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Kanta Mohini Dasi Minor by Her Next Friend, Kamini Dasi Vs. Nanichora Soba and on His Death His Heiress and Legal Representative His Widow Braja Sundari Dasi - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtKolkata
Decided On
Judge
Reported in35Ind.Cas.566
AppellantKanta Mohini Dasi Minor by Her Next Friend, Kamini Dasi
RespondentNanichora Soba and on His Death His Heiress and Legal Representative His Widow Braja Sundari Dasi
Excerpt:
hindu law - widow--maintenance, right to--alienation by husband for his maintenance during illness--family necessity--widow's lien or charge. - .....the widow of one bhusan and who was represented in the action by her mother. the defendant was the maternal uncle of the deceased bhusan. the action was brought for a declaration, first of all, that a certain deed of gift executed by the plaintiff's husband in favour of his maternal uncle was fraudulent and invalid and the same should be set aside; and secondly, for a a declaration or for that which was equivalent to a declaration that the property was liable for the plaintiff's maintenance if it were found that she was not entitled to have the deed of gift set aside, and to obtain possession of the property.3. now, bhusan, apparently, was paralyzed and he had this young wife, the plaintiff who was of tender years. i think i am right in saying that she was living in the house of her.....
Judgment:

Lancelot Sanderson, C.J.

1. In my judgment this appeal must be dismissed.

2. The facts of the case were these: --They are concisely set out in the judgment of the lower Appellate Court at page 10 of the paper-book- The action was brought by the plaintiff, a minor who was the widow of one Bhusan and who was represented in the action by her mother. The defendant was the maternal uncle of the deceased Bhusan. The action was brought for a declaration, first of all, that a certain deed of gift executed by the plaintiff's husband in favour of his maternal uncle was fraudulent and invalid and the same should be set aside; and secondly, for a a declaration or for that which was equivalent to a declaration that the property was liable for the plaintiff's maintenance if it were found that she was not entitled to have the deed of gift set aside, and to obtain possession of the property.

3. Now, Bhusan, apparently, was paralyzed and he had this young wife, the plaintiff who was of tender years. I think I am right in saying that she was living in the house of her mother and never went to live with her husband. This property which belonged to Bhusan was a very small piece of property, which was barely sufficient to provide for the maintenance of one individual. When Bhusan became paralyzed he proposed that he should go and live in the house of his wife's mother, and his wife and her mother should look after him and that they should take possession of the property, and out of that property maintain Bhusan, the paralysed man. The learned Subordinate Judge in giving his judgment at page 10 says: 'The defendant's witnesses have proved that plaintiff's mother was called in and was asked to take charge of her invalid son-in-law and his properties, but very likely considering that the property was very small (only about 4 bighas of land) and the income was not sufficient even to support one man, she refused to take charge, and if under such circumstances the defendant took charge of him (Bhusan) and the latter made a gift of his little property, either out of gratitude or love, to the former, it cannot be called a mala fide transaction.' The learned Judge has found that it was a bona fide transaction and that there was no ground for setting aside the deed of gift. The learned Vakil for the appellant agrees that inasmuch as that is a finding of fact it cannot be disputed in this Court. Therefore, the only question is whether the learned Judge in the Court below, when he said that this property in the hands of the defendant was not subject to the charge for the maintenance of the deceased man's widow, was right or wrong.

