RANI & ANR. v SANTA BALA DEBNATH & ORS.

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RANI & ANR.

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SANTA BALA DEBNAIB & ORS. October 14, 1970 [J. C. SHAH AND A. N. GROVER, JJ.]

Hindu Law-Legal necessity-Proof of-Recitals in deed, ev/dentiary

talue of.

S. a Hindu female ¥overned by Dayabhaga system of law, executed a sale·deed. It WH recited in the agreement that she agreed to sell "on ac,count of financial need and to pay off certain debts". After her death her son1 flied .a suit for a declaration that the sale-deed was not blndln1 . on them as It was executed without legal necessity .. ·The Trial Court held that the sale deed was supported by legal necessity. The Court a!SG observed, that the .contention that, there was fraud, misrepresentation and there was no evidence undue influence was ·not seriously pressed as adduced to prove the same. The High Court, in appeal, reversed the decree holding that the defendants' case of 'legal necessity was not proved and on that account the sale deed was not binding upon the plaintiffs., The High Court, without adverting to the record, observed that the case of the plaintiffs that S was induced to exeoute the sale deed because of persuation and undue intluence had to be accepted. In appeal by cer· tificate, this Court,

HELD : (i) The Appell&nts-defendants had amply ,made out that the sale deed was supported by ·1egal necessity. The observations of the High Court were not supported by any evidence and they seriously -vitiated the appreciation of the evidence oh record.

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(ii) Legal necessity does not mean actual compulsion : it means pres· sure upon the estate whi.ch in law may be regarded as serious and .sufli·. cient. The cn•1s of proving legal necessity may be discharged by the alienee by proof of actual necessity . or by proof that he made proper and bonfide enquiries about the existence of the necessity and that he did all that was reasonable to satisfy himself as to the existenee' of the necessity. [608 DJ

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. Where the evidence which could be brought before the Court and is within the special knowledge of the person who seek.s 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 necessilv wholly or partially when he withholds evidence in his posses· sion. Jn the present case the recitals in the deed about the existence of pressure upon the estate are amply corroborated by the circumstances. [608 F]

(iii) Since the plaintiffs only claimed relief against defendants. 1 & 2 for declaration that the alienation in their favour was not binding on the plaintiffs and that relief cannot be granted to the plaintiffs, the circum·

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·'ance that the heirs of the I 0th detendant are not Im pleaded in their

ppeal does not affect the right of the defendants to claim tbe appeal A must bo dismissed. [610 Cl

C1v1L APPELLATE JURISDICTION: Civil Appeal No. 1943 of

1966.

Appeal from the judgment and decree dated March 7, 1962 B

of the Calcutta High Court in Appeal from Original Decree No. 173 of.

1956.

S. V. Gupte and D. N. Mukherjee, for the appellants.

Purushottam Chatterjee, P. K. Chatterjee and Rathin Das, for

respo.ndent N13.

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The Judgment of the Court was delivered by

Shah, J. One Sashi Bhusan was possessed of a piece of land at Mou~a Behala District 24-Parganas admeasuring .98 acres. The land devolved on the death of Sashi Bhusan in 1920 upon his daughter Sarala. Under the Dayalihaga system of law; Sarala inherited the propP.rty of her father as a limited owner. reaving Sarala married Kunja Behari. The latter died in 1937 him surviving Sarala, two sons Tulsi and Gobinda, and four daughters were married during the life-time of · Kunja Behai·i. Kunja Behari left no estate except a residential house constructed on the land at M auza Behal a. Kunja Behari was ailing for about one year before his death in 1937. He was in an humble walk of life, and was apparently not profitably employed during his life-time. At the time of his death the two sons Tulsi and Gobinda were minors.

On October 22, 1941, Sarala executed a deed, Ext. E, agree to for Rs.· 1,100/- ing to sell a part of the land (.90 acres) Chapalabala wife of Saklia Nath Ghosh. It was recited in the agreement of sale that Sarala had agreed to sell .90 acres of land possessed by her 'on account of financial need and to pay off certain debts". Sarala acknowledged receipt' of Rs. 101/- as It appears that Sarala was for some time there earnest money. after disinclined to cany out the bargain. However on March 13, 1942 she executed a deed, Ext. C, conveying the land agreed to be sold for a consideration of Rs. 1,500/- to Chapalabala and Banikana.

