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A B c D F G B 603 RANI & ANR. v. 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. aHindufemale ¥overned by Dayabhagasystem of law, executed a sale·deed. It WH recited in the agreementthat she agreed to sell "on ac,countof financial need and to pay off certain debts". After her death her son1 flied .a suitfor a declarationthat the sale-deed was not blndln1 . onthem as It was executedwithout legal necessity .. ·The TrialCourt heldthat the sale deed was supported by legal necessity.The Court a!SG observed,that the .contention that, there was fraud,misrepresentation and undue influence was ·not seriouslypressed as there was no evidence adduced to prove the same.The HighCourt,in appeal,reversedthe decreeholdingthat the defendants'case of 'legal necessity was not proved andon thataccountthe saledeed was not bindingupon the plaintiffs., TheHighCourt,withoutadverting to the record,observedthat the case oftheplaintiffsthat S was induced to exeoute the saledeedbecause of persuation and undueintluencehad to be accepted.In appeal by cer· tificate,this Court, HELD: (i)TheAppell&nts-defendantshad amply ,made out thatthe saledeed was supported by ·1egal necessity.The observationsof theHigh Courtwere not supported by anyevidenceand theyseriously-vitiated the appreciation of theevidenceoh record. · (ii) Legalnecessity does not meanactualcompulsion: it means pres· sureuponthe estate whi.ch in lawmay be regarded as seriousand .sufli·. cient.The cn•1s of proving legal necessitymay be discharged by the alienee by proofof actualnecessity . or by proof that he made proper and bonfide enquiriesabout the existenceof thenecessityand thathe did all that was reasonableto satisfyhimself as to the existenee' of the necessity. [608 DJ Recitals in a deed,of legalnecessity,do not by themselvesprove legal necessity,The recitalsare. however,admissiblein evidence,their value varyingaccording to the circumstancesin whichthe transaction was' enteredinto. Wherethe evidencewhich could be broughtbefore the Court and is within the specialknowledge of the person who seek.s to set asidethe sale is withheld,such evidencebeing normallynot available to the alienee,the recitalsgo to his aidwithgreaterforce, and the Court may be justifiedin appropriatecases in raising.an inferenceagainst the partyseekingto setasidethe saleon thegroundof absence of legal necessilvwholly or partiallywhen he withholdsevidence in his posses· sion. Jn thepresentcase the recitalsin thedeedaboutthe existence of pressureupon the estateare amplycorroborated by the circumstances. [608 F] (iii) Since theplaintiffsonly claimedrelief againstdefendants.1 & 2 fordeclaration that the alienation in theirfavour was not bindingon the plaintiffsand thatreliefcannot be grantedto theplaintiffs,the circum· SUP.REME COD.RT REPORTS [1971] 2 S.C.R. ·'ance that the heirsof the I 0th detendant arenot Im pleadedin their ppealdoes not affectthe rightof thedefendantsto claim tbe appealA must bo dismissed. [610 Cl C1v1L APPELLATE JURISDICTION: CivilAppealNo. 1943 of 1966. Appealfrom the judgmentand decreedated March7, 1962B of the CalcuttaHigh Courtin Appealfrom OriginalDecree No. 173 of. 1956. S. V.Gupte and D. N.Mukherjee, fortheappellants. Purushottam Chatterjee, P. K. Chatterjee and RathinDas, for respo.ndent N13. 2. TheJudgmentof theCourt was deliveredby Shah, J. One SashiBhusan was possessedof a pieceof landat Mou~a BehalaDistrict24-Parganasadmeasuring .98 acres. The landdevolvedon thedeathof Sashi Bhusanin 1920 upon his daughterSarala. Under the Dayalihaga system of law; Sarala inheritedthe propP.rty of herfather as a limitedowner. SaralamarriedKunja Behari.The latterdied in 1937 reaving himsurviving Sarala, two sonsTulsi and Gobinda,and four daughterswere marriedduring the life-timeof · Kunja Behai·i. Kunja Beharileft no estateexcepta residentialhouse constructed onthelandat M auza Behal a. KunjaBehariwas ailingfor about oneyearbeforehis deathin 1937.He was in an humblewalk oflife, and was apparentlynot profitablyemployedduring his life-time.At thetimeof hisdeaththe twosons Tulsi and Gobinda were minors. On October22, 1941, Sarala executeda deed,Ext. E, agree ing to sell a partof theland (.90 acres)for Rs.