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Marla Subrahmanyam Vs. Chelikani China Soorayya - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtChennai
Decided On
Case NumberLetters Patent Appeal No. 10 of 1947
Judge
Reported inAIR1950Mad514
ActsHindu Law; Evidence Act, 1872
AppellantMarla Subrahmanyam
RespondentChelikani China Soorayya
Appellant AdvocateP. Somasundaram and ;V. Parthasarathi, Advs.
Respondent AdvocateD. Narasaraju, Adv.
DispositionAppeal allowed
Cases ReferredBangaswami v. Nachiappa
Excerpt:
family - alienation - sections 101 to 103 of evidence act, 1872 and hindu law - matter pertaining to validity of alienation made by trustee - powers of trustee as regard to alienation of endowed property not same as those of hindu widow or other female limited owner with reference to property inherited by her - the former has no interest of his own - any transfer of endowed property by him must be justified by legal necessity or benefit to trust - latter has life estate which she could convey irrespective of any question of necessity or benefit. - - the essential difference between an alienation by the trustee of a religious or charitable endowment and an alienation by a limited owner like a widow is that in the former case the alienation is either valid or invalid whereas in the.....rajamannar, c.j.1. i agree entirely with my brother viswanatha sastri j, both in his reasoning and in his conclusion. i only wish to add a few words about the decision of the judicial committee in magniram sitaram v. kasturbhai manibhai, 46 bom. 481 : (a. i. r. (9) 1922 p. c. 163), because we made the reference to the full bench on account of certain observations in it which were understood in a particular way by the division bench in govindu v. venkatapathi, i. l. r. (1947) mad. 105 : (a. i. r. (33) 1916 mad. 427). in my opinion, that decision did not lay down any presumption of law which could be applied without reservation to the care of an alienation by a hindu widow. the essential difference between an alienation by the trustee of a religious or charitable endowment and an alienation.....
Judgment:

Rajamannar, C.J.

1. I agree entirely with my brother Viswanatha Sastri J, both in his reasoning and in his conclusion. I only wish to add a few words about the decision of the Judicial Committee in Magniram Sitaram v. Kasturbhai Manibhai, 46 Bom. 481 : (A. I. R. (9) 1922 P. C. 163), because we made the reference to the Full Bench on account of certain observations in it which were understood in a particular way by the Division Bench in Govindu v. Venkatapathi, I. L. R. (1947) Mad. 105 : (A. I. R. (33) 1916 Mad. 427). In my opinion, that decision did not lay down any presumption of law which could be applied without reservation to the care of an alienation by a Hindu widow. The essential difference between an alienation by the trustee of a religious or charitable endowment and an alienation by a limited owner like a widow is that in the former case the alienation is either valid or invalid whereas in the latter case an alienation per se would not be invalid in so far as it is a transfer of the limited interest of the widow. The fact that during the lifetime of the alienating trustee the alienee might not be disturbed does not mean that the alienation is valid to any extent. It mast not be overlooked that even if the alienating trustee does not challenge the validity of the alienation it will be open even during his life time for persons interested in the trust to sue for setting aside the alienation. In case the Court declares the alienation to be invalid, it will be invalid ab initio. It will not be valid even during the lifetime of the alienating trustee. In the case of a widow, the position is quite different. Even if a reversioner obtains a declaration that an alienation by her will not be binding on the reversion, nevertheless, the alienation will hold good during the lifetime of the widow. The question, therefore, with reference to an alienation by a trustee will always be whether it is valid or invalid. In the case of a trustee, it is the act of the holder of an office whose validity has to be determined. In the case of a widow, it is the amplitude of the estate which passes to the transferee that has to be determined.

2. The decision in Magniram Sitaram v. Kasturbhai Manibhai, 46 Bom. 481 : (A. I. R. (9) 1922 P. C. 163) enunciated the well-known doctrine of the presumption of a lawful origin in support of proprietary rights enjoyed peacefully for a long period. This appears clearly from the way in which their Lordships of the Judicial Committee themselves referred to it in the later case of Mahomed Mazaffaral Musavi v. Jabeda Khatun . Their Lordships alluded to the fact that the land had been held for the greater part of the century at the original low rent continuously without any disturbance of the tenants and anything to show that either party to it regarded the right of the tenants as other than permanent while circumstances were proved which offered to establish the contrary and to the fact that it became completely impossible to ascertain the circumstances which caused the original grant to be made. They then observed as follows:

