Lakhan Sahu and Others vs Shyam Sundar Chakraverti and Another

Mohamad Noor, J.—This is an appeal against a decree of the District Judge of Muzaffarpur, confirming that of the Subordinate Judge of that place and has arisen out of a suit instituted by the plaintiff-respondents for setting aside certain alienations by a Hindu widow. The plaintiffs are the reversionary heirs of one Ganga Prasad Chaudhri who as it now appears, died some time in 1871, though the date of his death was represented by the parties in the trial Court as 1891. The alienation impugned by the plaintiffs is principally an usufructuary mortgage executed by the widow of Ganga Prasad in 1903 in favour of the predecessor-in-interest of the defendants first party for a sum of Rs. 2,000 which, as mentioned in the deed, was raised for building a temple for the benefit of the soul of her husband. According to the plaintiffs the money was not used for building the temple which according to them had already been completed long before the mortgage. The deed was also characterised as invalid for various reasons. It further appears that after executing this usufructuary mortgage the lady sold the right of redemption in the year 1910. The purchaser Dasrath Chaudhuri in his turn sold it in 1913 (1916 in the judgment of the learned District Judge is a mistake) to one Narayan Tewary. The plaintiffs characterised these transactions also as fraudulent and ineffective and wanted to avoid them as well making the heirs of Dasrath Chaudhuri and Narayan Tewary, defendants in the suit. The sales by the lady in favour of Dasrath Chaudhuri in the year 1910 and by the latter in favour of Narayan Tewary in the year 1913 were held to be invalid by the trial Court, and their representatives did not prefer any appeal. So far as that matter is concerned, the decree of the trial Court is final.

We are, therefore, concerned with the defence of the defendants first party who are the representatives of the mortgagee. Their defence was that the money was in fact spent on the temple which was built in compliance with the wish of the lady''s husband Ganga Prasad Chaudhury and that the transaction was valid. Three questions arose for the determination of the Court: (1) whether the mortgage was genuine and whether the money raised by it was in fact spent on construction of the temple; (2) whether the alienation was reasonable under the circumstances of the case; and (3) was the temple constructed for the benefit of the soul of the deceased Ganga Prasad Chaudhuri or was it a device to deprive the reversioners of their inheritance.

The trial Court decided practically all the three points in favour of the plaintiffs. It came to the conclusion that the temple had been built long before the mortgage in question and that it was not a real and genuine pious act. It, therefore, gave the plaintiffs a decree with mesne profits. The mortgagee defendants appealed and though the learned District Judge has disagreed with the trial Court on some points and has come to the conclusion that the money was in fact spent for building the temple which was not completed before the time of the transaction, he has dismissed the appeal as he held that in building the temple the lady was not actuated by a pious desire to benefit the soul of her husband but that it a was device to make provision for her sister''s son, Mahabir Chaudhuri, and taking into consideration the properties which about a year later (in September 1904) she dedicated for the purpose of the temple and of which this Mahabir Chaudhuri was appointed a shebait, he has held that the alienation for the temple was not reasonable. The mortgagees have preferred this second appeal.

When this appeal was first heard by us it was pointed out on behalf of the respondents that certain conclusions of the learned District Judge were based upon his misreading of the evidence. For instance, while dealing with the fact whether or not the temple was under construction in the year 1903 when the mortgage in question was executed, the learned Judge relied upon the evidence of the P.W. 2, Bansi Chaudhury which according to him was to the effect that the Pran Pratishtha (installation of the idol in the temple) was performed in the year 1312 (1905). The learned advocate for the respondents urged that the learned District Judge had misquoted the evidence of the witness and that in fact the witness had stated 1302 (1895). Then the deed by which the lady dedicated properties to the temple was not on the record though the Courts below relied upon the dedication. We, therefore, decided to look into the evidence ourselves and directed the preparation of a paper book and also ordered the plaintiff respondents to produce the original or an authenticated copy of the Samarpannama whereby the lady dedicated some property for the use of the temple. Now we have gone through the whole evidence carefully and have looked into the Samarpannama. One important discovery made by us is that the parties in order to serve their own purposes put down the date of the death of Ganga Prasad Chaudhuri as 1891. The Samarpannama makes it absolutely clear that he died in the year 1871, twenty years before the date given by the parties.

Now the question of law which really arises in this case is simple and is not disputed by the plaintiffs. They concede that it is permissible for a Hindu widow in possession of her husband''s estate to alienate a small portion of his property for the benefit of his soul and such a transaction is binding upon his heirs, The alienation should not, however, be a device for transferring property and thereby depriving the heirs of their legal rights. As I have said the learned District Judge has held that as a matter of fact the transaction in question did not come within the limits which the Hindu law has imposed upon the right of alienation of a Hindu widow for purposes which are not essential.

Now the Samarpannama recites that Ganga Prasad Chaudhuri had a desire to build a temple and dedicate properties for its use, as he had no male issue but he died without carrying out his object. On account of the fact that he was largely indebted, the lady was unable to raise funds for the construction of the temple and was unable to fulfil the desire of her husband for a period of about 33 years, but as the debts were paid up by the sale of properties and money could be raised, she started to build the temple, finished it and proceeded to dedicate the properties for the use of the temple. It has been urged by the respondents with some amount of force that the story in the Samarpannama about the desire of the husband to build a temple and dedicate property to it is not correct. It appears from this deed that Ganga Prasad Chaudhuri had two daughters who survived him and it is highly unlikely that he would think of making over his properties to a temple and thus deprive his daughters from inheriting them. The learned District Judge has disbelieved the story that the temple was built according to the direction of Ganga Prasad Chaudhuri, because he thought that it was constructed long after his death. Before him, the date of his death was stated to be 1891 and he considered 12 to 13 years as too long a period to elapse, but as a matter of fact it was not only 13 years but 33 years, and for the reason given by the learned District Judge and that urged by the respondents, I am also of opinion that the story about the deceased having asked his wife to construct a temple does not seem to be correct.

