SANTI KUMAR PAL Vs. MUKUNDA LAL MONDAL

JUDGEMENT

(1.) This is an appeal from a decree of the Officiating Subordinate Judge of Birbhum, dated 28 August 1929 by which he dismissed the suit of the plaintiffs to set aside an alienation by the widow of the last male owner Bhagirath. The plaintiffs claimed to be reversionary heirs of Bhagirath. The relationship of the plaintiffs with the last male owner Bhagirath is shown in the genealogical tree to be found in the judgment of the Subordinate Judge and which is printed at p. 67 of the first part of the paper-book. For the sake of convenience it is reproduced here with a slight variation and the genealogical tree as given at p. 57 is admitted by both parties. There is some dispute about the variation regarding Poran and Nishe Bhusan.

(2.) The alienation was by a document dated 18 Magh 1329 B.S. corresponding to 1st February 1923. The document is to be found at p. 11 of the paper book (Part II). This document purports on the face of it to be a deed of surrender in favour of defendant 1 Mukundalal Mondal who was said to be the sole reversionary heir to Bhagirath's estate at the time of the alienation. There has been some dispute as to whether Mukunda defendant 1 was the sole reversionary heir or there was another reversionary heir Nishi, the son of Poran, alive at the time of the alienation. Bhagirath died on 9 December 1921 leaving surviving him his widow Ushangini; and Ushangini died on the 25 Bashakh 1334 B.S. corresponding to 8th May 1927. The present plaintiffs are the sisters's sons of Bhagirath and the suit was commenced by them to set aside the alienation on 20 April 1928, a short time after the death of Ushangini. The transaction has been sought to be supported by defendant 1 on the ground that this was a surrender by Ushangini in favour of the sole reversionary heir. There was some question raised in the Court below that even if the deed could not be supported on the ground of surrender it could be supported on the ground that there was legal necessity for the transaction treating it as a deed of sale in favour of the sole reversionary heir or in favour of one of the reversionary heirs, the other reversionary heir Nishe Bhusan not objecting to the same. The Subordinate Judge has also considered this contention and has dismissed the plaintiff's suit. Hence the present appeal.

(3.) It has been contended by Mr. Brojolal Chakravarty that on a mere perusal of the document of 1 February 1923 it would appear clear that although on the face of it purports to be a deed of surrender of a Hindu widow's estate in favour of the next reversionary heir it was in reality a transaction by way of sale, the widow taking the major portion of the consideration money of Rs. 900 odd in cash and paying Rs. 400 out of the consideration money to meet the debt of her deceased husband. In other words it was said that although it was described as a deed of surrender it was really a device between the limited owner and these reversionary heirs to divide the estate as between themselves to the detriment of the ultimate reversionary heir. It must be stated that Dr. Mukerji who has appeared for the respondents has conceded that he cannot support this document on the basis of its being a deed of surrender or relinquishment as it is understood under the, Hindu law so as to be binding on the ultimate reversioner. He has however tried to support the judgment of the Subordinate Judge by contending that where a Hindu widow transfers even for consideration by way of sale, the entire property of her husband to the next reversionary heir or to one of the reversionary heirs the other reversionary not objecting it really has the same effect as a surrender; and he relies on a certain passage in the judgment of their Lordships of the Judicial Committee of the Privy Council in the case of Rangasami Gounden V/s. Nachiappa Gounden 1918 PC 196, in support of his contention. This case when carefully examined does not lend support to the contention of the learned advocate for the respondents. After stating the two heads under which alienation by the limited owners might fall their Lordships of the Judicial Committee of the Privy Council said in the passage which has been referred to at p. 81 of the report that, if the alienation be total, and the reversionary heirs be the nearest, it falls within the first division; that is within the division of its being surrender. But that passage has to be read along with what precedes in the same page. Dealing with the second head their Lordships remarked thus: Turning now to the second head namely, the power of alienation, which may be alienation to any one, whether heir or not, there is again authority of long standing. As a leading case may be taken, Collector of Muslipatam V/s. Cavaly Vencata Narrainappah (1859-61) 8 MIA 529 in a passage which need not be quoted at length. The purposes for which alienation is legitimate may be summarized as religious or charitable purposes, and those which are supposed to conduce to the spiritual welfare of the husband, or necessity. Now, necessity must be proved, and the mere recital in the deed of alienation is not sufficient proof: Banga Chandra Dhur Biswas V/s. Jagat Kishore (1911) 10 IC 967. An equitable modification has also been admitted in the case where the alienee has in good faith made proper inquiry and been led to believe that there was a case of true necessity. Thus far if the alienee stands alone. But it may be fortified by the consent of reversionary heirs. The remaining question is what is the effect of such consent?