· 1,100/- to Chapalabalawife of Saklia NathGhosh. It was recitedin the agreementof salethatSaralahad agreedto sell .90 acres of landpossessedby her'on account of financialneed and to pay off certain debts".Sarala acknowledged receipt' of Rs. 101/- as earnestmoney.It appears that Sarala was for sometime there after disinclinedto cany out the bargain.However on March 13,1942she executeda deed,Ext. C, conveyingthe landagreed tobesoldfor a considerationof Rs. 1,500/- to Chapalabala andBanikana.It was recited in the deed: "Now on accountof financialneeds and to meet certaindebt5 and out of otherlegal necessity,I an nounced to sell .90 acre land at rentof R5. 23/- per annumfree fromdefectsand encumbrancesleaving a c D E F G H A B c D E F G H RANI V. S~DEBNATH (Shah, J.) 605 portion of homestead J~nd measuring .08 acre." It wasalsorecitedin thedeedthat Rs. 101/- werepaid on the dateof theagreementof sale,that Saralahad received Rs. 899/- beforethe dateof sale,and Rs. 500/- werepaid to her in the presenceof theSub-Registrar. An endorsementof paymentof Rs. 500/- beforethe Sub-Registrarwas madeby that Officer.The thumb-markof Saralawas attestedby Abinash ChandraChakravarty and the deed was attestedby fourpersons includingher sonGobinda. On the dateof thesalethe rentin respectof thelandwas in arrears. It alsoappearsthat beforethe dateof saleMangala hadbeengivenin marriageand the youngestdaughter Radha remainedto be married. Saralahad also to providefor foodand clothingfor at least five persons. Saralahad onlya residential houseand the landin disputeand she hadno sourceof income. Saraladied on April12, 1950. On January24, 1953 Tulsiand Gobindasons of Saralafiled a suit in theCourtof the SubordinateJudge, 24-Parillnas, for a decreedeclaringthat the saledeeddatedMarch13, 1942, execlited by Saralawas not bindingupon the plaintiffs,because it wasexecutedwithout legal necessity.The suit wasresistedby Chapalabalaand BanikP.na (defendants 1 & 2) an:! by alianeesof thelandfromthem. TheTrialCourtheld that the saledeed was supportedby legal necessity.The learnedJudge observedthat Saralawas in "strained financial circumstances", and she executedthe saledeed tomeetexpensesfor maintainingherself and her family,and forpaymentof debts. She had, 10 meetmunicipaltaxes, rent fortheland,and expensesfor the marriageof herdaughter. Radha.The learnedJudge observedthat the pleathat execution ofthesaledeed was obtainedby fraud,misrepresentation and undu<: influence was not seriouslypressed "inasmuch as there wasno evidenceworth the name adduced" to supportthat case. Againstthe decreedismissingthe suitthe plaintiffs appealed -to theHighCourt. In the view of theHighCourtthere Willi "no such seriousand sufficientpressure on the estate" of Sarala as to compelher to sellherproperty,and the caseof the plain tiffsthatshe wasinducedto do so "by persuasionand undue influence" of SakhaNath Ghoshhusbandof defendant1 must be accepted.The HighCourt al!!l'l observedthat it wasdoubtful whethereven full considerationfor thesalewaspaid.The High Court heldthat the defendants'case of legalnecessity wa• not provedand on thataccountthe saledeedexecuted by Sarala 'as not bindingupon the plaintiffs.But bec~use one Dhiren Chandra an intermediatetransferee was oot made party to the suitand DhirenChandrahad obtaineda freshsettlementthe 606 SUPREME COURT REPORTS (1971] 2 S.C.R. High Court was of theopinionthat the decreeof theTrialCourt in respectof I 0 cottahas outof ihe landsold by Sarala