Exhibits 133 and 134 record of tenancy
proceeding which was filed by Laxmibai against husband
of Anjanibai shows that the proceeding was filed for
possession by Laxmibai on the ground that the husband of
Anjanibai was not giving crop share to her. These
documents include evidence of Laxmibai recorded before
the tenancy Court and there is both, the examination-inchief
and the cross-examination of Laxmibai. This record
is considered by the Courts below as Laxmibai is dead and
it is relevant matter under section 32 of the Evidence Act.
This record shows that maximum quantity of six mans
food-grains was given to Laxmibai by the husband of
Anjanibai in one year and in one year only three mans
food-grain was given. The record shows that Laxmibai had
tried to convince the husband of Anjanibai to give more
food-grains as crop share for her survival and that was
done through mediator also. But the husband of Anjanibai
had refused to give her crop share. In the cross
examination of Laxmibai it was suggested to her that
under agreement with husband of Anjanibai, land was
given for cultivation and she had no objection against the
husband of Anjanibai to cultivate the land if he was acting
as per the terms and conditions of lease. It was brought
on the record that Laxmibai had made attempts to give
the suit land to one Mohan for cultivation. Laxmibai had
stated that due to husband of Anjanibai, Mohan had
refused to cultivate the land. Thus, difficulties, which
Laxmibai had faced in cultivating the land and get it
cultivated through others were stated before the authority
by Laxmibai.
27) The aforesaid discussion shows that Laxmibai
had become helpless. The family of the plaintiff was not
taking care of her. She was not in a position to personally
cultivate the land. Further the land was not giving
sufficient income and for survival she was required to take
some steps. Considering the value of the land it was not
possible for her to raise money by mortgaging the land for
her survival. Further there would have been question of
repayment of loan. In view of these circumstances
Laxmibai sold the property to Tatyaba. It is specifically
mentioned in the sale deed that she wanted to repay the
loan and she wanted to use the remaining money, part of
the consideration, for family expenses, for maintenance.
This evidence was certainly sufficient to create probability
that there was legal necessity and there was no other
alternative before Laxmibai than to sell the property. The
effect of the aforesaid circumstances ought to have been
considered by the Courts below in view of the law laid
down in that regard. The aforesaid circumstances are not
separately and cumulatively considered by the Courts
below.
THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
Second Appeal No.55 of 1989
Kisan Ramchandra Kokane
V
Anjani w/o Laxman Kapase,
CORAM: T.V. NALAWADE, J.
DATE : 20th JUNE 2016.
Citation: AIR 2017 (NOC) 64 Bom
1) The appeal is filed to challenge the judgment
and decree of Regular Civil Suit No.119/1967 which was
pending in the Court of the Civil Judge, Junior Division,
Shrirampur, District Ahmednagar and also against the
judgment and decree of Regular Civil Appeal No.2/1983
which was pending in District Court Ahmednagar. Both
the sides are heard.
2) In short, the facts of the institution of present
case can be stated as follows :-
3) Anjanibai Kapase, original plaintiff, had filed
suit for recovery of possession of agricultural land bearing
Survey No.267 (Gat No.304) situated at village
Takalibhan, Tahsil Shrirampur. The land admeasures 12
acres 8 Gunthas. Relief of mesne profit was also claimed.
4) The suit property was originally owned by
Laxman Dalvi, father of plaintiff. Laxman had two wives
viz. Dhondabai and Laxmibai. Dhondabai died during
lifetime of Laxman leaving behind the plaintiff Anjanibai
as the only issue. Laxman died in or about the year 1931.
Thus at the time of death of Laxman he had two heirs like
widow Laxmibai and daughter Anjanibai. The parties are
Hindus.
5) It is the case of the plaintiff that as per Hindu
law, Laxmibai was limited owner of the suit property but
she sold the property to father of defendant No.1, Tatyaba
under registered sale deed dated 21-4-1934. It is
contended by the plaintiff that there was no legal
necessity and the plaintiff was giving crop share to
Laxmibai by cultivating the suit land.
6) Laxmibai died on 22-3-1966. The suit came to
be filed in the year 1967. It is the case of Anjanibai that as
reversioner, under Hindu law, she is entitled to get the
suit property and the transaction which was made by
Laxmibai in favour of father of defendant No.1 is not
binding on her. As the property was mortgaged by
defendant No.3, son of defendant No.1 to defendant No.2,
bank, the bank was also impleaded in the suit. On the date
of the suit, the property was in possession of defendant
No.3. Laxmibai, Tatyaba and his son Ramchandra are
dead but Anjanibai was alive when the evidence was
recorded in the trial Court.
7) Defendant No.3 filed written statement and
contested the suit. He contended that Laxmibai was
absolute owner of the property and so Anjanibai has no
right to claim possession from the purchaser. He denied
that there was no legal necessity for the transaction. He
contended that the land was with plaintiff and her
husband on Batai basis but they were not giving anything
even for livelihood to Laxmibai. It is his case that for legal
necessity Laxmibai sold the property for valuable
consideration to Tatyaba, father of the defendant No.1. It
is his case that during last days, Laxmibai was required to
work as sweeper in a private school for her survival.
8) It is the case of the defendant No.3 that
plaintiff had filed similar suit in the past but it was
withdrawn and so present suit is not tenable. It was also
contended by defendant No.3 that the suit is not within
limitation. He contended that due to principle of feeding
to the grants by estoppel, the suit was not tenable.
Alternatively he contended that the defendants have
become owner due to adverse possession. Defendant No.3
contended that in partition amongst members of the
family of defendant No.1, the property was allotted to his
share. He also contended that the land was mortgaged
with defendant No.2 and it was possessory mortgage and
defendant No.2 had given the land for cultivation to the
defendant No.3.
9) Defendant No.2-Bank contested the matter by
contending that under possessory mortgage the land was
mortgaged by defendant No.3 with it and the bank is
entitled to recover the mortgage money. The bank
contended that the defendant No.3 was shown as owner
on record and so the loan was advanced to defendant
No.3. It admitted that the defendant No.3 was in
possession as the land was given by the bank to defendant
No.3 for cultivation.
10) Issues were framed on the basis of aforesaid
pleadings. The trial Court held that Laxmibai was limited
owner and the transaction with Tatyaba was not for legal
necessity. The trial Court held that the transaction of
defendant No.3 with the bank was also not bona fide.
Decree of possession is given by the trial Court and the
decree of mesne profit is also given. Similar findings are
given by District court in the first appeal.
11) This Court, other Hon'ble Judge, admitted the
appeal on the following substantial questions of law.
(i) When there was no Class I or Class II heirs and
Laxmibai was the widow of the deceased Laxman,
whether the property would revert in favour of
reversioner ?
(ii) Whether in absence of any Class I and Class II
heir, Laxmibai would be treated as absolute owner of
the property ?
(iii) Whether Anjanibai the daughter of Dhondabai
the first wife of Laxman would get any right or title
in presence of Laxmibai the widow of Laxman ?
12) All the aforesaid questions revolve around the
case as to whether Laxmibai widow of Laxman was
absolute owner of the property. The Courts below have
considered Shastric Hindu Law and the effect of codified
law on the Shastric law and the point of legal necessity is
decided by holding that Laxmibai was limited owner. This
Court allowed both the sides to argue on the point of legal
necessity as the said point is the main point in the present
matter and so following substantial question of law is also
considered by this Court.
"Whether the Courts below have committed error
in not considering the relevant material and
relevant position of law on legal necessity and
due to that error is committed by the Courts
below ?"
13) To prove the legal necessity the defendants
have mainly relied on the following circumstances :-
(i) The recitals of the sale deed of 1934 in support
of case of legal necessity. Execution of the sale deed is
admitted by plaintiff and the Courts below have come
to the conclusion that sale deed was not sham,
without consideration.
(ii) Laxmibai was not having support of anybody
like relatives from her husband's side or her
daughter's side, the so called reversioner. The land
was given to Anjanibai, plaintiff and her husband for
cultivation by Laxmibai but Laxmibai was required to
file litigation against them as Anjanibai and her
husband were not giving anything even for survival of
Laxmibai.
(iii) The tenancy authority has given finding in
favour of Laxmibai and against Anjanibai and
possession was given to Laxmibai of the suit land.
Laxmibai never cultivated the land personally, she
was always attempting to give it for cultivation to
others.
(iv) In the past, in the year 1944, suit was filed by
Anjanibai to challenge the transaction of sale made
by Laxmibai with Tatyaba, father of defendant No.1.
The transaction between Tatyaba and Laxmibai was
within knowledge of Anjanibai right from beginning
as Tatyaba was related to Laxmibai from her parents
side and he was helping her.
(v) Anjanibai withdrew the suit filed by her for
relief of declaration that there was no legal necessity
for the transaction made by Laxmibai and the suit
was for other relief like possession also. This suit was
withdrawn with the permission of the Court to
institute new suit but till the year 1967, till death of
Laxmibai, Anjanibai did not file suit.
