1. The plaintiff, who is the widow of the uncle of the defendant, who died in union with the defendant's father, sues to recover Rs.2,000 with costs from defendant as the cost of a pilgrimage made by her to Gaya and Benares for the spiritual benefit of her husband, and for a pilgrimage to Rameshwar, which is yet to be performed. The defendant denied his liability to pay the expenses of the pilgrimage, and both the Courts below have found that the plaintiff cannot claim it from the estate. The plaintiff makes this second appeal.
2. The point is one of Hindu law, and not directly covered by authority. The plaintiff is receiving maintenance from the estate which is in the possession of her nephew, the defendant, the amount of maintenance being Rs. 840 a year, as settled by a consent decree. It is also in evidence that she had a sum of over Rs. 2,000 as her shidhan. The view which has been taken by the lower Courts is that there is no authority for the proposition that a widow who has ones obtained a decree for maintenance can again sue claiming amounts spent by her for religious purposes, and that although a widow in possession of the estate can alienate a portion of it for spiritual necessity, this does not apply to a widow who is not in possession of the estate and is merely receiving maintenance, from it, The District Judge is of opinion that even a widow in possession of an esfcaija could not treat these spiritual luxuries as it they were necessary expanses, ^number of cases have been quoted on both sides, although none of them is precisely on all fours with the present case. It is argued by the learned Counsel for the appellant that the income of the family is large, amounting to Rs. 8,000 a year, and the extent of the family's money-lending business is rupees one lakh, and the defendant takes the property subject to the pious obligation of ameliorating the welfare of his uncle's soul, and he relies on the oases of Ganpat valad Dhaku v. Tulsiram I.L.R. (1911) Bom. 88 s.c. 13 Bom. L.R 860, Tatayya v. Ramakrishnamma I.L.R. (1910) Mad. 288 Khub Lal Singh v. Ajodhya Misser I.L.R. (1915) Cal. 574 Sardar Singh v. Kunj Behari Lal Bai Chanchal v. Chimanlal (1928) 30 Bom. L.B. 685 and Darbari Lal v. Gobind Saran I.L.R (1924) All. 822 All these cases except the case of Bai Chanchal v. Chimanlal are cases is which the widow was in possession of the estate. Thus, in Ganpat valad Dhaku v. Tulsiram, where it was held that the expenses incurred by a Hindu widow in performing pilgrimage or in the betrothal of her daughter constitute legal necessity, the widow was in possession of the estate. She sold part of it to meet the expenses incurred for performing the betrothal expenses of her daughter and making a pilgrimage. She then remarried, and her husband's brothers sued to recover possession of the property, alleging that they were not bound by this alienation. The question was then one of legal necessity for the alienation made by the widow, and the amount was allowed. In Tatayya v. Ramakrishnamma a Hindu widow, who succeeded to the property of her deceased father, made a gift of a very small portion of that property at the time of performing her father's shraddha ceremony, and the alienation was impeached by her reversioner. The alienation was upheld. In Khub Lal Singh v. Ajodhya Misser it was held that where an alienation by a limited owner is impeached, the test is whether the purpose for which the alienation was made was proper or legitimate. The widow has a larger power of disposition for religious or charitable purposes or for purposes which are supposed to conduce to the spiritual welfare of her husband than what she possesses for purely worldly purposes. In this case also the widow was in possession of the estate. So also in Sardar Singh v. Kunj Behari Lal, referred to by the first Court, the widow in possession of the estate of her deceased husband made a gift by deed of a small portion of the property for a religious purpose, and it was held that the alienation was valid, the gift being for the spiritual benefit of the deceased husband though not for the purpose of an essential observance. In Darbari Lal v. Gobind Swan it was held that the performance of a pilgrimage by a Hindu widow and the support of dependent relations of her husband are objects which will justify an alienation by the widow of her husband's property. All these cases, therefore, are cases in which the widow was in possession of the property and incurred debts for religious purposes, and alienated ft portion of the property to meet them, And in all of them the religious efficacy of the act for which the property was alienated was successfully pleaded against the reversioners who sought to impeach the alienations. The alienations were held to be for legal necessity. But there is no case except one, to which I will refer shortly, in which the view has been taken that a widow who is not in possession of the estate but only entitled to maintenance out of it and whose maintenance has been fixed by the Court is entitled to charge the estate with expenses subsequently incurred by her for purposes of pilgrimage. There was a maintenance suit in 1922 in which her maintenance was fixed, No doubt in fixing maintenance the Court should take into consideration the necessary religious expenses which the widow has to undergo, as pointed out in Baisni v. Rup Singh I.L.R. (1890) All. 558 and Devi Persad v. Gunwanti Koer I.L.R. (1896) Cal. 410 The decree in the maintenance suit, which was by consent, is based on the obligation of the defendant to pay maintenance to the plaintiff, his paternal uncle's widow, and the question of religious expenses does not seem to have been taken into consideration. No doubt maintenance can be revised from time to time according to the condition of the estate, or the necessity of the parties, but the present suit is not one for increase of maintenance on the ground of the insufficiency of the allowance for the performance of the necessary religious expenses by the widow, but one claiming that the amount which she has spent in going on pilgrimage to Benares should be paid by the defendant. As I have already said, there is no case precisely like the present case. The question of legal necessity would only arise in the case of a widow who is in possession of her husband's estate. The learned advocate for the respondent has referred to West and Buhler's Hindu Law, 4th Edition, p. 250, where it is laid down that 'the right to receive maintenance is very different from a vested estate in property, and therefore what is said as to maintenance cannot be extended to the case of a widow's estate by succession,' and that the converse is equally true. It is contended pa behalf of the respondent that if the principle is admitted that a widow in receipt of maintenance is entitled to recover the expenses of pilgrimage from the estate in the hands of the heir, the necessary consequence would be that if she contracted a debt