Bishnu Charan Srimani vs Subodh Chandra Dey

Das Gupta, J.—The properties which are the subject-matter of the present litigation belonged originally to one Banamali De. Banamali died leaving his widow Hiranmoyee Dasi and a daughter Panchubala. On November 19, 1924, Hiranmoyee sold by a kobala the properties in suit to Tinkarimohini Dasi and Labanyabati Dasi. Tinkarimohini died during the pendency of the suit and in her place the present Respondent''s Nos. 1 and 2 were substituted. The Appellant, who is Panchubala''s son, brought the present suit on an allegation that the sale was a collusive transaction and that in any case there was no legal necessity to justify the sale and consequently no interest passed to the Defendants thereby and that the Plaintiff has, on Hiranmayee''s death, become entitled as the reversionary heir to Banamali''s estate along with Panchubala''s other son, Satyacharan. The Plaintiff asked for a declaration that there was no legal necessity for the sale; that the sale was "inoperative, void and without "consideration" and for a declaration that the Plaintiff and Defendant Satyacharan are heirs to the estate of Banamali.

The defence was three-fold: (1) that the suit is barred by limitation; (2) that it was barred by the principle of res judicata and (3) that there was in fact legal necessity for Hiranmayee''s sale. The plea of res judicata was based on the fact that a suit, Title Suit No. 10 of 1925, was instituted by Panchubala and Satyacharan impeaching the validity of the sale on the ground that there was no legal necessity for the sale and that suit was dismissed on compromise.

The trial court held that the suit was not barred by res judicata or by limitation and also that there was no legal necessity. On appeal, the learned District Judge has held that the suit was barred by limitation and that the consent by Panchubala and Satya to the sale as evidenced by the solenama, by which the suit, namely, Title Suit No. 10 of 1925, was dismissed on compromise, afforded presumptive proof of legal necessity and that presumption has not been rebutted.

It is contended before us that on both these questions the learned District Judge has erred in law.

The law as settled by the decision of the Privy Council in 23 CWN 777 (Privy Council) , is that when alienation of the whole or part of an estate by a widow is supported on the ground of necessity, then if such necessity is not proved aliunde and the alienee does not prove enquiry on his part and honest belief in the necessity, the consent of such reversioners as might fairly be expected to be interested to dispute the transaction will be held to afford a presumptive proof which, if not rebutted by contrary proof will validate the transaction as a right and proper one. The Privy Council cited with approval the observation of Sir James Colvile in Raj Lukhee Dabea v. Gokool Chunder Chowdhury (1869) 13 M. I. A. 209 that there should be such a concurrence of the members of the family as suffices to raise a presumption that the transaction was a fair one and one justified by Hindu Law.

In the present case, the consent, which, according to the learned Judge, afforded presumptive proof that the sale was justified was given by the female reversioner Panchubala and by Panchubala''s son, Satya. The consent of Panchubala alone would raise no presumption, as she would have herself got only a limited interest on Hiranmayee''s death. If, however, Satya fully represented the reversioner next to Panchubala and his consent is established, the consent of Panchubala and Satya to the transaction would raise the presumption.

Assuming for the purpose of the present case that Satya''s and Panchubala''s consent is consent within the meaning of the rule laid down in Rangasami''s (Supra) case, it is important to remember that Satya was a minor in 1926 when the solenama was filed and consent was given on his behalf by his father as his guardian. Obviously, the father''s interest was, in this case, adverse to that of his minor son, for while, by giving the consent the father was getting along with his wife Panchubala the considerable amount of Rs. 1,150 which he could reasonably expect to use as he liked, the son was losing his chance of inheriting the property as reversionary hair to Banamali''s estate. I do not think it proper to consider consent given by the father on behalf of his minor son in such circumstances to be consent by the minor son within the meaning of the rule laid down in Rangasami''s case.

It is also to be noticed that on the Plaintiff''s evidence which was not challenged by the defence, the Plaintiff was born in 1924 or 1925, so that in January, 1926, when the suit was compromised Satya did not represent the entire reversion next to Panchubala.

For all these reasons, I have come to the conclusion that such consent on the part of the reversioners as would raise a presumption that the sale was fair and justified by Hindu Law has not been proved in this case.

As the learned Judge has not gone into the question whether without the assistance of the presumption which he thought was available, the evidence on the record proved legal necessity, we have with the assistance of the learned Advocates considered the evidence ourselves. It is clear that on the date of the sale Hiranmayee had no other immovable property except the property that was sold. This property fetched hardly any income. An attempt was made by the Plaintiff''s witnesses to show that Hiranmayee denied some income from the sale of fruits from the trees that stood on the land and from the sale of fish in the tank. The evidence of Plaintiff''s witness No. 2 clearly shows that even if any income was derived, it was really insignificant. He says:

She had just a few cocoanut, mango and jackfruit trees. She occasionally sold some fruits.

