Patna High Court
Kalika Prasad Ojha And Ors. vs Mt. Jhenjho Kuer And Ors. on 12 December, 1962
Equivalent citations: AIR1964PAT241, AIR 1964 PATNA 241
JUDGMENT Tarkeshwar Nath, J.
1. This appeal by the plaintiffs arises out of a suit for a declaration that the sale deed dated 23-7-1918 executed by Mossamat Rekhia, widow of Thakur Dayal Ojha in favour of Chaudhary Bigan Rai, father of defendant 1, was without legal necessity and not binding on them. Plaintiffs' case was that they were the next reversioners of Thakur Dayal Ojha, husband of Mosst. Rekhia, and she being a limited owner, the sale deed executed by her was without legal necessity. Their further case was, that Mosst. Rekhia died about two years before the institution of the suit in the last Kumbh fair at Prayag (Allahabad) and, after her death, they were entitled to possession in respect of the lands transferred by her and mesne profits as well.
2. The defendants contested the suit, on the grounds, inter alia, that the plaintiffs are not the reversioners of Thakur Dayal Ojha, the suit was barred by limitation, as Mosst. Rekhia died more than 12 years ago and the sale deed was executed for legal necessities.
3. The Munsif held, that the plaintiffs were the next reversioners, the sale deed was for legal necessity, but the suit was barred by limitation, as Mosstt. Rekhia died 20 to 22 years ago. On these findings, he dismissed the suit with costs.
4. On appeal by the plaintiffs, the Subordinate Judge affirmed the findings of the Munsif, that the plaintiffs were reversioners and the sale deed was for legal necessity. He further found that the suit was not barred by time, inasmuch as Mostt. Rekhia died at Allahabad in 1954, as alleged by the plaintiffs. On these findings, he dismissed the appeal and hence the plaintiffs have preferred this second appeal.
5. The only question, which arises for consideration in this appeal is, as to whether the sale deed in question was for legal necessity, and learned counsel for the appellants submitted, that the said sale deed was not binding on the plaintiffs. Mossmmat Rekhia transferred 3 bighas of lands by the sale deed (exhibit B) dated 23-7-1918 for a sum of Rs. 350/- in favour of Chaudhary Bigan Rai; but, before this sale deed, there were certain other transactions by her and her husband, which have to be taken into account. There was an unregistered rehan deed dated the 15th Jeth 1310 Fs. (1903) by Thakur Dayal Ojha, husband of Mosst. Rekhia, in Favour of Chaudhary Bigan Rai, for a sum of Rs. 59/-. Another unregistered simple mortgage deed (exhibit I), dated the 8th Sawan 1312 Fs. (1905) was by Thakur Dayal Ojha in favour of Chaudhary Bigan Rai for a suns of Rs. 27/-.
It is further alleged that, on the 5th Kartik 1313 Fs. (1908) Thakur Dayal Ojha had given in retain. 60 acre of lands to Sheonarain Tewari for a sum of Rs. 49/-, but any deed, in respect of this mortgage has not been produced and it has been pointed out that Sheonarain Tewari has been mentioned on mortgagee in the Khatian in respect of the said lands bearing plots Nos. 254 and 270 of Khata No. 14, those numbers having been gives after the preparation of record of rights is 1911, It was further pointed out, that the date of the mortgage and the amount also were mentioned in the remarks column (vide the certified copy of the Khatian of village Siktha, exhibit G). Later on, Thakur Dayal Ojha died and his widow Mosst. Rekhia executed a registered rehan deed (exhibit H/4), dated the 30th Jeth 1315 Fs. (1908) in favour of the same creditor Chaudhary Bigan Rai for a sum of Rs. 100/- for the payment of the debts of the two bonds (exhibits H and I) executed by her husband. Mosammat Rekhia took an oral loan of Rs. 100/- for meeting the expenses of as sradh of her husband at Gaya and she had taken another oral loan of Rs. 50/- from one Jagdeo Ojha. Apart from these, she was in need of a sum of Rs. 51/-for her household necessities and thus she bad to execute the sale deed in question. The consideration of the sale deed, accordingly, was made up of the following items:
(1) Rs. 100/- in respect of the rehan bond (exhibit H/4) executed by her (2) Rs. 49/- does of her husband, in respect of the rehan in favour of Sheonarain Tewari, (3) oral loan of Rs. 100/- taken by her for the Gaya Sradh (4) oral loan of Rs. 50/-to be paid to Jagdeo Ojha, and (5) Rs. 51/- taken in cash at the time of the execution of the sale deed.