'The presumption of an origin in some lawful title, which the Courts have so often readily made in order to support possessory rights, long and quietly enjoyed, where no actual proof of title ii forthcoming, is one which is not a mere branch of the law of evidence. It is resorted to because of the failure of actual evidence ..... The matter is one of a presumption, based on the policy of the law; but even considered as an inference from proved facts, the leave presumed is a thing, which may well be regarded as likely to have happened. At the same time, it is not a presumption to be capriciously made, nor is it one which a certain class of possessor is entitled to de jure. In a case such as this, where it is necessary to indicate what particular kind of lawful title is being presumed, the Court must be satisfied that such a title was in its nature practicable and reasonably capable of being presumed, without doing violence to the probabilities of the case. The presumption is not an 'open seasame' with which to unlock in favour of a particular kind of claimant a closed door, to which neither the law nor the proved facts would in themselves have afforded any key. It is the completion of a right, to which circumstances clearly point, where time has obliterate any record of the original commencement.'

3. A distinction was sought to be made before them that the case in Magniram Sitaram v. Kasturbhai Manibhai, 46 Bom. 481 : (A. I. R. (9) 1922 P. C. 163) was concerned with a Hindu mutt, while the later case was as regards a Mahomedan wakf. But their Lordships thought,

'As a matter of public right...... it would be very undesirable to introduce purposeless distinctions between the law applicable in the case of one community and that applicable to another.'

In Prayag Doss Jee Varu v. Govindacharlu, 68 M. L. J. 295 at p. 312: (A. I. R. (22) 1935 Mad. 220), Varadachariar J. summed up the result of Magniram Sitaram v. Kasturbhai Manibhai, 46 Bom. 481 : (A. I. R. (9) 1922 P. C. 163) and Muhammad Muzaffaral Musavi v. Jabeda, Khatun in the following manner:

'Even in the case of alienations of trust property, the Judicial Committee have not laid down a rule of absolute prohibition. In Magniram Sitaram v. Kasturbhai Manibhai, 46 Bom. 481: (A. I. R. (9) 1922 P. C. 163) and Mahammad Muzafaral v. Jabeda Khatun , their Lordships recognise the propriety of applying the rule relating to presumption of a legal origin, even to such transactions, where they are ancient, provided of course such a legal origin is practicable and 'reasonably capable of being presumed without doing violence to the probabilities of the case'.'

Now, there can be no question of the doctrine of legal origin being necessary to support the long possession of an alienee from a Hindu widow. If the widow happens to live for a long time, her existence is itself sufficient to support the possession of the alienee. The question whether the transfer by the widow was of her limited estate or whether it could validly be a transfer of the entire interest in the property conveyed is a question which cannot be determined applying the doctrine of a legal origin in support of proprietary rights long enjoyed. In my opinion the decision in Mangniram Sitaram v. Kasturbhai Manibhai, 46 Bom. 481: (A. I. R. (9) 1922 P. C. 163) does not enable us to hold that in the case of an ancient alienation by a Hindu widow when there is no evidence forthcoming as to the circumstances under which the alienation was made, there is a presumption that the alienation was of the full proprietary right in the property conveyed.

4. Satyanarayana Rao J.--I agree.

5. Viswanatha Sastri J.--Out of respect to the memory of the learned Judge whose judgment we are reversing and to the learned Judges of the Division Bench whose statement of the law we are not accepting in its entirety, we state the reasons for our conclusion with more elaboration than would otherwise be necessary. The question is whether a sale of the year 1892 by two Hindu female limited owners in which the then presumptive male reversioner also joined, is binding on the actual raversioner when the succession opened on the death of the limited owner. The sale was for a consideration of Rs. 200 recited to have been paid in cash to the executants but there were no recitals in the deed of any necessary or justifying purpose. The executants describing themselves as heirs of the last male owner conveyed the property. The finding of the appellate Court is that the vendees' successors-in-title, the defendant in the suit, failed to establish any legal necessity for the sale and the alienation was not binding on the plaintiff, the actual reversioner. The plaintiff has also not been able to show that there was no necessity for the sale. On these findings Govindarajachari J. following the recent decision in Govindu v. Venkatapathi, I. L R. (1947) Mad. 105 : (A. I. R. (33) 1946 Mad. 427) reversed the decision of the lower appellate Court and dismissed the suit on the ground that the long lapse of time since the date of the alienation rendered it immune from attack by the reversioner on the death of the limited owner, an event which happened in 1929.

