1. When the hearing of the appeal had been concluded on 24-9-1959, I had informed the parties that the appeal is dismissed with costs, and that the reasons would fallow. I now proceed to give my reasons.
2. This appeal by the plaintiffs is from the judgment of the learned Subordinate Judge, Monghyr, dismissing their suit and refusing the declarations sought by them.
3. It is necessary first to give the pedigree of the family of Shambhu Singh, the admitted common ancestor of the plaintiffs and defendants 6 to 8. It is below:
4. Defendants 1 to 3 are the sons of defendant No. 8. Defendant No. 8, Ram Peyrai Devi, according to the plaintiffs, is the daughter of Ramlakhan Bather of defendant No. 7, and, according to the defendants, daughter of Raj Kumar, father of Sheonandan. Defendant No. 4, the vendee under Exhibit 2, is a stranger to the family.
5. The main dispute between the parties, therefore was, whether defendant 8 was the sister of Sheonandan, or of Kishori, defendant No. 7?
6. The dispute in the suit, out of which the present appeal arises was with respect to the lands owned and possessed by Sheonandan, husband of defendant No. 6 which she admittedly inherited after her husband's death.
7. Plaintiffs are the admitted agnates of Sheonandan, being the sons of Bhagwat, the second son of Shambhu and brother of Rajkumar. It is undisputed that an the three sons — Rajkumar, Bhagwat tncl Ramlakhan — of Shambhu were separate from before the survey which took place in 1903.
8. The plaintiffs claimed to be the next reversioners of Sheonandan, and, in that capacity they brought the present suit for a declaration that they were the next reversioners of Sheonandan and that the alienations made by his widow, defendant 6, were fraudulent, void and not binding on them.
9. The first sale deed (Exhibit A) was executed by defendant No. 6 in favour of defendants 1 to 3 for a sum of Rs. 500/- on the 8th November, 1952 in respect of 11 kathas 9 dhurs, which are mentioned in Schedule 1 of the plaint. The second sale deed (Exhibit 2) was executed on 12-11-1952 in favour of defendant No. 4 for a sum of Rs. 50/- in respect of 1 katha 5 dhurs out of plot No. 374, which are mentioned in Schedule 2 of the plaint.
10. The plaintiff's suit was a mere declaratory suit, in which they asked for two declarations: First that they (plaintiffs), and, defendant No. 7 were the nearest reversioners of Sheonandan husband of defendant No. 6, and as such, after her death, they were entitled to all his properties mentioned in Schedule 3 of the plaint; and, secondly, that the two sale deeds. Exhibits A and 2, just mentioned, in respect of the and mentioned in Schedules 1 and 2 of the plaint, were void and not binding ion them.
11. The plaintiffs' suit was contested by defendants 1 to 3. Defendants 5, 6 and 8 also appeared and filed separate written statements supporting the case of defendants 1st party, that is, defendants 1 to 3. Defendant 6, Mayabati, and defendant 8, Ram Peaney, were also examined on commission on behalf of the defendants and are mentioned as D.W 1 and D.W 2 (on commission). Defendant 4 did not appear and contest the suit, but he was examined on behalf of the defendants, as D.W 15. Defendant 7 Kishori Saran, however, neither appeared, nor filed any written statement nor was he examined as a witness for any party.
12. The main defence of the defendants was that Rampeyari Devi, defendant No. 8, was the own sister of Sheonandan being the daughter of Rajkumar and, therefore, defendant No. 8 was the next reversioner of Sheonandan after the death of his widow, defendant No. 6, being his sister, and, as such, the plaintiffs had no right, being remote reversioners, to maintain the suit. They further alleged that the impugned sale deeds. Exhibits A and 2, were for consideration and legal necessity and were, genuine and valid, and, therefore, were binding on the plaintiffs.
13. The trial Judge, on a consideration of the evidence of both sides, held (i) that defendant No. 8 was the sister of Sheonandan husband of Mayawati, defendant No. 6, and, therefore, the plaintiffs could not be the next reversioners of Sheonandan; (ii) that the impugned sale deeds (Exhibits A and 2) were not fraudulent but were for consideration and legal necessity and as such binding on the plaintiffs, and (iii) that, therefore, the plaintiffs had no cause of action or right to sue. On these findings he dismissed the plaintiffs' suit.
