Pakenham Walsh, J.
1. This was a suit by a reversioner to set aside an alienation in respect of the suit properties on the ground that the alienation was not for necessary purposes binding on the reversion. The property belonged to one Subbarama Aiyar who died in 1892. The alienation was made by his widow Krishnammal in 1894 in favour of the wife of her brother. This Krishnammal died in 1925. She had one daughter Rukmani Ammal by Subbarama Aiyar, who ultimately married the son of the brother in whose wife's favour she had demised the properties. This Krishnamma's daughter Rukmani died in 1915 leaving behind one daughter, the 1st defendant. The trial Court found that the alienation made by Krishnammal in favour of her brother's wife, Sankari Ammal, was a sham transaction and decreed the plaintiff's suit. On appeal the lower appellate Court found that the transaction was genuine and was for purposes binding on the estate and dismissed the suit. Against this decree the present second appeal has been preferred by the plaintiff. Three main grounds have been taken: (1) that the lower appellate Court has raised a wrong presumption that the recital in the document of alienation Ex. I, which is more than 30 years old, can be used as evidence that the alienation was for necessity. It is objected that this principle cannot be applied because two of the attestors are alive and have been examined and the sister of the widow the 2nd defendant who is said to have been one of the people who arranged the alienation has also given evidence.
2. Secondly, it is urged that the lower appellate Court has wrongly thrown on plaintiff the burden of proof that there were funds available from the estate to the widow from which she could have met the necessary expenses. The third ground taken is that the litigation expenses which formed the bulk of the consideration for the sale were not binding on the estate.
3. Taking the first matter I do not think that the lower appellate Court has misdirected itself on this point. It sets out the law in paragraphs 22, 23, 24 and 25 of its judgment not using its own words but words of the Privy Council in Banga Chandra Dhur Biswas v. Jagat Kishore Acharya Chowdhuri and Ram Narain v. Nandrani Kunwar I.L.R. (1928) All. 823. It is necessary to distinguish the sort of evidence which is not available when both the vendor and the vendee are dead and the sort of evidence which may still be available as regards the necessity for the loan. In so far as the question is whether the vendee made enquiries as to the necessity for the loan and what representations the vendor or others made to him it is clear that both the vendor and the vendee being dead, and the transaction being an ancient one, evidence will not be usually available on this point unless possibly the evidence of some other person from whom the vendee made enquiries. It is not alleged that there is any such evidence available in this case. I do not consider therefore that with reference to this point the lower appellate Court was wrong in relying on the recitals in the document.
4. With regard to the actual necessity for the loan there being evidence available there is no doubt that it is this which must be scrutinised. The Lower Court has done this. The consideration for the alienation was alleged in the deed to be Rs. 800. It may be noted in the first place that the trial Court itself has found in paragraph 21 that this was not an under-valuation. This Rs. 800 was made up of a pronote for Rs. 100 executed in favour of the vendee on 10th July, 1892, which with interest came to Rs. 126, of a second promissory note dated 30th August, 1892, executed by the vendor in favour of the vendee which amounted with interest to Rs. 248-8-0 and of a third promissory note executed by the vendor Krishnammal in favour of her sister Mathurambal (2nd defendant) for Rs. 200 which with interest amounted to Rs. 237-8-0; a sum of Rs. 13 was received in cash on the day of the execution of the document for the expenses of Krishnammal and a sum of Rs. 175 was received before the Sub-Registrar at the time of the registration of the document-These pronotes are said to have been handed over to the vendee and the non-production of them was one of the grounds relied upon by the trial Court for holding that the transaction was a sham. The trial Court says in paragraph 12 of its judgment:
As it was not intended that the sale should be a real sale, care was not taken to have the promissory notes recited by the sale deed to have been discharged brought into existence.
5. With regard to this matter the lower appellate Court says in paragraph 32 of its judgment:
Those pronotes have not been produced nor is it surprising that at this distance of time that the 1st defendant is not able to produce them. From the mere omission to produce them I am unable to find that they did not exist.
6. Then it proceeds to consider the evidence of D. W. 1, the attestor to the sale deed and also of the defendant's 3rd witness who attested one of the pronotes and accepts the evidence of these witnesses that the pronotes were in existence thereby reaching a conclusion opposite to that reached by the trial Court. So when it is argued that the lower appellate Court should have taken the evidence available into consideration instead of acting on presumptions, it is seen that it has taken that evidence into consideration and it was perfectly entitled to accept it as proving the truth of the recitals in the document. I cannot find there, fore that it has misdirected itself on this matter.
