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Case Number

Second Appeal No. 768 of 1929.

Attorney(S)

Mr. T. V. Muthukrishna Ayyar for the Appellant.
Mr. A. Ganesha Ayyar for the Respondent.

Judges

Pukenham Walsh, J.

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Smart Summary

Structured Summary of the Provided Opinion

Factual and Procedural Background

The suit was brought by a reversioner seeking to set aside an alienation (sale/transfer) of certain suit properties on the ground that the alienation was not for necessary purposes binding on the reversion. The properties originally belonged to Subbarama Aiyar, who died in 1892. In 1894 his widow Krishnammal executed an alienation in favour of Sankari Ammal (the wife of Krishnammal's brother). Krishnammal died in 1925. She had a daughter, Rukmani Ammal (by Subbarama Aiyar), who married the son of the brother whose wife received the alienation; Rukmani died in 1915, leaving a daughter (the 1st defendant).

Procedurally, the trial Court found the 1894 alienation to be a sham and decreed the plaintiff's suit. On appeal, the lower appellate Court reversed that finding, holding the transaction genuine and binding on the estate, and dismissed the suit. The plaintiff instituted the present second appeal from that appellate decree.

The plaintiff's second appeal advances three principal grounds: (1) the appellate Court wrongly relied on the recitals in the ancient alienation document as proof of necessity despite the existence and testimony of attestors and other contemporaneous witnesses; (2) the appellate Court wrongly placed on the plaintiff the burden of proving that funds were available from the estate for the widow to meet her needs; and (3) litigation expenses, which constituted the bulk of the consideration for the sale, were not binding on the estate.

Legal Issues Presented

Whether recitals in an ancient instrument (more than 30 years old) may be relied on as evidence of necessity for an alienation when the vendor and vendee are dead but certain attestors and contemporaries are still alive and have given evidence.
Whether the lower appellate Court improperly shifted the burden of proof to the plaintiff to establish that the deceased left sufficient property (cash or movables) from which the widow could have met her expenses, rather than the appellant bearing the onus of proof on necessity of the alienation.
Whether litigation expenses incurred by the widow (which constituted a large portion of the consideration for the alienation) amounted to a legal necessity binding on the estate and therefore justified the alienation.

Arguments of the Parties

Appellant's (Plaintiff's) Arguments

The lower appellate Court wrongly relied on the recital in the ancient alienation document (Ex. I) as evidence that the alienation was for necessity, despite the fact that two attestors and contemporaries (including the widow's sister) were alive and had been examined.
The appellate Court improperly cast upon the plaintiff the burden of proving that Subbarama Aiyar left sufficient property (cash or movables) from which the widow could have met her needs, rather than requiring proof from the defendants that the alienation was necessary.
The litigation expenses, which formed the bulk of the consideration for the sale, were not a legal necessity binding on the estate and therefore could not justify the alienation.

Respondents' / Lower Appellate Court's Position (as reflected in the opinion)

