K VENKATESWAR RAO Vs. NIDUMOLU LAKSHMINARASIMHA RAO

JUDGEMENT

(1.) This second appeal raises a question concerning a branch of the law which is fortunately fast becoming obsolete. The attempt of the plaintiff-respondent is to question an alienation made by a widow, his grandmother, in the year 1909. The suit property is a vacant site of the extent of 572 square yards in Vadlamannadu village. The property originally belonged to one K. Lakshminarasimham Pantulu, who died in the year 1907 leaving behind him a widow Pannagendramma and two daughters Seetharamamma and Rangamma. Pannagendramma who succeed to Lakshminarasimham Pantulu's estate as a widow sold the suit property to one Mohammed Ali under Exhibit A-3, dated 8th June, 1909. It was recited in the deed of sale that the property was sold by public auction to Mohammed Ali for a sum of Rs. 321-12-0 in order to discharge the debts incurred by Pannagendramma's husband by borrowing from Narasayamma and others. It was also recited that on the date of auction, viz., 12th January, 1908, Mohammed Ali had executed a promissory note in favour of Pannagendramma for a sum of Rs. 321-12-0 subsequently a money decree was obtained against Mohammed Ali in O.S. No. 84 of 1914 and the property was brought to sale in E. P. No. 397 of 1917. The property was purchased at the Court auction by one Hanumantha Rao Pantulu under Exhibit B-2 sale certificate dated 3rd May, 1919. Hanumantha Rao Pantulu's son Srinivasa Rao sold the property to Seethayya, father of defendants 1 to 3, under Exhibit B-1 dated 6th December, 1953. In the meanwhile Pannagendramma died in 1913. Rangamma died in 1935 and Seetharamamma died in 1956. During the life time of Seetharamamma, the present plaintiff who is the son of Seetharamamma, filed O.S. No.103 of 1954 for an injunction against Seethayya and Seetharamamma to restrain Seethayya from removing the Pati earth from the suit site. As both Seethayya and Seetharamamma died during the pendency of the suit, the suit was withdrawn as abated.The present suit was filed by the plaintiff as reversioner to the estate of his maternal grandfather Lakshminarasimham Pantulu in 1968 to recover possession of the suit site. Various defences were raised. The defendants contended that the sale in favour of Mohammed Ali was for legal necessity. The defendants also contended that long before the sale by Srinivasa Rao the father of the defendants was already in possession of the properties and therefore they had acquired the title by adverse possession. The trial Court dismissed the suit holding that the alienation by Pannagendramma was for legal necessity and that in any case the defendants had acquired title by adverse possession. On appeal by the plaintiff the learned Additional District Judge reversed both the findings of the trial Court and decreed the suit.

(2.) In this second appeal Sri V. Parabrahma Sastry, learned Counsel for the appellants, argued that the lower appellate Court did not draw the presumption which it was bound to draw in the case of an old alienation such as the present one. He also argued that the lower appellate Court did not bear in mind the conduct of the parties these 60 years. On the other hand, Sri Trivikrama Rao, learned Counsel for the respondent-plaintiff, argued that the burden of proving that any alienation by a widow was for legal necessity was on the alienee and that the finding of the lower appellate Court that it was not for legal necessity was a finding of fact.

(3.) In Banga Chandra Dhur Biswas v. Jagat Kishore. Their lordships of the Privy Council while recognising that the onus of proving that an alienation by the widow was made for legal necessity, was upon the alienee held that where because of lapse of time, all those who could give relevant evidence had passed away, a recital in the document consistent with the existence of necessity should not be brushed aside. In such a case it was held that the recital was clear evidence of the existence of necessity. In Natesa Aiyar v. Panchapagesa Aiyar, it was held by the Madras High Court that the conduct of the parties who could have objected to the alienation but did not object to it for a period of 49 years was a relevant consideration in deciding the question whether an ancient alienation was supported by necessity or not. In other words, where there is a recital of necessity in the document itself the recital is presumptive proof of the existence of legal necessity for an ancient alienation. Such presumption is reinforced by the conduct of the parties who could have questioned it but refrained from questioning it. Sri Parabrahma Sastry is right in the submission that the lower appellate Court failed to take into account the legal presumption and the conduct of the parties. In the present case the alienation in question was of the year 1909, and the document contained a recital that the alienation was being made for the purpose of discharging certain debts incurred by the last male-holder. Thus the alienation was ancient and there was a recital regarding legal necessity in the document. The defendants were entitled to ask that presumption should be drawn in favour of the alienation. In addition, there was the circumstance that the two daughters of Pannagendramma who succeeded to the estate in 1913 on the death of Pannagendramma, did not choose to question the alienation during their respective lives. There is the further circumstance of the plaintiff himself having filed a suit in 1954 and having withdrawn it on the death of his mother failed to take any further action for another 12 years i.e., till 1968. The conduct of the plaintiff and his mother and aunt also throws light on the question involved and reinforces the presumption that the alienation was for legal necessity. It was argued by Sri Trivikramma Rao, that the recital shows that Mohammed Ali executed a promissory note in favour of Pannagendramma and not that he paid any money which went in discharge of the debts of Lakshminarasimham Pantulu. The recitals stated that Lakshminarasimham Pantulu owed certain amounts to Narasayamma and others and the property was sold for the purpose of discharging those debts. The auction-purchaser had executed a promissory note at the time of the auction. The alienation was made subsequently. Apparently by the time of the alienation the purchaser had paid the price and the debts were discharged. There is nothing to indicate that the price was not paid and the debts were not discharged. In the circumstances I think that the learned Additional District Judge was not justified in reversing the judgment and decree of the trial Court.