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1996 Supreme(Ori) 47
High Court Of Orissa
P. K. MISRA
GOLAKA CHANDRA NAYAK - Appellant
Versus
GOBINDA NAYAK - Respondent
Second Appeal 277 Of 1985
Decided On : 03/18/1996
B.PATNAIK, M.R.PATRA
Recitals in a sale deed can be evidence of legal necessity, especially when the transaction is old and the parties to the transaction are dead.
Headnote:
HINDU LAW - ALIENATION BY WIDOW - VALIDITY - LEGAL NECESSITY - RECITALS IN SALE DEED - EVIDENTIARY VALUE - PASSAGE OF TIME - EFFECT.
Fact of the Case:
Plaintiff, as the reversioner, challenged the validity of two sale deeds executed by Rajan Bewa, the widow of Pandab, who had inherited the property from her husband. The plaintiff claimed that the sale deeds were invalid as Rajan Bewa had no right to alienate the property and there was no legal necessity for the alienation. The trial court decreed the suit, holding that there was no evidence to prove legal necessity. However, the lower appellate court reversed the trial court's decision, finding that there was an amicable partition between the sons of Madan Naik, Rajan Bewa's father-in-law, and that Rajan Bewa had succeeded to the share of Pandab after his death and his three sons' deaths. The lower appellate court held that the plaintiff had nothing to do if Rajan Bewa sold her property to meet her day-to-day livelihood.
Finding of the Court:
The High Court found that the lower appellate court's finding that there was an amicable partition between the sons of Madan Naik was not disputed. The court also found that Rajan Bewa was a limited owner and that the alienee from such a limited owner had to plead and prove the existence of legal necessity in support of the transaction. The court held that the recitals in the sale deed, which stated that the property was being sold in order to maintain Rajan Bewa, raised inferences relating to the existence of legal necessity and that these recitals had not been rebutted by the plaintiff-appellant. The court concluded that the transaction was supported by legal necessity.
Issues: 1. Whether the lower appellate court erred in finding that there was an amicable partition between the sons of Madan Naik. 2. Whether the lower appellate court erred in holding that Rajan Bewa had succeeded to the share of Pandab after his death and his three sons' deaths. 3. Whether the lower appellate court erred in holding that the plaintiff had nothing to do if Rajan Bewa sold her property to meet her day-to-day livelihood. 4. Whether the recitals in the sale deed were sufficient to prove the existence of legal necessity.
Ratio Decidendi: 1. The High Court held that the lower appellate court's finding that there was an amicable partition between the sons of Madan Naik was not disputed. 2. The High Court held that the lower appellate court's finding that Rajan Bewa had succeeded to the share of Pandab after his death and his three sons' deaths was not disputed. 3. The High Court held that the lower appellate court erred in holding that the plaintiff had nothing to do if Rajan Bewa sold her property to meet her day-to-day livelihood, as the plaintiff was the reversioner and had a right to challenge the alienation. 4. The High Court held that the recitals in the sale deed, which stated that the property was being sold in order to maintain Rajan Bewa, raised inferences relating to the existence of legal necessity and that these recitals had not been rebutted by the plaintiff-appellant. The court concluded that the transaction was supported by legal necessity.
Final Decision: The High Court dismissed the plaintiff's second appeal, holding that the transaction was supported by legal necessity.
P. K. MISRA, J.
( 1 ) PLAINTIFF is the appellant against a reversing decision,
( 2 ) TITLE Suit No. 121 of 1974 was filed in the Court of the Munsif, Kendrapara, seeking for a declaration that the sale deed dated 28-7 1938 (Ext. 2) in favour of defendant No. 22 and sale deed dated 20-1-1939 (Ext. C) in favour of Nityananda, the predecessor-in-interest of defendants 1, 2 and 3, executed by Rajan Bewa, are invalid and inoperative and for declaration of plaintiffs title in respect of Schedule B and C properties; recovery of possession of the Schedule B and C properties if the plaintiff is found to have been dispossessed therefrom and permanent injunction restraining defendants 1, 2 and 22 from interfering with the possession of the plaintiff. A long genealogy has been appended as Schedule A to the plaint. Though initially there was some dispute regarding the correctness of the genealogy, at the time of trial as well as in the first appellate Court, the said genealogy has been accepted to be correct. So far as relevant for the purpose of the present appeal, suffice it to say that Nanda Naik had four sons, namely Pankaj, Sadei, Binod and Madan. The contesting defendants 1 to 3 as well as defendants 4 to 9 (who were set ex parte in the trial Court) represent the branch of Pankaj. Defendants 10 to 14 (who were set ex parte) represent the branch of Sadei and defendants l 5 to 21 (who also did not contest) represent the branch of Binod. So far as Madan is concerned, the genealogy relating to his branch is extracted hereunder: - (See table below) According to the plaintiff's case, the disputed properties along with other properties representing 4 annas share in the property of the original ancestor Nanda fell to the share of Madan in an amicable partition amongst the four sons of late Nanda. Karuni and Rangadhar expired leaving behind the plaintiff. Bimbadhar died leaving his only son Pandab, who died leaving behind his three sons, Gani, Guru and Dura and widow Rajan Bewa. It is not disputed that Pandab and his three sons pre-deceased Rajan Bewa prior to 1934. Fakir, the third son of Madan died leaving behind Panchu who expired issueless. Accordingly, it is alleged that interest of branches of Bimbadhar and Karuni devolved on Rangadhar and thereafter on the death of Rangadhar twenty years prior to filing of the suit, devolved on the plaintiff as the only heir. It is further alleged that Rajan Bewa had no right, title and interest in the disputed property and she was all along staying with Rangadhar, the father of the plaintiff and thereafter with the plaintiff till her death about ten years prior to the filling of the suit. The further case of the plaintiff is that defendant No. 22 taking advantage of the illiteracy and innocence of Rajan Bewa obtained Sale deed dated 27-7-1938 from her in respect of 'b' Schedule lands. Similarly, Nityananda Naik, father of defendants 1 and 2, prevailed upon Rajan Bewa and obtained sale deed dated 20-1-1939 in respect of 'c' schedule property which, in fact, corresponds to Lot. No. 1 of 'b' Schedule properties. It is alleged that the sale deeds were inoperative as Rajan Bewa had no interest in the property. Moreover, even assuming that Rajan Bewa had any right, she being a limited owner, had no right to alienate the property and as there was no legal necessity for the alienation of the disputed lands in favour of defendant No. 22 and late Nityananda, the transactions were not binding. It is further alleged that after the death of Rajan Bewa, defendants 1 and 2 threatened to dispossess the plaintiff from the suit land and the plaintiff for the first time learnt about the so-called sale deeds in the year 1974 and was forced to file the suit. During the pendency of the suit, defendant No. 22 having expired, his loyal representatives were impleaded as defendants 22-ka to 22-gha. Subsequently vide order dated 30-4-1979, the plaint was amended and Lot No. 2 of 'b' Schedule was deleted. As such the suit remain
