KUNJ BEHARI LAL Vs. LALTU SINGH

JUDGEMENT

(1.) The suit out of which this appeal arises was brought on the following state of facts: One Raja Gur Sahai died in the year 1868 possessed of immoveable property of considerable value in the districts of Moradabad and Bulandshahr. He left him surviving two sons and a widow. The sons died in 1273, while still minors and leaving no issue. The widow Rani Kishori Knar thereupon entered into possession of the estate, strictly speaking in succession to her sons, or rather to that one, of her two sons who survived the other. For practical purposes it is sufficient to say that she took possession of the property with the estate of a Hindu widow. Shortly afterwards she went on a pilgrimage in the course of which she visited Allahabad, Banares, Gaya and Jagannath. At the last named place she made an oral gift, or I should perhaps say the promise of a gift, to certain priests of the temple of Jagannath, and this transfer of property was carried into effect by a deed of the 8th of January 1876, executed by Rani Kishori Kuar after her return to Moradabad and registered on the admission of her agent (general-attorney) Ajab Singh. The question whether the donees under this deed of gift had any right to transfer the property thus taken by them does not arise in the present suit. There have been transfers, and the contesting defendant in this case, Kunj Behari Lal, acquired so much of the gifted property as consisted of shares in four villages for good consideration, under a sale deed of the 27th of September 1909. Prior to this Rani Kishori Kuar had died, namely, on the 15th of August 1907; and after much litigation the plaintiff Laltu Singh succeeded in establishing his claim to succeed as the nearest reversioner to the estate of the late Raja Gur Sahai. The object of the present suit is to obtain a decision that the transfer purporting to be effected by the deed of gift, dated the 8th of January 1876, either passed no title at all, or at any rate conveyed no estate lasting beyond the lifetime of Rani Kishori Kuar, and thereupon to recover possession of the gifted property. It is alleged in the plaint that the Pandas of Jagannath had colluded with Ajab Singh already mentioned and with other Karindas and servants of Rani Kishori Kuar and had obtained the execution of this document without the lady s understanding what she was assigning or even comprehending the contents of the deed or its effect upon her interests. Any one reading the plaint would be disposed to assume that this was the main point of the plaintiff s case. The learned Subordinate Judge, however, has lumped the question raised by these pleadings into a single issue along with the wholly different question of the capacity of Rani Kishori Kuar, as a Hindu widow in possession of the property of her late husband, to make a gratuitous transfer of this sort. The result is that the evidence produced on what should have been the main question for trial in the case is scanty and unsatisfactory and that this issue has not been decided at all by the trial Court. The learned Subordinate Judge says that he will presume that the deed of gift was really executed by Rani Kishori Kuar after fully understanding its nature and effect; but he holds that she had no authority as a Hindu widow to make a gratuitous transfer of this property beyond her lifetime. We have had to consider the question of the intelligent execution of the document and it is necessary for us to come to a finding upon the point. The transaction, is an old one, and such oral evidence as the parties endeavoured to produce amounts to little and does not seem worth discussion; but I am impressed with the evidenoe given by the witnesses Shiam Sarup and Nathu Ram as to Rani Kishori Kuar s business capacity and the manner in which she looked after her estate. The lady was illiterate, but she seems to have possessed a considerable degree of intelligence and business capacity. She did not remain shut up in her residence in Moradabad but went about visiting different portions of her property and personally superintending the management of the same. Under such circumstances the mere fact that she never challenged this alienation in her lifetime would warrant the presumption that she fully understood the transaction at the time when she executed the deed of gift. Fortunately the defendant-appellant has been able to bring on the record in this Court a piece of documentary evidence which carries the matter a good deal further. In the year 1893 Rani Kishori Kuar was examined on commission in connection with another litigation. She there stated that she had a distinct recollection of having made the gift now in question to the Pandas or officiating priests of the temple of Jagannathji. She mentioned from memory the most essential portions of the contents of this document, naming the village of Sherpur which formed the principal item of property transferred. Under all the circumstances, and in view of the manner in which this particular point was litigated in the Court below, I think we need have no hesitation in coming to the finding that Rani Kishori Kuar executed this deed of gift with full knowledge and adequate understanding of its contents and of its effect upon her interests.