In regard to the income from the tank his evidence is that she had one tank and used to lease it and earned something. The Bengali words used by him as set out by the learned Subordinate Judge in the record is: In cross examination he said:

I never saw Hiranmayee lease out her tank to anybody. I only occasionally saw one or other fishermen of the locality catching fish in the tank.

Clearly, therefore, he had no personal knowledge that any money income was received from the tank. The fact that some fishermen occassionally used to catch fish in the tank would not justify necessarily a conclusion that any money income was received therefrom. I am of opinion that the income, if any, from the trees and the tank was so insignificant as to hardly merit consideration.

The question remains whether she had any other source from which she could reasonably maintain herself. The Plaintiff''s case appears to be that she had several thousand rupees in hard cash and used to do money lending business. The Plaintiff himself has given evidence to this effect but appears to have little knowledge of the extent of her money lending business. The Plaintiff has, in fact, claimed no personal knowledge about these matters. His second witness has said in examination-in-chief that Hiranmayee had some money and used to lend it out, but in cross-examination he said, to repeat the Bengali words used by the learned Subordinate Judge:

This certainly does not show regular money lending business; certainly not money lending of any dimension. The third witness is Hiranmayee''s brother who is clearly interested in favour of the Plaintiff. He does not say that Hiranmayee had money lending business. He said that Hiranmayee''s husband Banamali used to earn income amounting to about Rs. 5,000 or Rs. 6,000 from his grocery shop; but he does not say that Hiranmayee''s husband left any cash on his death. His evidence is that Banamali left behind the grocer''s shop, the disputed property and other landed property and ornaments. It is not even suggested that the grocer''s shop was actually carried on by Hiranmayee. Certainly, there is no evidence to show that Hiranmayee carried on the grocer''s shop.

A very significant circumstance that emerges from the evidence is that shortly before the date of the kobala Hiranmayee had let out two rooms of the house at a rental of Rs. 6 per month, keeping for herself one single room. This fact clearly shows that Hiranmayee was in urgent need of money to maintain herself. It is inconceivable that otherwise she should let out two of the three rooms to an outsider. It is worth noting that Plaintiff''s witness No. 3, Hiranmayee''s brother himself, says- and that in examination-in-chief that she used to pay for her expenses out of the rent of Rs. 6 which she got from a tenant and out of the sale proceeds of cocoanut and other fruits. As I have already pointed out, the income from the sale of fruits was insignificant. She had, therefore, to depend almost entirely on the small income of Rs. 6 for her maintenance.

The witness indeed says that Rs. 6 was sufficient for the purpose. It is not possible to accept this estimate. In 1925 prices were certainly much lower than at present, but even so, Rs. 6 per month would clearly be insufficient to secure even a very low standard of living.

On consideration of the evidence, I am, therefore, clearly of opinion that in the year 1925, at the time of the transaction of sale, Hiranmayee was in great distress and was in urgent need of money to maintain herself. The sale of the property in suit -which was then her only remaining property-was necessitated by this. The fact that in the document other necessities for sale have also been mentioned and there is reason to think that those other necessities did not exist, does not alter the position that there was real necessity for the sale for her own maintenance. My conclusion, therefore, is that the sale in favour of Tinkarimohini and Labanyabati was justified by legal necessity.

While this conclusion is sufficient for disposal of the appeal, I think it proper to deal also with the question of limitation. It is not disputed that Article 120 of the Limitation Act applies to this suit and the period of limitation is six years from the date when the right to sue accrues. Mr. Chatterji has contended that the right to sue accrued only when Hiranmayee died. So long as Hiranmayee was alive the purchasers were entitled in law to possess the property and that possession did not in any way imperil the right of reversioners. It is only when after Hiranmayee''s death the purchasers continued to exercise possession that any invasion of the right of the reversioners is patent. Consequently, it is argued that the right of the reversioners to sue-in cases where Article 120 of the Limitation Act applies-arises on the death of the limited owner.

This argument, in my opinion, cannot be accepted. The law allows a suit by a reversioner long before the right is actually invaded. It is to be remembered that the person who is now the next reversioner may not survive the widow so that he may not, in fact, have an actual right that is endangered. His is merely a contingent interest. The law still allows him the right to sue, as has often been pointed out by the courts, to meet the risk that by the time the limited owner who has alienated the property dies, it may be imposible for the alienee to have the evidence to establish legal necessity or even the fact of satisfaction on bona fide enquiry as regards the existence of legal necessity. In the words of Wallis, C.J.:

The object of the Legislature was to afford an. inducement to bring these declaratory suite which are in the nature of suits to perpetuate testimony while the recollection of facts is still fresh.

