R.N. Misra, J.
1. This is a plaintiffs appeal against the confirming decision of the First Additional Subordinate Judge, Cuttack.
2. The plaintiff sued for her own title and for a declaration that the defendants 1 to 4 had not acquired any title by virtue of their sale deeds. She also wanted affirmation of her possession and permanent injunction restraining the defendants from interfering with her right and possession.
3. The plaintiff became an orphan and the defendant no- 5 said to be her maternal uncle as de facto guardian transferred her entire property in favour of the defendant No. 1 on 7th June 1948 (Ext. C). The defendant No. 1 sold a part of that property under two separate registered sale deeds in favour of the defendants 3 and 4 on 9th February. 1951 (Ext. B) and 21st January. 1959 (Ext. A) respectively. A short genealogy would show the relationship of the plaintiff and the defendant No. 1.
| | Keluni (daughter)
Banamali Kanhei (D.1) (Plaintif)
4. The plaintiff alleged that the alienation by the de facto guardian was not for necessity nor for consideration and was not binding upon her. Accordingly, she wanted the alienations to be set aside.
5. The defendants 1. 3. 4 and 5 contested; the defendants 1 and 5 filed one joint written statement, while the defendants 3 and 4 filed another. They contended that the sale was for legal necessity and the minor had benefited by the transaction.
6. The trial court found that the defendant No. 5 was the maternal uncle of the plaintiff. He found that Ext. C was not valid nor genuine. There was no necessity for the transaction and as such the plaintiff was not bound by the alienation. He further found that the defendant No. 1 acquired no title under Ext. C and accordingly Exts. A and B were also not operative. He however, came to hold that the suit was barred by limitation as it was filed on 14th May, 1960 and applying Article 44 of the old Limitation Act of 1908, the suit was beyond the period of limitation. The plaintiff was found to have attained majority sometime in 1952 and, therefore, the bar of limitation was applied.
7. The learned appellate Judge found that the transaction was for legal necessity and for the benefit of the minor and, therefore, the sale deed was binding on the minor and she was not entitled to challenge the alienation hE accordingly upheld the decree of the trial court dismissing the suit.
8. Against this affirming decision of the learned appellate Judge, this appeal has been filed.
9. The counsel for the appellant claimed that the appellate court did not apply its mind to the facts of the case and committed serious errors of record, After I was satisfied that there was some truth in the contention raised by counsel I thought it proper to examine the entire evidence so that the actual position may be found out. The appeal was heard at considerable length and both sides referred to facts.
10. The sale in this case is by the de facto guardian of the plaintiff. It is well settled that to an alienation by the de lure guardian without legal necessity. Article 44 of the Limitation Act applied while, if the said alienation was by the defacto guardian the enlarged period of limitation of 12 years applied. After discussing a series of decisions of different Courts, his Lordship Mr. Justice Misra (My Lord the present Chief Justice) in the case of Naravan Prasad Rath v. Su-kumari Dei, ILR (1964) Cut 298 stated:
'The correct legal position of law may be summarised as follows:
(i) The observations in many of the authorities that a de facto guardian has the same power as a de jure guardian must always be restricted to cases where the alienation is for legal necessity and benefit of the minor;
(ii) While alienation by de jure guardian without a legal necessity is voidable in the sense used in the Contract Act, such alienation by a de facto guardian is void ab initio and is voidable hi the sense that the minor on attainment of majority may either ratify it or avoid it by treating it as a nullity;
(iii) An alienation by de facto guardian under the Mohammedan law, whether for necessity or otherwise, is void ab initio. The principle in such cases should not be applied to alienations by de facto guardian under the Hindu law when it is for legal necessity;
(iv) To alienations by de jure guardian without legal necessity. Article 44 of the Limitation Act applies, while to such alienations by de facto guardian, the enlarged period of limitation of 12 years applies.'
11. The learned trial judge was clearly wrong in holding that the suit was barred by limitation once he found that the sale was not for legal necessity and did not bind the minor.
12. But in view of the finding recorded by the lower appellate court that the sale is for legal necessity, it now becomes necessary to examine as to whether that finding is correct.
13. Ordinarily such a finding is on a question of fact and in second appeal there would be no scope for interference. But in this case I am satisfied, as I would presently show that the learned appellate Judge has committed serious errors of record and has omitted to consider material features and aspects available from the record in coming to his conclusions. Therefore, I propose to discuss the materials afresh to find out whether the conclusions reached by the lower appellate court which have reversed the conclusion of the trial court are justified.
