Bombay High Court
Mukabasappa Bhimappa And Ors. vs Hanmantappa on 25 July, 1952
Equivalent citations: AIR1953BOM302, (1953)55BOMLR223, ILR1953BOM597, AIR 1953 BOMBAY 302
JUDGMENT Dixit, J.
(1) In this case two questions arise for determination: (1) whether the plaintiff's adoption is proved, and (2) whether the alienations in suit are justified by legal necessity. The facts of the case in which these questions arise are simple.
(2) There was a Hindu undivided family consisting of Govindappa and his three sons Karehanamappa, Doddahanamappa and Sannahanamappa. On 22-6-1891, Karehanamappa separated from his two younger brothers, & at the partition which took place between them family property consisting of survey Nos. 32, 150, 151, an open site and a threshing floor and some moveables fell to his share. Doddahanamappa and Sannahanamappa continued to live jointly as before. In 1899 Karehanamappa died sonless, leaving him surviving two widows Hanamawa and Yellawa. On 12-10-1900, these two widows effected a partition of their husband's property, and at this partition Hanamawa got about a half each of survey Nos. 150 and 151, the eastern portion of the open site and the threshing floor, while Yellawa got about a half of survey No. 150 and of survey No. 151, survey No. 32 and a half of the open site and the threshing floor.
(3) The three alienations which are challenged in this suit are these. On 6-5-1901, Hanamawa, the senior widow, sold the property assigned to her share at the partition of 1900 to the predecessor-in-title of defendants 10 to 15 for a consideration of Rs. 800. Then on 29-5-1901, Yellawa, the junior widow, sold a portion of survey No. 150 and survey No. 151 to the predecessor-in-title of defendants 1 to 9 for Rs. 1,379-4-3, and lastly on 11-7-1906, Yellawa sold a portion of the survey No. 151 left over, the house which appears to have been constructed on the open site and survey No. 32 to the predecessor-in-title, again, of defendants 1 to 9 for a consideration of Rs. 200.
(4) Hanamawa died in 1917 and Yellawa died in 1946. But before her death, Yellawa took the plaintiff in adoption as a son to her deceased husband on 4-12-1944. This plaintiff is the natural son of Doddahanamantappa, who is defendant 10 in the suit.
(5) Relying upon his adoption, the plaintiff filed the present suit on 21-2-1948, against the defendants claiming a declaration that the alienations in favour of the defendants mentioned above were not binding upon him, and he sought possession of the suit property. The basis of his claim was that, by virtue of bis adoption, he was entitled to claim his adoptive father's property free from these alienations, which, according to the plaintiff, were not justified by legal necessity.
(6) The defendants disputed the factum of the plaintiff's adoption and contended that even if the plaintiff was the adopted son of Karehanamappa, the alienations were justified by legal necessity.
(7) The learned trial Judge held that the plaintiff had proved his adoption and that the alienations in favour of the predecessor-in-title of defendants 1 to 9 and of defendants 10 to 15 were not justified by legal necessity nor were they for the benefit of the estate. On that view, he came to the conclusion that the alienations were not binding upon the plaintiff, and consequently, he made in plaintiff's favour a decree for possession with mesne profits to be determined under Order 20, Rule 12, Civil P.C., and costs as set out in the order. From the decree made in the suit, defendants 1 to 9 have preferred First Appeal No. 202 and defendant 15 has filed First Appeal No. 275. As these two-appeals arise from the same judgment and decree, it will be convenient to dispose of them by a single judgment.
(8) (After holding on the evidence that the plaintiff's adoption was proved, the judgment proceeded:) (9) The next question is whether the alienations are justified by legal necessity. In this connection certain facts have got to be borne in mind. The alienations took place in the years 1901 and 1906. The senior widow died in 1917 and the junior widow died in 1946. The suit was filed in 1948. The alienations are, therefore, being challenged after a lapse of 47 years in the case of two alienations and after a lapse of 42 years in the case of the third alienation. The parties to the transactions are dead, and the plaintiff cannot be blamed from having brought this suit in the year 1948, i.e., a long time after the alienations, because the plaintiff himself was adopted in the year 1944. But the fact remains that the alienations are being challenged after a considerably long time, and the question is whether, in the circumstances of the case, the alienations are proved to have been justified by legal necessity.
(10) It appears that the adoptive father of the plaintiff had incurred a tagavi loan from Government, and the amount was payable in certain instalments. Some of the instalments had been already paid, but others were outstanding, and when Hanamawa entered into the transaction of sale on 6-5-1901, part of the consideration was of a sum of Rs. 379-4-9 which the purchaser undertook to pay to Government as the amount due from the vendor. Similarly, in the case of the alienation made by Yellawa on 29-5-1901, the purchaser undertook to pay to Government the sum of Rs. 379-4-3 being the amount due to Government in respect of the instalments then outstanding and due to Government. When one refers to the three sale-deeds, it is apparent that, apart from this recital of Rs. 379-4-3 being payable by the widows in each case to Government in respect of the tagavi loan incurred by their husband, there are no recitals showing necessity for each of the transactions. The sale deed executed by Hanamawa is for the consideration of Rs. 800 and the two alienations made by Yellawa were respectively for the sum of Rs. 1,379-4-3 and Rs. 200. It is obvious that in regard to the alienations of 1901, therefore, the alienations (SIC) as to a portion of the amount of the consideration justifying the two transac-
tions.