7. The next objection is that it has thrown on the plaintiff the onus of proof that Subbarama Aiyar left sufficient property for the widow Krishnammal to meet the demands she had to fulfil. Now the plaintiff had by way ,of anticipation stated in his plaint that Subbarama Aiyarhad left considerable properties which he specified. The trial Court itself agreed with the lower appellate Court in finding against this. It found, as did the lower appellate Court, that Subbarama Aiyar's long illness before his death had probably exhausted his properties except the lands. The appellant before me bases his contention on what the learned appellate Judge says in paragraph 33 'it would have been difficult to find that she (Krishnammal) had any necessity to borrow money if the plaintiff's allegation, that at the time when Subbarama Aiyar died he left either cash or movable or any other property from which any income was available, was proved.'
8. The learned Subordinate Judge then goes on to discuss whether Subbarama Aiyar had such property in paragraph 34 ' and points out' the Lower Court rightly discredited the evidence of the witnesses of the plaintiff, who gave evidence about the position of Subbarama Aiyar at the time of his death. When the widow of Subbarama Aiyar, Krishnammal, applied for a succession certificate the amount shown therein was only a very insignificant sum of Rs. 9-3-7.' The trial Court in fact went one step further in the matter and said: 'If there were 16 out-standings as plaintiff has with great glee deposed in re-examination some at least of the debtors would have asked for a succession certificate more especially having regard to the fact that there were bitter feuds between the widow and the reversioners.' I cannot find therefore that the lower appellate Court has thrown the burden of proof on this matter upon the plaintiff as alleged.
9. The third matter concerns litigation expenses which formed the bulk of the consideration for the sale. Litigation arose in two ways. Within four days after the death of Subbarama Aiyar, Krishnammal brought a charge of theft against the plaintiff's father alleging that they stole a number of documents evidencing the debts due to the family. The accused were acquitted but the judgment is not exhibited. It is important however to notice that the accused pleaded the right of justification for this action on the ground that Subbarama Aiyar was undivided with them. It is now admitted that this was a false plea. The widow was clearly protecting the estate in trying to recover these documents and the more so when the accused pleaded that they were entitled to them being undivided from the late Subbarama Aiyar. The proceedings went to the length of framing a charge and the accused were acquitted perhaps because it was thought that the matter was of a civil nature. Indar Kuar v. Lalta Prasad Singh I.L.R. (1882) All. 532 quoted for appellant is not applicable to litigation of this sort. The second litigation in which Krishnammal was entangled was in regard to a document, a bond produced by Krishnammal as having been executed in favour of her husband by one Krishna Aiyangar which she wanted to enforce and which Krishna Aiyangar said was a forgery by the widow and her brother and she had to defend herself against this criminal charge of forgery. The widow incurred expenditure with regard to this which necessitated the alienation. It is laid down in Dhanukdhari Singh v. Rambirich Singh I.L.R. (1921) Pat. 171 , a case where money was spent in defence of criminal cases against members of the family, that the question whether there was legal necessity for the raising of the loan cannot be made to depend upon the result of the trial. The same case lays down that in criminal cases against members of a joint family the legal necessity for raising a loan to defend them is binding on the estate. Here it is a stronger case because the bond itself which Krishnammal tried to enforce and the execution of which was totally denied was part of her husband's estate. In the result she was discharged.
10. Besides these three main grounds there have been certain isolated points taken against the judgment of the lowest appellate Court.
11. [His Lordship then discussed the evidence with reference to Ex. C and the question of possession and continued as follows:]
I think it must be admitted that as a reversing judgment the appellate Court's judgment is open to a charge that it has not discussed certain matters as fully as it might have done but I am unable to say that the lower appellate Court has failed to take into account any evidence, to such an extent which would justify this Court in interfering in second appeal. Vide in this connection the remarks of the Privy Council in Raja of Pittapur v. Secretary of State for India . I am bound also to say that the judgment of the trial Court in one particular contains a very improper remark which goes to show a certain amount of bias in the mind of the Court. This occurs at paragraph 13. In discussing the evidence of the 3rd defendant the learned District Munsif says that he is not prepared to act on it and proceeds:He admits Rukmani was put away by her husband and Mathurathammal admits that 3rd defendant put away his wife 35 years ago. I am inclined to think that 3rd defendant had a liaison with Rukmani.
12. There is no evidence on that point and it is quite improper to make such a remark about 3rd defendant and the deceased Rukmani. Vide Khwaja Muhammad Khan v. Husaini Begam where their Lordships referring to the following remarks of the lower Court 'although unchastity is not duly proved, yet I have no hesitation in holding that plaintiff's character is not free from suspicion' say 'their Lordships cannot help considering an opinion of this kind regarding a serious charge as unsatisfactory. Either the allegation of unchastity was established or it was not; if the evidence was not sufficient or not reliable, there was an end of the charge so far as the particular matter in issue was concerned and it was hardly proper to give expression to what the Judge calls 'suspicion'.' In the present case without any evidence at all and although the matter was quite irrelevant this sort of remark should not find a place in the judgment and in my opinion it should be deleted from it. In the result I do not find any reason to interfere in second appeal. This appeal fails and is dismissed with costs.