It was recited in the deed :

"Now on account of financial needs and to meet certain debt5 and out of other legal necessity, I an nounced to sell .90 acre land at rent of R5. 23/- per annum free from defects and encumbrances leaving a

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RANI V. S~DEBNATH (Shah, J.)

605

portion of homestead J~nd measuring .08 acre."

sale, that Sarala had

It was also recited in the deed that Rs. 101/- were paid on received the date of the agreement of Rs. 899/- before the date of sale, and Rs. 500/- were paid to her in the presence of the Sub-Registrar. An endorsement of payment of Rs. 500/- before the Sub-Registrar was made by that Officer. The thumb-mark of Sarala was attested by Abinash Chandra Chakravarty and the deed was attested by four persons including her son Gobinda.

On the date of the sale the rent in respect of the land was in It also appears that before the date of sale Mangala arrears. had been given in marriage and the youngest daughter Radha remained to be married. Sarala had also to provide for food and clothing for at least five persons. Sarala had only a residential house and the land in dispute and she had no source of income.

Sarala died on April 12, 1950. On

January 24, 1953 Tulsi and Gobinda sons of Sarala filed a suit in the Court of the Subordinate Judge, 24-Parillnas, for a decree declaring that the sale deed dated March 13, 1942, execlited by Sarala was not binding upon the plaintiffs, because it was executed without legal necessity. The suit was resisted by Chapalabala and BanikP.na (defendants 1 & 2) an:! by alianees of them. The Trial Court held that the sale deed was supported by legal necessity. The learned Judge observed that Sarala was in "strained financial circumstances", and she executed the sale deed to meet expenses for maintaining herself and her family, and for payment of debts. She had, 10 meet municipal taxes, rent for the land, and expenses for the marriage of her daughter. Radha. The learned Judge observed that the plea that execution of the sale deed was obtained by fraud, misrepresentation and undu<: influence was not seriously pressed "inasmuch as there was no evidence worth the name adduced" to support that case.

from

land

the

Against the decree dismissing the suit the plaintiffs appealed In the view of the High Court there Willi - to the High Court. "no such serious and sufficient pressure on the estate" of Sarala as to compel her to sell her property, and the case of the plain tiffs that she was induced to do so "by persuasion and undue influence" of Sakha Nath Ghosh husband of defendant 1 must be accepted. The High Court al!!l'l observed that it was doubtful whether even full consideration for the sale was paid. The High Court held that the defendants' case of legal necessity wa• not proved and on that account the sale deed executed by Sarala \\'as not binding upon the plaintiffs. But bec~use one Dhiren Chandra an intermediate transferee was oot made party to the the suit and Dhiren Chandra had obtained a fresh settlement

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High Court was of the opinion that the decree of the Trial Court in respect of I 0 cottahas out of ihe land sold by Sarala could not be reversed. The High Court accordingly modified the decree passed by the Trial Court . and allowed the appeal in part, and dismissed the plaintiffs' suit against defendants 4, 5, 6 and 16 in respect. of 10 cottahas of land in the northern part of the ·The plaintiffs were given by the decree opportunity . to land. amend the plaint by making a claim for actual possession which was ·not till then claimed in the plaint. Accordingly the suit was decreed in . respect of the remaining defendants in frespect of the portion of the land· not covered by 10 cottahs in 1posses s.ion of defendants 4, S, 6 and 16. With certificate granted by the High Court, the heirs of original defendants 2 and 3 have appealed to this Court.

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In the plaint it was averred in paragraph·4 .that Sarala was "illiterate and unpractical in worldly matters", ·that "she was a simple and pardanashin lady", that_ Sakha Nath Ghosh husband of Chapalabala was an l'offic('.r" of one of the partner of the famous Roy. family and was "shrewd and cunning", that Sai:ala called him "Dharamapita", and .ustd to "depend upon him in many atiairs" and used to be guided by his instructions, and on that account the said Sakha Nath and the husband of Banikana in collusion with the scribe made fraudulent representation and exercised undul' influence over Sarala and got the. sale deed. exe cuted in their favour. This plea was denied by the contesting defendants. At the trial no issue was raised 'and no evidence It was. conceded that the plea was led in support of that plea. of fraud and undue .influence could not be supported. The Trial Court observed :

