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Rameswar Mandal and ors. Vs. Provabati Debi - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported inAIR1915Cal141(2),25Ind.Cas.84
AppellantRameswar Mandal and ors.
RespondentProvabati Debi
Cases ReferredMalaiya Pillai v. Tirumalaperumal Pillai
Excerpt:
suit by reversioner on death of hindu widow - defence, legal necessity--loan taken to pay rent to superior landlord--legal necessity --intention. - .....bagala chandra, borrowed a sum of rs. 399 from rameswar mandal, the first defendant in this suit. the creditor sued on the money-bond and obtained an exparte decree on the 6th april, 1888. the decree was executed in due course and the right, title and interest of the judgment-debtors in the disputed properties, was sold on the 2nd july 1888, when the decree-holder, now represented by the appellants, became the purchaser, for rs. 745, in the name of one moheswar bhattacharjee. the sale was confirmed on the 7th january 1889, and the sale certificate was issued in the name of the ostensible purchaser on the 12th february 1889. meanwhile, on the 22nd november, 1888, sukhada sundari had sold the same properties again to the defendants other than the appellants. sukhada sundari died on.....
Judgment:

Asutosh Mookerjee, J.

1. This is an appeal by the first nine defendants in a suit by a Hindu reversioner for declaration that certain alienations, made by a widow in possession of the estate of her husband, were in excess of her authority and do not bind the inheritance. The properties in dispute belonged to the father of the plaintiff, Rakhal Chandra Mookerjee, and his brother Bagala Chandra Mookerjee. Rakhal Chandra Mookerjee died in 1883, leaving a widow Sukhada Sundari Debiand an unmarried daughter by her, Pravabati Debi, now plaintiff-respondent before us. On the 25th November 1885 Sukhada Sundari and her brother-in-law, Bagala Chandra, borrowed a sum of Rs. 399 from Rameswar Mandal, the first defendant in this suit. The creditor sued on the money-bond and obtained an exparte decree on the 6th April, 1888. The decree was executed in due course and the right, title and interest of the judgment-debtors in the disputed properties, was sold on the 2nd July 1888, when the decree-holder, now represented by the appellants, became the purchaser, for Rs. 745, in the name of one Moheswar Bhattacharjee. The sale was confirmed on the 7th January 1889, and the sale certificate was issued in the name of the ostensible purchaser on the 12th February 1889. Meanwhile, on the 22nd November, 1888, Sukhada Sundari had sold the same properties again to the defendants other than the appellants. Sukhada Sundari died on the 21st November 1901, when the succession opened out to the plaintiff as the reversionary heir to the estate of her father. On the 18th November 1904, the plaintiff commenced the present action for declaration that the execution sale as also the private alienation were without legal necessity and were not operative after the death of her mother. She further impeached the validity of the execution sale on the ground that the decree-holder held a mortgage on the property sold and had acted in contravention of the provisions of Section 99 of the Transfer of Property Act. She did not sue for recovery of possession, as the estate was in the hands of an under-tenure-holder who had saved it from a sale under the Patni Regulation and had obtained possession which would continue till his advance was re-paid or satisfied from the profits. The defendants resisted the claim of the plaintiff on the ground, amongst others, that the sales had taken place for legal necessity. The Subordinate Judge found this point in favour of the purchaser at the execution sale but against the purchasers at the private sale. In