KAULESHAR SHUKUL Vs. RAM KISHORE LAL

JUDGEMENT

(1.) This is an appeal by Kauleshar Shukul, defendant, and is connected with Second Appeal No. 478 of 1937 which is an appeal by Ram Kishore Lal and others, plaintiffs. Both appeals arise out of a single suit which was brought by Ram Kishore Lal and others. As the suit was partly decreed and partly dismissed there were two appeals before the lower Appellate Court and that is why there are two appeals before me. It appears that there were two brothers Ram Rekha and Bujhawan who were joint. Ram Rekha died first in 1905 and the name of Mt. Dula, his widow, was recorded over half the property and Bujhawan made no protest. Bujhawan died in 1908 and Mt. Dula's name was recorded over Bujhawan's share as well. There were certain reversioners, but they did not object. In the year 1934, on 15 June, Mt. Dula executed a perpetual lease in favour of Kauleshar Shukul and his brother Bindeshri Shukul. A day after, on 16 June 1934, she executed a deed of gift in favour of these two Shukuls. The present suit has been instituted by the reversioners for possession and in the alternative for a declaration by avoidance of the two documents, namely the perpetual lease and the deed of gift. Mt. Dula is still alive and it is obvious that the reversionera cannot possibly obtain a decree for possession nor have they been given such a decree. They can, if at all, obtain a declaratory decree. The perpetual lease was attested by Gauri Shanker who, it is admitted, is the next reversioner. The plaintiffs have impleaded Gauri Shanker also in the present suit and have alleged that he is in collusion with the widow or has, in any event, precluded himself from maintaining the present suit.

(2.) The Court of first instance dismissed the plaintiffs suit so far as the deed of perpetual lease was concerned but decreed the plaintiffs suit so far as the deed of gift was concerned and regarding that it gave the plaintiffs a declaratory decree declaring that the deed of gift would be ineffective against the rights of the plaintiffs after the death of Mt. Dula. The lower Appellate Court on appeals by the parties ordered that both the appeals be allowed and the judgment of the trial Court be set aside and that the plaintiffs suit be decreed for a declaration that the deeds of gift and lease specified in the plaint will not be binding against the plaintiffs after the death of Mt. Dula only to the extent of half the property covered by them. The lower Appellate Court drew a distinction between property which Mt. Dula got from Ram Rekha and the property which Mt. Dula got from Bujhawan. It held that so far as Ram Rekha's share of the property was concerned, Mt. Dula's possession was that of a Hindu widow and the documents would be inoperative unless supported by legal necessity. As regards that share of the property which Mt. Dula got from Bujhawan the lower Appellate Court was of the opinion that Mt. Dula's possession was adverse and she became the full owner having remained in possession from 1908 onwards. That explains the decree which was given by the lower Appellate Court.

(3.) Both parties have come up in appeal to this Court and like the lower Appellate Court I propose to give a consolidated judgment. It has been contended by the lessees that the perpetual lease is attested by the next reversioner and that shows that he consented to the document. The plaint also suggests that the next reversioner consented to the perpetual lease. That being so, the submission is that the lease must be deemed to be for legal necessity and the burden is on the plaintiffs to show that it was not for legal necessity. [When a document of transfer supported by consideration is executed by a Hindu widow and the document is consented to by the next reversioner that consent in itself affords prima facie evidence of legal necessity and it is not necessary for the transferee to adduce evidence of legal necessity beyond the evidence of the consent : Debi Prosad v. Golap Bhagat (1913) 40 Cal. 721 and Darbari Lal V/s. Gobind Saran, (1924) 11 A.I.R. All 902. The next reversioner was the person most interested in disputing the transaction and his consent will naturally afford presumptive proof of legal necessity, and if such proof, is not rebutted by contrary proof, the consent, although it will not be conclusive proof of legal necessity, will be of great evidentiary value. In the present case there is also the recital in the lease that the money was required for purposes of pilgrimage and there is the evidence of Kauleshar Shukuli that the money was utilized for that purpose. The lady Mt. Dula was in the witness-box and the plaintiffs did not put any question to her as to why she took Rs. 200 and what became of them. The learned Judge of the lower Appellate Court did not approach the case from this point of view. He did not attach any importance whatsoever to the consent of the next reversioner and he thought that the defendants lessees ought to have enquired from Mt. Dula regarding the Rs. 200. He said that no witness had been examined to corroborate the version of the defendant Kauleshar. He did not say that Kauleshar's testimony was false. Without discussing anything further he finished by saying that the deed was not justified by legal necessity. In my judgment the finding of the lower Appellate Court is vitiated by the fact that it did not consider, the case of the perpetual lease from the point of view that it was consented to by the next reversioner who was most interested in disputing it. I have, therefore, come to the conclusion that the plaintiffs have no right so far as the perpetual lease of 15th June 1934 is concerned.