CHANDRAKISORE DATTA MAJUMDAR Vs. KUMAR UPENDRA CHANDRA CHOUDHURY

JUDGEMENT

(1.) The subject-matter of the litigation which has culminated in this appeal is one-fifth share in immoveable properties described in the schedule to the plaint, which formed part of the estate of one Kamal Narain Nandy Chowdhury, who died on the 26 December 1853. He left a widow, Parmeshwari Chowdhurani, who died on the 22 September, 1913. The present suit was instituted on the 20 September 1918 by Chandrakisore Datta Majumdar, the son of a sister of the original proprietor, who claimed title to the estate of his maternal uncle as the sole surviving reversionary heir. The claim was resisted by Upendra Chandra Choudhury and his wife on the basis of purchase at a sale held in execution of a mortgage decree. It appears that on the 28 July 1880 Parmeshwari, along with other members of the Nandy Chowdhury family, had executed a mortgage in favour of Harendra Lal Roy Chowdhury to secure a loan of Rs. 16,500 on the security of the properties inherited by her from her husband. The loan was not repaid in due course, with the result that the mortgage instituted a suit on the 19th December 1887 to enforce his Security, obtained the usual mortgage-decree on the 4 June 1888 and brought the hypothecated properties to sale on the 20 August 1889 when the first defendant became the purchaser. The question, consequently, arises whether the sale so brought about binds the inheritance claimed by the plaintiff as the reversionary heir to the estate of all maternal uncle. The defendants successfully urged in the Court below that the question should be answered in the affirmative. They further argued--and their contention found favour with the Subordinate Judge that Kamal Narain, on the day previous to his death, executed in favour of Parmeshwari a document called an Anumali Patra which, in the events that have happened, effectively excluded the plaintiff from trie line of succession as reversionary heir. On the present appeal the plaintiff has reiterated the contentions which were found untenable by the Trial Court.

(2.) It is well-settled that, when a person claims title under an alienation effected, by a Hindu widow in respect of the estate of her husband, the burden lies upon him to establish either that there was legal necessity in fact which Justified the alienation, or that he made proper and bona fide enquiries and did all that was reasonable to satisfy himself as to the existence of such necessity. This position is supported by the decisions of the Judicial Committee In Bhagwat Dayal Singh V/s. Debt Dayal Sahu 35 I.A. 48 : 35 C. 420 : 7 C.L.J. 335 : 10 Bom. L.R. 230 : 12 C.W.N. 393 : 5 A.L.J. 184 : 18 M.L.J. 100 : 3 M.L.T. 344 : 14 Bur. L.R. 49 (P.C.); Amarnath Sah V/s. Achan Kuar 19 I.A. 196 : 14 A. 420 : 6 Sar. P.C.J. 197 : 7 Ind. Dec. (N.S.) 637 (P.C.) and Nabakishore V/s. Upendra Kishore 65 Ind. Cas. 305 : 35 C.L.J. 116 : 26 C.W.N. 322 : 20 A.L.J. 22 : (1222) M.W.N. 95 : 42 M.L.J. 253 : 24 Bom. L.R. 346 : 15 L.W. 417 : 30 M.L.T. 234 : 3 P.L.T. 311 : (1922) A.I.R. (P.C.) 39 (P.C.) In the application of this primary- rule, it is to be borne in mind that recitals in conveyances or mortgages of the existence of legal necessity are not by themselves evidence of the fact, and there must ordinarily be some evidence to substantiate the aliunde allegations: Brij Lal V/s. Inda Kunwar 23 Ind. Cas. 715 : 36 A. 187 : 19 C.L.J 469 : 26 M.L.J. 442 : 18 C.W.N. 649 : 12 A.L.J. 495 : (1914) M.W.N. 405 : 15 M.L.T. 395 : 16 Bom. L.R. 352 : 1 L.W. 794 (P.C.); Thakur Vasonfi Morarji V/s. Chanda Bibi 29 Ind. cas. 781 : 37 A. 369 at P. 376 : 22 C.L.J. 180 : 19 C.W.N. 873 : 17 Bom. L.R. 556 : 18 M.L.T. 31 : (1915) M.W.N. 449 : 2 L.W. 676 : 2 M.L.J. 130 The inflexible application of this view may and does in fact place the alliance at a serious disadvantage when the transaction falls to be challenged after a long series of years. Hence it has been ruled that, though lapse of time does not affect the question of onus of proof regarding legal necessity, it may give rise to a presumption of acquiescence or save the aliened