(vi) When the suit was filed by Anjanibai, both
Laxmibai and the purchaser Tatyaba were dead and
so no evidence of witnesses, who were witnesses to
the transaction was available to prove legal
necessity.
(vii) Anjanibai did not dare to step into witness box
and her son who was not having understanding at
the relevant time and who had no personal
knowledge regarding the transaction between
Laxmibai, Anjanibai and Tatyaba gave evidence for
plaintiff. Due to this circumstance at least adverse
inference can be drawn against Anjanibai.
14) The evidence given by both the sides needs to
be considered and appreciated in view of the aforesaid
admitted circumstances. It can be said here only that most
of the aforesaid circumstances are not considered by the
Courts below and the law laid down in respect of
implication of the aforesaid circumstances and the
inference which can be drawn on the basis of the
aforesaid circumstances is also not considered by the
Courts below.
15) Dagadu, son of Anjanibai, gave evidence for
proof of the case when Anjanibai was alive. Power of
attorney was given to Dagadu by Anjanibai. No evidence
was given to show that Anjanibai was not in a position to
come to court for giving evidence. On the basis of his age
and the admissions given by him it can be said that he had
no personal knowledge about the circumstances which
were prevailing at the time of the dispute which was going
on between Laxmibai and Anjanibai. When in the plaint
itself Anjanibai had admitted that she and her husband
started cultivating the land after the death of Laxman,
Dagadu avoided to admit that Laxmibai never cultivated
the land personally. Suggestion was given to him that the
land was situated at a long distance from the residential
place of Laxmibai, the village, she was no having
agricultural implements and she was not able to cultivate
the land. These suggestions are denied but the fact
remained that Laxmibai did not cultivate the land
personally. Immediately after the death of Laxman,
Anjanibai and her husband started cultivating the land
and after getting possession of the land from Anjanibai,
the land was sold to Tatyaba.
16) Suggestions were given to Dagadu that when
his parents were cultivating the land for Laxmibai, they
were not giving dues of Laxmibai like crop share and so it
had become difficult for Laxmibai to survive. When it is
not pleaded, Dagadu tried to say that Laxmibai was doing
money lending business. It is clearly a false contention.
The evidence on the record and the rival contentions show
that the suit land was the only property from which
income could have been obtained by Laxmibai and it was
jirayat land. This land was never cultivated by Laxmibai.
He, however, admitted that Laxmibai had filed proceeding
before the tenancy Court for getting possession of the suit
property from his parents on the grounds that his parents
were not giving her crop share.
17) There is no specific pleading in the plaint but
Dagadu has tried to say in the evidence that per year they
were getting 100 gunny bags of food grains from the suit
land. He denied the suggestion that Laxmibai had become
destitute lady. She was required to live in the house of
third person like Kamble and during her last days care of
Laxmibai was taken by defendant Nos.1 and 3, relatives of
Laxmibai on parents side. Thus on one hand, Anjanibai,
step daughter was there but there was dispute between
Anjanibai and Laxmibai and Anjanibai was not providing
anything even for maintenance of Laxmibai and on the
other hand the defendants and relatives from parents side
were helping Laxmibai. These circumstances, which are
not rebutted, are sufficient to establish that Laxmibai had
no source of income, sufficient for her maintenance and
she was living at the mercy of others.
18) One Pandharinath Banekar, aged about 65
years, is examined as witness by the plaintiff. He has
given evidence that 80 to 90 bags of food grains were
received from the suit land by parents of Dagadu when
they were cultivating the land. He has tried to say that
Laxmibai was giving food grains on loan basis to the
villagers and on that basis she was making income. There
is no such case of the plaintiff herself. He has also tried to
say that his father had taken Rs.500/- from Laxmibai.
There is no evidence given regarding such loan
transaction of Laxmibai and there is no such pleading.
Due to these circumstances the Courts below have not
believed that Laxmibai was doing money lending
business.
19) In rebuttal to aforesaid evidence given by the
plaintiff and his witnesses, Kisan, defendant No.3 has
given evidence. It can be said that Ramchandra,
defendant No.1 had knowledge about transaction as he
was sufficiently old at relevant time. Tatyaba died before
1940. Evidence is given by defendant No.3 that
Ramchandra died in the year 1957. It can be said that
Kisan has also no personal knowledge regarding the
transaction and the circumstances which were there at
the relevant time.
20) Kisan, defendant No.3 has given evidence that
the suit land was the only property with Laxmibai but she
was not getting any income from that land and she had
incurred debt for her survival. He has given evidence that
due to these circumstances Laxmibai sold the land to
Tatyaba.
21) Kisan has given evidence that after selling the
land to Tatyaba, Laxmibai shifted to Shrirampur and lived
there in the house of son of her sister. He has given
evidence that Laxmibai was required to work as sweeper
in a school during her last days. He has given evidence
that during her last days she returned to Takalibhan, her
village and then her care was taken by Ramchandra and
Kisan. He has given evidence that his family spent on
funeral of dead body of Laxmibai. Though Kisan was born
in the year 1940 his evidence about other aforesaid
circumstances is relevant.
22) Parashram, witness from Takalibhan, aged
about 85 years, is examined by the defendants. His
evidence shows that his land is situated in the vicinity of
the suit land. He has given evidence that the suit land is
not of good quality and only when there is good rain, 12 to
15 mans food grains can be obtained from the suit land.
He has given evidence that Laxmibai tried to get income
from the land by giving the land to Anjanibai and her
husband for cultivation on batai basis but she was not
getting anything. He has given evidence that Laxmibai
incurred loan and only due to insistence of Laxmibai and
the villagers to help Laxmibai, Tatyaba purchased the land
from Laxmibai. He has given evidence that the land was
offered to the plaintiff also but she refused to purchase it.
Evidence is given by this witness, who is sufficiently old
that there was legal necessity to Laxmibai as she was not
having anything for her maintenance and the land was not
giving any income to her. He has given evidence that
during last days Laxmibai was suffering from leprosy and
in those days also Ramchandra and defendant No.3 took
care of her.
23) The plaintiff's counsel gave suggestion to
Parashram that the villagers were giving food to Laxmibai.
It is brought on the record that there was no bank in the
village in the year 1934 when the land was sold. Though
he has admitted that under the provisions of Bombay
Prohibition Act one case was filed against him he has
denied that the plaintiff was witness in that case against
him and so he has given evidence against the plaintiff.
24) Sale deed dated 21-4-1934, Exhibit 106 shows
that before the Sub Registrar amount of Rs.200/- part of
total consideration of Rs.400/- was actually received by
Laxmibai. This document shows that the amount of
Rs.200/- was already paid to Laxmibai for repayment of
debt taken by her. There is no specific pleading and there
is no convincing evidence to show that the price shown in
the sale deed was not proper, reasonable price. The
Courts below have already held that it was not sham
document.
25) The first suit was filed in the year 1944
(Exhibits 110 and 121). The said suit was filed after 11
years of the sale transaction but it was withdrawn by
Anjanibai. At that time Tatyaba, the purchaser was dead.
His son Ramchandra who could have given evidence on
legal necessity was alive. Ex parte order was made in the
said suit against Laxmibai. Then the suit was fixed for
framing issues. The suit was withdrawn in the year 1945
though with the permission of the Court by Anjanibai.
After that the suit was not filed till death of Laxmibai.
Thus when evidence could have been given on legal
necessity in addition to the contents of the document, the
plaintiff avoided to take decision.
26) Exhibits 133 and 134 record of tenancy
proceeding which was filed by Laxmibai against husband
of Anjanibai shows that the proceeding was filed for
possession by Laxmibai on the ground that the husband of
Anjanibai was not giving crop share to her. These
documents include evidence of Laxmibai recorded before
the tenancy Court and there is both, the examination-inchief
and the cross-examination of Laxmibai. This record
is considered by the Courts below as Laxmibai is dead and
it is relevant matter under section 32 of the Evidence Act.
This record shows that maximum quantity of six mans
food-grains was given to Laxmibai by the husband of
Anjanibai in one year and in one year only three mans
food-grain was given. The record shows that Laxmibai had
tried to convince the husband of Anjanibai to give more
food-grains as crop share for her survival and that was
done through mediator also. But the husband of Anjanibai
had refused to give her crop share. In the cross
examination of Laxmibai it was suggested to her that
under agreement with husband of Anjanibai, land was
given for cultivation and she had no objection against the
husband of Anjanibai to cultivate the land if he was acting
as per the terms and conditions of lease. It was brought
on the record that Laxmibai had made attempts to give
the suit land to one Mohan for cultivation. Laxmibai had
stated that due to husband of Anjanibai, Mohan had
refused to cultivate the land. Thus, difficulties, which
Laxmibai had faced in cultivating the land and get it
cultivated through others were stated before the authority
by Laxmibai.
