Allsop and Verma, JJ.@mdashThe Plaintiffs in the suit which has given rise to this appeal were Ch. Jai Narain Singh and two others. They instituted the suit with the object of recovering possession of certain immoveable property alleged to have been alienated by Mst. Lachhman Kunwar and Mst. Chhattar Kunwar, the widows of Ch. Tej Singh. Ch. Jai Narain Singh is the grandson of Ch. Tej Singh''s brother and is now admitted to be the nearest reversioner to Ch. Tej Singh''s estate. The other two Plaintiffs purchased a share in the property in suit from Ch. Jai Narain Singh on the assumption that he had acquired a title to it.
2. The property was described in the plaint under four heads, namely.
1. A 4 and 2/3rds biswa share in Akrabad.
2. A half share in a specific area of 61 bighas 13 biswas in the town of Akrabad.
3. A4 and 2/3rds biswa share in Akrabad, and
4. A4 biswa share in Dhuri.
3. It was explained that the fractions described under the first and third heads were at the time of the institution of the suit expressed in the register in somewhat different terms. This fact was doubtless due to partitions and re-measurements but it gave rise to some controversy in the Court below about the property under the third head. According to the plaint the share described under that head included holdings Nos. 1 and 2 of the register of that time. The Defendant contended that holding No. 2 comprising an area of 1 bigha 8 biswas had never belonged to Ch. Tej Singh and ultimately the Plaintiffs withdrew their claim to it. We may explain that there was some confusion in the lower Court about this matter. The eleventh issue framed was ''whether the plaint property (No. 3) did not belong to Tej Singh'' and the finding was that the Plaintiffs had given up their claim to property No. 3 and the issue no longer arose. The fact is that the Defendant in para. 9 of the written statement raised an issue only about holding No. 2 in item No. 3 and that B. Sohan Lal, pleader for the Plaintiffs, stated:
The Plaintiff withdraws his claim in respect of the property aforesaid, i.e., the property which is entered in the khewat as holding No. 2, comprising an area of 1 bigha 8 biswas....
4. It is to be understood, therefore, that the property now in suit is that mentioned under headings one, two three and four of the plaint with the exception only of holding No. 2, mentioned under heading three.
5. This property is in the possession of the Respondent, that is, the Collector of Aligarh in his capacity as manager on behalf of the Court of Wards, of the estate of Kunwar Shri Newas and it is necessary to set forth how that possession was acquired in order to explain the issues which arise in this appeal.
6. Ch. Tej Singh died in the year 1873 leaving him surviving the two widows. Mst. Lachhman Kunwar and Mst. Chhattar Kunwar and a brother, Ch. Jawahir Singh, who had two sons, Ch. Jai Ram Singh and Ch. Sital Singh. A dispute arose about Ch. Tej Singh''s property between the widows on one hand and Ch. Jawahir Singh on the other. The latter claimed it by right of survivorship on the allegation that he and his brother were members of a joint Hindu Family. The widows maintained that there had been a partition and that they had a title to the property by right of succession. They took possession of some buildings but the Collector, pending the settlement of the dispute, placed under his direct management the villages on which revenue was payable to the Government. The widows, therefore, instituted a suit, No. 28 of 1873, against Jawahir Singh in which they asked for a declaration that they were entitled to the buildings and sought possession over the other property which consisted of shares in several villages and certain specific areas of land, part of which had been inherited and part granted by the Government. The part inherited included a share of one-third out of 10 biswas in Akrabad and the part granted by Government a share of 10 biswas in Dhuri, a share of 6 Biswas out of 10 biswas in Akrabad and an area of 61 bighas 5 biswas presumably in the latter village. The widows were successful in their suit and were, therefore, each entitled during their lifetime to half the property, that is, among other shares, to 5 biswas in Dhuri, 1 2/3rds, plus 3 biswas, or in all 4 and 2/3rds biswas in Akrabad and a half of the specific area.
