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Ram Dulare and anr. Vs. Smt. Batul Bibi - Court Judgment

LegalCrystal Citation
SubjectFamily;Property
CourtAllahabad High Court
Decided On
Case NumberSecond Appeal Nos. 2364 of 1967 and 2789 of 1968
Judge
Reported inAIR1976All135
ActsHindu Law
AppellantRam Dulare and anr.
RespondentSmt. Batul Bibi
Appellant AdvocateKrishna Prasad and ;S.M.K. Chaudhary, Advs.
Respondent AdvocateN.N. Mukherji, ;Ashok Mohiley and ;Satya Mohan, Advs.
DispositionAppeals dismissed
Excerpt:
.....deceased husband - second time alienation for second trip to gaya and construction of temple for spiritual benefit of her husband's soul - widow from mitakshara school - mitakshara school silent on the law relating to the issue - no difference between dayabhaga and mitakshara law respecting the restrictions inherent in the estate of hindu widow -- held, alienation for maintenance of house and 'gaya shradh' a legal necessity and not bad in law. - - chandi prasad singh, ilr 43 cal 417 =(air 1915 pc 57). there is no plea that the house could be sold in parts and the necessty satisfied by the sale of the portion. the same reasoning was applied to the construction of the temple as well. the first deed clearly recited that she wanted to perform a 'shradh' of her husband at gaya. --it..........one smt. jagrani on 25-10-1921,. the house thereafter passed through several hands under various sale deeds and was ultimately sold to defendants respondents in suit no. 71 of 1963 by the last purchaser suraidin. house no. 339, shahganj (285 old) was sold by smt. janki devi to one hafiz jalaluddin ahmad on 24-2-1931, who sold it to one abdul halim and the latter sold the same to the defendant respondent in suit no. 34 of 1964. the plaintiffs in the two suits claimed title to the properties as reversioners of kripa shanker alleging that the sale deeds were invalid having been executed without any legal necessity. the plaintiffs accordingly claimed possession of the properties and mesne profits and damages from the defendants. suit no. 71 of 1963 was dismissed by the trial court and that.....
Judgment:

Gopi Nath, J.

1. These are two connected Second Appeals. They arise out of two suits Nos. 71 of 1963 and 34 of 1964. Both the suits were filed by Ram Dularey and Sheo Kumar, the plaintiff-appellants for possession of the houses detailed at the foot of the plaints and for recovery of mesne profits. Suit No. 71 of 1963 related to house No. 309 (new) 254 .(old), Shahganj, Allahabad, while Suit No. 34 of 1964 related to house No. 339 (new), 285 (old), Shahganj, Allahabad. The plaintiffs in the two suits claimed to be the reversioners of one Kripa Shanker, who was the owner of the houses in dispute. Kripa Shanker died issueless in 1912 leaving behind his widow Smt. Janki Devi as his heir. Smt. Janki Devi sold house No. 309, Shahgani (No. 254 old) in favour of one Smt. Jagrani on 25-10-1921,. The house thereafter passed through several hands under various sale deeds and was ultimately sold to defendants respondents in Suit No. 71 of 1963 by the last purchaser Suraidin. House No. 339, Shahganj (285 old) was sold by Smt. Janki Devi to one Hafiz Jalaluddin Ahmad on 24-2-1931, who sold it to one Abdul Halim and the latter sold the same to the defendant respondent in Suit No. 34 of 1964. The plaintiffs in the two suits claimed title to the properties as reversioners of Kripa Shanker alleging that the sale deeds were invalid having been executed without any legal necessity. The plaintiffs accordingly claimed possession of the properties and mesne profits and damages from the defendants. Suit No. 71 of 1963 was dismissed by the trial court and that decree was affirmed in appeal. Second Appeal No. 2782 of 1968 arises out of the judgment and decree of the Second Additional District Judge, Allahabad dated 24-4-1968, affirming the decree passed by the learned Munsif, dismissing the suit. Suit No. 34 of 1964 was decreed by the trial court, but dismissed in appeal by the lower appellate court by its judgment and decree dated 8-5-1967. Second Appeal No. 2364 of 1967 is directed against the decree passed by the Second Additional Civil Judge, Allahabad dated 8-5-1967 dismissing the plaintiff-appellants' suit for possession and damages. Thus, both the suits have been dismissed in appeal and the plaintiffs challenge the decrees passed against them on the ground that the sale deeds dated 25-10-1921 and 24-3-1931 were invalid and their claim for possession, mesne profits and damages was entitled to succeed. We are thus required to examine the two sale deeds dated 23-10-1921 and 24-2-1931 respectively and determine whether they are valid in law,

