Awadh Narain Tiwari and Others vs Santan Narain Tiwari and Others

Rowland, J.—This is an appeal by the defendants in a title suit in which the relief sought was only a declaration, and the dispute was about the validity of certain raiyati leases granted by a Hindu widow. The property is part of the estate of one Madhonarain Tiwari who died in 1876 leaving a widow Musommat Deoki Kuar. The ladfedigd in 1919 and the plaintiffs and defendants of this suit are the agnates of her husband and the inheritors of the estate on her death. Partition proceedings were taken for the division of the properties among them, and it was found that certain bakasht lands have been settled by her as raiyati with some of the agnates after taking substantial salamis. These settlements were challenged by other of the agnates, now the plaintiffs, and for the purposes of the partition it was necessary, in order to assess the divisible assets, to have a determination whether these lands ought to be treated as bakasht or as raiyati. Hence the suit for a declaration that the settlements are invalid and not binding on the plaintiffs. The Subordinate Judge found that the three settlements which are impugned were each made for the purpose of raising money to satisfy antecedent debts Incurred by the husband and father-in-law of the widow and secured by usufructuary mortgages on the lands in suit. The genuineness of these usufructuary mortgages was not challenged, and the Subordinate Judge dismissed the suit. In each case about two-thirds of the salami money was required for paying these antecedent debts and nearly one-third was spent by the widow on her own purposes.

But the Judicial Commissioner in appeal acceded to the argument that there was no pressure on the estate which would justify the widow in redeeming the usufructuary mortgages by alienating any part of the corpus of the property and thought that the transactions of Musammat Deoki Kuar were not such as a prudent owner would have (made, the net result being not to increase but to decrease the total assets. He commented somewhat severely on the failure of the lady in forty years to re-pay any of the old zarpeshgis by savings out of her income, being apparently of opinion that it was her duty to save the income of the property for paying off her husband''s debts. As to this the Subordinate Judge, himself a Hindu, had calculated that the total income at the lady''s disposal could hardly have been more, at the highest computation, than about Rs. 75 a month and she could have had hardly any margin left out of this slender income from which it might have been possible to pay off the debts on her property. Whether or no it was possible for the lady to have paid off any of the debts, the law absolutely clear that she was under no obligation to do so. It is settled law that a widow is not a trustee for the reversioners but has an absolute power of disposal of the income of the property inherited by her. She is not bound to save the income; she may spend the whole income upon herself or give it away as she likes during her life. This is so well settled that I do not think it necessary to cite the authorities. A general summary of the legal position will be found in Mulla''s Principles of Hindu Law, para. 177. On this part of the case it is enough to add that there is no evidence whatever that the widow had any savings in hand which she could apply to the satisfaction of the debts incurred by her husband and father-in-law.

I turn now to the other question of the learned Judicial Commissioner''s finding that the widow had no business to alienate property of the estate unless there was an immediate pressure on the estate, such as a threat of suit or a danger of the property being brought to sale by creditors. It is undoubtedly true as the Judicial Commissioner has pointed out that there is nothing to show that the zarpeshgidars were pressing for return of their money or that they were not content to remain in possession of the plots of land hypothecated to them as zarpeshgidars and in that situation it might perhaps be said of a manager, or of the trustee of property for an infant, that there was no immediate and cogent necessity for arranging to pay off the debts. But it will not do to confuse the position of a Hindu widow with that of a manager or a trustee. Whereas a manager or a trustee is to look at the secular interests of the estate and his power of alienation is limited to cases in which the estate will benefit or there is some pressure on it which makes alienation unavoidable, the widow has an additional power of alienation for other purposes which are regarded in the Hindu system of law as religious or charitable or conducive to the welfare of the soul of her husband (Mulla''s Principles of Hindu Law, paras. 181 and 181-A). To justify an alienation for such a purpose, it is not necessary to show any benefit to the estate or pressure on the estate such as is necessary in the case of an alienation for other purposes.

An alienation by way of gift for a religious purpose was upheld by the Judicial Committee of the Privy Council in Sardar Singh v. Kunj Behari Lal 44 A. 503 : 69 Ind. Cas. 36: AIR 1922 P.C. 261 : 49 I.A. 383 : 16 L.W. 871 : 31 M.L.T. 253 : 37 C.L.J. 383 : 44 M.L.J. 766 : 27 C.W.N. 653 : 25 Bom. L.R. 648 : 22 P.W.R. 1923 (P.C.) after a hearing in which a very large number of authorities were cited. The case before their Lordships was a case of gift or dedication of property to a temple for offerings to this deity and maintenance of the priests in charge. Their Lordships observed that

The Hindu system recognizes two sets of religious acts. One is in connection with the actual obsequies of the deceased, and the periodical performance of the obsequies rites prescribed in the Hindu religious law, which are considered as essential for the salvation of the soul of the deceased. The other relates to acts which, although not essential or obligatory; are still pious observances which conduce to the bliss of the deceased''s soul.

