Patna High Court
Babu Brijkishore Narain Singh And Anr. vs Babu Harbans Narain Singh And Ors. on 15 June, 1921
Equivalent citations: 62IND. CAS.611, AIR 1921 PATNA 397
JUDGMENT Bocknill, J.
1. This is an appeal from the decision of the Subordinate Judge of Gaya, dated the 20th May 1918. The tacts of the case are very simple, but they raise a some what interesting point which has been very well placed before us by the Advocates on behalf of both the appellants and the respondents.
2. On the 26th August 1860 one Babu Bhagwani Pratap Singh, a resident and Malik Zemindar of Mauzah Pawai, Perganah Sirie, Bahar, executed a deed of gift in favour of his daughter in law named Musammat Bahuria Rajbansi Koer, who was the wife of the donor's son, one Babu Jubraj Singh; by this deed of gift be gave the whole and entire 16 annas of his milkiat and malguzari right in several Mauzahs to the donee. This deed of gift appears from its terms to have been the corollary of a previous verbal gift. The gift was subject to no sort of restriction and vested the whole of the donor's rights in the lady. The properties which were thus given to this lady include those which have given rise to the present litigation.
3. In 1863 in the Court of the principal Sadr Amin at Gaya, Musmmat Bahuria Rajbansi Koer successfully sustained her title under this deed of gift as against a plaintiff, who had obtained an execution decree against her father in-law. In 1877 this lady obtained the registration of her name as proprietress of the properties in the Record of the Land Registration Department. There can be and is no contention in this ease that the donor had not the right of giving to his daughter in law the properties which he bestowed upon her by the deed of 1860. In 1893 Musammat Bahuria Bajbansi Koer made a Will. By this Will after reciting the deed of gift by which she had come into possession of her estates, the testatrix stated that she bequeathed to her daughter-in-law, Musammat Rajpati Koer, a life-interest in the properties which she had been given by her father-in-law.
4. It might be convenient to set out in detail the material parts of the Will. The testatrix says: "My daughter-in-law, Musammat Rajpati Koer, and my grandson, Babu Brijkishore Narain Singh, have attended me during my illness just as I wished and I am fully satisfied with their services. As I am taken ill frequently there is no certainty of my life. I, therefore, of my own free will and accord bequeath to Musammat Rajpati Koer and Babu Brikishore Narain Singh the Mauzahs mentioned above, on condition that if the said Musammat has a son born of her womb half the properties will go to her son and the other half to Babu Brikishore Narain Singh, that in case she has no son she will hold possession of the entire 16 annas of the properties for life and enjoy the proceeds thereof and that after her death the entire 16 annas of the aforesaid Mauzahs will belong to Babu Brikishore Narain Singh and his heirs." The testatrix' daughter-in-law, the beneficiary under the Will, had no son and when the testatrix died, Musammat Rajpati Koer in 1896 obtained Letters of Administration cum, testamento annexo. There can be no doubt that if one may use the expression in this country, Musammat Rajpati Koer obtained tinder the circumstances her present, what would be known as a, life-interest, or in other words, became the life-tenant of the properties in question.
5. I pass over certain transactions which Appear to me to be immaterial, but in 1897 Musammat Rajpati Koer obtained the registration of her name in due course as proprietress of the properties in the Land Registration Department.
6. The position, therefore, at this stage was that this lady was the tenant for life of the properties which had devolved upon her by the Will of her mother-in-law.
7. On the 24th September 1899 this lady executed a mortgage-bond in favour of one Babu Harbans Narain Singh. She had in 1897 executed a power-of attorney in favour Of her father-in-law, Babu Jobraj Singh, but she herself signed this mortgage and execution of it was admitted by Jobraj Singh apparently under his power-of-attorney. The loan was only for Rs. 800, but subject, of course, to interest. By it the lady mortgages certain of her properties to the mortgagee. It does not appear that the money borrowed was ever paid off and according to the plaintiffs' claim, the amount which they sought to recover in this suit was Rs. 6,749-5-3.
8. In 1902 Musammat Rajpati Koer relinquished her life tenancy in favour of the remainder-man and she died long before this suit was brought. It may be mentioned that before this suit was brought, the plaintiffs bad commenced an earlier case in 1914, but this suit was withdrawn. It will at once, of course, be seen that the question which is here under consideration is as to whether the defence which is put forward by the defendants, that the deceased Musammat Rajpati Koer as a tenant for life had no right in law to mortgage any of the properties in respect of which she held a life tenancy, is a good defence or not.
