DENO NATH GHOSH Vs. HRISHIKESH PAL

JUDGEMENT

(1.) This is an appeal by the plaintiffs in a suit for a declaration that an alienation of part of the estate of their maternal uncle by their maternal aunt is without legal necessity and will not bind them when the estate falls into their hands as reversionary heirs. Iswar Chandra Pal, the admitted owner of the property, died in 1896 and left a childless widow, Telumoni who is the second defendant in this litigation. Tie reversionary heirs of Iswar Chandra Pal are the present plaintiffs who are the sons of his sister. In 1908, the widow made a pilgrimage to Gaya to perform the sradh ceremony of her husband, and on return home gave a feast to Brahmins. For this purpose, she had to raise money, as her husband had left only 29 bighas of rent- paying land, the income of which was just sufficient to enable her to maintain herself, to carry on the worship of a family-idol and to pay the dues of the superior landlord. On the 2nd April 1909 she sold 9 bighas of land to her brother s son, the first defendant in this suit, for Rs. 500 on the allegation that money was needed to meet the expenses of the Gaya sradh and feast and also to pay the rent which had fallen into arrears on account of bad years. This is the sale now impeached by the plaintiffs. The Courts below have Concurrently found that the conveyance represented a real transaction and that the purchaser paid the consideration in full. No question also arises as to the value of the property, because the purchaser paid Rs. 500 while the market value is stated in the plaint to be Rs. 299. The Court of first instance, however, held that the expenses of the feast following the sradh at Gaya did not constitute legal necessity such as could justify an alienation by the widow, and in this view decreed the suit. Upon appeal by the purchaser-defendant, the District Judge has reversed this decision. He has held that the expenses of the feast, which amounted to Rs. 200, constituted a legal necessity, that the sum spent was not unreasonable or excessive, but that the existence of arrears of rent had not been proved. The District Judge has accordingly modified the decree of the primary Court, and has given the plaintiffs a declaration that if they survive their maternal aunt and succeed to the estate of their maternal uncle as reversionary heirs, they will be entitled to recover the disputed property on payment of Rs. 200 to the purchaser. The plaintiffs have appealed to this Court and have contended that the unconditional decree of the original Court should be restored inasmuch as the expenses of the feast following the sradh at Gaya did not constitute legal necessity justifying alienation. In support of this view, reliance : has been placed on a dictum in Makhan Lal v. Gayan Singh 9 Ind. Cas. 199 : 33 A. 255 : 8 A.L.J. 13. to the effect that a feast given on the return of a pilgrim cannot be said to be so intimately connected with the pilgrimage as to justify its allowance as money expended for legal, necessity. In our opinion, the view taken by the District Judge in the Court below is correct.

