Judgment:
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 plaintiff's 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 initiallythere 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' 15 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: --
Madan
________________|_______________
| | |
Karuni Bimbadhar Fakir
| | |
Rangadhar Pandab Panchu
| = Rajan Bewa
| |
Golak _____|____
(Plaintiff) | | |
Gani Guru Dura
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 filing 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 legal 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 remained confined to 'B' Schedule, Lot No. 1, which corresponds to 'C' Schedule.
3. Defendants 1, 2 and 3 who are admittedly the successor-in-interest of Nityananda have alone contested the suit by filing a joint written statement. Though they had challenged the correctness of the genealogy initially in the written statement, the correctness of genealogy was accepted at the time of trial. It is asserted in the written statement that Rajan Bewa had 2 annas share having succeeded to the same after the death of her husband and three sons. Being hard-pressed for money and as she was continuously ailing, she had transferred 'C' Schedule land in favour of Nityananda and the alienations were valid and binding and possession had been delivered.
The other defendants did not contest the suit. The legal representatives of originaldefendant No. 22 did not contest the suit presumably because they had no stake in the matter, inasmuch as a sale deed had been executed by original defendant No. 22 in favour of defendants 1 and 2 on 30-8-1974, a few days prior to the presentation of the plaint on 7-9-1974.
4. The trial Court decreed the suit on a finding that there was no evidence to prove that Rajan Bewa was living separately from plaintiff and there was no proof that the property had been transferred for legal necessity. Accordingly, the trial Court held that the two sale deeds were invalid.
5. In Title Appeal No. 33 of 1979 filed by defendants 1 to 3, the lower appellate Court has reversed the judgment of the trial Court on a finding that there was an amicable partition between the sons of Madan Naik and they possessed their respective shares and Rajan Bew alone succeeded to the share of Pandab after the death of Pandab and his three sons and plaintiff has nothing to do if Rajan sold her property to meet her day to day livelihood. The aforesaid judgment of the lower appellate Court reversing the decision of the trial Court is under challenge in this second appeal.
6. On 19-6-1986 while admitting the appeal, the following question of law had been framed:--
'Whether the appellate judgment is vitiated on account of non-consideration of all the ingredients of legal necessity?'
This Court dispensed with service of notice on respondents 7 to 29. Defendants 1 and 2 are respondents 1 and 2 respectively whereas respondents 3 to 6 are the legal representatives of the original defendant No. 22. In the memorandum of second appeal, aground has been taken that Poka Bewa, original defendant No. 3 and appellant No. 3 in the lower appellate Court, having expired during the pendency of the title appeal, there was abatement of the appeal in the lower appellate Court.
In course of hearing of this appeal, the aforesaid ground No. 3 has not been pressedinto service, presumably because on Poka Bewa's death, her interest in the property devolved upon defendants 1 and 2 in accordance with Section 15 of the Hindu Succession Act, inasmuch as she had inherited the property from her husband and on her death without any issue the same was inherited by the heirs of her deceased husband.
Apart from the question of law framed at the time of admission, Mr. B. Patnaik, learned counsel for the appellant, has also contended that Nityananda, the purchaser under Ext. C, not being a member of the family of the plaintiff and Rajan Bewa in respect of their undivided dwelling house was not entitled to common enjoyment of the share purchased in homestead land and should be injuncted under Section 44 of the Transfer of Property Act and the plaintiff is entitled to relief under Section 4 of the Partition Act. This question he had raised in ground No. 2 of the memorandum of appeal.
7. Coming first to the last question, the contention raised by Mr. Patnaik for the first time in second appeal being a mixed question of fact and law cannot be permitted to be raised in second appeal. Mr. Patnaik in support of his contention that such a question can be raised for the first time in appeal has placed reliance on the decisions reported in AIR 1968 Cal 380 (Birendra Nath Banerjee v. Smt. Snehalata Devi) and AIR 1943 Peshawar 79 (Mian Jaffar Shah v. Mt. Bibi Gulla D/o Mohd. Shah), wherein the question of relief under Section 4 of the Partition Act was permitted to be raised for the first time in appeal. In those cases, the facts were not in dispute and as such only a pure question of law, namely applicability of Section 4 of the Partition Act, was permitted to be raised in appeal arising out of suit for partition.
