1. This appeal is concerned with the question of validity of an alienation made by one Laxmibai on 6-4-1908. Laxmibai was the widow of one Vasudeo. Vasudeo and Ramchandra were two separate brothers. Ramchandra died in 1917, Vasudeo having died previously in 1903. Ram-chandra left a widow Gangabai, but no son, and the widow Gangabai adopted one Vishwanath as a son to her deceased husband in 1922.
Gangabai died in 1927 and Laxmibai died in 1941. Vasudeo had left certain immoveable property consisting of some seven lands, including the suit land, which is Survey No. 654. Between 1904 and 1906 Laxmibai sold six lands to several persons and in 1908, she sold the suit land to one Narayan for a sum of Rs. 200/-.
The sale-deed recites that Laxmibai required the amount for going upon a pilgrimage to Kashi. On 11-2-1949, Vishwanath filed the present suit challenging the several alienations made by Laxmibai and the basis of his claim was that the alienations were not supported by legal necessity and that the plaintiff, as the nephew of Vasudeo, the last owner, was entitled to recover possession of the property.
2. Defendant No. 1 is a purchaser of the suit property from Krishnaji, a nephew of Narayan, who was the original purchaser of the property from Laxmibai, and he purchased the suit land on 1-5-1934, for the consideration of Rs. 1,000. Defendant No. 1 contended, by his written statement, that the alienation made by Laxmibai was for legal necessity and he raised several other contentions. But since those contentions have not been agitated in this appeal, it is not necessary to mention them.
3. The learned Judge held that the alienation of 6-4-1908, was not supported by legal necessity and made a decree in favour of the plaintiff, conditional upon the plaintiff paying to defendant No. 1 a sum of Rs. 1,500 which was the amount of improvements made by defendant No. 1. There was a usual order about mesne profits and costs of the suit. From that decree, defendant No. 1 has come up in appeal.
4. In the Court below the plaintiff was called upon to prove his adoption. The learned judge recorded a finding in his favour, and that finding is not now challenged in this appeal. The only question for decision is whether the alienation effected by Laxmibai on 6-4-1908, is justified by legal necessity. Now, the necessity as recited in the sale-deed is that the widow required money for a pilgrimage to Kashi, i.e., Benares. Mr. Hungund who appears for defendant No. 1 contends that, looking to the recital of necessity in the sale-deed, the Court below was wrong in holding that the alienation was not justified by legal necessity.
In Mulla's 'Principles of Hindu Law', 11th edn., p. 183, it is stated in Section 181A as fellows:
'A widow or other female heir may alienate an estate for certain religious or charitable purposes. These purposes may be divided into two classes, namely:
(a) The performance of the obsequial ceremonies of the deceased owner mentioned in Clause (i) below, and the payment of his debts mentioned in Clause (iv) below.
(b) The performance of religious ceremonies of persons other than the deceased owner mentioned in clause (ii) below, and religious or charitable acts which are supposed to conduce to the spiritual welfare of the deceased owner mentioned in Clause (iii) below.
The first class relates to acts which are 'essential and obligatory'. The second class relates to acts which although not indispensable or obligatory ire still pious purposes which conduce to the benefit of the soul of the deceased. As regards the second class, she can alienate a 'small portion' only of the estate for the pious or charitable purpose she may have in view- .....'
At page 184, Clause (iii) referred to above is as follows:
'Religious or charitable acts which conduce to the spiritual welfare of her husband. These acts are not essential or obligatory.'
It has been held that if a widow undertakes a pilgrimage to Gaya for performing her husband's shradha' or undertakes a pilgrimage to Pandhar-pur, these would be for the spiritual benefit of her husband and in performance of her duty to his soul. But it has been also held that if a widow undertakes a pilgrimage to Benares, then that act of her does not fall within the benefit of the husband and in performance of her duty to his soul.
With respect, I am unable to discover the point o>f distinction between a pilgrimage to Gaya and Pandharpur, and a pilgrimage to Benares. If the object of the visit is to confer spiritual benefit iipon the soul of her husband, I do not see any reason why one should fall within the religious purpose and not the other.