6. A. Hindu female who inherits an estate as an heir takes a limited interest therein. She is at liberty to sell or otherwise dispose of her limited interest. She has power, a restricted and qualified power, under the Hindu law, to convey a larger interest than she has and pass an absolute title to her alienee, provided the transaction is justified by legal necessity or benefit. Those who deal with a female limited owner but claim to have acquired more than her limited interest, must prove facts and circumstances justifying the alienation of a larger interest by her. The burden of proof is on the alienees from the limited owner to establish (a) either that the alienation was justified by legal necessity or was for the benefit of the estate or (b) that they had made reasonable and bona fide enquiries as to the existence of the necessity or benefit and satisfied themselves about the same, before taking a sale or mortgage from the limited owner binding the entire estate. The purposes for which a limited owner is authorised by Hindu law to sell or mortgage the estate inherited by her have been defined by decisions of the Judicial Committee. The principle laid down in Hanooman Persaud's case, 6 M. I. A. 393 : (18 W. R. 81 P. C.) has been extended to alienees from Hindu limited owner and if an alienee has made reasonable and bona fide enquiries as regards the necessity for and the propriety of the alienation and satisfied himself on that score, the real or actual existence of such necessity is not a condition precedent to the validity of the alienation. It is not incumbent on the reversioner who relies on the absence of legal necessity or benefit for a sale or mortgage by the limited owner, to plead or prove such absence but it is for the vendee or mortgagee to prove everything that would give validity to the alienation as against the reversioner. The onus is not on the raversioner to prove that the estate left by the last male owner was sufficient to meet the claims against it and the needs of the limited owner and that the alienation was unnecessary. Sham Sundar v. Achan Kunwar, 21 ALL. 71: (25 I. A. 183 P. C.); Maheshar Baksh Singh v. Ratan Singh, 23 Cal. 766: (23 I. A. 57 P. C.); Dharamchand v. Bhawani Misrain, 25 Cal. 189: (24 I. A. 183 P. C.); Bhagwat Dayal v. Debidayal, 35 Cal. 420: (33 I. A. 48 P. C.) and Kondama Naicker v. Kandaswami, 47 Mad 181: (A. I. R. (11) 1924 P. C. 56).

7. A Hindu female limited owner has a right to convey her own limited interest in the property irrespective of any legal necessity or benefit to the estate. There is no presumption that she has conveyed an absolute estate and not merely her own interest. The quantum of the interest conveyed would depend on the terms of the sale deed, the purposes for which the sale is effected and the evidence of legal necessity or benefit or at least of a reasonable and bona fide enquiry into the necessity and propriety of the sale. An intention to deal with the entire estate may be inferred from recitals of necessity or benefit which would have no meaning if the limited owner was only dealing with her life interest but which would be necessary and relevant if an absolute title were conveyed. Vasonji Morarji v. Chanda Bibi, 37 ALL. 369 : (A. I. R. (2) 1915 P. C. 18).

8. It often happens that alienations made by limited owners are impugned by reversioners after the death of the alienors and after the lapse of a considerable time. In their anxiety to avoid prejudice to alienees or their successors-in title owing to the disappearance of evidence by lapse of time, Courts have evolved certain working rules regulating the quantum and nature of the evidence required of alienees or their successors-in-title who seek to justify alienations made by the limited owner as against reversioners. One such rule relates to the evidentiary value of recitals of necessity or benefit in sale deeds executed by limited owners. Recitals of necessity in such sale deeds are not evidence by themselves of the facts recited and evidence aliunde would be necessary to prove their truth. Brijlal v. Indar Kunwar, 36 ALL. 187 : (A. I. R. (1) 1914 P. C. 38), Bangachandra v. Jagat Kishore, 44 Cal. 186 : (A. I. R. (3) 1916 P. C. 110). If however owing to lapse of time direct evidence of the facts and circumstances recited has disappeared, then the recitals acquire importance as observed by the Judicial Committee in Banga Chandra v. Jagat Kishore, 44 Cal. 186 at p. 196 : (A. I. R. (3) 1916 P. C. 110). In such cases, a recital consistent with probability and the circumstances of the case cannot lightly be set aside. Actual proof of the necessity justifying the sale is not essential to establish its validity, it being enough that a representation should have been made to the purchaser of the existence of the necessity 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 an enquiry would have confirmed its truth, then when proof of actual enquiry has become impossible, the recital, coupled with such circumstance, would be sufficient evidence to support the deed.'