14. The three items of legal necessity were indicated in the original sale deed, Ext. C. They were:
(i) Repayment of creditor's dues,
(ii) Repayment of loan made for the obsequies of the minor's father: and
(iii) To incur the marriage expenses of the minor.
The sale deed was for Rs. 1,000/-. D. W. 3 is the creditor of Netrananda. deceased father of the plaintiff. It is stated that Netrananda owed Rs. 300/- to him. The defendant No. 5 has been examined in this case as D. W. 4 and the defendant No. 1 has been examined as D. W. 6. There is absolutely no evidence as to what was the marriage expenses. On the other hand, several witnesses for the defendants have admitted that no relation either on the husband's side or the wife's side attended the marriage. The plaintiff was given in marriage as a Tolakanva. On the plaintiff's side the evidence was that the entire expense of the marriage was incurred by the husband D. W. 7. the barber stated:
'In Tolakanva marriage, the bride is sent to the groom's house wearing an old Sari. In that form of marriage, the groom's party spends everything.'
and in his evidence in chief he has stated:
'The plaintiff was married in Tolakanva form.'
D. W, 4 had also stated that the plaintiff's marriage was in Tolakanva form.
15. Thus, it is patent from this admission of D. W. 7 the barber, that no marriage expenses were incurred on the plaintiffs side. There is a further admission by D. W. 6 the defendant No. 1. that there was no talk of the plaintiff's marriage at the time when the sale deed Ext. C was executed. He actually stated:
'There was no talk nor any negotiation for the marriage of the plaintiff at the time of Ext. C. I did not attend the marriage of the plaintiff at Puba Kach-cha. I cannot say how much was spent and who spent that expenses for the marriage of the plaintiff.'
16. It is settled law that unless there is pressing necessity an alienation by a guardian -- more so by a de facto guardian -- cannot be upheld as a legal necessity. In view of the fact that there was no negotiation or talk of the plaintiff's marriage at the time of the transaction, marriage expenses cannot constitute legal necessity for the alienation. That apart, as a fact it has to be found that no part of the marriage expenses of the plaintiff was ever incurred by the defendant No. 5 or the defendant No. 1 and as such marriage expenses cannot be taken into account for considering legal necessity under Ext. C.
17. Coming to the question of expenses for the Sudhi ceremony. D. W 4 had stated that he did not incur any loan for the Sudhi expenses of Netrananda. As I have already stated, in Ext. C. it was clearly stated that the fifth defendant had incurred loan- for the said purpose and ithad to be paid. In view of his clear statement in his cross-examination at the triaL the Question of repayment of the loan incurred for the purpose of the Sudhi ceremony does not arise. D. W. 4 (defendant No. 5) in his evidence nowhere indicated the extent of expenditure incurred by him for the purpose of the Sudhi ceremony. D. W. 6 ('defendant No. 11 has stated that he spent about Rs. 125/- in the Sudhi ceremony and the defendant No. 5 had spent about Rs. 35/- in that connection and in all about Rs. 200/- had been spent for the Sudhi ceremony of Netrananda. It is not the case of the defendant No. 1 that he had incurred any loan for the Sudhi ceremony. nor was it his case that he was paid the aforesaid amount of Rs. 125/- which he had advanced by wav of loan to meet the expenses. The defendant No. 5 as has been already noticed, clearly admitted that he incurred no loan for the purpose. The defendants 1 and 5 were both relations of Netrananda who died leaving behind only a minor daughter. Thus, even if they had spent some money for the purpose, it must be attributed to be the outcome of their relationship with Netrananda and it cannot be said that they were entitled to recoup the amount from the estate. Thus. I must hold that there was no expense for the Sudhi ceremony incurred by loan, repayment whereof can constitute one of the necessities for Ext. C. It is therefore, to be concluded as a fact that neither marriage expenses nor expenses for the Sudhi ceremony are necessities -- much less legal necessities -- for the transaction under Ext. C.