But an old case in -- 'Hari Kissen Bhagat v. Bajrang Sahai Singh', 13 Cal WN 544 (A) has taken the view that a pilgrimage to Benares does not fall within the religious purpose of conferring spiritual benefit upon the husband. In my view, the true test appears to be that provided the act of the widow is to confer spiritual' benefit upon the husband, and ihe gives effect to her intention by alienating a small portion of the property, it should fall within the religious purpose contemplated by Section 181A(2) (iii). In this connection, I may refer to the observations of Mr. Justice Madgavkar in the case reported In -- 'Bai Chanchal v. Chimanlal'. AIR 1928 Bom 238. This is what the learned Judge says; (p. 209):
'.....Pilgrimages in general regarded as spiritual acts are not absolutely necessary but only at the most commendable; and while the Courts do not disallow any expenditure reasonable under the circumstances out of the estate, they will also scrutinise with care such expenditure particularly where it relates to distant pilgrimages, the expenses of which are not essential considering the residence of the parties and the custom of the cast. Obviously a pilgrimage by a Gujarati Vaishnava to Dakore or by a Maratha to Pandharpur stands on a different footing to a pilgrimage by either to Benares or to Rameshwar. If I may say so without disrespect to the orthodox Hindu view emphasised by Mukerjee J. in -- 'Khub Lal Singh v. Ajodhya Misser', AIR 1916 Cal 792'
Undoubtedly, a widow has authority to act for the spiritual benefit of her husband. But the act must be one for the spiritual benefit of her husband, and the alienation must be confined to a small portion of the husband's estate.
5. Now, in the present case, the only evidence in support of justifying necessity is the recital in the sale-deed. It the view taken in -- 'Hari v. Bajrang (A)', is correct, then there is no doubt that this alienation is illegal Again, if the view is correctly stated by Mr. Justice Madgavkar, then too this alienation would not be justified, and in a case where there is no evidence other than a mere recital in the deed of sale, I am not prepared to say that the object of Laxmibai in going to Benares was for conferring spiritual benefit upon her husband.
This is apart from the fact that the religious act, although it conduces to the spiritual welfare of the husband, is not an essential act or an obligatory act, I should have thought that unless the acts are essential or obligatory, they would not constitute legal necessity. But it appears that the view which has prevailed is that the act must be a religious act, and the act must confer spiritual welfare upon the husband.
Again, the act must he confined to the alienation of a small portion of the husband's estate. In the present case, Laxmibai had alienated the six lands between 1904 and 1906. The only remaining land with her was the suit land and this land she sold in the year 1908. Even assuming therefore that the suit land was a small portion of the property of Vasudeo, I am far from being satisfied that the object of Laxmibai in visiting Benares was to confer spiritual benefit upon the husband.
If a pilgrimage to Benares does not constitute legal necessity, which was the decision in 'Hari v. Bajrang (A)', there is no question that this aliena-tion is not a justifiable one. In my view, therefore, the Court below was right in holding that the alienation of 1908 is not justified by legal necessity.
6. This takes me to the cross-objections filed by the plaintiff. In this connection certain facts are worth repeating. The alienation of 1908 was for a sum of Rs. 200. The alienation in favour of defendant No. 1 is for the consideration of Rs. 1,000, and the alienation has been challenged in the year 1949. Mr. Hungund argued that although the plaintiff's adoption took place in 1922, the plaintiff did not file a suit until the year 1949. But it has to be remembered that Laxmibai, the alienor, lived up to the year 1941.
Until 1941 the plaintiff could not have sued to recover possession of the suit land. It may well be that it was open to him to file a suit immediately thereafter. But the law of limitation allows a reversioner 12 years within which to bring a suit from the date of the death of the female owner. If that is so, there is not much substance in the contention that the plaintiff did not file a suit until the year 1949.
7. On the question of improvements, evidence was led. Defendant No. 1 stated in the course of his evidence that the land purchased by him was a fallow land, and that he had spent about Rs. 2,000 to Rs. 3,000 for the improvements. In cross-examination he admitted that although he had given this land for improvements to a contractor, there is no written agreement and that he had not taken any receipts from the contractor. Nor had he got any accounts or notes. In answer to the question by the Court, he stated that at the time of his purchase, the income of the land was 4 to 6 maunds and at the date of evidence the income was 10 to 32 maunds. He also stated that the land was worth Rs. 2,000.
In support of his claim, he examined the contractor Appa. Appa is, by occupation, a labourer. He said that he had taken the contract and had worked on the land for two years. He said that he had spent about Rs. 3,000 for the improvement. In cross-examination he stated that defendant No. 1 had paid him Rs 3,000 in three or four instalments, but he had not passed any receipts. He also stated that about 30 or 40 people were working under him, and that he had not kept any 'tippan . One obvious comment upon the evidence of defendant No. 1 as well as Appa is that their evidence is entirely vague.