The recitals in the ancient instrument could be relied upon because both vendor and vendee were dead and no other evidence showing enquiries made by the vendee or representations was available; the appellate Court followed principles set out by higher authority.
The appellate Court accepted contemporaneous testimony (including that of attestors like D.W.1 and defendant's 3rd witness) that the promissory notes (pronotes) existed, and thus it was entitled to accept the truth of the deed's recitals.
The widow's litigation expenses — incurred in defending criminal charges (forgery) and in proceedings to recover documents — constituted a legal necessity for raising funds. The appellate Court relied on precedent that such expenditure in defence of criminal cases can bind the estate and that the necessity does not depend on the outcome of the trial.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Banga Chandra Dhur Biswas v. Jagat Kishore Acharya Chowdhuri (1916) L.R. 43 I.A. 249 : I.L.R. 44 Cal. 186 : 31 M.L.J. 563 (P.C.)	Principles regarding the use of recitals in ancient documents where vendor and vendee are dead and the kind of evidence that is usually unavailable in such cases.	The lower appellate Court's approach (relying on the recitals) was endorsed as consistent with these Privy Council principles; the Court distinguished evidence about enquiries/representations (usually unavailable) from evidence about actual necessity (which must be scrutinised).
Ram Narain v. Nandrani Kunwar (1928) I.L.R. 50 All. 823	Used alongside the Privy Council authority to explain the evidentiary approach to ancient transactions when principal parties are dead.	Supported the appellate Court's reliance on the deed's recitals in the absence of other enquiring-evidence from vendor/vendee.
Indar Kuar v. Lalta Prasad Singh (1882) I.L.R. 4 All. 532	Authority cited by the appellant for the proposition that certain litigation-related expenses are not binding (as argued by appellant).	The Court held this precedent "is not applicable to litigation of this sort," rejecting the appellant's reliance upon it for the particular litigations described in this case.
Dhanukdhari Singh v. Rambirich Singh (1921) I.L.R. 1 Pat. 171 at 173	Holds that money spent in defence of criminal cases against family members can amount to a legal necessity binding on the estate, and that necessity should not depend on the outcome of the trial.	The Court applied this principle to hold that Krishnammal's defence expenses (in relation to alleged forgery and related criminal proceedings) could justify raising a loan and therefore could bind the estate.
Raja of Pittapur v. Secretary of State for India (1929) L.R. 56 I.A. 223 : I.L.R. 52 Mad. 538 at 547 : 57 M.L.J. 64 (P.C.)	Privy Council remarks on the scope of appellate interference in second appeals and the standard for overturning a reversing judgment of a lower appellate Court.	The Court invoked these remarks to explain reluctance to interfere in second appeal unless the lower appellate Court had manifestly failed to take into account material evidence to an extent that would justify interference.
Khwaja Muhammad Khan v. Husaini Begam (1910) L.R. 37 I.A. 152 : I.L.R. 32 All. 410 at 412 : 20 M.L.J. 614 (P.C.)	Authority criticizing lower courts for expressing mere "suspicion" about serious charges where evidence is insufficient; such expressions are improper in judgments.	The Court used this precedent to condemn and require deletion of an improper, unsupported remark by the trial Court implying an illicit liaison without evidence.

Court's Reasoning and Analysis

The Court proceeded through the appellant's three principal contentions in sequence, adhering closely to the facts and precedent cited in the record.

Reliance on recitals in the ancient deed (first contention)
The Court observed that the lower appellate Court had set out established law (citing the Privy Council and relevant authorities) distinguishing two categories of evidentiary difficulty in ancient transactions: (a) evidence as to whether the vendee made enquiries or what representations were made (this evidence is usually unavailable when both vendor and vendee are dead), and (b) evidence as to the actual necessity for the loan (which can still be scrutinised when contemporaneous evidence is available). Because no evidence of enquiries by the vendee was alleged to exist here, the appellate Court's reliance on the deed's recitals was not a misdirection.
Existence and effect of pronotes (related to first contention)
The deed recited consideration of Rs. 800 composed of three promissory notes, cash and sums taken at registration. The trial Court found non-production of pronotes indicative of a sham. The appellate Court, however, heard testimony from an attestor (D.W.1) and another witness who attested one pronote, accepted their evidence that the pronotes existed, and therefore accepted the recitals as true. The present Court found the appellate Court entitled to accept that testimony and not to have misdirected itself by relying on the recitals.
Burden of proof regarding availability of estate funds (second contention)
The Court reviewed the pleadings and findings: the plaintiff had alleged in the plaint that Subbarama Aiyar left considerable properties (specified). Both the trial Court and the lower appellate Court discredited plaintiff's witnesses regarding the financial position of Subbarama Aiyar, finding that his long illness had probably exhausted properties except the lands, and noting the small sum shown in the succession certificate (Rs. 9-3-7). The present Court held that the lower appellate Court did not impermissibly shift the burden of proof onto the plaintiff; rather, the appellate Court reached its finding after evaluating and discrediting the plaintiff's evidence.
Litigation expenses as necessity (third contention)
The Court examined the two litigations involving Krishnammal. The first was a theft charge she brought to recover documents; the accused pleaded rights as undivided with the deceased and were acquitted (judgment not exhibited). The second was a criminal accusation of forgery concerning a bond Krishnammal sought to enforce; she had to defend herself and incurred expenditure that necessitated the alienation. The Court held Indar Kuar v. Lalta Prasad Singh inapplicable to these particular litigations. Applying Dhanukdhari Singh v. Rambirich Singh, the Court accepted that expenses incurred in defence of criminal cases against family members can constitute a legal necessity binding on the estate and that necessity should not be made to depend upon the result of the trial. The Court considered this a strong case for necessity because the bond in question related to the husband's estate and the widow was ultimately discharged.
Other points and improper trial-court remark
The Court acknowledged that the appellate Court's reversing judgment could be criticized for not discussing some matters as fully as possible, but found no omission sufficient to justify interference in second appeal under the standards cited from Raja of Pittapur. The Court also found a particular remark in the trial Court's judgment (suggesting a liaison between a living defendant and the deceased Rukmani) to be improper and unsupported by evidence. Relying on Khwaja Muhammad Khan v. Husaini Begam, the Court held such expressions of "suspicion" without evidence to be improper and ordered that the remark be deleted.

