MADHAV KRISHNA DESHPANDE Vs. SHIDDAYA DANAPPAYA

JUDGEMENT

(1.) On the 3rd September 1901 Balawa the widow of one Danapaya deceased sold the plaint property to the 1st and 2nd defendants with the consent of her two daughters, the nearest and only reversioners at the time. In 1909 Balawa adopted the present plaintiff, and the plaintiff has now brought this suit for a declaration that the sale-deed of 1901 was not binding on him and that he was entitled to recover possession of the plaint lands from defendants 1 and 2. It must be noted that Balawa is still, alive. The plaintiff is a minor suing by his maternal uncle and it looks very much like an attempt on the part of the widow to set aside an alienation made by her in 1901, because as a matter, of fact the plaintiff would know nothing about what was being done in his name.

(2.) The trial Court directed that on the plaintiff paying to the defendants within three months from the date of the order the sum of Rs. 800, the sum spent for improvements by the defendants the defendants should put the plaintiff in possession of the plaint lands.

(3.) On appeal, the lower appellate Court has amended the decree of the lower Court by directing that the plaintiff should pay Us. 500 in addition to Rs. 800 as it had been proved that but of the price for the land which was realised in 1901, Rs. 500 were required by the widow for legal necessity. Now the alienation of 1901 was an alienation by the widow of part of the property left to her by her husband with the consent of the reversioners. Such consent was held, in Rangasami Gounden v. Nachiappa Gounden (1918) L.R. 46 I.A. 72, 84 : 21 Bom. L.R. 640 to afford a presumptive proof, which would validate the transaction(sic) as a right and proper one if not rebutted by contrary proof. See the remarks of their Lordships at p. 84. As soon as, therefore, the defendants, on whom first the onus lay to show that the alienation was for legal necessity, did prove that the reversioners had consented, the onus shifted to the plaintiff to show that there was no legal necessity. Neither of the lower Courts seem to have noticed that at a particular point of the trial the onus of proving legal necessity shifted. The legal necessity is set out in the sale deed: Rs. 400 were due to the defendants by Danapaya and Rs. 100 were due to one Irappa, and Rs. 400 were required for Balawa s maintenance owing to famine at the time. It is not disputed that the year 1901 was a famine year in the District of Bijapur. Therefore the suggestion that Balawa ought to have maintained herself out of the other 44 acres of her husband s property is hardly one to be relied upon by the plaintiff. But certainly the onus lay on the plaintiff to show that none of the Rs. 400 was required for legal necessity by the widow. She had to support herself and her daughters, and it would certainly appear that even if not the whole of Rs. 400, she would require Borne of it.