KARUPPU GOUNDAN Vs. SELLAMMAL

JUDGEMENT

(1.) THE only question in this appeal against the judgment of Rajagopalan, J. , in A. S. No. 126 of 1949 is whether an alienation by a Hindu widow is binding on the reversioners. The properties in suit belonged to one Kali Goundan who died in 1918 leaving him surviving his widow Varadammal and his two daughters who are the plaintiffs in the suit out of which this appeal arises. Varadammal sold certain properties belonging to Kali Goundan and which had devolved on her to her father palani Goundan under Ex. B-l dated 25-3-1921 for a sum of Rs. 2000. The plaintiffs attacked the alienation on the ground that it was not supported by necessity. The consideration of Rs. 2000 was made up of the following items : (1) Rs. 92210-8 due for principal and interest in respect of a mortgage executed in favour of one Sellappa Goundan by Varadammal on 2-7-1919 for Rs. 800: (2) Rs. 100 being the balance due in respect of the mortgage executed by Kali Goundan himself in favour or one Veerayi, (3) Rs. 100 being the balance due to Chinna Goundan under a promissory note executed by Kali Goundan, (4) Rs. 100 due to a nattukottai Chetti hank at Namakkal borrowed by Kali Goundan and one Ramasi goundan and (5) Rs. 777-5-4 which was not paid in cash but for which the purchaser is stated to have executed a mortgage in favour of the vendor. Soon after his purchase Palani Goundan sold the major part of the property purchased by him to the fathers of defendants 1, 2 and 3.

(2.) AT the trial, the evidence disclosed that though the sale deed recited the execution of a mortgage by Palani Goundan for Rs. 777-5-4 no such mortgage was ever executed. The case on behalf of the alienees was that instead, a promissory note was executed which was discharged in due course and Varadammal advanced the money so collected on a mortgage. Neither the promissory note nor the mortgage alleged to have been executed in favour of Varadammal was produced. The learned Subordinate Judge held that the sale deed was supported by necessity only to the extent of Rs. 500. He therefore passed a decree that on payment of that sum by the plaintiffs into court to the credit of defendants 2 and 3, defendants 1, 2 and 3 do deliver to the plaintiffs possession of the suit properties. Defendants 1 to 3 filed an appeal to this court, A. S. No. 126 of 1949. That appeal was heard and disposed of by rajagopalan, J. The learned Judge held that a sum of Rs. 1022-10-8 represented debts which would support that alienation on the ground of legal necessity. He therefore varied the decree of the lower Court and held that the plaintiffs would be entitled to recover possession of the property on payment of Rs. 1022-10-8, otherwise he dismissed the appeal, the appeal before us is by defendants 1 to 3 against this judgment and decree of Rajagopalan, J.

(3.) MR. K. Bhashyam Aiyangar, learned Counsel for the appellants, did not seriously challenge the finding of the learned Judge that the alienation was supported by necessity only to the extent of Rs. 1022/10/8. His contention was that as there was legal necessity for the sale it was not incumbent on the purchaser to prove that the entire sale proceeds were utilised for discharge of debts binding on the estate or were otherwise used for necessary purposes. In support of this contention he relied on the well-known ruling of the Judicial committee in Sri Krishnan Das v. Nathu Ram, ILR 49 All 149 : (AIR 1927 PC 37), which has been considered in a catena of cases in the several High Courts in India as well as by the Privy Council subsequently. In that case there was an alienation for a sum of Rs. 3500 out of which Rs. 3000 were applied to purposes of necessity. In the suit to set aside the sale, the High Court made a decree setting aside the sale conditional upon Rs. 3000 being paid to the purchaser. Their Lordships of the Judicial Committee held that the suit should have been dismissed. They further held that a decree upholding a sale conditionally upon the purchaser paying a small part of the price not proved to have been applied to purposes of necessity is also contrary to law. Their Lordships point out that it is not a matter of arithmetical calculation as regards the part of the consideration not justified as being for necessary purposes. The true Question which fell to be considered in each case was whether the sale itself was one which was justified by legal necessity, On the facis found by the trial judge in that case it was clear that the impugned sale was made after due enquiry as to legal necessity by the vendee and that the price was adequate. Their lordships observed that the mere fact that after a long interval of time the appellants have not been able to establish how the surplus of Rs. 500 was applied is not a sufficient ground in law for setting aside the sale. In spite of their Lordships in this case pointing out that the principle to be applied should not be based on an arithmetical calcinations, in several cases following this decision of the Privy Council courts have paid due regard to the proportion between the amount of consideration, which was for legal necessity and the balance for which there existed no legal necessity. At page 468 of Mayne's Hindu law, 11th Edn. under note (f) we find cases collected which obviously have been decided on She arithmetical basis. These were all cases decided after the Privy council decision in ILR 49 All 149: (AIR, 1927 PC 37 ). Summing up the result of the decisions the following statement of the law is in our opinion accurate: