Venkataramana Rao, J - (1.)This second appeal arises out of a suit for a declaration that the sale-deed, Ex. XI dated 25 March, 1926, executed by the second defendant as the agent of his daughter the first defendant, the widow of one Krishnayya deceased, in favour of the third defendant is not binding on the plaintiff and the fourth defendant after the lifetime of the first defendant. The plaintiff and the fourth defendant claim to be the next reversioners to the estate of the said Krishnayya on the death of the first defendant and their case is that the sale was not for a purpose binding on the estate. The main defence is that the husband of the first defendant left a will in and by which he bequeathed all his property absolutely to the first defendant. It was also pleaded that the plaintiff and the fourth defendant are not the next reversioners and that the suit is not maintainable, and in any event, the sale was supported by necessity. Both the Courts concurrently found against the contentions of the defendants on all their pleas and gave a decree in favour of the plaintiff as prayed for. The first defendant has preferred this appeal.
(2.)Mr. Govindarajachari on her behalf has urged three contentions before me. The first contention relates to issue 1 (a) in the case, namely, whether the will set up by the first defendant is true and did it confer an absolute estate in the suit property on the first defendant? Both the Courts below have found that the will is not genuine. Mr. Govindarajachari attacks this finding on the ground that both the Courts improperly refused to admit the deposition of certain witnesses, who are dead, taken in a prior litigation to which the plaintiff and the first defendant were parties. The said litigation related to a suit filed by the first defendant for recovery of possession of certain properties belonging to her husband from her mother-in- law, Subbamma ignoring a certain arrangement which was come to between the first defendant's adoptive father and the natural father of her husband in and by which Subbamma was given certain properties absolutely. In the plaint filed in that litigation the plaintiff also relied upon a will left by her husband and the genuineness of it was traversed by the said Subbamma. As many as 36 issues were raised in the case and there was no issue regarding the genuineness of the will in question because it was not necessary to put that matter in issue in the said suit. Nevertheless some witnesses were examined on commission in regard to it. What is now complained of is that the lower Courts have declined to admit the evidence of certain witnesses who are no more. It appears that before the learned District Munsif the said evidence was tendered but he declined to receive it. It does not appear that this matter was pressed in appeal before the learned Subordinate Judge. Mr. Govindarajachari urged this contention before me as a question of law on the ground that the evidence should have been admitted under Section 33 of the Evidence Act. Apart from the question whether it is open to Mr. Govindarajachari to advance the contention in view of the same not having been pressed on behalf of his client in the lower appellate Court, it seems to me that the said evidence was quite properly rejected by the learned District Munsif. Under Section 33 of the Evidence Act, before a certain evidence given by a witness in a judicial proceeding can be admitted in a subsequent judicial proceeding, it must be established that the questions in issue were substantially the same in the first as in the second proceeding. I quite realise that no specific issue need have been raised regarding any particular matter in issue between the parties but the matter must have been in issue between them and from the course of the litigation in the prior suit it is clear that the question of genuineness was not one of the questions in issue. I therefore overrule the contention of Mr. Govindarajachari.
(3.)The next contention raised is as regards the question of legal necessity for the sale evidenced by Ex. XI. The sale was for a consideration of Rs. 2,500, The purpose recited is for discharging the debts contracted by the first defendant and for meeting certain High Court charges. Both the lower Courts have concurrently found that there was no necessity for making this alienation because the first defendant had ample funds in her hands or at any rate there was no pressure on the estate compelling her to sell the property. I have heard Mr. Govindarajachari at length on this matter, having regard to the fact that the learned Subordinate Judge chose to write a summary and not a very clear judgment on the matter. On the date of sale only Rs. 1,000 cash was paid and for the balance a promissory note for Rs. 1,500 was executed not in favour of the first defendant but in favour of the second defendant by a brother-in-law of the vendee and the amount thereunder is alleged to have been paid three or four months later. It is not proved that any of the creditors were making demands or threatening suits and therefore the first defendant was obliged to sell the property. So far as the maintenance of the widow was concerned, the properties were yielding a decent income, and it is in evidence that the widow realised a large sum of over Rs. 5,000 within six months of the date of the sale. The vendee has not gone into the witness-box to prove the circumstances attending the sale. The evidence of D.W. 10 is not very satisfactory and D.W. 12, who is supposed to have negotiated the transaction of sale, does not give any useful evidence because, according to him, the vendee relied upon the will alleged to have been left by the husband of the first defendant and he did not therefore choose to enquire into the truth or otherwise of the indebtedness of the estate. I think it unnecessary to go into the evidence regarding this transaction in detail as I am convinced that the concurrent finding of both the Courts on this point is not wrong.