Rambujhawan Singh and Another vs Suraj Prasad and Another

Dawson-Miller, C.J.—The dispute in this appeal concerns the right to certain lands in mauza Jhitkahi which at one time formed part of the estate of Udit Narain Singh who died many years ago about the year 1860 leaving a widow Mt. Jasoda Kuer and a daughter Mt. Barat Kuer but no male issue. The daughter Barat Kuer married one Bihari Singh and by him had a son Suraj Singh who predeceased his mother leaving a widow Mukha Kuer who is the first Defendant in this suit. Upon Udit Narain''s death his property was inherited by his widow Jasoda and on her death sometime later Barat Kuer succeeded to the property and died in the year 1918. Upon her death without leaving issue, her son Suraj Singh having predeceased her, the succession re-opened. The Plaintiff Suraj Prasad Singh a distant collaterial relation of Udit Narain Singh, claims to be entitled to be land in dispute as the next reversionary heir of Udit Narain on the death of Mt. Barat Kuer. The Appellants Rambujhawan Singh and Manoge Rai, who are the Defendants Nos. 9 and 10 in the suit, claim the property under two sale deeds dated the 18th May 1909 executed in their favour by the defendants Nos. 7 and 8, Mr. Herbert Edward Cox and Miss H.H. Cox, in turn had purchased from Barat Kuer under a registered conveyance executed by her in January 1908. There were a number of other Defendants in the suit who either by relationship to the last male holder or by the title derived from the Appellants (Defendants Nos. 9 and 10) claimed to have some interest in mauza Jhitkahi or the other properties which form the subject of the present suit. In the present appeal, however, we are concerned only with the interest in mauza Jhitkahi and the rival claims thereto of the Plaintiff Suraj Prasad Singh and the Appellants-Defendants, Rambujhawan Singh and Manoge Rai.

Numerous pleas were raised in defence by the Appellants. It was contended that the property was not part of the estate of Udit Narain Singh but the stridhan of his widow Mt. Jasoda Kuer and that it was inherited from her by her daughter Barat Kuer as her absolute property over which she had complete power of disposal. The Plaintiff''s right as next reversionary heir of Udit Narain Singh was also denied. It was further contended that in any event the sale by Mt. Barat Kuer to the Coxs (Defendants No. 7 and 8) from whom the Appellants derived their title was justified by legal necessity. It also appeared that the conveyance executed by Barat Kuer in 1908 was made in order to raise money to pay off certain debts, one of which was a zarpeshgi mortgage debt of Rs. 1,100 under an instrument executed by Jasoda Kuer in 1902, the document having been signed on her behalf, she being illiterate, by her grandson Suraj Singh who was then alive and who was at that time the next reversioner. It was contended before the trial Court that this transaction in which the then reversioner signed on behalf of his grandmother was evidence of his consent and should be taken as proof of justifying necessity for that transaction. On appeal in argument before us although the point had not been raised in the pleadings or issues it was urged that the fact that Suraj Singh signed the zarpeshgi of 1902 on his grandmother''s behalf, he being the sole reversionary heir at that time, constituted the transaction valid and binding apart from any question of legal necessity.

The learned Subordinate Judge found that the Plaintiff Suraj Prasad Singh was the next reversionary heir of Udit Narain after the death of Mt. Barat Kuer, a finding which is no longer disputed. He further found that mauza Jhitkahi formed part of the estate of Udit Narain Singh and was not the stridhan property of his wife and daughter. Although this finding was questioned in argument before us the point was subsequently abandoned on its being pointed out that Udit Narain Singh during his life-time had purported to deal with this property as his own. The learned Judge also found that out of the sum of Rs. 5,000, the purchase price paid to Mt. Barat Kuer under the conveyance of 1908 a sum of Rs. 1,300 only was justified by legal necessity and ordered the sale to be declared void and possession to be given to the Plaintiff, Suraj Prasad Singh on payment of that sum to the Appellants who had purchased as already stated from Barat Kuer''s transferees. He was also of opinion that there was no proof of legal necessity by the fact that Suraj Singh (Burat Kuer''s son) had signed the mortgage of 1902 on his grandmother''s behalf.

The Appellants contended before us, although somewhat half-heartedly, that the whole of the purchase price paid to Barat Kuar was justified by legal necessity and, secondly, that the mortgage debt of 1.902 for Rs. 1,100 to discharge which was one of the objects of the sale was binding on the reversioners and that that sum should in any event be added to the amount repayable to the Appellants out of the purchase price.