18. As I have already indicated. D, W. 3 claims to be a creditor of Netrananda to the extent of Rs. 300/-. It was contended by counsel for the plaintiff-appellant that Purushottam the creditor was not reallv in a position to advance any loan as alleged. This witness has admitted in his cross-examination that he was in need and occasionally he used to sell his own lands for maintaining the family. Admittedly he is not a registered moneylender. He has not been able to produce any papers relating to his money lending business. The trial court dealing with this witness stated:
'Although D. W. 3 stated that he returned back the handnote it is not forthcoming from the side of the defendants. The explanation offered by the defendant No. 5 is that the handnote has been torn off. But when the defendant No. 5 was dealing with the properties and affairs of a minor he ought to have kept that paid up handnote with him. Apart from that, from the cross-examination of D. W. 3 it is seen that he has incurred loans from. Saraswati Dibya. Baja Dei. Giridhari Sahu. Babaji Sahu and Jagannath Khuntia and has sold lands to Bhima Samal for his maintenance. In such circumstances it cannot be believed that he reallv advanced any loan to Chakra-dhar and Netrananda as alleged. Although he has stated that he had money lending business in the years 1946 and 1947. but he has no papers to show that money-lending business. Hence, in the absence of any satisfactory evidence. I am unable to believe, that D. W. 3 really advanced the loan as alleged and the defendant. No. 5 repaid Rs. 300/- to D. W. 3 towards the alleged loan of Netrananda.'
The learned appellate judge nowhere referred to this evidence specifically and appears not to have been aware of the fact that such evidence existed.
19. It is incumbent upon the final court of fact, particularly in the case of a reversing decision this is an instance of reversal as all the material findings were being reversed -- to meet the reasonings of the trial court and indicate its own reasons for the conclusions to be reached. In the facts of the present case, it was the duty of the appellate Court to discuss the entire evidence afresh, take notice of the features which were duly noticed by the trial court and on his own independent reasonings, the appellate court should have come to the conclusions which it ultimately reached. This is an instance where the learned appellate Judge has failed to discharge his duties as a final court of fact. He has overlooked admissions of defence witnesses on very important features. He shirked his duty and avoided to discuss the evidence. On several occasions, he either misquoted the evidence or partially referred to it so that the true import of the evidence was not brought to the focus. He omitted to take stock of the entire material and failed to take a cumulative view of the materials. I am at a loss to know that the learned appellate Judge failed to discharge his duty with the minimum amount of care expected from a final court of fact and reached conclusions which it is very difficult for any prudent Judge on the materials on record, to reach. By his inefficient handling of the matter he compelled me to treat the second appeal as a first appeal and deal with the matter on facts.
20. It is the settled position in law that recitals in a deed of legal necessity do not by themselves prove lesal necessity and, as such, the mere narration in Ext. C is not very material. In a very recent case between Smt. Rani y. Santa Bala Debnath, (1970) 2 S. C. W. R. 787 = (AIR 1971 SC 1028) his Lordship Mr. Justice Shah (the present Chief Justice of India) has indicated:
'Legal necessity to support the sale by a limited owner must, however, beestablished by the alienees. A limited owner is competent to dispose of the whole estate in the property for legal necessity or for benefit to the estate. In adjudging whether the sale conveys the whole estate, the actual pressure on the estate, the danger to be averted and the benefit to be conferred upon the estate in the particular instance must be considered. Legal necessity does not mean actual compulsion; it means pressure upon the estate which in law may be regarded as serious and sufficient.'
21. Judged by these standards It must be held that the defendants have failed to discharge the burden that lay on them. Legal necessity has not at. all been established.
22. Mr. Mohanty for the respondents contended that the bar under section 100. Civil Procedure Code, applied to the facts of this case and in second appeal I am not to enter into facts. I would do well to refer to a decision of their Lordships of the Supreme Court in the case of Smt. Sonawati v. Sri Ram. AIR 1968 SC 466:
'The first appellate court did not refer to these important pieces of evidence. His conclusion cannot be regarded as binding upon the High Court in second appeal.'
It was again stated:
'Again, the appellate judge in arriving at its conclusion ignored very important evidence on the record and on that account also the conclusion was not binding on the High Court'.
As I have already indicated, the learned appellate Judge failed to discharge his duty to take stock of the entire material on record and came to a conclusion which is not supportable on the evidence on record. The bar under section 100. Civil Procedure Code, would not apply to such a case.
23. This is one of the instances where, taking of advantage of the helpless condition of the minor child who became an orphan, the near relations -- the defendants 1 & 5--have colluded together to eat up her property under the false pretext of sale for legal necessity. The purchaser is no other than a father's brother's son who was aware of the entire situation. The sale cannot be said to be at all binding on the plaintiff.
24. I would accordingly reverse the decree of the courts below and direct that the plaintiff's suit be decreed. The plaintiff shall be entitled to a declaration that the sales under Exts. C, B and A do not bind her interest. She would be entitled to the other reliefs prayed for. She shall also have her costs throughout.