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Karunakar Das Vs. Mst. Mahakuren and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtOrissa High Court
Decided On
Case NumberSecond Appeal No. 8 of 1957
Judge
Reported inAIR1960Ori170
ActsTransfer of Property Act, 1882 - Sections 53A
AppellantKarunakar Das
RespondentMst. Mahakuren and ors.
Appellant AdvocateP.C. Chatterjee, Adv.
Respondent AdvocateB.B. Mohanty, Adv.
DispositionAppeal allowed
Cases ReferredC) and Janaki Animal v. Narayanswami Aiyar
Excerpt:
.....[new india assurance co. ltd. v md. makubur rahman, 1993 (2) glr 430 and new india assurance co. ltd. v smt rita devi, 1997(2) glt 406, approved. new india assurance co. ltd. v birendra mohan de, 1995 (2) gau lt 218 (db) and union of india v smt gita banik, 1996 (2) glt 246, are not good law]. - it was further averred that the defendant made bona fide enquiries and was satisfied regarding the existence of legal necessity and advanced the loan. thus, it is well proved that the entire amount of rs. manubai, air 1954 bom 153, the learned judges of the bombay high court held that a contract of sale validly entered into by the widow would be defeated at the hands of the reversioner it a literal construction is placed upon the words 'person claiming under the transferor' because under the..........suit on 2-9-1953.2. the defence of the defendant was that the sale of the property in suit was for legal necessity. out of the consideration of rs. 500/-, rs. 400/-was adjusted towards the loans previously incurred by samari, the executant, and rs. 100/- was paid in cash on the date of the execution for meeting the medical expenses. it was further averred that the defendant made bona fide enquiries and was satisfied regarding the existence of legal necessity and advanced the loan. he further contended that he was entitled to the statutory protection under section 53a of the transfer of property act.3. the trial court, on a consideration of the pleadings, evidence and circumstances of the case, carne to the conclusion that the sale was for legal necessity and that consideration had.....
Judgment:

G.C. Das, J.

1. This appeal was filed by the 1st defendant against the reversing judgment of the learned Subordinate Judge Bolangir decreeing the plaintiff's suit. The facts are these: The plaintiff filed a suit for declaration of title and for recovery of possession on the ground that the disputed property belonged to his uncle Bhagaban Mahakur, who died in the year 1934. After his death, his widow Samari Mahakurani executed a deed of sale in favour of the 1st defendant for a consideration of Rs. 500/-. The 1st defendant on the strength of this sale deed disturbed his possession, as a result of which a proceeding under Section 145 of the Code of Criminal Procedure was initiated, and eventually, possession was found to be in favour of the defendant by an order of the criminal Court dated 10-7-1953. Accordingly, the plaintiff was constrained to file the present suit on 2-9-1953.

2. The defence of the defendant was that the sale of the property in suit was for legal necessity. Out of the consideration of Rs. 500/-, Rs. 400/-was adjusted towards the loans previously incurred by Samari, the executant, and Rs. 100/- was paid in cash on the date of the execution for meeting the medical expenses. It was further averred that the defendant made bona fide enquiries and was satisfied regarding the existence of legal necessity and advanced the loan. He further contended that he was entitled to the statutory protection under Section 53A of the Transfer of Property Act.

3. The trial Court, on a consideration of the pleadings, evidence and circumstances of the case, carne to the conclusion that the sale was for legal necessity and that consideration had passed. He also found the sale deed (Ex. D) to be genuine. Accordingly, in his opinion, the sale was binding on the plaintiff, and eventually, he dismissed the suit. The plaintiff carried an appeal in which the court of appeal below also came to the concurrent finding that Ex. D was a genuine document, but he found that out of the consideration of Rs. 500/-only Rs. 100/- was for legal necessity. He, however, relying on a Calcutta decision came to the conclusion that the defendant could not take the help of Section 53A of the Transfer of Property Act. In the result, he set aside the judgment of the trial courtand decreed the plaintiff's suit. It is against this decision that the 1st defendant has carried this appeal to this Court.

4. The contentions of Mr. Chatterjee, learned counsel on behalf of the appellant were two-told: (i) the trial court after a consideration of the evidence and circumstances came to a definite finding that there was legal necessity in existence for the entire amount of consideration and accordingly, he held that the document was binding on the plaintiff. The Court of appeal below without discussing the evidence and without giving any compelling reason disbelieved the creditors who were examined as D. Ws. 1 and 4 and came to a different finding holding that there was legal necessity only for Rs, 100/-; and (ii) the defendant was entitled to the statutory protection under Section 53A of the Transfer of Property Act.

5. Taking the first point into consideration, I find that the court of appeal below had not discussed the evidence of D. Ws. 1 and 4 but has merely said that he did not agree with the finding as to the legal necessity as had been found by the trial Court, it is significant to note that although the trial court had come to a conclusion that there was bona fide enquiry made by the transferee, the court of appeal below had not discussed that aspect of the case at all. The evidence of Ramkumar Misra (D. W. 1) was that the amount of loan that was taken previously from him by Samari was for household expenses).

The Court of appeal below came to a finding that the sum of Rs. 100/- which was advanced by D. W. 4 Balmukund Sahu was for purposes of purchasing seeds and it might be for legal necessity. But, overlooking this finding, he came to the conclusion that the legal necessity was only for Rs. 100/-. As regards the sum of Rs. 400/-, Rs. 100/- was paid to D. W. 4. A loan bond executed by Samari some time in 1936 was produced and marked as Ex. C. It was for a sum of Rs. 21-4-0. It was deposed by D. W. 1 that Samari incurred a loan of Rs. 200/- from him on another bond and in order to discharge these two loans, she had to pay Rs. 300/- to him.