There is no satisfactory evidence at all. A transferee is entitled to improvements under Section 51, of the Transfer of Property Act, and under that Section the transferee has a right to require the person causing the eviction to have the vlue of the improvement estimated and paid or secured to the transferee. The amount spent for improvements is a fact within the special Knowledge of the transferece and it is for him to lead satisfactory evidence in support of his claim. If defendant No. 1 really spent Rs. 3,000 for the alleged improvements, one would expect some contemporaneous record about the amount having been so spent by him.
Admittedly, there is no written evidence in the case and I find it difficult to accept the evidence of Appa, the contractor, who is merely a labourer, that defendant No. 1 paid him Rs. 3,000 in three or four instalments. However that may be, the fact remains that defendant No. 1 purchased the suit land in 1934 for Rs. 1,000. The evidence of the plaintiff is that the value of the land was, at the date of the suit, Rs. 4000.
According to defendant No. 1 the value of the land was Rs. 2,000. But significantly enough, the learned Judge considered that the value of the land was Rs. 3,000. Now, defendant No. 1 was until eviction the owner of the property. He was a person who was in the best position to know about the price of the land, and if defendant No. 1's estimate was that the price was Rs. 2,000. I would hesitate to accept the conclusion of the learned Judge that the value of the land was Rs. 3,000.
It would seem that the learned Judge's estimate was based partly upon the evidence of the plaintiff who stated that the value of the land was Rs. 4,000. But there is some explanation for the plaintiff's estimate. The plaintiff was challenging the alienation, and it may well be that in order -to succeed, he would try to establish that the value of the land was much more than what it purported to be.
In this state of the evidence, Mr. Kotwal for the plaintiff argues that the amount of improvements awarded by the learned Judge is plainly excessive. But Mr. Hungund for defendant No. 1 has supported the decree of the trial Court. There are, however, two facts which stand out and which are beyond dispute. The first is that the land was originally fallow, and that at the date of purchase, the income of the land was 4 to 6 maunds, while at the date of the suit, the income was 10 to 12 maunds.
If the land was fallow, and the income is doubled or more than, doubled, one would be entitled to say that the income has increased because of the improvement effected by defendant No. 1. A land which is fallow would not yield the income estimated, unless improvements had been effected by the owner of the land. The second fact is that while in 1934 the value of the land was Rs. 1,000, the value of the property at the date of the suit was according to one estimate, Rs. 2,000 and according to another, Rs. 4,000.
Now, a land may appreciate in value either because there is a general rise in prices or the value may increase on account of the improvements made by the owner. Defendant No. 1 is now sought to be evicted, and I think apart from the improvements made by him and money actually spent by him, lie would be entitled also to some consideration in the shape of the increase in the value of the lands. If, of course, the value has increased merely as a result of increase in prices, that would be an entirely different situation, and there is no evidence in this case to show that the land has appreciated in value merely because of the general rise in prices.
On the whole, therefore, I think that the learned Judge was right in taking the view that defendant No. 1 was entitled to the amount spent by him for improvements. But as I said earlier, there is no satisfactory evidence to prove the actual amount spent by him. If the case was one in which no evidence on this point was led in the Court below, then this would be a case clearly for remand. But in this case the Trial Court has raised an issue and parties have led evidence.
It is, therefore, possible to record a finding upon the evidence such as is led in this case. I am therefore, inclined to take the view that defendant No. 1 is entitled to the amount spent by him for improvements and also entitled to some consideration because of the increase in prices as a result of those improvements. But I am not satisfied that the amount awarded by the Court below is correct.
In point of fact, although defendant No. 1 has given a measure of the income, there is no evidence to show as to what that income would be in terms of rupees annas and pies. Even so, I think, all things considered, that defendant No. 1 would be entitled to be paid a sum of Rs. 1,000 instead of Rs. 1,500 awarded by the Court below,
8. The result of the aforesaid discussion is that the decree of the lower Court will be varied by substituting the figure of Rs. 1,000 in place of the figure of Rs. 1,500 in Clause (c) of the lower Court's order. Subject to this variation, the decree of the lower Court will be confirmed,
9. The appeal fails and is' dismissed with costs.
The cross-objections partly succeed and theywill be allowed in the sense indicated above, butwithout any order as to costs.
10. Order accordingly.