Narayan Sahay and Others vs Hikayat Mian and Others

Macpherson, J.—The plaintiffs-appellants with defendant 11 are brothers sons of Sheonath Sahai, a pleader of Chapra, who died in 1900 leaving his widow, defendant 4, but no issue. The suit was brought on the basis that the nephews being the next reversionary heirs of Sheonath Sahai were entitled to a declaration that the sale-deed dated 9th October 1915 in respect of 3 bighas 13 kathas 13 dhurs of kasht land formerly held by Sheonath Sahai, which was executed by the widow in favour of defendants 1 to 3, was without consideration and legal necessity and that a rent sale of the holding held on 9th September: 1926 was collusive, fraudulent and not binding on the reversionary heirs.

The learned Subordinate Judge granted the declaration in respect of the sale-deed and refused it in respect of the rent sale and directed the parties to pay their own costs.

The plaintiffs have appealed against the refusal of the declaration in respect of the rent sale and defendants 1 and 3 have preferred a cross-objection impugning the declaration granted in respect of the sale-deed. The plaintiffs'' case was (1) that the widow had no necessity to incur debts or to execute the sale deed, and that the necessity and consideration mentioned therein are all false; and (2) that as regards the rent sale, there was collusion between the widow, defendants 1 to 3 and the landlords, defendants 1 to 10, who instituted the rent suit. Defendants 1 to 3 alleged that they purchased from the widow after satisfying themselves on full inquiry that there was legal necessity, and in fact such necessity existed and actually was brought about by the harassment occasioned to the widow by the plaintiffs themselves.

They further contended that they had nothing to do with the rent suit filed by the landlord who had refused their tender of the rent because these defendants refused to pay the chauth or salami of one-fourth of the sale price which the landlords claimed from the purchasers as a condition of acknowledging them and receiving rent from them. They pleaded that they had purchased at, rent sale to safeguard their own interest.

In her written statement the widow averred that she had been put to heavy loss and expend it are on account of civil and criminal cases started by the plaintiffs against her and had incurred debt of Rs. 12,000 to Rs. 13,000 on that account. She protested that the sale-deed was for consideration and legal necessity; she had even executed various sale-deeds including two in favour of the nephews of her husband who are parties to the suit.

The allegation of collusion in respect of the rent sale was unfounded. Defendants 8 to 10 denied that the rent suit was collusive and that defendants 1 to 3 were in any way connected with these defendants. In my judgment the appeal must fail and the cross-objection must succeed.

The sale-deed of 9th "October 1915 purports to be for a consideration of Rs. 1,600 of which Rs. 1,350 is set out as having been deposited with defendants 1 to 3 for payments to five creditors of the executant, Rs. 185 for payment of rents due by the executant to various landlords and the balance Rs. 66 as cash for the lady''s necessary expenses. Now it is proved that the landlords ware about to sue for rent and that before the sale-deed was executed the Rs. 185 was paid down by defendants 1 to 3 to the landlords to prevent institution of suits against defendant 4, while the small sum of Rs. 66 would be required for expenses in connexion with the transaction and other necessary expenditure.

The five debts were represented by hand-notes and a bond. The earliest debt was Rs. 400 representing a hand-note for Rs. 270 executed in favour of Babu Dhanindra Prasad on 24th January 1913. The next is a sum of Rs. 50 representing a hand-note of 7th June 1913 for Rs. 35 in favour of Babu Sitaram Singh. The third is for a sum of Rs. 450 representing a hand-note for Rs. 400 taken on 24th August 1914 from Rai Jagdam Sahai. The fourth is Rs. 225 due on a hand-note of 25th February 1915 in favour of Debi Prasad Agarwala. The fifth is a simple bond dated 31st March 1915 in favour of Ramkrishna Prasad Singh but really payable to Mt. Mantoran Kuar.

Now there can be no doubt whatsoever on the evidence that vendor and vendee equally acted bona fide. The full consideration of Rs. 1,603 was certainly paid by defendants 1 to 3. For the area demised with its heavy rent of about Rs. 20 a bigha the sale price was quite adequate. There were pressing debts at a high rate of interest and the purchasers knew of them because they themselves paid the debts direct. They certainly made inquiry from the lady and her manager Baijnath as to the necessity for the sale. What they were told was that the necessity was such that even the reversioners themselves were purchasing from the widow.

One of the plaintiffs had in 1904 purchased for Rs. 377 from her about 2� bighas of land with a jama of Rs. 5-11-9 and on 23rd August 1913, the widow had sold about; 5� acres of land for Rs. 1,170 to the wife of plaintiff 3, Maheshwar Prasad, on the ground that it was impossible to pay the debt except by sale of the property.