this view, ho gave the plaintiff a conditional decree against the former, who became entitled to receive a proportionate share of the purchase money, and an unconditional decree against the latter, whose conveyance was declared to be wholly inoperative. On appeal by the defendants, the District Judge reversed this decree and dismissed the suit on the ground that it was bad for mis-joinder of parties and of causes of action. On appeal to this Court, Brett and Sharfuddin, JJ., hell on the authority of the decisions in Ishan Chunder Huzra v. Rameswar Mondal 24 C. 831 Nundo Kumar Naskar v. Banomali Gagan 29 C. 871 and Lalla Rup Narain v. Gopal Devi 3 Ind. Cas 382 : 38 I.A. 103 : 36 C. 780 : 18 C.W.N. 920 (P.C.) : 6 A.L.J. 567 : 10 C.L.J. 58 : 5 M.L.T. 423 : 11 Bom. L.R. 833 : 98 P.R. 1909 : 146 P.W.R. 1909 that there was no misjoinder of parties or of causes of action and that the plaintiff was competent to maintain one suit against all the transferees in respect of the estate of her father to which she had become entitled on the death of her mother. The appeal was accordingly allowed and the case remanded, so that the appeal preferred to the District Judge might he heard on the merits. In so far as the private sale is concerned, no attempt appears to have been made to assail the conclusion of the Subordinate Judge that it was bad for want of consideration and legal necessity and his decision upon this point must be taken to have become final. We are concerned at this stags only with the effect of the execution sale of the 2nd July 1833. As regards this sale, the Subordinate Judge found, first, that the money had been borrowed by the widow for payment of rent to the zemindar and was applied for that purpose; secondly, that the sale was void because held in contravention of Section 99 of the Transfer of Property Act, and thirdly, that a declaratory decree should be made in favour of the plaintiff, conditional on payment by her of a sum of Rs. 309-1-6 to the first nine defendants, as such money had been applied by the widow for the benefit of the estate. Upon appeal, the District Judge has found, first, that the loan was taken by the widow and the money borrowed was applied by her for payment of rent due to the superior landlord; secondly, that as laid down in Ashutosh Sikdar v. Behari Lal Kirtania 35 C. 61 11 C.W.N. 1011 : 6 C.L.J. 320, the sale was not void but merely voidable, because held contrary to the provisions of Section 90 of the Transfer of Property Act; and thirdly, that it was unnecessary to avoid the sale, because it had passed to the purchaser nothing beyond the limited estate of the widow, as laid down in the cases of Mohima Chunder Roy Chowdhry v. Sam Kishore Acharjee Chowdhary 23 W.R. 174 : 15 B.L.R. 142 and Braja Lal Sen v. Jiban Krishna Roy 26 C. 285 which was confirmed on appeal to the Judicial Committee: Jiban Krishna Roy v. Brojo Lal Sen 30 C. 550 (P.C.) : 30 I.A. 81 : 7 C.W.N. 425 : 5 Bom.L.R. 428. The District Judge has also overruled the contentions that the suit was not maintainable for a pure declaratory decree without consequential relief, and, was, in any view, barrel by limitation. In this view, the District Judge has modified the decree of the primary Court and has given the plaintiff an unconditional declaration that the execution sale does not bind the estate in her hands. On the present appeal, besides the two subordinate points last mentioned, namely, the grant of a declaratory decree without consequential relief and the bar of limitation, the substantial question which has emerged for consideration is, what was the true nature of the debt created by the bond, of the decree in the bond suit, and of the proceedings thereon and what was the legal effect of the execution sale on the estate in the hands of the widow.

