Gopalji Sah vs Musammat Manbirti Kuer and Others

Dawson Miller, C.J.—This is an appeal by the plaintiff from a decision of the District Judge of Saran, dated the 4th February 1913, affirming a decision of the Subordinate Judge.

The plaintiff, who is described by the District Judge as a fairly well-to-do man with several houses of his own, is the next reversionary heir of the late Lalchand Ram, who died some years ago leaving a widow, the defendant No. 1, but no male issue, and who appears to have been a devout Hindu, During his lifetime he gave away much of his property for religious purposes. On the 7th May 1909 some 10 years after her husband''s death, the defendant No. 1 executed a deed of gift of a house, part of the property inherited from her husband, in favour of Sheodip Misra, the defendant No. 2. A few years later, on the 10th November 1914, the defendant No. 2 executed a zarpeshgi deed'' in respect to the said house in favour of the defendant No. 3 for the sum of Rs. 1,000. It appears from the evidence that the defendant No. 2, the original donee, had spent money in repairing the house, amounting to some Rs. 200 or Rs. 300, before the zarpeshgi deed was effected. Shortly afterwards, on the 12th January 1915, the plaintiff, although up to that time he appears to have taken no steps to get the deed of gift set aside, instituted the present suit claiming a declaration that the deed of gift of the 7th May 1009 executed by the widow in favour of the defendant No. 2 was without legal necessity and fraudulently executed and not binding upon him as reversioner of Lalchand Ram. The defence to the action was that the gift was made on the anniversary of her husband''s sradh and was for his spiritual benefit and that a gift of such a nature was, according to Hindu Law, justifiable on the part of the widow.

The District Judge found that the widow gave the house in question to the ''defendant, No. 2 who is a Brahmin, on the anniversary of her husband''s death and that she did so with religious motives. It is not disputed that it is competent to a Hindu widow to alienate portions of the family property for religious purposes and more particularly if the gift should be conducive to the spiritual welfare of her late husband. The plaintiff by his plaint alleged that the resources of the family were not such as to justify the gift of property of such value. The intrinsic value of the property itself is not great and according to the finding of the lower Court there was no evidence on the record to show that, at the time of the gift in question, the widow had no other property which she inherited from her husband than the disputed house, and, as far as can be gathered from the judgments of both the lower Courts, there does not appear to have been any direct evidence as to the actual extent of the family property held by the widow at the time of the gift. In dealing with this aspect of the case, the District Judge said that, apparently, all that passed to the widow from her late husband was this house. If, as a fact, there was no evidence on the record to show that the widow at that-time had no other property inherited from her husband than the house in question, it is difficult to see how the District Judge arrived at this conclusion. It is not a distinct finding of fact that the widow had no other property and I think it was, in all probability, a view taken by him as to the probable state of affairs owing to the absence of any evidence upon the subject. Both the Subordinate Judge and the District Judge dismissed the suit. The former held that the gift in question was for the benefit of the soul of the late Lalchand Ram and as such was properly made by his widow on the day of the first barkhi sradh of her deceased husband. He, however, thought that, even if it was the only property in her possession, she would, even then, be justified in alienating it for such a purpose. The District Judge also found that the alienation was a religious one made by the widow to benefit the soul of her deceased husband and that such an alienation was valid. He did not decide the question of whether the gift would be valid if it were a gift of an unreasonable and excessive portion of the estate, although he mentions the point as having been raised and adds, as already stated, that the house was apparently all that passed into the widow''s hands at the date of her husband''s death. He thought, however, that the plaintiff''s only object in bringing the suit was to give vent to his annoyance at the fact that the defendant No. 3 had acquired the zarpeshgi interest in the property. The judgment is not altogether satisfactory. There can be no doubt that a gift of family property by a Hindu widow for the benefit of her husband''s soul is permissible and is just as valid and binding on the reversioners as if the gift had been made for the purpose''s of legal necessity. This, however, is subject to the rule discussed in the case of Pannachand Chhotalal v. Manoharlal Nandlal 43 Ind. Cas. 729 : 42 B. 136 : 20 Bom. L.R. 1 that the gift for such purposes must not amount to an exorbitant or excessive portion of the whole property. In the present case it is stated by the Subordinate Judge that there was no evidence as to whether the widow possessed other property in addition to the house in question and the District Judge has not, in terms, found otherwise. In this state of affairs, as I have already indicated, I think it must be taken that when he says there was apparently no other property which passed to the widow all he meant was that, so far as the evidence went, there was nothing to show that she had any other property.

The question which then arises is, whether, in the absence of any evidence upon this matter, the plaintiff or the defendants ought to succeed. The onus was certainly upon the defendants in the first instance to adduce evidence showing a prima facie case which would justify the gift. This, I think, they did when they proved that the gift was for the spiritual benefit of the deceased. It then lay upon the plaintiff to make out that the property alienated for such a purpose was excessive and, therefore, not justified. In this respect it would appear that the plaintiff failed to establish the case which he set up in his pleadings that the resources of the family were not such as to justify the gift of property of the value of that in question. For this reason I think this appeal fails and must be dismissed with costs.

Foster, J.

I agree.