NANDLAL RAM Vs. HARI PRASAD

JUDGEMENT

(1.) By an order of this Bench dated 25-1-1955, F. A. No. 228 of 1947 was disposed of in terms of the compromise petition so far as respondents 1 to 7 are concerned. As regards the other respondents, namely, respondents 8 and 0, it was ordered that the appeal should stand dismissed. We now proceed to examine the cross-objection filed in this appeal on behalf of plaintiff-respondents 1 to 7. The cross-objection is directed against defendants 1 to 4 and defendants 11, 17 and 18. It is also directed to some extent against defendants 5, 6 and 7, who are the appellants in the first appeal, but Mr. Raghunath Jha, who appears on behalf of the plaintiff-respondents 1 to 7, said that he would not press the cross-objection so far as defendants 5, 6 and 7 are concerned. Counsel stated that the matter has been compromised in the first appeal and so the cross-objection should be taken as not being pressed so far as defendants 5, 6 and 7 are affected.

(2.) We proceed to consider first the cross-objection as against defendants 17 and 18. The case of the plaintiffs is that Mt. Dukhni executed a sale deed, Ex. A(1) in favour of defendant 18, Mahabir Prasad Bangal, for a sum of Rs. 400 with regard to an area of 5 bighas 10 dhurs of land in Mauza Raipura. Two necessities are mentioned in the sale deed, namely, (1) payment of a debt due on a handnote to the extent of Rs. 200 and (2) payment of a decree in Rent Suit No. 2452 of 1938 to the extent of Rs. 212/8/-. There is evidence that the handnote was executed by the widow on the 15th of Aghan, 1346 in order to meet the expenses of the appeal arising out of Title Suit No. 3.18 of 1937. There is oral evidence of defendant 18 that the loan was advanced, to the widow for the purpose of meeting the cost of the appeal. It appears that soon after the death of Chaman Mandal, the husband of Mt. Dukhni, the plaintiffs brought a suit against her alleging that she was not the lawfully married wife of Chaman Mandal and the plaintiffs themselves claimed that they were in possession of the inheritance of Chaman Mandal as his legal heirs. Actually, plaintiff 1 claimed that he was the adopted son of Chaman Mandal. It is manifest that the widow had the necessity of defending her title and saving the estate from falling into the hands of the plaintiffs whose interest was merely the interest of the reversioners, an interest which was expectant on the death of the widow. Exhibit F is the endorsement on the back of the handnote to indicate that the debt was satisfied by the execution of the sale deed, Ex. A(a). There is further the evidence of D. W. 12 that there was a decree for rent which was satisfied by paying a sum of Rs. 212-8-0 in Court by a chalan dated 31-5-1939 (Ex. V(2)). Exhibit 8 is a petition by D. W. 12 for permission to deposit the amount in Court, & Ex. X is a certified copy of the suit register to show that the decree was satisfied in the manner alleged. Mr. Raghunath Jha on behalf of the plaintiff-respondents attempted to show that the sale-deed, Ex. A(1) was not executed for legal necessity, but we think that there is no substance in this argument, and the judgment of the trial Court on this point must be accepted as correct. The second sale-deed, Ex. A(2), was executed on 22-5-1939 by Mt. Dukhni in favour of defendant 17, Ratneshwar Rai, for an area of 2 bighas, 9 kathas and 15 dhurs of land. The consideration was Rs. 200, and the reason for the sale was that the widow had to pay a sum of Rs. 140-12-0 to Radha Mohan Singh. It also appears that a sum of Rs. 25 was spent by the widow on account of the 'sradh' expenses of her husband, and another sum of Rs. 33-4-0 was spent for the purchase of seeds. There is also oral evidence that the handnote in favour of Radha Mohan Singh was executed by the widow in order to borrow money for the purpose of meeting the 'sradh' expenses of her husband. There is hence ample evidence to support the finding of the learned Subordinate Judge that the sale deed, Ex. A(2) was executed by the widow for the purpose of funeral and 'sradh' ceremonies of the last holder of the estate. It cannot be disputed that these necessities are legal necessities, and it follows that the sale deed. Ex. A(2), cannot be challenged by the plaintiffs on the ground that there were no legal necessities justifying the transaction.

(3.) The next document which was impeached by Counsel on behalf of the plaintiff-respondents is Ex. A(6), which is a sale deed executed by Mt. Dukhni on 15-7-1940, in favour of Doulat Sah, defendant 11. The sale deed relates to an area of 16 bighas, 11 kathas and 6 dhurs of land of mouza Raipura, and the consideration for the sale deed was a sum erf Rs. 1,900/-. It appears that Chaman Mandal had executed a Sudbharna bond on 5-7-1932 in favour of Dwarkadas with regard to 31 bighas of land for a sum of Rs. 1,500/-. Out of this area of 31 bighas, the widow sold 16 bighas and odd to Doulat Sah in order to pay off the Sudbharna bond and also to release 14 bighas and odd of land from the burden of the Sudbharna bond. Counsel on behalf of the plaintiff-respondents addressed the argument that no interest was running upon the Sudbharna bond and there was no obligation on the part of the widow to redeem the mortgage. The argument was that the transaction was not justified by any legal necessity pressing upon the estate. In support of this contention Counsel placed much reliance upon a decision of this Court in -- 'Dasrath Singh v. Damri Singh', AIR 1927 Pat 219 (A). It was held by a Division Bench of this Court in that case that the reversioner's right to redeem the usufructuary mortgage could not be jeopardised by the widow by the sale of the mortgaged property to the mortgagee. In reaching this conclusion, the learned Judges proceeded upon the view that the usufructuary mortgage carried no interest and there was no pressing interest which justified the widow in selling the mortgaged property. In our opinion, the authority of this decision is doubtful in view of the statement of law made by the Judicial Committee in -- 'Sardar Singh v. Kunj Bihari Lal', AIR 1922 PC 261 (B). In this case Mr. Ameer Ali drew a distinction between two sets of religious acts which are recognised by Hindu law in connection with the duties imposed upon a Hindu widow. One set of acts relates to the actual obsequies of the deceased full owner and periodical performance of the obsequial rites prescribed in the Hindu religious law which are considered as essential for the salvation of the soul of the deceased. The other set of acts relates to matters which although not essential or obligatory are still pious observances which conduce to the bliss of the deceased's soul. It was held that as regards the first class of acts the powers of the Hindu widow who holds the property are much wider than in respect of the second class of acts which are simply pious and, if performed, are meritorious so far as they conduce to the spiritual benefit of the deceased. At pp. 264-265 Mr. Ameer Ali makes the following statement of law on this point.