Mallik, J - (1.)The suit out of which this appeal arises was one brought by the plaintiff as a reversioner on the death of her mother to recover the estate of her father Brojo Kishore. The allegations on which the suit was brought were briefly these. The property formerly belonged to one Naba Kishore who died leaving behind him two sons, Gour Kishore and Ram Kishore. Gour Kishore on his death was succeeded by his widow Anund Kumari to the extent of an 8 annas share in the property and Ram Kishore was succeeded by his eon Brojo Kishore to the extent of the other half. On the death of Brojo Kishore his widow Swarnamoyee the mother of the plaintiff succeeded to the 8 annas of the estate and on her death the plaintiff was entitled to the property as her reversioner. According to the plaintiff her mother Swarnamoyee and Anund Kumari sold their properties to one Nabin Chandra Chaudhuri in 1288 B.S. on the allegation of a number of legal necessities in the deed of sale though, as a matter of fact, there was no legal necessity at all. In 1290 B.S. the interest of Nabin in the property was purchased by defendants Nos. 1 to 8 in execution of a decree against him and so the plaintiff brought the present suit for recovery of possession of the 8-annas share in the properties belonging to her father Brojo Kishore. The principal defence in the case was that the properties had been sold for legal necessity and the substantial issue for determination in the case, therefore, was whether there was legal necessity for this sale as alleged in the sale-deed.
(2.)The cape has a little history behind it. The first Court found in favour of the defendants and dismissed the suit. On appeal the learned Subordinate Judge who tried the appeal came to the conclusion that no legal necessity had been established and he allowed the appeal and decreed the suit. The defendants there upon came up to this Court in second appeal and a Division Bench of this Court heard this second appeal, set aside the order of the Subordinate Judge and sen the case back on remand for a re-trial of the appeal with certain observations and directions. The appeal was then heard by another Subordinate Judge and this learned Judge also came to the conclusion that legal necessity had not been established and that the plaintiff was, therefore, entitled to a decree. Defendants Nos. 1 to 8 have appealed to this Court against this decision of the learned Subordinate Judge.
(3.)I was taken through the judgment and the order of remand passed by the Division Bench and my attention was drawn to the fact that the learned Judges in their judgment observed that the principles as laid down in the case of Nanda Lal Dhur Biswas V/s. Jagat Kishore Acharjya Chowdhuri 36 Ind. Cas. 420 : 44 C. 186 : 20 M.L.T. 335 : 31 M.L.J. 563 : (1916) 2 M.W.N. 336 : 4 L.W. 458 : 18 Bom. L.R. 868 : 14 A.L.J. 1103 : 24 C.L.J. 487 : 1 P.L.W. 1 : 81 C.W.N. 225 : 10 Bur. L.T. 177 : 43 L.A. 240 (P.C.) should apply to the present ease. It was contended before me that the learned Subordinate Judge against whose decision the present appeal has been preferred committed an error of law in holding that the principles in Nanda Lal Dhur's case 36 Ind. Cas. 420 : 44 C. 186 : 20 M.L.T. 335 : 31 M.L.J. 563 : (1916) 2 M.W.N. 336 : 4 L.W. 458 : 18 Bom. L.R. 868 : 14 A.L.J. 1103 : 24 C.L.J. 487 : 1 P.L.W. 1 : 81 C.W.N. 225 : 10 Bur. L.T. 177 : 43 L.A. 240 (P.C.) could not apply to the present case. As I read the judgment of the learned Subordinate Judge I do not think that he means to say that the principles in Nanda Lal Dhur's cast 36 Ind. Cas. 420 : 44 C. 186 : 20 M.L.T. 335 : 31 M.L.J. 563 : (1916) 2 M.W.N. 336 : 4 L.W. 458 : 18 Bom. L.R. 868 : 14 A.L.J. 1103 : 24 C.L.J. 487 : 1 P.L.W. 1 : 81 C.W.N. 225 : 10 Bur. L.T. 177 : 43 L.A. 240 (P.C.) could not apply to the case before him. As a matter of fact the learned Subordinate Judge began his judgment by saying that the principles as enunciated in the case of Nanda Lal Dhur Biswas V/s. Jagat Kishore Acharjya Chowdhuri 36 Ind. Cas. 420 : 44 C. 186 : 20 M.L.T. 335 : 31 M.L.J. 563 : (1916) 2 M.W.N. 336 : 4 L.W. 458 : 18 Bom. L.R. 868 : 14 A.L.J. 1103 : 24 C.L.J. 487 : 1 P.L.W. 1 : 81 C.W.N. 225 : 10 Bur. L.T. 177 : 43 L.A. 240 (P.C.) were to be borne in mind and nowhere did the Subordinate Judge say that the principles as laid down in that, case were not to be considered in the determination of the case before him. One of the principles laid down in that case is that a recital that is to be found in an old document assumes a great importance after a long period of time when all those who could have given evidence on the relevant points nave grown old or have passed away and a recital of this nature cannot lightly be set aside. But their Lordships qualified this observation by saying that the recital in order to be entitled to such importance must be consistent with the probabilities and circumstances of the case. In the present case the learned Subordinate Judge has fully dealt with the circumstances of the case and also with the evidence that he had before him on the question of the existence or otherwise of legal necessity and on a consideration of them he thought that in view of the probabilities, circumstances and the established facts of the case the principles laid down in Nanda Lal Dhur's case 36 Ind. Cas. 420 : 44 C. 186 : 20 M.L.T. 335 : 31 M.L.J. 563 : (1916) 2 M.W.N. 336 : 4 L.W. 458 : 18 Bom. L.R. 868 : 14 A.L.J. 1103 : 24 C.L.J. 487 : 1 P.L.W. 1 : 81 C.W.N. 225 : 10 Bur. L.T. 177 : 43 L.A. 240 (P.C.) would not be of much help. As laid down in that case recitals in deeds cannot by themselves be relied upon for the purpose of proving assertion of facts that they contain. They are certainly some kinds of evidence and if the recitals happen to be in a document sufficiently old they become more and more weighty as time goes on. But such recitals can never be conclusive evidence. In the case of recitals found in old documents they can be used as presumptive evidence but the presumption that can arise from them cannot be said to be one which is unrebuttable. In the present case if there was any presumption from the recitals in the deed of sale the findings of fact arrived at by the learned Subordinate Judge were sufficient in law to rebut that presumption, I am, therefore, of opinion that the learned Subordinate Judge gave a full consideration to the principles as laid down in Kanda Lal Dhur Biswas V/s. Jagat Kishore Acharjya Chaudhuri 36 Ind. Cas. 420 : 44 C. 186 : 20 M.L.T. 335 : 31 M.L.J. 563 : (1916) 2 M.W.N. 336 : 4 L.W. 458 : 18 Bom. L.R. 868 : 14 A.L.J. 1103 : 24 C.L.J. 487 : 1 P.L.W. 1 : 81 C.W.N. 225 : 10 Bur. L.T. 177 : 43 L.A. 240 (P.C.) and I do not think that he can be said to have committed any error of law when after considering those principles he came to the conclusion that those principles would not be of any help in view of the circumstances and findings of fact arrived at in the case.