1. The facts of this second appeal may be stated as follows:--One Gundala Jagannatha Rao died sometime before 1859. He was succeeded by his daughter, Sitamma. He had a brother, Gundala Venkataramadas, who had died before him and left a widow, Venkamma. In 1862 there was some dispute between these two ladies which resulted in a suit and a compromise. Exhibit A evidences the settlement of that suit. According to this compromise Sitamma was to get two-thirds of all properties including the debts due to the estate and bear two-thirds, of the liabilities of the estate and Venkamma was to get the' other one-third share. In 1882 Sitamma mortgaged the suit properties to one Mokka Sanyasamma. It purported, to be for discharging a prior debt due by her to one Kamma Appadu. The purpose of the debt to Kamma Appadu was not stated. In 1888 the mortgagee brought a suit against Sitamma on the basis of Ex. II and obtained a decree. The defendant did not appear in that suit. Exhibit III is the decree. While execution was being taken out, Kodanda Rao, 1st plaintiff's father, claiming as reversioner filed a claim petition under Section 278, Order C. P. C. alleging that Sitamma being possessed of lands fetching a net cist of about Rs. 100 a year, had no necessity to incur debts binding on the estate and praying that the life-interest only of the widow may be sold. The District Munsif without going into the claim petition dismissed it on the ground that the sale proclamation had already been settled. This sale proclamation is not forthcoming. The property was ultimately sold only in 1892. In the last column of the sale proclamation of 1892, there was a statement that the debt was one for discharging all the debts contracted by defendant's father for family expenses and for defendant's maintenance and that the whole right of the defendant was to be sold in auction. The present suit has been filed by the reversioners in January 1918 for recovery of the property sold in 1892.
2. Meanwhile the property was purchased by the decree-holder in the auction and was afterwards sold to the present defendant by a sale-deed, Ex. VII, dated the 9th of April 1913. The 4th issue in the case is: 'Was the mortgage made for legal necessity and are the sales in execution binding on the estate'?
3. The District Munsif found on this issue in favour of the plaintiffs and decreed the suit. On appeal the Subordinat'e Judge confirmed the decision of the District Munsif. The 1st defendant files this second appeal.
4. It has been argued by Mr. Govinda Raja-chari for the appellant that on the construction of the proclamation it should foe held that the whole property passed. If the is a finding that the debt was binding on the estate then it is the most proper construction of the proceedings in the suit and execution that the whole property was intended to pass to the purchaser, and I think this k the effect of Veerabadra Aiyar v. Maruda Nachiar 8 Ind. Cas. 1072 : 34 M. 188 : (1910) M. W. N. 799 : 9 M. L. T. 235 : 1910 21 M. L. J. 320. and Rameswar Mandal v. Provabati Debi 25 Ind. Cas 84 : 20 CRI. L. J. 23 : 19 C. W. N. 313. But where the evidence that the debt is binding on the estate is wanting and where the proceedings in the suit do not show that the widow represented the estate so as to attract the application of res judicata in a subsequent case, I do not think it is permissible merely by reference to the proclamation to say-that the whole property has passed though it has not been shown that there was necessity. I do not think that such a proposition of law has ever been laid down. In this case the proclamation was drafted after the claim petition and is, therefore, suspicious.
5. The next and most important contention raised' in the case is that the finding of the Subordinate Judge is vitiated by various defects. First, it is said that he has not properly applied the principle of the two Privy Council decisions Nanda Lai v. Jagat Kishore Acharyya Cowdhuri : (1916)18BOMLR868 and Venkata Reddi v. Rani Saheba of Wadhwan : (1920)22BOMLR541 In these two cases the Privy Council have laid down that in cases where sales by widows have been questioned after long lapse of time the recitals in the document ought not to be disregarded even though they are not strictly evidence. In Nanda Lal v. Jagat Kishore Acharyya Cowdhuri : (1916)18BOMLR868 it is pointed out,
6. '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 beset 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 3 ,that he should have acted honestly and made proper enquiry to satisfy himself of its truth. The recital is clear evidence of s 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 circumstances, would be sufficient evidence to support the deed'.
2. The same principle has been practically followed by this Court in Venkata Reddi v. Rani Saheba of Wadhwan : (1920)22BOMLR541 the decision being confirmed by the Privy Council in a short judgment. My learned brother in Anapindi Somayya v. Ayyala Somayajula Venkatayya : AIR1925Mad673 has explained these decisions and re-affirmed their principles. He says:
In this respect again, Courts do not insist upon strict proof and if the circumstances are such as to justify an inference that an enquiry was made, the Courts will hold without rigid proof that an enquiry was actually made. This is the general rule and the omission of full details may be made good by presumptions at whatever point the proof is wanting. It is difficult to lay down any hard and fast rule. A sound exercise of judicial discretion is the only safeguide.
