DAULAT Vs. SANKATHA PRASAD

JUDGEMENT

(1.) THIS appeal is brought on a single point only. The suit was one to set aside an alienation made by a Hindu widow, namely the mother of the plaintiff, as having been made without legal necessity and to recover the property sold. The sale was effected for a sum of Rs. 2,142-12-6. The Court below has found that the whole of this sale consideration was obtained for purposes which constituted a valid necessity under the Hindu law with the exception of a small sum of Rs. 105. On these findings the Court below has upheld the sale transaction but has directed the defendants to repay to the plaintiff the sum of Rs. 105 which is found not to be covered by legal necessity. Against this decree the plaintiff appeals and contends that if any part of the sale consideration, however small, was found not to be for legal necessity the whole sale must necessarily be set aside. THIS is not the view which has prevailed in this Court or indeed in other High Courts. There are two recent cases of this Court in which the same question has been discussed. In Jai Narain Pande V/s. Bhagwan A.I.R. 1922 All. 321, it was laid down that where a sale is found to be only in part for legal necessity, the criterion for deciding whether the sale should be upheld or set aside is whether the portion which was not taken for legal necessity was such a small portion of the whole consideration that it might reasonably be left out of account. In Sunmukh Pande V/s. Jagan Nath Pande A.I.R. 1924 All. 708, another Bench of this Court has reiterated the same view, adding that whether the amount not for legal necessity is so insignificant that it can be ignored, is determined on the facts of each case. Obviously if the amount which the widow was entitled to raise for necessary purposes under the Hindu law could not have been raised without the sale of the entire property, the fact that she was able to obtain a price slightly in excess of the amount she required to raise would not justify the sale being set aside. THIS view has been taken also by the Privy Council in the case of Medai Dalavoi Thirumalai Appa Mudaliar V/s. Narain Thevan A.I.R. 1922 P.C. 307. In that case a widow required to raise a sum of Rs. 4,600 in order to discharge a mortgage decree which was binding on the estate. She could not have satisfied this decree without selling the property. Their Lordships of the Privy Council held that the validity of the sale was in no way affected by the fact that she was able to realise by the sale of the property a sum of Rs. 711 in excess of the amount which she required to raise. In this case the amount which was not for legal necessity is obviously insignificant in comparison with the total amount of the price. The decree of the Court below is in accordance with the rulings of this Court and of the decision of the Privy Council just referred to.

(2.) WE, therefore, dismiss the appeal with costs. The cross-objections are not pressed and are dismissed with costs.