Posted On by &filed under High Court, Madras High Court.

Madras High Court
(Kakani) Krishnayya And Anr. vs (Kodali) Kottayya And Anr. on 8 February, 1929
Equivalent citations: AIR 1929 Mad 449
Author: Phillips


Phillips, J.

1. In this appeal, three alienations in favour of the appellants are in question. They were made by a widow and the lower appellate Court has found that they are not binding upon the estate except in one case where the consideration is binding to the extent of Rs. 180. These findings have been sought to be attacked on the ground that the learned Judge has committed various errors of law in coming to that conclusion. These errors of law seem to consist mainly in an alleged failure to consider some of the evidence and this argument is based on the absence of reference to all the details of the evidence in the judgment and the learned advocate for the appellants has been allowed to refer to some of that evidence which is deemed to be so material as to vitiate the judgment of the learned Judge. He has been unable to point out anything which is so material that an omission to refer to it in the judgment would vitiate that judgment and the District Judge appears to have considered all the evidence. I am therefore unable to hold that the findings of facts are bad in law.

2. On the finding that the alienation under Ex. 8 was supported to the extent of Rs. 180 out of Rs. 595 by necessity, it is argued that the whole transaction should be held to be valid and reliance is placed on the recent’ decision of the Privy Council in Krishna Das v. Nathu Ram A.I.R. 1927 P.C. 37. Their Lordships disapproved of the series of decisions in the Allahabad High Court in which Court it had previously been held that where there was a considerable amount of the consideration which was not binding on the estate, the whole alienation should be set aside even though a major portion of the consideration was so binding. That is not the principle that has been adopted in this Court. No doubt in many cases an arithmetical calculation has been used to assist the Court in determining the validity of the alienation. It may be said that generally where the valid consideration is less than half, the whole alienation is held to be bad, whereas if it is more than half, it has been held to be good, but because this arithmetical calculation has sometimes been adopted, it need not be interred that the real question at issue has been lost sight of, namely, whether the sale was effected for necessary purposes, that is to say, was the sale due to a necessity pressing upon the estate and necessitating the alienation of a portion of it? The amount of consideration that is binding upon the estate is certainly one of the items to be considered. In the present case, out of Rs. 475 paid for the land alienated a sum of Rs. 180 has been held to be for a necessary purpose. Can it possibly be said without further evidence that it was necessary for the widow to sell land worth Rs. 475 in order to discharge a small debt of Rs. 180? If the appellants had adduced evidence to show that there was some danger to the estate and this sale was therefore necessary, their present contention might be upheld, but the burden is on them to prove that the widow was bound by necessity to effect the alienation, and this they failed to do. Accordingly, the decree of the lower appellate Court is correct and this appeal must be dismissed with costs.

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