Kakari Krishnayya and Another vs Kodali Kotayya and Another

In this appeal, three alienations in favour of the appellants are in question. They were made by a widow and the lower Appellate Court has

found that they are not binding upon the estate except in one case where the consideration is binding to the extent of Rs. 189. These findings have

been sought to be attacked on the ground that the learned Judge has committed various errors of law in coming to that conclusion. These errors of

law seem to consist mainly in an. Alleged failure to consider some of the evidence and this argument is based on the absence of reference to all the

details of the evidence in the judgment. The learned Advocate for the appellants has been allowed to refer to some of that evidence which is

deemed to be so material as to vitiate the judgment of the learned Judge. He has been unable to point out anything which is so material that an

omission to refer to it in the judgment would vitiate that judgment and the District Judge appears to have considered all the evidence. I am,

therefore, unable to hold that the findings of fact are bad in law.

On the finding that the alienation under Ex. VIII was supported to the extent of Rs. 180 out of Rs. 595 by necessity, it is argued that the whole

transaction should be held to be valid and reliance is placed on the recent decision of the Privy Council in AIR 1927 37 (Privy Council) . Their

Lordships disapproved of the series of decisions in the Allahabad High Court in which Court it had previously been held that where there was a

considerable amount of the consideration which was not binding on the estate, the whole alienation should be set aside even though a major portion

of the consideration was so binding. That is not the principle that has been adopted in this Court. No doubt, in many cases an arthimetical

calculation has been used to assist the Court in determining the validity of the alienation. It may be said that generally where the valid consideration

is less than half, the whole alienation is held to be bad, whereas if it is more than half, it has been held to be good; but because this arithmetical

calculation has sometimes been adopted it need not be inferred but the real question at issue has been lost sight of, namely, whether the sale was

effected for necessary purposes, that is to say, was the sale due to a necessity pressing upon the estate and necessitating the alienation of portion of

it? The amount of consideration that is binding upon the estate is certainly one of the items to be considered in the present case, out of Rs. 475

paid for the land alienated a sum of Rs. 180 has been held to be for a necessary purpose. Can it possibly be said without further evidence that it

was necessary for the widow to sell land worth Rs. 475 in order to discharge a small debt of Rs. 180. If the appellants had adduced evidence to

show that there was some danger to the estate and this sale was, therefore, necessary, their present contention might be upheld, but the burden is

on them to prove that the widow was bound by necessity to effect the alienation and this they failed to do.

Accordingly, the decree of the lower Appellate Court is correct Sand this appeal must be dismissed with costs.