Ghasnin Dauram v. Kaushalya And Others

T. C. Shrivastava J.:-

This appeal under clause 10 of the Letters Patent has been filed by Mst. Ghasnin against the judgment in Second Appeal No. 937 of 1955, decided on 7-8-1958. A cross-appeal has been filed by respondent No. 1 Mst. Kaushalya. The learned single Judge, who decided the second appeal, granted leave to both the parties to file appeals. The judgment disposes of both the appeal and the cross-appeal.

2. The appellant Mst. Ghasnin is the daughter of one Daji, respondent No. 2 Mst. Sonki is his widow and Mst. Fulki (respondent No. 3) is his daughter. Daji died on 25-8-1947 leaving behind his widow Mst. Sonki and two daughters Mst. Ghasnin and Mst. Fulki as also a son Mehtar. Mehtar died in September 1947. Daji had executed a will bequeathing his lands and house to his son Mehtar and therefore after his death, Mehtar succeeded to the property. After Mehtar's death, his mother Mst. Sonki (respondent No. 2) succeeded to the estate.

3. On 17-6-1948, Mst. Sonki executed a registered sale deed (Exh. P-2) in favour of Mst. Kaushalya (respondent No. 1) conveying her occupancy lands, area 5.30 acres, for Rs. 1,500 only. On 22-6-1948, she executed another sale deed (Exh. P-3) in favour of one Lachhman, who was impleaded as defendant No. 2 in the suit, but has not been impleaded in this appeal. Mst. Fulki was impleaded as a defendant in the suit, as he refused to join as a plaintiff.

4. The appellant alleged that the transfers, which were made in favour of respondent No. 1 Mst. Kaushalya and respondent No. 2 Lachhman, were without any legal necessity and are not binding on her. Mst. Sonki remarried in 1948 and therefore the plaintiff-appellant became entitled to possession of the pro­perties left by Daji as his heir.

5. We need not refer to the alienation made in favour of Lachhman, as that transaction is no longer in dispute.

6. Respondent No. 1 Mst. Kaushalya pleaded that the sale in her favour was for a cash consideration of Rs. 1,500 which was needed by Mst. Sonki partly for performing the obsequies and the immersion of the bones of Daji in the Ganges and partly for constructing a temple. She pleaded that she had made necessary enquiries regarding those necessities and had purchased the property after satisfying herself that the need existed.

7. The trial Court and the appeal Court decreed the suit holding that the necessity for the alienation had not been proved nor were the alleged enquiries by the vendee. The learned single Judge, however, held that Rs. 500 were spent in performing the obsequies etc. and the alienation was for legal necessity to that extent. The alienation, so far as it related for the purpose of raising money to construct a temple, was not upheld on the ground that the whole of the property could not be alienated for such a purpose. Accordingly, the appeal was partly allowed and the claim of the appellant for possession was decreed subject to her paying Rs. 500 to respondent No. 1 Mst. Kausbalya. In the appeal the appel­lant prays that she should be relieved of the condition to pay Rs. 500. In the cross-appeal, respondent No. 1 prays that the alienation should be wholly upheld, as the amount which was intended to be spent for constructing a temple justifi­ed it.

8. Shri N. N. Pande for the appellant raised a preliminary objection to the hearing of the cross-appeal. The cross-appeal has been filed under Order 41, rule 22 of the Civil Procedure Code within thirty days of the notice served on respondent No. 1 regarding the appeal. Although leave was granted to file appeals under clause 10 of the Letters Patent, Shri Pande contends that the pro­vision relating to filing of a cross-appeal under Order 41, rule 22, has no application to appeals filed under the Letters Patent. It is true that the Letters Patent does not provide directly for filing of cross-appeals. However, the pro­visions of the Civil Procedure Code are applicable to appeals filed thereunder and, in our opinion, Order 41, rule 22 also applies. This is the view which was taken in Khazanchi Shah v, Nias Ali, AIR 1940 Lab. 438. Accordingly, we hold that the cross-appeal is tenable.

9. Shri N. N. Pandey for the appellant contends that the alienee has failed to prove that there was any pressure on the estate at the time of alienation or that the estate derived any benefit from the alienation. In reply, Sbri R. K. Pandey for the respondent No. 1 rightly points out that alienations by widows may be supported either for (i) religious or charitable purposes or (ii) for other purposes amounting to legal necessity. To justify an alienation for a religious or charitable purpose, it is not necessary to show any benefit to the estate or to prove any pressure on the estate such as is necessary in the case of an alienation for other purposes. [See para. 181-A of the Principles of Hindu Law by Mulla, 12th Edition, page 257].

