JUDGMENT 1. THIS second appeal is preferred by some of the defendant-appellants against an appellate judgment and decree of reversal briefly in the following circumstances: the plaintiff-respondent No. 1, who was the married daughter of one benimadhab Ghose by his first wife along with her sons plaintiff Nos. 2 to 6 instituted a suit against the present defendants-appellants and also defendant No. 4, the second wife of benimadhab and her daughter Panchibala for a declaration that the transfer by way of sale by the defendant No. 4 of certain immovable properties left by benimadhab, to present appellants was collusive and fraudulent and at any rate made without any legal necessity and also for other reliefs including permanent injunction. 2. THE suit, as appears, was contested by the present appellants-defendants nos. 1 to 3. In their written statement apart from the general denial of material allegations they asserted that the widow, defendant No, 4, had to incur debts for her maintenance and other expenses and the impugned sale was effected by her for legal necessity. Upon the pleading of the respective parties the trial Court on evidence found that the sale effected in favour of the present appellants by the defendant No. 4, was for legal necessity and thus the sale was valid. On appeal, the learned appellate Court disagreed with the raiding of the trial Court and on assessment of direct evidence found that the impugned sale was without legal necessity and thus passed a decree in favour of the plaintiff-respondents. That is how in short the appellants felt aggrieved and preferred the present appeal. In the appeal before us, three additional grounds were taken raising substantially two questions. Firstly, the right of the plaintiffs-respondents to maintain such a suit as reversioners is disputed in view of provisions of section 4 of the Hindu Succession Act, 1956 and secondly, that in any event, in view of Section 53a of the Transfer of Property Act, the reversioners are bound to convey absolute title to the defendants-appellants. We shall come to these questions later on but at the present moment we shall deal with the first question as to whether the plea of legal necessity in this case has been established. 3. We shall come to these questions later on but at the present moment we shall deal with the first question as to whether the plea of legal necessity in this case has been established. 3. IN this case, admittedly, the impugned transaction by way of sale was effected on 10th February, 1950, by the widow the second wife of Benimadhab and her daughter Panchibala who is respondent No. 8, was a consenting party to such transaction. It is also undisputed that a previous suit was filed against the widow by the same set of plaintiffs, inter alia, for a permanent injunction restraining her from alienating the property in which the court granted a decree for permanent injunction restraining the widow from alienating the property except for legal necessity. Within a short time thereafter, it appears, the impugned sale in flavour of the present appellants took place. The question whether there was in. fact any legal necessity for sale of the property by the widow is essentially a question of fact. So, if the appellate court below on assessment of evidence has come to a finding that there was no legal necessity in fact then it is difficult to see how in second appeal it would still be open to this Court to upset such a finding. Mr. Dasgupta, on behalf of the appellants has, however, raised several points in support of Ms contention that even on facts the judgment of the appellate Court was not a proper judgment of several. Firstly, it is said that there was no pleading in the plaint that the sale was effected without any legal necessity in fact The only pleading in the plaint is that the necessity stated in the document is false. We, however, think that a purchase from a widow only having a widow's estate is required to prove by positive evidence that there was in fact legal necessity for sale of the property by the widow. In other words, the burden will lie on the person upholding the transaction to prove affirmatively that there was existence of legal necessity in fact. 4. MR. In other words, the burden will lie on the person upholding the transaction to prove affirmatively that there was existence of legal necessity in fact. 4. MR. Banerjee, on behalf of the plaintiff-respondents, in countering this argument relies on a decision of the judicial Committee in 43 I.A. 249 Banga chandra Dhur v. Jugal Kishore, we think, rightly, to show that a person asserting his absolute title by virtue of purchase of immovable properties from a Hindu widow is required under the law that the impugned transaction was made out of legal necessity. We think the decision of the Supreme Court in rani v. Santabala A.I.R. 1971 S.C. 1028, as relied on by Mr. Dasgupta, does not militate against the view taken by the judicial Committee. It was observed inter alia (Para. 11), "the onus of proving legal necessity may be discharged by the alienee by proof of actual necessity or by proving that he made proper and bonafide enquiries about the existence of the necessity and that he did all that was reasonable to satisfy himself as to the existence of the necessity". Then, on the manner and mode of proof in a given case the Supreme court observed as follows : "recitals in a deed of legal necessity do not by themselves prove legal necessity. The recitals are, however, admissible in evidence, their value varying according to the circumstances in which the transaction was entered into. The recitals may be used to corroborate other evidence of the existence of legal necessity. The weight to be attached to the recitals varies according to the circumstances. Where the evidence which could be brought before the Court and is within the special knowledge of the person who seeks to set aside the sale is withheld. Such evidence being normally not available to the alienee, the recitals go to his aid with greater force and the Court may be justified in appropriate cases in raising an inference against the party seeking to set aside the sale on the ground of absence of legal necessity wholly or partially when he withholds evidence in his possession". 