In my opinion there was, in all the circumstances of the case, adequate inquiry as to the necessity for the sale of the property belonging to the vendor''s husband especially when the inquirer knew that the sale proceeds went to pay genuine and pressing debts at a high rate of interest, and it was notorious that there had been heavy litigation between the widow and the reversioners wherein she had incurred enormous expense with the result that the income was insufficient for her support and she had to live on the capital.

And apart from the bona fide inquiry made from the person who would know best, I am of opinion that the evidence for the defence and especially that of the widow and her relations, ought to have been accepted by the Court below and that it shows not only that the items which made up the Rs. 1,600 were perfectly genuine but constituted items of legal necessity which the widow was unable to meet out of the income or by any other way than by sale of the property of her husband. The learned Subordinate Judge has been unreasonable in his treatment of the defence evidence and has failed to do justice to it. It is clear that Sheonath left debts and especially arrears of rent which the widow had to meet. On his death she was subjected to persecution by the reversioners--indeed she could only get one of them to perform the cremation ceremony by a substantial bribe--and their attempt to seize her property led to many big criminal cases which involved her in an expenditure of Rs. 12,000 to Rs. 13,000 much of which, as the evidence of Baijnath shows, had to be borrowed on hand notes.

Her helpless position can be apprehended from the fact that she secured an order for Rs. 3,000 compensation against them in a Section 145 case but has been unable to realise it. Palpably the estate, diminished by the amount of this expenditure until the usufruct available for her maintenance is, as the evidence on her behalf proves, no more than about Rs. 425 per year. The learned Subordinate Judge ought to have accepted the defence evidence on this point. Much of the documentary evidence adduced on the other side was of no value in the face of the testimony that the shares of the villages produced tiny amounts net, some of which even were not realisable Even the Court below would allow her a minimum expenditure of Rs. 1,000 a year. It mentions that the plaintiffs calculate her income at more than Rs. 3,000 a year but does not accept this view and in my opinion it is untrue, and the learned Subordinate Judge is entirely wrong in the finding:

It is obvious that her net income from all these properties is more than sufficient for her maintenance.

A correct appreciation of the evidence on the record establishes that as a consequence of the expenditure in the oppressive litigation thrust upon her by the plaintiffs the income available for her maintenance is not sufficient for her reasonable needs and accordingly she was in the years 1913 to 1915 in such a position that it was necessary for her to borrow in order to maintain herself and perform the ceremonies which may properly be performed by a Hindu widow out of the estate of her husband. I now discuss the five items making up the sum of Rs. 1,350.

As to the first item, the lender is a respectable man and there is no doubt that he did lend the money and that it was duly repaid. The hand-note shows that it was required for the repair of the house and to meet the expenses of the medical treatment of the widow The inquiry as to the necessity for the loan which the lender made was from the maid-servant. In the circumstances of the case, it was decidedly a suitable inquiry, for nobody was better aware of the position. The testimony of the lady herself that she was ill for three or four months before borrowing the money and was ill'' for two months after borrowing, during which she was taking medicine, ought to be accepted. It is clearly established that the money was spent on repairing her house, which her nephew, Baijnath Babu, said that it was in a very bad condition, and in partially meeting the cost of medical treatment It is absurd to require the evidence of the medical attendants before accepting this item.

I have no doubt at all that the second item of Rs. 35 was taken for payment of Government revenue, the last day of the payment of which would be about 7th June and that the money was so used. As the lady had been ill and spent much money on her treatment, it was entirely probable that she was not possessed of the money required for this urgent expense.

The item of Rs. 450 paid to her sister''s son Jagdam Sahai has been criticised by the learned Subordinate Judge on the ground that no account paper was produced to show that the widow ever went to Gaya to perform the Gaya sradh of her mother-in-law who had recently died, for which purpose the money was alleged to have been borrowed, and he thinks that the lady would not have gone to the trouble of undertaking the journey as the plaintiffs were available to do it, and that it is improbable that Jagdam, who himself was indebted, was in a position to lend money. But on the evidence of the lady and Baijnath, there is, in my mind, no doubt at all that the money was actually borrowed for the purpose mentioned.

The lady was not cross-examined as to the necessity to which she deposed. It also appears that she has been in the habit of borrowing small amounts from him previously, and it is not surprising that she may have turned to him in her need. The mere fact that there was at some unspecified date a decree against him for a very large amount of money would have no significance in respect of his ability to lend a relative Rs. 400 in the year 1914. I have no doubt that the lady borrowed this money for and that she used it to perform the Gaya sradh of her mother-in-law, as was the defence case. It was also a proper liability of the estate of her husband, and she had no means at her disposal from the income of her estate.