14. The present appeal by the plaintiffs was lodged in this court on 17-2-1955; and during the pendency of this appeal, the Hindu Succession Act, 1956. (Act XXX of 1956) hereinafter referred to as the Act, came into force. Taking advantage of this Act. Mr. Kailash Ray, who appeared for the defendants-respondents raised a preliminary objection that the plaintiffs had now no locus stand to maintain the suit itself, and, as such their appeal must fail on this ground alone. He put forward his objection in three ways;
15. First — that on the plaintiffs' own case, admittedly defendant 6 is in possession uptill now of Schedule III lands of her husband, Sheonandan, and, therefore, in view of the provisions of S. 14 of the Act, she now became the owner thereof, and, accordingly, the plaintiffs, even assuming they were the next reversioners of Sheonandan, had now nr locus standi to claim the said lands.
16. Secondly — that on the plaintiffs' own case the impugned sale deeds were sham transactions, being without consideration and legal necessity, and defendant 6 was uptill now in possession of the entire property left behind by her husband, which included the alienated lands, mentioned in Schedules 1 and 2 of the plaint also, and, as such, defendant 6, in view of the provisions of S. 14 of the Act, became the full owner there of also, and, accordingly the plaintiffs had no right now to challenge her right to sell, and.
17. Thirdly that as the plaintiffs can in no case get a declaration of their rights in respect of Schedule III lands, which are 23 bighas 5 kathas 13 dhurs, they should not be granted, even they be entitled to, any declaration of their rights in respect of Schedules I and II lands, which are only 12 kathas 14 dhurs, and as such an insignificant of the inheritance of Sheonandan in the and of his widow, defendant 6, in view of Section 42 of the Specific Relief Act.
18. Mr. U.C Sharma, who appeared for the appellants, however, put forward the following three objections to the decree appealed from:
(1) That Rampeary Devi, defendant 8, was not the sister of Sheonandan but of defendant No. 7, and, therefore, she was not the next reversioners of Sheonandan;
(2) That even assuming that defendant 8 was the sister of Sheonandan, and, as such the next reversioner of Sheonandan, still as she was in collusion of the defendants, the plaintiffs, being admittedly remote reversioners of Sheonandan, were entitled to maintain the suit; and
(3) That the necessities mentioned in Exhibits A and 2 could not be legal necessities in the eye of law.
19. Before, however, I consider the argument advanced on behalf of the appellants, I think it would be better if I determine first the merit of the preliminary objections raised on behalf of the respondents.
20. Preliminary objections in order to decide the first two objections, it is essential to know at first the scope of S. 14 of the Act. The relevant section for our purpose is S. 14(1). Section 14(1) omitting the Explanation and sub-clause (2), is in these terms:
“14. Property of female Hindu to be her absolute property:
(i) Any property possessed by a female Hindu, whether acquired before or after the commencement of this Act, shall be held by her as full owner there of and not as a limited owner.
xxxxxxxxxx
What is the true meaning of the words “Any property possessed by a female Hindu” occurring in S. 14, quoted above, is no longer in doubt, as the controversy over its interpretation has now been set alt rest by the authoritative recent decision of the Supreme Court in Gummalapura Taggina Matada Kotturuswami v. Setra Veeravva, AIR 1959 SC 577.
21. It is, therefore, now settled that the word “possessed” in S. 14 of the Act is used in a broad sense and in the context means the state of owning or having in one's hand or power; and, thus the opening “property possessed by a female Hindu” mean that, to come within the purview of the section, the property must be in possession of the female concerned at the date of the commencement of the Act. That possession might have been either actual or constructive or in any form recognised by law, but unless the female Hindu, whose limited estate in the disputed property is claimed to have been transformed into absolute estate under this particular section, was at least in such possession, taking the word “possession” in the widest connotation when the Act came into force, the section would not apply.
22. After having ascertained the true meaning of S. 14(1) of the Act, I will now proceed in the light of the above principles to examine the contentions advanced on behalf of the respondents.
23. First — It is not disputed, rather admitted in paragraph 5 of the plaint, that alter the death of Sheonandan, the last male holder of the property in dispute, without any issue, male or female, defendant 6, his widow, who is described as defendant third party to the suit, “as Hindu widow entered into and has up till now been in possession and occupation of the entire property left behind by her husband”. It is further admitted therein that after the death of her husband, the name of defendant 6 was entered in all village and court papers in place of her husband. The entire property, which is admittedly in possession of the widow defendant 8, is mentioned in schedule 3 of the plaint which is 23 bighas 5 kathas and 12 dhurs of Kaimi nakcli jot land.
