1. This is a defendants' appeal arising out of a suit for recovery of possession brought by a Hindu daughter by avoidance of a possessory mortgage deed executed by her deceased mother Tursa Kunwar. The plaintiff's father Mukhram Singh died in 1906 leaving some brothers, his widow and a daughter the present plaintiff. The brothers of Mukhram Singh put forward a claim that the family was joint and that they were entitled to the deceased's estate by right of survivorship. There was litigation in the mutation Court in which the widow succeeded. A civil suit was instituted which resulted in a decree in favour of the brothers with regard to all the villages excepting Sasain on 30th November 1908. In appeal to the High Court the decree was reversed and the suit was dismissed. It appears that the brothers on their success in the trial Court obtained delivery of possession after November 1908 and on the widow's success in the High Court possession was restored to her in May or June 1911. There was a further appeal to their Lordships of the Privy Council which was dismissed in July 1913.
2. On 26th October 1914 the widow executed the mortgage deed in question in favour of her son-in-law, the husband of the present plaintiff for a sum of Rs. 15,000. The document recited that the lady had to incur expenses in connexion with the previous litigation and her son-in-law looked after the cases and defrayed the entire costs of the suits from his own pocket. There was an express mention that he spent considerable sums of money in the Revenue and in the original and appellate civil Courts. The deed then goes on to say that after her final success the enemies of her son-in-law provoked her in such a manner that she turned against him and that all the pains that he had taken to look after the cases as well as the expenses of money that he had spent in looking after the cases and meeting his expenses 'which wag due to him by her' altogether passed out of her mind and having regard to the worldly affairs and for the benefit of her soul in the next world she was then willing to pay the entire amount which Chhattarpal Singh spent from his, pocket and for which he was making a pressing demand. The deed recited that the son-in-law had fully explained the account of expenses incurred by him in the cases, the total of which came to about Rupees 10,000. There was a further recital that inasmuch as the amount had been spent partly from his pocket and partly by borrowing money from others she was prepared to pay interest on that amount. The deed also recited that he had spent about Es, 3,000 in meeting her personal expenses during the preceding eight years. Thus the total amount came to Rs. 13,000 principal. She agreed to pay Rs. 2,000 by way of interest on this amount. The mortgage was a possessory one and the mortgagee Chattarpal Singh was in possession of the mortgaged property. There was a recital that the interest on the mortgage money would be equal to the amount of profits and there would be no account taking between the parties.
3. Chattarpal Singh subsequently made a submortgage of his mortgagee rights in respect of the villages excepting Sasain to the contesting defendants 1 to 5. After the death of the widow in 1926, the submortgagee rights in the villages were sold at auction in 1927 in execution of three decrees against Chattarpal Singh. The present suit was instituted by the daughter Mt. Sardar Kunwar, against her husband and his transferees shortly after the death of her mother. The plaintiff challenged the mortgage deed on the ground that it had been obtained fraudulently from her mother, that it was without consideration, and that there was no legal necessity for it. The claim was resisted by the subsequent transferees on the ground that the mortgage deed was for legal necessity and was binding on the plaintiff. The learned Subordinate Judge has come to the conclusion that there was evidence to show that about Rs. 5,800 had been spent by Chattarpal Singh towards the expenses of the litigations, but that there was no proof of the balance having been spent. He further found that it was not proved that any interest was due to Chattarpal. He did not make the plaintiff pay even the sum of Rs. 5,800 because he came to the conclusion that the amount had become time barred when the mortgage deed was executed and therefore there was no legal necessity for the transfer.
