1. The difficulties which a purchaser of property must have in proving that alienations made some fifty years ago by a Hindu widow were for necessary purposes, have in arguing this appeal been vividly represented to us. But in the present case I must accept the findings of the lower Courts for the reasons given by them. The appellant did not succeed in proving the minimum required in such cases. The Consideration for Exhibit VI is four prior debts and a sum of ready cash received by Valu Ammal for her own use. One of these debts was according to the recital of Exhibit VI-D incurred by the widow for paying the arrears of kist and for meeting her private expenses. Another was incurred for permanently settling the claim of a maintenance holder of her husband's family, A third was borrowed for a purpose unspecified and the fourth was due upon a compromise decree obtained by the decree-holder of a usufructuary mortgage whose rights of possession she invaded.
2. It has not been shown that the income of the estate was insufficient to meet the demands for Government revenue and the maintenance of the family.
3. As it consisted of 73 acres of wet land in Tanjore District, the natural presumption would be rather that the widow must have been fairly well off. It is argued in respect of the third debt that, as it appears from one of the documents that the widow was put in possession of the mortgaged land by an order of a Magistrate, it is not likely that she acted mala fide. On the other hand it is clear that she had no prima facie right to appropriate the income which the othidar had a right to enjoy, and that the estate should not be made responsible for litigation arising out of her torts.
4. I agree with the finding of the lower Courts as to Exhibit IV.
5. The second appeal is dismissed with the costs of 2nd and 4th respondents.
6. This second appeal arises from a suit brought by plaintiffs as the next reversioners to one Sivasankara Vythinatha Iyer, who died about 1854, to set aside certain alienations made by his widow and recover the properties alienated. The lower Courts have set aside the alienations under Exhibits VI and IV subject to a payment of Rs. 350, and interest by the plaintiffs, and given a decree for the properties sued for with mesne profits deducting the amount found due by the plaintiffs. The 1st defendant, who was in possession of the properties and who claimed title through the alienations now set aside, appeals to us.
7. It is first argued for the appellant that there is no proper finding by the District Judge that the plaintiffs are the next reversioners entitled to the property. The District Judge has found that 'there are no nearer reversioners', agreeing with the Munsif on the point. It is true he says 'if there were, their claim is time-barred.' This is, as pointed out, erroneous, as the fact that the next reversioner is time-barred is not a ground for allowing a remoter reversioner to claim the estate as the reversion has already fallen in He has, however, discussed the evidence on this issue and come to the conclusion that the plaintiffs are the next reversioners, I do not think the sentence quoted really affects his finding on the point or throws any doubt on it. The appellant's objection on the point must be disallowed. The next point argued was that the lower Appellate Court was wrong in law in its finding that there was no legal necessity for Exhibit VI except for Rs. 350. Exhibit VI was an alienation in 1861. The sale was for Rs. 4,950, made up as follows according to the recital in the deed: Rs. 1,280-1-6, said to be due by the widow and her husband to one Narasimha Iyengar on a hypothecation bond; Rs. 228, due to one Meenakshi Ammal; Rs. 500, due to one Rajangam Subbiah; Rs. 1,000, due on a mortgage and Rs. 1,941-14-6 paid in cash. The onus of supporting a sale from a Hindu widow is undoubtedly on the purchaser. Mere recitals in a sale-deed as to the existence of legal necessity for an alienation are not of themselves any evidence of necessity; there must be evidence aliunde. These propositions have been recently re-affirmed by the Privy Council in the case of Brij Lal v. Inda Kunwar 23 Ind. Cas. 715: (1914) M. W. N. 405 Except the recital in Exhibit VI of there being a debt due to Rajangam Subbiah, there is no other evidence as to it. That was, therefore, rightly disallowed. There is also no evidence to show why Rs. 1,941 146 was borrowed by the widow. That item also fails.
8. As regards the other three items of consideration for Exhibit VI, there is further evidence. In considering the evidence with reference to an alienation so old as Exhibit VI, which is one of 1861, I agree with the appellant's contention that Courts should not insist on as strict a proof as in the case of recent transactions. I agree with the observation of the learned Judges of this Court in the case of Kanthu v. Dasa Upadhya 26 Ind. Cas. 376. that though the burden of proof is not shifted on to the reversioner, the Courts should approach the evidence as to necessity adduced in respect of old alienations with a much more indulgent mind than when the alienations attacked took place a few years before suit. The authorities on the point are considered in that case and it is not necessary to refer to them, again Where, however, there is evidence, as in this case, of the purposes for which the debts were incurred which led to the alienation, the Court must be satisfied that such purposes amounted to legal necessity before the alienation is upheld.
