HARDEV SINGH Vs. DR. SHARAN SINGH

JUDGEMENT

(1.) THIS is an application for review of my judgment dated 9th April, 1951. The facts of the case are given in my previous judgment and it is not necessary to recapitulate them here. Two points arose in the appeal; (1) Whether the property in, suit was ancestral qua the plaintiff and (2) Whether the sale was for consideration. I found both these points against the vendee and setting aside the appellate judgment of the District Judge restored that of the trial Court whereby a declaratory decree had been passed in the plaintiff's favour that on Gurbachan Singh's death he would be entitled to get back the suit land with the exception of Khasra No. 931 Min on payment of Rs. 1850/ -. The vendee is the applicant before me and it is contended on his behalf that since his counsel was not heard on the question of consideration and necessity I erred in giving a finding against him on those points. The petition was admitted and notice was issued to the respondents to show cause why the previous judgment should not be set aside in so far as it related to consideration and necessity. Mr. Atma Ram learned counsel for the plaintiff, who was the appellant in this Court, denies the applicant's allegation that his counsel was not allowed to have his say on any point decided by me and contends that both he and the applicant's counsel advanced all the arguments that they wished to do and it was after hearing them that I decided the appeal. Neither side has cared to put in an affidavit and there being one counsel's statement against that of another it is very difficult for me to hold which side is correct, but the onus being on the applicant to make out a case for review the advantage of the doubt must go to the other side and the application must fail for this reason alone.

(2.) IN order to be on safe side, I gave the applicant's counsel an opportunity of convincing me that my previous decision was wrong and after hearing him at considerable length I hold that he has not succeeded in this. The sale was made for Rs. 2000/ -; out of which Rs. 1850/ - were kept with the vendee for payment to a previous mortgagee of the suit land and Rs. 150/ - were accounted for towards the debt that the vendor was alleged to have owed to the vendee. There is no dispute regarding the first item and it is the second item, which the trial Court held to be not proved and I agree with the trial Court. The evidence produced by the vendee in support of the debt consisted of a pronote, a supporting receipt and the statement of the scribe of the pronote. Neither the pronote nor the receipt bears any stamp. An objection was raised on behalf of the plaintiff to the admissibility of the pronote in evidence. The trial Court while recording the evidence of the scribe of the pronote made a note that the question whether or not the pronote could be admitted without stamp would be decided later but for some reason or the other forgot to decide it. The applicant's counsel admits that the pronote not being stamped could not be admitted in evidence, but he say;, that since no objection was raised regarding the admissibility of the receipt that document forms legal evidence. I think he is right in this. The mere production of the receipt however does not prove the debt. What is important is that the scribe of the pronote and the receipt, who gave evidence to prove them was not believed by the trial Court and since that Court had the witness before him and had the opportunity of examining his demeanour Its opinion is entitled to considerable weight. There is another noteworthy fact. It is alleged that the vendor raised the loan of Rs. 150/ - from the vendee because he wanted to buy a pair of bullocks for agricultural purposes but the evidence is that his entire land was mortgaged with other persons and he had no. other land to cultivate. This fact by itself would go to show that the story of the debt was coined in order to create evidence in support of the necessity for the sale. The applicant's Counsel urged that the observations made by me in my previous judgment that even if the existence of the previous debt could be taken as proved, since it had not been established that it had been raised for a necessary purpose, the sale could not be held to be for legal necessity, was nut correct. His position was that if the debt existed no matter it was raised for a necessary purpose or not, it constituted a just antecedent debt. In view of my finding that the vendor did not owe anything to the vendee on the basis of the pronote and it was all a fictitious transaction it is unnecessary to go into this point. It was then argued by the applicant's Counsel that Rs. 1,850/ - out of the total amount of consideration for the sale being for necessity the entire transaction of sale should have been upheld. In support of his contention he referred to a number of cases in which it is held that when the bulk of consideration for an alienation is found to be for necessity the alienation cannot be declared void against a reversioner merely because no proof of necessity regarding the remaining consideration is forthcoming. I have no quarrel with this proposition of law but what I consider it that it has no application to the present case. It must be remembered that the plaintiff challenged the sale in favour of the vendee and not the previous mortgage and accordingly it was the duty of the vendee to prove that necessity existed for the sale. To hold that the sale could be made because money was required to redeem the mortgage to which the property was subject would be tantamount to holding that the mortgage could be converted into sale without there being any necessity justifying the taking of this step. It should also be remembered that this was not the position of the vendee because his plea was that the suit property was already mortgaged and money was required by the vendor not only to pay off the previous mortgagee but also to discharge the debt that he owed to him, i.e., the vendee, accordingly I hold that there was no legal necessity for the sale. In this respect, the facts of the case are analogous to those of 'HAKIM ALI v. MILKHI RAM', : AIR 1932 Lah 193 (2), in which it was held by a Division Bench of the Punish High Court that: