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Kunja Behari Basu Vs. Rasik Lal Sen and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata
Decided On
Reported inAIR1935Cal495,157Ind.Cas.846
AppellantKunja Behari Basu
RespondentRasik Lal Sen and ors.
Cases ReferredAnnada Mohan v. Gour Mohan
Excerpt:
- .....promada and giribala inherited the properties and on 22nd november 1929 sold the same to him for legal necessity by the kobala ex. 3. giribala executed the kobala both on her own behalf and also on behalf of her minor son haripada dutt and narendra, the son of promada, also joined in the document. in the said conveyance a property at goalanda owned by narendra was also included, but this fact is no longer of importance, because the question of the validity of the registration of ex. 3 at goalundo which was mooted in the lower courts is not ultimately pressed before me.2. in the plaint the plaintiff admits that sukhada sundari had executed a conveyance (ex. a) in respect of the lands in suit in favour of defendants 1 and 2 on 23rd january 1924, but the plaintiff challenged the same as.....
Judgment:

R.C. Mitter, J.

1. This appeal is on behalf of the plaintiff for declaration of his title to 4 annas share in the lands of Dag No. 836 and to 8 annas share in the lands of Dags Nos. 161, 1-75, 283 and 316 of the settlement map of Mouza Basur Dhuljuri and for joint possession of the first plot with defendants 3 and 4, and of the other plots with defendant 3 who according to him are respectively the owners of the remaining shares. The plaintiff's case is that 8 annas share of the first plot and 4 annas share of the remaining plots belonged to one Parbati Charan Roy who died in 1327 B.S. intestate, leaving behind him surviving his widow Sukhada Sundari and two daughters Pramada and Giribala. On his death his widow Sukhada Sundari inherited his properties and possessed the same till her death which occurred in the year 1334. On Sukhada Sundari's death Promada and Giribala inherited the properties and on 22nd November 1929 sold the same to him for legal necessity by the Kobala Ex. 3. Giribala executed the kobala both on her own behalf and also on behalf of her minor son Haripada Dutt and Narendra, the son of Promada, also joined in the document. In the said conveyance a property at Goalanda owned by Narendra was also included, but this fact is no longer of importance, because the question of the validity of the registration of Ex. 3 at Goalundo which was mooted in the lower Courts is not ultimately pressed before me.

2. In the plaint the plaintiff admits that Sukhada Sundari had executed a conveyance (Ex. A) in respect of the lands in suit in favour of defendants 1 and 2 on 23rd January 1924, but the plaintiff challenged the same as being without consideration and further stated that in any event, the said sale was not for legal necessity, and therefore not binding on his vendors. Defendants 1 and 2 who are the contesting defendants stated inter alia in their written statement that the conveyance Ex. A (which was taken in the name of defendant 1 for the benefit of both of them) was for consideration and for legal necessity, that Promada and Giribala were brought to their mother's place by Narendra and had at the time of execution of Ex. A consented to the sale. They maintained that in any view of the matter the plaintiff who has derived his title from the said ladies cannot maintain his suit against them. On Ex. A, there is an endorsement in these words:

I, Sm. Promada Sundari Das Roy, and I, Sm. Giribala Dutta both having consented to this sale, become witness to the deed.

Writer of the Consent Narendra Nath Das Roy. Promada Sundari Das Roy of Ratandia, (Finger mark) Giribala Dutta of Balichar, Written by Narendra Nath Das Roy.

3. The learned Munsif in an elaborate judgment doubted the payment of consideration and found that there was no legal necessity for the sale by Sukhada Sundari to defendant 1. He also found that Pramada Sundari and Giribala did not come over to the house of Sukhada at the time of execution of Ex. A, did not consent to the said sale, and that the contesting defendants had failed to prove that the signature and thumb impression on the Kobala Ex. A purporting to be of Promada Sundari and Giribala respectively were not theirs. He also found that Narendra was barely 14 years old at the time and could not have taken the part assigned to him by the defendants. At p. 7 of his judgment the Munsif however makes a remark that the Kobala Ex. A would not be binding on the daughters of Parbati unless it was proved that they consented to the sale. I notice this observation because it gives an indication of the defendants' case as made in the Munsifs Court. Their case is based on two grounds namely; (i) that the plaintiff cannot recover possession from them as the sale to them by Sukhada was for legal necessity; (ii) assuming that no legal necessity was established for the said sale, the sale was voidable at the instance of the daughters who cannot avoid it as they had consented to it. The plaintiff, they say, having a derivative title from the daughters, stands on the same plane as the said daughters. On the basis of the findings which I have indicated above the learned Munsif decreed the plaintiff's suit. Defendants 1 and 2 preferred an appeal which was heard by the Subordinate Judge of Jessore. The said Judge after summarising the case of the respective parties and the material findings of the learned Munsif proposed to himself the points that ho had to decide. The first is formulated by him in these words:

(1) Did Promada Sundari Das Roy and Girikala Dutt give their written consent to the sale by Sukhada Sundari to defendant 1? If so are they estopped to raise the question of legal necessity for the sale by Sukhada Sundari and to question the validity of the sale? If the case of consent be true whether Promada Sundari and Giribala had any right to sell the same properties again to the plaintiff and whether the plaintiff has got any right in the disputed land.

4. The learned Subordinate Judge did not expressly formulate the question of legal necessity as one of the points to be considered by him, but in his judgment he makes some observations which indicate that he did not fully agree with Munsif's view on the question of legal necessity for the sale to defendant 1. He observes in the first place that Sukhada had incurred small debts and that there was some necessity for her maintenance. But from the manner in which the Subordinate Judge approached the case I would proceed on the basis that he has not properly reversed the findings of the Munsif on the question of legal necessity for the sale by Sukhada Sundari to defendant 1, that is, that defendants 1 and 2 have not established that the sale to them was for legal necessity. The Subordinate Judge however considered the question as to whether Promada and Giribala consented to the sale evidenced by Ex. A and whether there was consideration for it. On both these points he has arrived at definite findings which are in favour of the contesting defendants. He has held however that the suit was barred by estoppel.

5. Mr. Roy who appears for the plaintiff appellant has placed before me the following contentions: (1) the finding of the learned Munsif that there was no legal necessity for the sale evidenced by Ex. A being not reversed by the Subordinate Judge the dismissal of the plaintiffs' suit is bad in law. (2) That consent by reversioners to a sale of a portion of the estate inherited by a Hindu female raises only a presumption of legal necessity; it cannot create estoppel against them and that there is no scope for the said presumption in this case as the only finding of the Court which holds the field is that there was in fact no legal necessity. (3) The alleged consent of the two ladies is no consent at all because there is no evidence to show that they understood the nature and effect of their act in signing the endorsed consent on Ex. A.

6. As I have stated above I agree that there is considerable force in the argument of Mr. Roy, that the Subordinate Judge did not find that there was legal necessity for the sale evidenced by A. The Subordinate Judge has only some incidental remarks to make on the said point, but where he summarises his findings he does not mention anything about legal necessity. If I had come to the conclusion that the suit cannot be disposed of either way without a definite finding on the question of legal necessity I would have remanded the case but on careful consideration of the matter, I am of opinion that in the circumstances of this case the said question is immaterial and the suit has been rightly dismissed by the Subordinate Judge, though I do not agree with all his reasons. Before I deal with the questions of law raised in this case I would take up the last point formulated by Mr. Roy. It is no doubt true as a general proposition that he who relies on a deed executed by a Purdanashin lady must show that the lady comprehended the nature and effect of the deed. The dispositions made must be substantially understood by her and must really be her mental act as its execution her physical act. It is not enough that the deed should simply be read over to her, but that depends upon circumstances, amongst which the simplicity or complexity of the deed and the transaction would not be unimportant factors: Amarnath v. Achan Koer (1892) 14 All 420 and Farid-un-nisa v. Muktar Ahmed, 1925 PC 204. But in this case the said considerations do not arise and I cannot give effect to this point which is raised for the first time in the argument before me. The plaintiff had all along proceeded upon the footing that Promada and Giribala were not at all present at the execution of Ex. A and that the signature and thumb impression on it are forged. The defendants met that case successfully. There is no suggestion in the lower appellate Court of the ground now urged before me and I do not even find the said ground taken in the memorandum of appeal. I accordingly overrule it.