Holding and Implications

Disposition: The appeal is dismissed with costs.

Implications: The lower appellate Court's decree (which found the 1894 alienation genuine and binding on the estate and dismissed the plaintiff's suit) stands. The reversioner's attempt to set aside the alienation failed; the alienation remains effective as upheld by the appellate Court. The Court applied established precedent to the facts but did not announce a new legal principle; rather it affirmed application of authorities concerning reliance on recitals in ancient deeds, the evidentiary approach to necessity, and the binding character of defence litigation expenses on the estate.

Note: This summary is based exclusively on the information contained in the provided opinion and does not introduce facts or interpretations beyond that text.

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Krishna Ayyar v. Muthulakshmi Ammal

1. This was a suit by a reversioner to set aside an alienation in respect of the suit properties on the ground that the alienation was not for necessary purposes binding on the reversion. The property belonged to one Subbarama Aiyar who died in 1892. The alienation was made by his widow Krishnammal in 1894 in favour of the wife of her brother. This Krishnammal died in 1925. She had one daughter Rukmani Ammal by Subbarama Aiyar, who ultimately married the son of the brother in whose wife's favour she had demised the properties. This Krishnamma's daughter Rukmani died in 1915 leaving behind one daughter, the 1st defendant. The trial Court found that the alienation made by Krishnammal in favour of her brother's wife, Sankari Ammal, was a sham transaction and decreed the plaintiff's suit. On appeal the lower appellate Court found that the transaction was genuine and was for purposes binding on the estate and dismissed the suit. Against this decree the present second appeal has been preferred by the plaintiff. Three main grounds have been taken: (1) that the lower appellate Court has raised a wrong presumption that the recital in the document of alienation Ex. I, which is more than 30 years old, can be used as evidence that the alienation was for necessity. It is objected that this principle cannot be applied because two of the attestors are alive and have been examined and the sister of the widow the 2nd defendant who is said to have been one of the people who arranged the alienation has also given evidence.

2. Secondly, it is urged that the lower appellate Court has wrongly thrown on plaintiff the burden of proof that there were funds available from the estate to the widow from which she could have met the necessary expenses. The third ground taken is that the litigation expenses which formed the bulk of the consideration for the sale were not binding on the estate.

3. Taking the first matter I do not think that the lower appellate Court has misdirected itself on this point. It sets out the law in paragraphs 22, 23, 24 and 25 of its judgment not using its own words but words of the Privy Council in Banga Chandra Dhur Biswas v. Jagat Kishore Acharya Chowdhuri (1916) L.R. 43 I.A. 249 : I.L.R. 44 Cal. 186 : 31 M.L.J. 563 (P.C.) and Ram Narain v. Nandrani Kunwar (1928) I.L.R. 50 All. 823. It is necessary to distinguish the sort of evidence which is not available when both the vendor and the vendee are dead and the sort of evidence which may still be available as regards the necessity for the loan. In so far as the question is whether the vendee made enquiries as to the necessity for the loan and what representations the vendor or others made to him it is clear that both the vendor and the vendee being dead, and the transaction being an ancient one, evidence will not be usually available on this point unless possibly the evidence of some other person from whom the vendee made enquiries. It is not alleged that there is any such evidence available in this case. I do not consider therefore that with reference to this point the lower appellate Court was wrong in relying on the recitals in the document.