7. On January 30, 1889, Mst. Lachhman Kunwar executed a deed of sale in favour of Gulab Singh. She transferred her share of 4 and 2/3rds biswas in Akrabad and her share in the mahal abadi or residential part of the same village. It is not possible to identify the area given in the sale deed with the area given in the decree in favour of the widows in the suit of 1873 or with the area given in heading two of the properties mentioned in the plaint but this appeal has been argued before us upon the assumption that the properties mentioned in headings one and two of the plaint were transferred by this deed and there is no suggestion in the pleadings that the property in heading two came into the possession of the Defendant by any other means. We suppose that some confusion or difficulty may have been caused by the creation of a new mahal abadi and by re-measurements and will assume that, the properties mentioned in headings one and two in the plaint came into the possession of Gulab Singh by means of this deed. These properties were put to sale by Qadir Bakhsh in execution of a decree against Gulab Singh and were purchased by Sujan Singh on June 20, 1892. Sujan Singh executed a deed on October 31, 1892, in which he admitted that he was only a benamidar and that Beche Lal was the real purchaser. Kunwar Shri Newas is the grandson and representative of Beche Lal.
8. On July 7, 1892, Mst. Chhattar Kunwar executed in favour of Th. Tikam Singh a deed of mortgage by which she hypothecated her 4 and 2/3rds biswa share in Akrabad and 4 biswas out of her 5 biswa share in Dhuri, the properties described in headings three and four of the plaint. Th. Tikam Singh sold his mortgagee rights to Beche Lal in 1897. Chiranji Lal, son of Beche Lal, brought a suit on the basis of the mortgage in 1910, obtained a decree and himself purchased the property in execution thereof on January 20, 1914. Kunwar Shri Newas is the son and successor of Chiranji Lal.
9. The Defendant was thus in possession under a title which can be traced back to the deed of sale executed by Mst. Lachhman Kunwar on January 30, 1889 and the deed of mortgage executed by Mst. Chhattar Kunwar on July 7, 1892 and the main question in the suit was wither these transfers were executed for legal necessity and were binding upon the reversioner and his representatives in interest. The learned Civil Judge found in favour of the Defendant and dismissed the suit.
10. The Plaintiffs have appealed and we have to consider whether we can uphold the decision of the lower Court. In doing so we shall first deal with the deed executed by Mst. Lachhman Kunwar.
11. The consideration for the sale mentioned in this deed is
(1) a sum of Rs. 2, 800 left with the vendee for payment to Sant Lal and Mori Lal, the purchasers at an auction sale of the mortgagee rights of Jai Ram Singh,
(2) a sum of Rs. 500 with interest due to the vendee, Gulab Singh, on the basis of a deed of mortgage executed in his favour by Mst. Lachhman Kunwar on May 4, 1884, and
(3) a sum of Rs. 100 received in cash. The first item refers to a deed of usufructuary mortgage executed by Mst. Lachhman Kunwar on June 19, 1879, in favour of Jai Ram Singh and Sital Singh, the sons of Jawahir Singh. The property mortgaged was the 4 and 2/3rds biswa share in Akrabad and the consideration consisted of the payment of Rs. 260-11-9 in cash to the lady herself and the payment of her half share of four debts, namely,
Rs. 2,169-3-0 due to Bhika Lal,
Rs. 2,000 due to Bhup Singh,
Rs. 127-5-6 due to Phul Chand and Makkhan Lal and Rs. 782 due to Jai Ram and Sital Singh themselves, the half shares being Rs. 1,084-9 6, Rs. 1,000, Rs. 63-11-9 and Rs. 391. The first debt was due on a bond executed by the two widows in favour of Bhikha Lal on February 16, 1875 and the second on a bond executed by them in favour of Bhup Singh on February 1, 1874. In each bond there is a recital that the money is being borrowed for the purposes of the suit which was instituted by the widows to recover their husband''s estate and as we know that the suit was pending and the widows probably had no means to prosecute it, we must after so long a period accept the recitals as true and hold that these debts were binding on the estate. The debt due to Phul Chand and Makhan Lal was under a decree passed in a suit for the recovery of money alleged to have been advanced for the purpose of buying seed and we may presume that that money was also borrowed on behalf of the estate. It does not appear why the remaining debt was incurred or why the cash was paid but the sums involved are comparatively small and we would have been willing to hold that Mst. Lachhman Kunwar was justified in alienating her husband''s estate by means of the mortgage if she had in fact done so but what she did was to mortgage only her life interest. She said in the deed that
she had executed these few presents by of a mortgage deed of her life interest in property.
