Patna High Court
Sant Prasad Singh And Anr. vs Charitar Singh And Ors. on 18 July, 1949
Equivalent citations: AIR1951PAT539, AIR 1951 PATNA 539
JUDGMENT Narayan, J.
1. This is a defts.' appeal, & it arises out of a suit for a declaration that the pltf. is the nearest reversionary heir of one Bhagwati Prasad Singh, & that a mukarrari deed executed by the widow of the said Bhagwati Prasad Singh is a collusive & fraudulent document, & not binding on the pltf. Bhagwati had a brother named Kailashpati who died in a state of jointness with him leaving a widow. Mt. Parbati Kuer, &, according to the pltf's. case, a daughter, Lachhmina Kuer, & a daughter's son, Mahabir Singh After the death of Bhagwati Prasad Singh, Parbati Kuer, the widow of Kailashpati, applied for the registration of her name in the Land Registration Dept. with regard to one half share in the zamindari properties which had belonged to Bhagwati Prasad Singh & Kailashpati Singh; but her appln. was contested by Mt. Deomurat Kuer, the widow of Bhagwati Prasad Singh, & was ultimately rejected. The properties left by Bhagwati Prasad Singh had come into possession of the deft, l, Mt. Deomurat Kuer, as his widow, & the pltf's. allegation is that Sant Prasad Singh, the son-in-law of Kailashpati Singh, & Mahabir Singh, Kailashpati Singh's daughter's son, began to manage the properties of the lady. Sant Prasad Singh & Mahabir Singh have been impleaded as defts. in this suit, & it is said that they in collusion & concert with one Babu Amirchand Lal, the husband of Deokumari Devi (deft. 4), & the father of Brijnandan Sahay (deft 5) got the mukarrari deed in question executed with regard to 240 bighas of land at a nominal jama of Re. l per bigha. The consideration mentioned in the document is Rs. 8000 which is the amount of nazrana; but it is alleged that this amount was never paid, & that the recitals in the document about the payment of consideration are all wrong.
2. Sant Prasad Singh, Mahabir Singh, Deokumari Devi & Brijanandan Sahay contested the suit, & their contention was that the pltf. was not the reversionary heir of Bhagwati Prasad Singh, having never any connection with this family; that the deft. 8, Mahabir Singh, was Bhagwati Prasad Singh's daughter's son & hence his nearest reversionary heir; & that the mukarrari deed was a genuine & valid document executed for legal necessity & binding on the reversioner.
3. The learned Subordinate Judge held that the pltf. was the nearest reversionary heir of Bhagwati Prasad Singh, & that Mahabir was not his daughter's son. But the mukarrari deed in question was held by the learned Subordinate Judge to be a genuine document binding on the reversion. The suit was accordingly decreed in part by the Ct. below.
4. The applts. before this Ct. are Sant Prasad Singh & Mahabir Singh, the defts. 2 & 3 respectively, & the pltf. Charitar Singh & deft. l, Mt. Deomurat Kuer, have filed cross-objections.
5. The contention of the applts. is that the Ct. below was wrong in holding that the pltf. was the nearest reversionary heir of Bhagwati Prasad Singh & in overruling the plea of the defts. that Mahabir Singh was his daughter's son. The pltf.'s cross-objection is directed against the finding of the learned Subordinate Judge that the mukarrari deed is a document binding on the reversioner & the cross objection by defendant 1 is directed against the finding of the learned Subordinate Judge that; the pltf. is the nearest reversionary heir of Bhagwati Prasad Singh & also against his finding that the mukarrari deed is a genuine & valid document. This lady, Mt. Deomurat Kuer, has instituted a suit for a declaration that the mukarrari deed in question be declared null & void as this document was obtained from her after practising fraud upon her. This suit is still pending in the Ct. of the Subordinate Judge of Shahabad.
6. Mr. D. N. Varma for the resp. 3 in whose name the mukarrari document stands argued before us that under the law the cross-objection filed by the pltf. & the lady Mt. Deomurat Kuer could not be entertained by this Ct.
