Ram Saran v. Khushi Ram — 1947 DIGILAW 33 (ALL)

JUDGMENT Sinha, J. - This is ft Plaintiff's appeal and arises oat of a snit for a declaration that the sale of the 6th of September, 1940, granted by one Musammat Jhunia in favour of Khushi Ram, is not binding on him. Mst. Jhunia, who was alive on the date of the suit, was the widow of one Gokul. The Plaintiff claims to be Gokul's reversioner. 2. The Plaintiff came to Court on the allegation that the sale was not justified by legal necessity and that the lady, who was an old lady, executed the document without really understanding it. The defence, in the main, was that the Plaintiff was not the reversioner, the transaction was justified by legal necessity and the lady executed the sale-deed after fully understanding it. 3. The learned Munsif in a judgment, marked by care and ability, found that the Plaintiff had succeeded in proving that he was the reversioner of Gokul. He found that part of the consideration mentioned in the sale deed was fictitious and, as for the other part, he found shat there was no legal necessity for it. In the result, he decreed the Plaintiff's suit. On appeal, the learned Civil Judge in a judgment which hardly redounds to bis credit, agreed with the learned Munsif in his finding that the Plaintiff had succeeded in proving the pedigree. He also agreed with him that part of the consideration was fictitious. He disagreed with him with regard to the rest and found that it was justified by legal necessity. In the result, he dismissed the suit. The Plaintiff has come to this Court in second appeal. 4. The facts appear to be briefly these: - Mst. Jhunia was the widow of one Gokul who had a brother, Bhagwant. The sale-deed in dispute was executed by the lady for Rs. 1,500. Its ostensible consideration was as below: (1) Rs 375 fur payment to. Kinhalya Lal's promissory note Ex. C dated the 11th April, 1938, for Rs. 200 ; (2) Rs. 2 5 for payment of Radha Raman's promissory note Ex. F dated the 12th August, 19S3 for Rs. 126; (3) Rs. 500 for payment to the mortgagees Mst. Bhabuti, Ganga Shyam, Moola, Mst. Sundari, Mst. Kinhalya Lal's promissory note Ex. C dated the 11th April, 1938, for Rs. 200 ; (2) Rs. 2 5 for payment of Radha Raman's promissory note Ex. F dated the 12th August, 19S3 for Rs. 126; (3) Rs. 500 for payment to the mortgagees Mst. Bhabuti, Ganga Shyam, Moola, Mst. Sundari, Mst. Chironji ana Radha Lal, without specifying whether the amount was payable under one two or more mortgage-deeds and without giving any further details about the mortgage or mortgages ; (4) Rs. 350 paid in cash and (5) Rs. 30 paid for costs of stamp and registration ; Total=Rs. 1,600. 5. The Courts below are agreed that the two promissory notes were fictitious. They have differed with regard to the 3rd and 4th items, Rs. 500 for payment to the mortgagees and Rs. 350 paid in cash. The controversy before me has centered round these two items. 6. The history of the transactions, dates back to the years 1879 and 1881. On the 5th July, 1879, Gokul the husband of the lady, and his brother, Bhagwat executed a usufructuary mortgage in favour of Badle, Nand Kishora and Mst. Juglo. Bhagwant died issueless and on the 16th April, Mst. Jhunia renewed the mortgage The second mortgage was executed on the 20th July, 1881, by Gokul in favour of Mani Ram. This mortgage was renewed by Mst. Jhunia on the 13th of August, 1908, in favour of a number of persons. It is for the discharge of these mortgages that a sum of Rs, 500 was left in the hands of the vendee, but, curisusly(sic) enough, the recital is lacking in very important particulars. The names of the mortgagors are not mentioned, nor is the amount due to them, nor are the dates or years, when they were executed, mentioned. It is also not clear whether the morteagas sought to be redeemed, were one or more than one. 7. The learned Munsif found that the old mortgages still remain unredeemed and the sale was made, not for the purpose of redeeming the mortgages, but for the so called purpose of paying off the fictitious promissory notes, executed in favour of Radha Raman and Kanhaiya Lal, uncle and nephew. 7. The learned Munsif found that the old mortgages still remain unredeemed and the sale was made, not for the purpose of redeeming the mortgages, but for the so called purpose of paying off the fictitious promissory notes, executed in favour of Radha Raman and Kanhaiya Lal, uncle and nephew. Indeed, he found that Radha Raman, Kanhaiya Lal, Ram Hari, a nephew of the lady, and the vendee, Khusi Ram, had entered into a short of a conspiracy to defraud the lady and the object of the transaction was not the disctarge of the prior debts. The fourth item is a sum of Rs. 350 alieged to have been paid in cash before the Sub-Registrar. The learned Munsif found that, out of this sum, a sum of Rs. 325 went to Kan Hari and Rs 25 or 30 remained with the lady for the ostensible purpose of her maintenance. 8. The learned Civil Judge, on the other hand, found that although according to the recital in the sale deed, the sum of Rs. 500 was left in the hands of the vendee nevertheless, the sum due on the earlier mortgage was Rs. 745. Ha, however, found, that on the date of the suit the mortgages had not been redeemed. 9. As regards the sum of Rs. 350 the learned Civil Judge found that Rs. 120 out of it went to Ham Hari on account of the debt to him from the lady, and the balance of Rs. 200 was deposited with him to defray her future maintanance. 