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1916 Supreme(SC) 50
PRIVY COUNCIL [ON APPEAL FROM THEEAST INDIES]
LORD BUCKMASTER L.C., LORD ATKINSON, AND SIR JOHN EDGE.
BANGA CHANDRA DHUR BISWAS - Appellant
Versus
JAGAT KISHORE CHOWDHURI - Respondents
On Appeal From The High Court In Bengal.
Decided On : July. 17. 1916.
Solicitors for appellants :T. L. Wilson & Co. Solicitors for respondents: Watkins & Hunter.
In old property alienations by widows, recitals of legal necessity in deeds gain evidentiary weight over time when contemporary evidence is unavailable, provided they are consistent with the circumstances and probabilities of the case.
Headnote:(A) Hindu Law - Legal Necessity - Alienation of property by widows - Burden of proof - Recitals in deeds - Evidentiary value - Maintenance of widows - When recitals in deeds can be relied upon to establish legal necessity, especially after a long lapse of time where independent evidence is unavailable - Recitals consistent with probabilities and circumstances of the case assume greater importance as time passes - Actual proof of necessity is not essential if a representation was made to the purchaser and he acted honestly after proper inquiry.
(B) Legal Necessity - Maintenance - Maintenance of widows is not limited to bare existence - Sale of property in small portions over a period to provide for maintenance and payment of debts of the deceased constitutes legal necessity.
(C) Attestation - Attestation of a deed by a witness proves only the signature of the executing party - It does not imply consent to the transaction or notice of the contents of the deed.
Facts of the case:
The appellants challenged several sales of property made by two widows of a deceased person between 1848 and 1865, alleging the sales were fraudulent and lacked legal necessity. The property was sold in small parcels over sixteen years. The deeds contained recitals citing the need to pay the deceased's debts, expenses for religious ceremonies, and maintenance. The trial court ruled in favor of the appellants, but the High Court reversed the decision, holding that legal necessity was established.
Findings of Court:
The court found that the total value of the estate was small and the property was disposed of piece by piece over a long period, supporting the view that the widows lacked sufficient income for maintenance. Given the sixty-year gap before the suits were filed, contemporary verbal evidence was unreliable. The recitals in the deeds, being consistent with the circumstances, were sufficient to justify the assumption that a reasonable inquiry would have confirmed the existence of legal necessity.
Issues: Whether the recitals in the deeds, in the absence of contemporary evidence due to the passage of time, were sufficient to establish legal necessity for the sale of the property by the widows.
Ratio Decidendi: While recitals in deeds are generally not proof of the facts they contain against third parties, they gain evidentiary weight as time passes and original witnesses disappear. If a recital is consistent with the probabilities of the case, it serves as evidence of a representation made to the purchaser. If the circumstances justify a belief that a proper inquiry would have confirmed the necessity, the recital is sufficient to support the deed. Maintenance of widows is a recognized legal necessity.
Result: Appeals dismissed with costs.
Legal Category Hierarchy
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property law
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hindu law
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widow's estate
- legal necessity
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widow's estate
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hindu law
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evidence
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documentary evidence
- recitals
- attestation
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documentary evidence
Judgement
Consolidated Appeals from a judgment and eight decrees of the High Court
Law. Rep. 43 Ind. App. 249 ( 1915- 1916) Banga C handra Dhur Biswas V. Jagat Kishore Chowdhuri
117
(August 16, 1909) reversing a judgment and six decrees of the Subordinate Judge of Mymensingh (September 17, 1906).
The suits were instituted in 1905 by plaintiffs, now represented by the appellants, claiming that certain sales made by two Hindu widows between 1848 and 1865 were fraudulent and made without legal necessity, and for recovery of possession from the respondents. The material facts are stated in the judgment of their Lordships.
The Subordinate Judge held that the defendants had failed to show the existence of legal necessity ; he determined other issues in favour of the plaintiffs and made decrees accordingly. The High Court, holding that legal necessity was established, reversed the decrees and dismissed the suits.
1916. June 22. De Gruyther, K.C., and Sir W. Garth, for the appellants. The evidence did not establish legal necessity. There was no evidence of any decree against the deceased husband, and, except in one case, no evidence of the discharge of a creditor. Recitals of necessity in alienating deeds are not of themselves any evidence of its existence, and in the present case there was no valid evidence to support the recitals. [ Maheshar Baksh Singh v. Ratan Singh (( 1896) L. R. 23 Ind. Ap. 57.), Sham Sundur Lal v. Acchem Kunwar (( 1897) L. R. 25 Ind. Ap. 183.), and Birj Lal v. Indar Kunwar (( 1914) I. L. R. 36 Allah. 187.) were referred to.] The attestation of two of the deeds by Nanda Lal was no evidence that he consented to the alienation Hari Kishen Bhagat v. Kashi Pershad Singh .
(( 1915) L. R. 42 Ind. Ap. 64)
Sir Erle Richards, K.C., and Dunne, for the respondents. When there is other evidence the Court is entitled to give weight to the recitals. The nature and amount of the evidence necessary to establish necessity vary with the circumstances Hunooman-persaud Pandy v. Babooee Munraj Hunwar . (( 1856) 6 Moo. Ind. Ap. 393, 419.) In the present case, having regard to the length of time during which the deeds remained unchallenged, the smallness of the estate, and the right of the widows to maintain themselves, there was sufficient evidence. In Hari Kishen Bhagat v. Kashi Pershad Singh (L. R. 42 Ind. Ap. 64.) there were concurrent findings against the existence of legal necessity.
De Gruyther, K.C., replied.
July 17. The judgment of their Lordships was delivered by
LORD BUCKMASTER L.C. These six consolidated appeals arise out of six suits commenced by one Nanda Lal Dhur Biswas and Jogesh Chandra Chakravati, claiming against the various defendants possession of certain lands. The first-named plaintiff has died since the institution of the suits, and his representatives, together with the other plaintiff, are the present appellants.
The property in question formed the whole estate of one Braja Narayan, deceased, and was the subject of certain conveyances executed at various dates by one or both of his two widows. The first-named plaintiff alleged that he was the adopted son of Braja Narayan, but this claim, though supported by the Subordinate Judge, who decided in favour of the plaintiffs in all the suits, was rejected by the High Court, from whose judgment these appeals are brought, but it is not necessary to consider this question unless the conveyances can be set aside. Now it is clear that in the circumstances these conveyances cannot be supported unless it is established that the sales they purported to effect were made under circumstances of legal necessity, justifying the widows, who were only entitled to the usufruct of the property, in disposing of the entire estate.
Law. Rep. 43 Ind. App. 249 ( 1915- 1916) Banga C handra Dhur Biswas V. Jagat Kishore Chowdhuri
118
The burden of proving that the dispositions were lawful rests on the respondents see Maheshar Baksh Singh v. Ratan Singh . (L. R. 23 Ind. Ap. 57.)
The fac