9. The Subordinate Judge has held that the plaintiffs' claim against the defendants Nos. 1 and 2 must succeed. The defendant No. 1 is the grandson of Musammat Rajbansi Koer and the remainder-man mentioned in her Will of 1893: the second defendant is the first defendant's minor son.
10. Now the only important question which arises in this case is, as to what are the circumstances under which it was open to a lady in the position of the mortgagor to mortgage a part of the property, which was then in her possession under her tenure, in such a manner as to bind those to whom, after her interest in the property had expired, such properties would descend by devolution under the mortgagor's mother-in-law's Will. It may at once be stated that there is ample authority for holding that it is possible in this country for a person possessed of estates appertaining solely to himself to grant by deed or Will an estate to some other person which will amount substantially to an estate which corresponds in extent to that which is known in English Law as a "Life estate" see Jotendromohun Tagore v. Ganendromohun Tagore 18 W.R. 353 : 9 B.L.R. 377 : I.A. Sup, Vol. 47 : 2 Suth. P.C.J. 692 : 3 Sar. P.C.J. 82. It is, of course,a matter of common ground that the interest which is ordinarily held by a Hindu widow in her husband's estate differs materially from that interest which is conveyed by an estate for life. The practical difficulty, however, here arises, because although there can be no doubt that the interest which Musammat Rajpati Koer hers acquired was a life interest, it may be somewhat doubtful as to what principles of law should be applied in considering the circumstances under which it might be legitimate for her to encumber life-estates with any form of charge such as a mortgage, as in this case. In English Law the matter presents no practical difficulty, owing to the fact that the tenant for life can only dispose of his estate under statutory provisions. It is not, however, impossible for a tenant for life to create a charge on his life-estate, provided that he obtains from the Court permission so to do; such permission would, in practice, only be granted if it were most clearly proved that such charge was required for the purposes of saving or benefiting the property. No sort of unauthorised encumbrance by a tenant for life can be regarded in law as binding the remaindermen, if such encumbrance does not take place by the direct authorization of the Court and show something like absolute necessity or great advantages. I think, personally, that it would be desirable that the authorization of Court should be necessary in this country in order to permit a charge made by a tenant for life upon his estate to be binding upon the remainder-men; this would not necessitate the introduction or adoption here of any English Statute, but would involve the following of what are now regarded as the sound principles which dictate the practices upon which charges of this kind are regarded as permissible. But unless such limitation was imposed by a Legislative provision, one must, 1 think, be thrown back upon the main ideas of the English common Law which are applicable to tenants for life who seam to encumber their life-estate. Those principles are founded very briefly on what may be regarded as the doctrine of waste, What is meant by that doctrine is simply that the tenant for life must in his conduct behave as if ho were substantially a trustee for the remainder men. The tenant for life cannot bind the remainder-men in any action which is brought by the party seeking to charge the remainder-men with liability for the conduct of the tenant for life. In other words, if a person, who has obtained over the estate of a tenant for life a charge of any kind, seeks to enforce that charge against the remainder-men, he must show that the charge was created by the tenant for life, under circumstances which justified the tenant for life in creating the encumbrance.
11. Now in this case it is, of course, of importance to see what was said in the document. In this case a mortgage bond was executed by Musammat Rajpati Koer in 1899. This document, which is Exhibit (1), commences by stating: "I am badly in need of money to pay the Government Revenue, Road and Public Works cess as also to repair the Pyne at Mauzha Pahra, but I do not see any means to procure money without raising a loan on interest and mortgaging my property, Therefore, of my own free will and accord, without force, coercion or inducement on the part of any individual, I have borrowed, etc.... "Although of some evidential value, it need hardly be pointed out that a mere recital of tenour similar to the above is of no conclusive character: for if such a proposition was to be admitted, then if any tenant for life anxious to raise money for his own purposes on his life-estate did so, it would be sufficient to recite in the document, under which he borrowed money upon the security of his life holding, circumstancss which might be wholly fictitious indicating the necessity for borrowing the funds. Apart from this there is no documentary evidence in favour of the plaintiffs, but there is a certain amount of verbal testimony which is not, however, of very convincing character.