could not be reversed.The HighCourtaccordinglymodified the decree passedby theTrialCourt. andallowedthe appealin part,and dismissedthe plaintiffs'suit againstdefendants4, 5, 6 and16 inrespect.of 10 cottahas of landin thenorthernpart of the land. ·The plaintiffswere givenby thedecreeopportunity . to amendthe plaintby makinga claimfor actualpossessionwhich was ·not tillthenclaimedin theplaint.Accordinglythe suit wasdecreedin . respect of theremainingdefendants in frespect of the portionof the land· notcoveredby 10 cottahs in 1posses s.ion of defendants4, S, 6 and 16. With certificategranted by the High Court,the heirsof originaldefendants2 and3 have appealedto thisCourt. In the plaint it was averred in paragraph·4 .thatSarala was "illiterate and unpracticalin worldly matters",·that "she was a simpleand pardanashin lady", that_ Sakha Nath Ghoshhusband of Chapalabalawas an l'offic('.r" of oneof thepartner of the famousRoy. family and was "shrewd and cunning", that Sai:ala called him "Dharamapita", and .ustdto "depend uponhim in many atiairs" andused to be guidedby hisinstructions,and on thataccountthe said Sakha Nathand the husband of Banikana in collusionwith the scribemade fraudulentrepresentationand exercised undul' influenceover Sarala and got the. saledeed. exe cutedin theirfavour.This plea was denied by the contesting defendants.At thetrialno issuewas raised'and no evidence wasled in supportof thatplea. It was. concededthat the plea offraudand undue.influencecould not be supported.The Trial Courtobserved: "Though it was ·also tried to be said that there was fraud,misrepresentationand undµe influence exercised fortheexecutionand registrationof the Kabala (sale deed)yet thatbranch o.f argument was· notseriously pressedinasmuch as there was no evidenceworth the nameadduced to show that there was reallyany fraud practisedfor theexecutionand registrationof the kobalq in favour of defendants 1 and2(Chapalabala andBanikana)by Sarala Bala Dasi:" Tue High Court withoutadvertingto thisstateof therecord observedthat the case of the plaintiffsthat Sarala was induced to sell thelandbecause of persuasionand undueinfluence of Sakha Nath Ghosh.must .be accepted.The HighCourtalso observedthat it wasdoubtfulwhether full considerationfor ·the sale was· paid, and :thatsince Sakha NathGhoshwas "a _rent coll~tor under one of RoyBabusof Behala,in orderto grabthe A B c D E F G H A B c D E r G H RANI V, S. DEBNATH (Shah, /,) 607. valuable prl)perty belonging to Sarala he had inducedSarala to enter into a transaction of sale". Theseobservationsof the High Courtare notsupported by anyevidence,and theyseriously vitiatethe appreciationof theevidenceon record. · In the sale deedit was (lXpressly recitedthat Rs. 101/- were paid at the time of the agreementof sale. That recital was sup ported by the recital in Ext.E in the agreement of sale. It was alsorecited in the sale deed,Ext C, that Rs. 899 /- were received beforethe. date of the sale, and Rs. 500/- were receivedbefore theSub-Registrar. Payment of Rs. 500/- is supported by the endorsement on· the sale deed itself. It is truethat apartfrom therecitalabout the payment of Rs. 899/- there is no other docu mentaryevidenceto provethat payment.The burdenof proving thatthe consideration was notreceivedby thevendor,however, lay upon the plaintiffs and no seriousattempt was made to dis charge that burden.The plaintiffsset up the casethat Rs. 500 / were takenback fromSarala after: she left the Sub-Registrar's; office. TheHigh.Courtdisbelievedthis partof thecaseabout repaymentof the amount of Rs. 500/- by Saralareceived by her beforethe Sub-Registrar.The High Court observed thataboutthe paymentof thebalanceof the considera tion, namely Rs. 899/-, "there was noevidenceat allontheside .of the defendantsthat the same was paid" In ourjudgment, theHighCourtmisconceived !Qe natureof th.e