1. It will be useful to give below a pedigree showing the relationship of the plaintiffs among themselves and with the transferors of the property in suit which is in dispute in this case:
Ajodhya Prasad, |
son, died 1870. |
Badam Kunwar, wife, |
died 1896. |
| | | |
Nanuhi, Manni, Gaura, |
daughter, predeceased daughter |
died 28th Badam Kunwar. died 1911 |
September = Raj |
1918= Bahadur, |
Bindesri Prasad, | |
______|___________________ | |
| | | |
Brij Bihari, Fateh Bahadur, | |
(plaintiff (plaintiff | |
No. 1.) No. 2.) | |
| | |
Banke Bihari Lal, Brij Mohan LaL, |
plaintiff No. 3. plaintiff No. 4. |
Lalta Prasad, son.
Brij Bhikna Lal son.
2. The plaintiffs are the sons of two daughters of one Ajodhia Prasad who died in 1870. At the time of his death he left a widow Musammat Badam Kunwar and three daughters Musammat Nannhi, Musammat Manni and Musammat Gaura. Brij Bihari the eldest of the plaintiffs is a son of Musammat Nannhi who died on 28th September 1918. Plaintiffs sued for the possession of certain properties which were transferred by Musammat Badam Kunwar on 17th February 1877 to one Abdul Majid, a Subordinate Judge at the time, and his two wives. Abdul Majid and his wives were in possession of the property and the present holder of the property is the defendant Shaikh Muhammad Nuh, son of Abdul Majid. The three daughters and two distant reversioners, Lalta Prasad and his son Brij Bhikan Lal, joined in making the transfer. Lalta Prasad was step-brother of Ajodhia Prasad. The case of the plaintiffs was that Brij Bihari was in existence at the time of the transfer in 1877 and the ladies could only transfer their life-interest. On the death of Musammat Badam Kunwar her daughters, Mannhi and Gaura, became entitled to a life-interest in the property as Manni had predeceased her mother. Musammat Gaura died in 1911 and the right of the plaintiffs to sue for possession came into operation on the 28th of September 1918 on the death of Musammat Nannhe.
3. The defence was that none of the plaintiffs was born in 1877 when the transfer was made and as the transfer was made by the life-holder and all the then existing immediate and presumptive reversioners the sale was binding on the plaintiffs. There was a further plea that the sale was effected for legal necessity. There were other pleas with which we are not concerned in this appeal. The learned Subordinate Judge, in a judgment of considerable merit, held on all these points in favour of the plaintiffs and decreed their suit.
4. The points urged here in appeal by Sheikh Muhammad Nuh's learned Counsel, were:
(1) That Brij Bihari was not in existence in the year 1877.
(2) That the transfer, having been made by the life-holder with the consent of all the immediate and presumptive reversioners existing at the time, passed a full title to Abdul Majid.
(3) That at this distance, of time, the recitals in the deed which went to show legal necessity, should be accepted as good evidence, and the burden lay on the plaintiffs to disprove the existence of legal necessity, and
(4) that legal necessity was proved, having regard to the evidence obtainable after the lapse of so many years.
5. As regards Brij Bihari's age it is satisfactorily proved that he was in existence in 1877. It is true that his horoscope which was admittedly prepared soon after his birth was not produced but an explanation of the non-production has been offered by him. When he was entered at school his age on admission in September 1889 was given as 16. Having regard to the manner in which the age of a person is counted among Indians this would place the birth of Brij Bihari some time in 1874 (Exhibit 31, P. 67). The record of his career at the Kayasth Pathshala shows that he failed in the Entrance examination in 1892. He appears to have been a dull boy at school and if his birth is placed after February 1877 he would be just about 15 years of age at the time of his appearance for his Entrance examination. This was not likely to happen except in the case of boys whose career at school has been brilliant. When Brij Bihari Lal took up service the date of his birth was given as 1st November 1874. In 1877 Musammat Nannhi his mother was 28 years of age according to the registration endorsement on the sale-deed in suit, and as a woman who had children, it is not likely that she would be without a child at that age. As regards the oral evidence there is the testimony of a witness for the defence, Ram Sahai, that at the time he gave evidence in 1921 Brij Bihari was two or three years less than 50. That statement would also fix the year of the plaintiff's birth at 1874. It was argued by the appellant's learned Counsel that the witness made a vague statement in cross-examination. If the cross-examination be read it would be seen that the witness had a very good idea of time. He fixed the death of Ajodhya Prasad at a time 50 years prior to 1921 which would be correct as Ajodhya Prasad died in 1870. He not only stated that Brij Bihari was two or three years less than 50 but relatively to the marriage of Gaura Bibi he stated the time when Brij Bihari was born.
6. On behalf of the plaintiffs Monmohan Lal, 70 years of age in 1921 and a family friend, deposed that Brij Bihari was born three or three and half years after the death of Ajodhya Prasad, that is, after 1870. Another witness, Shiam Kishore, about 80 years of age, and a relation of the family stated, that Brij Bihari was born four or live years after Ajodhya Prasad's death. This Shiam Kishore is father of Raj Bahadur who was married to Musammat Gaura. There is no evidence on behalf of the defence in conflict with this overwhelming evidence to prove that Brij Bihari was born in 1874, that is, prior to the execution of the sale-deed in suit.