(2.) In the Court below various alternative lines of defence were relied on by the present appellant, but most of the pleas embodied in the memorandum of appeal before us have not been pressed. Now that we have already found in favour of the defendant upon the question of the intelligent execution of the document, the only further point for our consideration is the authority of Rani Kishori Kuar to make this transfer. The question of law thus raised is discussed at considerable length in the judgment under appeal and has been very completely argued out before us with reference to a large number of authorities. I think I may say that very little attempt has been made before us to support the decision of the Court below on the line of argument on which it proceeds. The learned Subordinate Judge would seem to have misunderstood the pronouncement of their Lordships of the Privy Council which forms the foundation of the subsequent case-law on the subject, and he has throughout discussed the question of the validity of this gift as if it were in some way connected with the question whether Rani Kishori Kuar would have been entitled to alienate any portion of her late husband s estate in order to meet the expenses of her pilgrimage to the holy places of northern India. The latter question does not arise at all. The lady would seem to have met the expenses of this pilgrimage out of the income of her husband s estate over which income she had full disposing power. "We have simply to consider whether she had or had not a right to make this particular gift in favour of the idol worshipped in the temple of Jagannath and the attendant priests. The foundation of the case law on the subject is the decision referred to and misrepresented by the learned Subordinate Judge, namely, the case of Collector of Masulipatam v. Cavaly Vencata Narrainapah 8 M.I.A. 529 : 2 W.R. (P.C.) 61 : 1 Suth P.C.J. 476 : 1 Sar. P.C.J. 820 : 19 E.R. 631. The important passage frequently quoted in subsequent decisions is to be found at page 551 and may be quoted once more in this place: "For religious or charitable purposes or those which are supposed to conduce to the spiritual. Welfare of her husband she (i.e., the Hindu widow) has a larger power of disposition than that which she possesses for purely worldly purposes." In the present case the gift to the temple and to the attendant priests appears on the face of it to be an alienation for religious and charitable purposes. The immediate object of the alienation as cited in the deed itself is for the salvation of my husband and his family members and for my own salvation." In a recent case before the Calcutta High Court, Khub Lal Singh v. Ajodhya Misser 31 Ind. Cas. 433 : 43 C. 574 : 22 C.L.J. 345, the question of law now under consideration was discussed at great length. Previous authorities were reviewed and a decision was pronounced by a Bench which included one of the most distinguished Hindu Judges who adorned the Bench of that Court. The important principles laid down by him I take to be the following: There is a distinction between legal necessity for worldly purposes on the one hand and the promotion of the spiritual welfare of the deceased on the other hand. A gift of a moderate portion of the property of her husband by the widow with a view to his spiritual benefit is valid. Whether an alienation covers a reasonable portion of the property of her husband is a question which must be determined with reference to the circumstances of each particular disposition." The point which has been pressed upon us with great learning and ingenuity on behalf of the respondent to this appeal turns upon the meaning to be attached to the words "with a view to his spiritual benefit" in the principle above laid down. It was contended that those proceedings by means of which a Hindu widow may seek to promote the spiritual welfare of her late husband can be ascertained with certainty from authoritative text books accepted by Hindus generally and that the question whether a particular gift, made under certain circumstances, would or would not be accepted by Hindu opinion as conferring a spiritual benefit upon the deceased husband of the donor was a pure question of law which could be settled upon authority, independently altogether of the question whether the object of the gift was or was not one which any ordinary persons would accept as fulfilling a religious or charitable purpose. When this argument came to be further pressed, with reference to the particular authorities and texts on which it proceeded, it proved to amount to this: that it is only by means of those rites and ceremonies connected with the funeral of the deceased or with the subsequent commemoration of his death, generally known under the name of Sradh, that the spiritual welfare of a deceased Hindu can be promoted. Consequently it was contended that the only gifts made for religious or charitable purposes by which a Hindu widow could be regarded as promoting the spiritual welfare of her late husband would be gifts made in connection with some Sradh ceremony. The argument is an ingenious one; but the question can scarcely be regarded as coming before us at this stage of its history as purely res integra. There is a mass of case-law on the subject, a great deal of which has been expounded to us on behalf of the parties to the present appeal. It is impossible to point to a single case in which an alienation by a Hindu widow has been set aside only on the ground that it was not made in connection with a Sradh ceremony of the deceased. It is quite true that there are at least two decisions of the Madras High Court in Lakshminarayana v. Dasu 11 M. 288 : 4 Ind. Dec. (n.s.) 201 and in Vappuluri Tatayya v. Garinalla Ramakrishnamma 6 Ind. Cas. 240 : 34 M. 288 : 20 M.L.J. 798. (1910) M.W.N. 222 : 8 M.L.T. 79, in which the fact that the alienation was made in connection with a Sradh ceremony is insisted upon in such a fashion as to show that it was of considerable importance in the