onus whichlay upon the plaintiffsto provethat tbe consideration which it was recited in the deed was received by Sarala was not in fact recCivedi by heranda false recital was made. Therecitals in the deedare supported br the testimonyof Sailendra Nath Nan di who said, that the entireconsideration was received by Sarala. We are unable to acceptthe view of the HighCourtthat the saledeed was not supported by full consideration. Theagreementof saleand the sale deed wereattestedby Gobinda son ofSarala.Before us it was cqhtended that Gobiiida Vl'.as at the date of the agreementof sale, and at thedate of the Sale deed,a minorand his attestation was of novalue. But· on this partof the casethere is no reliableevidence. · JogindraNath Monda! who wrote the two deeds was examined onbehalf of the defendants. He de~ thatExt. E-the agree ment of sale-was readoverand the i;ontents were explainedto Saralaafter it was written', and she understoodthe implications ofthedeedand also received Rs. 101/-. In his cross~xamination he statedthat he hadwritten down the deedaccordingto what was said to him by Sarala, Gobindaand by Sakha Nath Ghosh andthereafter Sarala executed the deed.There is no reason to· disbelieve the testimonyof this · witness. Abinash Chandra· 608 SUPREME COURT REPORTS [1971] 2 S.C.R. Chakravartywho attestedthe sale deed-Ext. C-and the agree ment of. sale-Ext. E-could notbe examinedfor he haddied beforethe dateof thetrial.Attestationby himof thetwodeeds hassignificance.Gobinda Chandra Debnath a witness examin edonbehalfof theplaintiffsstated that the familyof the plain tiffshadconfidencein AbinashChandraChakravarty as he was "the friend and well-wisherof the family". There is no ground forbelievingthat AbinashChandraChakravartywho was present atthetimeof theexecutionand hadattestedthe twodeeds misusedthe confidenceIeposed in himand was guiltyof being apartyto thebringinginto existencea deedcontainingfalse recitalsto defraudSarala and her sons. Legalnecessityto supportthe salemusthoweverbe establish ed bythealienees.Sarala ownedthe land in dispute as a limited O ner. She was competentto disposeof thewholeestate in the propertyfor legalnecessityor benefitto theestate. In adjusting whether thesaleconveysthe wholeestate,the actualpressure en the estate,the danger to be averted,and the benefitto be con ferredupon the estatein theparticularinsistance must be consi dered.Legal necessitydoes not meanactualcompulsion: it means pressureupon the estatewhichin lawmaybe regarded as seriousand sufficient.The onusof providinglegal necessity maybe dischargedby thealieneeby proof of actual necessity. or byproofthat he madeproperand bona fide enquiresabout the existenceof thenecessityand thathe did aj that was reasonable tosatisfyhimseif as to theexistenceof thenecessity. Recitalsin a deedof legal necessitydo notby themselves provelegal necessity.The recitalsare, however,admissiblein evidence,their valuevaryingaccordingto thecircumstancesin whichthe transactionwas enteredinto. The recitalsmay be used to corroborateother evidenceof theexistenceof legal neces sity.The weightto beattachedto therecitalsvaries according tothecircumstances.Where the evidencewhich could be brought · beforethe Court and is within the specialknowledgeof the per sonwhoseeksto setasidethe sale is withheld,such ·evidence being- normallynot availableto thealienee,the recitals go to hisaidwithgreaterforce, and the Court may be justified in appropriatecases in raising an inferenceagainst the party seek ing to setasidethe saleon thegroundof absenceof legal neces sitywhollyor partiallywhen he withholdsevidence in his possession .. KunjaBeharihusbandof Sarala had died in 1937after a protractedillness : there is noreliableevidencethat he leftany propertyexcept the residentialhouse. built on a part of theland r:hicbSarala had inheritedfrom her father.Sarala had two SOlll A B c D E F G H A B c D E F G H RANI i', s. !)