P.C. Mallick, J.
1. This is a suit for partition of the estate of one Kamal Krishna Saha. Kamal Krishna died on 20-10-1921 leaving him surviving as his sole heiress his widow Panchurani. Kamal Krishna had no son. Panchurani died on 22-11-1954. The parties to this suit are the next reversioners who want a partition of the estate of Kamal Krishna.
2. Kamal Krishna died leaving the following immoveable properties : Premises No. 43D, Circular Garden Reach Road, Premises Nos. 116/2A, 116/2B, 116/2C and 116/D, Circular Garden Reach Road and premises No. 3B, Sett Bagan Lane. Of the properties left by Kamal, premises No. 116/2B and premises No. 116/2C have been sold to pay off the debts of Kamal Krishna by Panchurani as administratrix of the estate of Kamal pursuant to orders of the Court. It appears that Panchurani also transferred and conveyed the premises 43D, Circular Garden Reach Road to one of the defendants Nagendra but without obtaining any order of the Court.
3. All the heirs of Kamal Krishna except the defendant Nagendra are the plaintiffs in this suit. The defendants impleaded are Nagendra and his son Bolai. The defendant Bolai has been impleaded as a party on tire allegation that he is the benamdar of Nagendra and certain transfers and demises have been made by Panchurani in favour of Nagendrain the benami of Bolai. These demises and transfers have been challenged in this suit.
4. It has been alleged in the plaint that Panchurani during her lifetime transferred and conveyed premises No. 43D, Circular Garden Reach Road to Nagendra without obtaining an order from the District [fudge even though she was administering the estate under Letters of Administration issued by the learned District Judge, 24 Pergannahs. The consideration for the sale was to pay off a debt due to Nagendra by Kamal being the sum of Rs. 800/- deposited by Nagendra with Kamal Krishna during Kamal Krishna's lifetime. This alienation by Panchurani in favour of Nagendra has been challenged in this suit on the ground that it is wholly illegal and voidable under Section 307 of the Indian Succession Act. So also the plaintiffs have challenged the sale of the structures standing in one of the bustee lands of the estate to Bolai for Rs. 200/- sometime in 1944. The case made is that this is also immovable property and the transfer having been made without an order of the Court is voidable. The plaintiffs seek to avoid this sale as well in this suit.
5. In the plaint, reliefs have been sought not merely against the defendant Nagendra but also against Bolai as well. As I stated before, the transactions in favour of Bolai are alleged to have been made as the benamdar of Nagendra.
6. In the written statement filed by the respective defendants, these allegations of impropriety of conduct on the part of Panchurani, Nagendra and Bolai have been denied. The alienation in favour of Nagendra is alleged to have been made in liquidation of a debt due by Nagendra against Kamal Krishna by Panchurani the widow of Kamal Krishna. So also the sale in favour of Bolai of the structures standing in one of the bustee lands is contended to be for legal necessity and as such binding on everybody. It is submitted that the plaintiffs have no cause of action to institute the suit and that they are entitled to no relief in this suit. On these pleadings, various issues have been raised by the respective parties. The evidence of Nagendra has been taken on commission. At the trial no further oral evidence was tendered on behalf of Nagendra.
7. On behalf of the plaintiffs, the evidence of Ganesh Chunder Saha the plaintiff No. 4 was tendered. The Brief of Documents in this case has been tendered and marked as an exhibit with the consent of the parties, formal proof of the documents having been dispensed with.
8. Mr. Samaran Sen the learned counsel appearing for Bolai has contended before me that the plaint discloses no cause of action and that the suit should be dismissed in limine. He urged that this point be taken up first as and by way of demurrer. Mr. Sen's argument is that in order to challenge an alienation effected by a Hindu widow, it is necessary to allege in the plaint the fact that the alienation has been effected by the Hindu widow without any authority and without any legal necessity. He has drawn my attention to Chase's Principles and Forms of Pleadings, According to the learned author, it is necessary to aver in such a case that, the transfer was made without any legal necessity. Mr. Sen contends that even though in law the burden of proof as to legal necessity is on the transferee, nevertheless In the suit by the reversioners challenging an alienation made by a Hindu widow it is necessary to aver in the plaint that the alienation was without legal necessity. This averment is essential and in its absence the plaint becomes defective and must be heldto disclose no cause of action. It is not necessary for me in this suit to decide the point raised by Mr. Sen and for this reason; The plaintiff in this suit is proceeding on the basis that the alienation made by the widow was made as administratrix to the estate of Kamal Krishna without an order of the Court and as such an alienation is hit by Section 307 of the Indian Succession Act. Further, in any event, the suit must go on having regard to the fact that this is not merely a suit challenging the alienation effected by Panchurani but it is really in substance and in fact a suit for partition of the joint estate left by Kamal Krishna and, admittedly, there are properties which can be and have to be partitioned. In a case wh'ere there is a joinder of causes of action and a decree is bound to be passed in respect to one or more of the causes of action, a plea by way of demurrer cannot be taken. A plea by way of demurrer can only be taken when by reason of the plea the plaintiff is wholly non-suited.