2. A short pedigree is relevant for the purposes of the case.

RAM CHANDRA

|

-------------------------------------------------------

| | |

Badri Nath Shambhu Nath Adi Nath

| |

Kripa Shanker -----------------------------

(died in 1912) | |

Smt. Janki Devi Sheopal Ganga Sahal

(died on 16-6-52) |

-------------------------

| |

Ram Dularay Bandi Din

(Plff.) |

Sheo Kumar

(Plff.)

3. Kripa Shanker died in 1912 as observed earlier leaving behind Smt. Janki Devi as his widow and possessed of five houses. Smt. Janki Devi sold house No. 254 (old) 309 (new) Shahganj, Allahabad to Smt. Jagrani for a sum of Rupees 1,350 under the sale-deed dated 25-10-1921. Relevant recitals in the deed are as follows:--

'Chunki min mukra aksar aukat bimar raha karti hai, aur umra miyad ka koi kayam nahin hai, aur karne Gaya apne Shauhar ka min mukra par farz awwali hai, jis se rooth shauhar min mukra ko aram pahunche aur baikunth men jaye; Chunki Shauhar min mukra bahaisiat muazziz shakhs the aur 5 kitat makan chhor kar bafat kiya hai, lihaza zaruri hai ki Gaya Mazkur hasb haisiyat min mukra Shauhar kiya jawe jisme takhminan Rupees 500 kharch ki zarurat hai, aur chunki 2 kita makanath mazkur bahut shikast ho gaye hain, aur unka kayam bahal rakhna min mukra par farz hai, taki nam wa nishan shauhar min mukra kayam rahe, aur chunki kul masala, chand saal se bahut gira hai, aur marammat makan me takhminan Rs. 400 kharch ki awashyakta hai, aur chunki 3 kitat kaman mazkur se sirf Rs. 13 mahwar kiraya aata hai, jisme karib nisf ke house tax water tax me kharch ho jata hai, aur chunki intzam khurd nukhs was hasastin wa parastin wa ilaj min mukra ka bakiya kiraya se kisi tarah par nahin ho sakta, aur khaskar bawajah ginni chand sail se bilkul namumkin hai, in sab murad ke liye takhminan Rs. 1,400 ki zarurat min mukra ko sakht aan pari hai, min jumla jiske mublig Rs. 900 hasb sharahat mazkura bala Gaya Shauhar min mukra wa maramat makan men sarf ho gaya aur bakiya Rupees 450 min mukra apne khurd nuks ki kausis wa parastani sarf karegi, aur min mukra ko bajuz farokhat karne makan nevro 254 wakai mohalla Shahganj, Shahr Allahabad ke digar aur koi surat nazar nahin aati.........'

4. It will thus be seen that the sale dated 25-10-1921 was made for three purposes: (1) The Gaya Shradh of Shrimati Janki Devi's husband. (2) The repair of houses and (3) her own maintenance. Both the courts below have held that the alienation was made for legal necessity, Rs. 500 being required for Gaya Shradh, Rs. 400 for repair of houses and Rs. 450 for maintenance of the lady. Gaya Shradh is an obligatory religious act for the salvation of the soul of a deceased, and is a legal necessity under the Hindu Law, justifying an alienation. Alienation is also permissible for the maintenance of a widow under the Hindu Law. See Ram Sumran Prasad v. Mt. Shyam Kumari (AIR 1922 PC 356); Neelambal Ammal v. Rajarathnam Pillai : AIR1956Mad336 ; Umakant Mukherji v. Satya Charan Basu : AIR1965Cal189 and Ratilal Fulchand v. Indravadan Manilal : AIR1966Guj133 .

