Translate
Text Highlighter

Bookmark

PDF

Share

Report a problem
AMICUS AI
Citation Codes
Equivalent Citations
citation codes
Case Number
Attorney(S)
  • Babu Piari Lal Banerji, for the appellant.
  • Dr. Kailas Nath Katju, Munshi Panna Lal and Pandit Shiam Krishna Dar, for the respondents.
Judges
  • Lindsay
  • Banerji, JJ.
Acts
  • Section 1, Clauses 27 and 28. Clause 27
Are you a practicing lawyer?
Enhance your digital presence and reach by creating a Casemine profile.
Upload pleading to use the new AI search
Click here to upload
Cites
Cited by
Citation Codes
Equivalent Citations
citation codes
Case Number
Attorney(S)
  • Babu Piari Lal Banerji, for the appellant.
  • Dr. Kailas Nath Katju, Munshi Panna Lal and Pandit Shiam Krishna Dar, for the respondents.
Judges
  • Lindsay
  • Banerji, JJ.
Acts
  • Section 1, Clauses 27 and 28. Clause 27
See more information ...
Smart Summary

Structured Summary of the Provided Opinion

Factual and Procedural Background

The appellant (an unsuccessful plaintiff) sued in the Subordinate Judge's Court at Aligarh seeking to avoid a sale executed under a decree. The decree had been obtained on the basis of two mortgages executed by a widow, Mt. Lachman Kuar; the appellant claimed to be the reversioner and contended that those mortgages were executed without legal necessity and therefore neither the mortgages nor the decree bound the estate in his hands. Multiple defendants were impleaded, including the auction-purchaser; some defendants (the second party) had taken transfers from the first-party defendants.

The Subordinate Judge dismissed the plaintiff's suit, finding that the two mortgages had been executed out of legal necessity and were binding on the estate. The plaintiff appealed. Before this Court a point of law—not distinctly raised below and not included in the memorandum of appeal—was permitted to be argued.

Relevant historical facts accepted in the record: the property belonged originally to Tej Singh (died 28 January 1873), who left two widows, Mt. Lachhman Kuar (d. 24 Nov 1911) and Mt. Chhattar Kuar (d. 8 Apr 1922). After the death of the last surviving widow, the appellant is admitted to be the nearest male heir (reversioner). Jawahir Singh (Tej Singh's brother) had initially seized the estate and defended possession on survivorship grounds, but the widows sued (O.S. No. 146 of 1873) and obtained judgment in their favour which was affirmed on appeal to the High Court (dismissal of Jawahir Singh's appeal dated 19 July 1875).

The widows partitioned the estate for convenient enjoyment; the remaining property consisted of a 10-biswas share in the village Dhori. The two mortgages in dispute were executed by Mt. Lachhmin Kuar on 19 January 1895 and 12 January 1897 for sums and purposes recited in the deeds — partly to pay land revenue (kharif instalment) and partly sums received for food or previously advanced. The courts below found these alienations to have been made for legal necessity.

Legal Issues Presented

  1. Whether the Subordinate Judge's factual finding that the two mortgages executed by Mt. Lachhmin Kuar were made out of legal necessity and therefore bound the estate should be disturbed on appeal.
  2. Whether an alienation (sale, mortgage or donation) made by one co-widow, even if made for legal necessity, can bind the reversioners unless all co-widows join in the alienation — i.e., whether the consent or joining of the other co-widow is constitutionally required to bind the reversioner.

Arguments of the Parties

Appellant's Arguments

  • The appellant (plaintiff) asserted that the two mortgages had been executed without any legal necessity and therefore neither the mortgages nor the decree based upon them bound the estate in the hands of the reversioner.
  • Mr. Peary Lal (arguing on behalf of the appellant) further contended that even if an alienation by one co-widow were made for legal necessity, it could not bind the reversioners unless the co-widow joined in the alienation (relied upon certain propositions extracted from a recent Madras High Court ruling).

