Macpherson and Banerjee, JJ.
1. The plaintiffs as purchasers of a rent-free tenure from one Umatara, the widow of Bholanath Chuckerbutty, to whom the tenure originally belonged, brought this suit for arrears of rent due in respect of a jote situated within the rent-free tenure. The defendant, who had purchased the jote in execution of a decree for arrears of rent against the former jotedar, and who had subsequently purchased the rent-free holding from the reversionary heirs of Umatara after her death, resisted the plaintiffs' claim, on this ground, amongst others, that the plaintiffs did not acquire any title by their purchase from Umatara which could be binding against the reversioners, and that, upon Umatara's death, they had ceased to have any interest in the rent-free holding.
2. The First Court decided the question thus raised and the other questions arising in the case, in favour of the plaintiffs and gave them a decree.
3. On appeal, the Lower Appellate Court has held that the plaintiffs did not acquire, by their purchase from Umatara, any interest in the rent-free holding which could be binding on the reversioners, as there was no real necessity for any alienation by her; and therefore without going into the other questions arising in the case, it has dismissed the suit.
4. In second appeal it is contended for the plaintiffs, that the Lower Appellate Court was wrong in law in holding that the sale by Umatara was without necessity; and we think this contention is sound. The learned Subordinate Judge observes with reference to the two purposes for which the sale was made, viz., the performance of Umatara's husband's shrad at Gaya, and the payment of his debts, that as Umatara did not go to Gaya, and as the debts were barred by limitation, the alleged necessity for the alienation did not exist.
5. With regard to the first matter, the learned Subordinate Judge observes, 'when the widow did not go to Gaya, she had no necessity for the sale. In such a case, I think the purchaser ought to see that the widow really goes to Gaya, and does not cheat the reversioner by false pretext.'
6. We do not think that this view of the law is correct. In cases like this, if the purchaser believes in good faith that the widow, when making the alienation, professed to do so for the purpose of raising money, for going to Gaya and performing her husband's shrad, he is not bound to see to the application of the purchase money.
7. Then as to the second point, we think that the learned Subordinate Judge is equally in error. It has been held by the Bombay High Court, in the case of Chimnaji Gobind Godbole v. Dinkar Dhondev Godbole I.L.R. 11 Bom. 320, that the payment of the husband's debts, though barred by limitation, is a pious duty, for the performance of which a Hindu widow may alienate her husband's property, and the same view was taken of the law by this Court in an unreported case, being appeal from the Appellate Decree No. 45 of 1890 (see note (2) ante p. 190), and that we think is the correct view of the law. As the Court of appeal below accepts the first Court's finding as to the existence of the debt, and as to its satisfaction out of the purchase money, we think, upon the facts found in this case, we must hold that the alienation by Umatara to the plaintiffs, conveyed to them an absolute title. That being so, the decree of the Lower Appellate Court must be set aside, and the case remanded to the Court for the trial of the other questions arising in it.
8. The appellants will have their costs of this appeal. The other costs will abide the result.