P.V.B. Rao, J.
1. Defendants 1 and 2 filed this appeal against the judgment and decree of the learned Subordinate Judge of Cuttack decreeing the plaintiffs suit for a declaration that the alienation in favour of defendant 1 of the suit property by defendants3 and 4 is not for legal necessity and does not bindthe plaintiff who is alleged to be the nearest reversioner.
2. Plaintiff's case is that one Ananda Ojha, Dinabandhu Ojha and Lokanath Ojha were three brothers and were living as members of a joint family; that Lokanath and Dinabandhu died one after another leaving no issues and Ananda was the sole surviving coparcener who alone succeeded to the land and house and was solely in possession thereof; that Ananda had two wives Manika the first wife who was the mother of the plaintiff and Mani the second wife who is defendant 3 and her daughters arc defendants 5 and 6; that defendant4 had no right to alienate the property; that defendant 3 had only a life interest in the disputed property; that defendants 3 and 4 executed an invalid and collusive kabala on 9-7-1949 without any legal necessity in favour of defendant 1 who is the wife of defendant 2 without consideration; that the recitals made in the sale deed were all false; that there was no legal necessity for the alienation and the alienation does not bind the reversioner; and that the suit was filed by theplaintiff alone as defendants 5 and 6 did not joiner in filing the suit.
3. Defendants 1 and 2 contended that the three brothers Ananda, Lokanath and Dinabandhu were separate; that the plaintiff was not the next reversioner of late Ananda; that consequently the suit filed by her was not maintainable; that after making bona fide enquiries about the existence of legal necessity defendants 3 and 4 executed the sale deed in favour of defendant 1 to meet their maintenance expenses, to liquidate certain debts contracted for protecting the property, for the pilgrimage expenses, for construction of a residential house for defendant 3 and for future maintenance; and that the kabala was consequently binding upon the reversioners.
4. The learned Subordinate Judge held that the three brothers Ananda, Lokanath and Dinabandhu were members of a joint family at the time of the deaths of Lokanath and Dinabandhu; that Ananda was the sole surviving coparcener; that the suit was maintainable by the plaintiff: that the kabala was not for legal necessity and that it did not bind the reversioners and consequently granted the declaration prayed for.
5. Mr. S.N. Dasgupta, learned counsel for the appellants does not seriously challenge the finding of the learned Subordinate Judge that Ananda, Lokanath and Dinabandhu were members of a joint family and that Ananda was the last surviving coparcener but contends that the learned Subordinate Judge erred in holding that the kabala was not for legal necessity and that the suit was maintainable.
6. With regard to the first point that the sale deed was for legal necessity, the learned counsel for the appellants contends that the recitals in the sale deed clearly show that the alienation was made for justifiable and necessary purposes and that the vendee made reasonable enquiry as to the existence of the same.
The kabala was for paying off the debts of the creditors which were incurred for the purpose of maintenance and for financing litigation in Original Suit No. 205/43 of 1947/48 in the Court of the Second Munsif, Cuttack, for the construction of a new house, for performing the religious rites and going on pilgrimage and for future maintenance.
7. The learned Subordinate Judge held that there was no satisfactory evidence in support of there being any want for maintenance and of any want for payment of petty debts necessitating the execution of the kabala. I am of opinion that this finding is contrary to the evidence in the case. (After discussion of the evidence His Lordship concluded as follows :)
From this evidence I am clearly of opinion that the learned Subordinate Judge is wrong in saying that there is no satisfactory evidence in support of there being any want for maintenance and of any want for payment of petty debts necessitating the execution of the kabala. The prices of food stuffs also considerably increased since 1946 and the plaintiff ceased to help the widows. I am therefore of opinion that the widows were in want and contracted debts for their maintenance.
8. Secondly there is also evidence of P.Ws. 2, 4 and 5 to the effect that there was a litigation between defendants 3 and 4 and the plaintiffs husband regarding the recovery of possession of a portion of the suit property and that litigation lasted for a long time. P.W. 4 the husband admits in his evidence that defendants 3 and 4 filed a title suit for ejecting him from the property; that they had obtained a decree for ejectment and that he had filed an appeal which was pending.
Consequently, there can be no doubt that the widows incurred litigation expenses for discharge of which debts also the suit kabala was executed. The learned Subordinate Judge himself also holds that this expense for litigation to preserve the property was undoubtedly a necessary expense and fixes the amount of litigation expense by a guess at about Rs. 100/-.