27) The aforesaid discussion shows that Laxmibai
had become helpless. The family of the plaintiff was not
taking care of her. She was not in a position to personally
cultivate the land. Further the land was not giving
sufficient income and for survival she was required to take
some steps. Considering the value of the land it was not
possible for her to raise money by mortgaging the land for
her survival. Further there would have been question of
repayment of loan. In view of these circumstances
Laxmibai sold the property to Tatyaba. It is specifically
mentioned in the sale deed that she wanted to repay the
loan and she wanted to use the remaining money, part of
the consideration, for family expenses, for maintenance.
This evidence was certainly sufficient to create probability
that there was legal necessity and there was no other
alternative before Laxmibai than to sell the property. The
effect of the aforesaid circumstances ought to have been
considered by the Courts below in view of the law laid
down in that regard. The aforesaid circumstances are not
separately and cumulatively considered by the Courts
below.
28) The parties are governed by Mitakshara School
of Hindu Law. This Court has referred to 20th Edition of
Principles of Hindu Law by Mulla published in the year
2007 and from that book relevant portions, paragraphs
are quoted. After quoting these provisions, this Court will
be quoting the law developed on the principles of Hindu
Law of inheritance and also the law developed with regard
to the rights of limited owners like widows.
29) Paragraph 25 shows that 5 female heirs of
Hindu male were recognized and they were entitled to
succeed to the property of Hindu. They include both
widow and daughter. In Para 27, the law relating to
inheritance of property of the last full owner is quoted.
These principles show that female could not become full
owner of property unless the property was held by her as
Stridhana. Para 34 again shows that the property of sole
coparcener passes to his heirs by succession as provided
in para 43. Para 43 shows widow becomes entitled to get
share equal to that of son but she gets limited estate as
provided by Hindu Women's Right to Property Act 1937.
This para further shows that daughters do not get
property unless all widows are dead. In para 72 also it is
made clear that in order of succession the daughter comes
after widow and she is not entitled to get property along
with widow. Paras 122, 170 and 171 show that for Bombay
School of Mitakshara, the property inherited by widow,
the woman who had entered gotra of deceased due to
marriage does not become her Stridhana. Principles
mentioned in paras 170 and 174 show that the property
inherited by Hindu woman from her husband is her
limited estate. Para 175 shows that on the death of female
owner opens inheritance to reversioners and one most
nearly related at the time of last full owner becomes
entitled to possess.
30) Para 176 contains principles with regard to
instances of widow's estate. They show that the widow
can alienate the property inherited by her for legal
necessity. The alienation may be by way of mortgage or
sale as mentioned in para 181B. In para 181B the
illustrations of legal necessity are given and they include
the maintenance of herself. Whether widow can sell the
property for future maintenance depends on facts and
circumstances of the case. Paras 178, 181 and 182 are
with regard to the power of limited owner to alienate the
property. They show that the burden of proof of existence
of legal necessity is on the alienee, purchaser. This burden
can be discharged in two ways viz. (a) by proving that
there was legal necessity (paragraphs 181-182) or (b) that
alienee after reasonable inquiry as to necessity acted
honestly in the belief that necessity existed (para 181-
182).
31) The meaning of reversioner is given as heirs of
last full owner who would be entitled to succeed on the
death of widow or other limited heir if they be then living,
may be male or female. So, the daughter is reversioner
and after the death of widow the property reverts back to
full owner notionally and then passes to nearest relative of
the full owner like daughter. Thus, there cannot be dispute
that in ordinary course the property would have gone to
Anjanibai after the death of Laxmibai. Much was argued
on the basis of provisions of Hindu Succession Act as
amended in 1956 and particularly on the basis of provision
of section 14 of the Act. Case law developed on this
provision is discussed at proper place. The law shows that
the provision was made for the benefit of the female heir
and not for the benefit of the purchaser of female heir
when the transactions were made by female heirs limited
owners prior to coming in to force of the Act, 1956 and
the property was parted with by the limited owners. Thus
protection of section 14 could not have been given in
favour of the purchaser, defendant.
32) Paras 185 and 190 show that alienation made
by widow without legal necessity is not void but voidable
by the next reversioner. So, reversioner may affirm the
alienation or may treat the alienation as nullity. The
election of affirmation or treating it as nullity may be
made after reversioner has fallen into the possession or
even before. Para 199 shows that decree against widow in
respect of property in her possession is binding on the
reversioner as the decree binds the estate. Thus it
becomes the duty of the Court to ascertain as to whether
by keeping silence or by other conduct, the reversioner
had given tacit consent and there was estoppel against the
reversioner.
33) The aforesaid principles of the Hindu Law need
to be kept in mind at the time of the consideration of the
ratio laid down by the Apex Court and various High Courts
in the cases cited by both the sides.
34) Reliance was placed by the learned Senior
Counsel for the appellant on the case reported as 1985 (3)
SCC 350 (Brahmvart Sanathan Dharam Mahamandal,
Kanpur v. Prem Kumar). In this case the Apex Court has
observed that if the transfer of limited estate which is
violable is not challenged by co-limited owners or at the
instance of the reversioners during life time of the
transferee, it can be presumed that the transfer made by
one of the limited owners had consent of the others. In
such circumstances, the transferee would be entitled to
protection of provision of section 43 of the Transfer of the
Property Act which substantially amounted to satisfying
the equitable principle of feeding to the grants by
estopple. In the present case also the first suit to
challenge the transaction made by Laxmibai was filed by
Anjanibai in the year 1944, after 10 years of the
transaction but the suit was withdrawn though with
permission to file fresh suit. The suit was then filed only
after the death of Laxmibai, transferee and son of
transferee. In view of these circumstances learned Senior
Counsel submitted that the observations made by the
Apex Court in this reported case need to be used against
Anjanibai There is force in this submission. The principles
in this regard of Hindu Law are already quoted.
35) In the case reported as 1954 BCI 153
(Ranchhod Ramnarayan v. Manubai) Bombay High Court,
the suit was filed against the limited owner by transferee.
Provision of Section 53A of the Transfer of Property Act,
cases of legal necessity were considered and it was held
that transferee had proved that for legal necessity the
property was given in possession under agreement of sale
by the limited owner to the transferee. Decree was given
against limited owner and this decree was held to be
binding on the reversioner. This opportunity was there to
Anjanibai and she could have obtained declaration in
respect of the existence or non existence of legal
necessity for the disputed transaction during lifetime of
Laxmibai and transferee but she avoided to do so.
36) In the case reported as AIR 1965 SC 825 (Potti
Lakshmi Perumallu v. Potti Krishnavenamma) cited for
the appellants the Apex Court observed that the interest
given to the Hindu widow by the Act of 1937 was in
substitution of her right under pre-existing Hindu law to
claim maintenance. This Court has already quoted the
relevant provisions giving meaning of legal necessity in
this regard. Such right was there with the widow even
prior to the year 1937. Learned Senior Counsel for the
appellant placed reliance on AIR 1962 SC 83 (Jaisri Sahu
v. Rajdewan Dubey). Right of widow to sell the property is
discussed as under :-
"When a Hindu widow succeeds as heir to her husband,
the ownership in the properties, both legal and
beneficial, vests in her. She fully represents the estate,
the interest of the reversioners therein being only spes
successionis. The widow is entitled to the full beneficial
enjoyment of the estate and is not accountable to any
one. It is true that she cannot alienate the properties
unless it be for necessity or for benefit to the estate, but
this restriction on her powers is not one imposed for the
benefit of reversioners but is an incident of the estate as
known to Hindu law.
Where there is necessity for a transfer, the restriction
imposed by Hindu law on her power to alienate ceases
to operate, and the widow is owner has got the fullest
discretion to decide what form the alienation should
assume. Her powers in this regard are those of the
manager of an infant's estate or the manager of a joint
Hindu family."
37) The learned Senior Counsel or the appellant
placed reliance on two cases to show the importance of
recitals of the sale deed executed by limited owner. In the
case reported as 1952 BLR 223 (Mukabasappa Bhimappa
Amti v. Hanmantappa) (Bombay) observations on the
point are as under :-
"Under Hindu law, when an alienation is sought to be
set aside for want of legal necessity, if the parties to
the transaction are dead and there is no direct
evidence to justify the transaction, presumptions are
permissible in order to fill in details in justification of
the transaction. Ordinarily, it is for the purchaser to
prove that the transaction was justified by legal
necessity. This, he may show by establishing that
there was necessity in fact or by showing that he
made due inquiry about the existence of the necessity
and he believed in the existence of such necessity.
There may be, again, cases where transactions are
ancient and there may be recitals as to necessity in
regard to such ancient transactions. In cases of this
type, recitals consistent with the circumstances and
probabilities will be given their due weight even when
direct evidence is not forthcoming. There may be a
third type of cases where there are no recitals in the
sale deed showing legal necessity, and question arises
whether in such a case it is or it is not permissible to
the Court to raise presumptions, having regard to
such evidence as is adduced in the case. It is well
settled that in the last type of cases the Courts would
be justified in drawing presumptions provided those
presumptions are supported by the evidence and the
circumstances of the case.