Even with reference to old alienations, the Judicial Committee stated that no fixed and inflexible rule could be laid down as to the proper weight which recital are entitled to receive. They cannot be disregarded in cases where the alienations are old transactions and the original parties are dead.

9. What about cases where there are not even recitals of necessity in deeds of sale by limited owners Has lapse of time any and if so what effect Lapse of time does not shift the burden of proof from the purchaser to the reversioner who impugns a sale by the limited owner. It does not affect the question of onus of proof except in so far as it might save the alienee from adverse inferences arising from the scanty evidence offered. See Ravaneshwar Prasad Singh v. Chandi Prasad Singh, 38 Cal. 721 at p. 738 : (12 I. C. 931) affirmed on appeal in Ravaneshwar Prasad Singh v. Chandi Prasad Singh, 43 Cal. 417 : (A. I. R. (2) 1915 P. C. 57). It is incorrect to say that necessity should be presumed from mere lapse of time. Bhojraj v. Sitaram . In Wadhwan Rani's case, 43 Mad. 541 : (A. I. R. (7) 1920 P. C. 64), the Judicial Committee held that having regard to the lapse of 82 years since the date of sale by the limited owner, it would not be reasonable to expect such full and detailed evidence as to the state of things which gave rise to the alienation in question and that in such circumstances, presumptions were permissible to fill in details which had been obliterated by time. In all the decisions of the Judicial Committee cited above, there was an appreciable quantity of evidence regarding the necessity for the alienation and this evidence was taken into consideration in arriving at a conclusion. The Judicial Committee did not go to the length of holding that mere lapse of time gave rise to a presumption in favour of the validity of the alienation or shifted the burden on to the reversioner.

10. In Kumarswami v. Narayanaswami : AIR1932Mad762 , Venkatasubba Rao and Curgenven JJ. held following The Wadhwan Rani's case, 43 Mad. 541 : (A. I. R. (7) 1920 P. C. 64), that in the case of an old alienation presumption might serve to fill up gaps in the evidence, even in the absence of recitals of necessity in the deed of sale. Recitals of necessity would, as already stated, be evidence of representation made to the purchaser by the limited owner and of his having acted on the faith of such representation after due and bona fide enquiry. That is one mode of supporting the alienation. Presumptions to fill up gaps in the evidence regarding the necessity for the alienation which time has obliterated can be invoked apart from recitals. Even if there are no recitals, it can be shown by evidence aliunde that a sale was effected by the limited owner for a necessary purpose or for the benefit of the estate. In the case above cited there was evidence both direct and circumstantial that the widow sold the property for discharging her husband's mortgages and simple debts and for meeting her maintenance expenses. In Venkayamma v. Sitaramaraju : (1938)1MLJ157 , in addition to recitals in the sale deed, there were some evidence of necessity. In Thimmanna Bhatta v. Rama Bhatta : AIR1938Mad300 , Madhavan Nair and King JJ. followed the earlier decision in Kumaraswami v. Narayanasami : AIR1932Mad762 and upheld an alienation by a limited owner against the reversioners on the strength of the recitals in the sale deed, the consent of the presumptive reversioner and the evidence adduced regarding the necessity for the sale. In Venkataramanayya v. Dejappa, 34 M. L. J. 319: (A. I. R. (5) 1918 Mad. 659) which related to the validity of a sale executed by the widow and mother of the last male owner Seshagiri Aiyar J. observed as follows :

'The onus is undoubtedly on the purchaser to establish necessity. Lapse of time may enable the Court to consider the evidence let in by him favourably and to pay more attention to the recitals in the conveyance than would otherwise have been done.'

Spencer J. decided the case on a point of limitation without considering the question of legal necessity. In Natesa Iyer v. Panchapakesa Iyer : AIR1926Mad247 , Spencer J. sitting alone upheld a sale by a limited owner as against the reversioner. There were no recitals of necessity in the sale deed which was of the year 1871 nor was any evidence of necessity adduced in the case. The learned Judge held that the conduct of the presumptive reversioners in assenting to and accepting the sale deed and acting on the footing of its being a binding transaction, raised a presumption that the alienation was for necessary purposes. In none of the cases so far examined, was mere lapse of time without any evidence, direct or circumstantial of the necessity for a sale by a limited owner and without anything by way of recitals in the deed or by way of consent of reversioners, held to justify the alienation.