9. The house standing on the suit property was in a very dilapidated condition and was not habitable. It required a heavy expense for repairs. The widows wanted to construct a new house to live in and consequently it is the case of the defendants that the suit property was sold along with the open site.
The learned counsel for the appellants contended that in view of the fact that the suit house was in a dilapidated condition, the Municipal authorities, several times warned defendants 3 and 4 to demolish the same and that the widows had no means of income to spend for the heavy repairs which required at least a sum of Rs. 5000 to Rs. 7000/-. The widows had no other alternative but to sell the disputed land and to construct a new thatched house for themselves to live in.
Consequently he contends that the sale of the' suit house was justified on this ground also' as it was necessary for them to dispose of the dilapidated house and to have a new house to live in. The widows being entitled to residence, he contends, that the sale is for necessity on this ground. He also contends that the sale is also for the benefit of the estate. D.W. 4 the overseer of the Cuttack Municipality, D.W. 2 the Tax Collector of the Cuttack Municipality, D.W. 3 the Jamadar of the Cuttack Municipality--and D.W. 1 a retired P.W.D. estimator gave evidence in support of the defendants' caste that the disputed house was in a dilapidated condition which was also admitted by some of the plaintiff's witnesses.
According to these witnesses, the entire roof of the building was in a leaky condition and in some of the roofs the beams and rafters had fallen down and in others they were not in good condition and that there were cracks and holes in the walls and the floor was also in a bad condition. Their evidence also shows that the house was not habitable and that it was in a condition endangering human life.
D.W. 10 the husband of defendant 1 stated in his evidence that after the purchase he had repaired and reconstructed the building at a cost of Rs. 7000/- and filed also documentary evidence to support the same. The learned Subordinate Judge opined that he could not dismiss the evidence of D. Ws. 2, 3 and 4 as untrustworthy but holding that till the date of sale defendants 3 and 4 and the widowed daughter of defendant 5 were all living in the suit house came to the conclusion that it could not be said that the house was entirely in a rotten condition as to endanger human life.
The widows had no other alternative but to -reside in that house supporting the beams as they had no other place to live in. Holding that there was no notice by the Municipality on defendants. 3 and 4; that defendants 1 and 2 in addition to repairs also constructed two new rooms and that at least 3 rooms were in good condition came to the conclusion that the estimated amount required for repairing the house would be about Rs. 2000/-to Rs. 2500/-.
He categorically held that in view of the evidence the only means of livelihood of defendants3 and 4 being by polishing horns and there being no evidence of other source of income available to them it could be safely taken for granted that the widows had not the means to effect the repairs.
On this finding the learned Subordinate Judge considered whether defendants 3 and 4 acted prudently in selling away the suit property which consisted of the building along with 153 decimals of land which formed a part of the suit property and after discussing the evidence he came to the conclusion that in view of his finding that the amount required for repairs being not more than Rs. 2500/- the necessity for selling the suit property did not appear to be justifiable either for any legal necessity or for the benefit of the estate.
He opined that this necessity could have been met by the sale of a major portion of the entire fallow land only to fetch a sum of about Rs. 2500/- and that for the repairs of the building portion of the suit property the fallow lands could nave been sold and the building could have been repaired by even demolishing 3 rooms and sellingthe materials thereof and effecting minor repairsif any in the other three rooms.
In coming to this conclusion the learned Subordinate Judge failed to note that the widows according to his own finding were not in possession of any income even for their maintenance. Under those circumstances I fail to see how they could have got money to pay for the demolition of the house which would in my opinion amount to a substantial sum.
The widows sold the house being unable to meet the expense of demolition and with that money wanted to build a house for their residence. It is admitted in evidence that defendant 3 stocked some bricks for the purpose of building the new residence and we were told at the Bar that a house was actually built for her residence.
10. On this the learned counsel for the appellants contends that the sale of the building portion was not only for necessity but also for the benefit of the estate, Mr. S.K. De, the learned counsel for the respondents contends very vehemently that the sale of the building was not for necessity and it could rot be supported also on the ground of benefit as it was not the act of a prudent owner of the property.
He relied in support of his contention on the following decisions in the cases of -- 'Kalishanker Das v. Dhirendra Nath', AIR 1954 SC 505 (A);-- 'Bhagwati Prasad v. Musri Lal, AIR 1934 All 1009 (B); -- 'Ragho Totaram v. Zaga Ekoba', AIR 1929 Bom 251 (C) and -- 'Rameswar Mandal v. Provabati Debi, AIR 1915 Cal 141 (2) (D). In my opinion these cases do not support his contention in the present case.