24. Defendant 6 being in admitted possession of schedule 3 lands, it is obvious that S. 14(1) of the Act will apply, and, by virtue of the provisions of the said section defendant 6 became the full owner hereof, and not a limited owner as she was before the Act came into force. In such a situation, it is plain that the plaintiffs even assuming they were next reversioners to the estate of Sheonandan, had no right to bring a suit like the present under Section 42 of the Specific Relief Act as against the full owner as defendant 6 now was.
25. The relevant section on the above question is Section 42, Illustration (e) of the Specific Relief Act, 1877 (Act I of 1877). Section 42 with Illustration (e), omitting the Explanation and the other Illustration, is to the following effect:
“42. Discretion of Court as to declaration of status or right. — Any person entitled to any legal character, or to any right as to any property, may institute a suit against any person denying, or interacted to deny, his title to such character or right, and the Court may in its discretion make therein a declaration that he is so entitled and the plaintiff need not in such suit ask for any further relief:
Provided that no Court shall make any such declaration where the plaintiff, being able to seek further relief than a mere declaration of title, omits to do so.
xxxxxxxxxx
ILLUSTRATIONS.
(e) The widow of a sonless Hindu alienates part of the property of which she is in possession as such. The person presumptively entitled to possess the property if he survives her may, in a suit against the alienee, obtain a declaration that the alienation was made without legal necessity and was therefore void beyond the widow's life time.
xxxxx”
26. Illustration (e) to Section 42 of the Specific Relief Act obviously refers to a Hindu widow's estate and has no reference to a full owner. The right of a reversioner as one of the heirs under S. 42, is limited to the question of preserving the estate of a limited owner for the benefit of the entire body of reversioners; but as against a full owner, the reversioner has no such right. The above view was taken by the Supreme Court in the case just mentioned.
27. For the reasons given above, therefore, under S. 14(1) of the Act, Mayawati, defendant 6, became a full owner of her husband's estate, and, therefore, the suit brought by the plaintiffs could not succeed.
28. Second—Schedules 1 and 2 lands are portion of the property owned and possessed by Sheonandan, and after his death inherited and possessed by widow. These lands have been alienated by Sheonandan's widow, defendant 6, in favour of defendants 1 to 3, and 4 respectively, who are described as defendants first party to the suit. The plaintiffs' case was that these two alienations were fraudulent, collusive, without consideration and without any legal necessity, and, that they are sham transactions. It is definitely alleged by the plaintiffs in paragraph 5 of the plaint, as stated earlier, that defendant 6, after the death of her husband, “entered into and he up till now been in possession and occupation of the entire property left behind by her husband”.
29. It is further mentioned in paragraph 11 of the plaint that the full details of the entire property of Sheonandan, defendant 6, are given in Schedule S. of the plaint, which are not the self acquired property of defendant 6, but the ancestral property coming from the time of the anscestor of Sheonandan. AS admittedly, Schedules 1 and 2 are portions of the property belonging to Sheonandan, on the plaint, therefore, it may be taken that as according to the plaintiffs, the sale deeds executed by defendant 6 in respect of these lands were sham transactions defendant 6 was in possession also of the properties mentioned in Schedules 1 and 2 of the plaint. There can, however, be no doubt that either the vendor, defendant 6, or her vendees, defendants first party, are in possession of Schedules 1 and 2 lands.
30. Even, therefore, if the alienees, defendants first party, are assumed to be in possession of these alienated lands, as they are in possession without any legal tide because their purchases according to the plaintiffs, are sham transactions, defendant 6 must be deemed to be in constructive possession through the defendants first party of schedules 1 and 2 lands also. This view is also supported by the above mentioned decision of the Supreme Court.
31. In the case before the Supreme Court, referred to before, the last male owner of the land in dispute in that suit was Kari Veerappa. After his death, his properties were inherited by his widow Setra Veerawa. Under a will by her husband, she had the authority to adopt a son for the purpose of continuance of his family as he had no issue. The widow, Veerawa, made two attempts to adopt a son in accordance with her husband's will. The first attempt did not accomplish the purpose of the will, as the person alleged to have been adopted died. She, therefore, adopted the second defendant and, this adoption was challenged by the appellant before their Lordships who claimed to be the next reversioner of Veerappa.
