiry in respect thereof, but the circumstances in this case are such that we think it is reasonable to assume that if an inquiry had been made, the existence of the legal necessity such as is recited in the bonds, would probably have been disclosed to the person making the inquiry. In Banga Chandra Dhur v. Jagat Kishore 1916 P.C. 110, their Lordships of the Privy Council struck a note of warning as regards placing too much reliance on recitals in deeds. They observe:
In general terms the facts recited would establish the necessity alleged, but it is well established, that such recitals cannot by themselves be relied upon for the purpose of proving the assertions of fact which they contain. Indeed it is obvious that if such proof were permitted the rights of reversioners could always be defeated by the insertion of carefully prepared recitals.
6. But they go on to remark that:
In such a case as the present their Lordships do not think that the recitals can be disregarded nor, on the other hand, can any fixed and 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 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 inquiry 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 inquiry would have confirmed its truth then when proof of actual inquiry 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.
7. Applying the principle enunciated by their Lordships in the above mentioned case to the facts and circumstances of the case before us, we are of opinion that if an inquiry had been made at the time when the deeds in suit were executed, legal necessity for the alienations would in all probability have been disclosed. This disposes of the plaintiff's appeal. The defendant's appeal is in respect of the hypothecation bond for Rs. 600 which the plaintiffs' mother executed on 9th September 1890, in favour of the defendant. The alleged consideration for that bond was as follows : (1) Rs. 200, being Mt. Karorpati's share of the balance of Rs. 400 which had remained due from her mother to the defendant in 1890. (2) Rs. 400 for the purpose of paying a loan which had been contracted by her husband and for other expenses. It is obvious that there was no legal necessity to pay the loan which her husband had contracted, and there was no sort of charge in respect of the money which was still owing from Mt. Hansrani. Moreover, the defendant's plea of legal necessity must fail also on a totally different ground. Mt. Karorpati had no Hindu widow's estate in the property which she sold, for it is conceded before us that Mt. Hansrani's deed of gift in favour of her daughters was not a case of acceleration. It is obvious therefore that a transferee from a Hindu widow has no right whatsoever to alienate the property so held, in such a way as to defeat the reversioners. No plea of legal necessity can arise in such a case. In the result we dismiss both appeals with costs.