11. Reliance is placed by the respondent on the decision in Magniram Sitaram v. Kasturbhai Manibhai, 46 Bom. 481 : (A. I. R. (9) 1922 P. C. 163) in support of his position that long lapse of time, by itself, would in the absence of any recitals of necessity in the sale deed and of any evidence of necessity or benefit or due enquiry, sustain an alienation by a limited owner against the reversioner. In that case, there was a grant of a permanent lease by the shebait or trustee of a religious charity and the validity of the lease came in question a hundred years after the grant. Succeeding shebaits who could have avoided the lease if it was not binding on the trust had not done so but had apparently recognised its validity and acted on that footing. Such acceptance and recognition would be presumptive evidence of the validity of the transaction. See Murugesam Pillai v. M.D. Gnanasambandha Pandara Sannadhi, 40 Mad. 402 : (A. I. R. (4) 1917 P. C. 6); Devasikhamani Ponnambala Desikar v. Periannan Chetti , Niladri Shah v. Chatrubuj Das, 6 Pat. 139 : (A. I. R. (13) 1926 P. C. 112). Their Lordships upheld the validity of the permanent lease, the reason for their conclusion being stated in these terms :

'If in fact the grant was made by a person who possessed the limited power of dealing under which a shebait holds lands devoted to the purposes of religiousworship, yet nonetheless there is attached to the office, in special and unusual circumstances, the power of making a wider grant than one which enures only for his life. At the lapse of 100 years, when every party to the original transaction has passed away, and it becomes completely impossible to ascertain what were the circumstances which caused the original grant to be made, it is only following the policy which the Courts always adopt, of securing as far as possible quiet possession to people who are in apparent lawful holding of an estate, to assume that the grant was lawfully and not unlawfully made.'

Their Lordships in the passage above cited treat the shebait as the holder of an office the legality of whose acts done in that capacity came to be questioned a century later and they seem to apply the well-known presumption in favour of the regularity of official acts. Notwithstanding the oscillation of opinion discernible in the decisions, the true view is that the trustee of a religions endowment, at all events where he has no beneficial interest, is wholly incompetent to alienate by way of sale or permanent lease the endowed property without compelling necessity or obvious benefit to the trust. The office of dharmakarta of a religious charity such as a temple or katlai is, in many essential features, different from that of a shebait in Bengal who has usually some beneficial interest in the income of the endowed property. Srinivasacharia v. Evalappa Mudaliar, 45 Mad. 565: (A. I. R. (9) 1922 P. C. 325); Rama Reddi v. Ranga Dasan, 49 Mad. 543 at p. 546 : (A. I. R. (13) 1926 Mad. 769); Manathunainatha Desigar v. Gopala Chettiar : AIR1944Mad1 . In the case of an absolute dedication to a religious charity, the endowed property does not vest in the manager who, though accountable was a trustee, is in law a mere manager of the endowment. His authority to deal with the property of the endowment is analogous to that of the manager of an infant heir whose power to alienate can only be exercised in a case of need or for the benefit of the estate. The previous decisions on this point are found collected in the decision in Shankaranarayanan v. Poovananthasami : (1949)2MLJ171 .

12. Any alienation of endowed property not justified by such necessity or benefit is void and can be set aside at the instance of the persona interested in the trust and the property re-attached to the institution even during the lifetime of the alienor, though perhaps, the alienor himself may be personally estopped from disputing his own act, Chidambaranatha v. Nallasiva, 41 Mad. 124 : (A. I. R. (5) 1918 Mad. 464) and Nainapillai Marakayar v. Ramanathan Chettiar, 47 Mad. 337 : (A. I. R. (11) 1924 P. C. 65). This is apparently what the Judicial Committee had in view when they observed that the grantby a shebait would enure for his life. The grant would enure for the life of the shebaits not because he had a life estate which he could alienate at his will and pleasure but because he himself could not impugn the validity of his alienation. Article 134A, Limitation Act prescribes the period of limitation for suits by persons interested in the endowment to set aside alienations made by the manager during his lifetime. It is unnecessary for the purpose of this case to consider whether the observations of the Judicial Committee in Devasikhamani Ponnambala Desigar v. Periannan Chetti , have a general application or whether they should not be confined to the determination of the starting point of limitation for a suit for setting aside an alienation of endowed property by a trustee.

