JAISRI SAHU Vs. RAJDEWAN DUBEY

JUDGEMENT

(1.) These are appeals against the judgment of the High Court of Patna in Second Appeals Nos. 2155 and 2156 of 1948 on certificates granted by the High Court under Art. 133 (1) (c) of the Constitution. The facts leading to this litigation lie in a narrow compass. One Prithi Dubey died on July 14, 1932, leaving him surviving, his widow Laung Kuer, who succeeded as heir to his estate. For the purpose of discharging debts due by the deceased Laung Kuer executed on June 21, 1935, a Zerpeshgi deed in favour of two reasons, Rajdewan Dubey and Kailash Dubey, who were also the next reversioners, for a sum of Rs. 1,100. It is not in dispute that this deed is binding on the reversioners. On June 17, 1943, Laung Kuer sold to the appellant a portion of the properties which were the subject-matter of the Zerpeshgi deed dated June 21, 1935, for a consideration of Rs. 1,600. Out of this amount, a sum of Rs. 1,100 was reserved with the purchaser for redemption of the Zerpeshgi, and the balance of Rs. 500 was paid in cash. It is recited in the deed of sale that a sum of Rs. 100 was required to effect repairs to the family dwelling house, a sum of Rs. 200 for purchasing two bulls for agricultural purposes, and a sum of Rs. 200 for repairing a well, which had been constructed by the deceased for user by the public and which was then in a ruined condition. It is to meet these expenses that Laung Kuer raised Rs. 500.

(2.) After obtaining the sale deed, the appellant sought to redeem the Zerpeshgi, but the Zerpeshgidars refused to receive the amount and surrender possession of the properties The appellant deposited the mortgage amount in court under S. 83 of the Transfer of Property Act and then instituted Title Suit No. 69 of 1944 for redemption. Meantime the reversioners, the respondents herein, had filed Title Suit No. 126 of 1943 for a declaration that the sale deed in favour of the appellant was not binding on the reversioners. And both the suits were tried together. The parties were at issue on several questions of fact of which the only one material at this stage is whether the sale in favour of the appellant was supported by neccessity and binding on the reversioners. The District Munsif of Palama who tried the suits held on a review of the evidence that necessity was established in respect of all the four items of consideration and that the sale was binding on the reversioners. He accordingly, dismissed Title Suit No. 126 of 1943 filed by the respondents and granted a decree for redemption in Title Suit No. 69 of 1944 filed by the appellant. The respondents herein, the reversioners preferred appeals against both the decrees passed by the District Munsif of Palamau and they were heard by the Subordinate Judge of Palamau, who, agreeing with the findings given by the District Munsif, affirmed the decrees and dismissed the appeals. Against these decrees, the respondents preferred Second Appeals Nos. 2155 and 2156 of 1948 in the High Court of Patna. While these appeals were pending, Laung Kuer died on March 14, 1952, and on the application of the respondents, the plaint in Title Suit No. 126 of 1943 was amended by adding reliefs for possession and mesne profits. The appeals were then heard by a Bench consisting of Rai and Misra, JJ.), who in separate but concurring judgments held that the sale deed in favour of the appellant was not binding on the reversioners. Misra J., who delivered the leading judgment did not disagree with the finding of the courts below that all the four items of consideration were supported by necessity. Indeed, being a finding of fact, it would be binding on the court in Second Appeal. He, however, held, following the decision in Dasrath Singh vs. Damri Singh, 8 Pat LT 314 that a widow cannot by selling properties subject to usufructuary mortgage jeopardise the right of the reversioners to redeem, and that, therefore, the sale would not be binding on them. A different view was taken in Lala Ram Asre Singh vs. Ambica Lal, 11 Pat. LT 6 where it was held that a widow was not debarred from selling properties subject to mortgage where there was necessity for it merely by reason of the fact that they were subject to usufructuary mortgage which contained no personal covenant to pay. But the learned Judge declined to follow this decision and stated the reason thus:

(3.) Before considering the two questions referred to in the order of the High Court granting certificates, we shall deal with a contention raised on behalf of the respondents, which if well founded would necessitate a remand of these appeals. It was argued that the sale deed in favour of the appellant was not bona fide, that it had been so held by the District Munsif, but that the Subordinate Judge had failed to record a finding on this question, and that therefore there should be a remand for a decision on that point. As already stated, Rai, J. appears to have been impressed by this contention. But when the contention is further examined it will be found to be wholly without substance. What the District Munsif said was that "after the death of Pirthi Dubey the relatives of Laung Kuer had fallen on her property like vultures", and that it was quite possible "that the transaction in question was also brought at their instance and they were also benefited by it." This only, means that the relatives of Laung Kuer were guilty of spoliation of the estate. But that would not affect the rights of the appellant unless he was a party to it, which however, is not the case, and that is what the District Munsif himself observes with reference to this aspect: