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Harjan Rai and anr. Vs. Mahabir Tewari and ors. - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported in64Ind.Cas.474
AppellantHarjan Rai and anr.
RespondentMahabir Tewari and ors.
Cases ReferredRangasami Gounden v. Nochiappa Gounden
Excerpt:
hindu law - widow-alienation--consent of immediate reversioner--legal necessity--presumption. - - in fact, once the defendants proved that the consent of the immediate reversioner had been obtained, it raises a strong presumption of the existence of legal necessity for the transfer, which, if not rebutted by contrary proof, will validate the transaction as a right and proper one. this principle was clearly laid down by their lordships of the privy council in the case of rangasami gounden v......same into possession of it as a hindu widow; that she transferred the property without any legal necessity and that, therefore, the transfers are not binding on the plaintiffs, and that she died within 12 years of the suit and the plaintiffs are entitled to recover possession.2. on behalf of the defendants it was pleaded that bechu rai and bechan rai were members of a joint hindu family and that musammat lachmina kunwar's name was entered in the revenue papers merely for the bake of consolation; and that musammat lachmina kunwar died more than 12 years before the suit and the claim was barred by time. it was also urged that the plaintiffs were estopped under section 41 of the transfer of property act and section 115 of the evidence act from recovering possession of the property......
Judgment:

1. This is a plaintiff's appeal arising out of a suit for recovery of possession of certain immoveable property and mesne profits by avoidance of two sale-deeds, dated the 30th of June 1881, executed by one Musammat Lashmina, widow of Bechu Rai deceased, and Beshan Rai, the brother of her deceased husband. The present plaintiffs are the sons of Bechan Rai. The plaintiffs' case was that Bechu Rai and Bechan Rai were separated brothers; that Bechu Rai owned the property in dispute and on his death his widow Musammat Lachmina same into possession of it as a Hindu widow; that she transferred the property without any legal necessity and that, therefore, the transfers are not binding on the plaintiffs, and that she died within 12 years of the suit and the plaintiffs are entitled to recover possession.

2. On behalf of the defendants it was pleaded that Bechu Rai and Bechan Rai were members of a joint Hindu family and that Musammat Lachmina Kunwar's name was entered in the revenue papers merely for the Bake of consolation; and that Musammat Lachmina Kunwar died more than 12 years before the suit and the claim was barred by time. It was also urged that the plaintiffs were estopped under Section 41 of the Transfer of Property Act and Section 115 of the Evidence Act from recovering possession of the property. It was further pleaded that the transfers in question were for legal necessity and binding on the plaintiffs.

3. The Court of first instance found all the issues in favour of the plaintiffs except the one as to legal necessity, and that is the main point which arises for decision in this appeal before us. It appears that the plaintiff No. 2 was not born in the year 1881 when the sale-deeds were executed by Musammat Lachmina Kunwar and Beahan Rai. The plaintiff No. 1 was a minor of the age of about two years. His father Bechan Rai seems to have been the only reversioner then in existence, and there is no evidence on the record to show that there was any other reversioner or any other near kindred who could reasonably be expected to succeed on the death of the lady. Bechan Rai actually joined in the execution of the sale-deeds and he was present at the time of their registration, and the evidence is to the effect that he actually received the sale consideration, the whole of which was paid in cash at the time of registration. In addition to these circumstances there is the evidence of Mahabir, one of the defendants, to the effect that the money had been borrowed by the lady in order to pay off certain old debts. Apart from the evidence of Mahabir, however, we find that the transaction is a very old one. It was entered into by the lady with the full consent of Bechan Rai, the only reversioner at the time who could give his consent, the plaintiff No. 1 being a minor then, and that these transfers have remained unchallenged for all these 40 years. We also notice the fact that although both the plaintiffs are fairly old, the suit was not brought till the 15th of August 1918, nearly. 12 years after the death of Musammat Lachmina Kunwar as alleged by the plaintiffs themselves. We have, therefore, the circumstance that these sale deeds were executed with the full consent of Bechan Rai, who appears to have been the only reversioner then in existence who could give his consent. As was held by their Lordships of the Privy Council in Bajrangi Singh v. Manokarnika Bakhsh Singh 30 A. 1 : 12 C.W.N. 74 : 9 Bom. L.R. 1348 : 6 C.L.J. 766 : 3 M.L.T. 1 : 5 A.L.J. 1 : 35 I.A 1 : 17 M.L.J. 605 : 11 O.C. 78 (P.C.), it was not necessary for the defendants to prove that the consent of all the kindreds had been obtained. In fact, once the defendants proved that the consent of the immediate reversioner had been obtained, it raises a strong presumption of the existence of legal necessity for the transfer, which, if not rebutted by contrary proof, will validate the transaction as a right and proper one. This principle was clearly laid down by their Lordships of the Privy Council in the case of Rangasami Gounden v. Nochiappa Gounden 50 Ind. Cas. 493 : 17 A.L.J. 536 : 36 M.L.J. 493 : 29 C.L.J. 559 : 21 Bom. L.R. 640 : 23 C.W. N. 777 : (1919) M.W.N. 262 : 42 M. 523 : 26 M.L.T. 5 : 10 L.W. 105 : 46 I.A. 72 : 1 U.P.L.R. (P.C.) 66 (P.C.). In the present case there is absolutely no evidence adduced on behalf of the plaintiffs to rebut the presumption that the deeds had been executed for legal necessity. The plaintiffs were in a position to supply facts which might have shown that the income of the property in the hands of the widow wag sufficient for her maintenance and that no debts had been left by the deceased husband. No such evidence has been produced, nor is there any other evidence to rebut the presumption In these circumstances we think that the opinion of the Court below that the defendants have succeeded in proving that the transfers were for legal necessity, is correct. The appeal accordingly fails and is hereby dismissed with costs, including fees on the higher scale.


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