7. Next we come to the question of legal necessity and how it is to be considered. It was first argued that there was a presumption of legal necessity as the three daughters of Badam Kunwar and the distant reversioners were parties to the deed. The presumption however is not strong in the present case because Brij Bihari was in existence at the time of the transfer and the daughters of Badam Kunwar were young at the time and capable of bearing children who would ultimately be full owners of the property in suit. The learned Counsel for the appellant relied on the Privy Council case of Rangasami Gounden v. Nachiappa Gounden, 50 Ind. Cas. 498 : 42 M. 523 : 36 M.L.J. 493 : 17 A.L.J. 536 : 29 C.L.J. 539 : 21 Bom. L.R. 640 : 23 C.W.N. 777; (1919) M.W.N. 262 : 26 M.L.T. 5 : 10 L.W. 105 : 46 I.A. 72 (P. C) where one of the results summarised by their Lordships was: '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 alianee does not prove enquiry 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'.
8. In the present case the one important person Brij Bihari who was to be expected to be interested to quarrel with the transaction was not a party to it. There are cases of the Bombay and Calcutta High Courts based on the Privy Council ruling in Kooer Goolab Singh v. Rao Kurun Singh 14 M.I.A. 176 : 10 B.L.R.P.C. 1 : 2 Suth P.C.J. 474 : 2 Sar. P.C.J. 722 : 20 E.R. 753 which lay down that such a presumption does not arise when the reversioners who joined in the transfer were ladies or life-holders. The first case which we may refer to is that reported in Varjivan Rangji v. Ghelji Gokul Das 5 B. 563 : 6 Ind. Jur. 38 : 3 Ind. Dec. (N.S.) 370. In this case the widow had made alienation with the consent of her daughter Bai Vakhat, and the Court observed:
Nor can the mere concurrence of Bai Vakhat although the nearest in succession (having regard to the state of dependence in which all women are supposed by Hindu Law to have their being) be regarded as affording the slightest presumption that the alienation was a justifiable one.
9. It may be mentioned that in this Bombay case Bai Vakhat would have been full owner of the property on her succeeding thereto. This view was re-iterated by the Bombay Court in Vinayak v. Govind, 25 B. 129 : 2 Bom. L.R. 820 and followed by the Calcutta High Court in 14 M.I.A. 176 : 10 B.L.R.P.C. 1 : 2 Suth P.C.J. 474 : 2 Sar. P.C.J. 722 : 20 E.R. 753 Bepin Behari Kundu v. Durga Charan Banerji 35 C. 1086 : 12 C.W.N. 914 : 8 C.L. 120. In the Calcutta case also the learned Chief Justice referred to the position of dependence of women in India and refused to hold that their joining as reversioners in a transfer by a Hindu widow raised any presumption of the validity thereof. As already pointed out, Lalta Prasad and Brij Bhukan were very distant reversioners with very small hope of reversion, having regard to the youth of the three daughters of Badam Kunwar existing in 1877. On a point of law, therefore, we are of opinion that there is no presumption of legal necessity in favour of the defendant-appellant and the evidence on the record must be examined without any bias in the defendant's favour.
10. It was pointed out by the appellant's learned Counsel that it was no fault of the defendant that the matter was delayed so long before it was brought to Court. On this ground he desired sympathy of the Court with the position of the defendant who would find considerable difficulty in proving the validity of a transaction nearly 50 years old. At the same time, it may be remarked, that it was not the fault of Brij Bihari that the litigation was delayed. A suit for declaration could be brought by him only before he attained the age of 21 when presumably he would not have sufficient funds to start upon an expensive litigation. If he was not capable of bringing a suit for declaration before he attained the age of 21 he had to wait till the reversion fell to him on the death of the last surviving daughter of Badam Kunwar. This happened in September 1918 and the suit was instituted about, two years later in Noveniber 1920. The learned Counsel, on account of the great lapse of time since the transaction, submitted that the declaration made in the deed of sale should be accepted by the Court at its face value. Reference was made to the observations of their Lordships of the Privy Council in Nanda Lal Dhur Biswas v. Jagat Kishore Acharjya 36 Ind. Cas. 420 : 44 C. 186 : 20 M.L.T. 335 : 31 M.L.J. 563; (1916) 2 M.W.N. 336 : 4 L.W. 458 : 18 Bom. L.R. 868 : 14 A.L.J. 1103 : 24 C.L.J. 487 : 1 P.L.W. 1 : 21 C.W.N. 225;10 Bur. L.T. 77 : 43 I.A. 249. (P. C). At page 196 of the report those remarks are printed:
But in such a case as the present their Lordships do not think that these 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.
11. Then they refer to the lapse of time leading to the disappearance of evidence and proceed to observe: -
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 truth. The recital is clear evidence of the representation, and if the circumstances are such as to justify a reasonable belief that the 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.