10. Religious acts themselves fall into two classes, viz., (i) those which are obligatory, like performance of the funeral and sradh ceremony of the deceased owner and (ii) those which are not essential or obligatory, like religious or charit­able acts which conduce to the spiritual welfare of the deceased. For the first purpose the widow can alienate the whole of the property, but for the second she can alienate only a reasonable part thereof. This view was taken in Sardar Singh v. Kunj Bihari Lal, AIR 1922 P C 261 which has been referred to in Kamla Devi v. Bachulal Gupta, AIR 1957 SC 434. Their Lordships of the Supreme Court have approved of the principle. Alienations for pious purposes and wordly purposes were distinguished in Vishwanath v. Narayan, AIR 1035 Nag. 217 and the position has been stated thus:

"The dispositions made by a Hindu widow for pious or charitable purposes must be clearly distinguished from her alienations for purely wordly purposes. While she has in­disputable power in respect of the former, she has none in respect of the latter, unless legal necessity exists. If the disposition is proved to have been made for a pious or charitable purpose, it is incumbent on the party impeaching it to prove its impropriety, but if the alienation is for a wordly purpose, the onus is on the person seeking to affirm it of proving the justifying necessity. The pious or charitable gifts are valid and secular alienations are invalid unless respectively the contrary is proved. The widow does not however enjoy an unlimited power of disposition even for pious and charitable purposes. The validity of such dispositions must be judged in the light of considerations of prudence and propriety. A widow's disposition for a charitable or religious purpose must be upheld unless it appeals to be reckless, improvident and extravagant."

11. So far as the performance of the obsequies and the dipping of the bones of the deceased in the Ganges are concerned, they are essential and obligatory ceremonies which Mst. Sonki was bound to perform. The fact that she did not inherit the estate of Daji directly as a widow but inherited it as a mother of Daji's son Mehtar would make no difference, as Mehtar himself was bound to perform these ceremonies for his father and likewise Mst. Sonki would also be bound. The construction of a temple, however stands on a different footing. It is not an obligatory act but is a religious or pious act which confers spiritual benefit on the soul of the deceased. For this latter purpose, therefore, the alienation of the whole of the property could not be justified; but only of a reason­able part.

12. We will first consider the necessity for performing the obsequies. Res­pondent No. 1 did not clearly state in her written statement as to how much amount was spent on the two purposes for which the alienation was made. She merely stated that the money was needed for dipping the bones of Daji in the Ganges and did not even refer to any obsequies or caste dinner in her pleadings. However, we agree that giving of a caste dinner after return from performing the immersion is a necessary part of the ceremony as held in Maniruddin v. Aminuddin, AIR 1956 Pat. 142. The learned single Judge has found that Rs. 500 were spent for this purpose. Shri N. N. Pande contends that no evidence has been led by respond­ent No. 1 to show what was spent for these purposes. It is true that there is no evidence on this point; but the fact that Mst. Sonki had gone to the Ganges for immersing the bones has been proved. In performing the ceremony of caste dinner subsequently some money must have been spent by her. Strictly speak­ing it would be necessary to remand the case for determining the actual amount spent; but we do not consider that such a course would be worthwhile in the present case. The finding of the learned single Judge that about Rs. 500 were spent for this purpose may therefore stand.

13. As rsgards the expenditure which was intended to be incurred on a temple, the learned single Judge has proceeded upon the assumption that a Sankalp had been made by the widow to construct it. There is no evidence on record to show that any such Sankalp was ever made. Nor does the evidence show that any temple was later constructed by Mst. Sonki. The only witness on the point is one Ambikaprasad (D.W. 6), father of respondent No. 1 Mst. Kaushalya, and all that he says is that Mst. Sonki had told him that she was going to construct a temple at a cost of Rs. 800 or Rs. 900. He has not even cared to examine any witnesses from whom he made enquiries on this point. The statement of Mst. Sonki or the recital in the sale deed would hardly be sufficient in this case to prove her intention or Sanlalp to build a temple inasmuch aa she herself admits that she was alienating the whole of the property with the in­tention of depriving the daughters of Daji from getting it and had told Ambika-prafad about it. Both the Courts below had held that the enquiries made by the vendee were insufficient. The sale cannot be supported on this ground.

14. Shri R. K. Pandey has pointed out that at the time when the sale in favour of respondent No. 1 was made Mst. Sonki was left with a house which she ultimately sold to Lachhman a few days later. Accordingly, he contends that the alienation was not of the whole of the property. The house which was retained was sold ultimately for Rs. 500 to Lachhman. Its value has been given by the plaintiff as Rs. 2,000 in the plaint. Even assuming that it was of that value, it is obvious that the alienation of all the occupancy lands which Daji had left cannot be considered to be as alienation of a reasonable portion of the estate. In fact, that was the only property which could yield any income and, as Ambikaprasad states, Mst. Sonki told him that she intended to work as a labourer after selling the property. Under these circumstances, there can be little doubt that the alienation cannot be supported.

15. In view of what we have said above, the appeal and the cross-appeal are both dismissed. The parties shall bear their own costs in this Court as in­curred.

Appeal and cross-appeal dismissed.