FELARAM ROY Vs. BAGALANAND BANERJEE

JUDGEMENT

(1.) The present appeal arises out of a suit brought by the reversioner to set aside a permanent lease bearing date the 7 Chaitra 1294, executed in favour of the defendants by one Sudha Mukhi Debi, widow of one Hangeswar Roy. It appears that Sadha Mukhi Debi gave the defendants a permanent lease of a tank taking from them a selami of Rs. 125 and reserving an annual rent of eight annas only. On behalf of the plaintiff It is contended that the widow-has no right to execute such a lease and that, even if the debt for the payment of which the lease was given was a debt due from her husband, she could have raised the money out of the property by some other means.

(2.) The Court of first instance was of opinion that the lease was brought about by fraud and that, on that account, it should be set aside. That Court accordingly decreed the plaintiffs suit with costs.

(3.) On appeal, the lower appellate Court has reversed the finding of the Court of first instance as regards fraud and has held, as a fact, that the lease was a bona fide transaction. With that finding, this Court on second appeal is unable to interfere. The lower appellate Court then takes into consideration the question whether there was any legal necessity for the lease and. comes to the finding that, as the money was raised fop payment of the debt due from the husband of the widow, there was sufficient legal necessity to justify the widow in executing the lease. The District Judge, however, found that the debt to pay off which the lease was given, amounted to Rs. 100 only and, as the selami taken for the lease was Rs. 125, he was of opinion that there was not sufficient legal necessity for taking this further sum of Rs. 25, and that, therefore, this case was a proper one for the application of the method adopted and approved by their Lordships of the Privy Council in the case of the Deputy Commissioner of Kheri V/s. Khanjari Singh 11 C.W.N. 474 : 29 A. 331 : 5 C.L.J. 344 : 4 A.L.J. 232 : 2 M.L.T. 145 : 17 M.L.J. 233 : 9 Bom. L.R. 591 : 10 O.C. 117 (P.C.). He accordingly passed a decree declaring the plaintiff to be entitled to recover possession of the property provided that he paid within three months from the date of the judgment to the contesting defendants such portions of the decretal amount under judgment Exhibit M as their shares in the lease entitled them to.