KAMMI MINNI NAGIAH Vs. POPUR VENKIAH

JUDGEMENT

(1.) THIS appeal arises out of a suit instituted by the reversioners impeaching an alienation made by a widow of the suit -lands in favour of defendants, and for a declaration that the alienation is not binding on them. The defence was that the alienation was made in order to discharge a debt incurred by the deceased and, therefore, was binding on the estate. It was stated that the husband gave directions orally to the wife, just prior to his death, that she should discharge a debt of Rs. 600 which was owing by him and that in pursuance of this direction, the property was mortgaged first to the creditor and later on in order to discharge the mortgage debt a sale of the suit land was effected. It was also urged in defence that the plaintiffs had no right to sue in the presence of a nearer reversioner Viz., the daughter of the deceased. The trial Court dismissed the suit holding that the defendant had proved the oral direction of the husband asking the wife to discharge the family debt of Rs. 500. It also held that inasmuch as the alienation was for payment of a debt of the husband which was a legal necessity, the alienation could not be set aside it also held that the plaintiffs had no right to sue inasmuch as it had been proved that a nearer reversioner was alive. The lower appellate Court differing from the trial Court decreed the plaintiff's suit. Without going into the question as to whether there was a nearer reversioner it held that the present plaintiffs had the right to pray for a declaration that the alienation by the widow endangered their rights in the property and, therefore, they could ask for a declaration that the alienation be declared to be not binding. Against this judgment, the alienee has come up in appeal.

(2.) WE will first dispose of the question as to whether the plaintiffs are entitled to sue. As regards this point, we are of opinion that the evidence is most unsatisfactory to prove that; there is an heir who is neater in relationship -to the deceased than the plaintiffs. The burden was upon the defendant to prove affirmatively; that the deceased left a daughter who had a right in preference to the plaintiffs. In the written statement it is not stated that there is a daughter alive but it is generally stated that there is a nearer reversioner. D.W. 4 says that there is a daughter, while D.W. 5 says that the deceased had no issue, male or female. In this most unsatisfactory state of evidence, we are -not inclined to come to the conclusion that the -existence of a nearer reversioner has been proved. We agree with the finding of the lower Court in this regard that the plaintiffs are entitled to sue.

(3.) THEN the question that falls to be considered is as to whether it has been proved as a matter of fact by the alienee that this debt owed. A mortgage deed said to have been executed in 1322 Fasli by the widow has been filed in proof of the feet that this debt was owing. Two witnesses have been examined to prove this debt. This document was executed in favour of the widow's father and it is recited in the document that she executed the deed as security for the debt owing by her husband. Later on, after the lapse of 12 years, a payment of Rs. 25 is made and this payment is endorsed on the document and in 1849 Fasli the present sale deed in favour of defendant 2 is executed by the widow and it is stated therein that out of the consideration for this sale, the previous mortgage in favour of her father was discharged. There is the endorsement of the discharge of the debt on the mortgage deed and this endorsement has been proved by the writer of the endorsement. It is argued by the learned advocate for the respondent that the whole transaction is a fictitious transaction in order to deprive the reversioners of their right in the property. He contends that barring the recital in the document of the amount having been paid, there is no independent evidence to prove that actually the alienee paid the consideration for the sale. He also urges that after all, the original transaction of mortgage was in favour of the father of the widow and not a third party and taking these circumstances into consideration it could not be said that the payment of consideration for the sale has been proved. It could not also be said that the transaction has been a genuine transaction. There is much force in the arguments of the advocate. Ordinarily, we would have expected the widow to go into the box and proved the fact that her husband just before his death directed her to pay off his debts. This would have concluded the matter finally. Two witnesses have come into the witness box and stated that the deceased gave such directions to the widow Ordinarily, we would have expected the widow to substantiate it by her own testimony but the widow has not chosen to go into the box. Another factor to which our attention was drawn by the learned advocate for the respondent was that if any debt was owing by the deceased to his father -in law, that is the father of defendant 1, ordinarily he would have also been present at that time because it is clear from the evidence that he came soon after this direction was given by the deceased. It is significant that there is no relation of the deceased the father -in -law, the wife or any other who baa gone into the box to speak about this direction to discharge the debt. Now the question arises as to whether we would be guided merely by the recital in the mortgage deed that there was a debt owing by the deceased. We find the document was executed as early as 1322 Fasli. On account of the fact that it is an old document and a registered deed and on account of the fact that in the mortgage deed there is an endorsement of payment of that amount on the date of the sale deed out of the sale proceeds, we are rather loth to disbelieve the statement that there was a debt owing by the deceased. The father of the widow could not go into the box because by the time, the suit came up JOE trial he was dead. The circumstances which have appealed to us to come to the conclusion that the widow has proved the existence of a debt owing by her husband are the document having been executed as early as 1322 Fasli, 22 yours before the execution of the present sale deed, and no objection having been raised as regards its genuineness and the fact that there is evidence of payment of the mortgage out of the sale proceeds. This is clear from the endorsement on the deed which has not been impugned. Although a mere recital in a deed by itself cannot be proof of payment of consideration, still where the transaction happens to be an old one any little evidence in support of it would be enough to hold the recital to be proved. We are not inclined to agree with the lower appellate Court in this regard and we, therefore, allow this appeal. Having regard to the facts of this case, we direct that each party do bear his coats.