14 October 1970
Supreme Court


Case number: Appeal (civil) 1943 of 1966






DATE OF JUDGMENT: 14/10/1970


CITATION:  1971 AIR 1028            1971 SCR  (2) 603  1970 SCC  (3) 722

ACT: Hindu   Law-Legal  necessity-Proof  of-Recitals   in   deed, evidentiary value of.

HEADNOTE: 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  cer- tificate, this Court. 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 entered into. 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 circum- 604 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]

JUDGMENT: 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 appellants. 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  life- time 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, agree- ing  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 posses- sion 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 property 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 was  paid". 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 reliable evidence. 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.  101/-. 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 insistance must be  consi- dered.  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. Y.P.                                         Appeal allowed. 61 1