As observed in the case of Alekha Mantri v. Jagabandhu Mantri, AIR 1971 Orissa 127, in order to attract the provision of Section 4 of the Partition Act, four conditions should be satisfied, namely (i) the house should be owned by an undivided family; (ii) the share of a co-sharer therein should have been transferred to a person who is stranger to thefamily; (iii) the transferee should have sued for partition; and (iv) a member of the family being share-holder claims and undertakes to buy the share of the stranger transferee. In the present case, the question of applying Section 4 of the Partition Act cannot arise at all, as no suit for partition has been filed. Of course, it is true that the relief under Section 4 of the Partition Act can be granted even where the suit for partition is brought by co-sharer himself and not by the stranger-transferee. In the facts of this case, such a prayer advanced by the counsel for the appellant for the first time at the second appellate stage in a suit by a reversioner for title and possession appears to be misconceived.
The question of applying Section 44 of the Transfer of Property Act may stand on a different footing, as the relief under Section 44 is not confined to a suit for partition. There are authorities to show that even where a stranger transferee of a share of a dwelling house belonging to an undivided family has entered into possession, injunction can be granted to keep him out of possession. However, as Section 44 itself lays down, such a question would arise only when one co-sharer alienates his share in the dwelling house and right is vested in other co-sharers in respect of the dwelling house to keep out such stranger purchaser from possessing the dwelling house either jointly or exclusively. In view of the finding in the present case that there had been an amicable partition among the three sons of Madan, and they possessed their shares separately, it cannot be said that the plaintiff was a co-sharer in respect of the dwelling house which has been sold by Rajan Bewa, Merely because, the plaintiff's ancestor was once a co-sharer of the alienee's predecessor-in-interest, it cannot be said that the plaintiff was a co-sharer in respect of the dwelling house so as to attract the provision of Section 44 of the Transfer of Property Act. If the plaintiff can be considered as co-sharer of the alienor, applying and extending the same logic defendants 1 to 3 cannot be considered to be stranger as admittedly, the plaintiff, the alienor and defendants 1 to 3 arc the successor-in-interest of the same common ancestor. The suit itself purports to be by a reversionerclaiming succession as an heir to the disputed property and challenging the alienation by the limited owner, namely Rajani Bewa on the ground that there was no legal necessity. There is no scope for entertaining such a question for the first time at the second appellate stage.
That apart, if at all the plaintiff's predecessor-in-interest was a co-sharer of Rajan Bewa in respect of dwelling house in 1939 at the time of alienation, he had a cause of action then to invoke the provisions of Section 44 of the Transfer of Property Act and could have taken steps to injunct the socalled stranger purchaser from entering into possession. It would be indeed a parody of justice to permit the plaintiff to raise such a question at such a belated stage for the first time in Second Appeal and thereby prevent the defendants from possessing a property which seems to be under their possession for more than a half century by now. Thus neither in law nor in equity the plaintiff can succeed by applying principles of Section 44 of Transfer of Property Act. Moreover, in view of the finding of fact that there was partition the contention is bound to fail.
8. Now coming to the question of validity of the transactions on the ground of lack of legal necessity, there is no such constraint. An alienation by a limited owner can be binding if it is supported by legal necessity. Any alienation by widow (of course where she is a limited owner) is not binding on the reversioners. However, in such cases the purchaser has the right to enjoy the property alienated during the life of the widow. The reversioners in such a case can immediately sue for declaration that the alienation is not binding on them. Even without filing such declaratory suit, the nearest reversioner can sue for possession on the basis of succession after the death of the widow, as in the present case. Therefore, the moot question as to whether the alienation were binding on the reversioners now falls for consideration.
9. As already indicated, the lower appellate Court has arrived at a firming that there was amicable partition between the sons of Madan Naik. It is not disputed that Pandaband his sons had pre-deceased Rajan Bewa, who succeeded to the separate property prior to the Hindu Women's Right to Property Act, 1937. Undoubtedly, she was a limited owner. The alienee from such a limited owner has to plead and prove the existence of legal necessity in support of the transaction. In the present case, the trial Court came to the conclusion that there was no legal necessity in support of the transaction. Though the lower appellate Court has not categorically come to any conclusion in so many words regarding existence of legal necessity, it has observed:-
'..... .I am convinced that there wasamicable partition between the sons of Madan Naik and they possessed their shares separately since long and when Rajani Bewa admittedly is the widow of Pandab and she survived Pandab and during her life time her three sons also died, naturally the property of Pandab will devolve on her alone and, therefore, the plaintiff-respondent No. 1 has nothing to do if said Rajani sells her property to meet her day to day livelihood'
In other words, the lower appellate Court seems to have come to a tentative conclusion that there was legal necessity in support of the alienation.
