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Jai NaraIn Singh Vs. Munna Lal and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1928All92
AppellantJai NaraIn Singh
RespondentMunna Lal and ors.
Cases ReferredThakurmani Singh v. Dai Rani
Excerpt:
.....consent of the other. is it to be said that because the widow who is well-to-do refuses her consent to an alienation made by the other widow in circumstances which render the alienation necessary the estate is not to be bound?.....be the reversioner, was that these two mortgages had been executed by mt. lachman kuar without any legal necessity and that consequently neither they nor the decree which was obtained upon them bound the estate in his, the plaintiff's, hands. a number of defendants were impleaded, one of them being the auction-purchaser. the defendants second party are said to be persons who have taken transfers from the defendants first party.3. the subordinate judge dismissed the plaintiff's suit, being of opinion that the mortgages just referred to had been executed for legal necessity and were binding upon the estate. this finding of the subordinate judge is challenged here in appeal and there has also been raised before us a question of law which, though not raised distinctly before the subordinate.....
Judgment:

1. The appellant in this case is an unsuccessful plaintiff who brought a suit in the Court of the Subordinate Judge of Aligarh for the purpose of avoiding a certain sale in execution of a decree.

2. The decree under which this sale took place had been passed against a widow, Mt. Lachman Kuar, on the basis of two mortgages executed by her, and the case for the plaintiff, who claimed to be the reversioner, was that these two mortgages had been executed by Mt. Lachman Kuar without any legal necessity and that consequently neither they nor the decree which was obtained upon them bound the estate in his, the plaintiff's, hands. A number of defendants were impleaded, one of them being the auction-purchaser. The defendants second party are said to be persons who have taken transfers from the defendants first party.

3. The Subordinate Judge dismissed the plaintiff's suit, being of opinion that the mortgages just referred to had been executed for legal necessity and were binding upon the estate. This finding of the Subordinate Judge is challenged here in appeal and there has also been raised before us a question of law which, though not raised distinctly before the Subordinate Judge, has been allowed to be argued before us.

4. Before coming to the points which have to be determined it is necessary to set out a few facts regarding the history of the property in question and of the family to which it belonged. It is admitted that the property belonged at one time to a man named Tej Singh who died on the 28th January 1873. Tej Singh left surviving him two widows, Mt. Lachhman Kuar and Mt. Chhattar Kuar. Of these the former died on 24th November 1911 and the latter on 8th April 1922. Admittedly, after the death of the last surviving widow, the plaintiff-appellant is the nearest male heir of Tej Singh.

5. Taj Singh had a brother named Jawahir Singh, and the documentary evidence on the record shows that immediately after the death of Tej Singh the estate which had been in Tej Singh's possession was seized by Jawahir Singh. The case which Jawahir Singh put up was that he and Tej Singh were members of a joint Hindu family and that he, Jawahir Singh, was entitled to all the property by survivorship.

6. The two widows of Tej Singh, Lachman Kuar and Chhattar Kuar, thereupon brought a suit in the Court of the Subordinate Judge of Aligarh (O.S. No. 146 of 1873) for recovery of property belonging to Tej Singh. The case for the widows was that Tej Singh was separated in his estate from his brother Jawahir Singh and that they, as widows of Tej Singh, were entitled to possession. The suit was decreed by the Subordinate Judge, copy of whose judgment is on the record at pp. 36 to 44, An appeal was taken to the High Court and the judgment of the Subordinate Judge was affirmed. The High Court dismissed Jawahir Singh's appeal on 19th July 1875.

7. It will thus appear that after the death of Taj Singh these widows were involved in litigation which must have been expensive and it also appears from the record of the suit filed in 1873, that Tej Singh at the time of his death was indebted to a large extent. Jawahir Singh in that suit had raised a plea that Tej Singh had incurred debts.

8. There can be no doubt that after the widows thus obtained possession of the estate of their husband they came to an arrangement by which they partitioned the property for the purpose of convenient enjoyment, but it is necessary to state here that the only property that was left to these widows was a 10-biswas share in a village called Dhori. (The judgment then dealt with a sale-deed executed by both these widows on 2nd May 1898, giving in great detail the history of the family and of the property and proceeded.) To come now to the two mortgages with which we are particularly concerned in the present case. They are respectively of the dates 19th January 1895 and 12th January 1897. The first of these mortgages executed by Lachhmin Kuar was in favour of one Chhatar Mal who subsequently assigned his interest to Chhatar Singh. In this document, at p. 51, it is stated that Rs. 300 have been taken from the mortgagee in order to pay the revenue due for the kharif instalment for 1302 Fasli. It is also recited that a sum of Rs. 50 had been received by Mt. Lachhmin Kuar previous to the execution of the deed. By this document four biswas out of five biswas in the possession of Mt. Lachhmin Kuar in mauza Dhori were mortgaged by way of security. The second mortgage executed by the same lady in favour of Chhatar Singh on 12th January 1897 was for Rs. 500. In this document it is stated that she had received Rs. 271 in cash for food, and that the balance, Rs. 229, had been borrowed in order to pay the land revenue due for the kharif instalment. (The judgment then discussed the evidence of necessity and held as follows.) We hold, therefore, that the alienation made by Mt. Lachhmin Kuar were for necessity, and we also hold that Mt. Chhatar, her co-widow, was a consenting party to these alienations.

9. We come now to the point of law which was raised here and which, as we have said, was not raised in the Court below. Indeed, the point is not taken in the memorandum of appeal, but the question being one of law we thought it proper to hear the learned Counsel on both sides.