7. Mr. Roy contends that an alienation made by a Hindu widow is valid and binding on the reversioner on three grounds and three grounds only, namely: (1) if the act of the widow amounts to a surrender of her estate; (2) if there is legal necessity for the alienation; (3) and even if there is in fact no legal necessity, if the transferee made bonafide inquiries and was satisfied as to its existence. He contends further that the consent of the next reversioners to the sale cannot amount to estoppel which can either bind him or any other person who gets the estate on the widow's death. Its only effect, says he, is to raise a presumption of legal necessity. For these propositions he cites Bajrangji v. Mano Karnika (1908) 30 All 1, Debi Prosad v. Golap Bhagat (1913) 40 Cal 721 and the passage at p. 84 in the judgment of the Judicial Committee of the Privy Council in Rangasami Gounden v. Nachiappa Gounden, 1918 PC 196. He further contends that a presumptive reversioner who has only a spes successionis can neither alienate or enter into a valid contract to alienate his spes successionis Annada Mohan v. Gour Mohan, 1923 PC 189, and therefore the consent of the said two ladies to the sale of their mother at a time when the mother was alive can have no effect on their rights which they acquired only on the death of their mother.

8. An examination of the principles and the cases does not support any of these propositions. In the first place it is not correct to say that an alienation by a Hindu widow can be binding on the reversions only in the three cases specified by Mr. Roy, nor can the only effect of consent of the presumptive reversioner be to raise a presumption of legal necessity. An important distinction must be made between the case where the actual reversioner, i.e., he who becomes entitled to the estate on the death of the widow, is or is not the reversioner who gave his consent at the time of the questioned sale or thereafter. If he was not the reversioner who gave his consent it is quite true that the alienation would be effective against him only in the three cases specified by Mr. Roy. But if he was, the case has to be decided on a different principle altogether. It is the principle of election which is indicated in the judgment of Lord Dunedin in Rangasami Gounden v. Nachiappa Gounden, 1918 PC 196, cited by Mr. Roy in support of his contention. An alienation by Hindu widow is not void but voidable. This was pointed out by Lord Davey in Bejoy Gopai v. Krishna Mahishi (1907) 34 Cal 329, when considering the application of Article 91, Lim. Act, to a suit brought by the reversioner after the death of the Hindu widow to recover possession from the transferee of the widow. No doubt Lord Davey remarked in the said case that the institution of the suit by him was an election to avoid the voidable Ijara, but in that case the Ijara had not been granted by the widow with the consent of the plaintiff. This leads to the consideration of the question as to whether the consent given by the presumptive reversioner, who actually becomes the owner on the death of the widow, at a time when the widow is alive, can be regarded as effective election. In Rangasami Gounden v. Nachiappa Gounden, 1918 PC 196, Lord Dunedin made an observation to the following effect on which Mr. Roy relies. It runs thus:

If therefore a reversioner, after he became in titulo to reduce the estate to possession and knew of the alienation, did something which showed the alienation as good, he would lose his right of complaint.

9. Mr. Roy rests his contention apparently on this passage when he says that consent of the daughters during the lifetime of Sukha Sundari had no effect at all. An examination of the facts of Rangasami Gounden v. Nachiappa Gounden, 1918 PC 196 would show that the transaction which had been set up as amounting to ratification or election had occurred in the year 1896 when Morakammal, the lady who executed the deed of gift was alive, she having died in 1907. If His Lordship meant to lay down the proposition as contended for by Mr. Roy there would have been no necessity to consider the exact nature of the transaction of 1896. A presumptive reversioner can bring an action during the life-time of the widow challenging her alienation. If he has that right, I do not see why he can have no power to elect during the life-time of the widow, and treat the alienation as valid. The matter has been considered by a Full Bench of the Bombay High Court in Akkawa v. Sayankhan, 1927 Bom 230, and by the Judicial Committee of the. Privy Council in Annada Mohan v. Gour Mohan, 1923 PC 189, where Annagouda, who became actually entitled to the property on the death of the female owners, had consented to the alienation by putting his signature to the deed itself. Lord Sinha in holding that the plaintiffs who claimed through Annagouda could not recover, observed that the principle formulated in Annada Mohan v. Gour Mohan, 1923 PC 189 had no application inasmuch as Annagouda did not either sell or agree to sell his reversionary interest but had simply consented to the alienation. No doubt in the case last mentioned Annagouda received some benefit because there was an alienation also to him by the widow at the time of the challenged alienation which His Lordship considered to be part of the same transaction, but I consider that the said circumstance was considered as an additional reason by Lord Sinha for dismissing the suit. I accordingly hold that the plaintiff's suit has been rightly dismissed, and I affirm the decree made. But I must at the same time make it quite clear that after the death of the ladies, Promada and Giribala, the defendants will not be entitled to retain possession if their rights be challenged by the then reversioner unless they can prove that there was either legal necessity or that they bought the property in 1924 after due enquiry about the existence of legal necessity. These questions are accordingly left open.

10. The appeal is dismissed with costs. Leave to appeal is asked for and granted.


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