Mt. Alodhan Kuar vs Naurangi Singh and Others

Wort, J.—The appeal is by the plaintiff and a cross-appeal by the defendants in an action in which the plaintiff claimed to set aside two transactions by a widow as not being justified by legal necessity. As regards one of the transactions, the learned Judges in the Courts below have come to the conclusion that the case of the plaintiff was established, and we have no concern with that part of the case. But as regards the second transaction for a sum of Rs. 2500, the learned Judge in the Court below, confirming the decision of the trial Court, has decided that of the Rupees 2600, Rs. 1300 was for justifying legal necessity but the balance was not, and has made this order agreeing with that made by the trial Judge:

Defendants 3 and 4 and their heirs, representatives or assignees will be entitled to retain possession of the properties conveyed by the Kobala executed by defendant 1 beyond her lifetime on payment of Rs. 1200 together with interest thereon.

Neither the appellant before us nor the respondents justify that order and indeed it is impossible to hold that it should stand. The only question the Judge had to decide was whether the sale was justified: if it was not justified it should be set aside, if it were justified then it should stand, and no question of payment either by one party or the other to the opposite party could possibly come into the Judge''s consideration. The learned Judge has dealt with the case very largely on the footing of arithmetic. He has gone through several items composing the consideration for sale and, as I have said, has held that as regards Rs. 1300 the sale was justified and as regards Rs. 1200 it was not.

There were three substantial items-making up the Rs. 1200 which had to be considered. The original debt together with interest amounted to about Rs 600, another Rs. 400 and a further item of Rs. 200. As regards the Rs. 600, it was made up of the debt on a hand-note owing to a creditor other than the defendant; the same is to be said as regards Rs. 200.

The learned Judge has made a mistake with regard to these particular matters. Whatever view of the law one might take of the case, the question was whether a debt existed which justified the sale of the property, and, that being so, the learned Judge was not entitled to go back and enquire into the consideration for the debt already owing by the widow which was to be paid off by the consideration of the sale deed, that is to say, taking the Rs. 200 on hand-note into consideration which was for medical expenses. The learned Judge has analyzed that item and has come to the conclusion that Rs. 95 only was necessary. An enquiry of that kind was very far from the true nature of the enquiry which should be entered into in a case of this kind.

It is impossible to state the matter more succinctly than their Lordships of the Privy Council have stated it in AIR 1927 37 (Privy Council) where Lord Salver, son in delivering the opinion of the Judicial Committee made this statement:

The learned High Court Judges seem to have thought, that it is a complete statement of the law or that the sale will be invalidated wherever the part of the consideration not accounted for cannot be described as small. If this were sound, the question would in each case be a matter of arithmetical calculation, and opinions would necessarily vary as to what constituted the ''bulk of the proceeds'' or ''a small part'' of the same in each particular case, The learned Judges seem to have lost eight of the true question which falls to be answered in such cases, namely whether the sale itself was one which was justified by legal necessity.

This is the point of view from which the matter was approached in Hunooman Persaud Panday v. Mt. Baboeoe Mundraj Koonewree (1854. 6 M.I.A. 393 the earliest case stated at the Bar. The Judge in this case had to consider whether the sale itself was justified by legal necessity. As pointed out by Das, J. (as he then was) in Ram Asre Singh v. Ambica Lal A.I.R.1929. Pat. 216, that question is largely a question of fact. The cross-appeal relates to the items to which I have already referred. I have sufficiently dealt with the matter in dealing with the question which in the opinion of this Court the learned Judge in the Court below had to consider.

In those circumstances, the case will be remanded for the learned Judge to determine the matter in the light of these observations. In any event the order of the Judge ordering payment by the defendants to the plaintiff after the death of the widow is an order which cannot stand. The learned Judge in considering this question would take the circumstances surrounding the sale and the consideration and decide the question whether for the purpose of paying off the debts which he has already held to be valid it was necessary to sell the property in question.

In coming to his conclusion he will take into consideration the observations that I have made with regard to the two sums of Rs. 600 and Rs. 400.

The case will be remanded for determination of this question. The learned Judge will come to a finding on this point and remit his finding to this Court within a period of two months from the date of the receipt by him of the record.

Varma, J.

I agree.