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Ram Adhar Misir Vs. Jagnoo Misir and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1938All100
AppellantRam Adhar Misir
RespondentJagnoo Misir and ors.
Excerpt:
.....was perfectly entitled to protect her right by challenging this transfer and proving her title to remain in possession during her lifetime. reasonable expenditure to protect her interest is perfectly valid and is recognized by law :karimuddin v. the learned munsif has given good reasons to reject the evidence. the learned judge apparently was satisfied with the evidence on this point and accepted the genuineness of the defendant's version. it is unfortunate that scarcely any reason is given for his conclusions, but in second appeal it is not open to the appellant to challenge the finding on a question of fact which is supported by evidence however weak......and that the transfer was for legal and valid necessity and consequently dismissed the suit. the learned judge affirmed the decree of the trial court. the judgment of the lower appellate court, as usual, is brief to a degree and it is not possible to ascertain the real facts of the case from the perusal of that judgment. in order to appreciate the evidence, and the facts of the case it was necessary to refer to the judgment of the trial court. at one stage i was of opinion that the appeal should be sent down to the learned judge to be reheard, but having regard to the small valuation of the suit and the expense to which the parties will be put i have gone into the matter myself. the main point that was in issue before the learned judge and was argued before me in appeal is whether the.....
Judgment:

Mohammad Ismail, J.

1. This is a plaintiff's appeal arising out of a suit brought for the cancellation of a sale deed executed by a limited owner, Mt. Sonkali deceased, in favour of defendant 1 for Rs. 300. The plaintiff claims to be the nearest reversioner of one Padarath who died some years ago. After the death of Padarath, Mt. Sonkali, his widow, assumed possession of the property in dispute. The defendants contested the suit and alleged that the plaintiff was not the reversioner, that the transfer was for legal necessity and that the suit was barred by limitation. The learned Munsif upon a consideration of the evidence held that the plaintiff is the nearest reversioner of Padarath, that the suit is within time and that the transfer was for legal and valid necessity and consequently dismissed the suit. The learned Judge affirmed the decree of the trial Court. The judgment of the lower Appellate Court, as usual, is brief to a degree and it is not possible to ascertain the real facts of the case from the perusal of that judgment. In order to appreciate the evidence, and the facts of the case it was necessary to refer to the judgment of the trial Court. At one stage I was of opinion that the appeal should be sent down to the learned Judge to be reheard, but having regard to the small valuation of the suit and the expense to which the parties will be put I have gone into the matter myself. The main point that was in issue before the learned Judge and was argued before me in appeal is whether the alienation of the property by Mt. Sonkali is supported by legal necessity. The details of the sale consideration are as follows : (1) Rs. 100, left with the vendee for payment of a previous mortgage executed by Jai Lal, the father-in-law of Mt. Sonkali; (2) Rs. 140, received in cash before the Sub-Registrar; (3) Rs. 60, left with the vendee to be received with interest later.

The learned Counsel for the appellant has strenuously argued that the Court below has not recorded a proper finding on the binding nature of this item. He has con. tended that the position of a widow is analogous to that of a manager of an infant's estate as defined by their Lord, ships of the Judicial Committee in Hanuman Pershad v. Mt. Babooee Mundraj Koonweree (1854-57) 6 M.I.A. 393. It is contended that it is not sufficient for the alienee to prove the existence of a previous debt for the payment of which the alienation was made. It is urged that it must also be proved that there was 'pressure on the estate, the damage to be averted, or the benefit to be conferred upon it'. On the authority of Ramsumaran Prasad v. Shyam Kumari (1922) 9 A.I.R. P.C. 356 at page 346, it is argued that the word 'necessity' when used in connexion with the transfer by a widow has a somewhat special, almost technical, meaning. It does not mean actual compulsion, but it does mean 'that kind of pressure which the law recognizes as serious and sufficient'. In the present case, the property was hypothecated by Jai Lal father of Padarath, and in order to redeem it money had to be raised. Although there is no proof that there was sufficient income from the property in the hands of the widow, it is alleged by the respondent that she was not bound to pay the debt incurred by her husband's father out of the income of the estate, for the income belonged wholly to her : Ramasami Chetti v. Mangaikarasu Nachiar (1895) 18 Mad. 113 and Debi Dayal Shau v. Bhan Pratap Singh (1904) 31 Cal. 433. It seems to me that the argument of the learned Counsel for the appellant is not well founded and the authorities cited by him have no application to the facts of the case. It is the religious duty of a widow to pay off the debts of the deceased owner, namely her husband or her father-in-law. In Ashutosh Sikdar v. Chidam Mondal : AIR1930Cal351 the following observations were made:

Payment of barred debt left by her husband is a pious duty on the part of the widow and amounts to legal necessity. It is not necessary that there should be any danger to the estate in order to entitle the widow to in our debt or alienate the property of her husband in order to pay off barred debts. She may alienate the whole of the estate inherited if she cannot raise sufficient money for the purpose by alienating a part.

The Courts below have come to the concurrent finding that alienation was made partly to pay off the debt due by the widow's father-in-law. After the death of the father-in-law the widow's husband was bound to pay this debt. The liability on the estate existed when the widow came in possession. The payment of this debt was essential and obligatory. It was therefore within her authority to transfer her husband's property to pay off the debt. I agree with the findings of the Courts below as to this item.

2. The judgment of the learned Judge is by no means illuminating on this point. By reference to the judgment of the learned Munsif it appears that Rameshwar and others, as reversioners, had transferred this property for a consideration of Rs. 500 to one Ganga Singh. A litigation followed this transfer, and Mt. Sonkali was perfectly entitled to protect her right by challenging this transfer and proving her title to remain in possession during her lifetime. Reasonable expenditure to protect her interest is perfectly valid and is recognized by law : Karimuddin v. Govind Krishna Narain (1909) 31 All. 497. The amount spent, i.e. Rs. 140, is by no means excessive. I affirm the finding of the Court below as regards this item.

3. The learned Munsif was of opinion that Rs. 60 was never paid. The learned Judge apparently disagrees with the finding of the Court of first instance although he does not say so in so many words. The learned Judge has held that Rs. 60 was taken for pilgrimage and the pilgrimage is an act of virtue for a Hindu widow. The proposition of law has been put a little too broadly by the learned Judge. A; Hindu widow is not entitled to transfer her husband's property for pilgrimage generally. She may however inour reasonable expenditure for the performance of religious or charitable acts which are supposed to conduce to the spiritual welfare of the deceased owner, and for this purpose may alienate a small portion of the property : Sardar Singh v. Kunj Behari Lal (1922) 9 A.I.R. P.C. 261. Evidence has been led to prove that Mt. Sonkali made a pilgrimage to Gaya some months after the execution of the deed. With this object in view she had left Rs. 60 with the vendee who paid it later. The learned Munsif has given good reasons to reject the evidence. The learned Judge apparently was satisfied with the evidence on this point and accepted the genuineness of the defendant's version. It is unfortunate that scarcely any reason is given for his conclusions, but in second appeal it is not open to the appellant to challenge the finding on a question of fact which is supported by evidence however weak. The amount spent on pilgrimage bears a small proportion to the entire consideration. I affirm the finding of the lower Appellate Court.

The learned Munsif in dealing with the value of the property has held that the alienation was for adequate amount and i he has referred to the earlier transaction made by the reversioners in favour of Ganga Singh which was for the sum of Rs. 500. In view of the concurrent findings of the Courts below in support of legal necessity and the validity of the transfer, I see no reason to interfere with the decree of the Court below. The appeal fails and is dismissed with costs. Leave to appeal under the Letters Patent is refused.


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