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Gulab Devi Vs. Banwari Lal and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily ;Civil
CourtAllahabad
Decided On
Reported inAIR1940All403
AppellantGulab Devi
RespondentBanwari Lal and ors.
Excerpt:
- - it is well settled now that a widow can alienate the property to which she succeeds from her husband for religious and charitable purposes and for purposes amounting to legal necessity. the plaintiff's suit will therefore fail in respect of only the mortgaged property if she fails to deposit the mortgage money within the time which may be granted to her by the lower court. as the appellant has substantially failed, the respondent will get his coats from the appellant......and mt. gulab dei, plaintiff, succeeded to it. mt. bishan dei was mt. gulab dei's daughter. mt. mansa executed a deed of gift in favour of defendants 1 to 3 in respect of a portion of the property in dispute and a mortgage in favour of defendant 4 in respect of the other portion to borrow money for the purpose of performing 'bhat' ceremony on the occasion of the marriage of mt. bishan dei. the plaintiff's case was that mt. mansa had no right to execute these deeds and they were not binding on her. defendant 4 contended that the mortgage was executed by mt. mansa for a legal necessity. defendants 1 to 3 also contended that mt. mansa had a right to execute the deed of gift. the trial court found in favour of the plaintiff and decreed the suit. defendants 1 to 3 submitted to the decree.....
Judgment:

Ganga Nath, J.

1. This is a plaintiff's appeal and arises out of a suit brought by her against the defendants-respondents for possession of the property described in the plaint. The property in dispute belonged to the plaintiff's brother, Nihal Singh. On his death, his widow Mt. Mansa succeeded to it. She died in 1935, and Mt. Gulab Dei, plaintiff, succeeded to it. Mt. Bishan Dei was Mt. Gulab Dei's daughter. Mt. Mansa executed a deed of gift in favour of defendants 1 to 3 in respect of a portion of the property in dispute and a mortgage in favour of defendant 4 in respect of the other portion to borrow money for the purpose of performing 'bhat' ceremony on the occasion of the marriage of Mt. Bishan Dei. The plaintiff's case was that Mt. Mansa had no right to execute these deeds and they were not binding on her. Defendant 4 contended that the mortgage was executed by Mt. Mansa for a legal necessity. Defendants 1 to 3 also contended that Mt. Mansa had a right to execute the deed of gift. The trial Court found in favour of the plaintiff and decreed the suit. Defendants 1 to 3 submitted to the decree and did not appeal. Defendant 4 went up in appeal. The learned Civil Judge found that the mortgage deed was executed for the purpose of 'bhat' ceremony and that it was valid for only Rs. 250 which were spent on the 'bhat' ceremony. The learned Civil Judge decreed the plaintiff's suit for possession of the mortgage property on the condition of her paying Rs. 250 with interest within a month.

2. It has been contended for the appellant that the mortgage deed was invalid and was not binding on the estate. It has been found by the learned Civil Judge that the mortgage was executed for the 'bhat' ceremony and that out of the mortgage money only Rs. 250 were spent on it. It has been contended for the appellant that Mt. Mansa had no right to execute the mortgage deed in suit. It is well settled now that a widow can alienate the property to which she succeeds from her husband for religious and charitable purposes and for purposes amounting to legal necessity. 'Legal necessity' does not mean actual compulsion. In Ramsumran Prasad v. Shyam Kumari (1922) 9 AIR PC 356 their Lordships of the Privy Council observed at page 745:

It should be observed in limine that the word 'necessity', when used in this connexion, has a somewhat special, almost technical, meaning. A widow can alienate if there are no other means available for the obligatory ceremonies to secure the repose of the soul of her husband. A holder of a Hindu woman's estate can in some circumstances alienate immovable property to pay the last owner's debts, or (if there is no other available source of supply) for her own or infant children's maintenance. Necessity does not mean actual compulsion, but the kind of pressure which the law recognizes as serious and sufficient.

3. In order to ascertain what constitutes a legal necessity it will be necessary to find whether an act is essential and obligatory. An essential and obligatory act cannot but be regarded as one of legal necessity. The learned Civil Judge has found that under the custom it was essential and obligatory to perform the 'bhat' ceremony. He has observed:

Under the ordinary Hindu custom she was, as the learned Munsif rightly observed, under no obligation to perform the marriage of Mt. Bishan Devi, but under the ordinary usage and customs prevalent amongst the Hindus she was under an obligation to send in that marriage customary presents usually called 'bhat.'

4. It is conceded by learned Counsel for the appellant that if a person fails to perform this ceremony, he would fall in the estimation of his caste-fellows. We therefore agree with the learned Civil Judge that 'bhat' was a legal necessity and the mortgage was valid in respect of Rs. 250, which were required for it. The mortgage in respect of Rs. 250 is binding on the estate, and the plaintiff is liable to pay this sum with the contractual rate of interest. The mortgagee brought a suit on his mortgage, and in execution of his decree purchased the property himself and got possession over it on 11th February 1929. Mt. Mansa died in 1935, and then Mt. Gulab Dei, the plaintiff, became entitled to possession. From 11th February 1929 till the death of Mt. Mansa in 1935 the mortgagee remained in possession, and he is not entitled to any interest on his mortgage money for this period. The plaintiff became entitled to possession of the property on the death of Mt. Mansa in 1935, and the mortgagee is therefore liable to account to the plaintiff for the mesne profits of the property from the date of the death of Mt. Mansa till the time the plaintiff pays the mortgage money which she is liable to pay to him. The plaintiff will therefore pay interest on Rs. 250 from the date of the mortgage till 11th February 1929, and from the date of the death of Mt. Mansa till she pays the money to the mortgagee; and against this sum she will be entitled to a set off of mesne profits from the date of the death of Mt. Mansa till the date of the payment of the money by the plaintiff. The plaintiff's suit for possession will be decreed on the condition of payment of this money. There is not sufficient material on the record to ascertain the amount of mesne profits. Therefore, the case will have to go back for the determination of the amount of mesne profits which the plaintiff will be entitled to set off from the interest which she will have to pay to the mortgagee.

5. It has been contended for the appellant that the lower Court's order that 'in case the money is not paid in the time mentioned, that suit shall stand dismissed with costs throughout' is not correct. As already stated, the suit related to two portions of the property, in respect of one of which a gift deed was executed by Mr. Mansa Dei and in respect of the other the mortgage deed in dispute was executed. Defendants 1 to 3, in whose favour the gift deed was executed, have already submitted to the decree and there remains no dispute about the property gifted to them in this appeal. This appeal relates only to the mortgaged property. The plaintiff's suit will therefore fail in respect of only the mortgaged property if she fails to deposit the mortgage money within the time which may be granted to her by the lower Court. It is therefore ordered that the appeal be allowed, the decree of the lower Court be set aside and the case be remanded to the lower Court to readmit it under its original number and to dispose of it in accordance with law according to the observations made above. As the appellant has substantially failed, the respondent will get his coats from the appellant.


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