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2001 DIGILAW 465 (MP)

Padma Raje v. Gangabai

2001-06-29

S.P.KHARE

body2001
JUDGMENT This is plaintiff's second .appeal under section 100, CPC. The following substantial question of law survives for decision after the remand of the case by the Supreme Court : "Whether the burden of proof of legal necessity has been legally discharged by the defendants' alienees?" The facts relevant for the decision of the question referred above are that Nannu Singh was the holder of about 48 acres of land. He died in the year 1898 leaving behind his widow Pyari Bahu. She sold six acres of land of khasra No. 23 by registered sale deed dated 28.10.1955 (Ex. D-l) to Kunjan Singh. She was admittedly limited owner of the property left by her husband. This alienation has been challenged by the reversioners of her husband after her death in the year 1961. The trial Court held that this alienation by the Hindu widow was not for legal necessity. This finding has been reversed by the first appellate Court. Relying upon the principles laid down by the Supreme Court in Kamla Devi v. Bachchulal ( AIR 1957 SC 434 ), it has been held by the first appellate Court that the alienation was for religious and charitable purpose inasmuch as the sale was made for construction of a temple which was 'conducive to the benefit of the soul of her husband. Learned counsel for the appellants has argued that the trial Court negatived the plea of legal necessity and that finding has been reversed by the first appellate Court without any cogent reason. After perusal of the judgments of the trial Court and first appellate Court and also the documentary and oral evidence on record, this Court is of the opinion that the view taken by the first appellate Court is correct and is consistent with the principles laid down by the Supreme Court in the decision referred above. It has been laid down by the Supreme Court that a Hindu widow in possession of the estate of her deceased husband can make an alienation for religious acts which are not essential or obligatory but are still pious observances which conduce to the bliss of the deceased husband's soul. In the present case the trial Court also gave a finding that the sale of six acres of land was for construction of a temple. It is mentioned in the sale deed Ex. D-1 itself that an amount of Rs. In the present case the trial Court also gave a finding that the sale of six acres of land was for construction of a temple. It is mentioned in the sale deed Ex. D-1 itself that an amount of Rs. 600/- was taken by the vendor before the sale and this money was utilised for the construction of the temple. The remaining amount of Rs. 100/- was also spent for that purpose. Apart from the recital in the sale deed, the oral evidence also gives rise to an inference that the sale of this land was for the construction of the temple. There is a concurrent finding of fact of the trial Court and the first appellate Court on this point that the sale was for the construction of the temple. The trial Court held that the sale was made after 57 years of the death of the husband of the widow and therefore it cannot be said that it was 'conducive to the bliss of the deceased-husband's soul'. The trial Court observed that the temple might have been built by the widow for the benefit of her own soul. The first appellate Court came to the conclusion that the sale was for the welfare of the soul of the husband. The finding of the first appellate Court is justified from the evidence on record. Ramcharan (PW 4) is the witness who has been examined by the plaintiffs who are reversioners of the husband. He has stated in cross-examination that the widow had constructed the temple for the salvation of the soul of her husband. He has used the words : This evidence shows the purpose for which the temple was constructed. Even if the temple was built for the welfare of the souls of the husband and the widow both that would be for the spiritual benefit of both. There is no infirmity in the decision arrived at by the first appellate Court. The answer to the question referred above is that burden of proof of legal necessity has been legally discharged by the defendants' alienees. The appeal is dismissed. Costs as incurred.