5. IT is, therefore, clear that there was no departure from the principle enunciated by the Judicial Committee on the question of onus of proof but this was a case where manner, mode or degree of proof that would be required in a given case were laid down. 5. IT is, therefore, clear that there was no departure from the principle enunciated by the Judicial Committee on the question of onus of proof but this was a case where manner, mode or degree of proof that would be required in a given case were laid down. Applying the test indicated, however, mr. Dasgupta has contended that though the transaction was effected in the year 1950, the suit was brought in the year 1960 and therefore the recitals in the document would not only be admissible but the appellate Court should have proceeded on such recitals. For by sheer lapse of time the other evidence corroborating such recitals must be deemed to have been not available or otherwise lost of destroyed. We think, the appellate Court below in determining this question did not deviate from the principle or procedure as laid down by the Supreme Court. It has taken into consideration the recitals in the deed of alienation but with this reservation, we think, rightly, that recital by itself was not sufficient proof. Then it has taken into consideration other evidence adduced in this case and found as a fact that there was no basis for the recitals made in the document, with the result that it found that here was in fact no legal necessity. 6. MR. Dasgupta has next contended that though it is admitted that the husband of the widow mortgaged the entire properties for a sum of Rs. 300/-, the appellate Court came to the conclusion that such loan was repaid by payment of Rs. 200/- out of the income of the estate by the widow but this conclusion was based on no evidence. It is said that there was no evidence either that the properties had substantial income out of which the widow could have maintained her or repaid the loan. It is said that the entire finding on fact that the widow had income of the property and she did not require any money for repayment of debts or for her maintenance or pilgrimage was purely inferential and not based on objective assessment of evidence. We cannot, however, accept this contention as correct. For it appears that on the question of legal necessity the evidence adduced by both the parties either oral or documentary and considered by the trial court was also considered by the appellate Court below. We cannot, however, accept this contention as correct. For it appears that on the question of legal necessity the evidence adduced by both the parties either oral or documentary and considered by the trial court was also considered by the appellate Court below. It may be that it disbelieved some of the evidence believed by the trial Court. Bat then it is open to the appellate Court as a final Court of fact to reject evidence though relied on by the trial Court in suppose of its finding on fact. This is not a case where the appellate Court below in determining the question of existence of legal necessity failed to consider some evidence or consider some evidence which was inadmissible or determined such question without any evidence at all. This also not a case where the plaintiffs withheld best evidence in their possession so that the court might have drawn adverse inference against them. We, therefore, think that this contention raised by Mr. Dasgupta has no substance. Mr. Dasgupta has next contended that the question of valuation which was wholly extraneous was considered by the appellate Court below without any evidence and it came to the conclusion that the value of the properties at the material time would exceed rs. 30,000/- and this has tainted the whole finding on fact with error of law. It is said that even if the question of valuation in such cases is relevant the court ought to have framed an issue and after giving opportunities to the parties to adduce proper evidence should have decided the issue. In support of his contention reliance is placed on a decision of this Court in 76 C.W.N. 1048 Piru Charan Pal v. Mirror Sunilmoy Memo. While the proposition laid down cannot be disputed, we think, in the facts and circumstances of this case the question of valuation is not altogether irrelevant. And we find that the question of valuation was agitated and in fact determined by the trial Court which necessarily was considered by the appellate Court below. In that process, the appellate court below on the evidence of the defendants own witness D.W.1, radhika Nath Mallik, commissioner of rishra Municipality has found that the value of the property was Rs, 300/- or rs. 350/- per Cottah at the material time. In that process, the appellate court below on the evidence of the defendants own witness D.W.1, radhika Nath Mallik, commissioner of rishra Municipality has found that the value of the property was Rs, 300/- or rs. 350/- per Cottah at the material time. On that basis, on calculation it found that the value of the suit property would have been about rs. 35,000/-. So, merely because no issue was framed, we think, the present appellants by their own conduct are estopped from disputing the correctness of such finding at this stage. 