Dulhin Sunderbati Kuer vs Sukhdeo Singh and Another

Shearer, J.—The appellant, Mt. Sunderbati Kuer, who was the plaintiff, is the youngest of the three daughters of Raghunandan Tewari, who is now dead, and Mt. Fekan Kuer, who, was defendant 2 in the Court below. On 3rd October 1989, Mt. Fekan Kuer executed a sale-deed conveying 9 bighas 16 kathas 12 dhurs of land to Sukhdeo Singh, defendant 1. Sukhdeo Singh is one of three brothers, the other two of whom married the two elder'' daughters of Raghunandan Tewari and Mt. Fekan Kuer. The consideration for the sale-deed was Rs. 1000, and it contained a recital that from the time, between 1327 and 1846, Mt. Fekan Kuer had borrowed money for purposes of legal necessity from Sukhdeo Singh. The amount outstanding when the sale-deed was executed was Rs. 591-4-0, and the balance was taken partly in order to pay arrears of rent and partly in order to enable bullocks to be purchased and necessary repairs to the dwelling house of Mt. Fekan Kuer to be carried out. The plaintiff asserted that, in point of fact, her mother had never borrowed any money from Sukhdeo Singh and that the sale-deed and the chithas had been brought into existence merely in order to enable her two elder sisters, or rather the joint family into which they had married, to obtain a larger share in the land of Raghunandan Tewari than they were entitled to under the ordinary rules of inheritance. The trial Court decreed the suit, but on appeal this decision was set aside and the suit was dismissed.

Mr. B.N. Rai, for the appellant, complains that the learned Additional District Judge did not consider or weigh as carefully as he should have done the reasoning by which the learned Subordinate Judge supported his decision. Mr. Rai refers to the observations of Fazl ali, J. as he then was, in R.P. Ghosh v. B. & N.W. Ry. Co. AIR 1943 Pat. 177, and suggests that either we ought to interfere with the finding of the lower appellate Court, or at all events, ought to order the apeal to be reheard. The observations of Fazl Ali J. were, however, based on the facts of the particular case with which he was then concerned.

Moreover, it is not, I think, possible to say that the learned Additional District Judge did not consider the reasons which weighed with the trial Court in decreeing the suit. Mt. Fekan Kuer, being a pardanashin woman, the money which from time to time she borrowed from Sukhdeo Singh was some times sent to her through a messenger. The defendants put into the witness-box two men who were either servants or relations of Mt. Fekan Kuer and who said that money had been sent to her by Sukhdeo Singh through them. They also put into the witness-box two other men who claimed to have been present when Sukhdeo Singh had advanced certain sums of money.

The learned pleader for the plaintiff cross-examined these men as to the amounts of money which had been paid to them and as to the dates on which they had in some cases signed the chithas for Mt. Fekan Kuer. The answers which they gave to these questions were wholly at variance with what was contained in the chithas, and the learned Subordinate Judge relying on what he thought were certain admissions made by them, came to the conclusion that the chithas had been brought into existence at or about the same time as the sale-deed.

The learned Additional District Judge considered this oral evidence, although he did not perhaps examine it in detail. So far as some at least, and perhaps most, of the admissions are concerned, the learned Additional District Judge was justified in not attaching much weight to them. One matter which weighed with him, and I again think rightly weighed with him, more than it did with the trial Court, was that the plaintiff had asserted that her elder sisters were married during the life time of their father and that this was definitely proved not to have been the case. As to the general probabilities and the circumstances of the case, the learned Additional District Judge considered them as fully and as carefully as the learned Subordinate Judge had done. The latter drew certain inference from them and the former drew quite other inferences.

That, however, it was open to the learned Additional District Judge to do, and it is not open to this Court sitting in second appeal, to set aside his decision on a pure question of fact. It must, I think, for the purposes of this second appeal, be assumed that Mt. Fekan Kuer did from time to time borrow money from Sukhdeo Singh for purposes of legal necessity, and also that the entries in the chithas were made when they purport to have been made. Mr. B.N. Rai, for the appellant, then contended that Rs. 591-4-0 out of the consideration of the sale-deed was really made up of sums which had been borrowed by Mt. Fekan Kuer between 1327 and 1343 pasli, and that suits to recover any of these amounts would, in 1939, when the sale-deed was executed, have been barred by limitation. So far, therefore, as this part of the consideration money is concerned it is, Mr. Rai argues, impossible to say that there was legal necessity for the sale.

The lower appellate Court seems to have assumed that this sum of Rs. 591-4-0 was the balance due on an account stated between Mt. Fekan Kuer on the one hand and Sukhdeo Singh on the other. The matter was not dealt with very fully or clearly by the learned Additional District Judge, but it is, I think, unlikely that this assumption was correct. It is, however, clear that the entries in the chitha made by Mt. Fekan Kuer or by other persons on her behalf amounted to acknowledgments that money was due by her to Sukhdeo Singh. Under Sub-section (3) of Section 21, Limitation Act, an acknowledgment by a Hindu widow or her agent of liability is binding against the reversioners. Mr. Rai conceded this but said that some of the acknowledgments contained in the chithas were not made within the period of limitation and were, therefore, not valid acknowledgments. The chithas are not, however, included in the paper-book. We did not think it necessary or proper to adjourn the hearing of the appeal in order that this omission might be rectified now. If any considerable proportion of the sum of Rs. 591-4-0 was not in fact barred by limitation when the sale-deed was executed, it would probably be a matter of some difficulty to say that the sale-deed is nevertheless liable to be set aside.

There is another difficulty in the way of the appellant, namely, that a Division Bench of this Court has decided that a Hindu widow is entitled not merely to acknowledge the existence of a debt, but in order to pay such a debt is also entitled to sell the property even when a suit to recover the debt is barred by limitation: Darogi Rai and Another Vs. Basdeo Mahto and Others, . This decision was subjected to a good deal of criticism, and I must confess myself to some difficulty in appreciating the reasoning by which it is supported. It is well settled that a Hindu widow is in substantially the same position as the guardian of a minor. There are no doubt authorities that when the guardian of a minor pays a time-barred debt he is not necessarily liable to refund the money.

But I find no authority for the proposition that when, in such a case the guardian alienates the property of the minor, the alienation is binding on the minor. If, on other grounds the plaintiff was entitled to succeed, I should, I think, have been disposed to suggest that the decision in 16 Pat. 453 required consideration by a larger Bench.

That, however, is not the position here, and for the reasons just given I would dismiss this appeal with costs.

Varma, J.

I agree.