Orissa High Court
Dhobani Dei vs Lingaraj Bhuyan And Ors. on 10 November, 1970
Equivalent citations: AIR 1971 ORISSA 224
JUDGMENT R.N. Misra, J.
1. The plaintiff is in appeal against a reversing judgment of the learned Fifth Additional Subordinate Judge, Cuttack, in a suit brought by her for declaration of title and recovery of possession.
2. According to her, the property in dispute belonged to Mayadhar, her father. He had become separate from his cosharers for some years before his death. Mayadhar and his wife died of cholera one after the other and the plaintiff was a minor child with nobody to look after her. The people in the village prepared an inventory of the movable assets left by Mayadhar and ultimately she was put under the care of defendant No. 3 who happened to be her maternal uncle. He and his mother came over to reside in the house of Mayadhar and look after the minor plaintiff. This defendant No. 3 while being in management of the properties of the plaintiff alienated the disputed property under a sale deed (Ext. A) dated 4-5-1945 in favour of defendants 1 and 2 for a consideration of Rs. 240/-. Defendant No. 3 acted as the guardian of the plaintiff for the purposes of the said sale. The other defendants are alienees from defendants 1 and 2 in respect of a part of the disputed property. The plaintiff after attaining majority but within the period of limitation has come with the suit on the allegation that the alienation is bad in law, there was no legal necessity for the sale, and defendant No. 3 has illegally transferred the property of the plaintiff.
3. The real contest has come from defendants 1 and 2 though defendant No. 3 and defendants 4 and 5 together have filed two separate written statements. According to the contesting defendants, the alienation was a valid one, for legal necessity, for the benefit of the minor, and the minor is bound by the same. Defendant No. 3 in his written statement supported defendants 1 and 2 and contended that for necessity as also for benefit the alienation was duly made by him.
4. The trial Court came to find that Ext. A was not for legal necessity and as such the plaintiff was not bound by the alienation. It accordingly decreed the suit.
5. The lower appellate court came to find legal necessity and reversed the decree of the trial court and directed dismissal of the suit. This reversing decree of the lower appellate court is impugned in the present Second Appeal.
6. The trial court had recorded a finding that there was no legal necessity for the alienation and that the plaintiff had also not been benefited by the transaction. Defendant No. 3 who throughout supported defendants 1 and 2 his vendeea was examined by the contesting defendants as D. W. 1. He clearly stated, "I incurred the loan for future though there was no immediate necessity."
This admission of D. W. 1 of non-existence of necessity does not appear to have been taken into account by the lower appellate court.
Mr. Das for the respondents contended that D. W. 1 cannot be relied upon in view of the fact that he in his cross-examination began to support the plaintiff. I have examined his deposition with some care and I find the contention of Mr. Das to be without basis. To the very last D. W. 1 has supported the contesting defendants that the sale was for legal necessity. In such circumstances, the admission of D. W. 1 who was certainly competent to depose about the existence of necessity cannot be brushed aside.
7. The guardian's power to alienate the property of the minor has been laid down authoritatively in (1856) 6 Moo Ind App 393. Ever since the Judicial Committee pronounced its verdict in that decision there has been no conflict in this country in the judicial view applicable to the subject, and' this has remained the undisputed authority on the point. Their Lordships stated, "The power of the manager for an infant heir to charge an estate not his own, is, under the Hindu law, a limited and qualified power. It can only be exercised rightly in a case of need, or for the benefit or the estate. .... The actual pressure on the estate, the danger to be averted, or the benefit to be conferred upon it in the particular instance, is the thing to be regarded. ...... Their Lordships think that the lender is bound to inquire into the necessities for the loan, and to satisfy himself as well as he can, with reference to the parties with whom he is dealing, that the Manager is acting in the particular instance for the benefit of the estate."
The admission of D. W. 1 that the alienation was made in order to raise funds for the future clearly goes to show that there was no pressure on the estate at the time of alienation.
8. Mr. Kar contended on the authority of two reported decisions in AIR 1950 Nag 69, Tulsiram Sitaram v. Naravan Waman and ATR 1958 Bom 25, Nathu Bhiwaji v. Ganpat Bablaji, that an alienee from a natural guardian has to show positively that the course which the guardian has adopted was the only one open to him in the circumstances. On these authorities Mr. Kar's contention is that the vendees-defendants have to satisfy that in no other manner the need that was imminent could have been otherwise met. Mr. Das on the other hand relics upon a Bench decision of the Madras High Court in AIR 1961 Mad 348, S. Gopalakrishna v. C. V. Krishna Iyer, where it was held, that a guardian's alienation of the property of the ward could be justified as one for (a) necessity, (b) partly for necessity and partly for benefit, and (c) benefit simpliciter. Their Lordships further stated that a guardian can sell the ward's property for necessity or benefit and such benefit need not necessarily be of a defensive nature. In the case of an alienation for the benefit of the minor, pure and simple, it cannot be said that the guardian has no alternative, for he can retain the property. A power to sell for the benefit of the ward implies a discretion, discretion not merely to decide as to the form of alienation, for example, mortgage, lease or sale, but whether the alienation is at all to be made. For example, if the minor has an unproductive property and the guardian sells it with a view to purchase a productive one it cannot be said that the only course open to the guardian was to sell the property, but, yet, the alienation would be binding. The test in such cases is not that there should be no alternative, but that whether the act was one for the benefit of the minor in the known circumstances. Their Lordships also said that the right view is to consider whether in the circumstances existing at the time of alienation the act would be regarded as a prudent one by men of ordinary prudence in dealing with the property of the ward. They quoted with approval the dictum laid down by Sadasiva Iyer, J., in (1912) 23 Mad LJ 638, Vembu Iyer v. Srinivasa lyengar, "The only safe and convenient rule is that if the guardian of a Hindu minor alienates the minor's property because he considers it after weighing all the then existing circumstances to be in the best interests of the minor to make that alienation, the minor is clearly bound by that act of alienation." They further stated that it was obvious that the standard of prudence was not a subjective one, that is, what the guardian would do if the property were his. The guardian occupied a fiduciary position; his decision to alienate should be objective, viz., whether in the circumstances it was either necessary or for the benefit of the minor that the property should be sold or otherwise alienated. The standard of care required was more akin to that of a trustee than that of an owner."