from adverse inferences arising from the scantiness of the evidence offered on his behalf. To put the matter in an other way, when by efflux of time, Direct evidence independent of the recital becomes unavailable, a recital of necessity, consistent with probability and the circumstances, assumes greater importance; it is clear evidence of a representation to the purchaser, and when evidence of actual enquiry by him has become impossible, the recital, coupled with circumstances Which justify a reasonable belief that an enquiry would have confirmed its truth, is sufficient evidence to support the transaction; see Chintamanibhatla V/s. Rani Saheba of Wadhwan 55 Ind. Cas. 538 : 47 I.A. 6 : 43 M. 541 : 38 M.L.J. 393 : 11 L.W. 451 : 18 A.L.J. 367 : (1920) M.W.N. 315 : 22 Bom. L.R. 541 : 2 U.P.L.R. (P.C.) 77 : 28 M.L.T. 457 (P.C.) where the Court was invited to investigate the circumstances of a transaction which had taken place more than eighty-two years before the initiation of the suit; see also Nanda Lal V/s. Jagat Kishore 36 Ind. Cas. 420 : 43 I.A. 249 : 44 C. 186 : 20 M.L.T. 335 : 31 M.L.J. 563 : (1916) 2 M.W.N. 336 : 4 L.W. 458 : 18 Bom. L.R. 864 : 14 A.L.J. 1103 : 24 C.L.J. 487 : 1 P.L.W. 1 : 21 C.W.N. 225 : 10 Bur. L.T. 177 (P.C.); Ravaneshwar Prasad Singh y. Chandi Prasad Singh 36 Ind. Cas. 499 : 43 C. 417 (P.C.), which affirms Ravanethivar Prasad Singh V/s. Chandi Prasad Singh 12 Ind. Cas. 931 : 38 C. 721. The Subordinate Judge, we are satisfied, has kept these principles in view in the course of his examination of the evidence adduced in this case.

(3.) The mortgage-bond which was executed by Parmeshwari on the 28 July 1880, and which ultimately led up to the sale held on the 20 August 1889 contains an elaborate recital of previous transactions which rendered necessary the loan of Rs. 16,500. References are made to a mortgage-bond of Puma Chandra Chowdhury, a mortgage-bond in favour of Haro Mohan Bose, a mortgage bond in favour of Gobinda Chandra Chowdhury, a bond in favour of Krishnamangal Chakravarti, a bond in favour of Mohasukh Agusti, a debt of Kunja Debi, a debt of Sarat Chandra Sarkar, a debt of Brindaban Chandra Sahu, a debt of Auanda Mohan Majumdar and arrears of rent are to Jagat Kishore Acharyya Chowdhury. Most of these creditors had established their claims by suits in Court and had obtained decrees which had been put into execution. The loan was taken by the members of the family jointly to enable them to satisfy these debts, and the transaction was regarded as one needed for the protection of the joint family estate. The appellant has urged, however, that this is not sufficient to establish the validity of the claim put forward by the purchaser, and that he is bound to trace the history of each of the previous transactions so as to show by documentary evidence that each constituted a legal necessity binding upon the inheritance. The respondent has pointed out, on the other hand, that as the judicial records have been destroyed under statutory rules, detailed information of this character cannot be made available even, if it be assumed that such documentary proof is needed to fulfil the requirements of the rule. He has urged further that a substantial body of oral evidence was adduced at the trial, so as to leave no room for doubt that the loan was contracted under circumstances which constituted legal necessity and that the lender satisfied himself on this point after due enquiry. In our opinion, it is not necessary to consider the abstract question whether the whole chain of transactions must be traced back to the beginning notwithstanding the contrary opinion indicated in Sheoraj Kooer V/s. Nuckchedee Lall 14 W.R. 72 and Mahabir Kcwer V/s. Julha Singh 8 B.L.R. 38 : 6 W.R. 221; for, notwithstanding lapse of time, we have abundant proof, oral and documentary, of the history of the family for nun years past. After the death of Kamal Narain on the 26 December 1853, the present plaintiff, along with his brother and cousin, instituted a suit in 1861 against their maternal aunt Parmeshwari for declaration that she had never been legally married