"Though it was ·also tried to be said that there was fraud, misrepresentation and undµe influence exercised for the execution and registration of the Kabala (sale deed) yet that branch o.f argument was· not seriously pressed inasmuch as there was no evidence worth the name adduced to show that there was really any fraud registration of the practised for the execution and kobalq in favour of defendants 1 and 2(Chapalabala and Banikana) by Sarala Bala Dasi:"

Tue High Court without adverting to this state of the record observed that the case of the plaintiffs that Sarala was induced to sell the land because of persuasion and undue influence of Sakha Nath Ghosh. must .be accepted. The High Court also observed that it was doubtful whether full consideration for ·the sale was· paid, and :that since Sakha Nath Ghosh was "a _rent coll~tor under one of Roy Babus of Behala, in order to grab the

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RANI V, S. DEBNATH (Shah, /,)

607.

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valuable prl)perty belonging to Sarala he had induced Sarala to enter into a transaction of sale". These observations of the High Court are not supported by any evidence, and they seriously · vitiate the appreciation of the evidence on record.

In the sale deed it was (lXpressly recited that Rs. 101/- were paid at the time of the agreement of sale. That recital was sup ported by the recital in Ext. E in the agreement of sale. It was also recited in the sale deed, Ext C, that Rs. 899 /- were received before the. date of the sale, and Rs. 500/- were received before the Sub-Registrar. Payment of Rs. 500/- is supported by the endorsement on· the sale deed itself. It is true that apart from the recital about the payment of Rs. 899/- there is no other docu mentary evidence to prove that payment. The burden of proving that the consideration was not received by the vendor, however, lay upon the plaintiffs and no serious attempt was made to dis charge that burden. The plaintiffs set up the case that Rs. 500 / were taken back from Sarala after: she left the Sub-Registrar's; office. The High .Court disbelieved this part of the case about repayment of the amount of Rs. 500/- by Sarala received by her before the Sub-Registrar. The High Court observed the balance of the considera that about tion, namely Rs. 899/-, "there was no evidence at all on the side .of the defendants that the same was paid" In our judgment, the High Court misconceived !Qe nature of th.e onus which lay upon the plaintiffs to prove that tbe consideration which it was recited in the deed was received by Sarala was not in fact recCivedi by her and a false recital was made. The recitals in the deed are supported br the testimony of Sailendra Nath Nan di who said, that the entire consideration was received by Sarala. We are unable to accept the view of the High Court that the sale deed was not supported by full consideration.

the payment of

The agreement of sale and the sale deed were attested by that Gobinda son of Sarala. Before us Gobiiida Vl'.as at the date of the agreement of sale, and at the date of the Sale deed, a minor and his attestation was of no value. But· on this part of the case there is no reliable evidence.

it was cqhtended

· Jogindra Nath Monda! who wrote the two deeds was examined on behalf of the defendants. He de~ that Ext. E-the agree ment of sale-was read over and the i;ontents were explained to Sarala after it was written', and she understood the implications of the deed and also received Rs. 101/-. In his cross~xamination he stated that he had written down the deed according to what was said to him by Sarala, Gobinda and by Sakha Nath Ghosh and thereafter Sarala executed the deed. There is no reason to· testimony of this · witness. Abinash Chandra· disbelieve the

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Chakravarty who attested the sale deed-Ext. C-and the agree ment of. sale-Ext. E-could not be examined for he had died before the date of the trial. Attestation by him of the two deeds has significance. Gobinda Chandra Debnath a witness examin ed on behalf of the plaintiffs stated that the family of the plain tiffs had confidence in Abinash Chandra Chakravarty as he was "the friend and well-wisher of the family". There is no ground for believing that Abinash Chandra Chakravarty who was present at the time of the execution and had attested the two deeds misused the confidence Ieposed in him and was guilty of being a party to the bringing into existence a deed containing false recitals to defraud Sarala and her sons.

