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Moniram Kalita Vs. Amjad Ali - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtKolkata
Decided On
Judge
Reported in(1885)ILR12Cal52
AppellantMoniram Kalita
RespondentAmjad Ali
Excerpt:
hindu law, alienation - sale by widow of husband's estate--maintenance of widow re-marrie--necessity--legal expenses--mortgage, proof of existence of--oral evidence. - .....of small means, and it has been found in the present case that she incurred debts on account of legal expenses in defending her rights in that litigation. the plaintiff, who has succeeded as heir of her husband on her death, now sues to set aside the sale by her to the defendant made on the 6th november 1879, as having been made without legal necessity. the defendant replied that the sale was effected by the widow to enable her to pay off the debts incurred in consequence of this litigation, and also for the purposes of her own maintenance. the defendant further pleaded that he had made the purchase after having made full enquiry in the manner enjoined in the well-known case of hunooman persad panday 6 moore's i.a. 393.2. the munsif found all these points in favour of the defendant.....
Judgment:

Prinsep and Grant, JJ.

1. We think that this case must be remanded to the lower Appellate Court for re-trial. Kirikalitani was the defendant in the suit which went up in appeal to the Privy Council and is generally known as the Hindu Widow Unchastity Case. The plaintiff in the suit now before us then sued this widow to obtain possession of the entire estate of her husband on the ground of her having forfeited her rights on account of her subsequent unchastity. He succeeded in obtaining a decree for one-half of that estate. The widow apparently was possessed of small means, and it has been found in the present case that she incurred debts on account of legal expenses in defending her rights in that litigation. The plaintiff, who has succeeded as heir of her husband on her death, now sues to set aside the sale by her to the defendant made on the 6th November 1879, as having been made without legal necessity. The defendant replied that the sale was effected by the widow to enable her to pay off the debts incurred in consequence of this litigation, and also for the purposes of her own maintenance. The defendant further pleaded that he had made the purchase after having made full enquiry in the manner enjoined in the well-known case of Hunooman Persad Panday 6 Moore's I.A. 393.

2. The Munsif found all these points in favour of the defendant and dismissed the suit, but this judgment has been reversed on appeal by the Deputy Commissioner and the Subordinate Judge. In the commencement of his judgment, the Subordinate Judge states that the plaintiff was justified, 'under the then existing law,' as he terms it, in bringing the former suit to obtain possession of the property held by the widow. But he seems to think that the widow was not justified in incurring expenses in defending that suit so as to make them form a charge on the estate, thus to be eventually borne by the plaintiff. We have no doubt, on the facts found, that the legal expenses incurred by the defendant in that litigation were expenses with which a Hindu widow in the position of the defendant might reasonably charge her husband's estate. The lower Appellate Court then proceeded to find that, in the absence of the mortgage deed, the defendant cannot show that the money paid by him in the purchase of this property was money paid to satisfy a debt incurred by the widow. We think that this view of the law taken by the lower Appellate Court is incorrect. We observe that a person said to be the mortgagee, and another person said to hold a decree against the widow, who were thus both her creditors, have been examined in the present case, and have deposed that they lent her money for certain purposes. There is no reason why such evidence should not be accepted for the purposes of the present suit; for the terms of the transaction between the widow and the so-called mortgagee and decree-holder are not in issue in this case, but rather whether these persons were the creditors of the widow, and whether the property had been sold in order to satisfy their debts. The lower Appellate Court then proceeds to express an opinion that it cannot be pleaded that be widow, that is to say, the vendor who lived with a second husband, or, it would seem more properly, lived with another man after the decease of her husband, would have been driven to sell the estate to maintain herself. From this he would seem to mean, that if she lived with another man she would not have to support herself. That is a matter which would depend upon evidence, and could not be assumed either one way or another, simply from the relation between the parties. Lastly, the lower Appellate Court states that it does not consider that the defendant could have used due diligence in ascertaining whether legal necessity on the part of the vendor existed. Now, if the evidence of the so-called mortgagee and decree-holder be believed-and on this point, sitting on second appeal, we are not able to express any opinion-we think their statements certainly justified a stranger in purchasing from a Hindu widow. We must, therefore, return this case to the lower Appellate Court for re-trial, having regard to the observations made above.

3. The costs will abide the result.


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