HAR CHAND Vs. ABHE RAM JAS RAM

JUDGEMENT

(1.) This judgment will dispose of two cross-appeals which have been filed against a judgment and decree of the learned Additional District Judge, Rohtak, whereby he modified the decree of the trial Court in tenant to two-thirds of the property claimed, the shares of plaintiffs Harchand and Lal Chand.

(2.) On the 3rd of December, 1934, Moto, the widow of Molar, sold 44 bighas 19 biswas of land to Teku for Rs. 1500/-. The consideration was for payment of a previous decree Rs. 1000/-, and for payment of Mustajri land Rs. 500/-. On, the 9th of July, 1940, Teku sold this property to Abhe Ram and others--defendants for Rs. 1,400/-. On the 16th of June, 1943, the reversioners of Moto brought a suit for declaration, and because Moto died in the meanwhile it was converted into a suit for possession. The trial Court held that no necessity was proved and none of the plaintiffs were estopped. On appeal the learned Additional District Judge held thai the payment of the decretal amount as also the recovery of the land given on lease under Mustajri were both for necessity, but because the widow had other income she could not alienate the land belonging to her husband for payment of even his debts. He also held that Har Chand and Lal Chand had agreed to the sale and there-fore they were estopped from now challenging the sale, and he, therefore, allowed tbe decree to stand with regard to one-third of the property in dispute, i.e., the share which would have come to Chet Ram plaintiff. Both the parties have come up in appeal to this Court. The plaintiffs' appeal is Regular Second Appeal No. 733 of 1947 and the defendants' appeal is Regular Second Appeal No. 901 of 1947.

(3.) Mr. Chona In defendants' appeal has submitted that the payment of the decretal amount was a necessity as also recovery of land which had been given on Mustajri and that his clients Abhe Ram and others were bona fide purchasers for value and therefore the sale in their favour could not be attacked even though the sale in favour of Teku might have been subject to certain defects. He has relied on several judgments on the point that it is not necessary for a purchaser to see to the nature of debt if it is a. decretal debt. That proposition as far as it goes is alright if the sale is by a male proprietor. In the present case the sale is by a widow. She, according to the finding of the learned Judge, had 115 bighas of land and there was sufficient income of that land out of which the decretal debt could be paid and the land given on Mustajri recovered. It has been held that the rights of a widow under Hindu Law and that of a widow under Customary Law are the same. But the distinction is that in the case of the latter, alienation for necessity is permitted only if the income derived by her from her husband's estate is not 'ample' and if it is ample she cannot alienate her husband's property even for discharge of her husband's debt : see 'Ghulam Qadir v. Alaf Din,' A. I. R. (27) 1940 Lah 177 and 'All Muhammad v. Mt. Mughlani,' A.I.R. (33) 1946 Lah. 180 (F. B.). The finding of the Additional District Judge is that there was ample income of the widow from out of which these debts could be paid. That being so, the sale by the widow in favour of Teku has been rightly held not to be binding on the reversioners.