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Upendra Nath Jana and anr. Vs. S.M. Shibadasi Debi - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata
Decided On
Reported inAIR1925Cal1053
AppellantUpendra Nath Jana and anr.
RespondentS.M. Shibadasi Debi
Cases ReferredBijoy Gopal Mukerji v. Krishna Mahishi Debi
Excerpt:
- .....their lordships stated: ' it is admitted on all hands that if there be collateral heirs of the husband the widow cannot of her own will alienate the property except for special purposes. for religious or charitable purposes, or those which are supposed to conduce to the spiritual welfare of her husband, she has a larger power of disposition than that which she possesses for purely worldly purposes. to support an alienation for the last she must show necessity. on the other hand, it may be taken as established that an alienation by her which would not otherwise be legitimate, may become so if made with the consent of her husband's kindred. but it surely is not the necessary and logical consequence of this latter proposition that in the absence of collateral heirs to the husband, or on.....
Judgment:

Cuming, J.

1. In the suit out of which this appeal has arisen the plaintiff sued to eject the defendants from a plot of land, 3 cottas and 14 chhataks in area, on the following allegations. The property in question belonged to one Kedar Nath Banerjee who is now dead and on his death it devolved on his widow Khiroda Sundari. Kedar had three daughters Amritamoyi, Mrinalini and Paribala. On the 5th September 1915 Khiroda sold some 5 cottas of land which included the land in suit to her daughter, Paribala. Khiroda died in November 1916. Paribala sold the land on the 11th October 1919 to one J. C. Banerjee and he sold the land to the present plaintiff on the 31st August 1920 and now seeks to eject the defendants on the ground that they were on the land without any lease. It will appear that in 1322 this land was let out to Shama Baisnabi the predecessor-in-interest of the defendants for four years. The defence in the case was that Khiroda having limited estate of a Hindu widow the sale to her daughter Paribala could not extend beyond her own life-time and that the reversioners Mrinalini and Amritamoyi had given a lease of the property to the defendants and hence the reversioners had avoided the sale to Paribala. The Court of first instance held that the defendants had not proved that they were tenants on the land under Mrinalini and Amritamoyi; it also held that no notice to quit was necessary and decreed the plaintiff's suit. Before the lower appellate Court two points were argued. The first point is with regard to the notice to quit and the second point is regarding the plaintiff's title. The learned District Judge decided both these points against the appellants. He held that no notice to quit was necessary and secondly, that the sale to Paribala was good being voidable and not void and could only be challenged by the reversioners and that the reversioners did not challenge the same; and hence he dismissed the appeal.

2. On appeal to this Court two points have been argued. The first point is that the learned Judge is wrong in holding that it was only the reversioners who could challenge the validity of the sale by a Hindu widow after her death and in support of this contention the learned vakil has relied upon the case reported as Collector of Masulipatam v. Cavaly Venkatta Narrainapah (1859-61) 8 M.I.A. 529. The passage on which he relies will be found at the bottom of page 550 (of 8 M.I.A.) of the report where their Lordships stated: ' It is admitted on all hands that if there be collateral heirs of the husband the widow cannot of her own will alienate the property except for special purposes. For religious or charitable purposes, or those which are supposed to conduce to the spiritual welfare of her husband, she has a larger power of disposition than that which she possesses for purely worldly purposes. To support an alienation for the last she must show necessity. On the other hand, it may be taken as established that an alienation by her which would not otherwise be legitimate, may become so if made with the consent of her husband's kindred. But it surely is not the necessary and logical consequence of this latter proposition that in the absence of collateral heirs to the husband, or on their failure, the fetter on the widow's power of alienation altogether drops' and from this passage the learned vakils ask us to hold that the alienation by a widow which is not for legal necessity or for any of the purposes allowed by Hindu Law is void and can be challenged by a third party. What was decided in that case was that the Grown in default of other heirs was in the position of reversioners and it is not ah authority for the proposition that a person who is not a reversioner or in the position of a reversioner can challenge the validity of an alienation by a Hindu widow. On the other side there are a number of decisions directly on the point. I may first refer to the case of Deo Nandan Pershad v. Udit Narain Singh [1914] 18 C.W.N. 940, where this particular point has been directly decided and where it is held that an alienation without legal necessity is voidable and not void and until the reversioner (including in that term ' Crown ' if there is no reversioner) decided to avoid it or to treat it as a nullity, it stands good. In that case the alienation in question was a sale. A reference may also be made to the case of Bijoy Gopal Mukerji v. Krishna Mahishi Debi [1907] 34 Cal. 329. Their Lordships therein dealing with the question of estate of a Hindu widow stated that a Hindu widow is not a tenant for life, but is owner of her husband's property subject to certain restrictions on alienation and subject to its devolving upon her husband's heirs upon her death, but that she may alienate it subject to certain conditions being complied with; that her alienation is not, therefore, absolutely void but it is prima facie voidable at the election of the reversionary heir and that he may think fit to affirm it, or he may at his pleasure treat it as a nullity without the intervention of any Court. I am, therefore, of opinion that the law as stated by the learned District Judge is correct.

3. The next point that the learned vakil urged is that it was the case of the defendants that they were tenants under the two reversioners and that the trial Court was of opinion that these two ladies Amritamoyi and Mrinalini were not reversioners and that, therefore, it did not properly consider the question as to whether the defendants had or had not taken the lease from the ladies. No doubt the learned Munsif had apparently held that Amritamoyi and Mrinalini had no title in the suit land and to that extent his decision is not correct. But independently of whether these ladies had or had not a title to the land in suit he had apparently decided that the kabuliyat on which the defendants relied was not a genuine document and it does not appear that this finding was challenged in the Court of first appeal. No reference whatever is made to this part of the case in the judgment of the lower appellate Court.

4. For these reasons the appeal fails and is dismissed with costs.

5. The respondent will be entitled to his costs of the preparation of the paper-book.

Greaves, J.

6. I agree.


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