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Penta Govindu and anr. Vs. Medida Venkatapathi and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily;Property
CourtChennai
Decided On
Reported inAIR1946Mad427; (1946)1MLJ407
AppellantPenta Govindu and anr.
RespondentMedida Venkatapathi and ors.
Cases ReferredThimmanna Bhatta v. Rama Bhatta
Excerpt:
.....it would not be equitable to draw a presumption in favour of the validity of the sale and we must hold that the plaintiffs are entitled to possession of the wet lands as well as dry lands......first plaintiff was the nearest reversioner to the estate and that it had not been proved that the lands in suit had belonged to kondayya. the plaintiffs appealed to the subordinate judge of coconada who reversed both these findings. he granted a decree for possession of the dry lands but refused relief in respect of the wet lands as he considered that there was nothing to show under what circumstances the widow had conveyed these lands to her brother, m. kondayya. and that it was to be presumed that the alienation was for a necessary purpose.3. the plaintiffs have appealed against the dismissal of their claim for possession: of the wet lands. defendants 2 to 4 have filed a memorandum of cross-objections in which they say that the subordinate judge erred in holding that the first.....
Judgment:

Alfred henry Lionel Leach, C.J.

1. This appeal relates to the succession to the estate of one Penta Kondayya, who died about the year 1880. He was survived by his wife Paddamma alias Papamma, who lived until the 1st September, 1926. The first appellant avers that he is the reversioner to the estate and has assigned to the second appellant a half share of the reversionary rights claimed by him. On the 23rd August, 1938, the appellants filed in the Court of the District Munsiff of Peddapuram, the present suit for possession of Kondayya's estate, which according to them consists of 30.83 acres of dry land in Peddapuram and 5.94 acres of wet land in Kattamuru. The first plaintiff's son was in possession of 20 acres of the dry lands and he was made the first defendant in the suit. The rest of the dry lands were in the possession of defendants 2 to 4. On the 25th April, 1883, the widow sold to her brother M. Kondayya, all the wet lands for a sum of Rs. 100.. On the 15th May, 1891, M. Kondayya conveyed by deed of gift a half of the wet lands to his brother, Polayya. M. Kondayya and Polayya are dead. M. Kondayya is represented by his sons the fifth and sixth defendants and Polayya by his sons and grandson, his sons being the second and third defendants and his grandson the fourth defendant.

2. The District Munsiff dismissed the suit. He held that it had not been established that the first plaintiff was the nearest reversioner to the estate and that it had not been proved that the lands in suit had belonged to Kondayya. The plaintiffs appealed to the Subordinate Judge of Coconada who reversed both these findings. He granted a decree for possession of the dry lands but refused relief in respect of the wet lands as he considered that there was nothing to show under what circumstances the widow had conveyed these lands to her brother, M. Kondayya. and that it was to be presumed that the alienation was for a necessary purpose.

3. The plaintiffs have appealed against the dismissal of their claim for possession: of the wet lands. Defendants 2 to 4 have filed a memorandum of cross-objections in which they say that the Subordinate Judge erred in holding that the first plaintiff was the nearest reversioner to Kondayya's estate and that Kondayya died possessed of the dry lands in suit. This being a second appeal, the findings of the Subordinate Judge on questions of fact are binding on us, provided, of course, that there is evidence to support them, which is the case here.

4. [Their Lordships after discussing the evidence proceeded:]

5. We agree with the Subordinate Judge that when the documents exhibited in the case are considered in conjunction with the statement in the will the only reasonable conclusion is that Kondayya died possessed of all the properties described in the plaint.

6. We have now to decide whether the Subordinate Judge was right in refusing the plaintiffs a decree for possession of the wet lands. In refusing this relief the Subordinate Judge relied on the judgments of this Court in Kumaraswami Mudaliar v. Narayanaswami (1932) 36 L.W. 186 and Thimanna Bhatta v. Rama Bhatta : AIR1938Mad300 . Before discussing those cases we think it necessary to refer to earlier pronouncements of the Privy Council.