7. MR. Dasgupta has next contended that the widow defendant No. 4 who was then alive and only died during the pendency of the appeal in this court revealed her pecuniary condition and also of her husband. The first witness on behalf of the plaintiff-respondents has stated also that benimadhab died as a pauper. The trial court accepting such evidence drew its conclusion about the condition of the widow at the time of death of benimadhab. It is said that the lower appellate Court without considering such evidence drew a conclusion to which no reasonable man could come to in this case. We, however, find that this aspect of the matter was considered by the appellate Court and its finding is that there is nothing to show that "benimadhab was cremated by the help of rishra Municipality though Nalini tried to make out such a case in her cross-examination. It is thus evident that the disputed sale of the property took place 10 years after the death of benimadhab". Therefore, it cannot be said that the appellate Court came to as finding without considering the evidence on this aspect of the matter. Indeed, the trial Court's decision, as appears, is based on a finding that, "at least a part of the consideration of kobala was spent for legal necessity and thus following the decision of the judicial Committee in 31 C.W.N. 462 sri Kishan Das v. Nathu Ram it held that if the bulk of the consideration was applied to the legal necessity it was valid and binding although there may be no evidence as to appropriation of the remainder of the sale proceeds. While the principle as laid down by the Judicial Committee and applied by the trial Court cannot be disputed the appellate Court found as a fact on evidence that the debts left by benimadhab were paid by Nalini out of the income of her husband's estate and she did not incur any debts on account of her maintenance or for marriage expenses of her daughter. Such being the position, we are unable to interfere with that finding that there was no legal necessity in fact in this appeal. 8. A question incidentally arose in this connection as to whether the written statement of the widow Nalini in the previous suit (Ext. D) to the effect that she borrowed Rs. 300/- only for her daughter's marriage would be admissible without getting such statement contradicted and thus whether the appellate Court below was justified in rejecting her evidence in the present case to the effect that she had to borrow Rs. 800/- or Rs. 1,000/- on account of her marriage. Mr. Dasgupta relying on a decision of the Supreme Court in A.I.R. 1974 S.C. 308 Laxman and ors. v. State of Maharashtra has contended that such evidence could not be used without drawing the attention of the witness to this part of the evidence under Section 145 of the Evidence Act. It is also argued by him that such evidence cannot be used also as an admission within the meaning of Section 17 of the Indian Evidence Act. We think, in the facts and circumstances of this case it is unnecessary to go into these controversies. Fork it appears, that the written statement of the widow in the previous suit was adduced in evidence on behalf of the appellants. In any case, it appears from her evidence that the attention of the witness was drawn to this part of her written statement and her answer was as follows : "i do not remember if I had stated in my written statement in serampore Court that I had to borrow Rs. 300/- for marriage expenses of my daughter". That being so, we do not find any irregularities made by the appellate Court in referring to such statement of previous written statement to find out if she had borrowed any amount for her daughter's marriage. Mr. 300/- for marriage expenses of my daughter". That being so, we do not find any irregularities made by the appellate Court in referring to such statement of previous written statement to find out if she had borrowed any amount for her daughter's marriage. Mr. Dasgupta has lastly contended that at least one of the reversioners namely the widow's own daughter being a consenting party to the transaction of sale it was not again open to the other reversioner to challenge the validity of such sale but it is fairly settled that consent of daughter far less of one daughter does not raise any presumption as to the evidence of legal necessity. (See, I.L.R. 35 Cal. 1086-Bepin Behari Kundu v. Durga charan Banerjee). 9. THE other alternative argument made by Mr. Dasgupta is that the sale by the widow must be held to be binding on the reversioners if there was only a bonafide enquiry as to existence of legal necessity by the purchasers. It was again for the appellants to show by cogent and clear evidence that they made such enquiries as to the existence of legal necessity before the purchase of the property from the widow. But that burden, as appears, has remained undischarged. It is found by the appellate Court as a fact that "there is no satisfactory evidence to show that defendants 1 to 3 made any enquiries at all." Here again, Mr. Dasgupta has contended that there was no pleading by the plaintiff-respondents that the appellants did not enquire at all. We have already indicated that it is for the appellants and not for the plaintiff-respondents to set up such plea and to adduce proper evidence to show that they did made such enquiries as to existence of the legal necessity before completion of their purchase. The only evidence of one of the defendant-appellants is that he made enquiries about the title and no other enquiry was made. Therefore the alternative argument raised by mr. Dasgupta also fails. 