The next point which arose in the case was whether in fact the money raised by this mortgage was spent for building the temple. I have said that in this matter the two Courts below have come to two different conclusions. The learned Subordinate Judge held that the money was not spent on the temple, but the learned District Judge has come to a contrary conclusion. No doubt, one of the grounds on which he came to this conclusion was based on mistake in reading the date of the Pran Pratishtha mentioned by P.W. 2 as 1312. We have read the evidence ourselves and it is clear from the context and also from the figure as written in the original deposition that the year is really 1302. However, this is the evidence of the plaintiffs'' witness and we are not prepared to differ from the findings of the learned District Judge in this respect. We accept his finding that the money was in fact spent for the construction of the temple. The temple had cost Rs. 8,000 and a portion of the costs was met from an earlier sale of another village Gouspur Hijra. Now the question is whether this expenditure is such as the Hindu law allows and is binding upon the reversioners. I have said that the learned District Judge in deciding the bona fides of the lady and the reasonableness of the expenditure has taken into consideration the total expenditure on the temple, that is to say what was spent upon it before this particular mortgage and what was spent on it after the mortgage. Dr. Sen, the learned advocate for the appellants, has contended that the mortgage should be considered on its own merits and that the learned Judge has erred in taking into consideration the subsequent dedication of the property by the widow which the mortgagee could not have anticipated. He further contended that at any rate under the circumstances of the case the plaintiff should not be allowed to question the mortgage as he ratified the dedication and became a shebait of the temple. I am unable to accept this contention. There is always a distinction between the money taken for the necessities of a widow, which are more or less of a compulsory nature and money taken for permissible expenses. In the former case each transaction must be dealt with separately. The creditor has only to prove necessity or a bona fide inquiry about its existence. But in the latter, the subsequent conduct and expenditure of the limited owner may also have to be taken into consideration. The entire position of the estate must come under review. Each transaction cannot be dealt with separately. No doubt, this is hard upon the creditor, but it cannot be helped. He enters into transactions with a limited owner and advances money for limited permissible purpose and must take the risk of it. In this particular case, the defendant advanced money for the purpose of the temple. He had not only to see that the money was going to be used for the temple but had to see how much money had already been spent upon it and how much more was still required for not only for the completion of the temple but also for making provisions for its maintenance. Then when the intention of the lady in erecting the temple is an important factor it cannot be said that her subsequent conduct should be ignored. The learned District Judge has used the subsequent dedication of the property not only to show that the expenditure upon the temple was disproportionate but also in order to decide what was the governing idea which prompted the lady to construct the temple. A man''s intention can only be judged by surrounding circumstances. The earlier and the subsequent transactions cannot therefore be ignored. Taking all the circumstances into consideration the learned District Judge has come to a finding of fact that in building this temple the lady was not actuated by a desire to benefit the soul of her husband but wanted to make provision for her nephew. He has not erred in law and the finding is binding on us.

The learned advocate for the appellant has however contended that the plaintiff is debarred from questioning the bona fides of the lady in constructing the temple as subsequent to her death he ratified the dedication and in fact joined with Mahabir Chaudhuri and became a co-shebait with him. What really happened is this. It is clear from the various documents which have been placed before us that when the lady died, her entire property and all her affairs were in possession of Mahabir Chaudhuri, her nephew. The plaintiff''s evidence is, and I see no reason to disbelieve him, that he was not allowed to take possession of even that portion of the property which was left undisposed of by her. On the Ekadasi day, that is the day on which her sradh was to be performed, two documents came into existence. One was a Samarpannama by which the plaintiff made over a portion of the property which came to him by inheritance to the deity in return of which Mahabir Chaudhuri made him a co-shebait. By the second deed he made over certain properties independently to Mahabir Chaudhuri and his relations. These transactions obviously show that the plaintiff was in a helpless condition and had no option but to enter into these transactions, otherwise there seems to be no reason why he should have transferred a portion of the property inherited by him to the relations of the lady. There is not one word in the documents (namely Exs. A and B) which have been relied upon by the defendant to show that the plaintiff ever admitted that the expenditure on the temple was legal or binding upon him. He found himself faced with the position that a temple had been built and property dedicated, He could not touch the temple.

The only option which he had was to take steps to have the dedication set aside. That was expensive. He wanted to make a good use of a bad bargain and thought that if by transferring a small property he could make himself a co-shebait he would be benefiting himself. In fact he also ratified an earlier transaction, that is the sale of Gouspur Hijra to one Baldeo Prasad. His evidence is that he got Rs. 4,000 cash from him in order to ratify that transaction. Because a portion of the alienation for the purpose of the temple has under certain circumstances been accepted by the plaintiff, it does not follow that the expenditure was either legal or justified or in any way binding upon him. On the whole, the suit has been rightly decreed. As however, we do not find that the plaintiff a asked for, surrender of possession and the defendants refused it, we think that the plaintiffs should not be allowed mesne profits for the period prior to the institution of the suit. The decree of the trial Court will be modified accordingly, and with this modification the appeal is dismissed with costs.

Madan, J.

I agree.