The true principle is that the more ancient the
transaction, strict proof may not be required in order
to prove the existence of legal necessity. But it is not
correct to say that apart from the circumstances and
such available evidence, the Court will be justified in
presuming that the transaction is for legal necessity
merely on the ground that it is an ancient
transaction."
In the other case reported as 2002 (3) Bom.C.R. 286
(Gunwant Mahadeorao Deshmukh v. Bapurao Krishnarao
Shinde) the observation on the same point are as under :-
"Normally burden of proof as to legal necessity will be
on the purchaser, but in special circumstances of case,
where sale is challenged after a period of 33 years, the
widow mother who was alive in 1968 was not made a
party nor examined as a witness, prove lack of bona
fide on plaintiff's and mother's part. At a time when
witnesses of the time are not available to defendant the
collusive suit is nothing but an attempt to take unfair
advantage and defendants are entitled to rely on
representations made in the sale deed and plaintiff
cannot get a decree in his favour."
38) The learned Senior counsel for the appellant
placed reliance on more reported cases in support of his
contentions that due to long delay caused in filing the suit
some presumption needs to be drawn against the plaintiff.
In the case reported as AIR 1996 SC 2127 = 1996 DGLS
(Soft) 937 (Gangadharan v. Janardhana Mallan) the Court
was considering the point of legal necessity in similar case
and observed that due to lapse of time of 12 years
presumption of existence of legal necessary can be drawn.
In that case transaction was of the year 1955 and the
suit was filed to challenge the transaction after 12 years.
Relevant observations are at para 15 and as under :-
"It is well established by the decisions of the
courts in India and the Privy council that what the
alienee is required to establish is legal necessity
for the transaction and that it is not necessary for
him to show that every bit of the consideration
which he advanced was actually applied for
meeting family necessity. In this connection we
may refer to two decision of the Privy council. One
is Krishn Das v. Nathu Ram. In that case the
consideration for the alienation was Rs.3500/-. The
alienee was able to prove that there was legal
necessity only to the extent of Rs.3,000.00 and not
for the balance. The High court held that the
alienation could be set aside upon the plaintiff's
paying Rs.3,000.00 to the alienee. But the Privy
council reversed the decision of the High court
observing that the High court had completely
misapprehended the principle of law applicable to
a case of this kind. What the alienee has to
establish is the necessity for the transaction. If he
establishes that then he cannot be expected to
establish how the consideration furnished by him
was applied by the alienor. The reason for this, as
has been stated by the Privy council in some other
cases, is that the alienee can rarely have the
means of controlling and directing the actual
application of the money paid or advanced by him
unless he enters into the management himself.
This decision was followed by the Privy council in
Naimat Rai v. Din Dayal where at pp.602 and 603
it has observed : It appears from the judgment of
the learned Judges of the High court that if they
had been satisfied that the whole of the
Rs.38,400.00 paid out of the sale proceeds was
paid in discharge of debts incurred before the
negotiation of sale, they would have been of
opinion that the sale ought to have been upheld.
With this conclusion their Lordships agree, but
they are of opinion that undue importance was
attached by the learned Judges to the question
whether some of the payments were made in
discharge of debts incurred in the interval
between the negotiation of the sale and the
execution of the sale deed. Even if there had been
no joint family business, proof that the property
had been sold for Rs.43,500.00 to satisfy preexisting
debts to the amount of Rs.38,000.00
would have been enough to support the sale
without showing how the balance had been
applied, as held by their Lordships in the recent
case of Krishn Das v. Nathu Ram. Both these
decisions state the correct legal position, Mr.
Sinhas argument must, therefore, be rejected."
39) This Court has no hesitation to hold that the
aforesaid observations can be used in the present case
in favour of the defendants and against the plaintiff.
Similar observations are made by the Apex Court in the
case reported as AIR 1971 SC 1028 (Rani v. Santa Bala
Debnath). In that case suit was filed after 10 years of the
sale transaction and following observation were made:-
"Legal necessity does not mean actual compulsion: it
means pressure upon the estate which in law may be
regarded as serious and sufficient. The onus of proving
legal necessity may be discharged by the alienee by
proof of actual necessity or by proof that he made
proper and bona fide enquiries about the existence of
the necessity and that he did all that was reasonable to
satisfy himself as to the existence of the necessity.
Recitals in a deed of legal necessity do not by
themselves prove legal necessity. The recitals are,
however, admissible in evidence, their value varying
according to the circumstances in which the
transaction was entered into. The recitals may be used
to corroborate other evidence of the existence of legal
necessity. The weight to be attached to the recitals
varies according to the circumstances. Where the
evidence which could be brought before the Court and
is within the special knowledge of the person who
seeks to set aside the sale is withheld, such evidence
being normally not available to the alienee, the recitals
go to his aid with greater force and the Court may be
justified in appropriate cases in raising an inference
against the party seeking to set aside the sale on the
ground of absence of legal necessity wholly or partially,
when he withholds evidence in his possession.
A sale-deed executed by a widow, a limited owner, in
respect of joint family property contained recital that
sale was for legal necessity. Circumstances proved in
suit to set aside sale also corroborated the fact of legal
necessity. Eldest son of the widow also participated in
execution of the sale-deed and it was not proved
whether he was minor or major at that time.
Held, sale could not be set aside as legal necessity was
amply proved."
40) Some argument was advanced by the learned
Senior Counsel for the appellant on the provisions of
Order 2 Rule 2 of the Civil Procedure Code in view of the
circumstance that it is second suit of Anjanibai. Some
argument was advanced on the case of adverse possession
of the defendant. In view of the relevant provisions of the
Civil Procedure Code with regard to the right given to the
plaintiff to withdraw the suit with permission of the Court
to file suit subsequently and in view of the provisions of
the Hindu Law with regard to the rights of reversioners to
take steps after the death of limited owner, there is no
need to discuss the arguments advanced by the learned
Senior Counsel.
41) The learned counsel for the plaintiff, present
respondents, placed reliance on some reported cases like
the decision given by the Supreme Court in Civil Appeal
No.1798 of 1998 dated 5-2-1999 (between Smt. Naresh
Kumari and Sh. Shakshi Lal). In this case the Apex Court
has discussed the effect of provisions of Section 14(1)(2)
of the Hindu Succession Act 1956. It is laid down that the
transfer of property by limited owner prior to coming in to
force of the Act, 1956 does not get protection of this
provision as the provision is not in favour of the purchaser
and so the property reverts back to the reversioner of the
husband of the deceased, limited owner. There cannot be
dispute over this proposition. The other report case on
this point which is cited is (1991) 3 SCC 410
(Kalawantibai v. Soiryabai). There is no dispute over the
propositions made in this case.
42) To answer the argument advanced by the
learned Senior Counsel for the appellant regarding
requirement of relief of declaration in such cases and the
case of adverse possession of the defendant, some
reported cases are cited. AIR 1956 AP 141 (N. Janikamma
v. Mattareddi) and AIR 1967 Cal 512 (Purna Chandra
Bandopadhaya v. Gouri Panda Mukhopadhaya). They
show that there is no need of such declaration and
reversioner can presume that such transaction is not
binding on the reversioner. Relevant provisions of the
Hindu Law are quoted in this regard. The case reported
as AIR 1961 Bom. 169 (Ramaji Batanji v. Manohar
Chintaman) is in respect of adverse possession. It is laid
down that the adverse possession of the purchaser may be
against the widow but is not against the reversioner. In
view of the provisions of the Hindu Law the reversioner
gets right after the death of the widow and so there is no
need to discuss this point more.
43) The learned counsel for the original plaintiff,
present respondent submitted during arguments that
recitals in the document may be relevant but they are not
conclusive proof of existence of legal necessity. There is
no dispute over this proposition in view of observations
made in the cases cited supra. Ordinarily the Court will
look for some more evidence which could be independent
even when there is recital of legal necessity in the
document. However, when due to efflux of time
independent evidence is not available the recitals in the
sale deed necessarily assume greater importance.
Similarly as already observed, when evidence on inquiry
about legal necessity is lost due to delay in action, the
recital assumes greater importance. In that case if there is
evidence of reasonable belief of the purchaser that would
be sufficient. Relevant observations of the Apex Court in
that regard are already quoted.
44) The discussion made above shows that the
relevant material and the relevant provisions of the Hindu
law were not considered by the Courts below. Due to that,
error is committed by both the Courts. This Court has no
hesitation to hold that the plaintiff is not entitled to the
relief as the transaction was made for the legal necessity
by Laxmibai. There was no need of consideration of the
first three points formulated by this Court as substantial
questions of law as the real point involved was different.
However, the point of legal necessity was definitely
involved and this point is answered against the plaintiff. In
the result, the appeal is allowed. The judgments and
decrees of the Courts below are hereby set aside. The suit
is dismissed.