This, to my mind, appears to be the real test to be applied in such circumstances. There may be cases where the minor or his estate may have been benefited and there may not be a pressing necessity on the estate or a danger to be averted. Courts in this country have gone to the extent of holding that where there has been benefit simpliciter to the minor he would be equally bound by the alienation and would not be permitted to challenge it on attaining majority. In the present case the benefit to the minor's estate has not been made out On the other hand, the case as made out was one for legal necessity and that necessity mainly consisted in meeting the expenses of the obsequies of the parents of the plaintiff. According to the defence case the total expense therein was Rs. 100/-while the consideration for the transaction was Rs. 240/-.
9. D. W. 3 is defendant No. 1. His case is that one Kapila Bhuyan had lent Rs. 100/- for the purpose of the expenses of the obsequies and to pay off Kapila Bhuyan the alienation was made. Kapila is admittedly alive and yet he has not been examined. The trial Court drew adverse inference against the defendants for not examining Kapila. The lower appellate Court accepted the explanation offered by the defendants that Kapila was ill and was an old man. This does not seem to be a sufficient explanation for not examining such am important witness in the case. He could as well have been examined on commission. The view taken by the lower appellate court in the facts of this case does not appear to be really acceptable.
The plaintiff came to say that she had ascertained from Kapila that the story about the loan was not correct. The alleged promissory note has not been produced and the explanation offered is that the same has been destroyed. Before the Court two versions were available -- one by defendant No. 1 as D. W. 3 to say that he made an enquiry from Kapila and was satisfied about the existence of the loan, and the other by the plaintiff that she ascertained from Kapila and found out that there was no such transaction. In the absence of the promissory note, the position becomes one of oath, against oath. The burden in the present case certainly lay on the defendants who were to substantiate the contention regarding existence of legal necessity. It was their duty to examine Kapila to show that the vendees had made proper enquiries at the time of the alienation, were satisfied about the existence of the necessity and thereafter they entered into the transaction. The lower appellate Court forgot that the burden lay on the defendants and drew an adverse inference against the plaintiff for her not examining Kapila in this case to substantiate her allegation.
10. In the present case, the learned Appellate Judge seems to have lost sight of the question of burden of proof. Mr. Das for the respondents does not dispute before me that the legal position is beyond dispute that the burden lay on his clients to support the alienation, lie, however, relies on the aforesaid Madras decision. Their Lordships stated, "Where evidence has been led on the material point, the question then is purely one of assessment of the evidence. Onus becomes important only when there is no evidence on a particular point, or where evidence let in on both sides is evenly balanced or equally untrustworthy or is of such a nature that the Court feels that it could not come to a definite conclusion thereon. In such a case the matter can be decided on the basis of burden of proof. Where as in this case there is evidence, the case has to be decided on the footing whether it is such as could be accepted or acted upon and if acted upon would be sufficient to prove the existence of the relevant factors to justify the guardian's alienation."
11. The position seems to be some what different. The burden to establish the facts and circumstances to uphold the alienation lies on the defendants. If they fail to discharge the burden properly, they are bound to lose in the litigation. There is certainly lot of difference between "onus" and "burden of proof". As was clearly laid down by their Lordships of the Supreme Court in AIR 1964 SC 136, Raghavamma V. Chenchamma, "There is an essential distinction between burden of proof and onus of proof: burden of proof lies upon the person who has to prove a fact and it never shifts, but the onus of proof shifts. The burden of proof in the present case undoubtedly lies upon the plaintiff to establish the factum of adoption and that of partition. The said circumstances do not alter the incidence o£ the burden of proof. Such considerations, having regard to the circumstances of a particular case, may shift the onus of proof, Such a shifting of onus is a continuous process in the evaluation of evidence."
Even if evidence has been led, ultimately the case has to be decided on the basis as to whether the defendants have discharged the burden, that lay on them.
12. Mr. Kar contends that the lower appellate court placed the burden on wrong shoulders. There seems to be justification for the contention of Mr. Kar. A reading of the judgment of the lower appellate court would show that it was not mindful of the legal position that the burden lay on the defendants -- the alienees to uphold their purchase. The lower appellate court seems to have gone by the normal basis that the plaintiff who came to court must prove her case. It is well settled that wrong placing of the burden of proof is an error of law within the scope of Section 100, Civil Procedure Code.
13. The position in this case seems to be that the defendants on whom the burden lay to establish either the existence of the legal necessity in the sense that there was actual pressure on the estate or there was some danger to be averted have failed to establish those facts. They have also failed to establish that the minor was actually benefited so that she would be estopped to challenge the alienation.
14. On such conclusions the judgment of the lower appellate court is bound to be vacated. I would accordingly allow the appeal, vacate the judgment of the lower appellate court and restore that of! the trial court. In the facts of this case, I would direct both parties to bear their own costs throughout.