£Bc.ATH (Shah. !.) 609 whowere the:i minorsand two daughterswho wereyet to be married.There were five membersin thefamilyto befedand clothed,and the marriageexpenses of twodaughtershad to be met.The casethat '!'ulsi the eldestson obtainedgainful em ploymentshortly after his father'sdeath and beforethe saledeed was executed was rightly. disbelievedby theTrialCourt.The storythat Gobindahad takento hawkingvegetableshas also been rightly disbelieved by theTrialCourt.Sarala had to meet several obligations :shehadto paythe annualrent accruingdue inrespectof thelandin disputeand alsoto paymunicipaltaxes : shehadto feedand clotheherselfand her childrenand to per fonnthe marriageof herdaughterRadha. She had no other propertyand she had no income.The recitals in the deedabout theexistenceof pressureupon the estateare thereforeamply cor roborated by the circumstances. Mr.PurshottamChatterjee appearing on behalfof the plain tiffs contendedthat there was evidenceonly of thedebts amount ingto 75/-, Rs. 25/- as rentfor thelandpa'fableto thehead-. lessorand Rs. 50/- expenditureincurred for the marriageof the daughterMangala.Counsel relied upon the recitalsmade in a plaint filed in asuitfor recoveryof rentby thelandlordagainst Saralaafter the sale deedin whichthe rentfor the years1941, 1942and 1943 was claimed.Counsel also reliedupon the evi dencethat in the community to whichSarala l>elonged, the marriage of adaughteronly costs Rs. 50/-. Thatevidence,in our jilQgment, is wholly unreliable. In anyeventapart from the obligation to pay rentand to meetthe expensesof marriage of herdaughterMangalavarious other obligationshad to bemet. Theargumentthat Saralabelonged to a communityin which themalemembersused to be employed as "householdservants'" and thatTulsiand Gobindawere so employed is also not sup ported by any reliableevidence.In ourjudgment,the High Courtignoredthe stronginferencewhich arose out of these cir cumstancesand especiallyout of theparticipationby Gobinda intheexecutionof theagreementof saleand the sale deed. In our vim· the case of thedefendants1 and2 thatthesale deed was supported by legalnecessityof Sarala was amplymade outandthe TrialCourt was right in holdingthat the saledeed wasexecutedfor legalnecessity.From the attestation by Gobindaone of the sons of theagreementof sale and the sale deed and therecitals in those deeds.viewedin thelightof the otherevidence. we are ot the opinionthat the levelnecessity setup by thedefendantsI and2 is amplyproved. I~ was urged before us that becausethe 10th defendantdied before tl1e certificate was given by theHighCourtfor appealto 610 SUPREME COURT REPORTS [1971] 2 S.C.R. .this Court,and the heirs of the 10th defendant were notbrought ontherecord,the appeal abates in its entirety. There is, how .ever, no clearevidencewhether the 10th defendantdied before orafterthe judgmentof the High· Court.Again, the plaintiffs .had in thesuitonlyclaimeda relieffor declarationthat the alie nationin.favour of defendants1 and2,i.e. Chapalabala .and Banikanamade on March 13, 1942, was withoutlegal necessity and was notbindingupon them, and for a declarationof their . titleto thedisputedland. The alienees from defendants1 and 2were,it istrue,impleaded as parties,but no relief was .claimedagainst them. Nor was any avermentmade in theplaint aboutthe reasonsfor andthe circumstancesin whichthey were so impleaded. Since the plaintiffsonly claimedrelief against defendants1 and, 2, andthatreliefcannot be grantedto the plaintiffs, we think,the circumstance Lliat the heirsof the 10th defendantare notimpleadedin this appeal does not affect· the rightof the defendl!nts to claimthat the appealmust be dismissed. The appeal is therefore allowed and the suit filed by the B c plaintiffs is dismissed with costs throughout.D Y.P. Appeal allowed; |
