1. This is an appeal by defendant 3 in a suit by a reversioner for a declaration that the alienation made by the mother of the plaintiff is invalid and for possession of the lands described in sch. 'Ga' attached to the plaint.
2. The plaintiff Saradamoni Dei is the daughter of one Bhola Nath Singh who died leaving a widow by name Ushamoni and two daughters, viz., the plaintiff and another who is now dead. The widow Ushamoni died in the year 1944 leaving the plaintiff as the Bole surviving heir of Bhola Nath. Defendant 3, who is the appellant before us, purchased the properties described in Soh. 'Ga' from Ushamoni by a sale deed dated 18-8 37 (EX. A) for BS. 170. The alleged purpose of this sale was the payment of a debt contracted by Ushamoni from one Anangabhim for the marriage of her second daughter, and to pay off arrears of rent on those lands.
3. Admittedly the properties stood in the name of Ushamoni and her name had been recorded in the Current Settlement Khatian(hhatas Nos. 99 and 102) as proved by Exs. D and D.i. The properties in suit are covered by three Bale deeds, viz., Ex. B dated 35-7.10 (a kebala executed by one Aprati Gharan Singh in favour of Ushamoni); Ex. B-l dated 7 7-1915 (a kebala executed by Mana Singh in favour of Ushamoni); and EX. B 2 (a kebala executed by Pranasruahna and his brother Brundaban in favour of Ushamoni) dated 3-11-1915. All these documents had been obtained in Ushamomi's name when her husband was working in danger in the Central Provinces.
4. The learned Munsif who tried the suit in the first instance held that Uahamoni was only a benamidar for her husband and that the real title to these properties rested with Bholanath. He, however, found that the alienation made by the widow under EX. A, dated 18th August 1937 was justified by legal necessity and accordingly upheld the sale in favour of the appellant. He also found that a sum of Rs. 170 had actually been paid by the appellant to Ushamoni as consideration for Ex. A. He relied upon the evidence adduced by D. ws.2 and 4 to the effect that Ushamoni was pressed by necessity on account of the expenses incurred by her for the marriage of her second daughter. He also accepted the testimony of the witnesses that the income from Bholanath'a estate gradually dwindled on account of failure of crops and nonpayment of rent so that she could hardly make both ends meet. The learned Munsif observed:
''There is nothing unnatural if she had no read; and enough funds to meet the expenses of her daughter's marriage and for that purpose she seems to have borrowed from Anangabhim and to repay that debt she made the alienation in favour of defendant 3.'
He accordingly recorded his finding that
' there is convincing evidence that to repay that debt she made the alienation under Ex. A and as such it was lor legal necessity and the plaintiff mut be bound by it.'
5. Against this judgment the plaintiff preferred an appeal in Appeal No. 258 of 1945 in the Court of the District Judge. The learned District Judge reversed the finding of the trial Court and held that the alienation in favour of defendant 3 was not justified by legal necessity and gave a decree to the plaintiff as prayed for. In arriving at this conclusion however, he committed some errors of record as well as errors in law. The learned Judge was under the impression that Bholanath was in employment under the District Board at the time of the purchase of these properties by Ushamoni in the years 1910 and 1915 and that, therefore, he had to purchase them in her name. He was also in error in holding that it was for the alienee to prove that the widow made these purchases from out of her own money.
6. There is no presumption in law that property apparently purchased by a woman is not hers and that she should prove as against a stranger that it was with her money that she purchased those properties. On the other hand, it is upon him who seeks to challenge that the apparent owner is not the real owner to establish by cogent evidence that the purchase money from the real owner. It is suggested in this case that the money was supplied by the husband of Ushamoni and that the property was purchased by him benami in her name. The onus was heavily upon the plaintiff to show that that was the fact. Unfortunately both the Courts below relied upon certain letters written by Bholanath in the years 1910 and 1915 to justify their inference that Bholanath did actually advance the moneys necessary for the purchase of the properties under EXS. B, B-l and B-2 cited above. [His Lordship considered those letters and proceeded]. Unless, therefore, it is strictly proved that the purchase money was paid by Bholanath the presumption that the apparent owner is also the real owner must be made; and no suspicion or conjecture shall be allowed as a substitute for evidence to the contrary.