Respondent(s)' Position (as reflected in the record)

  • The court below (Subordinate Judge) concluded that the two mortgages were executed for legal necessity and were binding on the estate. This position is reflected in the respondents' successful defence of the sale in execution and the decree supporting it.
  • The current Court also treated the circumstantial evidence as indicating that the co-widow Mt. Chhattar Kuar had consented to the alienations; in any event, the Court held that such consent/joining was not necessary to bind the estate where legal necessity existed.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
V. Appalasuri v. Kannamma Nayuralu, A.I.R. 1926 Mad. 6 Set out six propositions regarding co-widows; relied upon (by appellant's counsel) for the propositions that (i) an alienation by one co-widow cannot bind the reversioner and (ii) if an alienation for necessity is to bind the reversioners all co-widows must join. The Court considered these propositions but rejected the fifth and sixth as stated. The Court held they were laid down too broadly and declined to accept them as an absolute rule.
Bhugwandeen Doobey v. Myncbaee [1866] 11 M.I.A. 487 Supports the established principle that two co-widows succeed as co-parceners and the general rule that one coparcener cannot alienate without the consent of the other. The Court acknowledged this authority as establishing the general rule as to coparcenary among co-widows, but treated it alongside the recognized exception in the Mitakshara (Clause 28) permitting alienations in seasons of distress for the family's sake.
Thakurmani Singh v. Dai Rani [1906] 33 Cal. 1079 Held that a mortgage by one widow without the consent of the other was binding on the reversioner to the extent the debt secured was incurred for legal necessity. The Court cited this case as supporting the present Court's conclusion that a mortgage by one widow can bind the reversioner where the debt was for legal necessity.

Court's Reasoning and Analysis

The Court proceeded in a sequence of factual and legal determinations anchored in the record:

  1. Factual findings: The historical record showed that after Tej Singh's death the widows obtained possession following successful litigation, that the estate was partitioned for convenient enjoyment, and that the only remaining property in the widows' possession was a 10-biswas share in Dhori. The two mortgages (19 Jan 1895 and 12 Jan 1897) executed by Mt. Lachhmin Kuar recited advances for food and payments to meet land-revenue (kharif instalments).
  2. Lower-court finding: The Subordinate Judge found (and the Court below's judgment is on the record) that the alienations were made for legal necessity; the present Court treated that factual conclusion as central to the dispute on appeal.
  3. Legal question considered by this Court: The Court addressed whether an alienation by one co-widow, even if for legal necessity, could bind reversioners absent the join­ing or consent of the other co-widow. This legal point had not been pressed below but the Court allowed argument on it.
  4. Evaluation of authority: The appellant relied on a Madras decision (V. Appalasuri) that articulated propositions (fifth and sixth) to the effect that one co-widow cannot bind the reversioner and that all co-widows must join for an alienation for necessity to bind. The Court declined to accept those propositions in the breadth stated.
  5. Distinctions and doctrinal analysis: The Court distinguished between two classes of cases — disputes between an alienee of one co-widow and the surviving co-widow, and claims by a reversioner after the death of both widows — and focused on the latter class (the present case). The Court observed that Hindu law (as reflected in Mitakshara, Ch. 1, Clauses 27–28) contains an express exception allowing an individual coparcener to conclude a donation, mortgage or sale of immovable property during a season of distress for the sake of the family (Clause 28). The Court reasoned that co-widows are coparceners in the strictest sense and therefore that the Mitakshara exception applies to co-widows as well.
  6. Application to facts: Applying that exception, the Court held that where a co-widow has been compelled by legal necessity to alienate part of the estate in her possession, such an alienation can bind the reversioners. The Court also found, on circumstantial evidence, that Mt. Chhattar Kuar had consented to the alienations; but the Court expressly held that even without such consent the existence of legal necessity sufficed to bind the estate.
  7. Reliance on supportive authority: The Court cited Thakurmani Singh v. Dai Rani as a decision that supports the proposition that a mortgage by one widow without the other's consent can be binding to the extent the secured debt was incurred for legal necessity.

