BHOJRAJ Vs. SITA RAM

JUDGEMENT

(1.) These are consolidated appeals from two decrees of the High Court of Judicature at Allahabad dated 26 March 1930, which reversed the judgment and decree of the Subordinate Judge of Mainpuri and dismissed the plaintiff's suit with costs. The dispute was as to the property of one Tej Raj, a wealthy Brahman landowner, which was situated at Kusyari and elsewhere in the district of Mainpuri. Tej Raj died in 1855 leaving surviving him three widows and a deceased son's widow to whom Tej Raj's widows give a portion of the property in lieu of her right to maintenance. These four ladies at various dates from 1873 onwards alienated the property in favour of the predecessors in title of the defendants and by 1924 when Mt. Bakht Kunwar, the youngest widow of Tej Raj and the last survivor of the four ladies died, all the property in question in the suit was in the possession of the defendants. In 1890 a declaratory suit had been brought by plaintiffs other than the present plaintiffs purporting to claim as reversioners to the property of Tej Raj and seeking to challenge the validity of the alienation of such property. This suit failed owing to the operations of the rules of limitation applicable to such declaratory actions and no question of pedigree was ever debated or decided in that suit. On the death of the last surviving widow, Mt. Bakht Kunwar, the present suit was filed on 17 November 1924, claiming possession of the properties formerly belonging to Tej Raj and then held by the defendants. The main issues which arose for decision and were decided by the Subordinate Judge were : (1) Were the plaintiffs entitled to maintain the suit as having or taking title from the next heirs or reversioners to the property of Tej Raj? (2) Were the transfers to the defendants and their predecessors in title effected for legal necessity and valid?

(2.) There were other issues which were subsidiary or have now ceased to be of importance. The only one of these which need be mentioned is an issue as to certain houses and groves in respect of which the Subordinate Judge excepted the houses, though not the groves, from the operation of his decree which was otherwise in accordance with the plaintiffs' claim. The Subordinate Judge found on both of the issues (1) and (2) in favour of the plaintiffs and in consequence granted them the relief they sought. Upon appeal the Judges of the High Court agreed with the Subordinate Judge on issue (2) in holding that the transfers were not for legal necessity or valid. They also held as to the minor matter of the houses that the transfers were not for necessity and were not valid. But the main divergence of view was on issue (1). As to this the High Court held that the plaintiffs had failed to establish their pedigree and dismissed the suit on that ground. The appellant seeks the restoration of the decree of the Subordinate Judge and the defendants-respondents seek to support the decree of the High Court both on the grounds upon which the Judges of the High Court based it and also by contending that the transfers were for necessity and are binding. This last matter can be shortly dealt with.

(3.) There are concurrent findings in the Courts below in favour of the plaintiffs, and their Lordships see no reason to doubt that those findings are correct. It was contended on behalf of the defendants that owing to the lapse of time, as a matter of law, necessity should be presumed and in support of the contention the case of Chintamanibhatla Venkata Reddi v. Rani of Wadhwan, 1920 PC 64was relied upon. The judgment in that case does not in the opinion of their Lordships support the contention of the respondents. Here, as in the case cited, regard must be had to the amount of evidence likely to be available after the lapse of a long time and presumptions should be allowed to fill in gaps disclosed in the evidence, but in this case there is evidence justifying the conclusions of the Courts below. Presumptions not to supplement but to contradict the evidence would be out of place. On the minor issue of the houses their Lordships are of opinion that the view of the High Court was preferable to that of the Subordinate Judge.