13. The powers of a trustee as regards the alienation of endowed property are not the same as those of a Hindu widow or other female limited owner with reference to property inherited by her. The former has no interest of his own to convey and any transfer of endowed property by him must be justified by legal necessity or benefit to the trust. The latter has a life estate which she could convey irrespective of any question of necessity or benefit. This distinction becomes material in this way: The presumption of a lawful origin from long and peaceful enjoyment, if applied to the case of an alienation by a trustee, leads to the inference that the alienation at its inception was justified by necessity or benefit to the trust, for, without the existence of such necessity or benefit, the trustee could not have conveyed any interest at all. If it was justified by necessity or benefit at the inception, then the alienation holds good according to its apparent tenor and to the full extent of the interest alienated. The same result does not follow in the case of an alienation by a limited owner for she has a twofold capacity, one as the owner of a life estate and the other as representing the estate of the last male owner, and it was, in any event, open to her to have made a lawful alienation of her own life Interest without any legal necessity. Long possession and enjoyment by an alienee from a limited owner no doubt gives rise to a presumption of a lawful origin of the alinee's title, but the title would be equally lawful whether it was a limited interest or an absolute estate that he got under the sale. In other words, the presumption of a lawful origin for a grant arising from long and undisturbed enjoyment of property does not lead to the inference that there was a valid grant of an absolute estate and not of a limited estate, for in the case of an alienation by a widow or other limited owner, unlike the case of an alienation by a trustee, long possession and enjoyment of the alienee does not necessarily lead to the inference that the alienation must have been of an absolute estate and not of a limited interest. Mere lapse of time therefore does not have the effect of rendering an alienation by the limited owner binding on the reversion. The presumption of a lawful origin drawn from long possession and enjoyment is not sufficient, without more, to establish that the alienation by the widow or other limited owner was legally effective to convey an absolute interest, for such possession and enjoyment would have been quite lawful and proper even if the alienation was valid only during her own lifetime. Whether the alienation was such as to bind the reversion would depend on the recitals in the dead--the nature and purpose of the alienation, the existence of legal necessity or benefit to the estate, the assent of the presumptive reversioners and similar factors. Mere lapse of time will not have the effect of shifting the onus from the alienee or his representative to the reversioner; nor would it stamp the alienation as a valid alienation of the absolute interest in the property. These distinctions would have to be borne in mind before applying wholesale the principles enunciated by the Judicial Committee in Magniram Sitaram v. Kasturbhai Manibhai, 46 Bom. 481 : (A. I. R. (9) 1922 P. C. 163), to a consideration of the binding character of alienations made by Hindu limited owners on the reversioners.

14. The recent decision of this Court in Govindu v. Venkatapathi, I. L. R. (1947) Mad. 105 : (A. I. R. (33) 1946 Mad. 427) has, in our opinion, extended the scope of the presumption arising from long lapse of time in relation to alienations by limited owners, beyond the limits sanctioned by authoritative precedents. With the actual decision in the case we are in respectful agreement but we cannot wholly assent to the following statement of the law by Leach C. J.:

'Where owing to lapse of time it is impossible to produce evidence of necessity in support of an alienation by a Hindu widow or evidence of inquiry by the alienee and there is no ground for suspecting abuse by the widow of her power to alienate for a necessary purpose, we consider that the cases quoted (noticed above in this judgment) provide ample authority for the Court disregarding the ordinary rule of Hindu Law and drawing an inference in favour of the validity of the alienation. In such circumstances it would be unreasonable not to recognise an exception to the rule, otherwise grave injustice might result.'

In our opinion it is not permissible for us to convert a rule of evidence into a rule of substantive law. Lapse of time does not alter the incidence of the burden of proof nor does it dispense with evidence, direct or circumstantial, to prove justifying necessity for an alienation by a limited owner under the Hindu law. It comes to the rescue of the alienee in this way, that Courts will not expect such full or detailed evidence from him as regards the circumstances and state of things which justified the alienation as in the case of an alienation of a recent date. It may save the alienee from an adverse inference arising from the scanty nature of the evidence adduced by him. It will allow presumptions to fill in details in the evidence which have been obliterated by time. It will supply a few missing links in the evidence. But lapse of time cannot conjure up a chain consisting entirely of missing links. The burden of proof is not altered nor is evidence of justifying necessity, direct or circumstantial, positive or presumptive, dispensed with by mere lapse of time.