Holding and Implications

Holding:

THE APPEAL IS DISMISSED. The Court affirmed that the two mortgages were executed for legal necessity and that the estate is bound by those alienations. The appeal therefore fails and is dismissed with costs.

Implications:

  • Direct effect: The mortgage-deeds executed by Mt. Lachhmin Kuar (dated 19 January 1895 and 12 January 1897) are held to bind the estate in the hands of the reversioner; the sale in execution under the decree stands, and the appellant's challenge to avoid the sale is rejected.
  • Legal clarification: The Court clarified that the proposition that an alienation by one co-widow cannot bind the reversioner unless all co-widows join is too broadly stated. The Court applied the Mitakshara exception (Ch. 1, Clause 28) to hold that an alienation by one co-widow made for legal necessity may bind reversioners; the Court also noted that circumstantial evidence indicated the co-widow's consent in this case, but held consent was not a pre-requisite where legal necessity existed.
  • Precedential note: The Court expressly declined to accept certain propositions from the Madras decision cited by counsel and relied on earlier decisions (including Thakurmani Singh) in support of its conclusion. The decision thus resolves the issues in this dispute by applying established doctrine and textual authority (Mitakshara) rather than creating an unprecedented rule beyond what is discussed in the opinion.

This summary is based exclusively on the content of the supplied opinion and does not add or infer information beyond that text.

Show full summary ...

    Jai Narain Singh v. Munna Lal

    1. The appellant in this case is an unsuccessful plaintiff who brought a suit in the Court of the Subordinate Judge of Aligarh for the purpose of avoiding a certain sale in execution of a decree.

    2. The decree under which this sale took place had been passed against a widow, Mt. Lachman Kuar, on the basis of two mortgages executed by her, and the case for the plaintiff, who claimed to be the reversioner, was that these two mortgages had been executed by Mt. Lachman Kuar without any legal necessity and that consequently neither they nor the decree which was obtained upon them bound the estate in his, the plaintiff's, hands. A number of defendants were impleaded, one of them being the auction-purchaser. The defendants second party are said to be persons who have taken transfers from the defendants first party.

    3. The Subordinate Judge dismissed the plaintiff's suit, being of opinion that the mortgages just referred to had been executed for legal necessity and were binding upon the estate. This finding of the Subordinate Judge is challenged here in appeal and there has also been raised before us a question of law which, though not raised distinctly before the Subordinate Judge, has been allowed to be argued before us.

    4. Before coming to the points which have to be determined it is necessary to set out a few facts regarding the history of the property in question and of the family to which it belonged. It is admitted that the property belonged at one time to a man named Tej Singh who died on the 28th January 1873. Tej Singh left surviving him two widows, Mt. Lachhman Kuar and Mt. Chhattar Kuar. Of these the former died on 24th November 1911 and the latter on 8th April 1922. Admittedly, after the death of the last surviving widow, the plaintiff-appellant is the nearest male heir of Tej Singh.

    5. Taj Singh had a brother named Jawahir Singh, and the documentary evidence on the record shows that immediately after the death of Tej Singh the estate which had been in Tej Singh's possession was seized by Jawahir Singh. The case which Jawahir Singh put up was that he and Tej Singh were members of a joint Hindu family and that he, Jawahir Singh, was entitled to all the property by survivorship.

    6. The two widows of Tej Singh, Lachman Kuar and Chhattar Kuar, thereupon brought a suit in the Court of the Subordinate Judge of Aligarh (O.S. No. 146 of 1873) for recovery of property belonging to Tej Singh. The case for the widows was that Tej Singh was separated in his estate from his brother Jawahir Singh and that they, as widows of Tej Singh, were entitled to possession. The suit was decreed by the Subordinate Judge, copy of whose judgment is on the record at pp. 36 to 44, An appeal was taken to the High Court and the judgment of the Subordinate Judge was affirmed. The High Court dismissed Jawahir Singh's appeal on 19th July 1875.