5. As regards repair of houses, the deed recited that it was with a view to commemorating the memory of the deceased husband and preserving the property left by him; that a sum of Rs. 400 was required to be spent for that purpose. The act was a prudent one. Ganga SaJiai the next reversioner in existence at the time of alienation had joined1 in the sale-deed. There was thus a presumption that the recitals were true and money needed was for the purposes mentioned in the deed. A presumption attaches to the genuineness of the recitals in a deed of transfer if the next reversioner joins in it. See Inderjit Singh v. Jaddu : AIR1933All169 and Ramadhin Singh v. Gajraj Singh : AIR1939All513 . A Hindu widow can alienate property for legal necessity as also for the benefit of estate and if it is found that she acted as a prudent owner, the alienation would be upheld (see Jaisri Sahu v. Rajdewan Dubey : [1962]2SCR558 ). The three purposes mentioned in the deed dated 25-10-1921 viz. (i) Gaya Shradh, (ii) repair of houses and (iii) maintenance of the widow, were purposes, sufficient to justify the alienation.

6. Learned counsel for the appellant urged that only purpose, namely, Gaya Shradh was a legal necessity, the other two viz., repair of houses and themaintenance of the widow were not such purposes major portion of the sale consideration being not for legal necessity, the sale was invalid. Reliance was placed on Sanmukh v. Jagannath Pandey (AIR 1924 All 708) and Hari Kissen v. Bajrang Sahai Singh {(1909) 13 Cal WN 544). These cases are distinguishable. In the case of Sanmukh v. Jagannath Pandey (supra) a minor portion of the sale consideration was for legal necessity while the major portion was not for any necessity at all. It was held that since there existed no necessity for a major portion of the sale consideration, the sale was not justified. It was, however, observed that no hard and fast rule could be laid down which would apply to all cases. Every transaction had to be considered on its own merits, and the court has to come to its finding on the facts of each case. Thus, there is no absolute rule that where small portion of the sale consideration is obtained not for legal necessity, the sale must necessarily fall. The case of Hari Kissen Bhagat v. Bajrang Sahai Singh (supra) is also distinguishable for the same reasons, This case was explained and dissented, from in the case of Felaram Roy v. Baglchand Banerji, ((1910) 14 Cal WN 895).

7. Learned counsel for the appellant urged that in any case the whole house need not have been sold when only Rs. 500 were required for the Gaya Shradh. The rule regarding the sale of a part of a property, commensurate with the sum required for the legal necessity has no application to cases where the property cannot be alienated in parts (see Ravaneshwar Prasad Singh v. Chandi Prasad Singh, (1911) ILR 38 Cal 721; affirmed by the Privy Council in Ravneshwar Prasad Singh v. Chandi Prasad Singh, ILR 43 Cal 417 = (AIR 1915 PC 57). There is no plea that the house could be sold in parts and the necessty satisfied by the sale of the portion. In the absence of the relevant plea, it appears that the appellants knew that the house could not be sold in parts and the sale could have been made either of the whole house or not at all. In the instant case, two out of the three necessities mentioned namely, Gaya Shradh and maintenance of the widow were sufficient to justify the alienation. The fact that repair of houses also required raising of money was an additional consideration, which added weight to the necessity of sale. I thus find that the sale deed dated 25-10-1921 was valid and the courts below rightly upheld the same.

8. The sale deed dated 24th February, 1931 related to two houses, viz., house No 285 (old) and house No. 286 (old), Shahganj, Allahabad. These houses were sold by Smt. Janki Devi with the concurrence of the next reyersioner Ganga Sahai for a sum of Rs. 3,500. The sale was made for the purposes of constructing a temple of Sri Mah.adeo.ii and for pilgrimage to Gaya. The deed recited as follows:

'Mujh mukra ko makan mazkoor begaraz tamir mandir Mahadeo ji andar makan numberi 261 mazkoona wa bazarurat kharcha tirath Gayaji karna Manzoor hai.'

9. The sale consideration of Rupees 3,500 was received by the lady in the following manner: Rs, 200 as advance, Rs. 1,300 in cash at the time of the registration and the balance amount of Rs. 2000 by execution of a mortgage deed in respect of the same house by the vendee in favour of the vendor. Suit No. 34 of 1964 challenging this alienation, as noticed earlier, was decree by the trial Judge on the findings that the entire amount of Rs. 3500 raised by the sale of the houses, was never required by Smt. Janki Devi, the amount of Rs. 2000 never having been paid to her. At the time of sale the lady was possessed of five houses. She had already raised funds by an earlier alienation of another house for Gaya Shradh of her husband. The second visit to Gaya was not necessary and it was further not proved that she had in fact gone to Gaya after the sale. He further held that the construction of a temple, though a pious and religious act, could not be said to be one for the spiritual benefit of her husband and as such a purpose justifying the sale.