2. It has been found by the District Judge, in concurrence with the Subordinate Judge that the money was raised and was applied by the widow for payment of rent to the superior landlord. On this basis, it has been argued that the loan was taken for legal necessity. This contention, in our opinion, is not well-founded. The powers of a Hindu widow, in respect of alienation of the estate of her husband, are similar to those of a guardian of an infant, as defined by their Lordships of the Judicial Committee in Hanoomanpersad Panday v. Babooee Munraj Koonweree 6 M.I.A. 393 : 18 W.R. 81 note : Sevestre 253 N. : 2 Suth. P.C.J. 29 : 1 Sar. P.C.J. 552 : 19 Eng. Rep. 147; Kameswar Pershad v. Run Bahadur Singh 8 I.A. 8 : 6 C. 843 (P.C) : 8 C.L.R. 361 : 4 Shome L.R. 81 : 4 Sar. P.C.J. 210 : 5 Ind. Jur. 157, Lala Amarnath Sah v. Achan Kuar 19 I.A. 196 : 14 A. 423 (P.C) : 6 Sar. P.C.J. 197 and Bhagwat Dayal Singh v. Devi Dayal Sahu 35 I.A. 48 : 35 C. 420 (P.C.) : 12 C.W.N. 393 : 7 C.L.J. 335 : 10 Bom. L.R. 230 : 5 A.L.J. 184 : 18 M.L.J. 100 : 3 M.L.T. 344 : 14 Bur.L.R. 49. Consequently, a person who claims title under an alienation from her must prove that there was legal necessity for it, that is, such pressure on the estate at the time the loan was taken or the alienation made as justified the act of the widow. He can also protect himself by proof of bona fide inquiry, and if the fact of such inquiry is established, the real existence of an alleged sufficient and reasonably credited necessity is not a condition precedent to the validity of his title. In the case before us, there is no proof of bona fide inquiry by the creditor, and further reference need not consequently be made to this possible aspect of the matter. The question then reduces to this, was there legal necessity for the loan? The mere fact that the loan was taken to pay rent and the money raised was applied for that purpose, is clearly not sufficient. It may be conceded that the extreme view taken in Matiullah v. Radliabinode (1856) Beng. S.D.A. 596 and Radhamohan v. Gridhdri Lal (1857) Beng. S.D.A. 460, namely, that the creditor must not only show that the money was borrowed or required for a necessary purpose, but also that the necessity was attributable to causes beyond the control of the widow, is unsound and cannot be supported on principle; for, as their Lordships of the Judicial Committee pointed out in Hurioomanpersad Panday v. Babooee Munraj Koonweree 6 M.I.A. 393 : 18 W.R. 81 note : Sevestre 253 N. : 2 Suth. P.C.J. 29 : 1 Sar. P.C.J. 552 : 19 Eng. Rep. 147, the creditor is not affected by any precedent mismanagement of the estate, provided that he has not been a party to the misconduct which has produced the danger he helps to avert by his loan. On the other hand, the opposite extreme view that the creditor is protected if the money raised has been applied for the benefit of the estate, is equally untenable. The true rule is that the creditor, to protect himself--where he is not shown to have made a bona fide inquiry--must prove that there was an actual pressure on the estate, such as an outstanding decree or an impending sale which the widow had no funds capable of meeting Lala Amarnath Sah v. Achan Kuar 19 I.A. 196 : 14 A. 423 (P.C) : 6 Sar. P.C.J. 197, Dharam Chand Lal v. Bhawani Misrain 24 I.A. 183 : 25 C. 189 (P.C.) : 1 C.W.N. 697, Shrinath v. Ratanmala (1859) Beng. S.D.A. 421, Srimohan Jha v. Brij Behary Missri 2 Ind. Cas. 152 : 36 C. 753, Lalla Byjnath Pershad v. Bissen Beharee Sahoy 19 W.R. 80, Mata Pershad v. Bhageeruthee 2 N.W.P.H.C.R. 78, Ghansham Singh v. Badiya Lal 24 A. 547 : A.W.N. (1902) 169., Lakshman v. Radhabai 11 B. 609 . Tested from this point of view, the creditor in the case before us has laid no solid foundation for his claim. We know nothing about the state of the family at the time of the loan, and no explanation has been offered why the widow in possession of a valuable patni should have found herself unable to pay even the current rent to the superior landlord. We must hold accordingly that the creditor has not proved legal necessity for the transaction.

