LAKHAN SAHU Vs. SHYAM SUNDAR CHAKRAVERTI

JUDGEMENT

(1.) This is an appeal against a decree of the District Judge of Muzaffarpur, confirming that of the Subordinate Judge of that place and has arisen out of a suit instituted by the plaintiff-respondents for setting aside certain alienations by a Hindu widow. The plaintiffs are the reversionary heirs of one Ganga Prasad Chaudhri who as it now appears, died some time in 1871, though the date of his death was represented by the parties in the trial Court as 1891. The alienation impugned by the plaintiffs is principally an usufructuary mortgage executed by the widow of Ganga Prasad in 1903 in favour of the predecessor-in-interest of the defendants first party for a sum of Rs. 2,000 which, as mentioned in the deed, was raised for building a temple for the benefit of the soul of her husband. According to the plaintiffs the money was not used for building the temple which according to them had already been completed long before the mortgage. The deed was also characterised as invalid for various reasons. It further appears that after executing this usufructuary mortgage the lady sold the right of redemption in the year 1910. The purchaser Dasrath Chaudhuri in his turn sold it in 1913 (1916 in the judgment of the learned District Judge is a mistake) to one Narayan Tewary. The plaintiffs characterised these transactions also as fraudulent and ineffective and wanted to avoid them as well making the heirs of Dasrath Chaudhuri and Narayan Tewary, defendants in the suit. The sales by the lady in favour of Dasrath Chaudhuri in the year 1910 and by the latter in favour of Narayan Tewary in the year 1913 were held to be invalid by the trial Court, and their representatives did not prefer any appeal. So far as that matter is concerned, the decree of the trial Court is final.

(2.) We are, therefore, concerned with the defence of the defendants first party who are the representatives of the mortgagee. Their defence was that the money was in fact spent on the temple which was built in compliance with the wish of the lady's husband Ganga Prasad Chaudhury and that the transaction was valid. Three questions arose for the determination of the Court: (1) whether the mortgage was genuine and whether the money raised by it was in fact spent on construction of the temple; (2) whether the alienation was reasonable under the circumstances of the case; and (3) was the temple constructed for the benefit of the soul of the deceased Ganga Prasad Chaudhuri or was it a device to deprive the reversioners of their inheritance.

(3.) The trial Court decided practically all the three points in favour of the plaintiffs. It came to the conclusion that the temple had been built long before the mortgage in question and that it was not a real and genuine pious act. It, therefore, gave the plaintiffs a decree with mesne profits. The mortgagee defendants appealed and though the learned District Judge has disagreed with the trial Court on some points and has come to the conclusion that the money was in fact spent for building the temple which was not completed before the time of the transaction, he has dismissed the appeal as he held that in building the temple the lady was not actuated by a pious desire to benefit the soul of her husband but that it a was device to make provision for her sister's son, Mahabir Chaudhuri, and taking into consideration the properties which about a year later (in September 1904) she dedicated for the purpose of the temple and of which this Mahabir Chaudhuri was appointed a shebait, he has held that the alienation for the temple was not reasonable. The mortgagees have preferred this second appeal.