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Thimmanna Bhatta and ors. Vs. Rama Bhatta and - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtChennai
Decided On
Reported inAIR1938Mad300
AppellantThimmanna Bhatta and ors.
RespondentRama Bhatta and
Cases ReferredIn Kumarasami Mudaliar v. Narayanasami
Excerpt:
.....provision has been made for her, we may well agree with the judge, that this amount was intended for her maintenance and if so, the validity and the binding character of it cannot be questioned. thus after an examination of the various items in detail as shown by the recitals, we are not satisfied that there is anything to show that the items of consideration are not binding on the estate. though the estate had disappeared within about five years, we are not satisfied that the dis. the argument that she, being a young widow who was only about 27 years old at that time, probably was not able to manage the estate efficiently and that the estate was not therefore productive of full income is not also without force......and his brother's widow gangamma. lakshmi died in or about the year 1913. in 1875, aha sold the suit property (ex. 3) to the father of defendant 1 and another. the present suit is to set aside the alienation. to examine the nature of the consideration for the sale, we have to refer back to two previous alienations with respect to this property made by lakshmi in 1872 and 1874 under exs. 1 and 2. the property consisted of land yielding 42 muras of rice a year and also eight kandies of areca-nuts and 1000 cocoanuts. it is in evidence that on the whole, the income from that property at that time may be about rs. 280. ex. 1 was a mortgage with respect of some portion of the property in favour of thimmanna bhatta for rs. 400. it was for discharging 'my sundry debts incurred for building my.....
Judgment:

Madhavan Nair, J.

1. The plaintiffs who are reversioners are the appellants and their suit was to set aside an alienation made by a widow (Ex. 3) in 1875. The facts are these: One Sham Bhatta died in or about the year 1870. He left behind him his minor son Narayana who died in 1874 when he was about eight years old, a widow Lakshmi, his mother Aithamma and his brother's widow Gangamma. Lakshmi died in or about the year 1913. In 1875, aha sold the suit property (Ex. 3) to the father of defendant 1 and another. The present suit is to set aside the alienation. To examine the nature of the consideration for the sale, we have to refer back to two previous alienations with respect to this property made by Lakshmi in 1872 and 1874 under Exs. 1 and 2. The property consisted of land yielding 42 Muras of rice a year and also eight kandies of areca-nuts and 1000 cocoanuts. It is in evidence that on the whole, the income from that property at that time may be about Rs. 280. Ex. 1 was a mortgage with respect of some portion of the property in favour of Thimmanna Bhatta for Rs. 400. It was for discharging 'my sundry debts incurred for building my house and for my family expenses'. Ex. 2 was an Arwar for 50 years. This related to the entire property and this was in favour of Lakshmi's sister's husband and was for Rupees 1500. The consideration for this document is made up of as follows: (1) Rs. 400 for discharging Ex. 1, then (2) Rs. 635 in settlement of accounts in respect of sums borrowed for the medical treatment of her son Naraina who had been suffering from consumption for about two years, (3) Rs. 197 borrowed for future treatment of the same person, (4) Rs. 268 paid by the mortgagee to one Bhatta who had passed a receipt for the same. This must have been money borrowed by Lakshmi, (5) Payment of maintenance to Aithamma, Rs. 20 per year, and Gangamma at the rate of Rs. 28 per year. This document is attested by the plaintiff's father.