It is strenuously contended by the learned counsel for the plaintiff-appellant that there is no material in support of such a finding of the lower appellate Court. He further contended that though in the sale deed, there are recitals of existence of legal necessity, such recitals in the sale deed do not by themselves prove legal necessity. He has placed reliance on the decisions reported in AIR 1971 SC 1028 (Smt. Rani v. Smt. Santa Bala Debnath) in support of the aforesaid contention. In the said decision, it has been observed as follows (Para 11):--
'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 recitalsvaries 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.'
The learned counsel for the respondents, on the other hand, submits that the impugned transactions being very old and the parties to the documents being dead, it is not expected that direct evidence in support of existence of such legal necessity, or of reasonable enquiry by the vendee relating to the existence of such legal necessity would be available and as such, the recitals in the sale deed may be considered to be sufficient. He has placed reliance on the decision reported in AIR 1916 PC 110 (Banga Chandra Dhur Biswas v. Jagat Kishore Achariya Chowdhuri), which has been subsequently followed in the decisions reported in AIR 1930 Cal 508 (Upendra Nath Mukherjee v. Gurupada Halder) and AIR 1938 Cal 541 (Lakshmi Narayan Jiu Thakur v. Jagadish Chandra Sur). In fact, though there is no reference in the decision of the Supreme Court reported in AIR 1971 SC 1028 to the decision of the Privy Council reported in AIR 1916 PC 110, it is obvious that the law as enunciated in the Supreme Court decision has been culled out from the decision in AIR 1916 PC 110. In the Privy Council decision (AIR 1916 PC 110), it has been observed:--
'..... .but it is well established that suchrecitals cannot by themselves be relied upon for the purpose of proving the assertions of fact which they contain. Indeed it is obvious that if such proof were permitted the rights of reversioners could always be defeated by the insertion of carefully prepared recitals. Under ordinary circumstances and apart from statute, recitals in deeds can only be evidence as between the parties to the conveyance and those who claim under them.'
It has been further observed:--
'.....If the deeds were challenged at the time or near the date of their execution, so that independent evidence would be available, the recitals would deserve but slight consideration, and certainly should not be accepted as proof of the facts. But, as time goes by, and all the original parties to the transaction and all those who could have given evidence on the relevant points have grown old or passed away, a recital consistent with the probability and circumstances of the case, assumes greater importance, and cannot lightly be set aside; for it should be remembered that the actual proof of the necessity which justified the deed is not essential to establish its validity. It is only necessary that a representation should have been made to the purchaser that such necessity existed, and that he should have acted honestly and made proper enquiry to satisfy himself of its trum. The recital is clear evidence of the representation, and, if the circumstances are such as to justify a reasonable belief that an enquiry would have confirmed its truth, then when proof of actual enquiry has become impossible, the recital, coupled with such circumstances, would be sufficient evidence to support the deed. To hold otherwise would result in deciding that a title becomes weaker as it grows older, so that a transaction -- perfectly honest and legitimate when it took place --would ultimately be incapable of justification merely owing to the passage of time.'
In the present case, the sale deed of the year 1939 was sought to be challenged after about 35 years. Admittedly, the vendor and the vendee are dead and it is nobody's case that any other witnesses to the transaction is still alive. The assertion of the plaintiff that widow Rajan was living with plaintiffs father and thereafter with the plaintiff himself has not been accepted by the lower appellate Court. The recital in the sale deed to the effect that in order to maintain herself the property was being sold appears to he consistent with the circumstances as there is no evidence of any independent source of income so far as the widow is concerned. In such circumstances, relying upon the recitals in the sale deed which raise some inferences relating to existence of legal necessity, as held by the Calcutta HighCourt in the decision reported in AIR 1930 Calcutta, 508 (supra) and as the said recitals have not been rebutted in any manner by the plaintiff-appellant, it must be hed that the transaction was supported by legal necessity.
10. In view of the foregoing discussions, I find no merit in this second appeal, which is accordingly dismissed, but in the circumstances, without any order as to costs.