RAM NARAIN Vs. MTNANDRANI KUNWAR

JUDGEMENT

(1.) This is a plaintiffs appeal arising out of a suit for recovery of possession of property which was transferred so long ago as 16 January 1865 under a sale- deed executed by Mt. Chunni, the mother, and Mt. Tursa Kunwar, the widow of Jawahir Lal, deceased, whose reversioners the present plaintiffs are The learned Subordinate Judge found that the sale could not have been without legal necessity, and the transferees had discharged the burden that lay on them. It appears that Jawahir Lal, when he died, left a mother and a widow named above and a daughter Mt. Jhamman Kunwar. Probably Mt. Jhamman Kunwar's son Jagannath Prasad was not born then. Jhamman Kunwar was married to Raghabar Dayal who was the son of Chhote Lal. If Jagannath Prasad who was born subsequently had survived Mt. Jhamman Kunwar his mother, the plaintiffs would have had no locus standi to sue. As it happened he died on 9 March 1917 and his mother died after him on 14 July 1921. Succession accordingly opened on the death of Mt. Jhamman Kunwar and the plaintiffs are entitled to challenge this old alienation. The fact that this is a very old transaction as to which oral evidence has by mere lapse of time become almost extinct is patent. It would be very hard on the representatives of the original transferee to expect complete and exhaustive evidence showing the way in which the money obtained by the ladies was utilized for purposes of necessity.

(2.) The deed, however, contains an express recital to the effect that decretal amounts of certain named creditors and others were due by the executants ancestor, and they had borrowed money under bonds and pro-notes from Chhote Lal and made payments to those creditors. The sale consideration, which was Rs. 4000 was set off against the entire amount which had been so borrowed for the payment of the debts. The executants acknowledged that they had applied the amount towards the payment of their ancestral debts. Recitals in a deed of sale with regard to the existence of legal necessity for an alienation by a Hindu widow are not in themselves evidence of such necessity without substantiation by evidence aliundi, Brij Lal V/s. Mt. Inda Kunwar A.I.R. 1914 P.C. 38. But even though the onus lies upon the legal representatives of the transferee to prove the necessity for the sale yet having regard to the great lapse of time, it would not be reasonable to expect that full and detailed evidence would be forthcoming as to the state of things which gave rise to the sale-deed in question, as would be the case if alienations made at more or less recent dates were concerned. In such circumstances presumptions are permissible to fill in the details which have been obliterated by time: Chintamanibhatka Venkata Reddi Pantulu Garu V/s. Rani Saheba of Wadhwan A.I.R. 1920 P.C. 64. Furthermore, it is not absolutely necessary for a transferee to establish the actual existence of family necessities, or to show that the money advanced by him was utilized for such purposes. It is only necessary that a representation should have been made to the purchaser that such necessity existed and that he should have acted honestly and made proper enquiry to satisfy himself of its existence. The recital in the document is clear evidence of a representation, and if the circumstances are such as to justify a reasonable belief that an enquiry would have confirmed its truth, then when proof of actual enquiry has become impossible the recital coupled with such circumstances would be sufficient evidence to support the deed: Banga Chandra Dhur Biswas V/s. Jagat Kishore Acharjya Chawdhuri A.I.R. 1916 P.C. 110.

(3.) We have therefore to consider whether the circumstances of this case are such as would justify us in holding that the recital contained in the sale-deed was correct and that the representation made to the transferee was true, or that reasonable enquiry would have shown that it was well-founded.