GULAB DEVI Vs. BANWARI LAL

JUDGEMENT

(1.) This is a plaintiff's appeal and arises out of a suit brought by her against the defendants-respondents for possession of the property described in the plaint. The property in dispute belonged to the plaintiff's brother, Nihal Singh. On his death, his widow Mt. Mansa succeeded to it. She died in 1935, and Mt. Gulab Dei, plaintiff, succeeded to it. Mt. Bishan Dei was Mt. Gulab Dei's daughter. Mt. Mansa executed a deed of gift in favour of defendants 1 to 3 in respect of a portion of the property in dispute and a mortgage in favour of defendant 4 in respect of the other portion to borrow money for the purpose of performing bhat ceremony on the occasion of the marriage of Mt. Bishan Dei. The plaintiff's case was that Mt. Mansa had no right to execute these deeds and they were not binding on her. Defendant 4 contended that the mortgage was executed by Mt. Mansa for a legal necessity. Defendants 1 to 3 also contended that Mt. Mansa had a right to execute the deed of gift. The trial Court found in favour of the plaintiff and decreed the suit. Defendants 1 to 3 submitted to the decree and did not appeal. Defendant 4 went up in appeal. The learned Civil Judge found that the mortgage deed was executed for the purpose of bhat ceremony and that it was valid for only Rs. 250 which were spent on the bhat ceremony. The learned Civil Judge decreed the plaintiff's suit for possession of the mortgage property on the condition of her paying Rs. 250 with interest within a month.

(2.) It has been contended for the appellant that the mortgage deed was invalid and was not binding on the estate. It has been found by the learned Civil Judge that the mortgage was executed for the bhat ceremony and that out of the mortgage money only Rs. 250 were spent on it. It has been contended for the appellant that Mt. Mansa had no right to execute the mortgage deed in suit. It is well settled now that a widow can alienate the property to which she succeeds from her husband for religious and charitable purposes and for purposes amounting to legal necessity. "Legal necessity" does not mean actual compulsion. In Ramsumran Prasad V/s. Shyam Kumari (1922) 9 AIR PC 356 their Lordships of the Privy Council observed at page 745: It should be observed in limine that the word necessity , when used in this connexion, has a somewhat special, almost technical, meaning. A widow can alienate if there are no other means available for the obligatory ceremonies to secure the repose of the soul of her husband. A holder of a Hindu woman's estate can in some circumstances alienate immovable property to pay the last owner's debts, or (if there is no other available source of supply) for her own or infant children's maintenance. Necessity does not mean actual compulsion, but the kind of pressure which the law recognizes as serious and sufficient.

(3.) In order to ascertain what constitutes a legal necessity it will be necessary to find whether an act is essential and obligatory. An essential and obligatory act cannot but be regarded as one of legal necessity. The learned Civil Judge has found that under the custom it was essential and obligatory to perform the bhat ceremony. He has observed: Under the ordinary Hindu custom she was, as the learned Munsif rightly observed, under no obligation to perform the marriage of Mt. Bishan Devi, but under the ordinary usage and customs prevalent amongst the Hindus she was under an obligation to send in that marriage customary presents usually called bhat.