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Srimohan Jha Vs. Brijbehary Misser - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtKolkata
Decided On
Judge
Reported in(1909)ILR36Cal753
AppellantSrimohan Jha
RespondentBrijbehary Misser
Cases Referred and Bupram Namasudra v. Iswar Namasudra
Excerpt:
hindu law - alienation--legal necessity--hindu daughter's right to alienate property--onus of proof--sradh ceremony--government revenue--succession certificate, costs of--property sold for arrears of road-cess, recovery of. - .....that the estate was exceedingly involved at the time, and there can be no doubt also that the life-tenant was acting judiciously in raising funds for the purpose of paying the government revenue. we are, therefore, of opinion that it should be regarded as a legal necessity. similarly the sum of rs. 85 which was raised in order to pay the costs of a succession certificate was spent for a legal necessity, as the succession certificate was a document, without which it would have been impossible for the life-tenant to manage the estate.3. then come the two mortgage bonds. the deed of the 23rd june 1891 was executed in order to raise the sum of rs. 80 for paying a rent decree. it is a,rgued before us that this was a personal obligation only, and in support of this contention reference is.....
Judgment:

Stephen and Vincent, JJ.

1. The suit out of which this appeal arises is brought in order that a kobala executed on the 29th December 1877 and the usufructuary mortgage-bonds, dated the 23rd June 1891 and 8th August 1891, may be declared null and void on the death of one Musammat Bisneshuri Dai. She was the tenant for life of the estate of her father who was the last full owner. The plaintiff is his reversionary heir, and he now sues to have the sales set aside as having been made by the lady in excess of her powers of alienation. It is for the defendant to show that these sales were made for legal necessity.

2. As regards the kobala of the 29th December 1887, it was executed in the first place for the purpose of securing money for performing the sradh ceremony of the mother of the tenant for life. It is admitted by the plaintiff that the lower Appellate Court is right in the view it takes of the decision in the case of Raj Chandra Deb Biswas v. Sheeshoo Ram Deb (1867) 7 W.E. 146, and that the performance of the sradh ceremony of the mother is a legal necessity for which the tenant for life was justified in charging the family property. A point has been raised before us that the amount in sradh, viz., the sum of Rs. 1,700, is excessive. But this is a question which we cannot go into. Out of the balance of the money secured by the execution of the above-mentioned kobala, Rs. 300 was spent in paying the Government revenue. We have no doubt at all that this also must be regarded as a legal necessity. It is admitted on both sides that the estate was exceedingly involved at the time, and there can be no doubt also that the life-tenant was acting judiciously in raising funds for the purpose of paying the Government revenue. We are, therefore, of opinion that it should be regarded as a legal necessity. Similarly the sum of Rs. 85 which was raised in order to pay the costs of a succession certificate was spent for a legal necessity, as the succession certificate was a document, without which it would have been impossible for the life-tenant to manage the estate.

3. Then come the two mortgage bonds. The deed of the 23rd June 1891 was executed in order to raise the sum of Rs. 80 for paying a rent decree. It is a,rgued before us that this was a personal obligation only, and in support of this contention reference is made to the decision in the case of Braja Lal Sen v. Jiban Krishna Roy (1898) I.L.R. 26 Calc. 285. That, however, is a very different case from the present one, as in that case certain co-sharers were suing the tenant for life, and it would not be in their power to affect the interest of the reversioner. In this case had the rent decree not been paid, the whole estate could have been placed in peril, and it was the duty of the life-tenant, as a careful manager of the estate, to pay the rent decree. Under these circumstances, we agree with the lower Appellate Court in holding that this was also a matter of legal necessity.

4. As regards the third document of the 8th August 1891, it was a mortgage executed for Rs. 500. This money was used to recover the property which had been sold for arrears of road-cess apparently under the Public Demands Recovery Act. Authorities have been produced before us to show that the obligation to pay such a debt as this was a personal one, and decisions in the cases of Shekaat Hosain v. Sasi Kar ((1892) I.L.R. 19 Calc. 783, Mahanund Chuckerbutty v. Banimadhub Chatterjee (1896) I.L.R. 24 Calc. 27 and Bupram Namasudra v. Iswar Namasudra (1902) 6 C.W.N. 302 seem to show that the point is one beyond dispute. It is argued before us by the learned pleader for the respondent that under the circumstances of the ease, considering the pressure under which the estate was and considering the benefit which accrued to the reversioner, it ought to be considered as a legal necessity. In view of the fact that this money was not used to stop the execution of a decree under the Public Demands Recovery Act, we find it impossible to hold that this money was spent to meet a legal necessity. So far as the money is concerned we think that the appellant must succeed.

5. The result is that this appeal must be allowed and the decree of the lower Appellate Court set aside so far as this bond of the 8th August 189.1 for the sum of Rs. 500 is concerned. In other respects the decree of the lower Appellate Court will stand. The parties will be entitled to proportionate costs throughout.


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