7. The learned District Judge also erred in making a surmise when he made the following observation;
'Perhaps he (Bholanath) was then in service and in order to avoid exciting suspicion of the authorities he made this purchase in the name of his wife.'
I can find no evidence in the records to show that Bholanath was in service at that time and that he made these purchases in the name of his wife to avoid exciting suspicion.
8. Yet another error committed by the lower appellate Court was in assuming that even if the appellant had paid the entire price for the purchase under EX. A, dated 18th August 1937 the sale cannot be upheld. The learned Judgeobserved:
'The alienee has further to establish that there were no funds in the hands of the widow to meet the demands which are said to have then arisen. '
The evidence that the sale was effected at about the time when the marriage of the second daughter of Bholanath was performed was accepted. But in view of the principle of law propounded by him, the learned Judge held that the alienee had failed to prove the justification: for the loan incurred by the widow, to discharge which the sale under Ex. A was effected. If there is an actual existing necessity for advance of money, the circumstance that this necessity is brought about by previous mismanagement does not vitiate the loan unless the creditor had himself been a party to the misconduct which had produced the danger. This rule was laid down in Sanuman Prasad's case, (6 M. I. A.393 : 18 W. R. 81 P.C.) and has been applied since to cases arising out of alienations made by widow. It is enough for the alinee to show the existence of necessity at the time of such alienation. It is also equally settled law that even though there may not he legal necessity in fact, the alienee will be protected if he honestly did all that was possible and reasonable to satisfy himself that the required necessity existed. The illustration to Section 38, T. P, Act which now applies to Hindus leaves no doubt on the point. While the trial Court accepted the evidence of D. W. 4 the learned District Judge makes no reference to it at all, [His Lordship considered the evidence and continued].
9. The learned District Judge also committed another error in assuming that there was no evidence to show that the widow was in arrears of rent at the time of executing EX. A. On this point, there is not only the oral testimony of D. W. 1 who deposed that 'arrears of rent for four years were paid and I got the pautis as well' but EX. C, the rent receipt, also shows that the rent for four years was paid on 7th October 1937, i. e., a few days after the execution of Ex. A. I am, therefore, convinced that there has not been a satisfactory discussion of the evidence on the record and the real fact in issue appears to have been obscured by the wrong application of well-established principles of law.
10. As I have already stated above, a creditor is protected if he honestly did all that was necessary for him to do in the circumstances of the case to satisfy himself with regard to the existence of necessity. Apparently the title deeds relating to the lands stood in the name of Ushamoni. Exhibit 5 D which is an extract from the Record of Bights shows that the disputed lands were recorded in the name of Ushamoni and were described as 'Patita'. The lands, it would appear, were apparently also not yielding any income and the only plot where light paddy was raised was plot No. 81 with an area of 48 decimals, all the other lands in Khatas 99 and 102 (EXS. D and D-1) laving fallow. The plaintiff did not adduce any evidence to show that Bholanath ever claimed to possess these lands in his own right; and the management of these lands by Bholanath even if it be assumed is not inconsistent with Ushamoui's title thereto remaining unaffected. Exhibit A clearly recites that Ushamoni claimed these lands to be her property and that she remained in possession of the same. In the absence of any collusion between Ushamoni and the alienee it is difficult to see why the latter should not have accepted this representation as being true. In this case, all the apparent circumstances point to an honest alienee accepting the representation made byUshamoni as true and there is a singular absence of any circumstance which would have put him on an enquiry. It should also be remembered that even if the alienee had launched upon an enquiry as to whether Ushamoni had enough funds or not to make the purchases under Ex. B. Series, it would have been an impossible task--owing to the long lapse of time between her earlier purchase and the alienee's purchase. In such circumstances--when actual enquiry by an alienee becomes impossible--the recital in the document coupled with other circumstances should be sufficient evidence of the necessity for such alienation. Even if Bholanath were alive and had challenged the alienation by Ushamoni be would not succeed unless he could prove that the purchaser had notice of the real title; and Section 41, T. P. Act would be complete answer to his claim. Whether, in these circumstances, the plaintiff--as the reversioner to the ostensible owner--can claim a better right has not been considered by the Courts below though, as I have pointed out, para. 7 of the written statement, makes a specific allegation. The cases reported in . Ananda Mohan v. Nilphamari Loan of fice Ltd., 26 C. W. N. 436 : (A. I. R. (8) 1931 Gal. 549) and in Ghaplabala v. Sarat Sumari, A. I. R. (98) 1941 Cal. 318 : (199 I. C. 755) are instances where the provisions of Section 41, T. P. Act, were invoked in favour of a purchaser in good faith without knowledge of the real state of affairs.