32. In those circumstances, it was held by the Supreme Court that even if it be assumed that the second defendant was in actual possession of the estate, his possession was merely permissive and the widow Veeravva must be regarded as being in constructive possession of it through the second defendant, namely, the adopted son, and therefore, in this situation, the property of Veeravva must be regarded in law as being possessed by Veeravva, his widow. Similar is the position in the present case. On the plaintiffs' own case, the sale deeds being sham transactions, illegal and invalid and not binding on them, the possession of the transferees, defendants first party, even assuming they were in possession in accordance with their purchases, must be deemed to be permissive, and, therefore, defendant 6 must be deemed in law to be in constructive possession thereof.
33. For the reasons given above, therefore, even with respect to schedules 1 and 2 lands, defendant 6, being in constructive possession of them, even if it be assumed that the defendants first party were in possession, became the full owner thereof, and, therefore, even in respect of these lands, the plaintiffs had no right to bring the present suit.
34. Third — Alternatively, it was argued that even assuming that the second objection, above mentioned, was not valid in law, defendant 6 being admittedly in possession of schedule 3 lands and she having become full owner thereof, the court should not exercise its discretion given to it under Section 42 of the Specific Relief Act in favour of the plaintiffs, because schedules 1 and 2 lands were only 12 kathas 14 dhurs, whereas schedule 3 lands were 23 bighas 5 kath is 12 dhurs, and, as such, schedules 1 and 2 lands were very insignificant portions of the estate of the husband of defendant 6.
35. In support of his contention, reliance was placed on a decision of the Privy Council in Rani Pirthi Pal Kunwar v. Rani Guman Kunwar, 17 Ind App 107 (PC). Under Section 42 of the Specific Relief Act, which has been reproduced in extenso earlier, there is no doubt that it is in the discretion of the court to make a declaration of status or right of the plaintiff as a claimed.
36. The Privy Council in a case decided under Act VIII of 1859, which preceded the present Specific Relief Act, 1877, in Sree Narain Mitter v. Smt. Kishen Soonduree Dossee, I.A Sup Vol 149 (PC), held that it is discretionary with the Court to grant a declaratory decree or not, and in every case the Court must exercise a sound judgment as to whether at is reasonable or not under all the circumstances of the case to grant the relief prayed for. In dealing with this question, Sir Barnes Peacock, who pronounced the opinion of the Board, at page 162, said:
“It is not a matter of absolute right to obtain a declaratory decree. It is discretionary with the Court to grant it or not, and in every case the Court must exercise a sound judgment as to whether it is reasonable or not under all the circumstances of the case to grant the relief prayed for. There is much more danger in India than here of harassing and vexatious litigation, that the Courts in India ought to be most careful that mere declaratory suits be not converted into a new and mischievous source of litigation”.
The above observation of his Lordship was quoted with approval and assented to in Rani Pirthi Pal Kunwar's case, 17 Ind App 107 (PC) (supra). That case was decided under the present Act of 1877. In that case, the decision of the court below refusing a declaratory decree on the facts and circumstances of that case was upheld.
37. In my judgment, on the facts and circumstances of the present case, also, when the plaintiffs cannot get a declaratory decree in respect of schedule 3 lands, which formed the bulk of the property of the last male owner thereof, it would be in the exercise of sound judicial discretion to refuse a declaratory decree to the plaintiffs in respect of schs. 1 and 2 lands, which are a very insignificant portion of the property of the last male owner, Sheonandan, husband of defendant 6, even if the plaintiffs were entitled to the relief claimed.
38. For the reasons given above, therefore, I hold that the preliminary objections raised on behalf of the respondents are well founded, and, must be upheld. The plaintiffs, therefore, in any view of the matter, cannot succeed in their suit.
39. It is obvious that if the above decision of the preliminary objections is sound, as I think it is, it disposes at once of the case in favour of the respondents, and, in that view, the questions raised on behalf of the appellants need not be determined. But it was seriously pressed on behalf of the respondents that these questions should also be decided, because my judgment was open to appeal, and, if the view taken by me was reversed, by the appellate Court, then, in that event, a remand would become necessary, and, that would be unnecessary harassment to both the parties.
40. Mr. Sharma, however, on behalf of the appellants, suggested that at least the question, whether defendant 8, Rampeyari, was or was not the sister of Sheonandan, may be left open to be determined, if any, when defendant 6 dies, but this course suggested by the appellants was strongly objected to the respondents. I think, in order to save a remand, if necessary, it would be in the interest of both the parties, if I express my concluded opinion on all the three questions raised on behalf of the appellants in this Court, which have already been set out earlier.
41. Appellants' objections: Re: (1):— The trial Judge, on a consideration of the evidence adduced on behalf of the defendants, has held that Rampeyari, defendant 8, is the sister of Sheonandan as alleged by the defendants and not of Kishori, defendant 7, as alleged by the plaintiffs. (After reviewing the evidence his Lordship proceeded:) I would, therefore, affirm the finding of the court below that Ram Peyari, defendant 8, is the sister of Sheonandan, husband of Mayawati, defendant 6, and, therefore, it has rightly been held by the court below that Ram Pyari Debi, defendant 8, being the sister of the husband of defendant 6, was the next reversioner of Sheonandan, and, the plaintiffs could not be considered to be the nearest reversioners of Sheonandan.
42. Re: (2): It was contended on behalf of the appellants that assuming the plaintiffs were the remote reversioners, still they had a right to institute the present suit as defendant 8, Ram Pyari Debi, was in collusion of the widow, defendant 6. In support of his contention, reliance was placed on Rani Anand Kunwar v. Court of Wards, ILR 6 Cal 764 (PC); Ramyad Pandey v. Rambihara Pande, 4 Pat LJ 734 : (AIR 1920 Pat 514) and Mela Ram v. Mt. Bhagi, AIR 1946 Lah 1 (F.B).
43. On the evidence and facts and circumstances brought to my notice on behalf of the appellants, it appears that their allegations that defendant 8 is in collusion of defendant 6 is correct. (His Lordship examined the evidence on the question and proceeded:)
44. On the above evidence, therefore, there is no doubt that defendant 7 is in collusion of defendant 6 and, there is enmity between the plaintiffs and defendant No. 7.
45. It was then urged that there was definite evidence to show that there was collusion between defendant 6 and defendant 7 also. (His Lordship examined the evidence and continued:)
46. In this connection, I may observe that in a case like the present, a practical down-to-the earth thinking is needed and a commonsense appraisal of the situation is required. The case must be determined on the total impression created on the mind of the Court by all the facts and circumstances disclosed in this case. It is open to the Court to lift the veil and look behind the same in order to see who were the real parties and what was the real nature of the transaction. The present case would really come within the dictum that no man can profit from himself. Placing the decisions, relied upon, alongside of the present case, on the above salient leatures of the evidence, there can be no doubt that defendants 7 and 8 are colluding with defendant 6, and, as a matter of fact, all the defendants are in collusion of one another, and, of defendant 6 and, all have combined to non-suit the plaintiffs.
47. The question then arises, what is the effect of this collusion amongst the defendants on the right of the plaintiffs to sue?
48. It is well established by the authoritative decision of the Privy Council in Rani Anand Kunwar's case, ILR 6 Cal 764 (PC) (supra) that as a general rule, a suit brought to impeach the alienation made by a Hindu widow must be brought by the presumptive reversionary heir, that is to say by the person who would succeed to the estate if the widow were to the at that moment. But such a suit may be brought by a more distant reversioner, if those nearer in the line of succession are in collusion with the widow or have precluded themselves from interfering.
49. While laying down the above rule, Sir R.P Collier, who delivered the opinion of the Board in the just mentioned case, at pages 772-73, observed:
“It cannot be the law that any one who may have a possibility of succeeding on the death of the widow can maintain a suit of the present nature, for, if so, the right to sue would belong to every one in the line of succession, however remote. The right to sue must, in their Lordships' opinion, be limited. If the nearest reversionary heir refuses, without sufficient cause, to institute proceedings, or if he has precluded himself by his own act or conduct from suing, or has colluded with the widow, or concurred in the act alleged to be wrongful, the next presumable reversioner would be entitled to sue”.
50. The above Privy Council decision was relied upon by a Full Bench of the Lahore High Court in Mela Ram's case, AIR 1946 Lah. 1 (supra) and, it was observed that the list given in Rani Anand Kunwar's case, ILR 6 Cal 764 (PC) (supra) of the exceptional circumstances in which the more remote reversioners might bring a suit to challenge an alienation by the widow is merely illustrative and is not meant to be exhaustive, and, therefore, if a more remote reversioner sues for a declaration that a transfer of property will not affect his reversionary right, the presence of a nearer reversioner does not bar the suit, if the nearer reversioner is a minor.