12. The first witness for the plaintiffs was one Ram Dhayan Tewari, who says that about 16 or 17 years ago (i,e., prior to May 1918, the date when the witness gave his evidence), the Pyne in Mauzah Pahra was in fast repaired by Jubraj Singh, the father-in-law of the mortgagor, and he states that Jubraj Singh admitted to him that for this purpose money had been borrowed from the first plaintiff. The first plaintiff himself, Harbans Narain Singh, says that the money was borrowed from him to pay revenue and road cess and also to meet the repairing charge of the Pyne in Mauzah Pahra, He adds that he was satisfied as to the necessity for the loan and made enquiries from Jubraj Singh and several other people. I am afraid that I do not think that this evidence is of much value. It carries the matter little further than does the language of the mortgage deed. The fact is that if a person ventures to advance money to a tenant for life which purports to be a charge on an estate enjoyed by a tenant for life, he (the lender) must be in a position, if he is to maintain against the remainder-man any effective imposition of liability by them, to prove beyond any shadow of doubt that there existed for the loan a necessity which was of such a character that unless it had been made, grave injury would have resulted to the property in question.
13. I do not think that any such position has been established by the plaintiff, but, apart from that, there has been produced before this court the Deorhi Jama Kharch for periods which are material to the time at which this money is said to have been borrowed. They show, so far as can be gathered, the financial position of the Zemindari of Musammat Bahuria Rajbansi Koer, and, far from indicating the necessity for any borrowing, they indicate a constant credit balance of from, roughly, Rs. 7,000 to Rs. 11,000. Now that is the whole matter so far as it has been presented to this court. I do not think that the position taken up by the plaintiffs is in any way supported. It may be that, owing to the fact that the legal incidences of life estates are, in this country, seldom considered, because they are seldom met with, the true status of those who venture to lend money on the security of properties held in life-tenure is not altogether understood by them- It is as well that it should; and until legislation in India specifically defines under what circumstances a tenant for life can borrow for the purposes of the property in which he has a life tenancy, one can but deal with such questions on the broad principle that such encumbrances cannot, be validly effected in such a way as to bind the remainder men unless there is moat convincing proof that the estate itself would be in jeopardy without such assistance. For this reason, therefore, I think that the appeal must be allowed, and the suit of the plaintiffs dismissed with costs both in this court and in the court below.
Das, J.
14. I agree. I would add that the actual decision of the learned Subordinate Judge cannot for a moment be supported. The plaintiffs took the bond from Rajpati Koer who under the Will of Rajbansi Koer had a life-estate in the properties which are the subject matter of the present suit. It was Rajpati who actually executed the mortgage bond, and yet the learned Subordinate Judge has solemnly come to the conclusion that the money covered by the bond was borrowed by Jubraj Singh in the jurat name of Rajpati Koer. The conclusion is an extraordinary one, but the reasonings upon which the conclusion is based are still more extraordinary. It is said that as benami transactions are very frequent in this country, there is a strong antecedent probability that the transaction between Bhawani Pratap and his daughter-in-law Rajbansi was a benami transaction not intended to vest the title in the properties in Rajbansi. It is admitted that the transaction on the face of it was a gift by Bhawani Pratap in favour of Rajbansi. It is admitted that the documents of title stood in the name of Rajbansi. It has. not been found, and indeed there is no suggestion, that the income of the gifted properties was appropriated by Bhawani Pratap notwithstanding the gift in favour of Rajbansi. Rajbansi dealt with these properties as her absolute properties and indeed executed a Will in respect of these properties, giving a life-estate in them to her daughter-in-law, Rajpati. And yet the learned Subordinate Judge has come to the conclusion that Bhawani Pratap did not intend to convey these properties to Rajbansi, and the only ground assigned by the learned Subordinate Judge for his conclusion is that benami transactions are very frequent in this country. Now the answer to the argument employed by the learned Subordinate Judge is this that every apparent transaction must be presumed to be real, until the contrary is established. That contrary can only be established by evidence, and not by conjectures and speculations, however attractive that may be.
15. The learned Subordinate Judge next arrived at the conclusion that the Will executed by Rajbansi in favour of Rajpati, the executant of the mortgage, was not really a Will, but a deed of gift. Now, I do not think that it was open to the learned Subordinate Judge to take this view, having regard to the fact that the Will was established in a court of Probate, and that a court of Probate had granted Probate in respect of the Will. The question whether a document alleged to be a Will is in fact a Will is a question peculiarly for the court of Probate, and not a question for the court of title or a court of construction, such as the court of the Subordinate Judge is. It was open to him as the court of construction to construe the Will and to say that Rajpati had no estate or interest under the Will. It was open to him us the Court of title to hold that Rajbansi had no power to execute the Will. But it was not open to him to say that the document alleged to be a Will, and relied upon as a Will and established as a Will in a Court of Probate, was in fact not a Will, but a deed of gift.
16. I agree that this appeal must be allowed and the plaintiffs' suit dismissed with costs in both the courts