10. Mr. Peary Lal put forward the argument that the alienation made by Mt. Lachhmin Kuar, even if it was found to have been made for legal necessity, could not bind the reversioners unless the co-widow joined in the alienation. We have already indicated our opinion that from the circumstantial evidence it must betaken that Mt. Chhatar Kuar was a consenting party to this alienation although it is certainly true that she did not join in executing the two mortgage-deeds of 1895 and 1897 respectively.

11. In support of his argument Mr. Peary Lal relied on a recent ruling of the Madras High Court which is reported in V. Appalasuri v. Kannamma Nayuralu A.I.R. 1926 Mad. 6. In this case the learned Judges, after reviewing all the authorities which deal with the legal position of co-widows, have set out six propositions which they have deduced from the previous authorities. Mr. Peary Lal relies on the fifth and sixth of these propositions The fifth proposition is thus state 1 at p. 486 of the judgment:

Except for the limited purposes mentioned above, that is, during the lifetime of the alienee in a partition of the first kind or during the lifetime of all the co-widows in a partition of the second kind, there can be no alienation by a widow of her interest; and whether there is necessity or not, an alienation by one co-widow cannot bind the reversioner.

12. The sixth proposition is stated in the following language:

If an alienation for necessity is to bind the reversioners all the co-widows must join in it.

13. We are not prepared to accept either of these propositions as stated. We have examined for ourselves all the case-law on this subject beginning with Bhugwandeen Doobey v. Myncbaee [1866] 11 M.I.A. 487. It must be taken as well established that two co-widows succeeding to the estate of a deceased husband take the property as co-parceners in the strictest sense, and as such the general rule regarding alienation would be that there could be no alienation by one without the consent of the other.

14. The cases fell into two classes. In some of them the contest has been between the alienee of one co-widow and the surviving co-widow. In others there has been a claim put forward by the reversioner against the alienee after the death of both the widows.

15. It is necessary to keep these two classes of cases distinct. We need not enter into a decision of the cases in so far as they relate to claims by the survivor of two co-widows against the alienee of the other co-widow. We are dealing hero with a claim made by the reversioner after the death of both the widows. Where there is a single Hindu widow the reversioner is bound by any alienation made by her of her husband's estate for legal necessity. It follows, therefore, that if there are two widows and they both join in a sale or mortgage to raise money for legal necessity, the reversioners are bound, and they are bound because of the existence of a necessity which justifies the alienation. How then does the case stand where the two widows have separated for purposes of conveniently enjoying the estate left by the husband? Is it to be said that if one of the widows, acting under the pressure of legal necessity, is obliged to alienate a portion of the estate in her possession the reversioner is not to be bound? It seems quite clear that the existence or non-existence of legal necessity cannot depend upon the consent of the other widow. Take the case of two co-widows, one of whom has three daughters whom she is obliged to marry; her co-widow has no daughters. Or take again the case of one co-widow who is in easy circumstances and who can depend upon her own relations for support in a time of distress, while the other widow has no such resources at her disposal. Is it to be said that because the widow who is well-to-do refuses her consent to an alienation made by the other widow in circumstances which render the alienation necessary the estate is not to be bound? We do not think that any authority for such a proposition is to be deduced from the reported cases. It is no doubt true that co-widows succeeding to the estate of their husband are undivided coparceners and the general rule of course is that one coparcener is not entitled to alienate without the consent of the other. It is also true that no arrangement made by the widows for the separate enjoyment of portions of the estate can destroy their legal position as coparceners. But is it correct to say that in no case can a coparcener alienate without the consent of the other? The Hindu law does not say so, and in this connexion we would refer to a passage in the Mitakshara, Ch. 1. Section 1, Clauses 27 and 28. Clause 27 deals with the general law regarding the rights of disposal by one coparcener, but Clause 28 declares an exception on that general rule and lays down that even a single individual may conclude a donation, mortgage or sale of immovable property during a season of distress for the sake of the family and especially for pious purposes.

16. If that is the Hindu law to be applied to the case of coparceners there can be no reason in principle why it should not be applied to two co-widows who, according to all the decided cases, are coparceners in the strictest sense, and it seems to us therefore that if there are two co-widows enjoying their husband's estate as coparceners, one of them can, under the exception to the rule we have just quoted, conclude a donation, mortgage or sale of immovable property during a season of distress for the sake of the family and especially for pious purposes.' That being so, we are not prepared to accept the argument that, even where legal necessity exists, an alienation by one co-widow will not bind the estate unless the other co-widow joins in the alienation. The proposition has in our opinion been laid down far too broadly and the exception contained in the Mitakshara, Ch. 1 Clause 28, has not in our opinion been kept in mind. In the course of the discussion one case has been referred to, Thakurmani Singh v. Dai Rani [1906] 33 Cal. 1079. That, in our opinion, supports the conclusion at which we have arrived. In that case it was held that a mortgage by one widow without the consent of the other was binding on the reversioner to the extent that the debt secured by the mortgage was incurred for legal necessity.

17. Holding, therefore, that there was legal necessity in this case and being of opinion that Mt. Lachhmin Kuar was entitled for legal necessity to alienate this property without the consent of her co-widow Mt. Chhatar Kuar, we are of opinion that the estate is bound. But, as we have said, it must be taken that Mt. Chhatar Kuar did consent to this alienation, and while it is true that she did not actually join as a party in the two mortgages executed by Mt. Lachhmin Kuar, we hold that it was not necessary for the purpose of binding the estate in the hands of the reversioners that she should do so.

18. The appeal therefore fails and is dismissed with costs.


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