2. Then we come to Ex. 3, the suit document. Neither Ex. 1 nor Ex. 2 having been discharged, provision had to be made for the discharge of the same by this document. So item 1 of consideration was the payment of Rs. 1100 towards the discharge of Ex. 2, the second payment of Rs. 464 was for discharging Ex. 1. Item 3 consisted of Rs. 800. This was the consideration for the mortgage evidenced by Ex. 5 which we find from the document was executed for the benefit of Lakshmi. Item 4 was Rs. 27-9-7 to be paid by the vendees for assessment. Item 5, Rs. 72, was to pay to Govinda Bhatta for money borrowed by Lakshmi. Item 6 was a sum of Rs. 600 odd, received in cash for stamps, etc., for personal debts and for necessities. By item 7, the vendees agreed to pay Aithamma Rs. 67 per annum for her maintenance till her death as she, by that time, got a decree for that sum and a sum of Rs. 28 was agreed to be paid for maintenance to Gangamma till her death. This obligation was discharged by an actual payment of two sums of Rs. 500 to the two widows at the time of the execution of this document. Thus it may be said that the total consideration for Ex. 3 was Rs. 4000 which the learned Judge says, is not inadequate for the property. The plaintiffs' father, the then nearest male reversioner joined Lakshmi in executing this document. It is' this document that is now called into question by the appellants.

3. It is argued generally that the consideration for the document is not binding, that Exs. 1 and 2 were executed by Lakshmi as the owner of the property which she was not and therefore these are not binding on the estate, that Lakshmi has no power to execute the same and that no satisfactory and sufficient proof of necessity for executing the document has been made out. It is said that when Lakshmi got into possession of the property on the death of her husband, the property remained intact and unencumbered and within five years, it had vanished by these transactions. It is, therefore, stated that the dealings cannot in any way bind the reversioners. On the other hand, it is argued by the respondents that there is sufficient necessity to support the document that the consideration is binding on the estate and the general circumstances would also show that the transaction cannot be questioned at this distance of time. Before we examine the actual binding character of the considerations, we may point out certain general features of the case which will be useful in appreciating the arguments advanced before us. We have already stated that full consideration for the document has been paid. The document is a very ancient one. The suit was filed in 1923. Lakahmi is said to have died in or about 1913. From the evidence, it becomes clear that plaintiff 1 attained his majority in or about the year 1887. He could have instituted a suit for declaration that the alienation was not binding on him some time between 1887 and 1890. That has not been done in this case. If that had been done, the defendants would have been able to produce better and clearer evidence, with regard to the necessity before the lower Court. The father of defendant 1 died in 1919. He was one of the vendees of the properties. Though the plaintiffs failed to institute the suit as mentioned above between 1887 and 1890, plaintiff 1 might well have instituted the wait at least before 1919. If that had been done, the vendee himself could have men asked questions about the nature and the binding character of the transaction and other relevant facts in support of the same.

4. These circumstances put the present defendants under a serious disadvantage when they are asked to explain the binding character of a document as old as 1875. This further fact also may be mentioned, via, in Ex. 2, the father of the present plaintiffs was an attestor and the last document, Ex. 3, as stated already, was signed by the plaintiffs' father. He was than the nearest male reversioner. In this connexion, we may refer to the decision of the Privy Council in Bangaswami Gounden v. Nachiappa Gounden (1918) 5 A.I.R. P.C. 196 It says that the consent of the reversioner to an alienation made by the widow is a presumptive proof of necessity. No doubt, this is only a presumption which may be controverted by the plaintiff by other evidence. We may also draw attention to the decision in Banga Chandra Dhur Biswas v. Jagat Kishors Acharjya Chowdhuri (1916) 3 A.I.R. P.C. 11C where it has been laid down that recitals in old documents are sufficient proof in support of the deed. In this case, the only evidence in support of necessity consists of the recitals in the document. The document being very old, we have to see whether the recitals therein afford sufficient proof in support of the debt. In Kumarasami Mudaliar v. Narayanasami : AIR1932Mad762 it was held by this Court following a series of decisions that where the validity of an alienation made by a Hindu widow of her husband's property came in question a long time after the alienation so that it was impossible to ascertain what were the circumstances in which it was made, presumptions would be permissible to fill in the details which had been obliterated by time and it would be open to the Court to assume that the alienation was made for necessity so as to be valid even though the deed of alienation did not contain recitals of such necessity. Bearing these general features of the case in mind, we will proceed now to examine the evidence that this document affords with regard to necessity.

