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Madhab Mohapatra and ors. Vs. Bhikari Panda and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily;Property
CourtOrissa High Court
Decided On
Case NumberSecond Appeal No. 193 of 1961
Judge
Reported inAIR1964Ori26
ActsHindu Law
AppellantMadhab Mohapatra and ors.
RespondentBhikari Panda and ors.
Appellant AdvocateL.K. Dasgupta and ;G.N. Sengupta, Advs.
Respondent AdvocateR. Mohanty, Adv.
DispositionAppeal allowed
Cases ReferredDeputy Commissioner of Kheri v. Khanjan Singh
Excerpt:
.....first proviso to sub-section (1) of section 173 is necessary. [new india assurance co. ltd. v md. makubur rahman, 1993 (2) glr 430 and new india assurance co. ltd. v smt rita devi, 1997(2) glt 406, approved. new india assurance co. ltd. v birendra mohan de, 1995 (2) gau lt 218 (db) and union of india v smt gita banik, 1996 (2) glt 246, are not good law]. - it is well settled that if a sale by a hindu widow of property inherited by her from her husband is sought to be set aside by the reversi-oner, and part of the price is proved to have been applied to purposes of necessity, then if the suit is brought during the widow's lifetime, the decree should be one declaring the right of the reyersi-oner to the property on the death of the widow and declaring also that the purchaser is..........plaintiffs filed the present suit for declaration that the sale deed executed by tulsi was not for legal necessity and not binding on the reversioners, for possession and damage. the defence is that the sale was for legal necessity and binding on reversioners.4. the trial court dismissed the plaintiffs' suit on the finding that the sale deed executed by tulsi is genuine, valid and for legal necessity. in plaintiffs' appeal, the learned lower appellate court found that the sale was for full consideration but there was no legal necessity for the sale. the learned lower appellate court decreed the suit in favour of the plaintiffs but ordered that the plaintiffs must pay back the consideration money, namely rs. 950/- to defendants 2 to 4. it is against this portion of the lower appellate.....
Judgment:

S. Barman, J.

1. The plaintiffs are the appellants. The suit out of which this appeal was filed by the plaintiffs as reversioners for setting aside a sale by a widow in favour of defendant No. 1 who in his own right sold the suit property to defendants Nos. 2 to 4.

2. A genealogical table showing the relationship of the plaintiffs with the deceased widow is set out as follows:

Sadananda

|

-----------------------------------

| |

Govinda Dinabandhu

| |

Balabhadra= Jagannath

Tulsi (window |

(died 30-7-1957) --------------------

| |

Madhab Sindhu

(Plaintiff-1) (Plaintiff-2)

Defendant No.1 is the purchaser from the window Tulsi.

Defendants Nos. 2 to 4 are purchasers from defendant 1.

3. On March 8, . 1956, Tulsi sold to defendant No. 1 (her own brother's son) the suit property for a consideration of Rs. 950/- by a registered sale deed (Ext. A). On July 30, 1957 Tulsi died. The plaintiffs' case is that on November 18, 1957 the defendants forcibly reaped away paddy crops from the suit land which were raised by the plaintiffs. On January 18, 1958 the plaintiffs filed the present suit for declaration that the sale deed executed by Tulsi was not for legal necessity and not binding on the reversioners, for possession and damage. The defence is that the sale was for legal necessity and binding on reversioners.

4. The trial Court dismissed the plaintiffs' suit on the finding that the sale deed executed by Tulsi is genuine, valid and for legal necessity. In plaintiffs' appeal, the learned lower appellate court found that the sale was for full consideration but there was no legal necessity for the sale. The learned lower appellate Court decreed the suit in favour of the plaintiffs but ordered that the plaintiffs must pay back the consideration money, namely Rs. 950/- to defendants 2 to 4. It is against this portion of the lower appellate Court judgment, by which he directed payment of Rs. 950/- to defendants 2 to 4, that this second appeal has been filed. The defendants also filed a cross appeal challenging the finding of absence of legal necessity by the learned lower appellate Court. The defendants' cross appeal was not pressed and accordingly it was dismissed as appears from order No. 9 dated July 16, 1962 herein.

5. The only point for consideration is: Are the reversioners liable to refund the consideration money to the purchasers when the finding is that there was no legal necessity for the sale by the widow? It is well settled that if a sale by a Hindu widow of property inherited by her from her husband is sought to be set aside by the reversi-oner, and part of the price is proved to have been applied to purposes of necessity, then if the suit is brought during the widow's lifetime, the decree should be one declaring the right of the reyersi-oner to the property on the death of the widow and declaring also that the purchaser is entitled to a charge on the property only for the amount proved to have been so applied; if the suit is brought after the widow's death, as in the present case, the decree should be one setting aside the sale and directing the purchaser to deliver possession to the reversioner and to pay to him the balance of mesne profits from the date, of widow's death after deducting therefrom the amount proved to have been applied to purposes of necessity with interest thereon. Deputy Commissioner of Kheri v. Khanjan Singh, 34 Ind App 72 (PC). These are principles derived from a series ot' cases decided by the Privy Council.

6. The simple position here is this: What the defendant purchaser purchased was mere the life interest of Tulsi who sold without legal necessity. The consideration which was paid, namely Rs. 950/- was for that limited life interests that carved out slice, being only the widow's life time and no more. The widow is now dead. There is no question of payment by the plaintiffs reversioners to the defendants purchasers. The purchasers got what they paid for, namely, enjoying the property for the life time of the widow. The widow is dead and gone, the property must come back to reversioners.

7. The learned appellate Court apparently did not consider this aspect of the legal position. The decision of the learned lower appellate Court,whereby he directed the plaintiffs to pay to the defendants Nos. 2 to 4 the consideration money of Rs. 950/-, -- must be set aside. In the result, therefore, the plaintiffs' suit is decreed in full.

8. This appeal is allowed. In the circumstances of the case, each party is to bear his owncosts of this Court.


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