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1911 DIGILAW 173 (CAL)

Musstt. Janhabi v. Bulbhadra Suar

1911-04-26

body1911
JUDGMENT 1. The Plaintiffs who are the reversioners of one Hari Suar brought the suit giving rise to the present appeal for the purpose of recovering certain properties sold by Musstt. Bhabani, the mother of Hari Suar, in 1904 after his death. The facts shortly are that Hari Suar died in 1878 leaving his widow, Madhi, and his mother, Bhabani. The widow died in 1901 after having incurred certain debts on mortgages on her husband's property. Suits upon these debts were brought against Musstt. Bhabani after the death of Musstt. Madhi and decrees were recovered declaring that the decretal amounts were to be considered as binding upon the estate. Musstt. Bhabani paid up these decretal amounts and subsequently sold a part of the family properties to Dharanidhar stating that she was taking the consideration-money for the purpose of paying up the debts due to certain gauntias from whom she had borrowed for the purpose of paying the aforesaid decrees. The lower Appellate Court has found that the witnesses, Banomali and Narian, are not entitled to credit and that the Defendant's story that Bhabani took loans from Banomali and his brother to pay off the decretal debt from the late widow of Hari Suar is a tissue of falsehood. The reason for the sale as stated in the kobala is the payment of Banomali and his brother and when it is found that Banomali and his brother did not advance any money it is virtually found that the reason stated in the kobala is false. 2. It is contended however that that finding is not sufficient for the decision of the case. The principle of the ruling in the case of Hunooman Peisaud v. Musstt. Babooee Munraj Kooweree 6 M.I.A. 393 (1856) has been applied to the case of alienations by Hindu widows. It was therein laid down by their Lordships of the Privy Council that a person dealing with one in the position of the manager of an infant, or as in this case, with a Hindu widow in possession of the property of the last owner, is bound to make bond fide enquiries into the necessities of the transaction and to be honestly satisfied that it was in the particular instance for the benefit of the estate. Applying this principle to this case it appears and it is admitted that Dharanidhar did not make any enquiries from Banomali or his brother as to the existence of the debt. He satisfied himself with an enquiry from Bhabani as to the reason for the alienation. Upon a proper application of the principle laid down by their Lordships of the Privy Council we are of opinion that the abstention from any enquiry from Banomali and his brother is an indication that the enquiry was not such an enquiry as is required to be made by their Lordships. In fact the enquiry made in this case falls short of that which was required of the purchaser. In this view of the case we think that the finding of the learned Subordinate Judge is sufficient to dispose of the case; and there being no evidence of any enquiry by Dharanidhar from the alleged creditors there is no need for any remand for the purpose of a fresh finding as to the completeness or bond fides of the enquiry made by the purchaser. The appeal is dismissed with costs.