51. A Division Bench of this Court also took a similar view and held in Ramyad Panday's case, 4 Pat LJ 734 : (AIR 1920 Pat 514) (supra), that a reversioner, who is not the immediate reversioner but who is the immediate male reversioner, is entitled to sue for a declaration declaring the invalidity of transfers made by the widow of the last male owner notwithstanding that there may be other female lives between him and the estate.
52. On the above authorities, therefore, it is plain that as a general rule, a suit brought to impeach the alienations made by a Hindu widow must be brought by the presumptive reversionary heir, that is to say, by the person who would succeed to the estate if the widow were to the at that moment. But, a more distant reversioner, or, the next presumable reversioner would be entitled to sue, if the nearer in the line of succession is in collusion with the widow, or the nearest reversionary heir refuses without sufficient cause, to institute proceedings, or, in he has precluded himself by his own act or conduct from suing, or, has concurred in the act alleged to be wrongful, or, order wise has precluded himself from interfering.
53. In the present case, on the evidence discussed above, there is no doubt that all the defendants are in collusion of one another, and, defendant 8, although a nearer reversioner in succession, is in collusion with defendant 6, the widow, and, she has precluded herself by her own act and conduct, referred to before, from interfering with the alienations made by the widow, defendant 6, in favour of her (defendant 8's) sons and defendant 4.
54. I, therefore, hold that, in these circumstances, if Sec. 14 of the Act would not have been in force and would not have been applicable to the present case, the suit of the plaintiffs, although they had a contingent reversionary interest in the property of Sheonandan, would have been maintainable.
55. Re: (3):—Mr. Sharma, lastly, contended that even if the finding of the court below that the impugned sale deeds (Exts. A and 2) were not fraudulent and were for consideration, be accepted, these two alienations cannot be binding on the plaintiffs, because they were not for legal necessity or benefit of the estate, and, the finding of the court below to the contrary is erroneous in law.
56. He further submitted that, under no circumstances, an alienation for digging a well, when already there was a well in existence, could be considered to be a legal necessity under the Hindu law. In support of his contention, he relied on two Bench decisions, one of his Court in Thakur Prasad v. Musammat Dipa Kuer*, AIR 1931 Pat 442 : ILR 10 Pat 352, and the other of the Lahore High Court in Munshi Lal v. Mt. Shiv Devi, AIR 1924 Lah 137 : ILR 4 Lah 336.
57. Before, however, I consider the above argument, put forward on behalf of the appellants, it would be useful, at first, to know the scope of the of alienation of a widow of the estate inherited her from her deceased husband.
58. This question, therefore, raises the consideration of the subject of the power of a Hindu widow over such property belonging to her husband to which she had succeeded immediately on the death of her childless husband, as here. We are, however, in the present appeal, concerned with only one aspect of this subject, and, that is, her power of alienation for certain specific purpose.
59. As a leading case, on the power of alienation, which may be alienation to any One whether an heir or not, of a widow, may be taken the earliest decision of the Privy Council in Collector of Masulipatam v. Cavaly Vencata Narrainapah, 8 Moo Ind App 529 (PC), which was later referred to with approval by the Judicial Committee of the Privy Council in Rangaswami Gounden v. Nachiappa Gounden, AIR 1918 PC 196 : 46 Ind App 72 and Sardar Singh v. Kunj Behari Lal, AIR 1922 PC 261 : 49 Ind App 383. These decisions were also followed by this Court in Thakur Prasad's case, AIR 1931 Pat. 442 : ILR 10 Pat 352 (supra), and, also by the Lahore High Court in Munshi Lai's case, AIR 1924 Lah 137 : ILR 4 Lah. 336 (supra), relied upon by the appellants. This question has also been considered by our Supreme Court in Kalishankar Das v. Dhirendra Nath, AIR 1954 SC 505 : (1955) 1 SCR 467 and Kamla Devi v. Bachulal Gupta, AIR 1957 SC 434 : 1957 SCR 452.
60. It is not necessary, however, to deal with the above cases individually; but the principles which clearly emerge on examination of the above decisions may be re-stated here. They are as hereunder:
Nobody has vested right in the estate during the lifetime of a Hindu widow. If there be collateral heirs of the husband, the widow cannot of her will alien the property except for special purposes. The purposes for which alienation is legitimate may be summarised as religious or charitable purposes, and, those which are supposed to conduce to me spiritual welfare of the husband or necessity. For religious or charitable purposes, or those which are supposed to conduce to the spiritual welfare of husband, she has a larger power of disposition than that which she possesses for purely worldly purposes. To support alienation for the last, that is, for purely worldly purposes, she must show necessity. Necessity must be proved, and, the mere recital in the deed of alienation is not sufficient proof. An equitable modification, however, has also been admitted in the case where the alienee has in good faith made proper enquiry and been led to believe that there was a case for true necessity.
61. When, therefore, the alienation of the whole or part of the estate is to be supported on the ground of necessity, then, if such necessity is not proved aliunde and the alienee does not prove inquiry on his part and honest belief in the necessity, the alienation is invalid. If, however, there be consent to such an alienation of such reversioners as might fairly be expected to be interested to quarrel with the transaction, will be held to afford a presumptive proof which, if not rebutted by contrary proof, will validate the transaction as a right and proper one.
62. The Hindu system, therefore, recognises only two sets of religious acts. One is in connection with the actual obsequies of the deceased, and the periodical performance of the obsequial rites prescribed in the Hindu religious law, which are considered as essential for the salvation of the soul of the deceased. The other relates to acts, which although not essential or obligatory are still pious observances which conduce to the bliss of the deceased's soul. With reference to the first class of acts, the powers of the Hindu female, who holds the property, are wider than in respect of the acts which are simply pious and if performed are meritorious so far as they conduce to the spiritual benefit of the deceased.
63. In one case, if the income of the property, or the property itself, is not sufficient to cover the expenses, she is entitled to sell the whole of it. In the other case, she can alienate a small portion of the property for the pious or charitable purpose she may in view. It is, however, absolutely impossible to define the extent and limit of the power of the widow to dispose of her husband's property for religious purposes, because it must depend upon the circumstances of the disposition whenever such disposition shall be made, and must be consistent with the law regulating such disposition: 49 Ind App 383 : AIR 1922 PC 261.
64. The position, therefore, is that if there is be necessity in fact or, if the alienee from the widow could not prove that he made bona fide enquiries and was satisfied about its existence, the transfer is undoubtedly not void, but the transferee would get only the widow's estate in the property which does not affect in any way the interest of the reversioner. In such a case, an alienee Cannot claim any higher rights than what his transferor had.
65. Where, therefore, on alienation by a Hindu widow is challenged on the ground of want of legal necessity or benefit of estate, the most important thing that would require consideration is the state of things actually existing at the time when the alienation was made.
66. If, therefore, an alienee from a Hindu widow succeeds in establishing that there was legal necessity for transfer, he is completely protected, and it is immaterial that the necessity was brought about by the mismanagement of the limited owner herself. It there is no necessity in fact, but it is proved that there was representation of necessity and the alienee, after making bona fide enquiries satisfied himself as best as he could that such necessity existed, then the actual existence of a legal necessity is not a condition precedent to the validity of the sale: per B.K Muklierjea, J. (as he then was) in AIR 1954 SC 505.
67. Having thus ascertained the scope of the power of alienation of a Hindu widow let us now see, applying the above principles to the present case, if the necessity alleged can be considered to be a legal necessity, or, if the alienee, on representation of necessity, as alleged, made bona fide enquiries and was satisfied that such necessity existed, in which either case only, the alienation here can be validated as right and proper ones.
68. It would appear from the sale deed in favour of defendants 1 to 3 (Ext. A) that 11 kathas 9 dhurs of nakdi Kaimi Jot lands and rent free lands for residential purposes out of Kaimi Nakdi jot in mauza Mehsauri were transferred for a sum of Rs. 500/- “to dig out a brick-built well” for her benefit in the next world. This alienation is in favour of the three sons of defendant 8. In the second sale deed (Ext. 2) executed by defendant 6 in favour of defendant 4, who is a stranger to the family of the parties, 1 katha 5 dhurs of nakdi Kaimi Jot in the same village Mehsauri were sold for Rs. 50/- “for meeting soma necessary expenses”.
69. We, therefore, find from the recitals in the two sale deeds themselves that the first alienation (Ext. A) was for digging out a brick built well not for the spiritual benefit of her deceased husband but for her own benefit in the next world; and, in the case of the second alienation (Ext. 2) no particular necessity is specified at all. It however appears from the evidence of D.W 15, defendant 4, that defendant 6 sold the land to him also for sinking a well near her house on the land which had been purchased by defendants 1 to 3 under Ext. A.D.W 15 further admitted that the fact that defendant 6 was selling her land to him for sinking a well in the land was not noted in the kebala (Ext. 2). Defendant 6, who was examined as D.W 1 on commission, also admitted that the well sunk by her, which was just outside her house, stood on the same land which she had sold to defendants 1 to 3 under Ext. A, which was belagan land.