7. In Banga Chandra Dhur Biswas v. Jagat Kishore Chowdhuri while recognising that in a suit in respect of an alienation by a Hindu widow of property belonging to her husband's estate the burden of proving legal necessity lies upon the purchasers, their Lordships referred to the weight to be attached to recitals in the deeds when direct evidence is not available. In delivering the judgment of the Board Lord Buckmaster, L.C., said:

But in such a case as the present their Lordships do not think that these recitals can be disregarded, nor on the other hand, can any fixed and inflexible rule be laid down as to the proper weight which they are entitled to receive. If the deeds were challenged at the time or near the date of their execution, so that independent evidence would be available, the recitals would deserve but slight consideration and certainly should not be accepted as proof of the facts. But, as time goes by and all the original parties to the transaction and all those who could have given evidence on the relevant points have grown old or passed away, a recital consistent with the probability and circumstances of the case, assumes greater importance and cannot lightly be set aside; for it should be remembered that the actual proof of the necessity which justified the deed is not essential to establish its validity. It is only necessary that a representation should have been made to the purchaser that such necessity existed and that he should have acted honestly and made proper inquiry 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 inquiry would have confirmed its truth, then when proof of actual inquiry has become impossible, the recital, coupled with such circumstances, would be sufficient evidence to support the deed. To hold otherwise would result in deciding that a title becomes weaker as it grows older, so that a transaction--perfectly honest and legitimate when it took place--would ultimately be incapable of justification merely owing to the passage of time.

The next case is Venkata Reddi v. Rani of Wadhwan . This was an appeal to the Privy Council from a judgment of this Court which contained the following statement of law:

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.

Their Lordships accepted this statement without qualification.

8. In an appeal from the Bombay High Court, Magniram Sitaram v. Kasturbhai Manibhai (1921) 42 M.L.J. 501 : 1921 L.R. 49 IndAp 54: I.L.R. 46 Bom. 481 (P.C.) the Privy Council had to consider the validity of a permanent lease granted by a Shebait nearly 100 years before the suit. Their Lordships held that as it was not possible to ascertain what were the circumstances under which the. lease was granted the Court should assume that it was made for necessity and so valid. Lord Buckmaster who delivered the judgment in this case also, said:

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 possssion to people who are in apparent lawful holding of an estate, to assume that the grant was lawfully and not unlawfully made.

Although the alienation in that case was not by a Hindu widow the Shebait's power of alienation only arose on necessity.

9. Kumaraswami Mudaliar v. Narayanaswami (1938) 36 L.W. 186 was decided by Venkatasubba Rao and Curgenven, JJ., who in the course of their judgment said that it was well settled that when a long period had elapsed between an alienation and the suit'to set it aside, presumptions were permissible to fill in the details which had been obliterated by time and that the rule applied not only where there were recitals in deeds but where there are not. This judgment was quoted with approval by Madhavan Nair and King, JJ., in Thimmanna Bhatta v. Rama Bhatta : AIR1938Mad300 .

10. Where owing to the 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 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. It would, however, be wrong to draw an inference in favour of validity if there are grounds for suspecting the genuineness of the transaction. Where a reasonable doubt does exist the Court should in our judgment refuse to draw the presumption.

11. Now, what is the position here? The deed by which Paddamma conveyed the wet lands to her own brother contains no recital, but the fact that she purported to sell to such a close relation nearly six acres of valuable wet land for the sum of Rs. 100 is sufficient in itself to cast doubt on the validity of the transaction. The Subordinate Judge wrongly stated that the consideration for the sale was Rs. 500. The price which the deed says was paid, Rs. 100, works out at something less than Rs. 17 per acre. Then there is the further fact that the brother to whom the property was conveyed made a gift of a half of it to another brother eight years later. If by reason of family necessity Paddamma was compelled to sell the wet lands it is unreasonable to suppose that she would have to sacrifice them for Rs. 100. The fact that she sold the lands for such a small sum to one of her brothers who later shared them with another brother certainly gives reason for suspecting that her intention was to benefit the members of her own family. In these circumstances it would not be equitable to draw a presumption in favour of the validity of the sale and we must hold that the plaintiffs are entitled to possession of the wet lands as well as dry lands. The decree of the Subordinate Judge will be amended accordingly.

12. The appellants are entitled to the costs of the appeal,which will be paid by the respondents according to their respective interests in the properties in suit. The memorandum of cross objections is dismissed with costs in favour of the plaintiffs. The plaintiffs are also entitled to costs in all the Courts below.

13. The case will be remanded to the trial Court with directions to ascertain under Order 20, Rule 12, of the Civil Procedure Code what the plaintiffs are entitled to by way of mesne profits, both past and future and to pass a final decree.


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