4. With regard to the actual necessity for the loan there being evidence available there is no doubt that it is this which must be scrutinised. The Lower Court has done this. The consideration for the alienation was alleged in the deed to be Rs. 800. It may be noted in the first place that the trial Court itself has found in paragraph 21 that this was not an under-valuation. This Rs. 800 was made up of a pronote for Rs. 100 executed in favour of the vendee on 10th July, 1892, which with interest came to Rs. 126, of a second promissory note dated 30th August, 1892, executed by the vendor in favour of the vendee which amounted with interest to Rs. 248-8-0 and of a third promissory note executed by the vendor Krishnammal in favour of her sister Mathurambal (2nd defendant) for Rs. 200 which with interest amounted to Rs. 237-8-0; a sum of Rs. 13 was received in cash on the day of the execution of the document for the expenses of Krishnammal and a sum of Rs. 175 was received before the Sub-Registrar at the time of the registration of the document-These pronotes are said to have been handed over to the vendee and the non-production of them was one of the grounds relied upon by the trial Court for holding that the transaction was a sham. The trial Court says in paragraph 12 of its judgment:

As it was not intended that the sale should be a real sale, care was not taken to have the promissory notes recited by the sale deed to have been discharged brought into existence.

5. With regard to this matter the lower appellate Court says in paragraph 32 of its judgment:

Those pronotes have not been produced nor is it surprising that at this distance of time that the 1st defendant is not able to produce them. From the mere omission to produce them I am unable to find that they did not exist.

6. Then it proceeds to consider the evidence of D. W. 1, the attestor to the sale deed and also of the defendant's 3rd witness who attested one of the pronotes and accepts the evidence of these witnesses that the pronotes were in existence thereby reaching a conclusion opposite to that reached by the trial Court. So when it is argued that the lower appellate Court should have taken the evidence available into consideration instead of acting on presumptions, it is seen that it has taken that evidence into consideration and it was perfectly entitled to accept it as proving the truth of the recitals in the document. I cannot find there, fore that it has misdirected itself on this matter.

7. The next objection is that it has thrown on the plaintiff the onus of proof that Subbarama Aiyar left sufficient property for the widow Krishnammal to meet the demands she had to fulfil. Now the plaintiff had by way ,of anticipation stated in his plaint that Subbarama Aiyarhad left considerable properties which he specified. The trial Court itself agreed with the lower appellate Court in finding against this. It found, as did the lower appellate Court, that Subbarama Aiyar's long illness before his death had probably exhausted his properties except the lands. The appellant before me bases his contention on what the learned appellate Judge says in paragraph 33

"it would have been difficult to find that she (Krishnammal) had any necessity to borrow money if the plaintiff's allegation, that at the time when Subbarama Aiyar died he left either cash or movable or any other property from which any income was available, was proved."

8. The learned Subordinate Judge then goes on to discuss whether Subbarama Aiyar had such property in paragraph 34 ' and points out" the Lower Court rightly discredited the evidence of the witnesses of the plaintiff, who gave evidence about the position of Subbarama Aiyar at the time of his death. When the widow of Subbarama Aiyar, Krishnammal, applied for a succession certificate the amount shown therein was only a very insignificant sum of Rs. 9-3-7." The trial Court in fact went one step further in the matter and said: "If there were 16 out-standings as plaintiff has with great glee deposed in re-examination some at least of the debtors would have asked for a succession certificate more especially having regard to the fact that there were bitter feuds between the widow and the reversioners." I cannot find therefore that the lower appellate Court has thrown the burden of proof on this matter upon the plaintiff as alleged.