12. We cannot see what necessity the could possibly have been for her to see the property in order to redeem a usufructuary mortgage of her life intere in the property itself or what advantage could have accrued to the estate or for that matter to herself. The deed of see was in effect a transfer of property subject to the mortgage for the purpose of discharging the widow''s liability to Gulab Singh and obtaining a further sum of Rs. 100 in cash.
13. That being so we have to consider whether the debt due to Gulab Singh was binding on the estate and whether it was necessary for the widow to get the sum of Rs. 100.
14. The bond in favour of Gulab Singh contains no recital to show why the widow borrowed the money from him. The Defendant produced a witness called Ishri Singh who pretended to remember that the money had been borrowed fifty years before for the payment of revenue. He said that he had been Mst. Lachhman Kunwar''s servant for two or two and a half years about the time when the bond was executed, but he did not know the names of her brothers or nephews or other male relations. The learned Judge did not believes him and we agree that his evidence is worthless. The result is that there is no evidence at all that this debt was incurred for any legal necessity.
15. The learned Civil Judge held that the Defendant had failed to prove legal necessity for the loan but he said that the Plaintiffs had failed to prove that there was no legal necessity and he, therefore, presumed that there was legal necessity on the principle that presumptions are permissible to fill in details which have been obliterated by time. He quoted as his authority the case of
16. The learned Judge in discussing the financial position of the widows has been considerably influenced by the decision of this Court in a previous suit by the reversioners to set aside another alienation This decision, as far as we can see, was not relevant to the suit which has given rise to the appeal, but we assume that the learned Judge intended to adopt the arguments which were used in that decision and we, therefore, propose shortly to deal with it. It was a case in which Jai Narain Singh sought to recover some property which had been transferred by Mst. Lachhman Kunwar by two mortgage deeds and had come into the possession of Munna Lal and others. There were recitals in the deeds to the effect that the property was being transferred in order to obtain money for the payment of revenue and for subsistence in the year 1897. The Subordinate Judge decided that the transfer was for necessity and this Court dismissed the appeal against his decision. Recitals are important in cases of this kind not so much because they prove the existence of a necessity but because they may be held to establish that the person who advanced the money was led to believe that such necessity existed and may have had good reasons for thinking that the representations made to him were true. The learned Judges of this Court who decided the appeal mentioned incidentally that one of the reasons for believing that the transfer was binding upon the reversioners was that the widows were left only with a 10 biswa share in one village, that the revenue of that village was about Rs. 658 and consequently that the net income could net be more than a thousand rupees a year which would mean that each widow was in receipt of about Rs. 40 a month This may have been an additional reason for thinking that the persons who advanced the money on the basis of the mortgages had reason for thinking that it was really required for the purpose of paying off revenue due upon the village and for the support of the widow. The learned Judges mentioned that there had been a serious famine in the year 1896 which is a notorious fact. We do not think that that alone is a good reason for thinking that Mst. Lachhman Kunwar must necessarily have required Rs. 500 to support herself or to pay revenue in the year 1884 in the absence of any recital to that effect in the deed under which she borrowed the money. In order to create the impression that the case before us was analogous to the previous case decided by this Court we have been referred to the Gazetteer of the district in which it is stated that there was some scarcity in the years 1877 and 1879 on account of the failure of rain, but the Gazetteer does not indicate that the situation was a very serious one and we do not think that there is any real analogy between the two cases. Our own opinion is that an income of Rs. 40 a month was adequate for the support of a Hindu widow in view of the standard of living which is expected of widows and which they ordinarily adopt and in view of the prices of commodities which prevailed at the time when the transactions took place. There is, in our judgment, no reason for holding that it can be inferred from the financial condition of Mst. Lachhman Kunwar at that time that she must have been in need of money either to support herself or to pay the revenue due on the estate.
17. There remains the item of Rs. 100 which was paid in cash to Mst. Lachhman Kunwar on the date when the deed of sale was executed. There is no recital to show for what purposes this money was paid. It would be a negligible sum if there were reasons for thinking that the alienation was justified on other grounds, but as it is, we must go into the question whether this advance by itself was justified. It is certainly stated in the deed that the property was under attachment for the payment of revenue, but it must not be inferred that the attachment was one preparatory to the sale of the property. We have examined the original document. The term which has been translated by the word ''attachment'' is ''qurq tahsil'' which implies that the property had been taken under the direct management of the Collector under the provisions of the Land Revenue Act so that he could collect the rents and credit them to the payment of the revenue. There is no indication that the sum of Rs. 100 was to be used for the payment of the revenue. The property was in no danger of alienation As soon as the rents had been collected and the revenue paid by the Collector, he would have returned the property to the person entitled to it. It has been suggested that the widow was personally liable, but we do not believe that there was any likelihood at all that the Collector, after having taken the property under his direct management so as to pay the revenue, would have taken any steps for the sale of the widow''s personal property or for her arrest. Our conclusion is that there was no justification for the sale of this property and we think that the Plaintiffs were entitled to a decree.
18. We must now deal with the transfer by Mst. Chattar Kunwar. She mortgaged the property in consideration for the payment of Rs. 2,000 in cash which she admitted to have received. This money was borrowed according to the deed for the purpose of redeeming a mortgage executed by Mst. Chhattar Kunwar on October 5, 1890, in favour of Sant Lal and Moti Lal to secure a debt of Rs. 2,862/8. This money was advanced to her according to the deed in order to redeem a prior mortgage for Rs. 2,800 and to pay a sum of Rs. 62/8 arrears due by tenants payable by her. According to the deed executed on October 5, 1890, this prior mortgage had already been redeemed and the property delivered to her. We, therefore, assume that the sum of Rs. 62/8 was on account of rent due to the prior mortgagees which Mst. Chattar Kunwar had undertaken to pay, the prior mortgage being a usufructuary mortgage. This mortgage had been created by a deed executed by Mst. Chhattar Kunwar in favour of Kunwar Jai Ram Singh and Kunwar Sital Singh on June 19, 1879. It was in the same terms as the deed executed by Mst. Lachhman Kunwar on the same date to which we have already referred. We have explained that we are satisfied that the widows would have been justified in alienating their husband''s estate in order to pay the debts which were due to them but that they purported not to alienate their husband''s estate but to alienate their life-interest in the property. By the deed of October 5, 1890, Mst. Chhattar Kunwar created a simple mortgage in order to redeem the usufructuary mortgage of her life-interest and the question is whether she was entitled to do so. We have held that the original debts were binding upon the estate, but these were discharged by the usufructuary mortgage of the life interest. By the terms of this usufructuary mortgage it is clear that the mortgagees had accepted as their security the interest of the widow and had discharged the original debts on that assumption. The question is whether a debt incurred by the widow on her personal responsibility in order to pay a debt binding on the estate is itself binding on the estate so as to justify a transfer of that estate. We have been referred to certain authorities. In the case of Dhiraj Singh v. Manga Ram (1897) 19 All 300 it was held that the creditors of a Hindu widow could not after her death have recourse to ancestral property in the hands of the reversioners, in respect of which property the widow had enjoyed only a widow''s life estate, if in fact no instrument charging the property beyond the widow''s lifetime had been executed by the widow, even though the debt sued upon was incurred for legal necessity and was one in respect of which such property might have been made liable beyond the widow''s lifetime. In the case of Kallu v. Faiyaz Ali Khan (1908) 30 All 394, it was held that a decree on the basis of a debt incurred ay a widow and the sale of the property of the widow''s late husband in execution of such a decree bound only the widow''s estate where the money had been lent to the widow on her personal security. On the other hand, in the case of
19. We may mention that another point was raised in the course of arguments. This was that a widow might pledge her own credit, or use her own money, for the payment of debts binding upon the estate and then at some later time might recoup herself as it were from the estate. We can understand that there may be circumstances in which a widow might act in this way but we think it would have to be made clear that she intended to advance her own money to the estate with the intention ultimately of recovering the money from the estate. There is nothing in the case with which we are dealing to suggest either of the widows had any intention of this kind. Mst. Lachhman Kunwar, as we have already said, acquired no advantage by transferring the equity of redemption by the deed of sale. Mst. Chattar Kunwar did apparently recover her life interest in the property transferred by the deed of usufructuary mortgage and hold it for a certain time, but she acquired no ultimate advantage because she eventually lost not only the property in which she had mortgaged her life interest but also a large part of her share in the village of Dhuri. However tint may be, she had discharged the liability due from the estate by the usufructuary mortgage of her life interest and it does not appear that at that time she was intending to make a temporary advance to the estate out of her own personal interest so that she might be justified in alienating the estate in order to recoup herself. Our conclusion is that the alienation of the estate by Mst. Chattar Kunwar under the simple mortgage was not justified by any necessity and that the mortgagees on the slightest enquiry could have discovered the true position of affairs. We find that the suit in so far as it relates to the property alienated by Mst. Chhattar Kunwar should also be decreed.