2. Even if we assume, however, that there was legal necessity for the loan, the position of the creditor is beset with inextricable difficulties. Where a Hindu widow obtains a loan, she is at liberty to bind herself personally, or, when the purpose for which she borrows is a necessary one, she is equally entitled to bind her husband's estate. Whether in a particular case the widow intended to bind herself alone or to bind the estate as well, must be gathered from the statements, if any, in the deed, or from the surrounding circumstances: Damodar v. Bai Jankibai 5 Bom.L.R. 350, Prosanna Kumar Nandi v. Umedar Raja Chowdhary 3 Ind. Cas. 692 : 9 C.L.J. 88 : 13 C.W.N. 353. In this respect, there is no real distinction in principle between a case where a charge is formally created by the widow, and another where she executes a bond for the money advanced: Hurry Mohun Rai v. Gonesh Chunder Doss 10 C. 823 (F.B.), Ramcoomar Milter v. Ichhamoyi Dasi 6 C. 36 : 6 C.L.B. 429 : 5 Ind. Jur. 579, Veera Soorappa v. Errappa Naidu 29 M. 484 : 1 M.L.T. 287 : 16 M.L.J. 499, Regulla Jogayya v. Venkataralhnamma 5 Ind. Cas. 271 : 7 M.L.T. 112 : 20 M.L.J. 412 : 33 M. 492, Veerabadra Aiyar v. Maruda Nachiar 8 Ind. Cas. 1072 : 21 M.L.J. 320 : 9 M.L.T. 235 : 34 M. 188 : (1910) M.W.N. 799, Sakrabhai v. Maganlal 26 B. 206 (F.B.) : 3 Bom.L.R. 738, Umrootram v. Narayundas 2 Bom. 225, Devi v. Sambhu 24 B. 135 : 1 Bom.L.R. 627, although the contrary view has sometimes been maintained: Ramasami v. Sellattammal 4 M. 375, Narana Maiya v. Vanleva Karanta 17 M. 208 : 4 M.L.J. 63, Giribala Dassi v. Srinath Chandra Singh 12 C.W.N. 769, Prasanna Kumar v. Umedar Raja 3 Ind. Cas. 692 : 9 C.L.J. 88 : 13 C.W.N. 353, Gadgeppa Desai v. Apaji 3 B. 237 Bhiraj Singh v. Manga Ram 19 A. 300 : A.W.N. (1897) 69, Kallu v. Faiyaz Ali Khan 30 A. 394 : 5 A.L.J. 367 : A.W.N. (1908) 173. It is possible, however, that where a charge has been created by the widow on the estate, there may be surer indication of her intention to make the estate liable than where she had executed a promissory-note; but once the intention is established, the effect of her act must depend upon the nature of the debt which is recoverable from the estate in the hands of the reversioner if it has been incurred for necessary purposes. Tested in the light of these principles, the creditor here is in a precarious position, as there is nothing to indicate that the widow intended to make the estate liable for the loan. The rant was primarily payable out of the income as it accrued, and if by reason of any temporary difficulty, the widow was driven to raise a loan, there is no reason why one should assume, in the absence of clear indication to that effect, that she intended to throw a permanent burden upon the inheritance rather than to re-pay the loan out of the income for subsequent years which could be absolutely at her disposal. In this connection we must bear in mind that as laid down by their Lordships of the Judical Committee in Jiban Krishna Roy v. Brojo Lal Sen 30 C. 550 (P.C.) : 30 I.A. 81 : 7 C.W.N. 425 : 5 Bom.L.R. 428 and by 'this Court in Kristo Gobind Majumdar v. Hem Chunder Chowdhury 16 C. 511, Mahomed Saint Ali v. Hara Sundari Bebya 15 Ind. Cas. 351 : 16 C.W.N. 1070 and Bireswur Das Bey v. Kamal Kumar Butt 16 Ind. Cas. 437 : 17 C.W.N. 337 a decree for rent which has accrued due after the death of her husband, is prima facie a personal decree against the widow, although when such a decree has been obtained by the entire body of landlords, under the provisions of the Bengal Tenancy Act, the tenure itself may pass into the hands of the purchaser, as the result of a sale in execution. Apart from this initial difficulty, there is a graver obstacle in the path of the creditor in the case before us. It is not enough to show that the widow intended to create a liability upon the estate in her hands. The creditor has further to establish that he intended to enforce such liability. The real question in fact is, what was liable to be sold and what in fact was actually sold. In the investigation of this question, the frame of the suit, the judgment, the decree, the execution proceedings, the sale-proclamation, the amount of purchase-money and the conduct of the parties, must all be taken into account; the sale 'certificate is by no means conclusive. As the proceeding may be against the widow personally or against