Decided on October 09,1953

Jansmejoy Mahalla Appellant
Labani Dei Respondents


Mohapatra, J. - (1.) THIS appeal has been filed by Defendant 2 to 5 against the judgment and decree dated 28.6.48 of Sri D.N. Das, Additional District Judge of Cuttack, reversing the judgment and decree of the trial Court. The properties belong to one Bira Parihari. Defendant No. 1 Rajan was the widow of Bira. Rajan died during the pendency of the present suit. Bira died leaving Bhima as his son and heir. Bhima died nearly 8 years prior to the institution of the suit leaving Rajan as his sole heir. The present Plaintiffs 1 and 2 are the daughters of Bira and they claim as sister -heirs of the last male owner, that is, Bhima. Defendant No. 1 executed a Kabala dated 5.10.37 for Rs. 300/ - in respect of 3.83 acres of land as per Ex. E in favour of Defendant No. 2 Defendant No. 2 subsequently sold a portion of the property in favour of the other Defendants, that is, Defendants 3 to 5.
(2.) THE Plaintiff's main attack in the suit is that the transaction dated 5.10.37 executed by the limited heir Rajan was a benami transaction, not for consideration and that it was not supported by legal necessity; as such, it is not binding against the reversionary heirs. While the suit was brought it was a reversionary suit, and the decree was to accrue to the benefit of the actual reversioners on the death of the limited heir. But in the meantime Defendant No. 1 having died during the pendency of the suit, Plaintiffs 1 and 2 are the actual reversioners and are entitled to claim possession of the property. The defence case is that the transaction was for consideration and was supported by legal necessity. The trial Court found both the points in favour of the Defendants and held the transaction as valid and binding against the present Plaintiffs. The lower appellate Court, however, finding that the transaction was for consideration and that the Defendants had paid a sum of Rs. 640/ - by way of consideration of the transaction, reversed the decree passed by the trial Court as he differed from the trial Court regarding the finding of legal necessity. The lower appellate Court ordered the Plaintiffs to make a deposit of a sum of Rs. 640/ -, as a condition precedent to the decree being availed of by the Plaintiffs. It is against this decree of the lower appellate Court that the present second appeal has been filed.
(3.) THE question of legal necessity arises under these circumstances. It appears that Bira and Bhima both executed two transactions the first one was a simple mortgage transaction dated 4.4.30 in respect of a major portion of the disputed lands in favour of one Jayaram and the second was a usufructuary mortgage dated 25.11.33 in respect of those properties which were the subject matter of the first mortgage along with some other items. It appears eventually that the mortgage transactions not having been paid off either by the widow (Defendant No. 1) or by the purchasers (Defendants 2 to 5), a suit was brought and a preliminary decree was obtained by the mortgagee on 6.4.40 which was finalised on 10.12.40 for a sum of Rs. 825/ - the final decree, it is to be noted, is for sale of the mortgaged properties. It is to be observed here that in this suit the mortgage had brought Defendant No. 1 and the present Plaintiffs also as parties. Defendant No. 2 also as a subsequent purchaser of the property was made a party to the mortgage suit. Neither the Plaintiffs nor Defendant No. 1 entered appearance or contested the suit. The suit was decreed on terms of compromise between the mortgagee and the present Defendant No. 2, the purchaser. On compromise, the claim was reduced and Defendant No. 2 by his motion to the Court obtained relief for payment in instalments and also has paid, as found by the lower Court, to the extent of Rs. 640/ -. Now the question arises whether in the circumstances the transaction dated 5.10.37 which is being impeached as void and not binding against the reversioners can be upheld as being supported by legal necessity. As I have already indicated, the first mortgage of the year 1930 was a simple mortgage transaction executed by Bira and Bhima. It is manifest therefore that both of them were personally liable and Bhima, the last male owner, had the further pious obligation of paying off the debts of his father. The second indeed is an usufructuary mortgage of the year 1933, as termed by the Plaintiffs; but as we find from the final decree that a decree for sale was ordered by the Court even though on the terms of the compromise, I am not ready to accept it as a pure case of usufructuary mortgage. It has to be taken as an anomalous mortgage and that the consideration passed under the transaction would be taken as a debt also. In order to pay off these transactions and eventually when the sums involved in these transactions have been paid off by the purchaser, in my opinion, the transaction of the rear 1937 is to be upheld. The principle is well known that to pay off the debt of the last male owner even though barred by limitation, whether during his life time or after his death, is considered as essential and obligatory and if the transaction is for payment of such debt it is to be upheld as supported by legal necessity -Vide Mulla Hindu Law, 11th Edn. p. 186, paragraph 181 -A(2)(iv).;

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