Sd/-
(T.V. NALAWADE, J. )
proceeding which was filed by Laxmibai against husband
of Anjanibai shows that the proceeding was filed for
possession by Laxmibai on the ground that the husband of
Anjanibai was not giving crop share to her. These
documents include evidence of Laxmibai recorded before
the tenancy Court and there is both, the examination-inchief
and the cross-examination of Laxmibai. This record
is considered by the Courts below as Laxmibai is dead and
it is relevant matter under section 32 of the Evidence Act.
This record shows that maximum quantity of six mans
food-grains was given to Laxmibai by the husband of
Anjanibai in one year and in one year only three mans
food-grain was given. The record shows that Laxmibai had
tried to convince the husband of Anjanibai to give more
food-grains as crop share for her survival and that was
done through mediator also. But the husband of Anjanibai
had refused to give her crop share. In the cross
examination of Laxmibai it was suggested to her that
under agreement with husband of Anjanibai, land was
given for cultivation and she had no objection against the
husband of Anjanibai to cultivate the land if he was acting
as per the terms and conditions of lease. It was brought
on the record that Laxmibai had made attempts to give
the suit land to one Mohan for cultivation. Laxmibai had
stated that due to husband of Anjanibai, Mohan had
refused to cultivate the land. Thus, difficulties, which
Laxmibai had faced in cultivating the land and get it
cultivated through others were stated before the authority
by Laxmibai.
27) The aforesaid discussion shows that Laxmibai
had become helpless. The family of the plaintiff was not
taking care of her. She was not in a position to personally
cultivate the land. Further the land was not giving
sufficient income and for survival she was required to take
some steps. Considering the value of the land it was not
possible for her to raise money by mortgaging the land for
her survival. Further there would have been question of
repayment of loan. In view of these circumstances
Laxmibai sold the property to Tatyaba. It is specifically
mentioned in the sale deed that she wanted to repay the
loan and she wanted to use the remaining money, part of
the consideration, for family expenses, for maintenance.
This evidence was certainly sufficient to create probability
that there was legal necessity and there was no other
alternative before Laxmibai than to sell the property. The
effect of the aforesaid circumstances ought to have been
considered by the Courts below in view of the law laid
down in that regard. The aforesaid circumstances are not
separately and cumulatively considered by the Courts
below.
THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
Second Appeal No.55 of 1989
Kisan Ramchandra Kokane
V
Anjani w/o Laxman Kapase,
CORAM: T.V. NALAWADE, J.
DATE : 20th JUNE 2016.
Citation: AIR 2017 (NOC) 64 Bom
1) The appeal is filed to challenge the judgment
and decree of Regular Civil Suit No.119/1967 which was
pending in the Court of the Civil Judge, Junior Division,
Shrirampur, District Ahmednagar and also against the
judgment and decree of Regular Civil Appeal No.2/1983
which was pending in District Court Ahmednagar. Both
the sides are heard.
2) In short, the facts of the institution of present
case can be stated as follows :-
3) Anjanibai Kapase, original plaintiff, had filed
suit for recovery of possession of agricultural land bearing
Survey No.267 (Gat No.304) situated at village
Takalibhan, Tahsil Shrirampur. The land admeasures 12
acres 8 Gunthas. Relief of mesne profit was also claimed.
4) The suit property was originally owned by
Laxman Dalvi, father of plaintiff. Laxman had two wives
viz. Dhondabai and Laxmibai. Dhondabai died during
lifetime of Laxman leaving behind the plaintiff Anjanibai
as the only issue. Laxman died in or about the year 1931.
Thus at the time of death of Laxman he had two heirs like
widow Laxmibai and daughter Anjanibai. The parties are
Hindus.
5) It is the case of the plaintiff that as per Hindu
law, Laxmibai was limited owner of the suit property but
she sold the property to father of defendant No.1, Tatyaba
under registered sale deed dated 21-4-1934. It is
contended by the plaintiff that there was no legal
necessity and the plaintiff was giving crop share to
Laxmibai by cultivating the suit land.
6) Laxmibai died on 22-3-1966. The suit came to
be filed in the year 1967. It is the case of Anjanibai that as
reversioner, under Hindu law, she is entitled to get the
suit property and the transaction which was made by
Laxmibai in favour of father of defendant No.1 is not
binding on her. As the property was mortgaged by
defendant No.3, son of defendant No.1 to defendant No.2,
bank, the bank was also impleaded in the suit. On the date
of the suit, the property was in possession of defendant
No.3. Laxmibai, Tatyaba and his son Ramchandra are
dead but Anjanibai was alive when the evidence was
recorded in the trial Court.
7) Defendant No.3 filed written statement and
contested the suit. He contended that Laxmibai was
absolute owner of the property and so Anjanibai has no
right to claim possession from the purchaser. He denied
that there was no legal necessity for the transaction. He
contended that the land was with plaintiff and her
husband on Batai basis but they were not giving anything
even for livelihood to Laxmibai. It is his case that for legal
necessity Laxmibai sold the property for valuable
consideration to Tatyaba, father of the defendant No.1. It
is his case that during last days, Laxmibai was required to
work as sweeper in a private school for her survival.
8) It is the case of the defendant No.3 that
plaintiff had filed similar suit in the past but it was
withdrawn and so present suit is not tenable. It was also
contended by defendant No.3 that the suit is not within
limitation. He contended that due to principle of feeding
to the grants by estoppel, the suit was not tenable.
Alternatively he contended that the defendants have
become owner due to adverse possession. Defendant No.3
contended that in partition amongst members of the
family of defendant No.1, the property was allotted to his
share. He also contended that the land was mortgaged
with defendant No.2 and it was possessory mortgage and
defendant No.2 had given the land for cultivation to the
defendant No.3.
9) Defendant No.2-Bank contested the matter by
contending that under possessory mortgage the land was
mortgaged by defendant No.3 with it and the bank is
entitled to recover the mortgage money. The bank
contended that the defendant No.3 was shown as owner
on record and so the loan was advanced to defendant
No.3. It admitted that the defendant No.3 was in
possession as the land was given by the bank to defendant
No.3 for cultivation.
10) Issues were framed on the basis of aforesaid
pleadings. The trial Court held that Laxmibai was limited
owner and the transaction with Tatyaba was not for legal
necessity. The trial Court held that the transaction of
defendant No.3 with the bank was also not bona fide.
Decree of possession is given by the trial Court and the
decree of mesne profit is also given. Similar findings are
given by District court in the first appeal.
11) This Court, other Hon'ble Judge, admitted the
appeal on the following substantial questions of law.
(i) When there was no Class I or Class II heirs and
Laxmibai was the widow of the deceased Laxman,
whether the property would revert in favour of
reversioner ?
(ii) Whether in absence of any Class I and Class II
heir, Laxmibai would be treated as absolute owner of
the property ?
(iii) Whether Anjanibai the daughter of Dhondabai
the first wife of Laxman would get any right or title
in presence of Laxmibai the widow of Laxman ?
12) All the aforesaid questions revolve around the
case as to whether Laxmibai widow of Laxman was
absolute owner of the property. The Courts below have
considered Shastric Hindu Law and the effect of codified
law on the Shastric law and the point of legal necessity is
decided by holding that Laxmibai was limited owner. This
Court allowed both the sides to argue on the point of legal
necessity as the said point is the main point in the present
matter and so following substantial question of law is also
considered by this Court.
"Whether the Courts below have committed error
in not considering the relevant material and
relevant position of law on legal necessity and
due to that error is committed by the Courts
below ?"
13) To prove the legal necessity the defendants
have mainly relied on the following circumstances :-
(i) The recitals of the sale deed of 1934 in support
of case of legal necessity. Execution of the sale deed is
admitted by plaintiff and the Courts below have come
to the conclusion that sale deed was not sham,
without consideration.
(ii) Laxmibai was not having support of anybody
like relatives from her husband's side or her
daughter's side, the so called reversioner. The land
was given to Anjanibai, plaintiff and her husband for
cultivation by Laxmibai but Laxmibai was required to
file litigation against them as Anjanibai and her
husband were not giving anything even for survival of
Laxmibai.
(iii) The tenancy authority has given finding in
favour of Laxmibai and against Anjanibai and
possession was given to Laxmibai of the suit land.
Laxmibai never cultivated the land personally, she
was always attempting to give it for cultivation to
others.
(iv) In the past, in the year 1944, suit was filed by
Anjanibai to challenge the transaction of sale made
by Laxmibai with Tatyaba, father of defendant No.1.
The transaction between Tatyaba and Laxmibai was
within knowledge of Anjanibai right from beginning
as Tatyaba was related to Laxmibai from her parents
side and he was helping her.
(v) Anjanibai withdrew the suit filed by her for
relief of declaration that there was no legal necessity
for the transaction made by Laxmibai and the suit
was for other relief like possession also. This suit was
withdrawn with the permission of the Court to
institute new suit but till the year 1967, till death of
Laxmibai, Anjanibai did not file suit.