    7. It will thus appear that after the death of Taj Singh these widows were involved in litigation which must have been expensive and it also appears from the record of the suit filed in 1873, that Tej Singh at the time of his death was indebted to a large extent. Jawahir Singh in that suit had raised a plea that Tej Singh had incurred debts.

    8. There can be no doubt that after the widows thus obtained possession of the estate of their husband they came to an arrangement by which they partitioned the property for the purpose of convenient enjoyment, but it is necessary to state here that the only property that was left to these widows was a 10-biswas share in a village called Dhori. (The judgment then dealt with a sale-deed executed by both these widows on 2nd May 1898, giving in great detail the history of the family and of the property and proceeded.) To come now to the two mortgages with which we are particularly concerned in the present case. They are respectively of the dates 19th January 1895 and 12th January 1897. The first of these mortgages executed by Lachhmin Kuar was in favour of one Chhatar Mal who subsequently assigned his interest to Chhatar Singh. In this document, at p. 51, it is stated that Rs. 300 have been taken from the mortgagee in order to pay the revenue due for the kharif instalment for 1302 Fasli. It is also recited that a sum of Rs. 50 had been received by Mt. Lachhmin Kuar previous to the execution of the deed. By this document four biswas out of five biswas in the possession of Mt. Lachhmin Kuar in mauza Dhori were mortgaged by way of security. The second mortgage executed by the same lady in favour of Chhatar Singh on 12th January 1897 was for Rs. 500. In this document it is stated that she had received Rs. 271 in cash for food, and that the balance, Rs. 229, had been borrowed in order to pay the land revenue due for the kharif instalment. (The judgment then discussed the evidence of necessity and held as follows.) We hold, therefore, that the alienation made by Mt. Lachhmin Kuar were for necessity, and we also hold that Mt. Chhatar, her co-widow, was a consenting party to these alienations.

    9. We come now to the point of law which was raised here and which, as we have said, was not raised in the Court below. Indeed, the point is not taken in the memorandum of appeal, but the question being one of law we thought it proper to hear the learned Counsel on both sides.

    10. Mr. Peary Lal put forward the argument that the alienation made by Mt. Lachhmin Kuar, even if it was found to have been made for legal necessity, could not bind the reversioners unless the co-widow joined in the alienation. We have already indicated our opinion that from the circumstantial evidence it must betaken that Mt. Chhatar Kuar was a consenting party to this alienation although it is certainly true that she did not join in executing the two mortgage-deeds of 1895 and 1897 respectively.

    11. In support of his argument Mr. Peary Lal relied on a recent ruling of the Madras High Court which is reported in V. Appalasuri v. Kannamma Nayuralu A.I.R. 1926 Mad. 6. In this case the learned Judges, after reviewing all the authorities which deal with the legal position of co-widows, have set out six propositions which they have deduced from the previous authorities. Mr. Peary Lal relies on the fifth and sixth of these propositions The fifth proposition is thus state 1 at p. 486 of the judgment:

    Except for the limited purposes mentioned above, that is, during the lifetime of the alienee in a partition of the first kind or during the lifetime of all the co-widows in a partition of the second kind, there can be no alienation by a widow of her interest; and whether there is necessity or not, an alienation by one co-widow cannot bind the reversioner.

    12. The sixth proposition is stated in the following language:

    If an alienation for necessity is to bind the reversioners all the co-widows must join in it.

    13. We are not prepared to accept either of these propositions as stated. We have examined for ourselves all the case-law on this subject beginning with Bhugwandeen Doobey v. Myncbaee [1866] 11 M.I.A. 487. It must be taken as well established that two co-widows succeeding to the estate of a deceased husband take the property as co-parceners in the strictest sense, and as such the general rule regarding alienation would be that there could be no alienation by one without the consent of the other.

    14. The cases fell into two classes. In some of them the contest has been between the alienee of one co-widow and the surviving co-widow. In others there has been a claim put forward by the reversioner against the alienee after the death of both the widows.