10. WE now come to the first point involved in the additional grounds. It is said that in view of the provisions of Section 4 of the Hindu Succession act, 1956, the right of the reversioners, ether to set aside alienation of widow's estate or to succeed to such estate after the widow's death, has ceased to exist. 10. WE now come to the first point involved in the additional grounds. It is said that in view of the provisions of Section 4 of the Hindu Succession act, 1956, the right of the reversioners, ether to set aside alienation of widow's estate or to succeed to such estate after the widow's death, has ceased to exist. The argument is that Section 4 because of its over-riding effect on any rule, text or interpretation of Hindu Law or any customs or usage or any other law in force immediately before the commencement of this Act, shall cease to apply to Hindus, and therefore, the law conferring or regulating on the reversioners in relation to widow's estate must be deemed to have been inoperative. We do not think this argument has much of substance. For it is now fairly established that right of the reversioners which accrued prior to the commencement of the Hindu Succession act may be enforced by a suit. (See A.I.R. 1966 S.C. 216-Radha v. Hanuman Prosad, A.I.R. 1969 S.C. 1144-Giani Ram v. Ramji Lal, A.I.R. 1973 S.C. 2405-Radha Krishna Singh v. Shiva Shanker ). But Mr. Dasgupta has sought to distinguish these cases on facts namely that each of these cases were filed before the Hindu succession Act came into operation. It is said that after the commencement of the Act no such suit could be filed. We fail to see how this is so. In the last mentioned case of the Supreme Court, it would appear, the suit was filed after the Act came into force. But, nevertheless, earlier decisions of the supreme Court were followed. It is clear that under Section 4 of the Hindu succession Act, any rule or law in force immediately before the commencement of the Act shall cease to apply to hindus in so far as it is inconsistent with any of the provisions contained in this Act. Therefore Section 4, although it has over-riding effect over the laws, customer, usages as mentioned therein, it is controlled by other provisions of the Act. Therefore Section 4, although it has over-riding effect over the laws, customer, usages as mentioned therein, it is controlled by other provisions of the Act. In the present case this clause must be read subject to the provisions of Section 14 of the act where it is provided amongst other things, that any property possessed by a female Hindu whether acquired before or after the commencement of the Act shall be held by her as full owner thereof and not as a limited owner. It is therefore clear that if a female Hindu has already sold her property and has no longer been in possession thereof before the commencement of this Act there is no question of holding that property by her as full owner thereof. The result is that the customs, rule usage, or law immediately in force before the commencement of the Hindu Succession act does not cease to apply to Hindus. Necessarily the law then existing must prevail and the reversioners in such cases would retain the right of attacking the validity of such transfer of: widow's estate on the ground of absence of legal necessity, and the fact that the suit is filed after the commencement of the Act cannot have any adverse effect upon such right. As regards the second point the argument of Mr. Dasgupta is that even if the sale is found to be invalid for want of legal necessity then at the worst the property will go back to the widow herself and in view of Section 14 of the Hindu Succession Act she: would be bound as being full owner thereof to convey the property. Necessarily, therefore, the reversioners as her heirs would be bound by such agreement after her death again to convey the property to the intending purchaser and therefore the appellants will be protected, in any event, under section 53a of the Transfer of property Act. The argument is wholly misconceived. As rightly pointed out by Mr. Banerjee that a sale by a Hindu widow of widow's estate shall remain valid during her lifetime but after her death the property passed on to the heirs last full male owner and such a sale in absence of legal necessity would not be binding upon such heirs as reversioners. Mr. As rightly pointed out by Mr. Banerjee that a sale by a Hindu widow of widow's estate shall remain valid during her lifetime but after her death the property passed on to the heirs last full male owner and such a sale in absence of legal necessity would not be binding upon such heirs as reversioners. Mr. Banerjee has cited before us, in support of this well-settled proposition, one of the earliest decisions of the Judicial Committee in hanuman Pd. Panday v. Mst. Bahooee munraj Koonweree 6 M.I.A. 393 and also a decision of the Supreme Court in A.I.R. 1954 S.C. 505-Kali Shankar v. Dhirendra Nath. It is unnecessary to pursue this point further for it is clear that; Section 53-A of the Transfer of property Act has no manner of application in the present case. We, therefore, find no substance in the point raised. In our opinion, the decision of the appellate court below is correct. Accordingly, the appeal fails and is dismissed. But having regard to the facts and circumstances of this case there will be no order as to costs.