MOTURU MAHALAKSHMAMMA Vs. THANGIRALA BALA THRIPURA SUNDARAMMA

JUDGEMENT

(1.) The plaintiffs, who are the daughters of the late Krishnayya, instituted the original suit for a declaration that the alienations made by his widow (3rd defendant) in favour of two sets of defendants, vis., defendants 1 & 2 on the one hand and the 6 defendant on the other, would not be binding on the reversioners after the death of the 3 defendant. The alienees put in separate written statements supporting their alienations. There was also another question raised whether the 5 defendant was not adopted by the widow and whether the said adoption was valid. The Trial Court found against the adoption. The Trial Court also found against the validity of the alienation under Ex. VI in favour of the 6 defendant; but it found that the alienation in favour of defendants 1 and 2 under Ex. IX, dated 7 May, 1917, was valid and binding, and it accordingly dismissed the plaintiffs suit against defendants 1 and 2. On appeal by the plaintiffs, the learned Subordinate Judge of Guntur analysed the evidence relating to the various debts which were bet up as debts binding upon the estate and discharged by the vendee under Ex. IX. The Lower Appellate Court in paragraph 11 of its judgment set out the several details making up the debt of Rs. 1,774-8-0 mentioned in Ex. IX. The learned Subordinate Judge came to the conclusion that out of that amount only Rs. 673-3-7 was shown to be binding on the estate. He, therefore, came to the conclusion that in the case before him the sale ought to be set aside but that a charge should be . created in favour of the vendees for the portion of the consideration found to be binding, when the reversion opened. He accordingly passed a decree substantially to that effect. The alienees, defendants 1 and 2, have preferred this Second Appeal.

(2.) Their case was argued elaborately by the learned advocate who appeared for them. He took me through various items of prior debts and submitted that the Subordinate Judge was wrong in disallowing as many as five items which, he submitted, should have been allowed in favour of the alienees. After having carefully gone through the facts as found on the evidence discussed by the Lower Appellate Court with reference to these items, I have come to the conclusion that the appellants contention should be upheld with reference to two such items. The first-item relates to a sum of Rs. 62-7-11 dealt with in paragraph 15 at page 5 of the appellate judgment. There was a promissory note executed by the deceased Krishnayya in favour of K. Venkatappayya. That debt was renewed by the widow, and the same was paid off when Ex. IX was executed. The endorsements on the back of the old promissory notes make this point clear, and I think that the Subordinate judge was not right in disallowing this sum of Rs. 62-7-11. Similarly with reference to a sum of Rs. 70-15-0 discussed in paragraph 21 at page 7, the learned Subordinate Judge did not notice the importance of the endorsements appearing on the back of the prior promissory note executed by the widow's husband. The prior promissory note is Ex. XVI (c-1) and that debt was discharged by Ex. XVI (c). Ex. XVI (c) itself was discharged at the time of Ex. XVI (a), and Ex. XVI (a) was discharged at the time of the sale to the appellants under Ex. IX. The creditor was the same person, and the endorsement appearing on the back of Ex. XVI (c-1) makes it abundantly clear that that debt was paid off when money was borrowed tinder Ex. XVI (c). The learned Subordinate Judge was not right in disallowing this sum of Rs. 70-15-0.

(3.) Three other items were discussed before me, viz., those covered by points 4, 5 and 6 discussed in paragraph 21 of the Lower Appellate Court's judgment. The learned Judge in one instance says that the witness who speaks in support of the debt is interested; in another instance, the debt is alleged to have been borrowed in connection with the annual ceremonies of Krishnayya; whereas the date of the debt is very much earlier than the date of the annual ceremony; and as regards the payment of kist, it has not been proved that without raising the debt the kist could not be paid. The learned Judge thought it unsafe to rely upon the oral evidence relating to these debts, and I must uphold his finding on the three particular debts mentioned in paragraph 21, sub-headings 4, 5 and 6. The result, then, is that instead of Rs. 673-3-7 held to be binding by the Subordinate Judge, I have to add a sum of Rs. 133-6-11, thus bringing the amount of binding debt to Rs. 806-10-6? The balance of Rs. 967-13-6 is not proved to be binding. We have therefore a case where, out of the price of Rs. 1,774-8-0, only Rs. 806-1CM6 is proved to be binding and a major portion, Rs. 967-13-6, is not binding. What then is the legal effect to be given to the sale in view of these findings? The deceased left a house site and some cultivable lands. Ex. IX purported to convey 1 acre 75 cents of land. The Lower Appellate Court discussed the question whether there was necessity for this sale, and it observed in paragraph 25 as follows: But in the circumstances there was no necessity to have sold the whole land. Once she had sold some 60 cents for Rs. 600. Some extent like that could have been sold again for payment of debts. . As the major portion of the consideration was held not to be for binding purposes, I am inclined to hold that the sale cannot be upheld and is not binding on the reversioners.