Their Lordships pointed out that to mix the indispensable or obligatory duty with a pious purpose which, although optional, is spiritually beneficial to the deceased, may lead to confusion. An alienation for a pious purpose, the performance of which is optional but spiritually beneficial to the deceased, will be upheld if it affects a portion of the estate not excessive having regard to the total extent of the property. On the other hand, an alienation for the purpose of performing a religious duty which is regarded as essentials to the salvation of the soul of the departed may be upheld even if it results in parting with the entire estate. This decision affirmed the correctness of a judgment of the Allahabad High Court, Kunj Behari Lal v. Laltu, Singh 41 A. 130 : 48 Ind. Cas. 847 : AIR 1918 All 40 : 16 A.L.J. 996 which proceeded on similar lines and explained the law rather more fully. The decision of the Privy Council last cited was applied in Ashutosh Sikdar and Others Vs. Chidam Mondal, . This was a case in which the entire corpus of the estate of the husband was leased out by his widow on taking a salami which went to pay debts of the husband which had become time-barred. In the argument before the High Court it was conceded that there was legal necessity for the alienation, but it was contended that the necessity fell under the second class of religious acts explained in the Privy Council decision, that is to say, that it was not obligatory and essential in the sense in which the performance of funeral rights is essential, but was merely a pious act for which the widow would have been justified in alienating a fraction but not the whole of the property. The contention was, however, negatived, B.B. Ghose, J., observing:

According to the Hindu Shastras...a person dying without payment of his debts is subject to tribulations in after life and it is, therefore, the pious duty of his descendants to pay off his debts.... It seems to me, therefore, that payment of a deceased''s debts by his widow, who has received assets from him, falls within the first class of religious acts. I am of opinion that it is an essential duty of the widow, for which she may alienate the property inherited from her husband.

It has been held in the Calcutta High Court as far back as in Waddu Chunder Chuckerbutty v. Ashutosh Das Mozumdar 21 C. 190 that a widow has a pious duty to pay her husband''s debts though barred by limitation and for the performance of this duty she, may alienate her husband''s property. Therefore, the learned Judicial Commissioner was in error in thinking that the necessity for the alienations or rather leases which are not challenged, was affected by the question whether there was immediate pressure on the estate for payment of the antecedent zarpeshgi debts. It is more in point to remember that the satisfaction of her husband''s debts was a duty essentially necessary to be fulfilled by the widow before she rejoined him in the state of existence to which he is considered to have been translated and that in forty years of widowhood this duty had been awaiting running out. In fact, the widow died the following year.

The question, therefore, does not at all arise in this case whether the transactions were beneficial to the estate. It is found by both the Courts that the debts were genuine debts, and the only point remaining for consideration was whether the transactions were genuine transactions. There were three raiyati leases. Each was for a salami of Rs. 900 and in each case more than two-thirds of the salami was applied to the payment of debt. In each case in granting the leases the widow reserved an annual rent, the total of these rents being about Rs. 69 a year, whereas she was not receiving any income from the property from the time that her husband died until 1913 when she made arrangements by which she received a quit rent of Rs. 23 and the transactions of 1918 resulted in a further increase of the income of the estate by about Rs. 45. If one takes a broad view of the widow''s dealings with her husband''s estate the outstanding facts are that in forty years she created no new incumbrance and incurred no debt, that by transactions in 1913 and in 1918 she was able to leave the reversioners an estate producing a slightly larger net income than the estate she received from her husband; and that she had discharged her paramount duty to her husband by paying oft his debts. It is suggested that the widow has not acted fairly towards the reversioners, but the facts speak for themselves. Which, I wonder, of the present plaintiffs would not wish his own widow to do the like?

The learned Judicial Commissioner thinks that the effect of the transactions was to enable the three sets of defendants who obtained the pattas to gain an advantage at the expense of the other reversioners including the plaintiffs, and that for this reason the leases cannot be supported. I fear he has been misled by analogies drawn from insolvency proceedings in which dealings giving an undue preference to one creditor over others may be set aside. It is enough to say that this is not such a case. It will not do to say that if there was cash available to pay off debts a more profitable transaction could have been entered into, for tire cash was not there; or that the reversioners might, with greater advantage to themselves, have redeemed the zarpeshgis after the widow''s death, for no seasoning can make it out to have been leaving her husband''s debts unpaid. And there has been no attempt to show, once conceding that the debts must be paid, that she could have made any better bargain.

On these grounds the judgment and decree of the lower Appellate Court must be set aside and the decree of the Sub-ordinate Judge restored, the defendants getting their costs throughout. The observation of the Subordinate Judge that the defendants ought to refund so much of the salami, as was not taken for purposes of necessity was obiter dictum, it went beyond th% scope of the suit which was brought simply to determine whether the defendants were raiyats or were still zerpeshgidars. Its correctness is challenged. I leave the point open as it does not affect the decree to be passed in the suit. Leave to appeal refused.