(vi) When the suit was filed by Anjanibai, both
Laxmibai and the purchaser Tatyaba were dead and
so no evidence of witnesses, who were witnesses to
the transaction was available to prove legal
necessity.
(vii) Anjanibai did not dare to step into witness box
and her son who was not having understanding at
the relevant time and who had no personal
knowledge regarding the transaction between
Laxmibai, Anjanibai and Tatyaba gave evidence for
plaintiff. Due to this circumstance at least adverse
inference can be drawn against Anjanibai.
14) The evidence given by both the sides needs to
be considered and appreciated in view of the aforesaid
admitted circumstances. It can be said here only that most
of the aforesaid circumstances are not considered by the
Courts below and the law laid down in respect of
implication of the aforesaid circumstances and the
inference which can be drawn on the basis of the
aforesaid circumstances is also not considered by the
Courts below.
15) Dagadu, son of Anjanibai, gave evidence for
proof of the case when Anjanibai was alive. Power of
attorney was given to Dagadu by Anjanibai. No evidence
was given to show that Anjanibai was not in a position to
come to court for giving evidence. On the basis of his age
and the admissions given by him it can be said that he had
no personal knowledge about the circumstances which
were prevailing at the time of the dispute which was going
on between Laxmibai and Anjanibai. When in the plaint
itself Anjanibai had admitted that she and her husband
started cultivating the land after the death of Laxman,
Dagadu avoided to admit that Laxmibai never cultivated
the land personally. Suggestion was given to him that the
land was situated at a long distance from the residential
place of Laxmibai, the village, she was no having
agricultural implements and she was not able to cultivate
the land. These suggestions are denied but the fact
remained that Laxmibai did not cultivate the land
personally. Immediately after the death of Laxman,
Anjanibai and her husband started cultivating the land
and after getting possession of the land from Anjanibai,
the land was sold to Tatyaba.
16) Suggestions were given to Dagadu that when
his parents were cultivating the land for Laxmibai, they
were not giving dues of Laxmibai like crop share and so it
had become difficult for Laxmibai to survive. When it is
not pleaded, Dagadu tried to say that Laxmibai was doing
money lending business. It is clearly a false contention.
The evidence on the record and the rival contentions show
that the suit land was the only property from which
income could have been obtained by Laxmibai and it was
jirayat land. This land was never cultivated by Laxmibai.
He, however, admitted that Laxmibai had filed proceeding
before the tenancy Court for getting possession of the suit
property from his parents on the grounds that his parents
were not giving her crop share.
17) There is no specific pleading in the plaint but
Dagadu has tried to say in the evidence that per year they
were getting 100 gunny bags of food grains from the suit
land. He denied the suggestion that Laxmibai had become
destitute lady. She was required to live in the house of
third person like Kamble and during her last days care of
Laxmibai was taken by defendant Nos.1 and 3, relatives of
Laxmibai on parents side. Thus on one hand, Anjanibai,
step daughter was there but there was dispute between
Anjanibai and Laxmibai and Anjanibai was not providing
anything even for maintenance of Laxmibai and on the
other hand the defendants and relatives from parents side
were helping Laxmibai. These circumstances, which are
not rebutted, are sufficient to establish that Laxmibai had
no source of income, sufficient for her maintenance and
she was living at the mercy of others.
18) One Pandharinath Banekar, aged about 65
years, is examined as witness by the plaintiff. He has
given evidence that 80 to 90 bags of food grains were
received from the suit land by parents of Dagadu when
they were cultivating the land. He has tried to say that
Laxmibai was giving food grains on loan basis to the
villagers and on that basis she was making income. There
is no such case of the plaintiff herself. He has also tried to
say that his father had taken Rs.500/- from Laxmibai.
There is no evidence given regarding such loan
transaction of Laxmibai and there is no such pleading.
Due to these circumstances the Courts below have not
believed that Laxmibai was doing money lending
business.
19) In rebuttal to aforesaid evidence given by the
plaintiff and his witnesses, Kisan, defendant No.3 has
given evidence. It can be said that Ramchandra,
defendant No.1 had knowledge about transaction as he
was sufficiently old at relevant time. Tatyaba died before
1940. Evidence is given by defendant No.3 that
Ramchandra died in the year 1957. It can be said that
Kisan has also no personal knowledge regarding the
transaction and the circumstances which were there at
the relevant time.
20) Kisan, defendant No.3 has given evidence that
the suit land was the only property with Laxmibai but she
was not getting any income from that land and she had
incurred debt for her survival. He has given evidence that
due to these circumstances Laxmibai sold the land to
Tatyaba.
21) Kisan has given evidence that after selling the
land to Tatyaba, Laxmibai shifted to Shrirampur and lived
there in the house of son of her sister. He has given
evidence that Laxmibai was required to work as sweeper
in a school during her last days. He has given evidence
that during her last days she returned to Takalibhan, her
village and then her care was taken by Ramchandra and
Kisan. He has given evidence that his family spent on
funeral of dead body of Laxmibai. Though Kisan was born
in the year 1940 his evidence about other aforesaid
circumstances is relevant.
22) Parashram, witness from Takalibhan, aged
about 85 years, is examined by the defendants. His
evidence shows that his land is situated in the vicinity of
the suit land. He has given evidence that the suit land is
not of good quality and only when there is good rain, 12 to
15 mans food grains can be obtained from the suit land.
He has given evidence that Laxmibai tried to get income
from the land by giving the land to Anjanibai and her
husband for cultivation on batai basis but she was not
getting anything. He has given evidence that Laxmibai
incurred loan and only due to insistence of Laxmibai and
the villagers to help Laxmibai, Tatyaba purchased the land
from Laxmibai. He has given evidence that the land was
offered to the plaintiff also but she refused to purchase it.
Evidence is given by this witness, who is sufficiently old
that there was legal necessity to Laxmibai as she was not
having anything for her maintenance and the land was not
giving any income to her. He has given evidence that
during last days Laxmibai was suffering from leprosy and
in those days also Ramchandra and defendant No.3 took
care of her.
23) The plaintiff's counsel gave suggestion to
Parashram that the villagers were giving food to Laxmibai.
It is brought on the record that there was no bank in the
village in the year 1934 when the land was sold. Though
he has admitted that under the provisions of Bombay
Prohibition Act one case was filed against him he has
denied that the plaintiff was witness in that case against
him and so he has given evidence against the plaintiff.
24) Sale deed dated 21-4-1934, Exhibit 106 shows
that before the Sub Registrar amount of Rs.200/- part of
total consideration of Rs.400/- was actually received by
Laxmibai. This document shows that the amount of
Rs.200/- was already paid to Laxmibai for repayment of
debt taken by her. There is no specific pleading and there
is no convincing evidence to show that the price shown in
the sale deed was not proper, reasonable price. The
Courts below have already held that it was not sham
document.
25) The first suit was filed in the year 1944
(Exhibits 110 and 121). The said suit was filed after 11
years of the sale transaction but it was withdrawn by
Anjanibai. At that time Tatyaba, the purchaser was dead.
His son Ramchandra who could have given evidence on
legal necessity was alive. Ex parte order was made in the
said suit against Laxmibai. Then the suit was fixed for
framing issues. The suit was withdrawn in the year 1945
though with the permission of the Court by Anjanibai.
After that the suit was not filed till death of Laxmibai.
Thus when evidence could have been given on legal
necessity in addition to the contents of the document, the
plaintiff avoided to take decision.
26) Exhibits 133 and 134 record of tenancy
proceeding which was filed by Laxmibai against husband
of Anjanibai shows that the proceeding was filed for
possession by Laxmibai on the ground that the husband of
Anjanibai was not giving crop share to her. These
documents include evidence of Laxmibai recorded before
the tenancy Court and there is both, the examination-inchief
and the cross-examination of Laxmibai. This record
is considered by the Courts below as Laxmibai is dead and
it is relevant matter under section 32 of the Evidence Act.
This record shows that maximum quantity of six mans
food-grains was given to Laxmibai by the husband of
Anjanibai in one year and in one year only three mans
food-grain was given. The record shows that Laxmibai had
tried to convince the husband of Anjanibai to give more
food-grains as crop share for her survival and that was
done through mediator also. But the husband of Anjanibai
had refused to give her crop share. In the cross
examination of Laxmibai it was suggested to her that
under agreement with husband of Anjanibai, land was
given for cultivation and she had no objection against the
husband of Anjanibai to cultivate the land if he was acting
as per the terms and conditions of lease. It was brought
on the record that Laxmibai had made attempts to give
the suit land to one Mohan for cultivation. Laxmibai had
stated that due to husband of Anjanibai, Mohan had
refused to cultivate the land. Thus, difficulties, which
Laxmibai had faced in cultivating the land and get it
cultivated through others were stated before the authority
by Laxmibai.