6. Learned counsel for the appellants contended that the onus was on the defendants to prove that the Said widow had; executed' the sale deed foe payment of her husband's debts and for other legal necessities, but this onus was not discharged by them, on the fact's and in the circumstances of the present case. He submitted, that the defendants had tailed to prove that there was any debt of the husband Thakur Dayal Ojha. According to him, the rehan deeds (exhibits H and I) were inadmissible in evidence and if was not proved that those bonds were executed by Thakur Dayal Ojha.
The Subordinate Judge, white dealing with these two documents (exhibits H and I) observed that they did not bear the signatures, thumb marks or pen marks of Thakur Dayal Ojha, but since the documents were of the years 1310 and 1312 Fs. respectively, that is more than 30 years old, they required no formal proof and were admissible in evidence. He further took the view that Mosst Rekhia had referred to these two documents in the registered rehan deed (exhibit H/4) executed by her and she had acknowledged the previous two debts of her husband in that bond. On these grounds, his conclusion was that the debts incurred by Thakur Dayal Ojha had been proved.
Learned counsel for the appellants took serious objections to these reasonings of the Subordinate Judge and submitted, that the two documents (exhibits H and I) did not bear, either the signatures or the thumb marks or pen marks of Thakur Dayal Ojha and, as such, it could not be held, that Thakur Dayal Ojha was the executant of those deeds and, in fact, he had not incurred any debt. It appears that on exhibit H, one Halkhori Lal has signed for Thakur Dayal Ojha and the endorsement is as follows:
"Sahi Thakur Dayal Ojha destawaz rehni motabiq matan ki likhal se sahi ha: Halkhori Lal katib". There is a similar endorsement on exhibit I as well, except with the difference that instead of the word "rehai" the word "makful" occurs on it and the word "Katib has not been mentioned in the endorsement on exhibit I. It is clear that Thakur Dayal Ojha, neither signed these two documents nor gave his thumb marks or pen marks. The authority of Halkhori Lal to sign and execute these documents on behalf of Thakur Dayal Ojha has neither been alleged nor proved in this case. Section 90 of the Evidence Act provides that where any document, purporting or proved to be thirty years old, is produced from any custody which the court in the particular case considers proper, the court may presume that the signature and every other part of such document, which purports to be in the handwriting of any particular person, is in that person's handwriting, and, in the case of a document executed or attested, that it was duly executed and attested by the persons by whom it purports to be executed and attested. There is an explanation to that section, but we are not concerned with it.
The principle is, that if a document, 30 years old or more, is produced from a proper custody and Is on its face free from suspicion, the court may presume that it has been signed or written by the person whose signature it bears or in whose handwriting it purports to be. These documents were no doubt 30 years old the presumption can be only in respect of the signature of Halkori Lal on these documents and not in respect of the execution of the documents by Thakur Dayal Ojha whose signatures or thumb marks do not appear on them. Learned counsel for the appellants referred to Maheshwar Naik v. Tikayat Sailendra Narayan, AIR 1951 Orissa 327 where it was held, that the presumption available under Section 90 would apply only if the document purported to have been "signed" by somebody or if it purported to be in the handwriting of somebody, but the said presumption would not apply to the genuineness of a seal. In that case, a Hukumnama relied on by the plaintiff did not purport to have been signed by any body, nor did it purport to have been written by any body; it only purported to bear a seal. It was held that, although the document appeared to be an old one and it was more than 30 years old, the presumption available under Section 90 of the Evidence Act did not apply to that document.