The sale deed of 1908 in favour of the Coxs recites that the vendor Mt. Barat Kuer is pressed for money and that suits are threatened against her and that it is necessary to sell the property in order to raise money. The purchase price of Rs. 5,000 was said to be required for the following purposes:

(1) To discharge a debt of Rs. 2,000 due to Mr. William Herbert Cox under a zarpeshgi bond, dated the 2nd August 1897, executed by Mt. Jasoda Kuer.

(2) To discharge a zarpeshgi bond of Rs. 1,100 executed by Jasoda Kuer on the 30th November 1902 in favour of Barhamdeo Singh.

(3) To discharge a mortgage debt of Rs. 424 executed by Jasoda Kuer in favour of Bhikam Sheikh on the 26th September 1898.

(4) The balance of Rs. 1,476 was required to pay other petty debts and Government revenue and for necessary expenses, the amounts and details of which are not specified.

The sum of Rs. 1,300 allowed by the Subordinate Judge as justified by legal necessity formed part of the first of the above items for Rs. 2,000. This sum was said to have been borrowed by Jasoda Kuer to pay off a previous zarpeshgi of Rs. 1,200 executed by Udit Narain in 1860 in favour of Mr. Henry Hill, proprietor of the Bara factory, the balance of Rs. 800 being required to pay a debt of Rs. 700 due to Ganesh Das Marwari, the remaining Rs. 100 being for household expenses and maintenance during a time of scarcity. The learned Judge considered that the zarpeshgi executed by Udit Narain was a debt due from his estate and therefore justly payable out of the same. There was no satisfactory evidence of necessity for the loan due to Ganesh. Das Marwari and the learned Judge disallowed it. He thought, however, that the circumstances showed that Rs. 100 might well be required for the necessary personal expenses of Jasoda Kuer as 1897 was a famine year. He accordingly allowed Rs. 1,300 in all out of the purchase price. The Appellants have not seriously contended that any further portion of this item can be justified on the ground of legal necessity and I see no reason to differ from the conclusions of the trial Court.

The second item of Rs. 1,100 and the third item of Rs. 424 were both loans contracted by Jasoda Kuer to pay off debts due to the Bara factory owned by Mr. Hill but the Judge found that there was no evidence of any justifying necessity for contracting these debts and it has not been seriously urged before us that there is any evidence to support them on that ground. It was argued, however, that the mortgage bond for Rs. 1,100 which was signed in Jasoda''s name by her daughter''s son, then the next reversioner, must be taken as having been consented to by him. It was argued that a transfer effected by a limited owner such as a Hindu widow with the consent of the next reversioner was a valid and binding transaction. Accepting this proposition as a correct exposition of the law there is nothing, apart from the fact that the reversioner signed on behalf of his grandmother, to prove his consent to the transaction. It has frequently been held that the signature of a party as a witness to a deed or as the scribe who wrote it is not in itself evidence of his consent to the transaction and I can see no reason why different principle should be applied to a person who simply signs the name of mother at that other''s request. It may or may not be that he was fully aware of the contents of the document and it may or may not be that ho approved of it, but the fact that he merely acted as the amanuensis of another affords in itself no evidence of his own knowledge of the contents of the document. Still less can it be said to express his concurrence in the matters expressed therein. His part is merely mechanical and expresses no separate intention of his own but merely the intention of the party on whose behalf he acts. To hold otherwise would, in my opinion, in many cases work injustice and be fraught with much danger.

The fourth item of Rs. 1,476 paid in cash to Barat Kuer was according to the sale deed required by the vendor to pay debts due to mahajans for sums borrowed during time of famine, for maintenance and for payment of Government revenue and other necessary expenses. There was no evidence to support these recitals in the sale deed but some evidence was given to the effect that money was required for the sradh of Jasoda Kuer and the gaona of Barat Kuer''s son Suraj Singh who was then alive, but this was not alleged in the sale deed and the learned Subordinate Judge rejected the evidence as untrustworthy. The learned Counsel for the Appellants has not referred us to any evidence which could be said to show that there was any legal necessity for this sum. The verbal evidence in fact was not even referred to in argument but having looked at it I consider that there is no reason to differ from the learned Judge''s findings. As the onus lies on the purchaser to prove the necessity for the sale this appeal fails and is dismissed with costs.

Jwala Prasad, J.

I agree.