to Kamal Narain and was consequently not entitled either to take his estate by right of inheritance or to adopt a son under the authority conferred by the Anumati Pdtra. The members of the Nandi Chowdhury family were all joined as defendants in the action. After a protracted trial, the suit was dismissed by the Principal Sadar Ameen on the 17 September 1862. His decree was affirmed by the District Judge on the 25 February 1863 and a second appeal to this Court was dismissed on the 9 May 1864. The judgment of the Principal Sadar Ameen shors clearly that Karal rain had left debts a not that creditors enforced their clams against Parmeshwari who was consequently obliged to satisfy the judgment debts. There is also oral evidence to show that the result of the litigation commenced by the plaintiff against his maternal aunt and her co-sharers was to involve the family in heavy expenditure. Mathura Narain, the surviving son of a first cousin of Kamal Narain, who was himself a defendant in that litigation has been examined as a witness on behalf of the plaintiff. He was also a defendant in two suits instituted by the plaintiff in 1915 for recovery of properties of his maternal uncle other than those included in the present suit. In those suits, Mathura Narain, jointly with his co-sharers, filed written statements, which narrated with considerable fullness the history of the transactions of the family from the time of the death of Kamal Narain. Mathura Narain has, in the present suit, affirmed the truth of the statements made by him in the previous litigations, and we see no reason why he should not be believed. The evidence of Mathura Narain shows that Kamal Narain died indebted, that the suit instituted by the plaintiff to contest the validity of the marriage of Parmeshwari led to additional debts, and that the position of the family became so embarrassed that collection of rent was seriously impeded. In such circumstances, though the Nandi Chowdhuries managed to pay the Government dues to avert a complete destruction of the family estate by sale for arrears of revenue, the rent payable to the superior landlords fell into arrears. The estate gradually became involved in debts which carried interest and were renewed from that to time. We need not set out here at length the story as narrated by Mathura Narain, which leaves no doubt in our mind that the trouble was traceable, not merely to the debts left by Kamal Narain, but also to the heavy expenses of the litigation commenced by the plaintiff and the inevitable troubles consequent thereon. In such circumstances, it is not necessary to determine whether the estate might have been kept free from debts by prudent management: Maheshar Bahsh Singh V/s. Ratan Singh 23 I.A. 57 : 23 C. 766 : 7 Sar. P.C.J. 19 : 6 M.L.J. 127 : 12 Ind. Dec.(N.S.) 508 (P.C.).; Dharam Chand Lal V/s. Bhawani Misram 24 I.A. 183 : 2 S.C. 189 : 1 C.W.N. 697 : 7.Sar, P.C.J. 249 : 13 Ind. Dec. (N.S.) 128 (P.C); Tika Ram V/s. Deputy Commissioner of Bar a Banki 26 I.A. 97 : 26 C. 707; 3 C.W.N. 573 : Bom. 1 R. 69 : 7 Sar. P.C.J. 520 : 13 Ind. Dec. N.S.V. 1052 P.C. There is, further, direct oral evidence to show that the lender acted bona fide and enquired into the necessities for the loan. On this part of the case, we see no reason to distrust the testimony of "Umes Chandra Sarkar, who pledged his oath that he along with other officers of his master, the lender, made enquiries as to the debts, the mortgages, the decrees and the properties of the borrowers; This oral evidence lends support to the theory that the detailed recitals inserted in the mortgager bond did in fact constitute the representations which on the occasion were made to the creditor. This would be sufficient to make the transaction binding upon the inheritance : Hunoomanpersaud Panday v. Baboo e Munraj Koonweree 6 M.I.A : 393 : 18 W.R. 81 note : Sevestre 253. 2 Suth. P.C.J. 29 : 1 Sar. P.C.J. 552 : 19 E.R. 147 (P.C.); Kameswar Persaud V/s. Ran Bahadur Singh 8 I.A. 8 :6.C. 843 : 8 C.I.R. 361 : 4 Shome L.R. 84. Sar. P.C.J. 210 : 5 Ind. Jur. 15. 