JAPHU Vs. PARSHOTTAM RAM

JUDGEMENT

(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 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.