9. There are two real disputes to be adjudicated in this case. The first is as to the validity of the sale effected by Panchurani of premises No. 43D, Circular Garden Reach Road. The 2nd dispute is as to the validity of the sale of the structures standing in one of the bustee lands to the defendant Bolai in or about 1944. Both the sales have been challenged on the ground that they were effected by Panchurani without obtaining order from the Court while Panchurani was still functioning as an administratrix to the estate of her husband. Both the sales are contended to be voidable under Section 307 of the Indian Succession Act. The structures sold to Bolai according to the plaintiff are in law immoveable property and as such the sale of the structures is equally hit by the Section 307 of the Indian Succession Act.
10. Before however I deal with the points raised, it is convenient at this stage to consider thedisputed question as to whether Nagendra at all deposited the sum of Rs. 800/- with his uncle. This fact is not merely being disputed now but was disputed as far back as 1923 when the reversioners did not admit this debt along with some others as disclosed by Panchurani in her Affidavit of Assets filed in the Letters of Administration proceedings. Nagendra in his evidence taken on commission deposed that he kept this sum in deposit with his uncle. He did not take from his uncle any receipt. There is therefore no document evidencing this deposit. In ordinary cases the absence of such a receipt would certainly throw very great doubt on the case of deposit. Having regard to the relationship between the parties I will not draw any adverse inference against Nagendra for not having a receipt from his uncle evidencing the deposit. The second bit of evidence in support of the case for deposit is the admission made by Panchurani of this fact of deposit having been made in the Affidavit of Assets. There is no dependable evidence that Nagendra was responsible for drawing up this affidavit of Panchurani or that he caused Panchurani to include this debt in the Affidavit of Assets. This undoubtedly supports the case of deposit.
11. As against this, it is argued by Mr. Niren De on behalf of the plaintiffs that the reversioners disputed the debt immediately the debt was shown in the Affidavit and that Panchurani or Nagen never brought this matter for adjudication by the Court. It is no doubt true that the reversioners did not admit this debt as is proved by the order sheet in the Letters of Administration proceedings, a certified copy of which has been tendered an evidencein this case. Unfortunately the petition or the affidavit of the reversioners filed in those proceedings have not been tendered. The Records of the proceedings being very old are no longer available. Apparently no party has either obtained or preserved certified copy. In any event no certified copy is tendered. I am therefore left with the order sheet only. The order sheet simply records that only some debts shown in the affidavit are admitted and others not. The debts not admitted include the debt to Nagendra. Apparently the reversioners did not admit the debt because the debt was not evidenced by any document in writing. Before me it was submitted that Nagendra is blind for many years past and even before he became blind he did not do any work and earn anything. This case is made by the defendant Ganesh in evidence in Court. Ganesh is now 57 years of age and Nagendra was senior to him by 14 or 15 years. Ganesh in my judgment is not competent to say from his own personal knowledge whether Nagendra earned anything in the early period of his life. Most of the evidence of Ganesh on this point as on others is nothing but hearsay which he heard from others. It is however conceded even by Ganesh that Nagendra did attend to the business of his elder brother Surendra. Surendra might have paid something to Nagendra his brother for assisting him in his business. For some time Surendra was imprisoned and during this period Nagendra looked after the business. Ganesh's evidence is that so also the other brothers looked after the business during the compulsory absence of Surendra. If so, all the brothers who looked after the business including Nagendra might have been paid by Surendra. Persons competent to prove whether Nagendra earned anything in his life is Jogendra the elder brother and Kama-kshya the younger brother of the defendant Nagendra. They are both plaintiffs in this suit and they do not pledge their oath that Nagendra did not earn anything in his life. Nor do I find that this case was clearly put to Nagen in cross-examination when he tendered evidence on commission. I am not therefore prepared to accept the plaintiff's case that Nagendra did not earn anything in life and he could not have Rs. 800/- to deposit with his uncle Kamal Krishna. The sum of Rs, 800/- is not certainly such a large sum that Nagendra could not have. It is argued by Mr. Niren De, that even after the debt was disputed as far back as 1924, Nagendra did not institute a suit against Panchurani to recover the money. Nor indeed did Panchurani apply to the District Judge for an order to sell a property to pay off the loan. This disinclination both of Panchurani and Nagendra to bring the matter before Court is a strong evidence of the fact that the loan was not genuine. There is force in this argument. On the other hand it should not be forgotten the relationship between the parties and that Panchurani and