5. Exhibit 1 was executed to discharge sundry debts contracted by Lakshmi for construction of a house and also for her household expenses. No doubt, the document is executed by Lakahmi as the owner of the property but taking the document as a whole, it is clear that she is not asserting any right of here, adverse to her son's rights. Her son was quite an right at that time and she was looking after the property. Much therefore cannot be said with respect to the statement that it was her property. The question we have to consider is not whether Ex. 1 is enforceable but whether the consideration mentioned in it, the debts were justifiable debts contracted by Lakshmi and whether those debts would be binding on the estate. If those debts were incurred by Lakshmi on behalf of her son, then, no exception can be taken to the binding character of the document. It has not been argued or even suggested that Lakshmi was leading an extravagant or a bad life. Her son was living with her and she was looking after him. The household expenses referred to is the document may well be taken to be expenses of the house which she kept for her benefit as well as for the benefit of her son. She certainly was entitled to maintenance from the estate as the widow of the last male holder. The construction of the house referred to may be taken to be that of a house constructed for being enjoyed by her son. In these circumstances, we do not think that there are any reasonable grounds to suspect the genuine and the binding nature of the recitals.

6. We now come to Ex. 2. The first item of consideration was for discharge of Ex. 1. The sum of Rs. 635 was in settlement of accounts in respect of sums borrowed for medical treatment of her son. This is certainly binding on the estate and Rs. 197 was borrowed for the future treatment of her son. This also falls into the same category. The next item is Rs. 263; it is said that the mortgagee was paid the money and he has passed a receipt for it but the receipt is not before the Court. There is no evidence to show that Lakshmi was incurring personal debts for private purposes. This sum may be taken to be mainly borrowed for binding purposes and or the benefit of her son or of herself as a member of the household. The next item relates to the payments of maintenance. The binding nature of these payments of maintenance to Aithamma and Gangamma cannot be questioned, and as we have already pointed out the father of the present plaintiffs was an attestor to this document. Next, we come to Ex. 3. The first two items refer to the discharge of Exs. 1 and 2, which had not been discharged. Item 3 is a consideration for a mortgage evidenced by Ex. 5 executed for the benefit of Lakshmi. The learned Sub-ordinate Judge in para. 42 of his judgment says that:

He is inclined to believe that this amount was given to her by way of making a provision for hot maintenance. It is in evidence that Lakshmi ever after lived with her sister's husband and his sons and died while living with one of the latter.

7. As no other provision has been made for her, we may well agree with the Judge, that this amount was intended for her maintenance and if so, the validity and the binding character of it cannot be questioned. The sum of Rs. 29 was intended for paying assessment and the amount, of Rs. 72 was to pay money borrowed by Lakshmi. Then, as we have already pointed out, two other items relate to maintenance, and these were commuted1 into a single money payment. The sum of Rs. 600-6-5 was for stamps, etc. Thus after an examination of the various items in detail as shown by the recitals, we are not satisfied that there is anything to show that the items of consideration are not binding on the estate. Though the estate had disappeared within about five years, we are not satisfied that the dis. appearance of it was brought about by the questionable management of the same by Lakshmi. She had to spend money for medical expenses on account of her son and she had also to conduct two litigations which we have not referred to till now. These suits were brought against her for maintenance. One was by Aithamma, the suit by which she obtained a decree for Rs. 67. The other suit by Gangamma did not proceed to its end but was compromised before the decree. This lady had also to meet the funeral expenses of her husband. The argument that she, being a young widow who was only about 27 years old at that time, probably was not able to manage the estate efficiently and that the estate was not therefore productive of full income is not also without force.

8. Taking all the above circumstances into consideration, we cannot say that the conclusion arrived at by the learned Subordinate Judge that Ex. 3 is a binding transaction is not justified by the evidence; We would, therefore, accept his finding that Ex. 3 is binding. The result is that the plaintiffs' suit is dismissed with costs throughout. As the suit is dismissed on this point, the other questions arising in the case need not be considered.


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