Rani & ANR Vs. Santa Bala Debnath
& Ors  INSC 215 (14 October 1970)
14/10/1970 SHAH, J.C.
CITATION: 1971 AIR 1028 1971 SCR (2) 603 1970
SCC (3) 722
Hindu Law-Legal necessity-Proof of-Recitals
in deed, evidentiary value of.
S. a Hindu female governed by Dayabhaga
system of law, executed a sale-deed. It was recited in the agreement that she
agreed to sell "on account of financial need and to pay off certain
debts". After her death her sons filed a suit for a declaration that the
sale-deed was not binding on them as it was executed without legal necessity.
The Trial Court held that the sale deed was supported by legal necessity.
The Court also observed that the contention
that there was fraud, misrepresentation and undue influence was not seriously
pressed as there was no evidence 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 execute the sale deed because
of persuation and undue influence had to be accepted. In appeal by certificate,
HELD : (i) The Appellants-defendants had
amply made out that the sale deed was supported by legal necessity. The
observations of the High 'Court were not supported by any evidence and they
seriously vitiated the appreciation of the evidence on record.
(ii) 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
confide enquiries about the existence of the necessities and that he did all
that was reasonable to satisfy himself as to the existence of the necessity.
[608 D] 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
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 alience, 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. In 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 circum604 stance that the heirs
of the 10th defendant are not impleaded in their appeal does not affect the
right of the defendants to claim the appeal must be dismissed. [610 C]
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 1943 of 1966.
Appeal from the judgment and decree dated
March 7, 1962 of the Calcutta High Court in Appeal from Original Decree No.
173 of 1956.
S. V. Gupte and D. N. Mukherjee, for the
Purushottam Chatterjee, P. K. Chatterjee and
Rathin Das, for respondent No. 2.
The Judgment of the Court was delivered by
Shah, J. One Sashi Bhusan was possessed of a piece of land at Mouza Behala
District 24-Parganas admeasuring 98 acres.
The land devolved on the death of Sashi
Bhusan in 1920 upon his daughter Sarala. Under the Dayabhaga system of law;
Sarala inherited the property of her father
as a limited owner. Sarala married Kunja Behari. The latter died in 1937
leaving him surviving Sarala, two sons Tulsi and Gobinda, and four daughters
were married during the lifetime of Kunja Behari. Kunja Behari left no estate
except a residential house constructed on the land at Mauza Behala.
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, agreeing to sell a part of the land (.90 acres) for Rs. 1,100/to
Chapalabala wife of Sakha 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 earnest money. It appears that Sarala was for some time
thereafter disinclined to carry 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 debts and out of other legal necessity, I announced to sell 90
acre land at rent of Rs. 23/per annum free from defects and encumbrances
leaving a 605 portion of homestead land measuring. 08 acre." It was also recited
in the deed that Rs. 101/were paid on the date of the agreement of sale, that
Sarala had received 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 arrears. It also appears that before the date of sale
Mangala 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-Parganas, for a decree declaring that the sale deed dated
March 13, 1942, executed by Sarala was not binding upon the plaintiffs, because
it was executed without legal necessity. The suit was resisted by Chapalabala
and Banikana (defendants 1 & 2) and by alianees of the land from 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, to 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 undue influence was not
seriously pressed "inasmuch as there was no evidence worth the name
adduced" to support that case.
Against the decree dismissing the suit the
plaintiffs appealed to the High Court. In. the view of the High Court there was
"no such serious and sufficient pressure on the estate" of Sarala as
to compel her to sell her property, and the case of the plaintiffs that she was
induced to do so "by persuasion and undue influence" of Sakha Nath
Ghosh husband of defendant I must be accepted. The High Court also 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 was not proved and
on that account the sale deed executed by Sarala was not binding upon the
plaintiffs. But because one Dhiren Chandra an intermediate transferee was not
made party to the suit and Dhiren Chandra had obtained a fresh settlement the
High Court was of the opinion that the decree of the Trial Court in respect of
10 cotta has out of the 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 land. The
plaintiffs were given by the decree opportunity to 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
respect of the portion of the land not covered by 10 cottahs in possession of
defendants 4, 5, 6 and 16. With certificate granted by the High Court, the
heirs of original defendants 2 and 3 have appealed to this Court.
In the plaint it was averred in paragraphs
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 "officer" of one of the partner of the
famous Roy family and was "shrewd and cunning", that Sarala called
him "Dharamapita", and ustd to "depend upon him in many
affairs" 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 undue influence over Sarala and
got the sale deed executed in their favour.
This plea was denied by the contesting
defendants. At the trial no issue was raised and no evidence was led in support
of that plea. It was conceded that the 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 undue influence exercised for the
execution and registration of the Kobala (sale deed) yet that branch of
argument was not seriously pressed inasmuch as there was no evidence worth the
name adduced to show that there was really any fraud practised for the
execution and registration of the kobala in favour of defendants 1 and 2
(Chapalabala and Banikana) by Sarala Bala Dasi." The 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 collector under one of Roy Babus of
Behala, in order to grab the 607 valuable properties 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 expressly recited
that Rs. 101/were paid at the time of the agreement of sale. That recital was
supported 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 documentary 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
discharge 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 that
about the payment of the balance of the consideration, namely Rs. 899/-,
"there was no evidence at all on the side of the defendants that the same
In our judgment, the High Court misconceived
the nature of the onus which lay upon the plaintiffs to prove that the
consideration which it was recited in the deed was received by Sarala was not
in fact received by her and a false recital was made. The recitals in the deed
are supported by the testimony of Sailendra Nath Nandi 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 agreement of sale and the sale deed were
attested by Gobinda son of Sarala. Before us it was contended that Gobinda was
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
Jogindra Nath Mondal who wrote the two deeds
was examined on behalf of the defendants. He deposed that Ext. E-the agreement
of sale-was read over and the contents were explained to Sarala after it was
written, and she understood the implications of the deed and also received Rs.
In his cross-examination 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 disbelieve the testimony of this witness. Abinash Chandra 608
Chakravarty who attested the sale deed-Ext. C-and the agreement 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 examined on behalf of the plaintiffs stated that the family of the
plaintiffs 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 reposed 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 established by the alienees. Sarala owned the land in dispute as a
limited owner. 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 on the estate, the danger to be
averted, and the benefit to be conferred upon the estate in the particular insistence
must be considered. 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 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 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.
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 which
Sarala had inherited from her father. Sarala had two sons 609 who were then
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 Tulsi the eldest son obtained gainful employment
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 perform 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
corroborated by the circumstances.
Mr. Purshottam Chatterjee appearing on behalf
of the plain-tiff's contended that there was evidence only of the debts
amounting to 75/-, Rs. 25/as rent for the land payable 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 evidence
that in the community to which Sarala belonged, the marriage of a daughter only
costs Rs. 50/-. That evidence, in our judgment, 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 supported by any reliable evidence. In our judgment,
the High Court ignored the strong inference which arose out of these
Circumstances and especially out of the participation by Gobinda in the
execution of the agreement of sale and the sale deed.
In our view 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 was executed
for legal necessity. From the attestation by 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 of the opinion that the level necessity
set up by the defendants 1 and 2 is amply proved.
It was urged before us that because the 10th
defendant died before the certificate was given by the High Court for appeal
to, 610 this Court, and the heirs of the 10th defendant were not brought on the
record, the appeal abates in its entirety.
There is, however, 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
alienation 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 that the heirs of the
10th defendant are not impleaded in this appeal does not affect the right of
the defendants 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.