MUSAMMAT SOMNI Vs. HANS RAJ

JUDGEMENT

(1.) The dispute in this appeal relates to a house situated in Gorakhpur city. The house was originally an enclosure, belonging to Chunni. Chunni died leaving two widows, Musammat Pati and Musammat Somni, and a daughter, Musammat Ganga Dei. In 1910 a partition took place whereby the disputed enclosure was allotted to the share of Musammat Pati. On the 7 oil September, 1914, Musammat Pati mortgaged that land with. Hansraj for Rs. 150, stating that Rs. 25 out of the same were required for the repairs of her own dwelling house and Rs. 125 for giving a caste dinner in connection with the death ceremonies of her husband. Her husband had died about four years earlier. The court of first instance found that Rs. 25 had been borrowed for the purpose of repairing the dwelling house occupied by Musammat Pati, which was in a dilapidated condition, but there was no legal necessity for borrowing Rs. 125 for giving a caste dinner. It, however, awarded Rs. 600 to the mortgagee on account of the cost of constructing a house over the disputed land after the mortgage.On appeal the Additional District Judge came to the conclusion that there was no legal necessity whatever for the mortgage and that the mortgagee was not entitled to claim the cost incurred by him in constructing a house on the disputed land. He accordingly allowed the claim and directed the defendant to remove the materials of the house constructed by him, within two months from the date of the decree. The defendants have come here in second appeal and the main points argued on their behalf are (1921) 20 A.L.J., 26 that on the facts found the mortgagee was entitled to claim Rs. 150, the entire amount lent by him to Musammat Pati, and (2) that in any event he was entitled to the value of the improvements made by him, under Section 51 of the Transfer of Property Act (Act IV of 1882).

(2.) With regard to the first point it is stated by the learned Additional District Judge that Musammat Pati's means were sufficient to enable her to repair the house which she was occupying, and that the caste dinner had already been given by Musammat Somni within a fortnight of the death of her husband. In view of those facts it can hardly be said that there was any legal necessity for Musammat Pati to have borrowed the money for repairing the house or to give another dinner to the people of her caste in response to their wishes in the matter. The learned Additional District Judge observes that it was usual and perhaps the duty of the Window to give a caste dinner soon after the death of their husband and that such a feast had been given by Musammat Somni. We are not, therefore, in a position to say that a second feast was necessary and that the mortgage was Justified.

(3.) With regard to the second point, Section 51 of the Transfer of Property Act has no application. It applies only to the case of a transferee of immovable property who makes any improvement in the property, believing in good faith that he is absolutely entitled thereto. But in the case of", a Hindu widow a person dealing with her would ordinarily know that she has only a life interest and he can reasonably be expected to make inquiries as to whether there was any legal necessity for the mortgage and whether the widow had any right to make the transfer. The mortgagee cannot be said here to have acted in good faith in dealing with such a widow so as to affect more than her life interest. The learned Counsel for the defendants appellants relies on the decision in Raja Rai Bhagwat Dayal Singh V/s. Ram Ratan Sahu and others (1921) 20 A.L.J. 26, but in that case the sale was held to have been partially made for legal necessity, and the improvements made consisted of the erection of seven of eight big tanks and the construction of a dyke for the purpose of irrigation, which had the effect of permanently increasing the rental value of the disputed property. Musammat Pati is dead and her interest has reverted now to the plaintiff by survivorship. It is not necessary to enter into the other questions raised in this appeal.