10. On appeal the lower appellate court reversed the decree and dismissed the suit on the findings that the lady needed money for expenses for her pilgrimage to Gaya and for the construction! of the temple of Sri Mahadeoji, and both the purposes justified the alienation. The court below held that the next reversioner Ganga Sahai having joined in the sale-deed the recitals could be presumed to be correct and a presumption arose as to the genuineness of the purposes mentioned. Learned Judge further held that a second trip to Gaya, though not a spiritual necessity, was such a religious act as conduced to the spiritual benefit of the widow's husband and justified the alienation. The same reasoning was applied to the construction of the temple as well. The alienation was thus upheld on the ground of religious acts conducive to the spiritual benefit of the widow's husband.

11. The decree has been challenged on a variety of grounds. It was urged that the actual amount needed, if at all, was not a sum of Rs. 3,500, but a much smaller amount. It was submitted that Rs. 2,000 were never paid to the lady and the sale of only one house, in the circumstances may have sufficed for the needs of the lady. It may be noticed that the property in dispute in the instant case is only one house, namely, house No. 285 (old), 339 (new), Shahganj, Allahabad. No relief has been asked for in respect of the other house No. 286 which was also the subject matter of the sale. The validity of the deed of sale, in the circumstances, will have to be judged with reference to the house in dispute only. No plea has been raised that the sum of Rs. 1,500 received by the lady, was a consideration disproportionate to the property in dispute or that this house could have been sold in parts or that the amount raised could have been obtained by alienation of a portion of that house. I thus find no force in the contention of the learned counsel on this score.

12. It was then urged that the deed did not recite that the pilgrimage to Gaya was for the spiritual benefit of the widow's husband. It was submitted that unless the religious act was intended for the spiritual benefit of the widow's husband, the alienation could not be upheld.

13. A second pilgrimage to Gaya though not a religious necessity is a pious act conducive to the spiritual welfare of a widow's husband. See Gur Prasad v. Ram Sukh : AIR1952All938 . In that case, it was held that an alienation of a reasonable small portion of the estate of the deceased was permissible for this purpose. It was submitted by learned counsel that since the deed did not state that the pilgrimage was intended for the welfare of the widow's husband it could be inferred that it was intended for her personal benefit and that could not conduce for the benefit of her husband. The same submission was made with regard to the construction of the temple and the installation of the deity of Shivaji. Learned counsel relied on Sham Devi v. Birbhadra Prasad (AIR 1921 All 178) for his submission that an act of religious merit performed by a widow does not necessarily conduce to the spiritual benefit of her husband, and since the two acts in the instant case were not religious necessities for the spiritual welfare of the widow's husband they could not, in the circumstances, justify the alienation of the estate of the deceased.

14. Before I deal with the case cited, the position with regard to the two purposes mentioned in the deed has to toe clarified. The pilgrimage to Gaya in the instant case seems to me to be directly connected with the spiritual welfare of the widow's husband. No case was set up in the written statement that the pilgrimage was intended for the personal benefit of the widow. A pilgrimage to Gaya is normally performed after the death of a person and for the benefit of a departed soul. It is nobody's case that the widow intended to go to Gaya in connection with the spiritual welfare of any one else other than her husband. A personal benefit to herself is also ruled out. Spiritual welfare of the husband appears to have been her intention. The first deed clearly recited that she wanted to perform a 'Shradh' of her husband at Gaya. The next reversioner joined in the deed. The second deed mentioned a trip to Gaya and the next reversioner again joined in the deed. The next reversioner joined only because it was concerned with the spiritual welfare of the widow's husband. In the court below, the case was fought on the footing that the pilgrimage was a second trip to Gaya in connection with the spiritual welfare of the widow's husband but the same being not a religious necessity the alienation was not justified. It was thus conceded that the pilgrimage was connected with the welfare of the widow's husband. A small portion of the estate of the deceased could be alienated by the widow for this purpose as held in Gur Prasad's case (AIR 1952 All 938) (supra).