11. In AIR 1954 SC 505 (A),, it was held,
'If there is no necessity in fact or if the alienee could not prove that he made bona fide enquiries and was satisfied about its existence, the transfer is undoubtedly not void but the transferee would get only the widow's estate in the property which does not affect in any way the interest of the reversioner. In such a case an alienee from the transferee cannot claim to acquire any higher rights than what his transferor had.
This proposition of law is not disputed, and is not relevant for purposes of this case.
12. In AIR 1934 All 1009 (B), it was held,
'A transferee from a Hindu widow has no right whatsoever to alienate the property so held, in such a way as to defeat the reversioners. No plea of legal necessity can arise in such a case.'
This case has no application to the present dispute.
13. In AIR 1929 Bom 251 (C), it was held.
'This benefit to the estate for supporting an alienation must be of a protective character. The necessity involves some notion of pressure from without. The benefit to the estate would not include an alienation of the property for the purpose of investing the proceeds so as to yield a better return,' and would not imply vast powers of management which might amount to an authorization to embark on speculative ventures.'
14. In AIR 1915 Cal 141 (2) (D), it was held.
'The powers of a Hindu widow, in respect of alienation of the estate of her husband, are similar to those of a guardian of an infant. Consequently a person who claims title under an alienation from her must prove that there was legal necessity for it, that is, such pressure on the estate at the time the loan was taken or the alienation made as justified the act of the widow; he can also protecthimself by proof of bona fide enquiry, and if the fact of such enquiry is established, the real existence of an alleged sufficient and reasonably credited necessity is not a condition precedent to the validity of his title.'
On the strength of these two decisions as also on the observation of the Judicial Committee in the case of -- 'Palaniappa Chettiar v. Sreemuth Devasikamoney Pandara Sannadhi, AIR 1917 PC 33 (E), Mr. De contends that to constitute necessity or benefit justifying an alienation there must be shown an actual pressure on the estate and tie alienation can be justified only as a protective or defensive measure.
15. In AIR 1917 PC 33 (E), the Judicial Committee observed :
'The preservation however of the estate from extinction, the defence against hostile litigationaffecting it, the protection, of it or portions from injury or deterioration by inundation, these andsuch like things would obviously be benefits.'
Relying on this observation the learned counsel for the respondents contends that the defendants did not prove the pressure necessitating the alienation so as to constitute benefit. This contention practically amounts to saying that 'necessity' and 'benefit are to be taken practically as meaning the same thing.
But this could not have been the intention of the Judicial Committee when we take the sentences above this observation into consideration as also the observations made in some other cases. The sentences immediately above the observation; noted above are to the effect:
'No indication is to be found in any of them as to what is, in this connexion, the precise nature of the things to be included under the description 'benefit to the estate'. It is impossible, their Lordships think, to give a precise definition of it applicable to all cases and they do not attempt to do so.'
16. In the case of. -- 'Hunnomanpersaud Panday v. Mt. Babooee Munraj Koonweree', 6 Moo Ind App 393 (PC) (F), their Lordships observed,
'The power of the manager for an infant heir to charge ah estate not his own, is, under the Hindu law, a limited and qualified power. It can only be exercised rightly in a case of need, or for the benefit of the estate. But where, in the particular instance, the charge is one that a prudent owner would make, in order to benefit the estate, the bona fide lender is not affected by the precedent mismanagement of the estate. The actual pressure on the estate, the danger to be averted, or the benefit to be conferred upon it, in the particular instance, is the thing to be regarded.'
17. From these, it is clear that 'benefit' is quite different from 'necessity' and if the alienation which is for the benefit of the estate is distinct from 'necessity' which a prudent manager would do, then the alienation can .be upheld. The powers of a Hindu widow are under the Hindu law analogous to that of a guardian ,of an infant or the manager of a Hindu family.
18. In the case of -- 'Nagindas Maneklal v. Mahomed Yusuf Mitchella', AIR 1922 Bom 122 (G), it was held :
'As the adult coparceners very properly decided to dispose of the house which was in dilapidated condition and which the Municipal Committeewanted to pull down the minor coparceners were bound by the agreement. The benefit of the family may under certain circumstances mean a necessity for the transaction.'
