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Chodagiri Seshayya Vs. Alluri Venkataraju and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily;Property
CourtChennai
Decided On
Reported inAIR1947Mad381; (1947)1MLJ240
AppellantChodagiri Seshayya
RespondentAlluri Venkataraju and ors.
Cases ReferredIn Venkata Reddi v. Rani Saheba of Wadhwan
Excerpt:
- - 2. the plaintiff was unsuccessful in respect of all items of property and the present appeal was filed challenging the judgment of the learned subordinate judge of narsapur before whom the suit came on for hearing and by whom it was decided. all the parties to the sale as well also, as witnesses and others whose names appear on the document are now dead. when these circumstances exist, clearly there is legal necessity for sale of property. 6. in my view, this appeal must fail and the plaintiff must pay the costs of all the respondents one set each......which the decision of the lower court is sought to be set aside is that the alienation was not for legal necessity, as was found by the learned subordinate judge.3. the piece of property in question was sold by the widow by a deed dated the 1st january, 1893, for rs. 130. in the deed of sale there is no recital or statement that the property was being sold for legal necessity ; the sole point made in the appeal is that since there is no such recital, the alienation could not have been for legal necessity and consequently the plaintiff should succeed in respect of his claim to item 3 and the decision of the subordinate judge should be reversed.4. in the court below evidence was given by three witnesses that the income or revenue from the five items of property was insufficient to maintain.....
Judgment:

Frederick William Gentle, C.J.

1. At some time prior to the year 1893, the exact date is unknown, one Chodagiri Bojjigadu died leaving a widow, Viri, and a daughter. At the time of his death he owned three items of immoveable property. The widow died about the year 1917. Prior to her death she had alienated those items of property and two other items which the Court below held were her stridhanam property. The daughter died in 1943. The plaintiff in the suit is the nephew of Bojjigadu and he claimed from the alienees or their successors all the five items of property on the ground that they formerly belonged to Bojjigadu and that the alienations were not binding upon him.

2. The plaintiff was unsuccessful in respect of all items of property and the present appeal was filed challenging the judgment of the learned Subordinate Judge of Narsapur before whom the suit came on for hearing and by whom it was decided. At the outset Mr. Chandrasekhara Sastri for the plaintiff-appellant informed us that he abandoned the appeal so far as items 1, 2, 4 and 5 were concerned and he proposed only to pursue the appeal in respect of item 3 which formerly belonged to Bojjigadu and which is now in the possession of the fourth defendant in the suit, the fourth respondent in the appeal before us. The sole ground upon which the decision of the lower Court is sought to be set aside is that the alienation was not for legal necessity, as was found by the learned Subordinate Judge.

3. The piece of property in question was sold by the widow by a deed dated the 1st January, 1893, for Rs. 130. In the deed of sale there is no recital or statement that the property was being sold for legal necessity ; the sole point made in the appeal is that since there is no such recital, the alienation could not have been for legal necessity and consequently the plaintiff should succeed in respect of his claim to item 3 and the decision of the Subordinate Judge should be reversed.

4. In the Court below evidence was given by three witnesses that the income or revenue from the five items of property was insufficient to maintain the widow and the daughter and, it would follow, that other income would be required in order that they should be able to keep themselves alive. The alienation took place more than 50 years ago. All the parties to the sale as well also, as witnesses and others whose names appear on the document are now dead. Had the deed been questioned during the lifetime of all the parties concerned, in the absence of any recital that the property was being sold for legal necessity, nevertheless evidence aliundi could have been given to show that legal necessity was present and was the reason for the sale. The same position must exist when all the parties are dead.

5. In Venkata Reddi v. Rani Saheba of Wadhwan their Lordships of the Judicial Committee quoted with approval the observations of two learned Judges of this Court to the following effect:

It is not disputed that the onus lay upon the defendant to prove the necessity for the sale, but having regard to the great lapse of time since the transaction took place, that is, about 82 years, perhaps the highest on record, it will not be reasonable to expect such full and detailed evidence as to the state of things which gave rise to the sale in question as in the case of. alienations made at more or less recent dates. In such circumstances, presumptions are permissible to fill in the details which have been obliterated by time.

In the present case not only can the circumstances justify a presumption that the alienation was for a legal necessity, but there is direct evidence that legal necessity did exist. A widow is not bound to starve herself and preserve the estate which, on her death, will pass to some reversioner, in order that the estate in its entirety as received by the widow on the death of her husband might be available to the reversioner, if the income or revenue from the estate is insufficient to maintain her and, as in this case, her daughter. The widow can alienate property for the purpose of keeping herself and her daughter alive. When these circumstances exist, clearly there is legal necessity for sale of property. That is the position here. There was undisputed evidence, which was accepted by the Court below, that the income or revenue from the property left by the deceased was insufficient for the purpose of maintaining the widow and her daughter. Although there is no recital in the deed of sale that the property was sold for legal necessity, nevertheless the evidence, in my view, was conclusive that there was legal necessity.

6. In my view, this appeal must fail and the plaintiff must pay the costs of all the respondents one set each.

Rajamannar, J.

7. I agree.


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