Legal necessity to support the sale must however be establish ed by the alienees. Sarala owned the land in dispute as a limited O\rner. She was competent to dispose of the whole estate in the property for legal necessity or benefit to the estate. In adjusting whether the sale conveys the whole estate, the actual pressure en the estate, the danger to be averted, and the benefit to be con ferred upon the estate in the particular insistance must be consi it dered. Legal necessity does not mean actual compulsion : means pressure upon the estate which in law may be regarded as serious and sufficient. The onus of providing legal necessity may be discharged by the alienee by proof of actual necessity. or by proof that he made proper and bona fide enquires about the existence of the necessity and that he did aj\ that was reasonable to satisfy himseif 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 neces sity. 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 per son 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 in appropriate cases in raising an inference against the party seek ing to set aside the sale on the ground of absence of legal neces sity wholly or partially when he withholds evidence in his possession ..

force, and the Court may be justified

Kunja Behari husband of Sarala had died in 1937 after a protracted illness : there is no reliable evidence that he left any property except the residential house. built on a part of the land r:hicb Sarala had inherited from her father. Sarala had two SOlll

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RANI

i', s. !)£Bc.ATH (Shah. !.)

609

who were the:i minors and two daughters who were yet to be married. There were five members in the family to be fed and clothed, and the marriage expenses of two daughters had to be met. The case that '!'ulsi the eldest son obtained gainful em ployment shortly after his father's death and before the sale deed was executed was rightly . disbelieved by the Trial Court. The story that Gobinda had taken to hawking vegetables has also been rightly disbelieved by the Trial Court. Sarala had to meet several obligations : she had to pay the annual rent accruing due in respect of the land in dispute and also to pay municipal taxes : she had to feed and clothe herself and her children and to per fonn the marriage of her daughter Radha. She had no other property and she had no income. The recitals in the deed about the existence of pressure upon the estate are therefore amply cor roborated by the circumstances.

Mr. Purshottam Chatterjee appearing on behalf of the plain tiffs contended that there was evidence only of the debts amount ing to 75/-, Rs. 25/- as rent for the land pa'fable to the head-. lessor and Rs. 50/- expenditure incurred for the marriage of the daughter Mangala. Counsel relied upon the recitals made in a plaint filed in a suit for recovery of rent by the landlord against Sarala after the sale deed in which the rent for the years 1941, 1942 and 1943 was claimed. Counsel also relied upon the evi l>elonged, the dence that in the community to which Sarala marriage of a daughter only costs Rs. 50/-. That evidence, in our jilQgment, is wholly unreliable. In any event apart from the obligation to pay rent and to meet the expenses of marriage of her daughter Mangala various other obligations had to be met. The argument that Sarala belonged to a community in which the male members used to be employed as "household servants'" and that Tulsi and Gobinda were so employed is also not sup ported by any reliable evidence. the High Court ignored the strong inference which arose out of these cir cumstances and especially out of the participation by Gobinda in the execution of the agreement of sale and the sale deed.

judgment,

In our

executed for legal necessity. From the

In our vim· the case of the defendants 1 and 2 that the sale deed was supported by legal necessity of Sarala was amply made out and the Trial Court was right in holding that the sale deed attestation by was Gobinda one of the sons of the agreement of sale and the sale deed and the recitals in those deeds. viewed in the light of the other evidence. we are ot the opinion that the level necessity set up by the defendants I and 2 is amply proved.

I~ was urged before us that because the 10th defendant died to

before tl1e certificate was given by the High Court for appeal

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.this Court, and the heirs of the 10th defendant were not brought on the record, the appeal abates in its entirety. There is, how .ever, no clear evidence whether the 10th defendant died before or after the judgment of the High· Court. Again, the plaintiffs .had in the suit only claimed a relief for declaration that the alie nation in.favour of defendants 1 and 2, i.e. Chapalabala .and Banikana made on March 13, 1942, was without legal necessity and was not binding upon them, and for a declaration of their . title to the disputed land. The alienees from defendants 1 and 2 were, it is true, impleaded as parties, but no relief was .claimed against them. Nor was any averment made in the plaint about the reasons for and the circumstances in which they were so impleaded. Since the plaintiffs only claimed relief against defendants 1 and, 2, and that relief cannot be granted to the plaintiffs, we think, the circumstance Lliat the heirs of the 10th defendant are not impleaded in this appeal does not affect· the right of the defendl!nts to claim that the appeal must be dismissed.

The appeal is therefore allowed and the suit filed by the

plaintiffs is dismissed with costs throughout.

Y.P.

Appeal allowed;

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