KRISHNA AYYAR Vs. MUTHULAKSHMI AMMAL

JUDGEMENT

(1.) This was a suit by a reversioner to set aside an alienation in respect of the suit properties on the ground that the alienation was not for necessary purposes binding on the reversion. The property belonged to one Subbarama Aiyar who died in 1892. The alienation was made by his widow Krishnammal in 1894 in favour of the wife of her brother. This Krishnammal died in 1925. She had one daughter Rukmani Ammal by Subbarama Aiyar, who ultimately married the son of the brother in whose wife's favour she had demised the properties. This Krishnamma's daughter Rukmani died in 1915 leaving behind one daughter, the 1 defendant. The trial Court found that the alienation made by Krishnammal in favour of her brother's wife, Sankari Ammal, was a sham transaction and decreed the plaintiff's suit. On appeal the lower appellate Court found that the transaction was genuine and was for purposes binding on the estate and dismissed the suit. Against this decree the present second appeal has been preferred by the plaintiff. Three main grounds have been taken: (1) that the lower appellate Court has raised a wrong presumption that the recital in the document of alienation Ex. I, which is more than 30 years old, can be used as evidence that the alienation was for necessity. It is objected that this principle cannot be applied because two of the attestors are alive and have been examined and the sister of the widow the 2nd defendant who is said to have been one of the people who arranged the alienation has also given evidence.

(2.) Secondly, it is urged that the lower appellate Court has wrongly thrown on plaintiff the burden of proof that there were funds available from the estate to the widow from which she could have met the necessary expenses. The third ground taken is that the litigation expenses which formed the bulk of the consideration for the sale were not binding on the estate.

(3.) Taking the first matter I do not think that the lower appellate Court has misdirected itself on this point. It sets out the law in paragraphs 22, 23, 24 and 25 of its judgment not using its own words but words of the Privy Council in Banga Chandra Dhur Biswas V/s. Jagat Kishore Acharya Chowdhuri (1916) L.R. 43 I.A. 249 : I.L.R. 44 Cal. 186 : 31 M.L.J. 563 (P.C.) and Ram Narain V/s. Nandrani Kunwar (1928) I.L.R. 50 All. 823. It is necessary to distinguish the sort of evidence which is not available when both the vendor and the vendee are dead and the sort of evidence which may still be available as regards the necessity for the loan. In so far as the question is whether the vendee made enquiries as to the necessity for the loan and what representations the vendor or others made to him it is clear that both the vendor and the vendee being dead, and the transaction being an ancient one, evidence will not be usually available on this point unless possibly the evidence of some other person from whom the vendee made enquiries. It is not alleged that there is any such evidence available in this case. I do not consider therefore that with reference to this point the lower appellate Court was wrong in relying on the recitals in the document.