NATESA AIYAR Vs. PANCHAPAGESA AIYAR

JUDGEMENT

(1.) The plaintiffs brought this suit as reversioners to recover certain property alienated by a widow 49 years before suit, in 1871. The question of fact to be decided was whether the alienation was for necessary purposes binding on the reversioners. There is no recital in the document (Ex.1) as to the purpose for which the land was sold. Owing to the great lapse of time since the alienation took place, no direct evidence was available to prove for what purpose the widow sold the property. The Courts below therefore had to depend upon evidence as to the attendant circumstances and the conduct of the parties; and both Courts finally came to the conclusion that the alienation could not be questioned.

(2.) The alienation of 1871 by Dharmi Ammal was in favour of Arunachala Aiyar, grandson of Parasurama Aiyar, the common ancestor. Arunachala Aiyar s four sons sold the same property under Ex. II, in 1887, to the father of Defendants 1 and 2 and the grandfather of the third defendant.

(3.) The decision in Banga Chandra Dhur Biswas v. Jagat Kishore Acharjya Chowdhnri [1916] 44 Cal. 186, by the Privy Council, was to the effect that a Court might look to the recitals in a document of alienation as proving necessity in a case where, owing to the lapse of time, it was unreasonable to expect exact evidence as to the nature of the transaction. That case is not directly in point, but the observation at page 198. "The circumstances are sufficient to justify the assumption that proper enquiry would have disclosed that real necessity existed," is an observation which may be applied to the present case. The question here is whether under the circumstances, as we know them at this distance of time, the Courts below were justified in presuming that if the purchasers had made enquiries at the time of their purchase in 1871, they would have found that the widow was alienating the property for necessary purposes. The only circumstances in the present case, which have any bearing on the present question, are the conduct of persons who had a right to object if the widow was alienating the estate or part of it without necessity. First there is the fact that the sister of the last male owner namely Sitalakshmi, attested Ex. I. Next there is the fact that Kalyanasundaramiah and Ayyasami Ayyan, two of the reversioners, attested Exhibit II, which is a sale deed by the sons of the vendee from the widow. Lastly, there is the fact that in the partition which look place in 1911 the reversioners agreed not to question any of Dharmi Animal s alienations in favour of any one of them. There are also negative circumstances which lead to the same inference. During the widow s lifetime none of the reversioners brought a suit for a declaration that the alienation was invalid. In Magniram Sitaram v. Kasturbhai Manibhai A.I.R. 1922 P.C. 163 Lord Buckmaster observed in the case of a grant by a shebait to a temple: