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Calcutta High Court
Santosh Kumar Mullick vs Ganesh Chandra And Anr. on 18 February, 1926
Equivalent citations: AIR 1927 Cal 160
Author: Mukerji


Mukerji, J.

1. This appeal arises out of a suit, instituted by a reveraioner during fine life time of a Hindu widow for a. declaration that the alienation made by her is not binding on him. The suit has been decreed by the trial Court. The alience has preferred this appeal. The undisputed facts in this case are very few. There is a lamentable lack of restraint on the part of the parties and their witnesses. Each party has immensely exaggerated its own allegations and has either totally denied or tried its utmost to minimize the effect of the facts alleged on behalf of the other.

2. Ramlal and Kedar were two brothers, and one Basanta, who is alive, was their sistar. Ramlal and Kedar had separated during their life time and their ancestral house had been partitioned between them. The relations as between them were rather indifferent. Kedar died leaving a son Ganesh who is the plaintiff in this suit. Ramlal was without employment for seyeral years and was ill for a few months at the end of his life and died about the 9th or the 10th of April 1920. Ramlal’s son Nandlal used to work as a carpenter under the Port Commissioners. Nandlal fell ill in November or December 1919, and was confined to bed by the end of the latter month and was unable to work since then. He had to go to hospital towards the beginning of April 1920, where he died on the 10th of April 1920 a few days after his admission and a few hours after the death of his father Ramlal.

3. The immovable properties left by Nandlal consisted of two items: first, one-storeyed brick-built house standing on about a half of a plot of 6 cottas of land, the other half being vacant land and a demarcated share in a tank which adjoins the said land and which covers an area of about 6 1/2 cottas; and second, a plot of garden land about 1 1/2 bighas in area. The former property is situate at Bajey Sibpur and is the property which Ramlal got by partition with his brother Kedar and the latter is situate at a place, called Dharsa and was purchased by Nandlal himself. On the 22nd May 1920 Nandlal’s widow Prasadrrioyee and. the plaintiff Ganesh sold the Dharsa garden to one Ahad Bux for a sum of Rs. 375. On the 28th June 1920 Prasadmoyee executed a bianapatra in respect of the first of these properties in favour, of the appellant Santosh Kumar Mullick agreeing be sell the same to the latter for a consideration of Rs, 4,999 and accepting Rs. 101 as earnest money. The necessity for the sale was stated in the bianapatra in these words:

Soon after the death of my husband on the 28th Chaitra 1326 last when I was overwhelmed with grief and was seriously ill, Ganesh Chandra the son of my husband’s uncle, fraudulently and without letting DM understand anything sold one plot of jamai land measuring about 1 1/2 bighas, in Dharsa, loft by ray husband and misappropriated the whole of the sale-proceeds thereof.

Now, as I am in need of money in order to pay off the debts incurred by ms for the performance of the sradh ceremony of my husband, for treatment of my disease and for my maintenance : and there being no other moans of my maintenance, in order to makes arrangements for my maintenance and dwelling and to perform the Gaya sradh of my husband and for the treatment of my diseases I notified to sail, etc.

4. On the 9th August 1921 she executed a conveyance in favour of the appellant in respect of the said property and purported to transfer it to the latter on receipt of the balance of the consideration money. In this deed the allegation of misappropriation of the entire amount of sale-proceeds of the Dharsa garden by Ganesh was repeated and it was further stated:

I am continuously suffering from diseases such as baribari, fevor, rheumatism, heart disease, ete., from the life-time of my husband and up till now. Upon the death of my husband I contracted debts of Rs. 1,000 from Jatindra Hath Kundu and Ashutosh Nandi of Santragachi and Surondra Nath Pal and Upendra Nath Pal of Bantra and small debts of about Rs. 50 for the treatment of my diseases, for the sradh ceremony of my husband, for the sapindakaran and for my maintenance.

The above debts are necessary to be paid off and there is no possibility of maintaining myself from the income of the properties described in the schedule below; because to reside in the house described in the schedule below and to let it out to tenants at the same time is not proper or possible, aid oven if it is so done, or if I let out the whole house described in the schedule below without dwelling there, the income so derived will not be sufficient for my maintenance; therefore it is necessary to make arrangements for my maintenance inasmuch as debts are gradually increasing on account of my maintenance and it has become difficult to raise loan according to necessity, and as I am still suffering from rheumatism, fever and heart disease, and as the treatment is going on money is wanting for the said treatment the Gaya sradh of my husband has not yet been performed; money is required to perform the same. For the above mentioned legal necessities it having become necessary to sell, etc.

5. It is this sale which is the subject-matter of this suit, the plaintiff Ganesh alleging that the sale was collusive and without consideration and that there was no legal necessity for it. In the suit the purchaser Santosh Kumar Mullick is the Defendant No. 1 and Prasadmoyee Dasi the Defendant No. 2.

6. Ramlal and Nandlal admittedly left no debts and the first and most important; question is whether the Defendant No. 2 contracted any. (His Lordship, after considering evidence as to the debts, proceeded:) We arrive then at the conclusion that the case as to the debts alleged to have been incurred by the Defendant No. 2, and for the repayment; of which the sale was made fails; and it must be held that it has not been proved what debts, if any, were actually incurred by her, and in any event there is no evidence that there was any pressure from any quarter which justified the sale.

7. There remains then the question of maintenance and religious expenses. Now, all the property which we are able to find upon the evidence in the case as being available to the Defendant No. 2 is the property which was sold. It is conceded on all hands that the income from this property in the state in which it was at the time was Rs. 180 a year : the plaintiff admitted this in the pleader’s letter to which I have referred. From this must be deducted the rents and municipal taxes. This would leave a balance at the outset of about Rs. 10 a month. The position also seems to be that having regard to the age of the Defendant No. 2, she cannot with propriety live in the house if it be lot out on rent to a stranger. As regards expenses incurred in the performance of sradh at Gaya for the benefit of her husband’s soul and her visit to Benares of which the Defendant No. 2 has not given us any details it cannot be said that the expenses were unnecessarily incurred. It therefore becomes relevant to consider the question as to whether circumstanced as she was, with no evidence that she had any property but the one which she sold, and having regard to the finding at which I have arrived, namely, that she may have incurred some debts, the exact nature and amount of which the appellant has not been able to prove, there was legal necessity for the sale.

8. It is well-settled now that the principles laid down in the case of Hunooman Pershad v. Mt. Babooce Munraj Kunwaree [1856] 6 M.I.A. 393 will equally apply to ast3 o£ the widow and to the obligation of tho3e who deal with her, to inquire into the circumstances which justify her dealings. The power of the widow in this respect is the same as that of the manager of the family property; and in the words of the Privy Council:

it can only be exercised in the case of need or for the benefit of the estate:

Their Lordships also observed:

The actual pressure on the estate, the danger to be averted or the benefit to be conferred on it, in the particular instance, is the thing to b3 regarded.

9. There can be no question that she may make alienations to proaura maintenance for herself or to defray the expenses of her own religious ceremonies or such as may be necessary, for the salvation of her husband’s soul, but she is not at liberty to anticipate her wants. In the present case there is no evidence of any actual pressure on the estate. The Defendant No. 2, it may be fairly conceded, had her wants, but something more is necessary make out a case of legal necessity. In the case of Ramsumran Prasad v. Mt. Shyam Kumari A.I.R. 1922 P.C. 356 the Judicial Committee has observe thus:

It should be observed in limine that the word necessity when used in this connexion has a somewhat special, almost a technical, meaning. A widow can alienate if there are no other means available for the obligatory ceremonies to repo38 the soul of her husband. A holder of a Hindu woman’s estate can in some circumstances alienate immovable property to pay the last owner’s debts or (if there is no other available source of supply) for her own or infant children’s maintenance. Necessity does not mean actual compulsion, but the kind of pressure which the law recognizes a serious and sufficient.

10. Judged by this test I am unable to hold that the appellant has succeeded in showing that there was any such serious or sufficient pressure either on the ground of debts, if any, incurred or on the ground of maintenance or the religious ceremonies that she undertook to perform. The appellant seems to have concentrated all his endeavours in making out a case of contracting of debts for justifying the sale. It does not appear that the Defendant No. 2 was actually put to any difficulty for her residence or her maintenance or for meeting the costs of her treatment or that there was any pressure from any creditor for any debts that she may have contracted. There is no indication anywhere in the evidence of the Defendant No. 2 of any pressing need, privation or discomfort. The performance of the sradh at Gaya and visit to Benares once the sapindakaran had been performed and so soon thereafter Iook3 like the creation of a necessity to justify the sale. In my opinion therefore no legal necessity has been established such as would justify the sale.

11. This brings us to a consideration of the last question that arises in the case, viz., that relating to the appellant’s bona fides. According to the rule as enunciated by the Privy Council an alience has to show, either that there was a necessity for the alienation or at least that he was led on reasonable grounds to believe that there was necessity for the alienation. As regards the former condition the appellant has failed to discharge the onus that lies on him. As regards the latter, I am not prepared to accede to the respondent’s contention that the price was not fair or that no consideration passed. But these are not sufficient; according to their Lordships of the Privy Council due inquiry by an alliance and his bona fides, are the two requisites for constituting a transaction a binding one. The appellant omitted, for reasons which have not been explained by him, to make an enquiry of the only source to which he should have gone, namely, the plaintiff whom he admits he knew from before; and in this respect his omission seems to me deliberate. He must have, as a man of ordinary prudence, known that the plaintiff could have given him important information, true or false, relating to the circumstances of the Defendant No. 2, the expenses actually incurred by her and the object of the intended sale. Of course the plaintiff might have declined to give him any information or might have given him information which was not fit to be acted upon; but I cannot conceive why, if any real enquiry was to be made, the appellant should have refrained from approaching the plaintiff. In this respect too the appellant has failed to satisfy ma that he acted bona fide or that he made any reasonable enquiries.

12. I am accordingly of opinion that the decree passed by the Subordinate Judge is right and that this appea1 should be dismissed with costs.

Greaves, J.

13. I agree.

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