3. I entirely agree with these remarks. In cases where there is a long lapse of time and where the recitals raise a suspicion that the transaction was for a proper purpose, or at any rate such purpose was represented to the purchaser, Courts ought to apply the principles of these three decisions as far as possible to uphold the sale. But it does not follow from these decisions that all ancient transactions ought to be upheld; where the circumstances tend the other way it will be reasonable not to apply these decisions.
4. In the present case, Ex. II, the mortgage-deed of 1882, does not mention the purpose for which the prior debt in favour of K. Appadu was contracted. It shows that the document in favour of Appadu was also handed over to the mortgagee and the mortgagee handed over all the records connected with the purchase to the present defendant along with the sale-deed, Ex. VII. But that document has not been produced. This rather goes against the defendant.
5. Then again it is said that the Subordinate Judge committed a serious mistake in construing Ex. VIII. It is a sale-deed by Sitamma in 1879 of another of her properties. That document recites that it was made for the purpose of discharging a prior mortgage-deed executed by her which was itself contracted for the purpose, of discharging her two thirds share of her father's debt. The Subordinate Judge says that this document shows that all the family debts were wiped out. In this he is undoubtedly wrong, and if we think, that this error has prejudiced the appellant in the rest of the judgment we should in strictness call for a finding. But I do not think that this error in construing Ex. VIII has any bearing on the rest of the judgment. It is true that Ex. VIII does not show that all the debts were wiped out; but a perusal of Ex. I shows that they were all debts due on usufructuary mortgage or deeds of conditional sale. It was open to Sitamma to redeem them if she liked; and if she borrowed for the purpose of redeeming, the debts would be binding on the reversioners. There is nothing to connect the debt of Appadu with any one of such debts. The contrast between the recitals in Ex. Hand the recitals in Ex. VIII also goes against the appellant. The interval, in this case between the transaction and the suit is 36 years. It is true that it is not so much as in the two Privy Council cases or Anapindi Somayya v. Ayyala Somayajula Venkatayya : AIR1925Mad673 . It is impossible to lay down any hard and fast rule, as to the length of time. Each, case must depend on its own facts. All that I can now say is, on the facts of this cage. It is impossible to say that the Subordinate Judge has committed any error of law or has even acted perversely in refusing to apply the principle of the two Privy Council cases. Whether this principle is applicable in a particular case is certainly a question of fact. However much we may-set aside the lower Court's judgment in first appeal, we cannot do so in second appeal unless there is some error of law. In a case reported in the Law Times I refused to interfere in second appeal where the Subordinate Judge applied the principle of these cases though I was .inclined to differ from the Subordinate Judge while expressing my inability to set aside his judgment.
6. On these grounds the second appeal fails and is dismissed with costs.
Venkatasubba Rao, J.
7. I agree and I would like to add a few words. The mortgagee under Ex. II filed a suit and obtained a decree. The first question to be determined is whether Sitamma in this suit represented the estate of her father? The mere fact that the mortgage suit arose out of her own acts would not prevent her from representing that estate [seemy judgment in Pothykachi Rajagopalan v. Valivety Ramamoorthy 73 Ind. Cas. 284 : 18 L. W. 491 : A. I. R. 1924 Mad. 301. As I have said in that judgment whether the limited owner represented the inheritance must be gathered from the nature of the suit and the defence put forward, the issues tried and raised and decided in that former suit. Unfortunately we have not before us the materials which will help us in the decision of this question. The appellant has not shown by referring us to the necessary records, that what passed at the Court sale held in execution of the mortgage-decree, was the enl ire estate and not merely the daughter's interest.
8. This makes the decision of the second question necessary, namely, whether the debt incurred by Sitamma was for purposes binding upon the reversion? When the transaction impeached happened long while ago, it is undoubtedly true that the alienee is entitled to ask the. Court to have regard to this fact when estimating the value of the oral evidence or making inferences from circumstances It is equally true that the alienee, when oral evidence is wanting, can rely on circumstances which, however feeble, may yet point to the truth of his case. After the lapse of a long time, the alienee always happens to be in a difficult position and this is more especially the case when the party in possession (as in the present case) happens to be a stranger to the original transaction and there have been intervening alienations. It is but reasonable arid just that one should riot unduly strain a point against an innocent purchaser tracing his ultimate source of title to a distant alienation like the one before us. The point, however, remains, whether the learned Subordinate Judge has failed to properly direct his mind to the various factors which have a bearing upon the issue. I am not prepared to say that his decision is wrong in the sense that I can interfere with it in second appeal.
9. I agree, therefore, that the appeal fails and should be dismissed with costs.