RAMASWAMI REDDI Vs. ERAJAGOPALACHARIAR

JUDGEMENT

(1.) This appeal is connected with the one just disposed of (Second Appeal No. 1548 of 1922) as it arises out of the same suit. The appellants are Defendants 26, 27, 29 to 44 and 46 to 48. They are alienees and the lower appellate Court has decided that their alienations are not valid and binding on the plaintiff. The alienations were made so far back as 1888 and 1889 under Exs. 3, L2, L9 to L11 and Clause The alienations were made by the plaintiff and his two brothers and by their mother Alamelammal and by a minor brother for whom Alamelammal acted as guardian. The purposes for which amounts were borrowed under these documents were not mentioned in the deeds. Only cash consideration is recited and the mother and the sons are the executants of the documents. The District Judge held that the mere execution of the documents by the sons would not amount to consent on their part to the alienations, and therefore they were not bound by the alienations. The defendants in their written statement pleaded that the amounts got under these documents were spent for a purpose which could bind the reversion. Defendants 26 and 27 in paragraph 7 of the written statement say: That the allegations in paragraph 6 of the plaint are entirely false. At the time of the alienations mentioned above Alamelammal was not even able to maintain herself out of the income of her properties. Of the suit items most are waste lands not brought under cultivation. The alienations were made solely for maintaining herself and her children and for paying kist on the suit land. In paragraph 6 they say: The sale mentioned in paragraph 5 was effected for necessary purposes binding on the reversion. The other defendants have adopted the statement of defendants 26 and 27 in paragraph 7--8, etc. The defendants therefore plead that the alienations were for purposes which could bind the reversion.

(2.) The issue raised on this point, Issue 2, is whether the various alienations pleaded by the defendants are true and binding on the reversion. It was held in Rangasami Gounden V/s. Nachiappa Gounden [1919] 42 Mad. 523 that the consent of the reversioners was prima facie evidence of necessity. At page 536 their Lordships observe: When the alienation of the whole or part of the estate is to be supported on the ground of necessity, then if such necessity is not proved aliunde and the alienee does not prove inquiry on his part and honest belief in the necessity, the consent of such reversioners, as might fairly be expected to be interested to quarrel with the transaction will be hold to afford a presumptive proof, which if not rebutted by contrary proof will validate the transaction as a right and proper one.

(3.) In this case there is allegation on the part of the defendants that the alienations were for a purpose binding on the reversion. They have not adduced any evidence and the documents are silent as to the purpose. The question is whether in such circumstances the consent of the reversioners is sufficient prima facie proof of the existence of circumstances which would amount to necessity under the Hindu Law. It is open to the reversioner to rebut the presumption by adducing evidence that at that time there was no necessity for the transaction. In the case of the alienation under appeal the reversioners wore not merely consenting parties, but they joined in the execution of the documents along with their mother. They not only consented to the transaction, but they actually participated in the transaction as executants. The principle deduciblefrom Rangasami Gounden V/s. Nachiappa Gounden [1919] 42 Mad. 523 and the other cases decided by the Privy Council is this: it is for the alienee toprove circumstances which would amount to necessity under the Hindu Law. Ifhe is unable to prove such circumstances he must at least prove that he made bona fide inquiries and satisfied himself that such circumstances existed which would amount to a necessity under the Hindu Law. If he is unable to prove such circumstances or to prove that he made such bona fide inquiries, the proof that the nearest reversioners consented to the transaction is prima facie evidence or presumptive proof that these circumstances existed which would make the transaction one binding on the reversion, and it is open to the reversioner to rebut the presumption by adducing evidence. Like all presumptions it is liable to be displaced by proof of facts, but, so long as the reversioners do not adduce any evidence as regards the actual purpose to the knowledge of the alienee, the presumption would be quite sufficient to enable the Court to give a decree in favour of the alienee. Mr. Bashyam's contention for the plaintiff-respondent is that the purpose for which the alienation was made should be mentioned in the document and if it is not mentioned in the document, then it cannot be said that the circumstances which amounted to necessity existed at the time. It is not necessary that the purpose itself should be mentioned in the document. All that the law requires is that the alienee should prove the existence of circum-| stances at the time the transaction was entered into which would justify a limited owner to pass full interest in favour of the alienee, in other words, which would entitle a limited owner to bind the reversion by the alienation. In this case the alienees did allege the circumstances which would amount to necessity in their written statement. It is not therefore necessary that such circumstances should have been mentioned in the documents by which the alienations were effected.