MARIMUTHU PILLAI Vs. VELU PILLAI

JUDGEMENT

(1.) Plaintiff is the appellant. He sued to set aside certain alienations made by his grandmother purporting to act as his guardian during his minority. His allegations were that there was no necessity for the sales referred to in the plaint and that they were fraudulent and for grossly inadequate consideration. The present appeal relates only to the alienation in favour of the respondents under Exhibit 4. The respondents stated that the sale was bona fide for consideration and for purposes of discharging the debts mentioned in the sale-deed and that it is binding on the plaintiff. The District Munsif held that the alienation evidenced by Exhibit 4 was not binding on the plaintiff, as there was no evidence adduced to show that the sale-deed was for the purpose of discharging the debts mentioned therein. An appeal was filed against the decree of the District Munsif: but neither in the grounds of appeal nor in any other proceedings was any reason given for the defendants not examining witnesses to prove the necessity for the sale. Even before the Subordinate Judge no application seems to have been filed by the parties requesting permission to adduce further evidence, nor is any explanation, so far as I can see, offered as to why the defendants did not call witnesses to prove that the recitals in Exhibit 4 were correct. On appeal, the Subordinate Judge commented on the fact that the creditors, to whom money under Exhibit 4 is alleged to have been paid, would be important witnesses and directed the District Munsif to record evidence adduced by both the parties as regards the necessity for the alienation and submit it to him.

(2.) It is argued by the appellant s Vakil that the Subordinate Judge had no power to call for further evidence. The question for determination is whether an Appellate Court has power to call for further evidence in cases where there is no evidence on record in respect of the issue under consideration.

(3.) There can be little doubt that the recitals in documents as to the existence of necessity are not by themselves evidence of necessity in the absence of any evidence aliunde. I need only to refer to the decision of their Lordships of the Privy Council in Brij Lal v. Musammat Inda Kunwar 23 Ind. Cas. 715; 1 L.W. 794; 26 M.L.J. 443; 18 C.W.N. 649; 12 A.L.J. 495; 36 A. 187; 19 C.L. 469; (1914) M.W.N. 405; 15 M.L.T. 395; 16 Bom. 1. R. 352 (P.C.), where they observe as follows: "Recitals in mortgages or deeds of sale with regard to the existence of necessity for the alienation have never been treated as evidence by themselves of the fact. And it has been repeatedly pointed out by this Board that to substantiate the allegation there must be some evidence aliunde."