70. Defendant 8, who was also examined on commission as D.W 2, also admitted that the well sunk by defendant 6 was on the found which had been purchased by her sons, defendants 1 to 3. D.W 18, defendant 1, further made a very significant statement, in that, he admitted that there was; another well already in existence besides the well constructed by her for which she alienated the lands. These alienated lands were admittedly homestead lands. Defendant 6 (D.W 1 examined on commission) admitted in her cross-examination that she had 16 or 17 bighas of land at Mahasauri, 5 bighas at Marar and 2½ bighas at Amini. D.W 15 also admitted that defendant 6 had about 25 or 30 bighas of land in all.
71. The facts, therefore, which emerge from the above evidence are; (1) that defendant 6 was possessed of 25 or 30 bighas of land in all and (2) that there was already a well in existence there near her house.
72. On these facts, therefore, it is obvious that defendant 6 was possessed of sufficient property, out of the income of which, if she wanted, she could have easily constructed another well, and further that as she had already a well in existence, there was no necessity for her digging another well, and, for alienating any land for raising money for this purpose. For these reasons, I hold, in disagreement with the court below, that the sale deeds (Exts. A and 2), although genuine and for consideration, were not at all or any legal necessity.
73. The purchaser under Exhibit 2, defendant 4, who was examined as D.W 15, stated that he did not enquire from the malik's sherishta as to whose name stood recorded with respect to the lands sold to him. He, however, said that he made enquiries and learnet that defendant 6 received the money for which she sold the land to him for digging a well, and this enquiry he made from defendant 6 herself. Defendant 1, one of the alienees under Ext. A, examined himself as D.W 18. He admitted that defendants 1 to 3 had no property in Mehsauri before they purchased the property in question. He further stated that he made enquiries from Jamuna, plaintiff 1, Kishori, defendant 7, and Mayawati, defendant 6, about the necessity for which she was transferring her land to him.
74. He, however, admitted that he did not get his sale deed attested by any gotia after it was executed or before it was registered. He further admitted that he did not make any enquiry in the malik's sherishta before he purchased as to whose name was recorded in respect of the jot land which he and other brothers had purchased from defendant 6, nor did he ask defendant 6 to show him the receipts for the land. On the above evidence, it cannot, therefore, be said that the alienees had made bona fide enquiries and were satisfied about the existence of the necessity.
75. The mere fact that there was already a well in existence of defendant 6 should have at once put the alienees, if they were bona fide purchasers, on the guard to find out the necessity, if any, and would have satisfied them that the necessity alleged by defendant 6 did not exist at all.
76. For these reasons, I would hold that the transferees, the defendants first party, did not make any bona fide enquiry, nor did they satisfy themselves about the existence of the necessity.
77. For the reasons given above, therefore, I would hold, in disagreement with the court below, that the sale deeds were invalid and were not proper and right ones.
78. On the above ground, no doubt, the plaintiffs would have been entitled to a decree declaring the alienations not binding on them, even if they had contingent reversionary interest in the estate of Sheonandan, but due to the provisions of Set. 14(1) of the Act, as held above, they have now no right to challenge the alienations of lands by the full owner thereof, because under the Act defendant 6 got absolute right to the same.
79. For the reasons given above, although not for the reasons given by the trial Judge, the plaintiffs' suit has rightly been dismissed.
80. The result, therefore, is that the appeal fails and is dismissed but, in the circumstances of the present case, the parties will bear their own costs of this Court.
81. Regarding the cost of the court below, as the plaintiffs would have succeeded in the suit on my finding, on the facts and circumstances of the present case, that the plaintiffs, although remote reversioners, had the right to maintain the suit, and, that the sale deeds were not for legal necessity; at as they are being non-suited, because of Section 14(1) of the Hindu Succession Act, 1956, which came force during the pendency of the present appeal, I think the decree for cost passed against the plaintiffs in favour of the defendants should be set aside. I would, therefore, direct that the parties do bear their own costs of the court below also.
AD/R.G.D
82. Appeal dismissed.