Thus, the court of appeal below had overlooked this evidence that Rs. 300/- was paid to D. W. 1 towards the previous loans advanced by him and Rs. 100/- was paid to Balmukand Sahu (D. W. 4) for the amount which he advanced for purposes of purchasing seeds for agricultural operations. The admitted fact is, and the finding of the court of appeal below also is, that Rs. 100/- was paid on the date of execution of the document. Thus, it is well proved that the entire amount of Rs. 500/-was for legal necessity. Thus, I am inclined to think that the court of appeal below is wrong in holding that the legal necessity was only for Rs. 100/-. To begin with, he has not discussed the evidence at all in coming to this finding, and secondly, he should not have brushed aside the finding of fact arrived at on a proper assessment of the evidence by the trial Court, who had the opportunity of hearing the witnesses in the witness box and of marking their demeanour.

6. The next question that remains to be considered is whether defendant No. 1 is entitled to the protection of Section 53A of the Transfer of Property Act. Section 53A, amongst others, provides that where any person contracts to transfer for consideration any immovable property by writing signed by him or on his behalf from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty. The Court of appeal below, it appears, had preferred to rely on a decision of the Calcutta High Court in Bhupal Chandra v. Jagad Bhusan, AIR 1943 Cal 344 and on a decision of the Pepsu High Court in Jangir Singh v. Rulia, AIR 1954 Pepsu 133 and came to the conclusion that the defendant cannot take in aid the protection afforded under Section 53A of the Transfer of Property Act although the Bombay decision to which I am presently going to refer was cited before him.

7. In the case of Ranchhod Ramnarayan v. Manubai, AIR 1954 Bom 153, the learned Judges of the Bombay High Court held that a contract of sale validly entered into by the widow would be defeated at the hands of the reversioner it a literal construction is placed upon the words 'person claiming under the transferor' because under the Hindu law the estate passes to the reversioner on the death of the widow as the heir of the last male holder and not as the heir of the widow. But to place such a construction would be opposed to the principles of equity and inconsistent with the spirit of the Hindu law because, under Hindu law, the widow's right is in the nature of a right of property and her position that of an owner and therefore if she had gone a step further and sold a part of the estate for a legal necessity the sale would have bound the reversioner and succession would open with regard to the undisposed of remainder of the estate only.

Therefore it would be more reasonable to put upon those words a liberal construction and hold that the reversioners are bound by a contract of sale entered into by the widow for a legal necessity as a person claiming under her and that the purchaser from her is entitled to rely upon the provisions of the section because the reversioners, though they do not claim through the widow, are her successors-in-title of the estate after the widow's death under the Hindu law in the sense that the extent of the estate which would devolve on them would always depend on the exercise by her of her undoubted right of disposal of the estate for a legal necessity. The learned Judges of the Bombay High Court while coming to the aforesaid decision dissented from the decision of the Calcutta High Court reported in AIR 1943 Cal 344 referred to above.

They had, however, relied on the decision of the Nagpur High Court reported in Balaram Jairam v. Kewalram, AIR 1940 Nag 396. Mr. Justice Niyogi in the case of AIR 1940 Nag 396 unmistakably held that the test for determining whether the words 'or any person claiming under him' (i.e. the transferor) in Section 53A apply to a Hindu reversioner, is whether the acts of the deceased widow affecting the property bind the reversioner or not. If her acts bind the property, they must bind the reversioner in the same manner and to the same extent as the acts of any absolute owner would bind his heir. The reversioner may not he her heir but is certainly her successor.

He is bound by her acts which lawfully affect the property and to the extent that he is so bound, he becomes a person claiming 'under'' her. Therefore, it is open to the purchaser to pray in aid theequitable doctrine of part performance under Section 53A for the purpose of validating an unregistered document of sale as against a Hindu reversioner in so far as it is binding on the widow. Mr. Justice Niyogi, in coming to the above conclusion relied on thred decisions of the Privy Council reported in Katama Natchiar v. Rajah of Shivaganaga, 9 Moo Ind App 539 (543); Bijoy Gopal v. Krishna Mahishi, ILR 34 Cal 329 (PC) and Janaki Animal v. Narayanswami Aiyar, AIR 1916 PC 117. Thus, it appears that the learned Subordinate Judge, Bolangir has taken a wrong view of the law in preferring to rely on a decision of the Calcutta High Court which has been dissented from by the Bombay High Court in AIR 1954 Bom 153. The learned Judges of the Bombay High Court, as I have stated earlier, preferred to follow the decision of the Nagpur High Court which had also followed the earlier Privy Council decisions.

Thus, there is no doubt in my mind that the defendant No. 1 in this case is entitled to the benefit of equitable doctrine as also to statutory protection under Section 53A. Thus, both the contentions raised by Mr. Chatterjee are of substance, specially when legal necessity has been found in his favour. Thus, in view of the above discussion, the appeal must be allowed and the judgment of the court of appeal below be set aside.

8. In the result, I would set aside the judgment of the learned Subordinate Judge, Bolangir, restore that of the Munsif, Sonepur and allow the appeal with costs throughout.


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