RAM LAL SINGH Vs. LALJI MISSER

JUDGEMENT

(1.) This appeal arises out of a suit brought by the nephew and nearest agnate of Harlal Singh, the last male holder of certain immovable property, to declare as not binding on him an alienation of 34 bighas odd made by the daughter of Harlal to the principal defendant on 8 April 1918, by a sale deed (Ex. F) for a consideration of Rs. 1299. The suit was instituted in declaratory form in the lifetime of the lady, but shortly after its institution she died. The plaint was then amended and a relief added asking for possession over the property, and additional court-fee was paid on this relief. The Courts have held that the plaintiff is the next reversioner. The Munsif held that the defence of legal necessity for the alienation was for the defendant to prove and that defendant had adduced no evidence to prove these necessities, and that there was no proof of his naving made proper inquiries as to the existence these necessities. On appeal the Subordinate Judge said that the defects on the defendant's side would seem to be on account of the lapse of time.

(2.) He then referred to the decision of the Privy Council in Nandalal Dhur Biswas V/s. Jagat Kishore A.I.R (1916) . P.C. 110 and treated the burden of proof as discharged by inference from the recitals themselves. In my opinion, the case is governed by the general rule laid down in many decisions of the Privy Council particularly in Maheshar Baksh Singh V/s. Ratan Singh (1896) 23 Cal. 766 in Sham Sunder Lal V/s. Achhan Kumwar (1899) 21 All. 71 and again in Brji Lal V/s. Inda Kunwar A.I.R (1914). P.C. 38. In the last case their Lordships said: In the present case the appellant has adduced no evidence to prove such legal necessity as would bind the husband's estate. He has relied simply on the recitals in the schedule attached to the sale deed. Recitals in mortgages or deeds of sale with regard to the existence of necessity for the alienation have never been treated as evidence by themselves of the fact. And it has been repeatedly pointed out by this Board that to substantiate the alienation there must be some evidence aliunde.

(3.) In Nandalal Dhur Biswas V/s. Jagat Kishore A.I.R (1916). P.C. 110 the circumstances which, induced their Lordships to make an exception to the rule were unusual. The last of the transactions was over fifty years old. The recitals referred to matters which at the time would have been easily demonstrable, e.g. the existence of an unsatisfied decree against the last male holder. Further, the property appeared on the face of things to be insufficient for the maintenance of the lady, and the course of dealing with the property indicated a strong probability that the recitals were founded on fact. The facts recited, if accepted as true, were sufficient to support the plea of necessity and the binding nature of the debt. Here the case is different. There were 41 bighas of mukarrari lands. It is not suggested that Harlal left any debts. There is no evidence, generally speaking, that the borrowing by the widows was for anything but their own purposes. Debts incurred for such purposes are binding only on the personal estate of the widow.