JAGESHWAR SINGH Vs. MODNARAIN SINGH

JUDGEMENT

(1.) When analysed, the argument of Mr. Sinha appearing on behalf of the defendant-appellants is chiefly concerned with that item of the considerations, the sale-deed of 26 September 1929, which is referable to the pilgrimage to Benares. The learned Judge in the Court below has held on the authority of the decision therein quoted that the pilgrimage to Benares could not be considered legal necessity. So far as the learned Judge's statement purports to be a statement of a principle of law that a pilgrimage to Benares can never be considered a justifying necessity for alienation of a woman's estate, the Judge is clearly wrong. But even assuming that the learned Judge intended so to express himself, the reversal of his decision on that particular point would not save the alienation which was the subject-matter of this action and which related to five items, the three principal ones being Rs. 378 for the payment of a sudbharna bond, Rs. 500 for certain religious ceremony performed by the lady, and Rs. 84 odd for the payment of a promissory note.

(2.) The argument of Mr. Sinha can be well understood having regard to the findings of fact of the learned Judges in the Courts below. I might say in this connexion that the judgment of the lower appellate Court is a judgment of affirmance and it is on no question of law that the Courts below have decided against the defendant, but on questions of fact. It would appear that Mt. Keshobati Kumri was the widow of one Hirday Narain and after the death of Hirday Narain, Chhedi, his son, came to possess the estate, and it was after the death of Chhedi that the Musammat came into possession. She was, therefore, not in possession of a widow's estate but that of a mother.

(3.) Now taking the principal item of Rs. 500, the learned Judge in the Courts below has held that the Kartik Brat Uddyapan ceremony was not conducive to the benefit of the son's soul, and, therefore, on that ground and on the ground that the amount in the circumstances was excessive, has held against that particular item. So far as Rs. 378 was concerned, the trial Court came to the conclusion also on facts that the item was not justified and the same may be said in respect of Rs. 84 odd. Now it is important to notice that the learned Judge in the trial Court came to the conclusion that the defendants who were the appellants before this Court and who advanced the money and were the purchasers, acted most carelessly without ascertaining whether the Musammat had any necessity for it or not. Now that finding was that there was no proper and bona fide enquiry. The appellants appear to have been content with that finding because we see from their notice of appeal to the lower appellate Court that he makes no grievance with regard to it, but bases his case, as he did partly in the trial Court, on the ground that necessity in fact existed. Now the principles of law applicable to a case of this kind are to be found first of all in the leading case of The Collector of Masulipatam V/s. Cavaly Vencata Narainapah (1859) 8 MIA 529 in the decision of the Calcutta High Court in Khub Lal Singh V/s. Ajodhya Misser 1916 Cal 792 and the decision quoted with approval by the Privy Council in Sardar Singh V/s. Kunj Bihari Lal 1922 PC 261. In the last named case the following statement appears: In their Lordships opinion the Hindu Law recognizes the validity of the dedication or alienation of a small fraction of the property by a Hindu female for the continuous benefit of the soul of the deceased owner.