He referred to Charitter Rai v. Kailash Behari, AIR 1918 Pat 537 as well. It was held there, that where a party producing a document was unable to say as to who prepared or signed it or where the document itself did not purport to show who prepared or signed it, the mere fact of the document being more than 30 years old did not make it admissible without proof under Section 90. It is not necessary to pursue this question further, inasmuch as learned counsel for the respondents could not and did not contend that there could be any presumption under Section 90 about the execution of the two bonds (exhibits H and I) by Thakur Dayal Ojha. The fact remains that these two bonds were not executed by him, but exhibit H would be admissible with the presumption that one Halkhori Lal had signed it.
7. As regards the bond (exhibit I), learned counsel for the appellants further contended, that the said bond was not admissible for want of registration and he relied on the provision of Section 59 of the Transfer of Property Act. Learned counsel urged that, according to the latter part of that section, a simple mortgage bond could be valid only if it was registered and, in the present case, exhibit I not having been registered it was inadmissible in evidence. Learned counsel referred to Bhukhan Mian v. Radhika Kumari, AIR 1938 Pat 479 where Wort, Acting C. J., took the view that two mortgages, one for Rs. 300/- and the other for Rs. 100/-being unregistered, were inadmissible and the rights of the parties had to be determined in the absence of those deeds. A similar question arose in the case of Sukra Oraon v. Jagat Mohan Singh, (S) AIR 1957 Pat 245 and that appeal arose out of a suit for redemption. In that case, the zarpeshgi deed was not registered and, as such, it was contended that the plaintiffs had no title to redeem. It was held that even where the mortgage was not a valid transaction because of non-compliance with the requirements of Section 59 of the Transfer of Property Act, still the defendants who were inducted on the property as mortgagees acquired the character of mortgagees of that property because of prescription and the purchaser of the mortgagor was entitled to a decree for redemption. The view taken in AIR 1938 Pat 479 was not accepted in this decision.
In the case of a simple mortgage bond, an unregistered mortgage, though invalid as a mortgage, may be used to prove the debt, but this question is not material now, inasmuch as Thakur Dayal Ojha did not execute the bond (exhibit 1). Mr. Lalnarain Sinha, in order to meet this difficulty about the non-execution of the two bonds (Exhibits H and I) by Thakur Dayal Ojha, submitted, that, after the death of Thakur Dayal Ojha, his widow Mostt. Rekhia was the only person who was acquainted with the affairs of her husband and her conduct was significant, in so far she happened to execute the registered bond (exhibit H/4) in 1908 acknowledging the two previous debts of her husband incurred in 1903 and 1905, He contended, that those two debts could hot be proved by direct evidence, but there were surrounding circumstances which the Court should take into consideration and come to an inference that Thakur Dayal Ojha had incurred those debts.
Learned counsel further drew our attention to the fact that exhibit H and I were not characterised as being forged and fabricated documents and those document's indicated the two dates when they were executed, He relied on Tarakeswar Pai v. Sirish Chandra, AIR 1924 Cal 236. The appeal there arose out of a suit for recovery of possession of immovable property on establishment of title and the subject-matter of the litigation was a tank with its banks. The defendants had purchased the tank by two conveyances from persons who claimed to hold under two grants made in favour of their predecessors in 1836 and 1849. The plaintiff alleged that as the vendors of the defendants had no transferable right, they were liable to be ejected as trespassers. A question arose as to whether the grants made by the predecessors of the plaintiff were operative against him. It observed thus:
"It does not follow, however, that it is necessary for the grantee of the document or his successor-in-interest to establish by direct evidence that the executant had the requisite authority. When a grant has been in operation for a long series of years, as in this case, it may be impossible to adduce direct evidence of authority. In such a contingency the Court may draw an inference from all the surrounding circumstances. In the present case the grantee and his successors in interest from generation to generation have been in possession for more than 70 years."
