DAROGI RAI Vs. BASDEO MAHTO

JUDGEMENT

(1.) These two appeals, arise out of the same suit instituted by the plaintiffs for a declaration that two-deeds, one a sudhbharna dated 3 December 1928 for Rs. 1,000 in favour of Halaku Rai (appellant in S.A. 1136 of 1933), and the other a sale for Rs. 1,100 dated 6 December 1926 in favour of Darogi Rai (appellant in S.A. 1110 of 1933), executed by Mt. Murni and her sister Mt. Sahodri, daughters of one Rampat, were without legal necessity and therefore not binding upon the plaintiffs, who are the reversioners of Rampat. Rampat died leaving three daughters, Mt. Murni, Mt.Sahodri and Mt. Jhapsi. The plaintiffs are the sons of his fourth daughter who predeceased him. Rampat was succeeded by his widow Jaimangal who died a few months later and then the three daughters succeeded him as limited owners. Two of them, namely Murni and Sahodri, executed the two deeds mentioned above. The learned Subordinate Judge who tried the suit held the documents to be valid in part, that is to say, the sudhbharna to the extent of Rs. 850 and the sales to the extent of Rs. 700 and invalid for the rest of the consideration. One of the defendants of the suit, Darogi Rai, who held the sale deed, preferred an appeal. Halaku, the other defendant, the holder of the sudhbharna, accepted the decree and preferred no appeal. The plaintiffs also remained satisfied with the decree and did not prefer any appeal, but in Darogi's appeal he filed a cross-objection not only against that portion of the decree which was in favour of Darogi, but also against that portion of it which was in favour of Halaku. The learned District Judge has held that the deeds were not valid to any extent whatsoever and while dismissing the appeal of Darogi, decreed the suit in its entirety not only against Darogi but against Halaku also. Darogi and Halaku have therefore preferred these two second appeals.

(2.) The two deeds which are Exs. A. (sudhbharna) and B (the sale deed) were executed for consideration, a very large part of which, as mentioned therein, was utilized for payments of debts which are said to have been incurred for meeting the sradh expenses of Rampat and his widow. The learned trial Court held that the payment of these debts constituted legal necessities under the Hindu law for which the properties could be alienated. The learned District Judge on appeal, though he has not found that in fact no money was borrowed for the sradh expenses or that the debts were not paid out of consideration money of the deeds in question, has held the alienations to be illegal on two grounds: first, that it was no business of the daughters when their mother was alive to incur debt for the sradh of their father Rampat: and secondly, that when the two deeds were executed, the debts incurred for the sradhs had become barred and therefore it was illegal to alienate properties to pay off those debts. Both these grounds of the learned District Judge have been assailed before us in these second appeals. Regarding the first proposition the learned District Judge's objection is about the daughters borrowing for the sradh of their father Rampat when his widow was alive. The amount borrowed for his sradh was Rs. 800 out of which Rs. 400 with interest thereon was paid by the sale and Rs. 400 which interest thereon by the sudhbharna. It seems that the widow of Rampat must have been very much advanced in age and naturally the daughters who were prospective heirs of their father must have been looking after the property. It is not disputed that it was the duty of the widow to perform the sradh of her husband. It is also not denied that the sradh was performed out of the money borrowed. This being the case, it is in my opinion of no importance that the loan was actually taken by the daughters who must have been acting on behalf of their mother. The debt was there and for all practical purposes it was a debt incurred by the widow for the sradh of her husband. It was therefore incumbent upon the daughters when they succeeded to the estate to pay off that debt.

(3.) It is not denied, as it cannot be denied, that had the widow herself borrowed the money for the sradh of her husband, the daughters could have legitimately alienated the property for the payment of that debt and the fact that they incurred the debt for the sradh performed by the widow makes no difference whatsoever. The next ground of the learned District Judge for dismissing the suit, namely that the daughters could not alienate property for payment of debts incurred for legal necessities which had become barred, requires serious consideration. It is settled law that a widow can alienate her husband's property to pay up his barred debts. The recent decision in this connection is of the Calcutta High Court in Ashutosh Sikdar V/s. Chidam Mandal . Now the question is whether a female limited owner can legitimately alienate any portion of the estate to pay a debt legally incurred by her when the debt has become barred. The learned District Judge has relied upon a decision of the Allahabad High Court in Makkhanlal V/s. Sardar Kunwar . It was held in this case that a widow is not entitled to alienate property of her husband for the payment of her own barred debt though the debt itself was of such a nature that alienation of property would have been justified at the time the debt was incurred. With my profoundest respect to the learned Judges who decided this case, I beg to differ from the view taken by them as in my opinion it introduces into the Hindu Law considerations which are foreign to it, namely the principles of the statute law of limitation.