AWADH NARAIN TIWARI Vs. SANTAN NARAIN TIWARI

JUDGEMENT

(1.) This is an appeal by the defendants in a title suit in which the relief sought was only a declaration, and the dispute was about the validity of certain raiyati leases granted by a Hindu widow. The property is part of the estate of one Madhonarain Tiwari who died in 1876 leaving a widow Musommat Deoki Kuar. The ladfedigd in 1919 and the plaintiffs and defendants of this suit are the agnates of her husband and the inheritors of the estate on her death. Partition proceedings were taken for the division of the properties among them, and it was found that certain bakasht lands have been settled by her as raiyati with some of the agnates after taking substantial salamis. These settlements were challenged by other of the agnates, now the plaintiffs, and for the purposes of the partition it was necessary, in order to assess the divisible assets, to have a determination whether these lands ought to be treated as bakasht or as raiyati. Hence the suit for a declaration that the settlements are invalid and not binding on the plaintiffs. The Subordinate Judge found that the three settlements which are impugned were each made for the purpose of raising money to satisfy antecedent debts Incurred by the husband and father-in-law of the widow and secured by usufructuary mortgages on the lands in suit. The genuineness of these usufructuary mortgages was not challenged, and the Subordinate Judge dismissed the suit. In each case about two-thirds of the salami money was required for paying these antecedent debts and nearly one-third was spent by the widow on her own purposes.

(2.) But the Judicial Commissioner in appeal acceded to the argument that there was no pressure on the estate which would justify the widow in redeeming the usufructuary mortgages by alienating any part of the corpus of the property and thought that the transactions of Musammat Deoki Kuar were not such as a prudent owner would have (made, the net result being not to increase but to decrease the total assets. He commented somewhat severely on the failure of the lady in forty years to re-pay any of the old zarpeshgis by savings out of her income, being apparently of opinion that it was her duty to save the income of the property for paying off her husband's debts. As to this the Subordinate Judge, himself a Hindu, had calculated that the total income at the lady's disposal could hardly have been more, at the highest computation, than about Rs. 75 a month and she could have had hardly any margin left out of this slender income from which it might have been possible to pay off the debts on her property. Whether or no it was possible for the lady to have paid off any of the debts, the law absolutely clear that she was under no obligation to do so. It is settled law that a widow is not a trustee for the reversioners but has an absolute power of disposal of the income of the property inherited by her. She is not bound to save the income; she may spend the whole income upon herself or give it away as she likes during her life. This is so well settled that I do not think it necessary to cite the authorities. A general summary of the legal position will be found in Mulla's Principles of Hindu Law, para. 177. On this part of the case it is enough to add that there is no evidence whatever that the widow had any savings in hand which she could apply to the satisfaction of the debts incurred by her husband and father-in-law.

(3.) I turn now to the other question of the learned Judicial Commissioner's finding that the widow had no business to alienate property of the estate unless there was an immediate pressure on the estate, such as a threat of suit or a danger of the property being brought to sale by creditors. It is undoubtedly true as the Judicial Commissioner has pointed out that there is nothing to show that the zarpeshgidars were pressing for return of their money or that they were not content to remain in possession of the plots of land hypothecated to them as zarpeshgidars and in that situation it might perhaps be said of a manager, or of the trustee of property for an infant, that there was no immediate and cogent necessity for arranging to pay off the debts. But it will not do to confuse the position of a Hindu widow with that of a manager or a trustee. Whereas a manager or a trustee is to look at the secular interests of the estate and his power of alienation is limited to cases in which the estate will benefit or there is some pressure on it which makes alienation unavoidable, the widow has an additional power of alienation for other purposes which are regarded in the Hindu system of law as religious or charitable or conducive to the welfare of the soul of her husband (Mulla's Principles of Hindu Law, paras. 181 and 181-A). To justify an alienation for such a purpose, it is not necessary to show any benefit to the estate or pressure on the estate such as is necessary in the case of an alienation for other purposes.