I do not desire to attempt to lay down any general rule as to what would constitute necessity and as to when a Hindu father or coparcener may deal with the ancestral estate for the obvious benefit of the family 'so as to bind the minor members. Even taking it that such power to alienate can be exercised only when a clear case of necessity is made out, I think that the term 'necessity' must not be strictly construed.
The benefit t6 the family may under certain circumstances mean a necessity for the transaction. In construing the expressions used by Vijnanesvara in the Mitakshara to explain the verse which he has quoted with approval on this point, regard must be had to the word 'kutumbarthe' used in that verse. The expressions used must be interpreted with due regard to the conditions of modern life.
.......I do not see any reason why a restrictedinterpretation should be placed upon the word 'necessity' so as to exclude a case like the present in which defendants 1 and 2, on all the facts provided, properly and wisely decided to get rid of the property which was in such a state as to be a burden to the family.'
This case aptly applies to the facts of the present case.
19. In the case of Hemraj Dattubhuva v. Nathe Ramu, AIR 1935 Bom. 295 (FB) (H), it was observed:
'I can conceive of cases not of that character in which the facts might nevertheless be of such a compelling character that any Court would hold the transactions to be for the benefit of the estate, e.g., the sale of land which could not conveniently be cultivated with other property of the minor, and the investment of the purchase money in lands which could be so conveniently cultivated, assuming of course that the price obtained and the price paid, were proper; or the sale of lands in order to raise money to secure irrigation or permanent improvement of the other lands of the minor, or a beneficial exchange, or a case where it was necessary to sell in order to prevent the destruction of the property.'
20. In the case of Amraj Singh v. ShambhuSingh, AIR 1932 All. 632 (I), it was held by Sulaiman C. J. and King J.,
'Transactions justifiable on the principle of benefit to estate are not limited to those transactions which are of a defensive nature.'
21. From these decisions it is clear that an alienation by a widow can be justified if it is an alienation which a prudent manager of the property would make though there may be no actual pressure on the estate and the alienation by such a limited owner is not always to be for a defensive or protective natures.
In the present case, it has already been shown that the alienation was made for certain expenses required for maintenance past and future, for discharge of certain loans contracted by the widow for purpose of litigation to preserve the estate and for the purpose of building a residence for herself as the house sold away was in a dilapidatedcondition and the widow had no money to repairit.
The sale of the dilapidated house is, in my opinion, an act of a prudent manager specially when she is not in a position to repair and must have a house to reside.
22. The learned Subordinate Judge is, in my opinion, not right in distinguishing the case of AIR1922 Bom. 122 (G) from the facts of the present case on the ground that it is not a transaction of an adult coparcener acting as manager as in the Bombay case. In my opinion, the powers of a Hindu widow are analogous to the powers of a guardian of an infant heir or the manager of a joint Hindu family.
23. Further from the evidence' of D.W. 10 the husband of defendant 1 as also from the evidence of the other witnesses examined for the defendants it is proved that the alienee made bona fide enquiries as to the existence of the necessity and he purchased the property alter being satisfied of the same. In such a case it is not necessary to prove that the entire amount was spent for purposes of legal necessity. I am of opinion that in this case there was a bona fide enquiry made by the alienee.
24. In conclusion, I hold that the alienation in favour of defendant 1 is for justifiable purposes and is binding on the reversioners.
25. The second contention of Mr. S. N. Das Gupta is that the plaintiff's suit is not maintain able as she is not the nearest reversioner. The plaintiff, according to the evidence, is the daughter of the first wife of Ananda and defendants 5 and 6 are his daughters through defendant 3 who is his second wife. The contention of the learned counsel is that admittedly on the evidence of the plaintiff as also on the evidence of the other witnesses for the defendants, defendants 5 and 6 are in poor circumstances, that is, are indigent whereas the plaintiff was in affluent circumstances of her own evidence.
Consequently the learned counsel contends that according to the Hindu law where daughters claim as heirs, the preference is to be given to the indigent daughter and consequently defendants 5 and 6 are nearer heirs than the plaintiff to the property of their father. So he contends that the plaintiff is not the nearest reversioner who alone could file a suit for a declaration of the invalidity of an alienation by the widow unless she can show that the other reversioners were colluding and did not choose to challenge the alienation.
