BABHNAJI Vs. RATANLAL

JUDGEMENT

(1.) THIS appeal arises out of a suit for possession of Survey No. 9/1 in mauza Jhadgaon in the Yeotmal District. Survey No. 9 belonged to Tukaram who died somewhere about 1892 leaving two widows, Gangabai and Tuljabai. They divided the field between themselves, Gangabai taking Survey No. 9/1 and Tuljabai Survey No. 9/2, but it is admitted that this division was not a partition that affected either widow's right to take the whole by survivorship. Gangabai sold Survey No. 9/1 to the father of defendant 1 on 7th April 1902, and Tuljabai sold Survey No. 9/2 to the plaintiff also in 1902. Gangabai died somewhere between 1905 and 1911, and Tuljabai sold Survey No. 9/1 to the plaintiff on 24th April 1920. Tuljabai and the plaintiff then filed Civil Suit No. 176 of 1920 against defendant 1 for possession of Survey No. 9/1. But this suit was dismissed on the ground that it was barred by limitation. Tuljabai died on 4th March 1927. Tukaram had two daughters, Yelubai by Tuljabai and Baijabai by Gangabai. On 10th September 1927 Yelubai executed an unregistered document in favour of defendant 1 agreeing to the sale in his favour of 7th April 1902. On 10th March .1928 Baijabai executed a sale deed of her interest in Survey No. 9 in favour of the plaintiff, and on 5th May 1928 Yelubai executed a sale-deed of her interest in Survey No. 9 also in favour of the plaintiff.

(2.) IT is clear that if the sale-deed of Survey No. 9/1, executed by Gangabai in favour of the father of defendant 1 on 7th April 1902, was executed for legal necessity in conjunction with her co-widow Tuljabai, then it was a valid sale and the plaintiff's suit must fail. Mr. Bobde for the plaintiff, who is the appellant in this Court, has argued that the consent of Tuljabai alone would not validate that sale and that it must be established that she acted with Gangabai in making the sale. In Gauri Nath v. Mt. Gaya Kuar, AIR 1928 PC 251, their Lordships of the Privy Council in discussing the powers of widows to alienate a part of the corpus of the estate laid down that: If they act together they can burden the reversion with any debts contracted owing to legal necessity, but one of them acting without the authority of the other cannot prejudice the right of survivorship by burdening or alienating any part of the estate.

(3.) MR . Bobde seeks to challenge this finding of fact on the ground that inadmissible evidence has been admitted. The lower Courts have relied largely on the accounts produced by defendant 1 and Mr. Bobde has urged that these accounts should not have been accepted because they were not produced in the civil suit of 1920. Defendant 1 explained that he was unable to produce these accounts in 1920 because they were in the custody of his uncle who refused to hand them over to him. As his uncle died in 1919, this is hardly an adequate explanation; but in his pleadings he stated that it was his uncle and aunt who refused to hand them over and the mere fact that these accounts were not produced in 1920 does not necessarily lead to the inference that they were not in existence in 1920. The lower Courts have considered these accounts with care and have come to the conclusion that there was no reason to suspect their genuineness. It has also been urged that these are not really books of account because no balances have been struck in them, and that they are therefore inadmissible Under Section 34, Evidence Act. They are however clearly admissible Under Section 32(2) as entries or memoranda made by persons who are dead, in books kept in the ordinary course of business and were therefore rightly admitted in evidence.