The hand-note Ex. A, of the 25th February 1915, recites that the money was borrowed for the performing of the pindadan and sajiadan of her husband at her residence of Dharamnathji. The learned Subordinate Judge considers that the sradh and sajiadan having been performed shortly after the death of her husband

there does not appear to be any further necessity for her to perform sajiadan of her husband, almost 15 years after his death.

But the answer to this is that she was not even cross-examined as to the necessity which therefore ought to be accepted and that this small expenditure of Rs. 225 for the soul''s welfare of the departed husband was a reasonable and a proper necessity.

As regards the simple bond, the loan upon which was to pay part of the expense of a pilgrimage to Hardwar, it was urged in the first place that such pilgrimage was not necessary and again that in any case the loan was to be set off towards thika rent for Kothia payable by Mantoran Kuar. The learned Subordinate Judge held that the pilgrimage to Hardwar was not for the spiritual benefit of her husband. I do not agree that a pilgrimage to Hardwar would not be a spiritual benefit to her husband. She evidently thought so and has not been cross-examined on the point. The Court below also found that the evidence of Baijnath Sahai shows that the story of pilgrimage could not be true as Baijnath Sahai stated that she went to Hardwar about nine or ten years after the death of her husband in 1900.

But "nine or ten years" is manifestly an approximation and there can be no doubt that the went in 1915, as alleged, using the money then borrowed. As to the circumstance that she paid off by selling property of her husband, a debt which she had arranged to liquidate by the annual rent of Kothia, it must be taken along with the further circumstance that if the rent of Kothia was not available for her maintenance, she would have still less to live upon and be equally under the necessity of selling property of her husband in order to maintain herself.

In the result it is clear that, in the circumstances all the five items of expenditure come within the description of legal necessity. It is also important that the annual interest upon the debts was Rs. 175 whereas the income of the property, sold was only Rs. 45. In fact it was prudent to sell and in the ultimate interest of the estate of her husband which was liable for her maintenance. I am therefore of opinion that defendants 1 to 3 have discharged the onus upon them of showing that the sale was for consideration and for legal necessity and that it is therefore binding upon the reversioners. The cross objection therefore succeeds. In support of the appeal the first point taken was that the whole of the holding was not sold, as only an area of 3 bighas 12 kathas 7 dhurs was put up to auction. But the very simple explanation is that the auction, which took place after the revisional settlement shows the area of the holding as then entered in the record-of-rights while the area in the original deed is the area of the Cadastral Survey.

This point palpably fails. It is then urged that the only result of their purchase banana at the rent, sale was to make defendants 1 to 3 merely trustees for the reversioners. I am however of opinion that the trial Court has correctly found the facts and applied the law.

It appears that defendants 1 to 3 as purchasers paid the rent but in the name of the original raiyat as they had not secured mutation After a time the Landlord refused as he was entitled to do to accept such "marphat" payment from the purchaser, and demanded that the purchaser should pay 25 per cent of the purchase price as salami. When the, salami was not forthcoming, he sued the widow who was his recorded tenant and by completely regular procedure obtained a decree and sold up the holding in execution.

Now upon the facts, as found in the cross-appeal, it is clear that the plaintiffs-appellants as reversioners had no interest at all as the sale of 1915 bound both the widow''s and the reversionary interest, but even on the finding of the Subordinate Judge that the sale of 1915 was not binding upon the reversioners, the purchase bona fide by the vendee of the widow cannot be held to be in trust for the reversioners, since the vendee was not in a fiduciary position towards them. Assuming that the holding is not transferable without the consent of the landlord, defendants 1 to 3 who ex hypothesi would only hold the limited interest of the vendor, were not bound to consider the reversionary interest at all and Still less, to make for what could only be an interim record of their own names, a payment such as could be demanded, if at all, on a transfer of the whole raiyati interest.

Assuming that the chauth is the usual demand of landlords for a permanent mutation, it would be an unreasonable demand upon what is (again ex hypothesi) a transfer of a life tenancy of the widow. The conduct of the vendee was bona fide throughout and there was no collusion or fraud between the vendee and the widow; it is not even suggested now that there was collusion with the landlords. The finding of the Court below is affirmed.

Accordingly the appeal is dismissed with costs, the cross-appeal is allowed with costs, and the suit is dismissed with costs. Pleader''s fee in the Court below at ten per cent.

Agarwala, J.

I agree.