12. We have, therefore, to enquire as to the nature of the recitals and the circumstances existing at the time those recitals were made. In the present case when we come to examine the contents of the document we find that the vendee, a man learned in law, has not confined himself to a narration of the actual existing circumstances of the time but has taken pains to stop all possible attack in future on the transfer. First of all the deed starts with a declaration that Musammat Badam. Kunwar alone, on purchase of the property benami in the name of one Lala Chandi Din, became owner of the property. In case this should not prove correct, it is recited that on the death of Ajodhya Prasad, Badam Kunwar alone became full owner and not only a life-holder. A third position is then taken up that if Musammat Badam Kunwar was considered to be life-holder there was the consent of all the near and distant relations to the transfer and so the transfer will inure as of full title. Even if the consent of the reversioners be not sufficient then a detail is given of alleged legal necessities which led to the making of the transfer by a Hindu widow. Obviously the vendee did not believe in all these recitals which were only put in by way of precaution to ward off every possible attack. At the time of the sale there was a mortgage of Rs. 2,000 on the property executed by the benami holder Chandi Din. No mention is specifically made in the sale-deed as to why that mortgage had been executed. The amount due at the time of the sale on that mortgage is not stated. The recital regarding legal necessity is in the following words:
I have sold these shares for the payment of the money borrowed for the marriage of my daughters, for the funeral ceremonies of my husband, for the payment of Government revenue and for other things which I, Musammat Badam Kunwar have done and am about to do for the benefit of the soul of M. Ajodhya Prasad with the consent of Lalta Prasad, Brij Bhukan Lal and the daughters.
13. It is admitted that two of the daughters, Nannhi and Manni, were married during the lifetime of Ajodhya Prasad. The case of the defendant was that Gaura was married and her gauna ceremony was performed subsequent to the death of Ajodhya Prasad. The oral evidence however is in favour of the plaintiffs' contention that Gaura also was married during the lifetime of' Ajodhya Prasad. In the recital no mention was made of any gauna ceremony. The defence witness Ram Sahai places the marriage of Gaura about the time of Ajodhya Prasad's death. He stated that the marriage took place more than 51 or 52 years prior to the time of his making the deposition and that Ajodhya Prasad died 50 years before that time. The plaintiffs' witnesses Manmohan Lal and Shiam Kishore deposed that this lady was married during the lifetime of Ajodhya Prasad. Looking at the age of Musammat Gaura to be about 20 years in 1877 when the sale-deed in suit was registered, it does not seem likely that in 1870 when she was about 13 years of age she would have remained unmarried when she belonged to a respectable Kayastha family which was not indigent. The plural number as regards daughters, used in the declaration indicates that the recital was a random one and did not originate from any particular knowledge or enquiry. As regards the funeral ceremonies, it is not likely that money would be due for expenses thereon, for seven years later, when no documentary evidence is forthcoming. The payment of Government revenue is not supported by any evidence. The two witnesses Abdul Ghani and Hari Prasad produced to depose to an enquiry regarding the necessity make no mention of any arrears of revenue. It is also significant that revenue and realisations of the correct year of sale were taken into consideration and adjustment was made by a small deduction from the price of the property. As to the performance of religious ceremonies for the benefit of the soul of Ajodhya Prasad the only evidence is that the lady built a temple near her house in 1874 or 1875. It is not clear that this building of a temple was intended to give repose to the soul of Ajodhya Prasad.
14. Reverting to the Privy Council case quoted by the appellant's learned Counsel the circumstances there were that the lady who made the transfer did not have sufficient funds. Enquiry as to the circumstances of the widow who made the transfer is discussed at pages 197 and 198 of the report. In the present case there is no suggestion whatever that Ajodhya Prasad left any debt behind him. The defence witness Ram Sahai has stated that the income from the property at the time of the death of Ajodhya Prasad was about Rs. 2,000 or Rs. 2,500 per annum. The daughters were all married and this would be sufficient income to support a Hindu widow. In 1873 she received Rs. 7, 394 from Government who acquired a certain house belonging to her (Exhibit (6, p. 51). It is said that subsequently she built a house whose value was assessed by a Commissioner at Rs. 2,000 and a temple which Ram Sahai defence witness states cost Rs. 1,500 for Rs. 1,600. Even taking this expense into account we find she had Rs. 4,000 to spare out of the money received as compensation. Such a sum would be sufficient to perform the gauna ceremony, even if one was performed by her of Musammat Gaura. Taking the expense at the highest as stated by the plaintiffs witness Manmohan Lal to be Rs. 1,500 (Ram Sahai would fix it at a much smaller figure) the widow would have sufficient funds independently of the zemindari property to defray such an expense. In the present case, therefore, there is no question about the widow lady having sufficient property to support herself. It appears that even after the sale of the property in suit, when she made a gift to her daughters in 1899 (p. 77) she had property on which revenue of Rs. 508 per annum was paid at the time. We hold that there was no legal necessity for the widow to make the transfer.
15. The appeal fails and we dismiss it with costs including in this Court fees on the higher scale.