9. The third matter concerns litigation expenses which formed the bulk of the consideration for the sale. Litigation arose in two ways. Within four days after the death of Subbarama Aiyar, Krishnammal brought a charge of theft against the plaintiff's father alleging that they stole a number of documents evidencing the debts due to the family. The accused were acquitted but the judgment is not exhibited. It is important however to notice that the accused pleaded the right of justification for this action on the ground that Subbarama Aiyar was undivided with them. It is now admitted that this was a false plea. The widow was clearly protecting the estate in trying to recover these documents and the more so when the accused pleaded that they were entitled to them being undivided from the late Subbarama Aiyar. The proceedings went to the length of framing a charge and the accused were acquitted perhaps because it was thought that the matter was of a civil nature. Indar Kuar v. Lalta Prasad Singh (1882) I.L.R. 4 All. 532 quoted for appellant is not applicable to litigation of this sort. The second litigation in which Krishnammal was entangled was in regard to a document, a bond produced by Krishnammal as having been executed in favour of her husband by one Krishna Aiyangar which she wanted to enforce and which Krishna Aiyangar said was a forgery by the widow and her brother and she had to defend herself against this criminal charge of forgery. The widow incurred expenditure with regard to this which necessitated the alienation. It is laid down in Dhanukdhari Singh v. Rambirich Singh (1921) I.L.R. 1 Pat. 171 at 173, a case where money was spent in defence of criminal cases against members of the family, that the question whether there was legal necessity for the raising of the loan cannot be made to depend upon the result of the trial. The same case lays down that in criminal cases against members of a joint family the legal necessity for raising a loan to defend them is binding on the estate. Here it is a stronger case because the bond itself which Krishnammal tried to enforce and the execution of which was totally denied was part of her husband's estate. In the result she was discharged.

10. Besides these three main grounds there have been certain isolated points taken against the judgment of the lowest appellate Court.

11. [His Lordship then discussed the evidence with reference to Ex. C and the question of possession and continued as follows:] I think it must be admitted that as a reversing judgment the appellate Court's judgment is open to a charge that it has not discussed certain matters as fully as it might have done but I am unable to say that the lower appellate Court has failed to take into account any evidence, to such an extent which would justify this Court in interfering in second appeal. Vide in this connection the remarks of the Privy Council in Raja of Pittapur v. Secretary of State for India (1929) L.R. 56 I.A. 223 : I.L.R. 52 Mad. 538 at 547 : 57 M.L.J. 64 (P.C.). I am bound also to say that the judgment of the trial Court in one particular contains a very improper remark which goes to show a certain amount of bias in the mind of the Court. This occurs at paragraph 13. In discussing the evidence of the 3rd defendant the learned District Munsif says that he is not prepared to act on it and proceeds:

He admits Rukmani was put away by her husband and Mathurathammal admits that 3rd defendant put away his wife 35 years ago. I am inclined to think that 3rd defendant had a liaison with Rukmani.

12. There is no evidence on that point and it is quite improper to make such a remark about 3rd defendant and the deceased Rukmani. Vide Khwaja Muhammad Khan v. Husaini Begam (1910) L.R. 37 I.A. 152 : I.L.R. 32 All. 410 at 412 : 20 M.L.J. 614 (P.C.), where their Lordships referring to the following remarks of the lower Court "although unchastity is not duly proved, yet I have no hesitation in holding that plaintiff's character is not free from suspicion" say "their Lordships cannot help considering an opinion of this kind regarding a serious charge as unsatisfactory. Either the allegation of unchastity was established or it was not; if the evidence was not sufficient or not reliable, there was an end of the charge so far as the particular matter in issue was concerned and it was hardly proper to give expression to what the Judge calls 'suspicion'." In the present case without any evidence at all and although the matter was quite irrelevant this sort of remark should not find a place in the judgment and in my opinion it should be deleted from it. In the result I do not find any reason to interfere in second appeal. This appeal fails and is dismissed with costs.

Krishna Ayyar v. Muthulakshmi Ammal

Structured Summary of the Provided Opinion

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Appellant's (Plaintiff's) Arguments

Respondents' / Lower Appellate Court's Position (as reflected in the opinion)

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Krishna Ayyar v. Muthulakshmi Ammal

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