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Gyanu Kashiba Dhangar Vs. Sarubai Biru Dhangar - Court Judgment

LegalCrystal Citation
SubjectFamily;Property
CourtMumbai
Decided On
Case NumberSecond Appeal No. 1034 of 1940
Judge
Reported inAIR1943Bom266; (1943)45BOMLR477
AppellantGyanu Kashiba Dhangar
RespondentSarubai Biru Dhangar
Excerpt:
hindu law-widow-sale of husband's property in return for annuity for maintenance-whether such sale permissible.;under hindu law a widow has no power to sell her husband's estate in return for a covenant to pay her an annuity for maintenance for the rest of her life. - - in the absence of authority i am certainly not prepared to hold that a widow is entitled to sell her husband's estate in return for an annuity, and if such practice arose, it might have disastrous consequences for any young widow whose annuity ought to last for many years. if so, the purchasers were probably making a bad bargain, unless, of course, the widow died promptly, as she in fact did. however, it is not necessary to go into the question whether the amount of the annuity was reasonable and so forth, because i am..........amount actually spent, that rs. 200 was quite sufficient for the pilgrimage. in appeal the lower appellate judge says that it may be that actually she required about rs. 300 or little more, but he held that rs. 400 was not an extravagant amount. i think it not very relevant to consider how much she actually required. i apprehend that an illiterate widow going on a pilgrimage is likely to spend all she has got; the priests at the temple would see to that. but i find it very difficult to suppose that the widow or a shepherd would really require rs. 400 to go on a, pilgrimage in india, and i should think that the estimate of the learned trial judge that rs. 200 was all that was required is probably accurate. i do not think that the lower appellate court has found as a fact that rs. 400.....
Judgment:

John Beaumont, Kt., C.J.

1. This is a second appeal against a decision of the First Class Subordinate Judge of Nasik exercising appellate powers.

2. The plaintiffs are the reversioners of one Biru who died in February 1935 leaving two widows, who are defendants Nos. 1 and 2 in the suit. The defendants seem to have partitioned their husband's property between themselves for the purpose of their widow's estate, and on May 25, 1935, defendant No. 1 Warubai alienated a piece of land which came to her share of her husband's estate to defendants Nos. 3 to 11, who I am told, are the panchas of some temple in the district in which Biru had lived. That alienation is challenged by the plaintiffs as not being made for legal necessity. The consideration for the sale was Rs. 400 paid to defendant No. 1 to enable her to go on a pilgrimage to Gaya, which is admittedly a holy place in the neighbourhood of Benares. The rest of the consideration was valued at Rs. 600 for the purpose of the Indian Stamp Act and consisted of an agreement by the defendants to pay to defendant No. 1 Rs. 50 a year for maintenance during her lifetime, the maintenance being charged on the property. The learned trial Judge held that, although the proceeding on pilgrimage of a Hindu widow is recognised in Hindu law as a necessity, still Rs. 400 was an excessive sum for this widow to have applied for the purpose. She was an illiterate woman, the widow of a shepherd, and the learned Judge considered, on the evidence of the amount actually spent, that Rs. 200 was quite sufficient for the pilgrimage. In appeal the lower appellate Judge says that it may be that actually she required about Rs. 300 or little more, but he held that Rs. 400 was not an extravagant amount. I think it not very relevant to consider how much she actually required. I apprehend that an illiterate widow going on a pilgrimage is likely to spend all she has got; the priests at the temple would see to that. But I find it very difficult to suppose that the widow or a shepherd would really require Rs. 400 to go on a, pilgrimage in India, and I should think that the estimate of the learned trial Judge that Rs. 200 was all that was required is probably accurate. I do not think that the lower appellate Court has found as a fact that Rs. 400 was a proper sum. Indeed, it is not a question of fact; it is a question of estimate, because it is not suggested that she has any sort of account which shows what she spent.

3. With regard to the second item of consideration, it is argued for the plaintiffs that future maintenance is not a necessity. It is admitted that to raise moneys for past maintenance of a widow, or for her current maintenance, would be a matter of necessity under Hindu law. But I have been referred to no authority for the proposition that a widow can sell her husband's property to provide future maintenance, and on principle I do not see how that can be done. The price is too uncertain. For one thing, on her death maintenance comes to an end, and it is impossible to estimate how long she will live. Another matter to be taken into account in assessing maintenance is the separate property which the widow may possess. It is impossible to say what separate property she may acquire during the currency of the annuity, and in the future the amount of the annuity may be larger than necessity can justify. In the absence of authority I am certainly not prepared to hold that a widow is entitled to sell her husband's estate in return for an annuity, and if such practice arose, it might have disastrous consequences for any young widow whose annuity ought to last for many years. The circumstances of this particular transaction are not disclosed in evidence. The widow is said to have been about forty-five years of age. There is no evidence about the state of her health, or that the amount of the annuity which the purchaser was to pay to her was based on any sort of actuarial basis. The learned appellate Judge held that Rs. 50 was much more than the annual value of the property. If so, the purchasers were probably making a bad bargain, unless, of course, the widow died promptly, as she in fact did. However, it is not necessary to go into the question whether the amount of the annuity was reasonable and so forth, because I am clearly of opinion that a Hindu widow has no power to sell her husband's estate in return for a covenant to pay her an annuity for maintenance for the rest of her life.

4. The lower appellate Court reversed the decree of the trial Court, holding that the amount paid for pilgrimage was reasonable, and so was the amount allowed for future maintenance. I think the lower appellate Court was wrong. The decree made by the trial Court was a declaration that the sale-deed, dated May 25, 1935, is not binding on the reversionary heirs o:E Biru. I think that decree is right, except that on the evidence it would appear that Rs. 200 was necessary for pilgrimage expenses. Mr. Desai for the appellants does not object to a declaration that the sale, except to the extent of Rs. 200, was not binding on the reversioners. I will modify the trial Court's declaration to that extent. Otherwise, appeal allowed with costs throughout.


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