B ISHWARI PRASAD Vs. BABUNANDAN SHUKUL

JUDGEMENT

(1.) These are four connected appeals arising out of one single suit. We need not go into the circumstances under which four appeals have come to be filed. As a matter of fact a learned Judge of this Court disposed of all the questions now in controversy in one single judgment, and the appeals before us challenge certain of his findings. The essential facts are that the last male owner of zamindary property, consisting of an 8 annas shave in a certain village, was one Sheo Dayal. He died without male issue. He left him surviving two widows and a daughter by each of them. The names of the widows are Mt. Gajra and Mt. Baohna. Of these the latter survived the former. The name of the daughter of Mt. Gajra is Chhutka, and Mt. Gaura is the daughter of Mt. Bachna. One Pashpat Nath was the son of Mt. Chhutka. On the 6 of June, 1871, Mt. Bachna, being then in possession of the entire eight annas share, executed with the concurrence of Pasbpat Nath a deed of gift, by which she purported to transfer the same to her own daughter Gaura. The latter between the years 1873 and 1917 executed a series of documents by which she alienated one fractional share after another of this property. The plaintiffs in the suit are three brothers, Babu Nandan, Jadu Nandan and Parmeshwar, and it is admitted that they have succeeded to the estate of Sheo Dayal as the nearest reversioners under the Hindu Law, Pashpat Nath having predeceased Mt. Gaura. The suit was brought to set aside all the alienations made by Mt. Gaura and to recover possession of the property. The plaintiffs met with varying degrees ofsuccess in three Courts. Finally a learned Judge of this Court partly decreed and partly dismissed their suit, and it is now necessary for us to set forth in detail the alienations complained of and the manner in which they were dealt with by the learned Judge of this Court. The first deed executed by Mt. Gaura was dated the 25 of May, 1873, and conveyed to one Mulhai one-half of the estate of Sheo Dayal in her hands, that is to say, a 4 annas share. This transfer has been upheld by the learned Judge of this Court, who was in agreement on this point with the lower Appellate Court. On the 1 of August, 1895, Mt. Gaura sold to certain persons a 1 anna share for Rs. 350. On the 8 of November, 1906, she sold another share of 1 anna for Rs. 349-15-0 practically to the same persons. Her next alienation was on the 7 of March, 1907, when she made a gift of a 6 pie share to her family priest, a man of the name of Mahadeo. Finally, on the 16 of October, 1917, she sold another share of 1 anna for Rs. 350. It may as well be noted that Mulhai, the ostensible purchaser under the deed of 1873, was admittedly a benamidar for one Harihar Dat, and that the-subsequent alienations have all been to members of Harihar Dat's family. Even the 6 pie share gifted to Mahadeo was sold by that donee to a member of the same family in July, 1910. The suit is therefore being contested by the descendants of Harihar Dat. The deed of gift in favour of Mahadeo was set aside by the trial Court, but was affirmed by the-lower Appellate Court. The learned Judge of this Court came to the conclusion that he had to deal with a finding of fact which bound him to affirm the decision of the lower Appellate Court. We shall return to this point presently. The remaining deeds of sale were dealt with as follows. In respect of the deed of 1 August, 1895, the learned Judge of this Court held that, to the extent of Rs. 238-4-0, this deed was executed for legal necessity, but that there was no legal necessity for an item of Rs. 111-12-0. He-has framed his decree accordingly. In-respect of the deed of 8 November, 1906, the learned Judge has held, differing from-the lower Appellate Court, that there was no legal necessity for the transaction, and he has set aside the alienation. With regard to the deed of 16 October, 1917, he has held that only a sum of Rs. 128 out of the whole consideration was warranted by legal necessity, and he has framed his decree accordingly. The defendants have appealed against the decree of the learned Judge of this Court in so far as it adversely affects them. Incidentally a difficulty has arisen owing to the fact that these defendants have allowed one of the original plaintiffs by name Jadu Nandan to die while their appeal: under the Letters Patent was pending, and have failed to bring his legal representatives on record. This might have complicated the matter if we had come to the conclusion that any portion of the two appeals filed by the defendants must succeed, but the decision we come to is that the appeals fail on the merits. Ag regards the deed of the 16 of October, 1917, we may say at once that the finding of the learned Judge of this Court has not been seriously challenged. He proceeds upon certain findings of fact; and on those findings he is obviously right in law. We might be content to say the same of the deed bearing date 1 August, 1895, but as introducing a curious question of law which we have necessarily to deal with. We may mention what the point for decision was in respect of this earlier deed. It appears that Mt. Gaura, after selling the 4 annas share in the year 1873, had taken a lease of some portion of that share from her own vendees. She allowed the rent payable by her to fall into arrears, and an item of Rs. 111-12-0 out of the consideration for the sale of 1 August, 1895, was applied by her towards satisfying the arrears of rent thus falling due. Now, the learned Judge of this Court has pointed out that there is clear authority of Privy Council vide, Jugul Kishore V/s. Jotendro Mohun Tagore (1884) 10 Cal. 985 for the principle that, if zamindary property in the hands of a Hindu widow be taken in execution of a simple money-decree, the question whether the purchaser at auction takes the whole estate or only the right, title and interest of the widow depends on the nature of the suit. If the decree under execution was obtained upon a personal claim against the widow, then only her interest passes; but if the suit was one in respect of the family estate then the whole inheritance passes by the execution sale. The learned Judge of this Court was, in our opinion, obviously right in holding that the same principles would apply to a voluntary alienation by the widow. The arrears of rent due from Mt. Gaura on account of the lease which she had taken up, presumably for her own personal benefit, formed a personal debt of that lady, and she could not alienate the family estate in her hands in satisfaction of such a debt. The learned Judge of this Court has rightly held that this item of Rs. 111-12-0 was not raised for any justifiable legal necessity. This question crops up again in a somewhat more difficult form when we come to consider the sale-deed of the 8 of November, 1906. The consideration for this deed also went Ito pay off arrears of rent due from Mt. Gaura on account of a certain tenancy. The distinction sought to be made between the two cases is that the tenancy in question now was one of a peculiar nature, namely, an ex- proprietary tenancy which had devolved upon Mt. Gaura by operation of law from the date on which she sold the zamindary share of 4 annas in the year 1873. The contention on behalf of the defendants-appellants is that in paying off the decree for arrears of rent in respect of this ex-proprietary tenancy Mt. Gaura was saving a portion of the family estate in her hands, and that this, alienation must therefore be put on the same footing as such alienations, for instance, as a sale in order to obtain money to pay off arrears of Government revenue which have been repeatedly upheld by this Court. On the whole we are satisfied that this contention cannot be upheld. The ex-proprietary tenancy came into-existence by operation of law when Mt. Gaura sold a portion of the zamindary property. It cannot be said to have constituted a portion of the estate as it devolved upon her. She was not even bound in law to continue the tenancy, and a relinquishment of the same in favour of the zamindars as soon as she found that she could not carry on the cultivation and pay the statutory rent, would have put an end to the tenancy, leaving nothing which could possibly devolve upon any one after Mt. Gaura's death. It must be remembered also that the tenancy would devolve-according to the strict rules laid down in Section 22 of the Local Tenancy Act. It by no means follows that it would have devolved upon the present plaintiffs who are reversioners of Sheo Dayal. Indeed, we may say without going into detail that it would have been extremely unlikely to so devolve. We find no adequate reason, therefore for distinguishing between the arrears of rent due from Mt. Gaura on account of the ex-proprietary tenancy and the arrears due from her on account of the other tenancy which she had voluntarily taken up. The learned Judge of this Court was, in our opinion, right in respect of each of these deeds, and the appeals filed by the defendants fail.