27) The aforesaid discussion shows that Laxmibai
had become helpless. The family of the plaintiff was not
taking care of her. She was not in a position to personally
cultivate the land. Further the land was not giving
sufficient income and for survival she was required to take
some steps. Considering the value of the land it was not
possible for her to raise money by mortgaging the land for
her survival. Further there would have been question of
repayment of loan. In view of these circumstances
Laxmibai sold the property to Tatyaba. It is specifically
mentioned in the sale deed that she wanted to repay the
loan and she wanted to use the remaining money, part of
the consideration, for family expenses, for maintenance.
This evidence was certainly sufficient to create probability
that there was legal necessity and there was no other
alternative before Laxmibai than to sell the property. The
effect of the aforesaid circumstances ought to have been
considered by the Courts below in view of the law laid
down in that regard. The aforesaid circumstances are not
separately and cumulatively considered by the Courts
below.
28) The parties are governed by Mitakshara School
of Hindu Law. This Court has referred to 20th Edition of
Principles of Hindu Law by Mulla published in the year
2007 and from that book relevant portions, paragraphs
are quoted. After quoting these provisions, this Court will
be quoting the law developed on the principles of Hindu
Law of inheritance and also the law developed with regard
to the rights of limited owners like widows.
29) Paragraph 25 shows that 5 female heirs of
Hindu male were recognized and they were entitled to
succeed to the property of Hindu. They include both
widow and daughter. In Para 27, the law relating to
inheritance of property of the last full owner is quoted.
These principles show that female could not become full
owner of property unless the property was held by her as
Stridhana. Para 34 again shows that the property of sole
coparcener passes to his heirs by succession as provided
in para 43. Para 43 shows widow becomes entitled to get
share equal to that of son but she gets limited estate as
provided by Hindu Women's Right to Property Act 1937.
This para further shows that daughters do not get
property unless all widows are dead. In para 72 also it is
made clear that in order of succession the daughter comes
after widow and she is not entitled to get property along
with widow. Paras 122, 170 and 171 show that for Bombay
School of Mitakshara, the property inherited by widow,
the woman who had entered gotra of deceased due to
marriage does not become her Stridhana. Principles
mentioned in paras 170 and 174 show that the property
inherited by Hindu woman from her husband is her
limited estate. Para 175 shows that on the death of female
owner opens inheritance to reversioners and one most
nearly related at the time of last full owner becomes
entitled to possess.
30) Para 176 contains principles with regard to
instances of widow's estate. They show that the widow
can alienate the property inherited by her for legal
necessity. The alienation may be by way of mortgage or
sale as mentioned in para 181B. In para 181B the
illustrations of legal necessity are given and they include
the maintenance of herself. Whether widow can sell the
property for future maintenance depends on facts and
circumstances of the case. Paras 178, 181 and 182 are
with regard to the power of limited owner to alienate the
property. They show that the burden of proof of existence
of legal necessity is on the alienee, purchaser. This burden
can be discharged in two ways viz. (a) by proving that
there was legal necessity (paragraphs 181-182) or (b) that
alienee after reasonable inquiry as to necessity acted
honestly in the belief that necessity existed (para 181-
182).
31) The meaning of reversioner is given as heirs of
last full owner who would be entitled to succeed on the
death of widow or other limited heir if they be then living,
may be male or female. So, the daughter is reversioner
and after the death of widow the property reverts back to
full owner notionally and then passes to nearest relative of
the full owner like daughter. Thus, there cannot be dispute
that in ordinary course the property would have gone to
Anjanibai after the death of Laxmibai. Much was argued
on the basis of provisions of Hindu Succession Act as
amended in 1956 and particularly on the basis of provision
of section 14 of the Act. Case law developed on this
provision is discussed at proper place. The law shows that
the provision was made for the benefit of the female heir
and not for the benefit of the purchaser of female heir
when the transactions were made by female heirs limited
owners prior to coming in to force of the Act, 1956 and
the property was parted with by the limited owners. Thus
protection of section 14 could not have been given in
favour of the purchaser, defendant.
32) Paras 185 and 190 show that alienation made
by widow without legal necessity is not void but voidable
by the next reversioner. So, reversioner may affirm the
alienation or may treat the alienation as nullity. The
election of affirmation or treating it as nullity may be
made after reversioner has fallen into the possession or
even before. Para 199 shows that decree against widow in
respect of property in her possession is binding on the
reversioner as the decree binds the estate. Thus it
becomes the duty of the Court to ascertain as to whether
by keeping silence or by other conduct, the reversioner
had given tacit consent and there was estoppel against the
reversioner.
33) The aforesaid principles of the Hindu Law need
to be kept in mind at the time of the consideration of the
ratio laid down by the Apex Court and various High Courts
in the cases cited by both the sides.
34) Reliance was placed by the learned Senior
Counsel for the appellant on the case reported as 1985 (3)
SCC 350 (Brahmvart Sanathan Dharam Mahamandal,
Kanpur v. Prem Kumar). In this case the Apex Court has
observed that if the transfer of limited estate which is
violable is not challenged by co-limited owners or at the
instance of the reversioners during life time of the
transferee, it can be presumed that the transfer made by
one of the limited owners had consent of the others. In
such circumstances, the transferee would be entitled to
protection of provision of section 43 of the Transfer of the
Property Act which substantially amounted to satisfying
the equitable principle of feeding to the grants by
estopple. In the present case also the first suit to
challenge the transaction made by Laxmibai was filed by
Anjanibai in the year 1944, after 10 years of the
transaction but the suit was withdrawn though with
permission to file fresh suit. The suit was then filed only
after the death of Laxmibai, transferee and son of
transferee. In view of these circumstances learned Senior
Counsel submitted that the observations made by the
Apex Court in this reported case need to be used against
Anjanibai There is force in this submission. The principles
in this regard of Hindu Law are already quoted.
35) In the case reported as 1954 BCI 153
(Ranchhod Ramnarayan v. Manubai) Bombay High Court,
the suit was filed against the limited owner by transferee.
Provision of Section 53A of the Transfer of Property Act,
cases of legal necessity were considered and it was held
that transferee had proved that for legal necessity the
property was given in possession under agreement of sale
by the limited owner to the transferee. Decree was given
against limited owner and this decree was held to be
binding on the reversioner. This opportunity was there to
Anjanibai and she could have obtained declaration in
respect of the existence or non existence of legal
necessity for the disputed transaction during lifetime of
Laxmibai and transferee but she avoided to do so.
36) In the case reported as AIR 1965 SC 825 (Potti
Lakshmi Perumallu v. Potti Krishnavenamma) cited for
the appellants the Apex Court observed that the interest
given to the Hindu widow by the Act of 1937 was in
substitution of her right under pre-existing Hindu law to
claim maintenance. This Court has already quoted the
relevant provisions giving meaning of legal necessity in
this regard. Such right was there with the widow even
prior to the year 1937. Learned Senior Counsel for the
appellant placed reliance on AIR 1962 SC 83 (Jaisri Sahu
v. Rajdewan Dubey). Right of widow to sell the property is
discussed as under :-
"When a Hindu widow succeeds as heir to her husband,
the ownership in the properties, both legal and
beneficial, vests in her. She fully represents the estate,
the interest of the reversioners therein being only spes
successionis. The widow is entitled to the full beneficial
enjoyment of the estate and is not accountable to any
one. It is true that she cannot alienate the properties
unless it be for necessity or for benefit to the estate, but
this restriction on her powers is not one imposed for the
benefit of reversioners but is an incident of the estate as
known to Hindu law.
Where there is necessity for a transfer, the restriction
imposed by Hindu law on her power to alienate ceases
to operate, and the widow is owner has got the fullest
discretion to decide what form the alienation should
assume. Her powers in this regard are those of the
manager of an infant's estate or the manager of a joint
Hindu family."
37) The learned Senior Counsel or the appellant
placed reliance on two cases to show the importance of
recitals of the sale deed executed by limited owner. In the
case reported as 1952 BLR 223 (Mukabasappa Bhimappa
Amti v. Hanmantappa) (Bombay) observations on the
point are as under :-
"Under Hindu law, when an alienation is sought to be
set aside for want of legal necessity, if the parties to
the transaction are dead and there is no direct
evidence to justify the transaction, presumptions are
permissible in order to fill in details in justification of
the transaction. Ordinarily, it is for the purchaser to
prove that the transaction was justified by legal
necessity. This, he may show by establishing that
there was necessity in fact or by showing that he
made due inquiry about the existence of the necessity
and he believed in the existence of such necessity.
There may be, again, cases where transactions are
ancient and there may be recitals as to necessity in
regard to such ancient transactions. In cases of this
type, recitals consistent with the circumstances and
probabilities will be given their due weight even when
direct evidence is not forthcoming. There may be a
third type of cases where there are no recitals in the
sale deed showing legal necessity, and question arises
whether in such a case it is or it is not permissible to
the Court to raise presumptions, having regard to
such evidence as is adduced in the case. It is well
settled that in the last type of cases the Courts would
be justified in drawing presumptions provided those
presumptions are supported by the evidence and the
circumstances of the case.