20. We may mention that the learned Judge of the lower Court also considered that the Plaintiffs could not recover the property because the reversioner for the time being had in the year 1898 ratified the transfers. He referred to a deed which was executed by Mst. Lachhman Kunwar, Mst. Chattar Kunwar and Kunwar Jairam Singh on May 2, 1898. It was a sale deed in favour of Thakur Chattar Singh and others by which the two widows alienated their right of redemption of a mortgage of certain villages with which we are not concerned. This mortgage was executed by the two widows on April 16, 1877, in favour of Kunwar Jairam Singh and Kunwar Sital Singh to secure a debt of Rs. 14,000. The mortgage was usufructuary. Kunwar Jairam Singh executed the deed of sale. He said in the deed that he was executing it
for this reason that in future the vendee may not have any kind of dispute or apprehension for a claim and that all the property may be transferred with my consent.
21. The widows themselves in the body of the deed said that they had divided the property between them in equal shares as they were not on very good terms and that they had been appropriating the income and transferring the property as need arose. We do not think that the execution of this document by Kunwar Jairam Singh can be held to be an acquiescence on his part in the transfer of the properties with which we are dealing. He certainly consented to the transfer of the right of redemption in the villages which were sold by the deed of 1898 but he did no more than that. There is nothing else to suggest that the nearest reversioner at any time consented to the transfers which were in question in the suit which has given rise to this appeal.
22. The Appellants have also raised the point that the transfers by the widows were not binding even if they were executed for necessity because neither widow could alienate without the consent of the other. The learned Judge of the lower Court repelled this agreement holding that the deed of 1898 to which we have just referred suggested that each widow had consented to all alienations made by the other. We agree with the learned Judge upon this point. Apart from the recitals in the deed of 1893 there is the fact that both the widows on the same date executed the two deeds of usufructuary mortgage to secure a debt of Rs. 2,800 each and that these deeds were in the same terms and were executed in order to discharge the respective liabilities of the two widows in the same debts due in the main from the estate.
23. We may mention that certain other points were raised in the lower Court but have not been argued before us. Only one of these points is mentioned in the grounds of appeal and that was that the widows were induced by fraud to transfer the property. The learned Judge found that there was no definite allegation of fraud in the plaint and no argument has been addressed to us upon the point. The Defendant raised some points about technical defects in the plaint, about limitation and about the right of the Plaintiffs to sue. These were decided in favour of the Plaintiffs and it has not been suggested in the course of arguments that the decision of the learned Judge of the lower Court was wrong.
24. The result is that we find that the alienations were not justified by any legal necessity and we consequently direct that a decree should be drawn up awarding the Plaintiffs possession of the pro-party mentioned in the plaint with the exception of holding No. 2 comprising an area of 1 bigha 8 biswa described in heading No. 3 of the details of the zamindari property given in the plaint. The suit in respect of that item of property is dismissed, but as the claim to it was withdrawn our decision should not affect the decree for costs.
25. There was also a claim for Rs. 1,500 on account of mesne profits, but the learned Judge of the lower Court has not come to any decision about the amount which is due under this head. We, therefore, direct that the Plaintiffs shall be entitled to mesne profits and that an enquiry shall be held by the lower Court as to the amount due for the three years next before the institution of the suit and for pendente lite and future mesne profits under the provisions of Order XX, Rule 12(b) and (c) of the First Schedule to the Code of Civil Procedure. A final decree shall then be passed by the Court below in accordance with the provisions of Order XX, Rule 12(2) of the Code. The Appellants shall get their coats in both Courts.