15. As regards the construction of the temple of Shri Shiva Ji, the same also appears to be connected with the spiritual welfare of the widow's husband. The pilgrimage to Gaya and the construction of the temple follow in close sequence in the deed and it seems to me that the intention 'behind the one was the intention behind the other. No qualifying words have been used in respect of the construction of the temple and the installation of the deity. The next reversioner Ganga Sahai had joined in the deed and the consent in the normal course could be presumed, as having been given for the reason that the alienation related to the spiritual welfare of his deceased cousin. No allegation was made in the plaint that the construction of the temple was for the personal benefit of the lady. For all these reasons, I am inclined to the view that both the purposes were connected with the spiritual welfare of the widow's husband,

16. I shall now deal with the cases cited on behalf of the appellant. In Sham Devi's case (AIR 1921 All 178) (supra), the widow had dedicated a house for the purposes of a 'Dharamshala' and the question arose whether the dedication was binding on the reversioners. It was held that unless the alienation was for the spiritual welfare of the widow's husband it could not be valid in law, as all religious acts performed by a widow do not necessarily conduce to the spiritual benefit of the husband. The dedication of a property for the purposes of a 'Dharamshala' was not considered as such a religious act of a widow which could conduce to the spiritual welfare of her husband. The case is distinguishable on facts. Of the two purposes mentioned in the deed, the pilgrimage to Gaya was directly connected' with the spiritual welfare of the husband. The construction of the temple has also been held by me as one intended for the welfare of the husband. Further, it seems to me that creation of a Dharamshala is more properly an act of charity intended for the benefit of the general public or a section thereof while consecrating a temple and installing a deity therein is primarily an act of worship of God, It is not necessary in the instant case to discuss the respective religious merits of these two acts, as regards the spiritual benefits they confer, since we are only concerned with the spiritual benefit accruing by the construction of a temple.

17. Religious merit accruing by such an act has been extolled in various 'Puranas'. Agni Purana describes it as follows:

'Even building temples in thought destroys the sins of hundreds of births... ...... Those who construct a temple of Lord Hari, their ancestors dwell happily in the Lord's abode, purged of all their sins and sufferings.'

18. 'Vaman Purana' states, 'the establisher of a temple for Vishnu procures the salvation of himself and of eight generations above his grandfathers.'

19. 'Skanda Purana' puts it thus:--

'On beginning the construction of a temple for Krishna, the sins committed in seven births are annihilated and the ancestors rescued from hell.'

20. In Indar Bux Singh v. Sheo Naresh Singh, AIR 1927 Oudh 450 at page 452, it was observed:--

'It is also a well known principle of Hindu law that the husband and wife are considered to be a part and parcel of one body. According to Vrihaspati, the husband and wife participate in the effects of good and evil action and this mutual relation is not dissolved by the death of either partner. It is, therefore, a well established religious belief amongst the Hindus of this country that the erecting of a temple and making an endowment for its upkeep is considered to be an act of high religious merit, and as one, which, if done by a widow, would benefit not only her soul but also the soul of her husband' (See also AIR 1930 Oudh 225).

21. The case of Indar Bux Singh v. Sheo Naresh Singh, (AIR 1927 Oudh 450) was followed by the Madras High Court in Prabhala Krishnamurthi v. Valluri Lingayya, (AIR 1936 Mad 677). See also ILR 43 Cal 574 = (AIR 1916 Cal 792). It is not necessary in the instant case to decide the larger question whether all religious acts performed by a widow necessarily conduce to the spiritual benefit of her husband, it has, however, to be noticed that in Sham Devi's case (AIR 1921 All 175) an observation was made by the Bench that the husband's sharing the benefits of the pious acts of his widow, is a rule propounded by the Dayabhaga School which has no application in Mitakshara. No contrary rule has however been pointed put in Mitakshara. Where Mitakshara is silent, the Dayabhaga rule easily applies. See Rabidat v. Mst. Jawali (AIR 1946 Lah 353) (FB). The learned Judges in that case discussed in great detail the question of the husband's sharing the benefits of the religious acts performed by his widow. They considered Sham Devi's case and a large number of other cases as also the original texts. At page 373 of the report, Achhru Ram, J.. who delivered the opinion of the Full Bench, observed as follows:--