the widow as representing her husband's estate, the true test is to see whether the proceeding in which the sale was directed was brought against the widow personally or with a view to affect the whole inheritance : Jugul Kishore v. Jotendro Mohun Tagore 11 I.A. 66 : 10 C. 985 (P.C) : 8 Ind. Jar. 435 : 4 Sar. P.C.J. 553, General Manager of the Raj Durbhanga v. Maharajah Coomar Ramaput Singh 14 M.I.A. 633 : 10 B.L.R. 249 : 17 W.R. 459 : 2 Suth. P.C.J. 575 : 3 Sar. P.C.J. 117 : 20 E.R. 912, Srinath Dass v. Hari Pada Mitter 3 C.W.N. 637, Ram Lal v. Akhoy Charan Mitter 7 C.W.N. 619, Roy Radha Kissen v. Nauratan Lal 6 C.L.J. 490, Brojo Nath Pal v. Juggeswar Bigchi 1 Ind. Cas. 62 : 9 C.L.J. 346, Kisto Moyss Dasssee v. Prosunno Narain Chowdhary 6 W.R. 304, Bisto Bahary v. Byjnatli Pershad 16 W.R. 49 : 7 B.L.R. 213, Baijun Doobey v. Brij Bhookun Lall 2 I.A. 275 : 1 C. 133 (P.C.) : 24 W.R. 306 : 3 Suth. P.C.J. 207 : 3 Sar. P.C.J. 541, Bireswur Das Dey v. Kamal Kumar Butt 16 Ind. Cas. 437 : 17 C.W.N. 337, Mahomed Sadut Ali v. Hira Sundari Debya 15 Ind. Cas. 351 : 16 C.W.N. 1070, Trilochan v. Bakkaswar 14 Ind. Cas. 839 : 15 C.L.J. 423. It is not necessary that the reversioner should be joined as party to the suit, but if he is so joined, the fact would afford clear indication that the creditor intended to make the inheritance liable and not to restrict his remedy to the qualified interest of the widow : Bhagirathi Dass v. Baleswar Bagarti 10 Ind. Cas. 686 : 19 C.L.J. 155 : 17 C.W.N. 877 : 41 C. 69, Mohima Chunder Chowdhry v. Ram Kishore Acharjee Chowdhary 23 W.R. 174 : 15 B.L.R. 142, Srinalh Dass v. Hari Pada Mitter 3 C.W.N. 637, Nujenderchunder Ghose v. Kaminee Dossee 11 M.I.A. 241 : 8 W.R. (P.C.) 17 : 2 Sath. P.C.J. 77 : 2 Sar. P.C.J. 275 : 20 E.R. 92, Lloyd v. Johnes (1804) 9 Ves. (Jun) 37 : 32 Eng. Rep. 514 : 7 R.R. 147; Story on Equity Pleadings, Article 144. Tested in the light of those principles, what is the position of the creditor. in the case before us? There is no indication whatever that in the suit on the money bond he intended to obtain a decree which would operate against the inheritance. The claim was, in form, personally against the widow. The decree in the face of it was personally against her. In the execution proceeding, her right, title and interest was put up to sale and was purchased by the decree-holder, who paid for the share of the property now in dispute, one-half of Rs. 745, though the value thereof was, according to the plaintiff, not less than Rs. 2,100. What was sold was, prima facie, her limited interest, and it is impossible for us to hold that the entire inheritance was intended to be and was actually brought to sale. Consequently, the interest acquired by the purchaser terminated on the death of the widow. In this view, it is immaterial that the sale, though voidable because held in contravention of Section 99 of the Transfer of Property Act, was not avoided by the widow; her omission to do so could not give the sale greater efficacy than it possessed or enlarge the interest acquired by the purchaser thereunder. We hold accordingly that the plaintiff became entitled to the property on the death of her mother.

3. It is plain that no question of limitation arises. Whether we apply Article 120 or Article 141 the suit is obviously in time. Nor can objection be taken to the grant of a declaratory decree under Section 42 of the Specific Relief Act. The property is not in the possession of the defendants and the plaintiff could not ask for ejectment as against them : Subramanyan v. Paramaswamn 11 M. 116, Malaiya Pillai v. Tirumalaperumal Pillai 12 Ind. Cas. 170 : 10 M.L.T. 277 : (1912) M.W.N. 161 : 21 M.L.J. 1022 : 36 M. 62 Nor could she join in this suit the under-tenure-holder who has obtained possession under the Patni Regulation for the satisfaction of his lien; his possession is rightful and the plaintiff has no cause of action against him. The only question in controversy is, whether on the death of the plaintiff's mother, the property vested in her or still continued in the hands of the execution purchaser: for the reasons assigned, it has been rightly declared that the property vested in the plaintiff.

4. The result is that the decree of the District Judge must be affirmed and this appeal dismissed with costs.

Beachcroft, J.

5. I agree.


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