9. The hypothecation bond to Narasimha Iyengar is by the widow alone and is filed as Exhibit VI-D. This document recites that Rs, 500 was borrowed for paying arrears of kist and for the widow's private expenses. There is nothing to show how much of the consideration went to each item. It is clear that private expenses of the widow will not be a proper necessity. It is not shown that there were any arrears of kist to be paid as recited. Kist should ordinarily be paid from the income of the property, unless there was some good reason why it could not be so paid. There is no such reason made out here. Assuming there were arrears of kist to be paid, prima facie the debt borrowed for it is not a proper charge on the estate in the widow's hands. If borrowing for charges which should be met out of the current income is treated as legal necessity, it will enable the limited estate holder to ruin the estate and take for himself moneys which ought to be applied for paying those charges. See the observations of this Court in Kotta Ramasami Chetty v. Bangari Seshama Nayanivaru 3 M.s 145. The 1st defendant must, therefore, show by some evidence, however slight, that the kist in question could not be paid from the current income. The estate in question was fairly large and now produces an income of not less than Rs. 1,500, a year. There is no evidence as to what the income was in 1858, the date of Exhibit VI-D; but we cannot assume it was too small to pay kist and other charges from it. It is argued that Exhibit XXIII shows that there were some magisterial proceedings soon after the widow became entitled to possession, which rendered it likely that the widow was short of funds. But the evidence is too vague, even if admissible, to base any conclusions on it. We have only the recital in Exhibit XXIII, which is a plaint by a third party, that the widow took possession of a property mortgaged by her husband before his death 'through the Magistrate.' It must, therefore, be held that no valid charge was created on the property by Exhibit VI-D; and Exhibit VI, so far as it went to pay off this debt, must be held not to be binding on the estate.
10. It was urged that a creditor was not bound to see to the application of his money if he has made bona fide enquiries and satisfied himself of the necessity for the loan, and reliance is placed on the well-known case of Hunoomanpersaud Panday v. Musammat Babooee Munraj Koonweree 6 M. I.A. 393 This question does not arise in this case as there is no plea of this nature raised in the lower Courts; and as the plea depends on evidence it cannot be allowed to be raised now. It was next suggested that the existence of a debt under Exhibit VI-D was sufficient to justify Exhibit VI and that the alienee need not go beyond Exhibit VI-D to see if there was necessity for that transaction also. I am unable to agree with this argument. As the alienee under Exhibit VI was referred to Exhibit VI-D as creating a necessity for his sale, he ought to show that Exhibit VI-D was itself for a proper necessity. There is nothing to show it.
11. The next item is the amount due to Meenakshi Ammal. She had apparently a claim for maintenance from the estate and Exhibits VI-A arid VI-C show that in 1855 her claim was commuted for a lump sum of Rs. 200. Maintenance charges stand on the same footing as kist, as they should be paid from the current income; and similar considerations apply. Prima facie the conversion of a charge payable from the income to a charge on the corpus is an improper act on the part of the widow. There is no evidence whatever in the case to show there was necessity for it. It was rightly disallowed by the lower Courts.
12. The last item is a debt due on a mortgage. The lower Court has rightly allowed Rs. 350, the amount of the usufructuary mortgage by the husband, as a valid charge. The balance of the amount claimed under this head was the result of the widow wrongfully taking and keeping possession of the property mortgaged and taking the produce thereof; it was partly the price of produce cut and removed by her and partly interest in lieu of mesne profits and partly costs of the suit by the mortgagee. The widow's act was prima facie an unlawful act of trespass and we cannot presume that it was in the interest of the estate. If she was made to pay over the profits for the time she was in wrongful possession, she would have got those profits herself and should, therefore, have paid out of what she got. The lower Courts were right in disallowing all except Rs. 350 of this item as not being a valid charge on the estate, The last question argued has reference to the alienation under Exhibit IV. It is not necessary to discuss the various items of consideration recited in it. They stand on a similar footing as the items in Exhibit VI. I accept the finding of the lower Court that no portion of the consideration for this document, which is a sale-deed in favour of the widow's brother, is shown to be binding on the reversioners or the estate.
13. I agree that this second appeal fails and should be dismissed with costs of 2nd and 4th respondents.