If the reversioner was to wait till something was done by the alienee to show that he wanted to press his claim on the basis of the deed of alienation to an interest in the property after the widow''s death, the whole object would be defeated. The mere fact that the deed purports to transfer the entire estate and not the interest limited to the widow''s life, gives the next reversioner the right to bring the suit.

The remote reversioner has not, however, ordinarily a right to sue so long as the nearest revisioner is present. This rule was laid down in (1881) ILR 6 764 (Privy Council) . Though in that case their Lordships had to deal with a suit impeaching the validity of an adoption by a widow, the same rule has repeatedly been applied by the Courts to suits impeaching the validity of alienations by widows. At p. 22 of the Report, their Lordships observed:

Their Lordships are of opinion that although a suit of this nature may be brought by a contingent reversionary heir, yet that, as a general rule, it must be brought by the presumptive reversionary heir, that is to say, by the person who would succeed if the widow were to die at that moment, They are also of opinion that such a suit may be brought by a more distant reversioner if those nearer in succession are in collusion with the widow, or have precluded themselves from interfering. They consider that the rule laid down in Brikaji Apagi v. Jagannath Vithal 10 Bom. H.C.R. 351 is correct. It cannot be the law that any one who may have a possibility of succeeding on the death of the widow can maintain a suit of the present nature, for, if so, the right to sue would belong to every one in the line of succession, however remote. The right to sue must, in their Lordships'' opinion, be limited. If the nearest reversionary heir refuses, without sufficient cause, to institute proceedings, or if he has precluded himself by his own act or conduct, from suing, or has colluded with the widow, or concurred in the act alleged to be wrongful, the next presumable reversioner would be entitled to sue....

On this authority, it must be held that the right of the remote reversioner to bring a suit impeaching the validity of a sale by the limited owner accrues ordinarily only on any of the events mentioned happening, namely, the refusal by the nearest reversionary heir to sue'' his having precluded himself from suing, his collusion with the widow or concurrence in the alienation. While this is the general rule, the position has been held to be different where the nearest reversioner is a female. It was pointed by Brett and Mookerjee, JJ. in Abinash Chandra Mazumdar v. Harinath Shah I. L. R. (1905) Cal. 62:

...there is a substantial distinction between the case in which a remote reversioner who would take an absolute interest, sues for a declaratory decree in the presence of a nearer male reversionary heir and the case in which such a suit is brought in the presence of a nearer female reversionary heir... The principle upon which a reversionary heir is allowed to maintain a declaratory suit, although it may turn out in the end that he is not the person who actually gets the property, is that otherwise evidence regarding the true character of the alienation might disappear and be not available when required. Obviously this principle has a much stronger application in the case in which several successive life estates intervene between the original proprietor and the ultimate full owner, than in the case in which only one such life-estate is interposed.

Their Lordships held accordingly that, the view that a remote reversioner can bring a declaratory suit when the immediate reversioner is herself only the holder of a life estate is well founded on principle.

The same view was taken in Raghupati v. Tirumalai ILR (1892) Mad. 422; Kandasami v. Akkanmal I. L. R.(1889) Mad. 195, and in Balgobind v. Ram Kumar ILR (1884) All. 431.

In such a case the remote reversioner has not to wait till the happening of any of the events mentoned in Rani Anund Koer''s (Supra) case to bring his suit, but his right to bring a suit impeaching the validity of the transaction accrues immediately on the date of the sale.

In the present case, the Plaintiff has given evidence that he was born in 1924 or 1925. If the later date, 1925 be accepted it is not possible to say whether on the date the sale took place he had already been born. Whether however he was merely an infant at the date of the alienation or was born subsequent to the date of the alienation, he was entitled to the benefit of Section 7 of the Limitation Act (vide, Abinash Chandra Mazumdar v. Harinath Shaha (Supra); Govinda Pillai, minor by his next friend Muthusami Pillai Vs. Thayammal and Others, .

An attempt was made to induce us to hold that the Plaintiff''s statement that he was born either in 1924 or in 1925 was a loose statement and should not be considered as correct and that on the strength of the evidence which was sought to be produced in this Court as additional evidence we should hold that the Plaintiff was born on April 1, 1927. We do not think it possible to interfere with the conclusion of the court below on the question as regards the date of the Plaintiff''s birth. While it may happen that a person may not have the correct knowledge about his own date of birth-it is important to notice that even after the Plaintiff himself had given evidence that he was born in 1924 or 1925, the Plaintiff''s witness No. 3, who would be expected to have more accurate knowledge, does not say that the Plaintiff had made a mistake. When the learned Judge has accepted the evidence of the Plaintiff as regards his date of birth, I do not think we should be justified in allowing that finding to be challenged here. On the basis that the Plaintiff was born in 1925 the suit was obviously barred by limitation.

I would, accordingly, dismiss this appeal with costs.

The application filed on February 21, 1955, for acceptance of additional evidence is rejected.

Guha, J.

I agree.