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Banku Behary De and ors. Vs. Bisseswar Lal Marwari and anr. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported inAIR1923Cal575,76Ind.Cas.598
AppellantBanku Behary De and ors.
RespondentBisseswar Lal Marwari and anr.
Cases ReferredNanda Lal v. Jagat Kishore Acharjya
Excerpt:
hindu law - will--wdow, beqvest in favour of--estate taker--alienat on by wdow--necessity--recitals in deed, value of--enquiry by alienee. - .....effect as to whether the alienee in this case made all proper enquiries to satisfy himself of the truth of the representations made by the alienor and which representations are to be found in the recital in the deed by which the alienor conveyed the property to the alienee. now, so far as the first point is concerned, it has been held in a series of cases which have been usefully collected by sir ernest trevelyan in the second edition of his 'hindu wills,' at page 90, that a bequest of immoveable property by a husband to his wife in the absence of words giving an absolute estate with power of alienation confers only the limited estate which under hindu law a widow takes as heir in her husband's property. the proposition is so well settled and supported by such numerous decisions of the.....
Judgment:

1. The facts which have given rise to this appeal have been set out carefully and at length in the judgment of the lower Appellate Court and, therefore, it is unnecessary to repeat the same here.

2. The main questions which have been argued before us with great earnestness and with great learning are two in number, namely, (i) whether a Hindu widow under a bequest which did not contain words giving an absolute estate with power of alienation takes only a limited estate which under Hindu law a widow takes as heir in her husband's property, or whether, apart from all questions arising under Hindu Law, she takes only a. life interest pure and simple; (ii) whether the judgment of the lower Appellate Court is vitiated by reason of the absence of any finding to the effect as to whether the alienee in this case made all proper enquiries to satisfy himself of the truth of the representations made by the alienor and which representations are to be found in the recital in the deed by which the alienor conveyed the property to the alienee. Now, so far as the first point is concerned, it has been held in a series of cases which have been usefully collected by Sir Ernest Trevelyan in the second Edition of his 'Hindu Wills,' at page 90, that a bequest of immoveable property by a husband to his wife in the absence of words giving an absolute estate with power of alienation confers only the limited estate which under Hindu Law a widow takes as heir in her husband's property. The proposition is so well settled and supported by such numerous decisions of the High Courts in India and of their Lordships of the Judicial Committee of the Privy Council that it will be supererogation to cite the authorities at length at this time of the day.

3. With reference to the second point, the matter stands thus. In the judgment of the Court of first instance, it is stated that the purchaser, the defendant in this case, made no enquiry of the plaintiff who according to him was of age at the time of the alienation. In the judgment of the lower Appellate Court apparently this passage in the judgment of the Court of first instance was brought to the notice of the learned Additional District Judge and these words occur in his judgment: 'It is pointed out that Bisseswar admits that he made no enquiries but did he really require to do so?' In the summary of findings arrived at by the learned District Judge the following passage also occurs: ' The amount of Prosonnamayee's available liquid resources when she made the sale is not known. The plaintiff himself says he does not know what money Prosannomoyee had at the time. I hold further that the defendants were not bound to ascertain what her liquid resources were, and indeed it was obviously impossible for them to do so. Such enquiries would probably have been resented end very properly so.' Mr. Roy and Mr. Mitter who have argued this case on behalf of the appellants complain that there is no fading arrived at by the learned Additional District Judge as to whether or not the purchaser had made an honest and proper enquiry to satisfy himself of the truth of the representation as regards the legal necessity on the part of the alienor. The judgment is, perhaps, open to that comment and there is room for the criticism that the essential finding of fact on which the conclusion as regards whether the lady had legal necessity or not depends, has been left undetermined by the lower Appellate Court. In the circumstances, it became necessary to consider whether the matter should not be remitted to the lower Appellate Court for a specific finding as to whether the alienee made a proper enquiry as regards the truth of the representation regarding the legal necessity on the part of the alienor. We are, however, relieved of the necessity of considering that matter, because we have looked into the evidence on the record of this case and we are satisfied on the evidence of the defendant Biseswar Marwari taken along with the evidence of Panchanon Mukherjee and Ram Chandra Bhandar that, so far as the alienee was concerned, he certainly made enquiries as to the truth of the representation as regards legal necessity on the part of the alienor. It is abundantly clear from the evidence referred to above that the lady, the alienor, was not in a position to pay her ordinary expenses, such as expenses for food and clothing and that she had no other alternative but to sell the property in question. That being so, there, cannot be any doubt that, on the question of fact as to whether there was an enquiry on the part of the alienee as regards the truth of the said representation, the conclusion must be in the affirmative, namely, that the alienee had made proper enquiries. That we are warranted into looking into the evidence in this case would appear from the terms of Section 103 of the present Code of Civil Procedure which runs as follows:--'In any second appeal, the High Court may, if the evidence on the record is sufficient, determine any issue of the fact necessary for the disposal of the appeal but not determined by the lower Appellate Court.' In this state of affairs and having regard to the findings arrived at by the lower Appellate Court, findings which have not been assailed before us and which can not be assailed before us and having regard to the statement of the law bearing on this question as contained in the judgment of their Lordships of the Judicial Committee in Nanda Lal v. Jagat Kishore Acharjya 36 Ind. Cas. 420 : 43 I.A. 249 at p. 252 : 20 M.L.T. 335 : 31 M.L.J. 563 : (1916) 2 M.W.N. 336 : 4 L.W. 458 : 18 Bom. L.R. 868 : 14 A.L.J. 1103 : 24 C.L.J. 487 : 1 P.L.W. 1 21 C.W.N. 225 : 44 C. 186 : 10 Bur. L.T. 177 (P.C.) the conclusion must be irresistible that a representation was made to the purchaser, that legal necessity existed on the part of the alienor and that the alienee acted honestly and made all proper enquiries to satisfy himself of the truth of such representation. As has been observed by their Lordships of the Judicial. Committee, a recital is clear evidence of the representation and having regard to the finding which has been arrived at that there was such an enquiry, the recital, coupled with the representation and with, the enquiry referred to above, is sufficient evidence to support the deed.

4. In this view of the matter, the appeal fails and must be dismissed with costs.


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