Nagendra were on the best of terms. If Nagendra did institute a suit Panchurani would certainly have admitted the debt and there would be a decree and there would not have been a dispute to be adjudicated by the Court. Again having regard to the attitude of the reversioners Panchurani might well have not applied to the District Judge for sanction. The debt was not evidenced by any document and it may well be that the debt was time-barred and for payment of which the administratrix was not entitled to sell a property in her capacity as administratrix. I am therefore not prepared to draw an inference against this claim of Nagendra from the fact that no proceeding was initiated either by Nagendra or Panchurani for. adjudication of this claim of Panchurani in court. In my judgment this debtwas not included in the Affidavit of Assets by Panchurani at the instance of Nagendra. It was against the interest of Panchurani to include it in the Affidavit and it is a clear admission, by Panchurani that there was such a debt. On the evidence I am unable to hold that it was fraudulently included in the Affidavit of Assets filed by Panchurani in the Letters of Administration proceedings: I hold.that Nagendra did deposit Rs. 800/- with Kamal Krishna and when Panchurani sold the premises No. 43D, Circular Garden Reach Road this debt due by her husband Kamal Krishna was still outstanding. It may have been time barred and would not have been recoverable by Nagendra in a suit.
12. Section 307 of the Indian Succession Act restricts the power of the executor or administrator to dispose of property. The administrator under the section, is prohibited, without a previous permission of the court, from mortgaging, charging, transferring by sale, gift exchange or otherwise, any immovable property for the time being vested in him under Section 211 of the Indian Succession Act as such administrator. The same section provides that a transfer by an administrator in contravention of this provision is voidable at the instance of any other person interested. In the instant case, there has been a transfer of premises No. 43D, Circular Garden Reach Road by Panchurani the administratrix without previously obtaining the permission of the court for such transfer and the transfer appears, prima facie, to be hit by the provisions of Section 307 of the Indian Succession Act. It is contended, however, by Mr. Mazumdar that Panchurani effected the transfer not qua administratrix but as a Hindu widow. As a Hindu widow, Panchurani might be able to effect a transfer for legal necessity. But once Panchurani elects to administer the estate under a Letters of Administration obtained from the court under the provisions of the Indian Succession Act, she is not entitled to deal with the estate in any capacity other than as administratrix, so long as the administration is not completed. Even though she purports to deal with the estate not as an administratrix, she will be deemed in law to have so acted and not in any other capacity. Mr. Mazumdar argued that an heir or legatee under a will is entitled to deal with and effect a transfer of the property inherited or bequeathed to him, even though a Letters of Administration is obtained for the administration of the estate. The reason is that the title to the property has vested in the heir or legatee, as the case may be, from the date of thedeath of the last owner. This is undoubtedly so and the Indian Succession Act does not purport to prohibit such a transfer or to affect any such right. This dealing with the property by the heir or legatee is, however, subject to the administrator's right to deal with the property in the due course of administration. Be that as it may Mr. Mazumdar argued -- why should it be different, if the heir or legatee obtains the Letters of Administration? Why should not the hear or legatee be entitled to deal with the property inherited or bequeathed afterobtaining Letters of Administration? Should there be a difference between an heir or legatee who has obtained administration and one who has not? The difference, in my judgment, lies in the fact that such a legatee or heir himself by obtaining Letters o Administration undertakes to administer the estate as an administrator with powers derived from thecourt and as such his position is different from that of an ordinary heir or legatee who lias not obtained Letters of Administration. It has been held by this court and others, that neither the executrix nor theadministratrix is empowered to deal with the property in contravention of Section 307 of the Indian Succession Act, even though she is the universal legatee or the heir of her husband's estate, the reason being that she is administering not her own estate, but the estate of her husband. Such a transfer is liable to be avoided by any person interested in the property under Section 307 of the Indian Succession Act. (See Prayag v. Goukaran, 6 Cal WN 787, Chunilal v. Makshada, 23 Cal WN 652 : (AIR 1919 Cal. 2), Ma Ne v. On Hnit, 22 Ind Cas 925 (LB), and A. L. A. R. Firm v. Maung Thwe, AIR 1923 Rang 69.) I, therefore, hold that in the instant case, even though Panchurani does not purport to effect the transfer of premises No. 43D, Circular Garden Reach Road to Nagendra qua administratrix, she must be held in law to have effected the transfer in her capacity as administratrix and the transaction is covered by Section 307(2) of the Indian Succession Act, provided she was still administering the estate of her husband.