4. The defendants have come up in appeal, and challenged the finding of the learned Subordinate Judge. On the question of fact we affirm the findings of the Court below. No doubt the documentary evidence consisting of the decrees of Courts did not show an expense amounting to Rs. 5,800. But there was oral evidence of at least three witnesses to show that Rs. 5,800 in all were spent. As the litigation lasted for a long number of years the amount does not appear to be unreasonable. There must have been many expenses incurred out of Court, and it is also clear that the High Court decree did not show taxation of fees paid to counsel. Having regard to all the circumstances we do not think that we can differ from the Court below as regards this finding that the oral evidence coupled with the documentary evidence shows that Chattarpal Singh did spend about Rs. 5,800 for the lady towards the amount of expenses of the litigation. The case put forward by the defendants in their written statement was that it was on the widows's promise that she would pay to Chattarpal Singh all the expenses incurred in connexion therewith, that the latter defrayed all the expenses incurred in all these cases (para. 12). There was no specific allegation that there existed an agreement between the parties that the payment of this amount would be postponed till after the final success of the civil Court litigation.
5. There is no doubt that a transfer by a Hindu widow of a part of her husband's estate is not binding on the next reversioner after her death unless the transfer was for legal necessity. The present plaintiff, her daughter, is not claiming from the limited widow, but is claiming the property in her own right. She is not a representative of her mother, but of her deceased father.
6. The first point to be considered is whether the transfer by a Hindu widow of a part of her husband's estate in payment of a time barred debt incurred for the benefit or preservation of the estate is for legal necessity so as to make the alienation binding on reversioners. There is no doubt that on the finding of the learned Subordinate Judge the debt was not a personal debt of the widow herself but was incurred in order to recover the estate from rival claimants or to preserve it. It was a debt binding on the estate and there would have been legal necessity for transferring the property in order to pay it off, if no question of limitation had arisen. The learned advocate for the appellants contends that on the analogy of an alienation by a Hindu father to pay off his own time-barred antecedent debt, such an alienation by a Hindu widow is equally valid. The argument is that it is the pious duty of every individual to pay off his or her own debts in order to save his or her soul from hell; and that therefore alienation in order to pay off this time barred debt, originally binding on the estate, amounts to a discharge of a pious obligation.
7. We think that there is fallacy in this argument. The basis of the validity of alienation in order to pay off an antecedent debt is not a pious obligation of the father to pay his own debt but the pious duty of the son to discharge his father's debt. As was observed by their Lordships of the Privy Council in the case of Birj Narain v. Mangla Prasad A.I.R. 1924 P.C. 50 with reference to the independent coparcenary rights in the sons and their being bound by the alienation of their fathers for antecedent debts, the two principles were somewhat contradictory, but the decisions had for a long course of years established both these principles. The second principle was based on the obligation of the son to discharge his father's debts based on the doctrine of pious duty. Their Lordships thought that although the doctrine of antecedent debt did not appear to have been based on any direct text it was above all things necessary stare decisis not to unsettle what had been settled by a long course of decisions. We are not here concerned with any alienation by a Hindu widow in order to pay off a time-barred debt due from her deceased husband for his spiritual benefit or in order to save his soul from bell. Here we have a case of a Hindu widow transferring property in payment of time barred debts incurred by herself although they were binding on the estate at the time. We are not here concerned with the moral obligation of the widow to pay her own time-barred debts. What we have to consider is whether there is any pious obligation on her daughter to discharge that debt. Neither on principle nor on authority we are able to see that there is any such pious obligation on the daughter to discharge the debt incurred by her deceased mother. The widow represented the estate for the time being but she could transfer the property only for legal necessity. When the debt became time barred there was no pressure on the estate at all and she was under no personal obligation to pay up the time-barred debt. Alienations made by her in order to discharge such a debt do not come within the definition of 'legal necessity' as laid down by their Lordships of the Privy Council in the case of Hunooman Prasad Pandey v. Mt. Babooee Munraj Koonwaree [1854-57] 6 M.I.A. 393.
