RAMABAI NILKANTHRAO NADKARNI Vs. DATTATRAYA BALAJI NADKARNI

JUDGEMENT

(1.) The pLalntiff, who is the widow of the uncle of the defendant, who died in union with the defendant's father, sues to recover Rs. 2,000 with costs from defendant as the cost of a pilgrimage made by her to Gaya and Benares for the spiritual benefit of her husband, and for a pilgrimage to Ramesh war, which is yet to be performed. The defendant denied his liability to pay the expenses of the pilgrimage, and both the Courts below have found that the pLalntiff cannot cLalm it from the estate. The pLalntiff makes this second appeal.

(2.) The point is one of Hindu law, and not directly covered by authority. The pLalntiff is receiving maintenance from the estate which is in the possession of her nephew, the defendant, the amount of maintenance being Rs. 840 a year, as settled by a consent decree. It is also in evidence that she had a sum of over Rs. 2,000 as her stridhan. The view which has been taken by the lower Courts is that there is no authority for the proposition that a widow who has once obtained a decree for maintenance can again sue cLalming amounts spent by her for religious purposes, and that although a widow in possession of the estate can alienate a portion of it for spiritual necessity, this does not apply to a widow who is not in possession of the estate and is merely receiving maintenance from it. The District Judge is of opinion that even a widow in possession of an estate could not treat these spiritual luxuries as if they were necessary expenses. A number of cases have been quoted on both sides, although none of them is precisely on all fours with the present case. It is argued by the learned Counsel for the appellant that the income of the family is large, amounting to Rs. 8,000 a year, and the extent of the family's money lending business is rupees one lakh, and the defendant takes the property subject to the pious obligation of ameliorating the welfare of his uncle's soul, and he relies on the cases Ganpat V/s. Tulsiram [1911] 36 Bom 88, Bappuluri Tatayya V/s. Ramakrishnamma [1910] 34 Mad. 288, Khub Lal Singh V/s. Ajodhya Misser [1915] 43 Cal. 574, Sardar Singh V/s. Kunj Behari Lal A.I.R. 1922 P.C. 261, Bai Chanchal V/s. Chimanlal A.I.R. 1928 Bom. 238, and Darbari Lal V/s. Gobind Saran A.I.R. 1924 All. 902. All these oases except the case of Bai Chanchal V/s. Chimanlal A.I.R. 1928 Bom. 238 are cases in which the widow was in possession of the estate. Thus in Ganpat V/s. Tulsiram [1911] 36 Bom. 88 where it was held that the expenses incurred by a Hindu widow in performing pilgrimage or in the betrothal of her daughter constitute legal necessity, the widow was in possession of the estate. She sold part of it to meet the expenses incurred for performing the betrothal expenses of her daughter and making a pilgrimage. She then remarried, and her husband's brothers sued to recover possession of the property, alleging that they were not bound by this alienation. The question was then one of legal necessity for the alienation made by the widow, and the amount was allowed. In Bappuluri Tatayya V/s. Rama krishnamma [1910] 34 Mad. 288, a Hindu widow, who succeeded to the property of her deceased father, made a gift of a very small portion of that property at the time of performing her father's shraddha ceremony, and the alienation was impeached by her reversioner. The alienation was upheld.

(3.) In Khub Lal Singh V/s. Ajodhya Misser [1915] 43 Cal. 574 it was held that where an alienation by a limited owner is impeached, the test is whether the purpose for which the alienation was made was proper or legitimate. The widow has a larger power of disposition for religious or charitable purposes or for purposes which are supposed to conduce to the spiritual welfare of her husband then what she possesses for purely worldly purposes. In this case also the widow was in possession of the estate. So also in Sardar Singh V/s. Kunj Behari Lal A.I.R. 1922 P.C. 261, referred to by the first Court, the widow in possession of the estate of her deceased husband made a gift by deed of a small portion of the property for a religious purpose, and it was held that the alienation was valid, the gift being for the spiritual benefit of the deceased husband though not for the purpose of an essential observance. In Darbari Lal V/s. Gobind Saran A.I.R. 1924 All. 902 it was held that the performance of a pilgrimage by a Hindu widow and the support of dependent relations of her husband are objects which will justify an alienation by the widow of her husband's property. All these cases therefore are cases in which the widow was in possession of the property and incurred debts for religious purposes, and alienated a portion of the property to meet them. And in all of them the religious efficacy of the act for which the property was alienated was successfully pleaded against the reversioners who sought to impeach the alienations. The alienations were held to be for legal necessity. But there is no case except one to which I will refer shortly, in which the view has been taken that a widow who is not in possession of the estate but only entitled to maintenance out of it, and whose maintenance has been fixed by the Court, is entitled to charge the estate with expenses subsequently incurred by her for purposes of pilgrimage. There was a maintenance suit in 1922 in which her maintenance was fixed. No doubt in fixing maintenance the Court should take into consideration the necessary religious expenses which the widow has to undergo, as pointed out in Baisni v. Rup Singh [1890] 12 All. 558 and Devi Persad V/s. Gunwanti Koer [1895] 22 Cal. 410. The decree in the maintenance suit, which was by consent, is based on the obligation of the defendant to pay maintenance to the pLalntiff, his paternal uncle's widow, and the question of religious expenses does not seem to have been taken into consideration.