minds of the learned Judges. The question whether this is an indispensable condition to the validity of a gift can be tested by examining a few cases in which such alienations have been set aside. Take for instance the case of Rama v. Ranga 8 M. 552 : 9 Ind. Jur. 383 : 3 Ind. Dec. (n.s.) 378. The learned Judges set forth the objects for which the particular alienation which they were considering had been made. Now that alienation, on the face of it, had nothing to do with a Sradh ceremony of the deceased; but it was not set aside on that ground. It was pointed out that the ceremonies for the sake of which the widow in that case had sold a portion of her late husband s estate were not of the kind regarded by the Hindu religion as indispensable for the spiritual benefit of her late husband, such as funeral obsequies and ceremonies intendent to those obsequies. They then proceeded to hold that they could not justify the alienation, unless such sale is reasonable in the circumstances of the family and the property alienated is but a small portion of the property inherited from her husband." The principle underlying the decision appears to be that there are ceremonies and, I may add, duties incumbent upon a Hindu widow, in the sense that their performance is regarded as indispensable to the spiritual welfare of her late husband. These duties she is under an obligation to perform and these ceremonies she must carry out, and for this purpose she has a power of alienation in respect of the corpus of the property in her hands, independent altogether of the proportion which the property alienated may bear to the whole. In the case of an alienation for a purpose regarded as indispensable to the spiritual welfare of the late husband, the question will not be, what proportion does the property alienated bear to the entire estate, but only, was the alienation a reasonable one under the circumstances, in the sense that the expenditure incurred was such as might be regarded as suitable to the position of the family. The learned Judges, however, recognised the possibility of alienations made by a Hindu widow for the purpose of doing pious acts for the benefit of her late husband which are not in the nature of spiritual necessities; and with regard to alienations made for such a purpose as this, they say that they would be prepared to take into consideration such questions as the proportion borne by the property alienated to the value of the entire estate. The same sort of principle seems to be implied in Ram Kawal Singh v. Ram Kishore Das 22 C. 506 : 11 Ind. Dec. (n.s.) 338, where the learned Judges finally came to the conclusion that the alienation which they were considering could not be supported, either on the ground that it was a religious necessity (that is to say indispensable to the spiritual welfare of the husband) or that, being for a pious purpose, the property alienated was small in value and represented only a very small portion of the estate inherited. The same may be said of the latest pronouncement of the Bombay High Court in Panachand Chhotalal v. Manoharlal Nandlal 43 Ind. Cas. 729 : 42 B. 136 : 20 Bom. L.R. 1. We have been referred to two decisions of this Court, (1) in Puran Dai v. Jai Narain 4 A. 482 : A.W.N. (1882) 115 : 2 Ind. Dec. (N.S.) 1092. There stress was laid upon the fact that the alienation which the Court had to consider had been made without any reference whatever to the idea of conferring spiritual benefit upon the deceased husband, but apparently for the spiritual benefit of the widow alone. The other case of this Court is that of Balkishan Bharthi v. Sat Ram Singh A.W.N. (1908) 202. This case is of considerable importance as containing a review of the previous case law by the learned Hindu Judge of this Court who is still with us. The principle he desired to affirm is to be found in the Tagore Law Lectures, 1879 at page, 309: "A gift by a widow of the whole of her husband s estate is invalid; but a gift of a moderate portion of the property made by the widow for the spiritual benefit of her husband may be valid." In the case then before him the learned Judge found that the gift which he had to consider, comprising as it did practically the whole of her late husband s estate, was one which the widow was not justified in making. On the line of reasoning which be followed it seems clear that he would have affirmed the gift, if it had affected property forming only a small fraction of the entire estate.

(3.) In this connection we were also asked on behalf of the respondent to attach considerable importance to the fact that Rani Kishori Kuar had taken the estate in succession to her son, and not immediately on "the death of her husband." Under the circumstances of the case, I do not think this fact is of serious importance. To begin with, the recital in the deed of gift itself, setting forth that the donor desired to confer spiritual benefit upon her late husband and upon his family members, is quite sufficient to include the spiritual welfare of these two boys who died before attaining majority. Apart from this I do not think it would be just to take too rigid and technical view of the position of a Hindu widow who had entered into possession of her late husband s estate after a short interval, during which her two minor sons died. She naturally treated the estate as that of her husband and regarded herself as being in possession in virtue of her rights as his widow. It could scarcely be suggested that her power of alienation for the spiritual benefit of the former owner of the estate is so rigidly * limited that in all circumstances the person whose spiritual benefit is sought must have been the last male owner. In the present case for instance, it could scarcely be contended that no alienation of property by way of gift would be valid unless expressly made for the benefit of that particular one of the two sons of Raja Gur Sahai who survived the other and who was, therefore, for a brief interval the sole owner of the estate.