RAM BILAS RAI Vs. RAMCHANDAR RAI

JUDGEMENT

(1.) This appeal by the plaintiff, presented under the Letters Patent, is from a decision of Rai, J., D/-4-4-1951, in Second Appeal No. 1686 of 1949. The facts, so far as they are material for the decision of the questions agitated before us, can be stated very briefly. The original plaintiff was one Jodha Rai. He was the son of one Khedu Rai. Khedu Rai had a brother called Ramtahal Rai. Ram-tahal Rai had four sons, Udit Rai, Sudit Rai, Isar Rai and Gaya Rai. The widow of Udit Rai was Mt. Pati Kuer. The said Musammat, who was defendant 2 in suit, sold 2 bighas 1 katha and 14 dhurs of land by a registered sale deed, dated 27-2-1942. The sale was in favour of defendant No. 1. The consideration for the sale was a sum of Rs. 474/-. Both the original plaintiff and original defendant 1 died during the pendency of the suit in the Court of first instance. The present appellant was substituted in place of the original plaintiff as being his grandson. It was found by the Courts of fact that the last male holder of the property in dispute was Udit Rai, and on his death Mt. Pati Kuer succeeded and held a widow's estate in the inheritance which consisted of about 4 bighas of land only. Those 4 bighas of land were subject to a rehan for Rs. 175/- only. Pati Kuer sold 2 bighas 1 katha 14 dhurs to the original defendant 1 and the consideration consisted of and was said to have been applied to four items of money, viz., (a) a sum of Rs. 175/- went to discharge the dues under the rehan bond of 1907; (b) a sum of Rs. 32/- was applied towards payment of money which Mt. Pati Kuer had borrowed for her maintenance; (c) a sum of Rs. 111/- was paid in cash to Mt. Pati Kuer; and (d) a sum of Rs. 156/- was said to have been paid in discharge of the dues under a handnote dated the 7th of Jeth, 1348 Pasli, in favour of one Dharamdeo Raj. It was found by the Courts of fact that Jodha Rai, the original plaintiff, was the next reversioner, and Udit Rai left no daughter. On the findings of fact arrived at by the Courts of fact the only material question that fell for decision in the appellate stage was if the sale of 2 bighas 1 katha and 14 dhurs of land by Mt. Pati Kuer was justified by legal necessity. The learned Munsif found that legal necessity had been established for a part of the consideration only, namely, a sum of Rs. 207/-, consisting of the sum of Rs. 175/- which went to discharge the dues under the rehan bond of 1907 and a sum of Rs. 32/- which was applied towards payment of the money which Mt. Pati Kuer had borrowed for her maintenance. With regard to the rest of the consideration, the learned Munsif found that there was no justifying legal necessity. Accordingly, he gave a decree in favour of the plaintiff, declaring that the plaintiff was entitled to have the sale set aside on payment of Rs. 207/- to the purchaser. The first Additional Subordinate Judge of Chapra heard the appeal first and he came to the finding that the sale was completely justified by legal necessity. A second appeal was then preferred to this Court. This appeal was allowed and, the case was remanded to the lower appellate Court for consideration of one of the points then in dispute, namely, if Mt. Pati Kuer was in possession of the lands as a maintenance holder or as a Hindu widow. After remand the learned. Subordinate Judge affirmed the findings of the learned Munsif and dismissed the appeal. Then. a second appeal was again taken to this Court by the defendants. Rai J. who heard the appeal appears to have gone into the question of fact as to whether the rest of the consideration of Rs. 474/- minus Rs. 207/-, was for justifying legal necessity. In the concluding part of his judgment Rai, J. observed as follows:

(2.) Mr. B.N. Mitter, appearing for the plaintiff-appellant, has rightly pointed out that it was not open to Rai J., to go behind the findings of fact arrived at by the final Court of fact in a second appeal. Mr. Mitter has pointed out that there was really no evidence for the finding of Rai J. that the sum of Rs. 111/- which was paid to the widow in cash was necessary for purposes of cultivation. Mr. Mitter has also pointed out that the final Court of fact had clearly found that there was no reliable evidence in support of that part of the case of the creditor which related to the alleged payment of Rs. 156/- to Dharamdeo Rai. It agree with Mr. Mitter that it was not open to Rai J., to reopen questions of fact in second appeal.

(3.) This brings me to the real question in this appeal, namely, whether on the findings of fact arrived at by the final Court of fact the principle-laid down in -- 'Sri Krishan Das v. Nathu Ram', AIR 1927 PC 37 (A) should apply. Rai, J., did reopen certain questions of fact, but he referred to the decision of -- 'AIR 1927 PC 37 (A)' and held that the principle laid down therein applied to this case. Let me first state clearly the findings of fact arrived at by the Courts of fact. The learned Munsif found clearly enough that the widow had inherited only 4 bighas of land from her husband and all these 4 bighas were subject to a possessory mortgage executed in 1907. It was also found that the widow had inherited no other property and when she was young and active, she earned her livelihood by labour; but when she became old and infirm she had no means of livelihood and wanted to get back the lands which were in possession of the mortgagee. For that purpose she borrowed money from defendant 1. The sum borrowed was Rs. 474/- and out of it she paid Rs. 175/- to the mortgagee and Rs. 32/- towards the money which she had borrowed previously for her maintenance. The learned Munsif found that it was necessary for the widow for her maintenance to redeem the mortgage and sell a part of land so that she might save at least about a bigha and a half for her maintenance. The learned Munsif went to the length of observing