Ram Lal Singh vs Lalji Misser

Rowland, J.—This appeal arises out of a suit brought by the nephew and nearest agnate of Harlal Singh, the last male holder of certain immovable property, to declare as not binding on him an alienation of 34 bighas odd made by the daughter of Harlal to the principal defendant on 8th April 1918, by a sale deed (Ex. F) for a consideration of Rs. 1299. The suit was instituted in declaratory form in the lifetime of the lady, but shortly after its institution she died. The plaint was then amended and a relief added asking for possession over the property, and additional court-fee was paid on this relief. The Courts have held that the plaintiff is the next reversioner. The Munsif held that the defence of legal necessity for the alienation was for the defendant to prove and that defendant had adduced no evidence to prove these necessities, and that there was no proof of his naving made proper inquiries as to the existence these necessities. On appeal the Subordinate Judge said that the defects on the defendant''s side would seem to be on account of the lapse of time.

He then referred to the decision of the Privy Council in Nandalal Dhur Biswas v. Jagat Kishore A.I.R (1916) . P.C. 110 and treated the burden of proof as discharged by inference from the recitals themselves. In my opinion, the case is governed by the general rule laid down in many decisions of the Privy Council particularly in Maheshar Baksh Singh v. Ratan Singh (1896) 23 Cal. 766 in Sham Sunder Lal v. Achhan Kumwar (1899) 21 All. 71 and again in Brji Lal v. Inda Kunwar A.I.R (1914). P.C. 38. In the last case their Lordships said:

In the present case the appellant has adduced no evidence to prove such legal necessity as would bind the husband''s estate. He has relied simply on the recitals in the schedule attached to the sale deed. Recitals in mortgages or deeds of sale with regard to the existence of necessity for the alienation have never been treated as evidence by themselves of the fact. And it has been repeatedly pointed out by this Board that to substantiate the alienation there must be some evidence aliunde.

In Nandalal Dhur Biswas v. Jagat Kishore A.I.R (1916). P.C. 110 the circumstances which, induced their Lordships to make an exception to the rule were unusual. The last of the transactions was over fifty years old. The recitals referred to matters which at the time would have been easily demonstrable, e.g. the existence of an unsatisfied decree against the last male holder. Further, the property appeared on the face of things to be insufficient for the maintenance of the lady, and the course of dealing with the property indicated a strong probability that the recitals were founded on fact. The facts recited, if accepted as true, were sufficient to support the plea of necessity and the binding nature of the debt. Here the case is different. There were 41 bighas of mukarrari lands. It is not suggested that Harlal left any debts. There is no evidence, generally speaking, that the borrowing by the widows was for anything but their own purposes. Debts incurred for such purposes are binding only on the personal estate of the widow.

However, I shall examine the details of the consideration of Rs. 1299. Rs. 999 of this is said to have been required for paying off a previous zarpeshgi given by Lakhrupi in February 1904 to Suraj Prasad covering the entire 41 bighas. A further sum of Rs. 222 is said to have been set off against the vendee''s own dues, Lakhrupi having borrowed from him for the purpose of a Gaya-sradh, and Rs. 78 is mentioned as having been taken for the purpose of bullocks and other necessities. As to this Gaya-sradh, the evidence is that that recital was false, that the money was in fact taken for the Janeo ceremony of Dhyani, a daughter''s daughter''s son of Harlal Singh. That, as both the Munsif and Subordinate Judge [have pointed out, was not a necessity which could be made binding on the estatel of Harlal; and it is unpleasant to find that to give the deed a better color a false recital of Gaya-sradh was entered in it. In my view the Rs. 300 made up of Rs. 222 plus Rupees 78 must be held to be not for necessity. Then I turn to examine the necessity for the Rs. 999 recited as being due on the previous zarpeshgi which was executed in 1904. The document recites that of its consideration Rs. 619 was debt due from Raji Kuar, a widow of Harlal, to one Mahadeo on a simple mortgage bond dated 1st February 1900, for a consideration of Rs. 499. In addition Rs. 370 is said to have been taken for payment of previous creditors. Particulars of necessity are not stated, except regarding Rs. 27 said to have been borrowed from Radha Mohan Singh for performance of the sradh of Lakhrupi''s mother Raji, and Rs. 45 said to have been taken for payment of rent to the landlords. Furthermore, Rs. 10 cash was taken at the time of execution.

If the recitals are taken as supporting that the debts were incurred as recited, it might be that Rs. 27 plus Rs. 45 can be considered as supported by necessity. The balance of Rs. 370 and Rs. 10 cannot be considered to have been taken for necessity. Next, there is the bond of 1900 for a consideration of Rs. 499. This consideration is recited as being made up of Rs, 262-13-6 said to have been borrowed from the mortgagee by the widow Raji, for the purpose of survey disputes. The balance Rs. 236 odd was taken in cash for meeting certain creditors whose names do not appear. On the face of the recitals, the Rs. 236 cannot be considered to have been taken for necessity. If the recitals be accepted as supporting the facts recited, the sum of Rs. 262-13.6, out of the consideration of the bond, Rs. 1900, could be treated as money taken for necessity. This amount with proportionate interest would be represented by Rs. 306 at the time of the execution of the zarpesghi in 1904.

Now, if we followed strictly the rule laid down in the Privy Council decisions, which I have said is applicable, in that case the plaintiff might be entitled to immediate possession. Mr. Bhuvaneshwar Prasad Sinha for the appellant has said that he does not wish to press his claim to the extent of denying to the respondent payment of what may be considered justly due on account of sums probably advanced for necessity. On that footing it may be said that there appears to be necessity for this much of the consideration of the zarpeshgi of 1904, viz. Rs. 27 + Rs. 45 + Rs. 306, total Rs. 378. To this extent, the zarpeshgi may be considered to have been binding on the estate up to the time that it was redeemed by the purchaser and, if so, it would be equitable to treat the purchaser as entitled to retain a lien on possession of the property until the data when the plaintiff shall bring this sum into Court for payment to him.

The Subordinate Judge thought that the validity of the zarpeshgi should be sup. ported because the purchaser satisfied him-self that the zarpeshgi deed was for consideration. That might be enough if the purchaser had been dealing with the male karta of a joint Hindu family. Antecedent debt in such a case may be enough to bind the estate; but here in the case of a widow, antecedent debt is of no effect unless such debt itself was incurred for necessity, and '' the defendant himself admitted that he had made no inquiry as to how the consideration of the zarpeshgi deed was made out.

I would allow the appeal, set aside the judgment and decree of the Subordinate Judge and restore that of the Munsif with costs; but it should be added that the decree will not be executed until the plaintiff brings into Court the sum of Rs. 378 for payment to the principal defendant.

Yarma J.

I agree.