10. Before addressing myself to the legal position created by the earlier mortgages for the discharge of which the sum of Rs. 500 was left in the hands of the vendee, I propose to deal with the sum of Ss. 350 (cash) which passed before the Sub-Registrar. The learned Counsel for the Respondent had to concede that he can not place before me any authority which affords an even remote parallel to the case before me. It is too late in the day to challenge the proposition that the powers of attenation, which the law confers upon a, Hindu widow, are restricted. The pressure on the estate, the danger to be averted(sic), the benefit to be conferred , these and uco(sic) like, are the heads of legal necessity. It is too late in the day to challenge the proposition that the powers of attenation, which the law confers upon a, Hindu widow, are restricted. The pressure on the estate, the danger to be averted(sic), the benefit to be conferred , these and uco(sic) like, are the heads of legal necessity. There is another class of cases which has introduced yet another head and this had slightly(sic) enlarged her powers by justifying the attenation(sic) on the ground of prudent course of management-ida(sic) Pahalwan Singh v. Jawau Das, 1920 A.L. J. 41, It is not. pretended that there was any 'pressure on the estate' nor was there any danger to be averted' or benefit to be conferred'. The sale a of the property for the possible contingency of maintenance will not, to my mind, stamp the alienation with the incidents of transaction dictated by a 'prudent course of management'. As I deal with the third item, the sum of Rs. 500 I shall try to show that a slight care would have enabled her not only to redeem the earlier mortgages but to save a substantial portion of the property. 11. The usufructuary(sic) mortgages embraced 6 43(sic) acres. The entire estate of her husband consisted of 10 2 acres besides some miscellaneous plots. The husband cal, it is common ground, died about forty years before the suit, which was instituted in 1941. It is not denied that she had been able to live on the income derived from the residue of the land in her hands 3 59 acres. Not only that, she had succeeded in 1903 and 1908 in recovering a portion of the property in the hands of the mortgagees. I find from the judgment that one of the mortgages was redeemed by raising a loan upon a portion of the property covered by that mortgage, with the result that she paid off the earlier mortgage, freed from the mortgage the reft of the property and retained some money in her hands. The sale of an extensive area of 6 43 acres for a Email amount Rs. 500 or Rs 745 must from all points of view, be condemmed(sic) as an improvident transaction. A prudent course of management dictated otherwise. The sale of an extensive area of 6 43 acres for a Email amount Rs. 500 or Rs 745 must from all points of view, be condemmed(sic) as an improvident transaction. A prudent course of management dictated otherwise. She could have, as ha had done in the past, sold - the transactions in effect amount to a sale and nothing less a small portion and saved the rest, which would have been more than enough (or her needs. 12. I, however, do not propose to pursue this line of reasoning further as in the view of law, which I propose to take, the transaction is not binding upon the Plaintiff for yet another reason. The mortgages of 1903 and 1903 were mortgages with possession. There was, therefore, no pressure on the estate and no danger to be averted. In circumstances almost similar, this Court in Bandhu Ram v. Ram Kishun Sonar, 1923 A L J, 351, refused to uphold an alienation made for redeeming an earlier mortgage which was not mature. Indeed the facts of the present case are, if possible, stronger than those of that case. That was a case of a hypothecation bond which had not become mature and where the interest was mounting up. Here there was no such apprehension. 13. I am, therefore, of opinion that the entire transaction was beyond the capacity of the lady and no part of it is binding upon the Plaintiff. He is entitled to the declaration, which was granted to him by the learned Munsif. 14. On the date of the suit or even up to the date of the decree of the learned Judge, the earlier mortgages had not been redeemed. The proper decree to pass, therefore, is that, if the earlier mortgages are still unredeemed, the Plaintiff's suit shall stand decreed with costs in all the Courts. If, on the other hand, they have been redeemed, he is entitled to the decree, conditional on his payment to Khusi Ram, of the sum of Rs. 500. 15. I, therefore, allow the appeal, set aside the decree of the lower appellate Court and restore that of the Court of first instance with costs in all Courts. The Plaintiff, who is entitled to the relief claimed shall pay the vendee, Khushi Ram, the sum of Rs. 500 if the latter has discharged the previous mortgages. 500. 15. I, therefore, allow the appeal, set aside the decree of the lower appellate Court and restore that of the Court of first instance with costs in all Courts. The Plaintiff, who is entitled to the relief claimed shall pay the vendee, Khushi Ram, the sum of Rs. 500 if the latter has discharged the previous mortgages. In case he has not and the money is still lying in his han is, the Plaintiff is entitled to an unconditional decree.