(2.) The two cross-appeals are on behalf of the plaintiff Babu Nandan, or of the said plaintiff jointly with his brothers ands they challenge the findings of the single Judge of this Court in respect of the sale of 1873 and the deed of gift of 1907. We are far from saying that the question of legal necessity for the sale of May 25, 1873, is free from difficulty. We have listened to considerable argument on the point and we have had to examine carefully the judgments recorded by all three Courts. We think it sufficient to say, however, that, in our opinion, the learned Judge of this Court was right in holding that he had before him findings of fact by the lower Appellate Court, resting upon evidence which that Court was entitled to take into consideration and not to be disturbed in second appeal. The appeal in respect of this alienation therefore fails.

(3.) With regard to the gift in favour of Mahadeo, we have come to the opposite conclusion. To begin with, we think it very doubtful whether, as a question of law, a gift made to a family priest under the circumstances deposed to by Mahadeo himself, and with a mere recital in the deed itself that the object of the gift was to obtain advantage in the next world, could be upheld as within the authority of a Hindu widow. We might have hesitated to interfere with the learned Judge of this Court on this ground alone, as here also he purports to proceed upon findings of fact, but one important consideration has, in our opinion, been altogether overlooked by him. There can be no doubt that in every case in which an alienation by way of gift for religious or charitable purposes is made by a Hindu widow, holding an estate with the limited interest of such widow, the Court is bound to take into consideration the proportion borne by the property gifted away to the total estate in the hands of such widow. The learned Judge of this Court, laying stress on the fact that the gift is one of a 6 pies share only, treats it as amounting to no more than one-sixteenth of Shea Dayal's estate in the hands of his daughter. Even this is a large proportion, particularly for a gift of the particular nature of the one which we are considering. But the fact of the matter is that it was a gift of a 6 pies share out of a 2 annas share, which represented all that was left of the estate in Mt. Gaura's hands on the date of the gift. On this ground we think that the alienation ought not to have been supported.