3 Ind. Dec. N.S. 545 (P.C.); Rameswar Mandal V/s. Provabati Debi 25 Ind. Cas. 84 : 20 C.I.J. 23 : 19 C.W.N.; Rames Chandra Chakrabarti V/s. Sasi Bhttsan Upadhay 53 Ind. Cas. 654: 30 C.I.J. 56 : 23 C.W.N. 1025.; Stevens V/s. Janki Balhab Prasad 22 Ind. Cas. 304 : 19 C.W.N. 80. We may further point out that if the transaction was, in the main for legal necessity, as it unquestionably was, it would not be impeachable on the ground that a smaller sum might have teen sufficient to remove the pressure at the time: Medai Dalavoi Thirumalaiyappa Mudaliar V/s. Nainar Tevan 74 Ind. Cas. (sic) We hold accordingly that the Subordinate Judge has correctly found that there was legal necessity for the mortgage and that the creditor satisfied himself as to the existence "of necessity by proper and adequate enquiry. In view of our conclusion upon the question of legal necessity and the enquiry, it is not necessary to deal at length with the point raised in the sixth issue, namely, the legal effect of the Anumati Patra alleged to have bean executed by Kamal Narain in favour of Parmeshwari on the 25th December 1853. It cannot be disputed that such a document was in fact executed. Indeed, the plaintiff instituted the suit of 1861 for recovery of possession of the estate of his maternal uncle upon cancellation of the Anumati Patra. The main question in controversy is whether the contents of the Anumati Patra have been proved by legal evidence. There were two Anumiti Patras executed by Kamal Narain, one on the 9 March 1851 in favour of his wife Sonamoni, the other on the 25 December 1853 in favour of Parmeshwari whom he married, after" the death of Sonamoni. The second document incorporates in substance the terms of the first. Both these deeds were produced in the litigation of 1861. Since then the originals have disappeared; but copies are in existence and have been produced. As to one set of copies, the question has been raised whether they are copies of copies and consequently inadmissible under the provisions of the Indian Evidence Act. As to another set, no such difficulty, however, arises, and we accept the allegation of Umes Chandra Sarkar that he made accurate copies from the originals. We also accept the version of Aswini Kumar Banerjee who was able to narrate the contents from memory. There is; further no doubt that the Subordinate Judge has correctly held that the plaintiff has withheld the copies which he obtained when the suits of 1915 were compromised. It is Significant that the Registration Office at Mymensingh was destroyed by fire in and the plaintiff probably was under the impression that as the records had been burnt, & certified copy could no longer be procured from the Registration Office. He was evidently not aware that accurate copies were in existence and were accessible to the defendants. There is, in our opinion, ample evidence, oral and documentary, as to the contents of the Anumati Patra Section As regards their legal effect, the plaintiff appears to have correctly appreciated the situation in the suit of 1861, when he asserted that the stipulation contained in the Anumati Patra was that if Parmeshwari aid not take a Son in adoption, the property would pass into the hands of the defendants in that litigation. There is really no room for argument on the terms of the Anumati Patra that if the widow should die without taking a son in adoption, the estate would vest entirely in the family idols, whose worship would be managed by the shebaits specified. The plaintiff is not in the line of shebaits, and in this view the present suit is liable to dismissal as instituted by a person no way interested in the estate. We need not, however, discuss the matter further from this point of view nor investigate the position, if the Debater should turn out to be, not a dedication of the completes character but rather the creation of a religious charge: Jagadindra Nath Roy v. Hemanta Kumari Debt 31 I.A. 203 : 32 C. 129 : 8 C.W.N. 809 : 6 Bom. L.R. 765 : 1 A.L.J. 585 : 8 Sar. P.C.J. 698 : (P.C.) We hold accordingly that the Subordinate Judge has rightly dismissed the suit and this appeal must be dismissed with costs.