8. The next argument advanced before us is that we ought to presume that the debt had not become time-barred debt. It has to be conceded that the transfer cannot be held to be binding unless there is proof of legal necessity. In the view which we have expressed above 'legal necessity' not only means the existence of a previous debt but the existence of a debt enforceable in a Court of law. If therefore the debt was actuality, barred by limitation at the time of the mortgage, there was no legal necessity for the alienation. The learned advocate for the appellants contends that when it is established that there was a debt originally incurred by the widow and she agreed to pay it, there ought to be a presumption that that debt was enforceable at the time when the mortgage was made. But a mere agreement to pay off a debt does not necessarily involve any acknowledgment that the debt was still enforceable in a Court of law. Many an honest man would be willing to pay a time-barred debt without the least hesitation. We think this is the principle underlying the decision of the learned Judges in the case of Anup Singh v. Fateh Chand A.I.R. 1920 All. 92, where it was held by, the majority that a mere acknowledgment of a liability did not amount to an acknowledgment that the liability was not barred by time and was enforceable in a Court of law. The question whether the debts were barred or not is a part of the question of legal necessity which arose in this case and the whole burden of establishing the legal necessity had to be discharged by the defendants. They failed to discharge
9. The learned advocate for the appellants next contends that having regard to the circumstances of this particular case we ought to presume in agreement between the parties for the postponement of the payment of these debts till the final decision of the case by their Lordships of the Privy Council. It is urged that this was a transaction between the mother-in-law and the son-in-law and the son-in-law advanced loans at a time when litigation was going on as regards the estate. It is therefore contended that we should presume that it could not have been expected that the lady would repay these loans till the case was finally disposed of. It is impossible to draw any such presumption. As pointed out above no such express agreement was pleaded in the written statement nor was any issue framed regarding it. Many things are possible, and it is not fair to make any presumption. The recitals in the mortgage deed themselves go to show that the loan was incurred by Chhattarpal Singh on account of the lady and not that there was a loan advanced by him to her. It also suggests that she had forgotten all about it, but at the time of the mortgage she changed her mind and was willing to pay the entire amount which had been spent by him from his pocket. She also wanted to pay interest on that amount although there was no such agreement to pay interest. The litigation was no doubt fought in the name of the widow but Chattarpal Singh's wife, the daughter of the widow, was also interested in it. It is impossible to presume on what understanding the son-in-law spent the money out of his own pocket in such a case. Furthermore, it is clear that the widow did obtain possession of some part of the estate from the mutation Court and she retained the share of the village Sasain all along. As regards the bulk of the estate she lost possession sometimes in November 1908 and recovered possession in May or June 1911. For the rest of the period she was in possession all along. In these circumstances, it is impossible to presume that there was necessarily an agreement between the parties that the amount advanced by Chattarpal Singh was advanced by him as a loan, the payment of which had by an agreement been postponed till the final decision by their Lordships of the Privy Council.
10. Even apart from the question that the debts had become time barred, it may be pointed out that what we have to see is whether the transaction of the mortgage was for necessity. The lady was in possession of part of the estate and agreed to put her son-in-law in possession of shares in four villages yielding Rs. 2,000 a year as not profits (according to the uncontradicted statement of Sardar Kun-war) for an ostensible sum of Rs. 15,000 out of which only Rs. 5,800 are now proved to have actually passed. The debt was at that time-barred. Although there was no agreement to pay interest she agreed to allow the profits of the whole landed property to go towards the payment of the interest which, as now found would be only Rs. 5,800. It was open to her to mortgage her life-estate only, but she went further and professed to mortgage the absolute estate. Can it be said in these circumstances that the transaction of mortgage was for necessity? In our opinion the answer must be in the negative. The result therefore is that the appeal is dismissed.
11. As regards costs there is one consideration which cannot be lost sight of. On the evidence there is nothing to show that the husband and the wife were not on friendly terms. Indeed the evidence suggests that even the mother-in-law was living with her daughter and son-in-law. The mortgage was made partly for legal necessity in favour of her son-in-law who made subsequent transfers for good consideration. The husband of the plaintiff who is responsible for these transfers is still alive and has not been put into the witness box. The result of the decree is to deprive the transferees of the money which they had paid to the plaintiff's husband. The defendants in express terms put forward the case that it was in collusion with the husband that the plaintiff had instituted this suit. There was an express plea that the mortgage had been made with the knowledge of the plaintiff. The circumstances of the case also point to it. We think having regard to all the circumstances it would be just and equitable to direct that the parties should boar their own costs in both the Courts.