4. Now I do not intend to decide any question relating to the Hindu Law except the particular one that arises in this case: and, if I were to find it in favour of the plaintiff, it certainly would have an astounding result. It would come to this, that although the plaintiff, the widow who was really acting through her mother, was offered the property in order that she might maintain her husband during his lifetime and look after the property, and upon such offer being made to her, she refused through her mother to have anything to do with her husband, and then the husband was taken compassion upon by his maternal uncle, who himself was a poor man and was not able out of his own income to support the paralytic man, then when the husband, the paralytic man, for good consideration, both for services rendered in the past and for services to be rendered in future, executed a deed of gift in favour of the maternal uncle, it is to be said that inspite of this the maternal uncle is not to have this bit of property, but it is to be subject to the charge of maintenance of the widow. I should be very sorry if I were forced to come to such a conclusion. But it is not necessary to come to this conclusion for I think the appeal upon the second point ought to be dismissed, and the reason is this: The deed of gift, to my mind, shows from the terms of it that it was made by Bhusan for good consideration. It refers first of all to the beginning of his illness; then it says, 'so in a distressed condition I (Bhusan) sought for your (i.e., the maternal uncle's) help and support and you agreed to it. Since that time you heve kept me in your house and although your circumstances are very bad yet moved by affection you have incurred debts from others on account of my medical treatment and nursing Till now my illness has not abated. It cannot be said how long I shall have to live in this diseased condition. As your circumstances are bad you have become embarrassed on account of my medical treatment, &c.; Besides so long as 1 shall continue in this condition I have no other means but to remain in your house and to be nursed under your care and medically treated at your expense. I also know this for certain that you cannot help keeping me in your own house and getting me treated during my diseased condition For the said reasons'--this, as I understand it, means that he islparalysed, that he has received assistance from the maternal uncle in the past and in consideration of services to be rendered by him in future, because he was a paralysed man, and he had no other means but to remain in the house of his maternal uncle and to be medically treated at his expense and the maternal uncle could not get rid of him- I do hereby give you this property'. It simply amounts to this that in consideration of what was done in the past and in consideration of what is to be done in future I give you this bit of property. This is, to my mind, a deed for which there is good consideration.

5. Now the question is whether the property having passed by the deceased man to the' defendant, is subject to a charge in favour of the plaintiff for maintenance. I do not think it is. I accept what was stated by the learned Vakil in the argument when he read from a passage in Mr. Mayne's Book (Hindu Law and Usage, 8th Edition) at page 646 It begins: ' it has, no doubt, been decided that a father in Bengal may by Will deprive his son of any right to maintenance. But that is because an adult son has no right whatever to maintenance. His only right is as an heir expectant, and that right may be wholly defeated by sale, gift or devise But the right of a widow to her maintenance arises by marriage, and that of a daughter by birth; it exists during the life of the father and continues after his death. It is a legal obligation attaching upon himself personally, and upon his property. He cannot free himself from it during his lifetime, and it attaches upon the inheritance immediately after his death. It seems, therefore, con trary to principle to hold that, by devising the property to another, he could authorise that other to hold it free from claims which neither he himself nor his heir could have resisted.' I accept that in its entirety. The whole question is what is the right of a widow to maintenance. The right of a widow to maintenance has been dealt with in the same book at page 638, to which the learned Vakil has referred in his argument, where Mr. Mayne after dealing with the right of the widow to maintenance says, upon these passages, however, it is to be observed: first, that they all refer to cases of gift or dissipation, where no consideration exists for transfer' and in this case I think there is consideration, it is not a case of gift or dissipation. The same prohibition' (i. e., prohibition against alienation) would ' not apply to a sale, either for a family necessity or for value, where the purchase-money would take the place of that which was disposed of.' As I read this, I understand it to mean that the right of the widow to maintenance by her husband in his lifetime or to a charge upon his property must be dependent on his right to alienate the property for a family necessity, and the question is whether it can be said that the alienation which took place during the husband's lifetime by the deed of gift, we should now properly describe it as a deed of alienation for good consideration, was an alienation for a family necessity. I cannot imagine a better instance of a family necessity. In this case there was a man paralysed without any means of supporting himself except this little bit of property and the only way of preserving his life or, as the learned Vakil for the respondent has described it in a graphic way, the only way of eking out bis miserable existence, was to sell this property. If this was not a family necessity, I do not know what can be called family necessity. If he had not sold the property he would have starved and would have been dead within a few days and in order to avoid that and to live a little bit longer, his wife's mother having refused to take him into her house or support him, he did the only thing he could do, namely, he got his maternal uncle to take him into his house and look after him, and in consideration of that he alienated the disputed property. I think he alienated it for family necessity and for these reasons I think the appeal should be dismissed with costs.

Newbould, J.

6. I agree.


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