The facts and circumstances of that case were entirely different, and that decision can be of no assistance to the defendants. In the present case, the alienation by the widow itself is being challenged and it is worthy of note that Bigan Rai happened to be the creditor in the mortgage bond (exhibit H/4) and later on, he was the purchaser in exhibit B. It was open to the creditor to get recitals about the previous debts in exhibit H/4 for serving his purposes and the statements made by the widow Mostt. Rekhia in that deed about the previous debts of her husband cannot be held to be sufficient to prove those debts, I am thus of the opinion that the defendants have not been able to prove that Thakur Dayal Ojha had borrowed either the sum of Rs. 50/- of Rs. 27/- from Bigan Rai in 1903 and 1905 respectively. Mosammat Rekhia no doubt executed a rehan bond in 1908 for the payment of the dues in respect of the two bonds (exhibits H and I), but the debts of her husband not having been proved, defendants have not been able to establish that there was legal necessity for Rs. 100/- in regard to Exhibit H/4, which was a part of the consideration of the sale deed (exhibit B).
8. Next comes the loan alleged to have been taken by Thakur Dayal Ojha from one Sheonarain Tewari in 1906. Learned counsel for the appellants submitted, that there was no deed to prove that debt and, as such, the Courts below had erred in holding that the rehan was an antecedent debt to the tune of Rs. 49/-. It is true that no document has been produced in respect of that debt, but Sheonarain Tewari has been mentioned as a mortgagee in exhibit G and the date and amount also have been mentioned in the remarks column of the record of rights, a certified copy of which has been filed and marked exhibit G. Learned counsel for the appellants contended, that the entry in the record-of-rights alone was not sufficient to prove the debt. The lands in respect of which Sheoarain Tewari has been mentioned as mortgagee belonged to Thakur Dayal Ojha and that has not been disputed and the final publication of the record-of-rights was in 1911. It mentions about mortgage of the year 1313 Fs. (1906) and Thakur Dayal Ojha was alive in that year. The circumstances clearly point out to the conclusion that the mortgage was by Thakur Dayal Ojha, husband of Mostt. Rekhia. I may indicate that in (S) AIR 1957 Pat 245 as well, the survey record-of-rights having an entry that the zarpeshgi was effected by an unregistered document was taken note of and then other question arose, as to whether the plaintiffs were entitled to redeem in spite of the mortgage being invalid on account of lack of registration. Mosammat Rekhia executed the sale deed for payment of Rs. 49/- to the mortgagee Sheonarain Tewari and, accordingly, it must be held that legal necessity, in respect of this sum, has been proved.
9. Mosammat Rekhia had taken a loan of Rs. 100/- for meeting the expenses of her husband's sradh at Gaya. The Munsif, while considering this aspect, observed, that she went to Gaya for performing the Sradh of her husband and several witnesses of the defendants had stated about that He further observed, that their evidence was supported and corroborated by the evidence of D. W. 4 Sagar Lal, who was the Dewan of Mukundlal, a Panda of Gaya. That witness proved two entries (exhibits D and E) in the Goshwara Jamabandi register and the Yatri register which were maintained regularly and in usual course of business by the Panda.
The Munsif thus concluded, that those entries indicated that Mostt. Rekhia had been to Gaya in 1325 Fs. and had performed the sradh of her husband there. Learned counsel's comment was that the Mosammat was mentioned there as being resident of a village Karuaj, but, in fact, she belonged to village Tulsipur and thus those entries should be ignored. Learned counsel for the defendants pointed out, that there might be a mistake about the village, but Mostt. Rekhia was mentioned there as being the wife of Thakur Dayal Ojha. In these circumstances, it is difficult to hold that the entries do not refer to Mostt. Rekhia, the executant of the sale deed (exhibit B), but they refer to some other Rekhia.
Another comment of learned counsel was that the original exhibits marked in the trial court were returned to the witness who brought them and, in spite of the best efforts of the plaintiffs in the lower appellate court, the original documents were not produced in that Court, it appears from the order-sheet of the lower appellate court that the plaintiffs had filed a petition calling for the original and there was a rejoinder to that by the defendants. The Subordinate Judge directed that the matter would be considered later at the time of the hearing of the appeal itself. There is nothing to indicate that the plaintiffs pressed the matter at the time of hearing.
