MT. DHELA KURMI Vs. MT. AHIMAN

JUDGEMENT

(1.) 1. The appellant brought a suit for a declaration that three sale-deeds and a deed of gift executed by her mother Mt. Ahiman, defendant 1, were not binding upon her. She obtained a decree with regard to one of the sale-deeds and the deed of gift, but her suit with regard to the other two sale-deeds was dismissed. She has now appealed with regard to those two sale-deeds. It is admitted that an eight anna share in mouza Prankhera in the Bilaspur district belonged to Dhera, the father of the appellant and husband of respondent 1, Dhera died about 1911, some 18 years before the suit, and then Ahiman his widow, obtained possession of the property. On 22nd April 1919 Ahiman, executed a deed of sale of seven annas out of the eight anna share in favour of defendant-respondent 2 Ramsao; that deed is Ex. P-1. On 29th April 1919 Ahiman executed a deed of surrender with regard to her occupancy rights in the sir land sold in favour of Ramsao. Subsequently on 31st January 1921, Ramsao sold back a one anna share to Ahiman and then Ahiman sold that share in favour of defendant 3, Bandel, and also made a gift apparently of the same one-anna share in favour of the temple, of which Bandel is the sarbarakar. This sale in favour of Bandel and the gift in favour of the temple have been found not to be binding upon the appellant, and no appeal or cross-objection has been made with regard to that finding. The only question therefore to be determined in the appeal is whether the decision of the lower Court with regard to the sale of the seven anna shares in favour of Ramsao is correct or not. It may be noted that the appellant asked for a declaration with regard to the sale-deed of 31st January 1931, but as stated above, that sale-deed was executed by Ramsao in favour of Ahimam and does not prejudice the appellant's rights in any way. If, however, it be found that the prior sale-deed executed by Ahiman in favour of Ramsao of the seven anna share is not binding upon the appellant, then the latter deed by Ramsao in favour of Ahiman would have no effect, as after the death of Ahiman the appellant would be entitled to possession of the whole seven anna share.

(2.) THE lower Court has found that the sale of the seven anna share by Ahiman in favour of Ramsao is binding upon the appellant, because it was executed for legal necessity, haying been executed to pay off debts due by Dhera the deceased husband of Ahiman, and to satisfy a mortgage executed by Ahiman herself, the consideration of which was borrowed for a necessary purpose namely, the building of a temple which was for the spritual benefit of her deceased husband. The mortgage was executed of the whole eight anna share by Ahiman in favour of Sukhridas for Rs. 2,500 on 4th June 1913. Accepting the findings of the lower Court that Dhera was indebted and that this mortgage was executed for the purpose of building a temple, it is still to be determined whether the purpose for which the mortgage was executed, namely building a temple, was one that would be binding upon the plaintiff. The debts of Dhera, even accepting the oral evidence on record, which has been considered at length in Paras. 8 and 9 of the judgment of the lower Court, only amounted to Rs. 1,000 namely, Rs. 600 advanced by Jahanisao (D.W. 2) and Rs. 400 advanced by Kanhaiyalal, which is proved by Dasrathsao (2-D.W. 8). These debts were renewed by Ahiman after Dhera's death and the lower Court has found that they were paid by Ahiman after the execution of the sale-deed in favour of Ramsao. In any case, even granting that Dhera was indebted to the extent of about Rs. 1,000 at the time of his death, it is difficult to believe that such indebtedness would be sufficient necessity for executing a sale and a surrender of practically the whole of the property, some eight years after his death, for the sum of over Rs. 5,000. It is clear that the bulk of the consideration of the sale-deed and the surrender deed were paid to Mt. Purain (2-D.W. 6), the widow of Sukhridas, who has deposed to having received Rs. 3,321 in full satisfaction of the mortgage-debt; the mortgage deed is on record as (Ex. 2 D-5.)

(3.) THE only evidence I can find in the matter is that Phirsingh (2 D.W. 4) and Kesheosingh (2 D.W. 5) have deposed that the foundation was dug by Dhera, but on cross-examination Phirsingh has admitted that his knowledge in the matter is only hearsay. Similarly Kesheosingh has admitted that he did not himself witness the digging of the foundation and was only told by Dhera that he was going to build a temple. This evidence is in my opinion insufficint to prove either that Dhera himself began the building of the temple or that he left any direction to his widow to build the temple. I would also refer to Fattesingh v. Sarha AIR 1930 Nag 198 and Ramsurat Mahton v. Hitnandan Jha AIR 1931 Pat 330. In both of these cases it has been held that a widow can alienate her husband's property for religious and charitable purposes and for his spritual welfare, but that the property so alienated must bear a reasonable proportion to the estate left by the husband. As noted in the present case the mortgage was of the entire estate and cannot therefore, in my opinion, be justified. On this finding, then, it would follow that the sale, which was executed for the purpose of. paying off the mortgage cannot be justified. If the mortgage debt was not for legal necessity, then the sale also, which was executed for the purpose of satisfying the mortgage debt, will also not be for legel necessity, or binding upon the estate. The question of Dhera's indebtedness has been considered above and, even if he was indebted to the extent of Rs. 1,000 there was no necessity for selling the whole of the property. I would find therefore that the sale-deed of 22nd April 1919 (Ex. P-l) executed by Ahiman was not for legal necessity and not binding upon the applicant Mt. Dhela.