'It is quite true that en act supposed to conduce to the spiritual benefits of the widow need not necessarily be an act supposed also to conduce to the spiritual benefit of the husband, and instances are conceivable of acts supposed to conduce to the spiritual welfare of the widow herself which are not regarded as capable of conferring any spiritual benefit on the soul of the husband. One such instance is the case, already mentioned, of a present made by the widow to her own Guru. The judgment in ILR 43 Cal 574 = (AIR 1916 Cal 792) also does not lay down that an act supposed to conduce to the spiritual welfare of the widow is always conducive to the spiritual welfare of her husband. However, as I have already indicated in my discussion of the relevant passages in the original text-books on Hindu law, and as pointed out in the aforesaid judgment on the authority of some of those passages, very generally the soul of the deceased husband is believed to share with the widow the religious merit accruing from pious acts done by her. This belief is the logical result of the generally accepted theory of the wife being only a part of the husband's own self, the two sharing the fruits of the good and evil acts of each other. And in this respect no distinction can at all be made between the Dayabhaga law and the Mitakshara law. So far as I am aware, there is no difference between the two schools respecting the restrictions inherent in the estate of a Hindu widow succeeding her husband, nor is there any warrant for the assumption that the approach of the two schools to the question of the husband and the wife participating in the effects of good and evil actions of each other is not the same. The references to the text of Dayabhaga in the judgment in ILR 43 Cal 574 = (AIR 1916 Cal 792) are really not references to something said by Jimuta Vahana (the author of Dayabhaga) himself but they are, in fact, references only to the text of Brihaspati and Vyasa quoted by him and these texts are of incontestable authority even in the Mitakshara school. In Viramitrodaya which is a book of undoubted authority under both, the Benares and the Bombay schools of Mitakshara, a rule similar to that to be found in the Dayabhaga is expressly stated and, if anything, in much clearer language than that used by Jimuta Vahana. Viramitrodaya in fact appears to take the view that a gift by a widow for pious purposes is always conducive to the spiritual benefit of her husband.'

22. As observed earlier, it is not necessary in this case to decide the wider question whether the husband shares the benefits of all the religious acts performed by his widow and if not which of them conduce to his benefit. I have held on facts that both the purposes mentioned in the deed dated 24-2-1931 were intended for the husband's spiritual welfare.

23. Learned counsel for the appellant then invited1 my attention to Puran Dai v. Jai Narain, (1882) ILR 4 All 482 and Harmanage Narain Singh v. Ram Gopal Achari, (1913) 17 Cal WN 782 and urged that on the rule laid down in those cases, the alienation in the instant case could not be upheld, in Puran Devi's case, a gift of a house belonging to the widow's husband was made by her to her 'Purohit' in the honour of Lord Vishnu. The learned Judges found, it was for the personal benefit of the widow and thus not conducive to the benefit of the husband. It was observed that all religious and pious acts of a widow do not necessarily conduce to the benefit of the husband and the act being one for the personal benefit of the widow could not justify an alienation of the husband's estate. The case is clearly distinguishable on facts. In the instant case, it has been held by me that the construction of the temple and the installation of the deity of Shiva Ji was an act intended for the spiritual benefit of the husband. In Harmanage Narain Singh's case, the facts were these. The mother of a deceased son alienated his estate for the purposes of installing an idol in a temple. The Bench on the particular facts of that case found that the act was done with the sole intention of benefiting the mother and thus conferred no benefit on the deceased. It is true that the Bench did make an observation that religious acts performed by a widow do not necessarily confer spiritual benefit on the husband. That question however depends on the intention of the person performing the act and the nature of the act. The learned Judges in the case cited did not lay down that in no case will a religious act of a widow confer any benefit on her husband.

24. I having held that the construction of the Shiva temple was with the intention of conferring a spiritual benefit by the widow on her husband, the Calcutta case is not helpful to the appellant.

25. The further question requiring consideration is whether the house in dispute was a small portion of the estate of the deceased which in law could be alienated by the widow for a pious and religious purpose. A small portion of the estate of a husband is capable of being alienated for a religious or pious purpose by his widow. See Gur Prasad v Ram Sukh : AIR1952All938 . In the instant case, no plea was raised that the property was not a small portion of the estate of the deceased or that it was disproportionate to the amount raised or that it could be sold in parts. Admittedly, the house in dispute was one of the five houses left by the deceased. It was thus a small portion of the estate. The alienation was accordingly valid in law.

26. The appeals accordingly fail and are dismissed with costs.


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