In this case though Mr. Dasgupta's contention is correct that it is only the nearest reversioner that could file a suit for declaration of the invalidity of an alienation yet defendants 5 and 6 who are the daughters of defendant 3 support the alienation in their written statement. But in my opinion it is not necessary to decide this question raised by Mr. Dasgupta in view of my finding with regard to the validity of the alienation.
26. The appeal, therefore, is allowed, the judgment and decree of the learned Subordinate Judge are set aside and the suit is dismissed with costs throughout.
27. I agree and have very little to add.
28. The question involved in this appeal is a matter of deep concern to the litigants and the reported decisions are by no means uniform. The question is whether the expressions 'legal necessity' and 'benefit to the estate' which so often arise in challenging alienations by widows mean two distinct legal concepts. Ever since the decision of the Privy Council in Hunnoman Persaud's case (F) these expressions have more or less been used as connoting the same idea.
The word 'necessity' when used in connection with a Hindu Woman's estate has a somewhat special, almost technical, meaning and means an alienation justifiable by necessity and necessity only. It does not mean actual compulsion but the kind of pressure which the law recognises as serious and sufficient. See Ram Sumaran Prashad v. Mt. Shyam Kumar AIR 1922 P.C. 356 (J) Benefit to the estate is not improvement of the estate, but such act as a prudent owner would do in the interest of the estate.
A compromise made bona fide for the benefit, of the estate and not for the personal advantage of the widow is binding upon the reversioner quite as much as a decree on contest- -- See Mohendra Nath Biswas v. Mt. Shamsunnessa Khatun, AIR 1915 Cal, 629 (K) which received the approval of the Privy Council in Ram Sumaran Prashad's case Oh An, authoritative pronouncement of the Privy Council is to be round in AIR 1917 P.C. 33 (E) where Lord Atkinson, reviewing the previous decisions on what 'benefit to the estate' indicated, observed:
'It is impossible to give a precise definition of it applicable to all cases, and they do not attempt to do so. Preservation, however, of the estate from extinction, defence against hostile litigation affecting it, protection of it or portions from injury or deterioration by inundation -- these and such like things would obviously be benefits. The difficulty is to draw the line as what are, in this connection, to be taken as the benefits and what not'
29. It would appear, therefore, that it is essentially a question of fact, arising in each individual case, as to whether an alienation can be justified by the particular circumstances of that case. It may be noticed that their Lordships distinctly indicated that the instances mentioned by them are not exhaustive of what 'benefit to the estate' meant.
30. The reported decisions however show that sometimes too narrow a view of this expression has been taken. According to this view the transaction must be of a defensive character and must be calculated to protect the estate from threatened danger or destruction. According to the other view if the Karta has acted with prudence and the act Was neither hasty nor reckless, the alienation would be upheld as being for the benefit of the estate.
A view, intermediate between these two extremes has been adopted by the Bombay High Court in AIR 1935 Bom. 295 (H) where it was held that the only question would be one of fact whether a particular transaction was or was not advantageous to the estate. That question might be difficult to determine, but would not involve any difficulty of definition. As was observed by Beaumont C. J.
'Whether a transaction is for the benefit of an estate or not involves the consideration of something more than merely whether the purchase price paid is a good price. It involves the further question of what is to be done with the purchase money.'
31. The Privy Council, in Venkata Hanumantha Bhushana Rao v. Subbayya AIR 1936 P.C. 283 (L) have Similarly upheld an alienation 9n the ground that the widow was placed in a difficult position and had acted in a reasonable manner by mortgaging the property and averting a sale for the satisfaction of a claim.
32. The expression 'Kutumbarthe' which is the textual basis for the doctrine of 'benefit' is elastic enough to take in all transactions which another would normally enter into in managing his property. When dealing with transactions by a limited owner, what we have to see is not the actual result of the transaction but what might have been expected to be its result at the time the transaction was entered into, and the degree of prudence expected of the limited owner is no morethan what would be expected of any other person holding a fiduciary-character.
33. In the present case the widows were struggling for existence and were depending for their livelihood either on charity or on such limited earnings as they could make by manufacture of horn articles. The building had been neglected for several years and was about to fall down for want of repairs. The only way open to the widows was to sell away the building and retain a portion of the land on which they could build a small house out of the sale proceeds.
If the widows had not entered into this transaction the result would have been that nothingwould be left to the reversioners except the debrisof the building and the land. I am therefore inclined to accept the appellant's contention that, inthe circumstances of the case, the alienation wasfor the benefit of the estate and that it must be upheld.