The true principle is that the more ancient the
transaction, strict proof may not be required in order
to prove the existence of legal necessity. But it is not
correct to say that apart from the circumstances and
such available evidence, the Court will be justified in
presuming that the transaction is for legal necessity
merely on the ground that it is an ancient
transaction."
In the other case reported as 2002 (3) Bom.C.R. 286
(Gunwant Mahadeorao Deshmukh v. Bapurao Krishnarao
Shinde) the observation on the same point are as under :-
"Normally burden of proof as to legal necessity will be
on the purchaser, but in special circumstances of case,
where sale is challenged after a period of 33 years, the
widow mother who was alive in 1968 was not made a
party nor examined as a witness, prove lack of bona
fide on plaintiff's and mother's part. At a time when
witnesses of the time are not available to defendant the
collusive suit is nothing but an attempt to take unfair
advantage and defendants are entitled to rely on
representations made in the sale deed and plaintiff
cannot get a decree in his favour."
38) The learned Senior counsel for the appellant
placed reliance on more reported cases in support of his
contentions that due to long delay caused in filing the suit
some presumption needs to be drawn against the plaintiff.
In the case reported as AIR 1996 SC 2127 = 1996 DGLS
(Soft) 937 (Gangadharan v. Janardhana Mallan) the Court
was considering the point of legal necessity in similar case
and observed that due to lapse of time of 12 years
presumption of existence of legal necessary can be drawn.
In that case transaction was of the year 1955 and the
suit was filed to challenge the transaction after 12 years.
Relevant observations are at para 15 and as under :-
"It is well established by the decisions of the
courts in India and the Privy council that what the
alienee is required to establish is legal necessity
for the transaction and that it is not necessary for
him to show that every bit of the consideration
which he advanced was actually applied for
meeting family necessity. In this connection we
may refer to two decision of the Privy council. One
is Krishn Das v. Nathu Ram. In that case the
consideration for the alienation was Rs.3500/-. The
alienee was able to prove that there was legal
necessity only to the extent of Rs.3,000.00 and not
for the balance. The High court held that the
alienation could be set aside upon the plaintiff's
paying Rs.3,000.00 to the alienee. But the Privy
council reversed the decision of the High court
observing that the High court had completely
misapprehended the principle of law applicable to
a case of this kind. What the alienee has to
establish is the necessity for the transaction. If he
establishes that then he cannot be expected to
establish how the consideration furnished by him
was applied by the alienor. The reason for this, as
has been stated by the Privy council in some other
cases, is that the alienee can rarely have the
means of controlling and directing the actual
application of the money paid or advanced by him
unless he enters into the management himself.
This decision was followed by the Privy council in
Naimat Rai v. Din Dayal where at pp.602 and 603
it has observed : It appears from the judgment of
the learned Judges of the High court that if they
had been satisfied that the whole of the
Rs.38,400.00 paid out of the sale proceeds was
paid in discharge of debts incurred before the
negotiation of sale, they would have been of
opinion that the sale ought to have been upheld.
With this conclusion their Lordships agree, but
they are of opinion that undue importance was
attached by the learned Judges to the question
whether some of the payments were made in
discharge of debts incurred in the interval
between the negotiation of the sale and the
execution of the sale deed. Even if there had been
no joint family business, proof that the property
had been sold for Rs.43,500.00 to satisfy preexisting
debts to the amount of Rs.38,000.00
would have been enough to support the sale
without showing how the balance had been
applied, as held by their Lordships in the recent
case of Krishn Das v. Nathu Ram. Both these
decisions state the correct legal position, Mr.
Sinhas argument must, therefore, be rejected."
39) This Court has no hesitation to hold that the
aforesaid observations can be used in the present case
in favour of the defendants and against the plaintiff.
Similar observations are made by the Apex Court in the
case reported as AIR 1971 SC 1028 (Rani v. Santa Bala
Debnath). In that case suit was filed after 10 years of the
sale transaction and following observation were made:-
"Legal necessity does not mean actual compulsion: it
means pressure upon the estate which in law may be
regarded as serious and sufficient. The onus of proving
legal necessity may be discharged by the alienee by
proof of actual necessity or by proof that he made
proper and bona fide enquiries about the existence of
the necessity and that he did all that was reasonable to
satisfy himself as to the existence of the necessity.
Recitals in a deed of legal necessity do not by
themselves prove legal necessity. The recitals are,
however, admissible in evidence, their value varying
according to the circumstances in which the
transaction was entered into. The recitals may be used
to corroborate other evidence of the existence of legal
necessity. The weight to be attached to the recitals
varies according to the circumstances. Where the
evidence which could be brought before the Court and
is within the special knowledge of the person who
seeks to set aside the sale is withheld, such evidence
being normally not available to the alienee, the recitals
go to his aid with greater force and the Court may be
justified in appropriate cases in raising an inference
against the party seeking to set aside the sale on the
ground of absence of legal necessity wholly or partially,
when he withholds evidence in his possession.
A sale-deed executed by a widow, a limited owner, in
respect of joint family property contained recital that
sale was for legal necessity. Circumstances proved in
suit to set aside sale also corroborated the fact of legal
necessity. Eldest son of the widow also participated in
execution of the sale-deed and it was not proved
whether he was minor or major at that time.
Held, sale could not be set aside as legal necessity was
amply proved."
40) Some argument was advanced by the learned
Senior Counsel for the appellant on the provisions of
Order 2 Rule 2 of the Civil Procedure Code in view of the
circumstance that it is second suit of Anjanibai. Some
argument was advanced on the case of adverse possession
of the defendant. In view of the relevant provisions of the
Civil Procedure Code with regard to the right given to the
plaintiff to withdraw the suit with permission of the Court
to file suit subsequently and in view of the provisions of
the Hindu Law with regard to the rights of reversioners to
take steps after the death of limited owner, there is no
need to discuss the arguments advanced by the learned
Senior Counsel.
41) The learned counsel for the plaintiff, present
respondents, placed reliance on some reported cases like
the decision given by the Supreme Court in Civil Appeal
No.1798 of 1998 dated 5-2-1999 (between Smt. Naresh
Kumari and Sh. Shakshi Lal). In this case the Apex Court
has discussed the effect of provisions of Section 14(1)(2)
of the Hindu Succession Act 1956. It is laid down that the
transfer of property by limited owner prior to coming in to
force of the Act, 1956 does not get protection of this
provision as the provision is not in favour of the purchaser
and so the property reverts back to the reversioner of the
husband of the deceased, limited owner. There cannot be
dispute over this proposition. The other report case on
this point which is cited is (1991) 3 SCC 410
(Kalawantibai v. Soiryabai). There is no dispute over the
propositions made in this case.
42) To answer the argument advanced by the
learned Senior Counsel for the appellant regarding
requirement of relief of declaration in such cases and the
case of adverse possession of the defendant, some
reported cases are cited. AIR 1956 AP 141 (N. Janikamma
v. Mattareddi) and AIR 1967 Cal 512 (Purna Chandra
Bandopadhaya v. Gouri Panda Mukhopadhaya). They
show that there is no need of such declaration and
reversioner can presume that such transaction is not
binding on the reversioner. Relevant provisions of the
Hindu Law are quoted in this regard. The case reported
as AIR 1961 Bom. 169 (Ramaji Batanji v. Manohar
Chintaman) is in respect of adverse possession. It is laid
down that the adverse possession of the purchaser may be
against the widow but is not against the reversioner. In
view of the provisions of the Hindu Law the reversioner
gets right after the death of the widow and so there is no
need to discuss this point more.
43) The learned counsel for the original plaintiff,
present respondent submitted during arguments that
recitals in the document may be relevant but they are not
conclusive proof of existence of legal necessity. There is
no dispute over this proposition in view of observations
made in the cases cited supra. Ordinarily the Court will
look for some more evidence which could be independent
even when there is recital of legal necessity in the
document. However, when due to efflux of time
independent evidence is not available the recitals in the
sale deed necessarily assume greater importance.
Similarly as already observed, when evidence on inquiry
about legal necessity is lost due to delay in action, the
recital assumes greater importance. In that case if there is
evidence of reasonable belief of the purchaser that would
be sufficient. Relevant observations of the Apex Court in
that regard are already quoted.
44) The discussion made above shows that the
relevant material and the relevant provisions of the Hindu
law were not considered by the Courts below. Due to that,
error is committed by both the Courts. This Court has no
hesitation to hold that the plaintiff is not entitled to the
relief as the transaction was made for the legal necessity
by Laxmibai. There was no need of consideration of the
first three points formulated by this Court as substantial
questions of law as the real point involved was different.
However, the point of legal necessity was definitely
involved and this point is answered against the plaintiff. In
the result, the appeal is allowed. The judgments and
decrees of the Courts below are hereby set aside. The suit
is dismissed.
Sd/-
(T.V. NALAWADE, J. )
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