(11) When the parties to a transaction are dead, and when there is no direct evidence to (SIC) transaction, it is well settled that presumptions are permissible in order to fill in details in justification of the transaction. Ordi-
narily, it is for a purchaser to prove that the transaction was justified by legal necessity.
(SIC) show by establishing that there was necessity in fact or by showing that he made due inquiry about the existence of the (SIC) believed in the existence of such necessity. There may be, again, cases (SIC) are ancient and there may be recitals as to necessity in regard to such, ancient transactions. In cases of this type, recitals con-
(SIC) the circumstances and probabilities will be given their due weight even when direct evidence is not forthcoming. There may be a third type of cases where there are no reci tals in the sale deeds showing legal necessity, & question arises whether in such a case it is or is not permissible to the Court to raise pre sumptions, having regard to such evidence as is adduced in the case, and it is well settled that in the last type of cases the Courts would be justified in drawing presumptions provided those presumptions are supported by the evidence and the circumstances of the case.
These principles will be found set out in Mulla's Principles of Hindu Law, 10th Edn., 19-16, Section 182, p. 190.
(12) Sri Murdeshwar for the appellants has relied strongly upon a decision of the Nagpur High Court reported in the case of --'Babulal v. Maniklal', AIR 1941 Nag 79 (A). This is what the first part of the head-note says :
"In the case of an ancient transaction relating to the alienation of Hindu joint family property, it must be presumed that the alienation was lawful (i.e.) justified by legal necessity."
I should be excused for saying that the principle seems to be too broadly stated. If one turns to page 82 of the report, this is what the Nagpur Court said :
"The presumption will operate with greater force in a case where the reversioner fails to bring a declaratory suit during the lifetime of the alienor. It would not be unreasonable to assume that the failure to sue for declaration was due to the existence of evidence proving necessity. In any case, application of the rule as to presumption would depend on the particular facts of each case and we are decidedly of opinion that the facts and circumstances of this are such as to justify the placing of onus on the reversioner of proving absence of legal necessity."
It seems to me that the true principle is that the more ancient the alienation, strict proof may not be required in order to prove the existence of legal necessity. But, I am not prepared to accent the contention that apart from, the circumstances arid such available evidence, the Court will be justified in presuming that the transaction is for legal necessity merely on the ground that it is an ancient transaction.
(13) A view contrary to the view taken in the Nagpur case will be found in a Madras decision reported in --'Subrahmanyarn v. Soorayya', . The principle which the Madras High Court laid down can be set out in the words of the head-note which is as follows :
"In those cases where there are not even recitals of necessity in deeds of sale by limited owners, mere lapse of time does not have the effect of rendering an alienation by the limited owner binding on the reversion. The presumption of a lawful origin drawn from long possession and enjoyment is not sufficient, without more, to establish that the alienation by the widow or other limit ed owner was legally effective to convey an absolute interest, for such possession and enjoyment would have been quite lawful and proper even if the alienation was valid only during her own lifetime.
It may save the alienee from an adverse inference arising from the scanty nature of the evidence adduced by him. It will allow presumption to fill in details in the evidence which have been obliterated by time. It will supply a few missing links in the evidence. But lapse of time cannot conjure up a chain consisting entirely of missing links. The burden of proof is not altered nor is evidence of justifying necessity, direct or circumstantial, positive or presumptive, dispensed with by mere lapse of time."
As at present advised, we think that the Madras case lays down the correct principle.
(14) (His Lordship concluded :) (15) In view of the above conclusions and findings, the decree of the trial Court will have to be modified. There will be a decree for possession of the suit property, subject to the following directions : The plaintiff shall recover from defendants 1 to 9 possession of the property sold to the predecessor-in-title of defendants 1 to 9 under the document of 11-7-1906, and there will be an inquiry into future mesne profits to be determined under the provisions of Order 20 Rule 12, Civil P.C., from the date of the suit to the date of recovery of possession. The plaintiff shall recover possession of the property from defendants 1 to 9 comprised in the sale deed of 29-5-1901, on his paying the sum of Rs. 379-4-3 and he will be entitled to recover mesne profits from the date of such payment to them. An inquiry into such mesne profits under the provisions of Order 20 Rule 12, Civil P.C., will be made upon an application made by the plaintiff after such payment. The plaintiff shall also be entitled to recover possession of the property comprised in the transaction of 6-5-1901, on his paying the sum of Rs. 379-4-3 to defendants 10 to 15 and the plaintiff shall likewise be entitled to an inquiry into mesne profits from the date of such payment. Subject to the aforesaid variation, the decree of the trial Court will be confirmed and these two appeals win be dismissed with costs.
(16) Order accordingly.