13. The question then arises -- was Panchurani still administering the estate of her husband? The mere fact that Letters of Administration were obtained by Panchurani and orders have been passed in such proceedings upto December 21, 1946, does not necessarily mean that the estate of the deceased husband was still under administration and that Panchurani could only function as administratrix under Section 211 of the Indian Succession Act. The administration of the estate would be complete when the assets of the estate are realised and the debts due by the estate are all paid off. It would also be complete if the debts due by the estate are all time-barred and the estate is not legally liable to pay any other creditor. When the administration is completed in the sense that the debts due by the deceased are all paid off and/or are no longer enforceable in law, the widow or heiress would be in possession of the estate no longer as administratrix under Section 211 of the Indian Succession Act but she would be administering her own estate on her own right as heiress. As such, she is entitled to deal with her own estate without any leave of the court under Section 307 of the Indian Succession Act. (See In re; Estate of Indrani : AIR1931All212 ; In the Goods of Nursingh Chunder, 3 Cal WN 635, and Lakshmi Narain v. Nandarani, 9 Cal LJ 116.) In the instant case, it has not been proved that any of the debts were still outstanding. Kamal Krishna died in 1921. Letters of Administration were granted in 1923. It appears from the order sheet that for liquidating some of the liabilities set out in the affidavit of assets, some of the moveable and immovable properties have been sold. Nothing appears with respect to the other debts. If they have not been already paid they must be deemed to be time barred. It should not be forgotten that the debts were very old -- having been incurred prior to .1921. In this state of facts, the proper inference to draw is that no other debt remains legally payable. They are either paid off or the claim is time barred. The application for loan as appearing in the order sheet appears to have been made no doubt for the administration, of the estate. But it must be held that such application for loan might very well have been made not for the administration of the estate of the husband but for the administration of her own estate. The last order on the application for loan was on November 6, 1944 and that was not to liquidate any liability or debt as shown in the affidavit of assets, but they appear to be debts incurred for the management of the estate. Thisapplication was refused. Thereafter, there has beenan attachment effected on some money lying in the hand of the administratrix on June 26, 1946, The attaching creditor was Bijoy Krishna Shaw. This debt has not been proved to be a debt due by the estate of her husband. Even though the debts of the estate can no longer be subsisting, nevertheless, Panchurani might have incurred liability in the course of the administration of her own estate and an attachment can very well have been levied on account of such liability. The point to be noted is that after the debts due by the estate of Kamal Krishna are no longer subsisting, Panchurani in law was no longer administering her husband's estate but her own estate and the restrictions imposed by Section 307 of the Indian Succession Act are no longer binding on her. The only debt referred to in the affidavit that was in fact paid was the debt of Nagendra for which the sale was effected. From this fact it cannot be inferred that the debt was legally payable at that date. Panchurani might have paid the debt of her husband, because as a Hindu widow she was under a moral obligation to pay off the debt of her husband, even though the debt was time barred. She might not in law ask leave of the court to sell a property as administratrix to pay off a barred debt. But as Hindu widow she is competent to sell her husband's property to liquidate a barred debt incurred by her husband in his life-time. This might have been the real reason why Panchurani did not apply for leave but effectled the transfer in her capacity as a Hindu widow. In the view I have taken, the alienation of premises No, 43D, Circular Garden Reach Road by Panchurani must be governed by the Hindu Law and not by the Indian Succession Act. It is a case of alienation by a Hindu widow of her husband's estate.
14. Hindu Law recognises the moral liability of the widow to pay off her husband's debt, even though the debt is time barred. The transfer to Nagendra to pay off the liability of Kamal Krishna should, therefore, be upheld, even though the debt was time barred. The property is 10 chittacks of land with an apology of a structure standing thereon. The property was transferred, subject to the right of residence of Panchurani during her life. Nor should it be forgotten that the money was kept in deposit by Nagendra for years and Nagendra lost the user of the money for the corresponding period. I do not think in the facts of this case, this alienation by the widow can be and should be set aside. It appears to be a perfectly fair transaction.
