APPASAMI PILLAI Vs. RAMU TEVAR

JUDGEMENT

(1.) This second appeal arises out of a suit by one Ramu Tevar to recover certain properties of which he had been appointed trustee by their owner Nilambal Achi, who endowed them for puja and other purposes of Sri Sundaramurthi Swami. Nilambal Achi died on the 28 of May, 1923. The plaintiff alleges that he was managing the properties on behalf of Nilambal Achi during her life-time and continued to be in possession after her death. He leased them to the 3rd defendant on the 9 of June, 1923. Defendants 1 and 2 prevented the 3rd defendant from obtaining possession. They claimed to be reversioners to the estate of Nilambal Achi's father Appa Pillai, after Nilambal Achi's death. But the 2nd defendant sold his share of the property to the 1 defendant and has no further interest in this suit. The 1 defendant contended that on Appa Pillai's death his two widows, Thayyamuthu Achi and Kamalathachi, succeeded to his estate, that after their death the estate devolved upon their daughters, Nilambal Achi and Palanivelu Achi, and after the death of Palanivelu Achi, Nilambal Achi became the sole owner and that on her death on the 28 of May, 1923, defendants 1 and 2, the reversioners, became entitled to the property. The plaintiff meets this case by relying upon a gift of the suit property by Appa Pillai to Nilambal Achi at the time of her marriage. Both the Lower Courts have decreed the plaintiff's suit. The 1 defendant appeals.

(2.) The first point, therefore, that arises in this second appeal is whether the gift to Nilambal Achi by Appa Pillai was true. One important evidence of this gift is Ex. M-2, which is a deed executed by Thayyamuthu Achi on the 20 of September, 1879, in which she recites the gift by her husband and herself to Nilambal Achi as stridhanam at the time of the marriage and purports to execute a formal conveyance in pursuance of the oral directions of her husband. The learned Advocate-General who appears for the appellant contends that the recitals in Ex. M-2 are not admissible in evidence. He relies on the decisions in Brij Lal V/s. Inda Kunwar (1914) I.L.R. 36 A. 187 at 193 : 26 M.L.J. 442 (P.C.), Hari Kishen Bhagat V/s. Kashi Pershad Singh (1914) L.R. 42 I.A. 64 : I.L.R. 42 C. 876 : 28 M.L.J. 565 (P.C.) and Banga Chandra Dhur Biswas V/s. Jagal Kishore Acharjya Chowdhury (1916) L.R. 43 I.A. 249 : I.L.R. 44 C. 186 : 31 M.L.J. 563 (P.C.). These are all decisions of the Privy Council and it is laid down in these cases that where a widow effects an alienation for alleged necessity, recitals of existence of such necessity in the document itself are not evidence of the existence of the necessity. In Brij Lal V/s. Inda Kunwar (1914) I.L.R. 36 A. 187 at 193 : 26 M.L.J. 442 (P.C.) it is laid down: Recitals in mortgages or deeds of sale with regard to the existence of necessity for the alienation have never been treated as evidence by themselves of the fact. And it has been repeatedly pointed out by this Hoard that to substantiate the allegation there must be some evidence aliunde.

(3.) The use of the words "by themselves" shows that the recitals arc not inadmissible in evidence and the effect of the observation is merely that without other evidence they are not enough to prove the necessity. The judgment of the Privy Council makes no reference to Section 32 of the Indian Evidence Act. From the report of the case in Lola Brij Lal V/s. Mt. Inda Kunwar (1914) I.L.R. 36 A. 187 at 193 : 26 M.L.J. 442 (P.C.) it appears that Sir E. Richards, K.C., the learned Counsel for the appellant, relied on Section 32 of the Indian Evidence Act, but none of the reports shows that there was any admission in the mortgage deed or sale deed which would be strictly covered by Section 32 of the Evidence Act. In Hari Kishen Bhagat V/s. Kashi Pershad Singh (1914) L.R. 42 I.A. 64 : I.L.R. 42 C. 876 : 28 M.L.J. 565 (P.C.) it is observed: To be valid as against the reversioners, or to affect their reversionary rights, a charge created by a Hindu widow or an alienation effected by her can be supported only by proof aliunde that such debt was contracted or such alienation was made for valid and legal necessity, etc.