from a creditor to meet the expenses of the pilgrimage, the creditor would be entitled to enforce that claim against the estate, which is not the law, and reference is made to Bhagwnatrao v. Ramanath : AIR1928Bom310 , in which it is laid down that under Hindu law, the property in the hands of a reversioner is not liable to satisfy a personal debt not secured on such property which a widow while enjoying a widow's estate has properly incurred in the course of management of the property. That, no doubt, is a case referring to a widow who had been in possession of the property. But the principle laid down in the case is that the land cannot be said to form part of any estate left by the widow. There is no in cumbrance created by her on the land, and the land in the hands of, the reversioner would not be liable for a debt which is not secured on it. In this case, the Court, following the case of Gadgeppa Desai v. Apaji Jivanrao I.L.R. (1879) Bom. 237 held that the property in the hands of a reversioner would not be liable for a debt which is not secured on it and on this principle the defendant or the estate in the hands of the defendant, because the liability for maintenance is one which rests on the estate, would not be liable for a debt incurred by the present plaintiff for the expenses of the pilgrimage, whether incurred by borrowing money or by payment out of her own funds is immaterial. In either case it would not be open to her to charge the estate whether the expenses incurred were for the spiritual benefit of her husband or not. In Hari Kissen Bhagat v. Bajrang Sohai Singh (1969) 13 C.W.N. 544 it is stated by a Hindu Judge that pilgrimage to Benares is not recognized as a legal necessity, but I take it, however, for purposes of this appeal, that the plaintiff also went to Gaya. The learned advocate for the respondent has referred to Gour's Hindu Code, p. 1416, para, 2967, which refers to spiritual neceasity, and in para. 2976, it is stated that no other ceremony is considered to be a spiritual necessity. Pilgrimages and sacrifices are unquestionably pious acts, and regarded as indirectly beneficial to the husband or the father, but they are not ceremonies which fall into the first category as indispensable for his spiritual benefit.
3. The question, however, of whether this pilgrimage made by the widow admittedly was a spiritual necessity or only one of spiritual efficacy does not, in my opinion, materially affect the question in this case, because, as I have already said, there is no authority for holding that a widow who is not in possession of the estate, but only receives maintenance from it, has power to claim from the estate the expenses of pilgrimage undertaken by her even though such expenses have not been taken into consideration in fixing her maintenance. The only case which may seem to lead to a contrary conclusion is a recent case of this Court in Bai Chanchal v. Chimanlal, which lays down that, according to Hindu law, expenses incurred on a pilgrimage can be allowed provided they are a small fraction of the whole estate and are for the spiritual benefit of the deceased husband or father, following Sardar Singh v. Kunj Behari Lal, which, I have already pointed out, was a case in which the widow was in possession of the estate herself and the alienation was subsequently challenged by a reversioner. The facts of Bai Chanchal v. Chimanlal were somewhat different to the facts of the present case. In that case the plaintiff-appellant, a Hindu widow, started for a pious pilgrimage all over India with a lady named Navi Kaki, the paternal grand mother of the minor defendants-respondents, and the mother-in-law of their mother. The plaintiff brought the suit to recover expenses alleged by her to have been incurred during the pilgrimage on account of Navi Kaki on the ground that respondent No. 3 the widow was managing the estate of the minors and had promised to reimburse her the amount with interest. The trial Court held that respondent No. 3 had promised to pay the amount but that no agreement to pay interest was proved. It also held that while a portion of the expenditure was incurred for the spiritual benefit of the deceased father of the minors and could be decreed against the estate, the remainder was not and could only be decreed against respondent No. 3 personally. The expenditure for the pilgrimage to Pandharpur was allowed on the ground that Navi Kaki was accompanied there by the minor sons, defendants-respondents Nos. 1 and 2, and that the latter performed shraddha for the spiritual benefit of their deceased father. And it was remarked that in the present case the pilgrimage was not by the widow or the son but was by the mother of the deceased. Her authority to act for the spiritual benefit of her deceased son is not on the same footing as a similar act by the widow or by the minor sons would have been. The expenditure now claimed as regards the pilgrimage to distant places is not shown to be a small portion of the estate. So it was held to have been rightly disallowed. The facts of this case are not precisely the same as in the present case. The agreement to pay the expenses in that case was by the mother of the minors who was in possession of the estate and the object of the pilgrimage was the benefit of the deceased father of the minors who were in possession of the estate, and therefore the estate was held liable to a certain extent. It appears that the minors themselves went with their grandmother and the other lady, and performed the shraddha of their deceased father. In the present case the estate is in the possession of the nephew of the plaintiff's husband, and the object of the pilgrimage was not the spiritual benefit of the defendants' father, but of the plaintiff's husband, and the case in Bai Chanchal v. Chimanlal may be distinguished on that ground.
4. After considering all these cases I cannot find any authority for holding that a widow who is not herself in possession of the estate, but is merely receiving maintenance out of it, can claim to recover from the estate the expenses which she has incurred by reason of a pilgrimage for the spiritual benefit not of the last holder of the estate, but of her husband. It seems to me clear that she would not be able to charge the estate with those expenses if she had borrowed the money from a creditor. The matter would be different if she had herself been in possession and had alienated a portion of the estate to meet those expenses.
5. In the circumstances, I am of opinion that the view of the owner Courts is correct.
6. The appeal will consequently be dismissed. The parties will bear their own costs in the trial Court, The appellant will pay the respondent's costs in the lower appellate Court and in this Court.
7. Leave to appeal under the Letters Patent granted.
8. AN appeal under the Letters Patent was filed (No. 22 of 1930), but it was summarily dismissed by Beaumont C. J, and Murphy J. on January 28, 1931.