The Subordinate Judge also dealt with the question, as to whether there was a legal necessity for Rs. 100/- and he observed that the performance of the Gaya sradh by Mostt. Rekhia was proved by the evidence of D. W. 4, the Dewan of Mukundlal, a panda of Gaya, and the entries (exhibits D and E), which were maintained in usual course of business by the said Dewan. He then came to the conclusion that the performance of Gaya Sradh by Mostt. 'Rekhia was proved and, for that purpose, she had incurred an oral debt of Rs. 100/-, which she had to repay. I thus find no merit in the contention of the appellant's counsel and I would hold that legal necessity, in respect of Rs. 100/-, has been established.
10. Mosammat Rekhia had taken a sum of Rs. 50/- from one Jagdeo Ojha and repayment of this sum also was alleged to be one of the necessities. The purpose for which this debt was incurred is not at all clear and the Courts below were much influenced by the fact that Jagdeo Ojha has attested the sale deed (exhibit B) and he was concerned in getting back his money from Mostt. Rekhia. Mere attestation by him would not prove that there was, cither an advance by him or that the advance was for legal necessity. I find it difficult to agree with the view taken by the Courts below that legal necessity, in respect of Rs. 50/- has been established.
11. Mosammat Rekhia took in cash Rs. 51/-from the transferee at the time of the execution of the sale deed (exhibit B) and this was for her maintenance and other necessities. The Subordinate Judge dealt with this aspect and observed that the personal needs to the tune of Rs. 51 /- only were not astonishing or exaggerated, inasmuch as Mostt. Rekhia had meagre resources and she must have fallen in need of money for her personal expenses. I do not find any error in this conclusion and I would, accordingly, affirm his finding that necessities, in respect of this item, have been proved.
12. Having considered these items separately, I am of the view that legal necessity, in respect of Rs. 200/-, which is made up of Rs. 49/- in respect of the loan taken from Sheonarain Tewari, Rs. 100/-for the Gaya Sradh and Rs. 51/- cash has been established. In the present case, the sale deed was executed in 1918 and the present suit giving rise to this appeal was tiled in 1954, after a period of about thirty-six years. Due to lapse of time, it would not be reasonable to expect full and detailed evidence of all the circumstances leading to the execution of the sale deed. In a case like this, where legal necessity in respect of Rs. 200/- out of total consideration of Rs. 350/- has been established, the question for consideration is, as to whether the execution of the sale deed was a proper one. The position has been very well summarised in the principles of Hindu Law by D.F. Mulla, 12th edition, at page 280, in the following terms:
"Cases frequently arise in which property inherited by a widow from her husband is sold by her for legal necessity, but the whole of the price is not proved to have been applied to purposes of necessity, and the sale is challenged by the reversioners on that ground. In such cases, if the sale itself is justified by legal necessity, and the purchaser pays a fair price for the property sold, and acts in good faith and after due inquiry as to the necessity for the sale, the mere fact that part of the price is not proved to have been applied to purposes of necessity, would not invalidate the sale, the purchaser not being bound to see to the application of the price. If the above conditions are satisfied, the sale must be upheld unconditionally, whether the part not proved to have been applied to purposes of legal necessity is considerable or small".
In the case of Ram Sunder Lal v. Lachhmi Narain, ILR 51 All 430: (AIR 1929 PC 143) where sale was justified by legal necessity and legal necessity was proved by the defendant vendee to the extent of Rs. 7,744/- out of a total price of Rs. 10,767/- it was held that the sale must stand and the fact that the defendant vendee, after a long interval of time, was not able to prove conclusively how the surplus was applied by the vendor was not sufficient ground for setting aside the sale. There is nothing to indicate, as to what were the prices of the lands in 1918 and it cannot be held that the price for which Mosammat Rekhia sold the land was not a fair and proper one. Having given my anxious consideration to all the facts and circumstances, I am of the view that the sale deed in question must be held to be for legal necessity and, in this view of the matter, the plaintiffs are not entitled to any relief.
13. In the result, the appeal fails and is dismissed, but without costs, in the circumstances of the present case.
Mahapatra, J.
14. I agree.