15. I now come to the sale of the structure effected by Panchurani on March 3, 1944. The structure belonged to the tenant of the estate. In execution of the decree obtained by Panchurani as administratrix against the tenant, the structure was sold and purchased by Panchurani in 1941. Panchurani obtained khas possession from the tenant and let out the land with the structure standing thereon on a consolidated rent, both for the land as well as for the structure. In the light of these facts, it must be held that Panchurani intended the structure to be an accretion to her husband's estate. In law, the intention of the widow is the determining factor as to whether the property acquired by the widow out of the income would be her own property or an accretion to the estate of her husband. Clear intention of Panchurani is ascertained from these facts that she treated the structure asi an accretion to the estate of her husband. It is clear that after purchase of the structure and eject-ment of the tenant, who was the owner of the structure, the bustee land with the structure standing thereon became a single immovable property and was treated as such by Panchurani. Now, by the sale deed of March 3, 1944 Panchurani purports to effect a sale of the structure only apart from the land. The structure so long as it stood on the land is immovable property and the sale was therefore effected by a document of sale duly registered. It has been contended by Mr. Niren De that if it is immovable property, it is hit by the provisions of Section 307 of the Indian Succession Act and the sale must be held to be voidable in the absence of an order of the court permitting such a sale. In this case also, therefore, the point for consideration is whether the administration was complete. If so, no leave would be necessary. If however, administration was still going on, in the absence of leave, the sale can be avoided. I am unable to hold that even on March 3, 1944 when the sale was effected the administration had not been completed. The reason is the same as indicated by me while dealing with the sale of 43D, Circular Garden Reach Road. This transaction also is not, therefore, hit by the provisions of Section 307 of the Indian Succession Act. Panchurani was, therefore, entitled in law, to effect a sale of the structure as a Hindu widow under the provisions of Hindu Law.
16. The sale deed dated March 3, 1944 clearly indicates that Panchurani purports to effect a sale of the structure apart from the land on which the structure was standing and then create a monthly tenancy in favour of Bolai, the purchaser, of the structure (Sic land ?) at a low rate of Rs. 12/- per month. It is not necessary for me to record a finding in this case whether this amounts to fraud. Had it been so, I would have recorded a finding on it. I am only required to record my view whether there was a legal necessity for such a sale. In my judgment, the answer must be in the negative, To make out a case of legal necessity it must be proved that the act was necessary and was a proper act to be done by the widow in the circumstances of the case. The structure removed from the land may be of little value. But when land with the structure standing thereon yields a very good rent, I cannot conceive of any prudent man selling the structure and then letting out the land on a nominal rent not on the basis of a good income-yielding property of the land with the structure, but on the basis of bare land from which the structure is removed. It is a wanton act of destruction and waste and Hindu Law does not allow a Hindu woman to indulge in such act of destruction and waste. Such an act is clearly unauthorised and cannot be sanctioned by any court as an alienation for legal necessity. I have not the slightest hesitation in holding that there was no legal necessity for this sale. The transaction amounts to the creation of a monthly tenancy in favour of Bolai of the land with the structure standing thereon, at a nominal rent. I am not deciding in this suit whether Bolai or his father Nagendra is a tenant and as such entitled to be in possession of it and, if so, at what rent. These questions have got to be decided in a separate proceeding, if the parties so desire.
17. In the result, I pass a preliminary decree for partition on the following terms :
(1) The plaintiffs are declared jointly, to have 9/10th share in the estate of Kamal Krishna, defendant Nagendra having the remaining l/10th.
(2) The properties now constituting the estate of Kamal Krishna are :
(1) Premises No. 3B, Sett Began Lane;
(ii) Premises No. 116/2A and premises No. 116/2B, Circular Garden Reach Road along with the structure standing thereon.
(3) I declare that premises No. 43D, Circular Garden Reach Road belong to Nagendra and cannot be the subject matter of this partition.
(4) I appoint Mr. J. C. Goho Barrister-at-Law as the Commissioner of Partition at a consolidated remuneration of 30 G.ms. The Commissioner is directed to file his report within 6 months from this date. He will be entitled to act as such before the writ is served. The plaintiffs' attorney undertakes to serve him with the writ before the date of the filing of the Return.
18. Except deciding the rights of Bolai in the structure standing on the land, I decide no other question between Bolai, on the one part, and the plaintiff reversioners, on the other. I expressly exclude from consideration the rights of the reversioners or the rights of Nagendra or Bolai as tenant in this proceeding. Whatever other rights either party has are not being affected by this Judgment. This decree does not affect any existing right of the parties under the partition decree of Alipore,
19. Parties will bear their own costs upto this date including reserved costs. Subsequent costs as in a partition suit. I certify that it is a fit case for the employment of two counsel as against the clients of the respective parties.
20. Defendant Bolai is dismissed from furtherproceedings and he need not appear in the furtherpartition proceedings.