MT. JANI Vs. BAPU

JUDGEMENT

(1.) 1. The plaintiff-appellant Mt. Jani's suit for a declaration that the surrender of occupancy field No. 115 of mauza Sakharkheda, made by the widow of Dasriya, the last male-holder, is not binding on her, she being the daughter of Dasriya, has been dismissed in both the lower Courts.

(2.) THE facts of the case are sufficiently clear from the two judgments on record. The main argument put forward on second appeal has been founded on certain remarks of Kinkhede, A.J.C. in Wasudeo v. Bhiwa A.I.R. 1925 Nag. 306, and I have been asked, in the course of argument, to refer the general question of the powers of a Hindu widow with regard to a surrender by her of a holding of her late husband and the effect thereof on the reversioners to a Full Bench in view of the remarks of the learned A.J.C. in the case quoted above. Meanwhile, however, the question has been fully discussed by Hallifax, A.J.C. in Bikham v. Thakur Ganesh Singh A.I.R. 1927 Nag. 129, and for my own part I find myself in full agreement, not only with that decision, but with the decisions in Dajiba v. Raghunath [1913] 9 N.L.R. 126 and Vithal v. Mt. Mendri [1909] 5 N.L.R. 172.

(3.) IT becomes, therefore, unnecessary to go into the question of legal necessity, but my attention has been directed by the counsel for the appellant to the finding of the lower appellate Court contained in para. 6 of its judgment. It has been suggested that anyhow some Rs. 200 out of the total consideration of Rs. 1,000 has not been proved to be for legal necessity. Even if this be accepted as correct, the principle laid down by Prideaux, A.J.C. in Bhadaji v. Ganeshrao A.I.R. l924 Nag. 109, would obviously apply. The great part of the consideration was, in any event, for legal necessity and it is difficult to see how, in those circumstances, the validity of the transaction as a whole could be questioned solely on this ground. It has indeed been suggested that the plaintiff should have got a decree conditional on her paying back the amount of the consideration which fell under the head of legal necessity, but, in the present case, only a claim for a declaration was asked for and obviously no such decree, as is now suggested, could, in the circumstances of the case, have been granted.