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Japhu and ors. Vs. Parshottam Ram and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtHimachal Pradesh High Court
Decided On
Case NumberSecond Appeal Nos. 5 and 16 of 1952
Judge
Reported inAIR1953HP84
ActsHindu Law
AppellantJaphu and ors.
RespondentParshottam Ram and ors.
Appellant Advocate D.N. Vaidya, Adv.
Respondent Advocate K.L. Mehra and; D.N. Vaidya, Advs.
DispositionAppeal dismissed
Excerpt:
- .....for rs. 2,000/-. there is no dispute with regard to thes consideration but only with regard to the legal necessity for the same. the trial court decreed the suit 'in toto' holding that there was no legal necessity for the sale. the widow and the alienees went up in appeal to the district judge; and the latter held that the sale was justified by legal necessity to the extent of rs. 1,100/-. accordingly, he maintained the declaratory decree passed by the trial court but made it conditional on the payment of the said rs. 1,100/- to the defendants-appellants by the plaintiff. both the parties have come up in appeal to this court, the plaintiff iagainst the direction for payment of rs. 1,100/- and the widow and her alienees against a decree having .at all been passed in favour of the.....
Judgment:

Chowdhry, J.C.

1. These two appeals arise out of the same suit. It was a suit by a rever-sioner against a Hindu widow and her alienees for a declaration that the alienation was not binding on the reversion. The alienation, was a sale of a house for Rs. 2,000/-. There is no dispute with regard to thes consideration but only with regard to the legal necessity for the same. The trial Court decreed the suit 'in toto' holding that there was no legal necessity for the sale. The widow and the alienees went up in appeal to the District Judge; and the latter held that the sale was justified by legal necessity to the extent of Rs. 1,100/-. Accordingly, he maintained the declaratory decree passed by the trial Court but made it conditional on the payment of the said Rs. 1,100/- to the defendants-appellants by the plaintiff. Both the parties have come up in appeal to this Court, the plaintiff iagainst the direction for payment of Rs. 1,100/- and the widow and her alienees against a decree having .at all been passed in favour of the plaintiff.

2. It may be stated at onCie that the condition of payment of Rs. 1,100/- should not have been to the defendants-appellants indiscriminately. Amongst the appellants in the lower appellate Court was the widow also, but surely it could not have been intended by the lower appellate Court that she should also be one of the recipients of the amount in question, or any portion thereof. Moreover, such a suit by a reversioner being of a representative, character, it would not do to order payment of the amount by only the particular reversionary heirs obtaining the decree. He may not be the person actually to succeed to, the estate after termination of the widow's life interest. That being so, the proper decree to pass in such a case would be to create a charge on the subject-matter of the sale for the portion of the sale consideration found to be justified by legal necessity.

3. The sale is said to have been effected for the following four necessities; (1) Rs. 600/-for performance of 'Chaubarkha' ceremony of the widow's deceased husband, (2) Rs. 500/- for payment to one Dillu, out of which Rs. 300/-represented arrears of his salary and Rs. 200/-price of ghee supplied by Dillu at the marriage of a girl who had been brought up by the deceased husband as his daughter, (3) Rs. 800/-for pilgrimage with the ashes o:f the deceased; husband and (4) Rs. 100/- spent on other household needs.

4. The last two have been held by both the Courts below as not justified by legal necessity. So far as the fourth item is concerned, the learned counsel for the defendants-appellants in Second Appeal No. 16 of 1952 conceded the correctness of those findings. (As regards the third item of Rs. 800 his Lordship considered the evidence and proceeded): I agree with the Courts below that this part of the consideration was not justified by legal necessity.

5. As regards the item of Rs.500/-, it is significant that, apart from the evidence produced by the defendants, the plaintiff himself admitted payment of Rs. 500/- by the widow to Dillu. It is also admitted that the widow performed the marriage of a girl whom her deceased husband had brought up as a daughter. The performance of such a marriage was certainly a purpose amounting to legal necessity. It is also1 admitted by the plaintiff that the widow per-formed the 'Chaubarkha' ceremony of her de-ceased husband. In these circumstances, the lower appellate Court was justified in holding that the sale was justified by legal necessity to the extent of these two items of Rs. 600/-and of Rs. 500/-.

6. The learned counsel for the plaintiff-appellant in Second Appeal No. 5 of 1952 contended on the authority of--'Ramsumran Pra-sad v. Mt. Shyam Kumari', AIR 1922 P. C., 356 (A), that the widow could, make the alienation only if there were no other means available to discharge the obligations. There is, however, no evidence worth the name justifying the conclusion that the widow had any other means of meeting these obligations. The plaintiff's witnesses have made exaggerated statements as regards the widow having realised large sums of money from her deceased husband's debtors. These allegations were not substantiated by any documentary evidence. The only amounts admitted by the widow as having' been received by her were Rs. 300/- from Thathu and Rs. 150/- from Datt; but receipt of Rs. 450/- during the long period of 11 or 12 years which had elapsed since the death of the widow's husband cannot reasonably be described as possession of means wherefrom the said obligations could have been met.

The widow admits having inherited property yielding an annual income of Rs. 20/- only. The plaintiff has not succeeded in proving that there was any other income. Indeed, even if there were any such income, that could not have stood in the way of the alienation since that Income would have been her own property. There is, however, nothing on the record to show that there were means available to the widow to discharge the obligations. The proposition propounded by the learned counsel for the plaintiff on the authority of the aforesaid Privy Council ruling has, therefore, no application in the present case.

7. The result is that I hold that the findings arrived at by the lower appellate Court were correct. Both the appeals are therefore dismissed, but the decree passed by the lower appellate Court is modified in this way that instead of the sum of Rs. 1,100/- being payable by the plaintiff to the defendants, it is hereby declared that the purchasers are en-titled to a charge on the property which was the subject matter of the sale for the said sum of Rs. 1,100/-. Subject to this charge, the declaratory decree passed by the lower appellate Court will stand. I make no order as to the costs of the two appeals in this Court.


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