JUDGMENT
Choudhary, J.
1. This appeal by the plaintiff is directed against the judgment and decree of the First Additional Subordinate Judge of Patna affirming those of the Additional Munsif, Barh.
2. The facts leading to the institution of the suit out of which the present appeal arises, put shortly, are these: The land in suit which bears plot No. 428 of Khata No. 326 and has an area of 0.62 acres lying in village Bhagwatipur belonged to one Tilak Singh. On his death, his widow Mt. Jasomati Kuer inherited the same. She, thereafter, died in 1942 and then Basudeo Singh, defendant 3, the admitted next reversioner of Tilak Singh, inherited his entire property.
Thereafter, he sold the suit land, along with other lands, for Rs. 1500/- to the plaintiff who, though got possession over other lands, could not get possession over the suit land. He, thereafter, instituted the present suit for declaration of title and recovery of possession with mesne profits against defendants 1 and 2, and in the alternative, for refund of proportionate consideration money against defendant 3.
3. The suit was contested by defendants 1 and 2. Their defence was that the suit land was the Stridhan property of Mt. Jasomati Kuer who sold it to them through a registered sale deed dated 8-3-1933, for Rs. 265/- and that they were in possession of the same since after their purchase. In the alternative, they also pleaded that even if the suit land belonged to Tilak Singh his widow sold it to them for legal necessity. Defendant 3 did not appear in the suit.
4. The trial Court held that the suit land was the Stridhan property of Mt. Jasomati Kuer and the suit was, therefore, dismissed. On appeal, the case was remanded to the trial Court for fresh decision in accordance with law.
After, remand, the trial Court held that the land in suit was part of the inheritance of Tilak Singh and was held by Mt. Jasomati Kuer as a part of her widow’s estate. On the question of legal necessity, however, it held that the alienation was for legal necessity. The suit was, therefore, dismissed as against defendants 1 and 2 by the trial Court which, however, gave a decree for the alternative claim to the plaintiff against defendant 3. On appeal, the lower appellate Court affirmed the decision of the trial Court. The plaintiff has, therefore, preferred this second appeal in this Court.
4A. The sale deed executed in favour of the contesting defendants (who for the sake of brevity will be referred to hereinafter as the defendants) contains recital that Mt. Jasomati Kuer was selling the suit land to them for the performance of Gaya Sradh and construction of a pucca well. The evidence adduced in the case also establishes that the consideration money was spent over the performance of the Gaya Sradh & Bhandara after that Gaya Sradh as well as for making a Kutcha well in a certain Thakurbari pucca.
It is not, disputed here that the Gaya Sradh of the deceased husband would entitle a widow to alienate her husband’s property. What has been contended by Mr. Samaiyar for the appellant is
that it is not known as to for whose Gaya Sradh the alienation was being made. This point was not taken at any stage of this suit or before the first appellate Court. For the first time in this Court Mr. Samaiyar has raised it and has contended that there is no evidence in the case to prove that the Gaya Sradh of the husband was performed.
He has, however, not given any special certificate as required by the High Court Rules, and, therefore, he cannot be permitted to raise this point for the first time in second appeal. He has then contended that even a reading of the judgments of the Courts below would show that there is no evidence to establish that the Sradh in question was the Sradh of the husband. I am unable to agree with his contention.
It is apparently clear from the record of the case that all concerned, namely, both the parties as well as the Courts below, clearly understood that the Sradh referred to in the sale deed in favour of the defendants was the Sradh of the husband, and, in my view, there was no confusion in the mind of any one that this Sradh could be of a person other than the deceased husband. (His Lordship considered the evidence and concluded).
5. I have, therefore, no doubt in my mind that the evidence adduced in the case meant the Sradh of the deceased husband, and the Courts below were perfectly justified in coming to the conclusion, that the Gaya Sradh of the deceased husband was performed by Mt. Jasomati Kuer. It is not disputed before mo that the performance of the Gaya Sradh of the deceased husband is a legal necessity. Thereupon, the alienation made for the performance of such Gaya Sradh would be justified in law.
6. The next point urged on behalf of the appellant is that the holding of Bhandara after the Gaya Sradh is not a legal necessity. In support of this contention, reliance has been placed on the decision of — ‘Makhan Lal v. Gayan Singh’, 33 All 255 (A), wherein a Division Bench of that Court made the following observation:
“A feast given on the return of a pilgrim cannot be said to be so intimately connected with the pilgrimage as to justify its allowance as money expended for legal necessity. We know of no authority for allowing such an item as coming within the meaning of legal necessity and none has been cited to us.”
I am unable to agree with the view taken by their Lordships of the Allahabad High Court in that case. The performance of Bhandara after Gaya Sradh is an essential part of the Gaya Sradh itself.
This view gains full support from a decision of the Calcutta High Court in the case of — ‘Dina Nath Ghose v. Hrishikesh Pal’, AIR 1914 Cal 861 (B), where Sri Asutosh Mookerjee, J. who gave the leading judgment, held that expenses incurred by a widow for a pilgrimage to Gaya and for the performance of Sradh of her husband are legitimate expenses, for which she can alienate her husband’s property and that a feast to the Brahmins after the performance of the Sradh ceremony at Gaya is an essential incident which justified reasonable expenses by the widow.
The case of 33 All 255 (A), was considered by their Lordships of the Calcutta High Court in AIR 1914 Cal 861 (B) and their Lordships did not accept the view taken by the Allahabad High Court on this point.
7. Then remains the question of making a kutcha well pucca. It has been argued that the construction of a well is not such a necessity which may entitle a limited owner to alienate “a portion of the estate so as to be binding on the reversioner. In support of this contention also reliance has been placed on the same reported in 33 All 255 (A). That case however, in my opinion, does mot support the contention of the appellant. It was held in that case that expenses incurred in the construction of a well may be a legal necessity if it is proved to be a benefit to the estate.
Of course, in that case, on the particular facts of the case, their Lordships in a first appeal on a consideration of the evidence held that there was no evidence to satisfy them that the well which was constructed by Mt. Mendo was constructed for the benefit of her estate or for the good of the tenants and cultivators. In the present case, how-ever both the Courts below have held that the construction of the well was a legal necessity and it is not possible for me to interfere with this finding in second appeal.
8. For the reasons given above, there appears to be no merit in this appeal which is accordingly dismissed with costs.