15. We do recognise that Hindu law as now administered by us is to a large extent Judge made law, but we are not prepared to follow Leach C. J. in 'disregarding the ordinary rule of Hindu law' and in introducing 'an exception to the rule' on grounds of real or fancied hardship. Of recent years, views have been advanced and have also received judicial encouragement, which have tended to enlarge the rights of Hindu female heirs. Hindu reversioners have become the pet aversion of some Judges and matters have been stretched in favour of alienees from limited owners almost to bursting point. This point would, in our opinion, be reached if we were to hold in this case, without any recital of necessity in the sale deed and without any evidence of the existence of such necessity or bona fide inquiry by the alienee, that a sale by a limited owner by which she converted immovable property into cash, is binding on the reversioners solely by reason of the lapse of a long time since the alienation. The Hindu law which recognises the rights of limited owners and protects alienees also recognises the rights of reversioners, and it is not for us to abrogate well-established rules on the ground that they are not sufficiently progressive.

16. There is only one other matter that requires to be considered. The sale deed in this case was executed both by the limited owners and the presumptive reversioner who described themselves as owners by right of succession to the last male owner. The consideration for the sale was paid in cash to the executants. It is stated that since the then presumptive reversioner consented to the alienation by the limited owner, it could not be challenged by the actual reversioner on the death of the limited owner. Notwithstanding different and conflicting opinions expressed by Courts as regards the effect of a reversioner's assent to an alienation by a Hindu female limited owner, the law must be taken to be authoritatively settled by the decision of the Judicial Committee in Rangaswami v. Nachiappa, 42 Mad. 523 at p. 536 : (A.I.R. (5) 1918 P. C. 196) in these terms :

'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 alienee does not prove inquiry 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.'

It has been held in this Court that the consent of the presumptive male reversioner to an alienation by a limited owner shifts the burden of proof from the alienee to the reversioner who impugns the alienation. Ramamurthy v. Bhimasankara Rao : AIR1938Mad433 , Satyanarayana v. Venkanna, 65 M. L. J. 282 : (A.I.R. (20) 1933 Mad. 637); Thimmanna v. Ramabhatta : AIR1938Mad300 . The consent of the presumptive male reversioner to an alienation by a limited owner, just like his consent to an adoption by a widow, raises a presumption that the act was a fair and proper one justified by Hindu law. Raj Lukee Debia v. Gookul Chunder, 13 M. I. A. 209: (3 Beng. L. R. 57 P.C.). The reversioner has only a spes successionis which he could not convey and his joining in the conveyance by the limited owner does not have the effect of passing an absolute title to the alienee, Gur Narayan v. Sheo Lal Singh, 46 Cal. 566 : (A. I. R. (5) 1918 P. C. 140). Having himself joined in the execution of the sale deed and received the consideration therefor along with the limited owner, the reversioner in this case gained a personal benefit or advantage from the sale and his consent was a purchased consent and not that of a disinterested or independent person. If, as already stated, the consent of the presumptive reversioner raises only a presumption in favour of the propriety of the alienation, by the limited owners, a consent which is given for a consideration is not, in our opinion, sufficient to validate the alienation, notwithstanding the contrary opinion expressed in Ambika Prasad v. Chandramani, 8 Pat. 396 : (A. I. R. (16) 1929 Pat. 289) based on a view of the decision of the Privy Council in Bajrangi Singh v. Manokanika Baksh Singh, 30 ALL. 1: (35 I. A. 1 P. C.) which is no longer tenable in view of the clear and later pronouncement of the Board in Bangaswami v. Nachiappa, 42 Mad. 523 : (A. I. R. (5) 1918 P. C. 196). Surely it cannot be maintained that a gift by the limited owner with the consent of the presumptive reversioner is binding on the actual reversioner by reason of the consent of the former. The consentof the reversioner being only presumptive evidence of the propriety of the alienation consented to, its probative value is lost when the consent is purchased.

17. For these reasons we set aside the decree of the learned Judge and restore that of the District Judge with costs here and before Govindarajachari J.


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