Suradhani Debi vs Prolhad Mahi and Others

Agarwala, J.—This is an appeal by defendant 7 from a decision of the Subordinate Judge of Purulia confirming a decision of the Munsif of Raghunathpur.

The plaintiffs are the reversioners of one Jadu. On Jadu''s death his widow, defendant 3, executed a mukhtarnama in favour of the plaintiffs who were the sole reversioners of her husband. This mukhtarnama put them in possession of Jadu''s property and empowered them to manage it. They, for their part, undertook to supply defendant 3 with a certain amount of produce from the lands of Jadu.

In 1924, two years after the execution of the mukhtarnama, defendant 3 executed a patta in respect of a part of khata No. 200 which was one of the properties left by her husband. She also at the same time mortgaged the rest of khata No. 200.

In 1928, she sued the present plaintiffs, the lessees under the patta of 1924 and the mortgagees, alleging that the present plaintiffs had fraudulently induced her to execute the patta and the mortgage which were in favour of their relations. The defence of the present plaintiffs in that suit was that the transactions were genuine. Defendant 3 was permitted to withdraw that suit with permission to bring a fresh suit but no fresh suit was brought.

On 27th May 1935 defendant 3 executed a mortgage of khata No. 200 in favour of defendant 7, the appellant for consideration of Rs. 400. Soon after that she purported to surrender khata No. 200 to the landlord. The appellant, claims that the land was then settled with her by the landlord.

The plaintiffs sued for a declaration that the surrender and the settlement with defendant 7 were not binding on them. The first Court granted the plaintiffs a declaration that the surrender by defendant 3 to the landlord and the settlement by the landlord with defendant 7 were not binding on the plaintiffs beyond the life time of defendant 3. That decision has been upheld in appeal. The Courts below have found that; there was no legal necessity for the mortgage of 1935 or for the surrender.

That finding is challenged in second appeal. The mortgage of 1935 was said to be for the purpose of raising money to enable defendant 8 to build a house, her husband''s house having fallen down. The Court of appeal below found that defendant 3 was not residing in the house left by her husband but with some relations and that because she had no need of a house she allowed it to fall into a state of disrepair.

In these circumstances the Court concluded that there was no legal necessity for defendant 3 to borrow money for the purpose of building a house.

Mr. Mazumdar contends that every widow requires a house and that, accordingly, on the findings, it should be held that there was a legal necessity for her to borrow money for the purpose of constructing a house. It is of course true in one sense that every individual requires a place of abode but that does not mean that there is necessity in the legal sense for building a house. I see no reason therefore for disturbing the finding of the Courts below that in this case there was no necessity for mortgaging khata. No. 200 in 1935, or for surrendering it to the landlord.

It is next contended that the widow had an absolute right to surrender as she was the representative for the time being of the tenancy left by her husband. As early as 1919 this Court in Jumra Prasad Singh v. Basdeo Singh AIR 1919 Pat. 120 held that the surrender to the landlord, by a Hindu widow, of her entire interest in a raiyati holding in which she is for the time being in occupation, if it forms merely a part of the estate to which she succeeds, is a transfer of her limited interest in such holding and this right of transfer by way of surrender is vested in every Hindu widow, irrespective of the provisions of the Bengal Tenancy Act, that is to say, she may exercise it in case of legal necessity or to the extent of the interest which she has during her life-time. Mr. Mazumdar contends that this decision is wrong in so far as it is based on the notion that a surrender by a Hindu widow is a transfer of her limited interest. The decision however has not been challenged since 1919 and is binding on me. Reference was made to the Full Bench decision in Mt.Sheoraji Kuer Vs. Dhani Mian and Maharani Janki Kuer, where the right of the landlord to enter upon a holding which has been surrendered after it has been encumbered by the tenant was upheld. That case has nothing to do whatsoever with the question that arises in the present case.

It was next contended by Mr. Mazumdar that inasmuch as the plaintiffs had relied on the genuineness of the patta and the mortgage of 1924, in the suit instituted by defendant 3 in 1928, they should not have been heard in the present litigation to say that those transactions were not acted upon. It is difficult to see what that question has to do with the question that arises in this litigation. The patta and the mortgage were documents executed by defendant 3 herself and nothing which the plaintiffs said or did with respect to those documents subsequently can have any effect on the transactions themselves. The question whether they were acted upon or not acted upon is beside the question whether in 1935 defendant 3 was justified in executing a fresh mortgage and surrendering the holding.

The last contention of Mr. Mazumdar was that as the appellant had been let into possession of the land in dispute, and was an occupancy raiyat of the village she had acquired occupancy rights in khata No. 200. There is no suggestion in either of the judgments of the Courts below that the appellant is a settled raiyat of the village. That question appears not to have been raised in either of the Courts of fact and as if; will depend upon evidence it cannot be raised in second appeal.

It was then argued that it is possible that the appellant may have acquired occupancy rights by 12 years possession before the reversion falls in and that accordingly the plaintiffs should not be given a declaration in the form in which it has been granted by the Courts below. With regard to that Mr. Chatterji appearing for the plaintiffs-respondents has no objection to the declaration being modified to this extent that it will be subject to such statutory rights, if any, as defendant 7 may acquire during the life-time of defendant 3.

With this modification the appeal will be dismissed with costs.