ANAPINDI SOMAYYA Vs. AYYALA SOMAYAJULA VENKATAYYA AND ORS

JUDGEMENT

(1.) The plaintiff instituted the suit as the reversioner to the estate of one Eswarappa who died in the year 1869 or 1873 After his death, his property was taken possession of by his widow Rajamma and she died in the year 1917. In 1871 she sold some items of property in favour of the first defendant s father for Rs. 250. The sale is now questioned by the plaintiff on the ground that there was no necessity justifying the alienation. The vendor as well as the vendee have died and the question had to be tried after the lapse of about half a century from the date of the sale. As might be expected, there is no direct evidence as regards the existence of the necessity for the alienation. The deed of sale contains a recital that the sum of Rs. 250 was required for the purpose of discharging the debts incurred by the deceased husband of Rajamma. The burden was upon the alienee to show that the sale was made for a necessary purpose and the District Judge agreeing with the Subordinate Judge held that in the circumstances of the case the onus was discharged.

(2.) The Judicial Committee have clearly laid down in Nanda Lal v. Jagat Kishore Acharyya 36 Ind. Cas. 420 : 44 C.186 : 20 M.L.T. 335 : 31 M.L.J. 563 : (1916) 2 M.W.N. 336 : 4 L.W. 458 : 18 Bom L.R. 808 : 14 A.L.J. 1103 : 24 C.L.J. 487 : 1 P.L.W. 1 : 21 C.W.N. 225 : 10 Bur. L.T. 177 : 43 I.A. 249 (P.C.) and in Venkata Reddi v. Rani Saheba of Wadhwan 55 Ind. Cas. 538 : 43 M. 541 : 28 M.L.J. 393 : 11 L.W. 451 : 18 A.L.J. 367 : (1920) M.W.N. 315 : 22 Bom. L.R. 541: 47 I.A. 6 : 2 U.P.L.R. (P.C.) 77 : 28 M.L.T. 457 (P.C.) that in respect of ancient alienations the amount of evidence that should reasonably be demanded is not the same as in the case of recent transactions. Full and detailed evidence which may otherwise be forthcoming will not, owing to the lapse of time, be available and in such circumstances, presumptions are permissible to fill in the details which have become obliterated by time.

(3.) For the transaction to be upheld the alienee may establish that the alienation was made in circumstances of necessity. But he is not required to go so far. It is sufficient for him to prove that a representation was made that such necessity existed and that he acted honestly and made proper enquiry to satisfy himself of its truth. I shall deal first with the case when he seeks to make out that necessity actually existed. In respect of ancient transaction what is the kind of proof that is required Ordinarily, recitals in deeds are evidence only as between the parties to the conveyance. But their Lordships point out that in case of transactions evidenced by ancient deeds, the recitals cannot be disregarded although no inflexible rule can be laid clown as to the weight they are entitled to receive. But recitals consistent with the probability and circumstances of the case assume importance and may be acted on. In other words, ordinarily the recital regarding necessity in a document is not direct evidence of the existence of the necessity. If hearsay evidence or second-hand proof is altogether rejected the recital cannot be relied on at all. Hearsay is excluded because it is not given on oath or cannot be tested by cross-examination and also for the reason that every witness must give his testimony under such circumstances as would subject him to the penalties of falsehood. Although a recital in a deed is not direct but only second-hand evidence, still their Lordships of the Judicial Committee say that it should not be disregarded. This is an exception to the general rule that direct evidence must be given of a fact. Recital in a document not of a recent date regarding the existence of necessity is some evidence of its existence, and if the recital is consistent with the probability and circumstances of the case the Courts will generally act upon it. That is to say, full and detailed evidence which is ordinarily required is in such cases dispensed with and presumptions are made to fill in gaps.