(2.) As regards the case of Makhan Lal v. Gayan Singh 9 Ind. Cas. 199 : 33 A. 255 : 8 A.L.J. 13. it does not appear that the pilgrimage had been undertaken for the performance of the sradh of the deceased owner, and it is well settled that a pilgrimage made for the widow s own spiritual benefit is not a necessary purpose [Hurro Mohun Audhikara v. Auluk Monee I W.R. 252, Rama v. Ranga 8 M. 552, Shambhu v. Shanhar Das 76 P.R. 1885.]. The learned Judges further stated that no authority had been cited to show that a feast given on return from pilgrimage might be regarded as an integral element in the performance of the sradh. This circumstance takes away from the value of the opinion expressed, to which we would otherwise be disposed to attach considerable weight. It is well settled that the expenses incurred by a widow for a pilgrimage to Gaya and for the performance of sradh of her husband are legitimate expenses for which she can alienate her husband s property : Mahomed Ashruf v. Brijessuree 19 W.R. 426 11 B.L.R. 118, Mutteeram Kowar v. Gopaul Sahoo 20 V.V.R. 187 : 11 B. L.R. 416, Chowdhry Jnnmejoy Mullick v. Rassmoyee 10 W.R. 309 : 11 B.L.R. 418 note. Rukhma v. Kumanrao (1889) 3 C.P.L.R. 74. As was observed by Chandavarkar, J., in Ganpat v. Tulsiram 12 Ind. Cas. 271 : 36 B. 88 : 13 Bom.L.R. 860, the question in this class of cases is whether the pilgrimage was for the spiritual benefit of the husband of the widow, undertaken in the performance of her duty to his soul, and whether the expenses incurred are reasonable and were made honestly, having regard to the estate, the status of the family and other considerations which it is customary for Hindus to take into account in accordance with their religious beliefs and usages. A widow must be allowed a reasonable latitude in the exercise of her powers, provided she does not act unfairly to the reversionary heirs. The only question is, whether the feast to the Brahmins, after the performance of the sradh ceremony at Gaya, is an essential incident which justifies reasonable expenditure the question must be answered in the affirmative. In the Sradhatattwa of Raghunandan, he quotes a passage from the Brahmapurana : in which it is laid down that on return from pilgrimage, as before one starts on pilgrimage, the gods, the ancestors, and the Brahmins must be worshiped. Another passage : is quoted from the Kurma Purana, extracted by Halagwdha, that on return from pilgrimage as at the commencement thereof Vreddhi Sraddha must be performed accompanied by Hom with a large quantity of clarified butter. (For a description of the rules for the performance of this sradh, reference may be made to Sarbadhikari on Inheritance page 88). This necessarily implies that the Brahmins have to be fed. To the same effect is a passage in the Aditya Puran, quoted by Hemadri. in this Sraddha Khanda (Asiatic Society s Edition, page 1581), and a similar view is expounded in the Yogini Tantra (pages 206-209). The texts are also collected in the Treatise on Gaya Sradha, called Gaya Sraddhadi Puddhati, by Professor Tara Nath Tarkabachospati of the Calcutta Sanskrit College, in the concluding portion of which it is pointed out that on return from pilgrimage from Gaya, sradh ceremony must be performed and the Brahmins fed and small presents given to them for the full realization of the spiritual benefit resulting from the pilgrimage. We hold accordingly that the feast which is given to Brahmins according to well established custom on return from Gaya after performance of the sradh there, must be deemed an essential part of the ceremony and the widow is entitled to spend a reasonable amount on that account. We observe that in Multeeram Kowar v. Gopaul Sahoo 20 VV. R. 187 : 11 B.L.R. 416 a sum of Rs. 18,00 was considered not unreasonable, while in Ruhma v. Kamanrao (1889) 3 C.P.L.R. 74 Rs. 500 was deemed reasonable. In the case before us the District Judge has held that the sum of Rs. 200 which was spent was not excessive, and we see no reason to differ from him on this point. The District Judge has consequently rightly held that the reversioners cannot claim to sot aside the alienation except on re-payment of this sum to the purchaser [.Deputy Commissioner of Kheri v. Khanjan Singh 34 I.A. 72 : 29 A. 331 (P.C) : 5 C.L.J. 344 : 11 C.W.N. 474 : 4 A.L.J. 232 : 2 M.L.T. 145 : 17 M.L.J. 233 : 9 Bom.L.R. 591 : 10 O.C. 117. Hari Kissen v. Bajrang Sahai 1 Ind. Cas. 434 : 9 C.L.J. 453 : 13 C.W.N. 544.].

(3.) We may add that we are not in a position to consider the form of the decree, as no cross- appeal has been preferred by the purchaser-defendant. But there is a divergence of judicial opinion upon the question, whether in the event of a sale by a widow, partly for necessity and partly without necessity, a declaratory suit can be maintained by a reversioner who does not offer in the plaint to re-imburse the purchaser to the extent that the sale was for necessity. The cases of Phool Chund v. Raghoobuns 9 W.R. 107, Sugeeram v. Juddobuns 9 W.R. 284. Mutteeram Koer v. Gopaul Sahoo 20 V.V.R. 187 : 11 B.L.R. 416, Gobind Singh v. Baldeo Singh 25 A. 330 : A.W.N. (1903) 57, Singam v. Draupadi 31 M. 153 : 3 M.L.T. 251 : 18 M.L.J. 11. Sub-ramanya v. Pennusami 8 M. 92. and Gouri v. Tirumaya 18 M.L.J. 17. maintained the view that the suit for a declaratory decree should fail if offer of re-imbursement has not been made in the plaint. But the cases of Garikipali Paparayudu v. Garikipati Rattamma 17 Ind. Cas. 508 : (1912) M.W.N. 1176 : 24 M.L.J. 62 : 13 M.L.T. 110. and Vithu v. Mendri 4 Ind. Cas. 792 : 5 N.L.R. 172. support the view that the omission of the reversioner to offer equitable restitution to the purchaser does not disentitle him to a decree. The view which has been taken by this Court in the cases mentioned is that inasmuch as the grant of relief by way of a declaratory decree is in the discretion of the Court, where a plaintiff seeks an unqualified declaration which, upon the facts proved, cannot be granted to him, and does not offer in his plaint to make restitution to the defendant, the Court may very well refuse to assist him by grant of declaration which he has not sought.