    15. It is necessary to keep these two classes of cases distinct. We need not enter into a decision of the cases in so far as they relate to claims by the survivor of two co-widows against the alienee of the other co-widow. We are dealing hero with a claim made by the reversioner after the death of both the widows. Where there is a single Hindu widow the reversioner is bound by any alienation made by her of her husband's estate for legal necessity. It follows, therefore, that if there are two widows and they both join in a sale or mortgage to raise money for legal necessity, the reversioners are bound, and they are bound because of the existence of a necessity which justifies the alienation. How then does the case stand where the two widows have separated for purposes of conveniently enjoying the estate left by the husband? Is it to be said that if one of the widows, acting under the pressure of legal necessity, is obliged to alienate a portion of the estate in her possession the reversioner is not to be bound? It seems quite clear that the existence or non-existence of legal necessity cannot depend upon the consent of the other widow. Take the case of two co-widows, one of whom has three daughters whom she is obliged to marry; her co-widow has no daughters. Or take again the case of one co-widow who is in easy circumstances and who can depend upon her own relations for support in a time of distress, while the other widow has no such resources at her disposal. Is it to be said that because the widow who is well-to-do refuses her consent to an alienation made by the other widow in circumstances which render the alienation necessary the estate is not to be bound? We do not think that any authority for such a proposition is to be deduced from the reported cases. It is no doubt true that co-widows succeeding to the estate of their husband are undivided coparceners and the general rule of course is that one coparcener is not entitled to alienate without the consent of the other. It is also true that no arrangement made by the widows for the separate enjoyment of portions of the estate can destroy their legal position as coparceners. But is it correct to say that in no case can a coparcener alienate without the consent of the other? The Hindu law does not say so, and in this connexion we would refer to a passage in the Mitakshara, Ch. 1. Section 1, Clauses 27 and 28. Clause 27 deals with the general law regarding the rights of disposal by one coparcener, but Clause 28 declares an exception on that general rule and lays down that even a single individual may conclude a donation, mortgage or sale of immovable property during a season of distress for the sake of the family and especially for pious purposes.

    16. If that is the Hindu law to be applied to the case of coparceners there can be no reason in principle why it should not be applied to two co-widows who, according to all the decided cases, are coparceners in the strictest sense, and it seems to us therefore that if there are two co-widows enjoying their husband's estate as coparceners, one of them can, under the exception to the rule we have just quoted, conclude a donation, mortgage or sale of immovable property during a season of distress for the sake of the family and especially for pious purposes." That being so, we are not prepared to accept the argument that, even where legal necessity exists, an alienation by one co-widow will not bind the estate unless the other co-widow joins in the alienation. The proposition has in our opinion been laid down far too broadly and the exception contained in the Mitakshara, Ch. 1 Clause 28, has not in our opinion been kept in mind. In the course of the discussion one case has been referred to, Thakurmani Singh v. Dai Rani [1906] 33 Cal. 1079. That, in our opinion, supports the conclusion at which we have arrived. In that case it was held that a mortgage by one widow without the consent of the other was binding on the reversioner to the extent that the debt secured by the mortgage was incurred for legal necessity.

    17. Holding, therefore, that there was legal necessity in this case and being of opinion that Mt. Lachhmin Kuar was entitled for legal necessity to alienate this property without the consent of her co-widow Mt. Chhatar Kuar, we are of opinion that the estate is bound. But, as we have said, it must be taken that Mt. Chhatar Kuar did consent to this alienation, and while it is true that she did not actually join as a party in the two mortgages executed by Mt. Lachhmin Kuar, we hold that it was not necessary for the purpose of binding the estate in the hands of the reversioners that she should do so.

    18. The appeal therefore fails and is dismissed with costs.

    Use AI to get other relevant cases.
    Try AI Pro free for 7 days Upgrade to AI Pro

    Comments

    Jai Narain Singh v. Munna Lal
    (Dec 2, 1927)