SRIMOHAN JHA Vs. BRIJ BEHARY MISSRI

JUDGEMENT

(1.) The suit out of which this appeal arises is brought in order that a kobala executed on the 29 December 1887 and the usufructuary mortgage bonds, dated the 23 June 1891 and 8 August 1891, may be declared null and void on the death of one Muxammat Bijneshuri Dai. She was the tenant for life of the estate of her father who was the last full owner. The plaintiff is his reversionary heir and he now sues to have the sales set aside as having been made by the lady in excess of her powers of alienation. It is for the defendants to show that these sales were made for legal necessity.

(2.) As regards the kobala of the 29 December 1887, it was executed in the first place for the purpose of securing money for performing the sradh ceremony of the mother of the tenant for life. It is admitted by the plaintiff that the lower appellate Court is right in the view it takes of the decision in the case of Raj Chunder Deb V/s. Sheeshoo Ram Deb 7 W.R. 146 and that the performance of the sradh ceremony of the mother is a legal necessity for which the tenant for life was justified in charging the family property. A point has been raised before us that the amount spent in sradh, viz., the sum of Rs. 1,700, is excessive. But this is a question which we cannot go into. Out of the balance of the money secured by the execution of the above mentioned kobala Rs. 300 was spent in paying the Government revenue. We have no doubt at all that this also must be regarded as a legal necessity. It is admitted on both sides that the estate was exceedingly involved at the time and there can be no doubt also that the life tenant was acting judiciously in raising funds for the purpose of paying the Government revenue. We are, there fore, of opinion that it should be regarded as a legal necessity. Similarly the sum of Rs. 85 which was raised in order to pay the costs of a succession certificate was spent for a legal necessity as the succession certificate was a document without which it would have been impossible for the life tenant to manage the estate.

(3.) Then come the mortgage bonds. The deed of the 23 June 1891 was executed in order to raise the sum of Rs. 80 for paying a rent decree. It is argued before us that this was a personal obligation only; and in support of this contention reference is made to the decision in the case of Brajalal Sen V/s. Jiban-Krishna Boy 26 C. 285. That, however, is a very different case from the present one, as in that case certain co-sharers were suing the tenant for life and it would not be in their power to" affect the interest of the reversioner. In this case had the rent decree not been paid the whole estate could have been placed in peril and it was the duty of the life tenant as a careful manager of the estate to pay the rent decree Under these circumstances we agree with the lower appellate Court in holding that this was also a matter of legal necessity.