11. The appellant also claims to have effected some improvements in the lands subsequent to her purchase. If this is proved to be if fact she would certainly be entitled to recover the cost of such improvements from the plaintiff, such cost being made a charge upon the property. This is however a question of fact which must be decided by the Court below.
12. In view of all these considerations, I am convinced that there has not been a satisfactory disposal of the appeal and all the contentions raised by the appellant have not been adequately dealt with, the judgment under appeal is therefore, set aside and the case is remitted to the Court of the District Judge for disposal according to law in the light of the observations made above. The parties shall be at liberty to adduce further evidence, if any, but only on the limited question of improvements alleged to have been effected by the appellant and their probable cost. Each party shall bear his or her own costs.
13. The principal question for decision in this appeal is whether the sale-deed (EX. A) dated 18th August 1937 executed by Srimati Ushamoni Dei in favour of defendant 3 conveying by sale 3.30 acres of schedule'Ga' lands for Rs. 173 would be binding against the plaintiff who is the sole surviving daughterof the said Ushamoni Dei. It is not disputed that the lands in question were purchased in the name of Usbanomi Dei by three Kabalas (EXS. B, B 1 and B-2) of the years 1910 and 1916. At that time, Ubhamoni Dei's husband BholanathSingh was working as a doctor somewhere in the Central Provinces. The case as put forward by the plaintiff (whieh was believed by both theCourts) was that the purchase was made by Bholanath Singh benami in the name of hiswife Usbamoni Dei and that consequently on the death of Bholanath Singh sometime in 1928 the property devolved on Uahamoni Dei as widow's estate witb limited power of alienation for legal necessity. Both the Courts concurrently held that the consideration for the three sale. deeds (EXS. B, B l and B 2) was paid by Bhola. 'Hath Singh himself. The lower appellate Court further rightly held that the doctrine of advancement has no application in India and that once it is proved that the purchase money was paid by the husband though the property was purchased in the name of hia wife the property should be held to be the property of the husband in the absence of any other piece of evidence to show that the husband really intended that the property should be gifted to his wife so as to be her Stridban. In this view, the lower appellate Court furtherexamined the evidence on the question of legal necessity for the alienation (EX. A) and held that there was really no legal necessity in fact and that further the purchaser (defendant 3) did not make any bona fide enquiry about any such legal necessity.
14. Therefore there are two questions of fact on which the whole case rests:
(i) whether the disputed property was the Stridban of Usbamoni Dei or else whether it was purchased by her husband Bholanath Singh benami in the name of his wife; and (ii) if it be held tbat the property really belonged to the husband having been purchased benami in the name of his wife, whether Ushamoni's sale of the property to defendant 3 was for legal necessity or else at any rate whether the purchaser (defendant 3) made proper and bona fide enquiry as to the existence of the necessity and did all tbat was reasonable to satisfy himself as to the existence of the necessity (Article 182, Mulla's Hindu law, loth Edn , pp. 188 and 189).
15. In my opinion the lower appellate Court correctly understood the legal position involved in this appeal but its conclusions on questions of fact were not baaed on a full discussion of all the evidence adduced by the parties. It may be that the conclusions were justified. But the lower appellate Court as a final Court of factsshould have fully discussed the oral and documentary evidence and given clear reasons in justification of its conclusions.
16. I would therefore concur in the order of my learned brother remanding the appeal.