R.L. Narasimham, C.J.
1. This is a plaintiffs appeal against the judgment of the District Judge of Mayurbhanj, reversing the judgment of the Munsif of Balasore and dismissing the plaintiff's suit with costs.
2. The relationship between the parties will be clear from the following pedigree:--
NIMAI CHARAN KAR
Durgamoni (1st wife) Manmohini (2nd wife)
Sashimukhi Swarnamoni (Defendant.1
Plaintiff wife of late Bepin Behari
Wife of late Lokenath Bardhan
------------------- | |
| | Daughter Daughter
Sudhir ch. Bardhan Late
3. The parties are governed by the Dayabhaga 'School of Hindu law. Manmohini Dasi succeeded to the properties of her deceased husband Nimai Charan Kar as widow'; estate sometime in 1906. On 26th February, 1918 she executed a sale of deed (Ext. P) conveying the properties in dispute to her son in law the late Bipin Behari Bardhan. Bipin Behari Bardhan transferred the same to defendants 2 and 3 who in their turn again transferred to defendants 4 and 5 who are the main contesting defendants in this litigation. The plaintiff challenged the alienation on two grounds.
(i) It was without consideration and was meant to be a colourable device for giving some properties to Manmohini's second daughter Swarnamoni who would otherwise not be able to inherit the properties in preference to the plaintiff as she had no sons.
(ii) In any case the alienation was not for legal necessity and was not binding on the plaintiff.
4. The trial Court decreed the plaintiff's suit and on appeal the then District Judge Rai Bahadur C. C. Coari affirmed the judgment of the trial court. A second appeal against his decision 'S. A. No. 306 of 1948) was heard by a Division Bench of this Court. That Bench held that the question of legal necessity for the alienation was not properly considered by the two lower courts, and therefore remanded the appeal for re-hearing of this issue (issue No. 6) bearing in mind the observations contained in their judgment. After remand, the appeal was heard by Mr, A. R. Guru who held that the alienation made by Manmohini was for legal necessity and consequently dismissed the suit.
5. Exhibit P purports to convey 16 acres of land for R. 400/-. As regards the necessity for the alienation, the recital in the document is as follows:
(I) Proper yield was not available to Manmohini due to her inability to exercise effective supervision as she was 'purdanashin' lady.
(II) She wanted money to go on pilgrimage for the spiritual benefit of her soul. It was Found, as a fact, that the consideration of Rs. 40o/-. was paid by Bipin Behari Bardhan to Manmohini and that the latter did go on pilgrimage to Gaya sometime in 1920 more than two year after the execution of the sale deed and offer Pinda there.
6. After remand the lower appellate court observed that neither party could lead evidence to show that the property alienated was not giving satisfactory yield due to lack of proper supervision, on the part of Manmohini who was a 'purdanashin' lady. He therefore held that the recital in the document, on this subject, 'remains neither corroborated satisfactorily nor rebutted'. As the primary burden of showing that the alienation was not for legal necessity was on the plaintiff this finding must be taken to be against her.
7. As regards the second recital in the document about pilgrimage the lower appellate court held that Manmohini went on pilgrimage to Gaya on the 20th, AUGUST, 1920 for her own spiritual benefit. 'On this finding the most important legal question that arose for consideration was whether an alienation by a Hindu widow of a portion of her husband's property for her own spiritual benefit would be binding on her reversioner. The lower appellate courtthought that in view of certain observations made by the Bench of this Court in the remand order it was not open to him to take a different view and that it must be held that the spiritual benefit of a Hindu widow is equally the spiritual benefit of her deceased husband.
8. Mr. S. N. Das Gupta who argued the second appeal challenged this proposition of law and urged that the view taken by the Bench of this Court while ordering remand of the case was not correct. It is true that the observations in the remand order were of a tentative nature on this question. But Mr. Das Gupta was not able to cite before us any authority to show that this view was incorrect. Whatever might have been the earlier decisions, in the well known case of Khub Lal Singh v. Ajodhya Misser, ILR 43 Gal 574: (AIR 1916 Cal 792), Sir Ashutosh Mookherji after discussing certain texts 'of Bruhaspathi and Btramitrodaya observed that the Hindu husband and wife participate in the effects of good and evil actions and this mutual relation is not dissolved by the death of either partner.
In the Privy Council case reported in Sardar Singh v. Kunja Behari Lall AIB 1922 PC 261 this decision was cited with approval and it was held that an alienation of a small fraction of an estate by a Hindu widow for a religious purpose even though it may not he obligatory, under the Hindu law would be valid. The Madras High Court in Krishnamurty v. Lingayya AIR 1936 Mad 677 held that a distinction between a gift by a Hindu widow to benefit her husband's soul and a gift intended only for her own salvation is unsound as amongst Hindus the wife is declared to be half the body of her husband and the soul of the deceased husband participates in every religious act performed by the widow. In Thakur Pra ad v. Mt. Dipakner ILR 10 Pat 352 : (AIR 1931 Pat 442) Dhavle J. observed:
'On the text of Brihaspati it is difficult to see how it is possible for a Hindu widow to aim at any spiritual good for herself in which the soul of her deceased husband would not participate'.
9. Hence, though the recital in the document (Ex. P) shows that the pilgrimage was intended for Manmohini's spiritual benefit it must, in the circumstances of this case, be held that it would also enure to the spiritual benefit of her deceased husband. Moreover pilgrimage to Gaya stands on a different footing from pilgrimage to other places an asmuch as at Gava, Pinda is offered not only for the pilgrim's dead relations but also for the pilgrim's own salvation; whereas pilgrimage to other holy places is a mere pious act.
This distinction was well recognised in Gur Prasad y. Ram Sukh, AIR 1952 All 938 where a second pilgrimage to Gaya by a Hindu widow was held to be not obligatory though the first one was held to be obligatory. In the present case there is no evidence to show that this was not Manmohini's first pilgrimage to Gaya. It appears that even from 1914 she was contemplating a trip to Gaya and the opportunity presented itself only in 1920.
10. It is also an admitted fact that the property alienated was only a small fraction of the total property which she had inherited from her husband. The alienation must therefore be held to be for legal necessity bearing in mind the principles mentioned above and the lower appellate court took the correct view of law.
11. The appeal is dismissed with costs.
G.C. Das, J.
12. I agree.