7. The most vital point in this case is whether the pltf. resp. Charitar Singh is the nearest reversionary heir of the late Bhagwati Prasad Singh, & for the determination of this point findings are required on two important questions of fact which are (l) whether the applt. 2 Mahabir Singh is the daughter's son of the late Bhagwati Prasad Singh, & (2) whether the pltf. is an agnatic relation of late Bhagwati Prasad Singh & is related to him in the manner alleged. If the applt. 2 is held to be Bhagwati's daughter's son, he would exclude the plft. even, if the pltf. is held to be the nearest surviving agnatic relation of Bhagwati. Both these questions have been very elaborately discussed in the judgment of the Ct. below & a very careful appraisement of the evidence has been made by the learned Subordinate Judge. But as a Ct. of first appeal, we were bound to examine the entire evidence & we have done that with meticulous care. The only lacuna which existed in the evidence has been filled up by the examination of the lady, Mt. Deomurat Kuer, as a Cc. witness in this Ct. We considered it essential to examine the lady because the question raised was whether Mahabir Singh was her daughter's son or a daughter's Son of Parbati & Kailashpati Singh, the brother of Bhagwati Prasad Singh. Unfortunately, the lady had not even filed a written statement in the suit, & neither party had cared to examine her as a witness in the Ct. below, though the pltf. was anxious to show that she had never any child & the contesting defts. were anxious to show that Mahabir was her daughter's son. The defts. probably thought that they stood fortified by the recitals in the mukarrari deed executed by the lady wherein she bad described Mahabir Singh as her nati (grandson) & also by the recitals in certain letters said to have been addressed by the lady to Mahabir. But at least deft. 4, Mt. Deokumari Devi, in whose name the mukarrari document stands & her husband Mr. Amirchand Lal who, it appears, is mainly responsible for the execution of this document, should have realized that in view of the allegations made by the pltf. they had to show that they had acted in good faith in their dealings with the lady. It is needless to say that a transferee from a Hindu widow has an exceptional & onerous position & he does not occupy the same position as any other transferee in whose favour certain presumptions will be raised under ordinary circumstances. This lady has already instituted a suit for a declaration that the mukarrari deed was brought into existence by practising fraud upon her, & she has made very serious allegations against Sant Prasad Singh & Mahabir Singh & against Amirchand Lal & his wife. The distinct case which she has made out is that she did not "receive a single farthing out of the nazarana money mentioned in the mukarrari patta" & that:
"Sant Prasad Singh & Mahabir Prasad Singh, in colluaion & concert with the delta, (meaning the defts. Deokumari Devi, wife of Amirchand Lal, & Brijanandan Sahay, minor son of Amirchand Lal), deceived her, & fraudulently got the mukarrari deed executed by her for their own benefit in favour of their creature."
Because the suit instituted by the lady is still pending, we would avoid making any observation which might prejudice the parties in that litigation or which might embarrass the Subordinate Judge in the trial of that suit ; but, in view of the submission of Mr. B. C. De for the applts. before us that the lady would not have called Mahabir as her nati in this mukarrari document if he would not have been her daughter's son, it is a perfectly relevant consideration in this case whether any value should be attached to that recital in the document or not. If we find that this recital is wrong, we should not hesitate to say that, & We are bound to take into consideration in what circumstances this document had come into existence. If the contesting defts. of this suit are determined to take advantage of the recitals in the mukarrari deed & the recitals in certain letters said to have been written by, or on behalf of the lady, it will be perfectly legitimate for the lady & the pltf. to show in this litigation that the mukarrari document was obtained after practising fraud upon the lady, & that the letters were not actually sent by, or under instructions from, her. Admittedly, the lady is a purdanashin lady, & to quote the language used by the Judicial Committee in a very recent decision Atmaram Maneklal V. Bai Hira, 75 I. A. 108:(A. I. R. (35) 1948 P. C. 111) "the law has accorded to persons in the position of the lady a high degree of protection in their dealings with persons with whom they contract."
Their Lordships cited an earlier decision of the Board in Hem Chandra v. Suradhani Debya, 67 I. A. 309 : (A. I. R. (27) 1940 P. C. 134) in which it had been held that "a purdanashin woman of considerable business capacity was not bound by a mtge. agreement which was read but not explained to her before she signed it, because she did not understand that she was making herself personally bound to repay the borrowed money."
In this case the principle was laid clown that, if the relation between the lady executant & the beneficiary is intimate, the onus on the beneficiary becomes heavier. The evidence in this case unmistakably goes to show that the lady was completely under the influence of Sant Prasad Singh, Mahabir Singh, Amirchand Lal & Amirchand Lal's wife when the document came to be executed, &, if she was completely under their influence at the time of the execution of the document, it was very easy for them to have such recitals made in the document as would be of distinct advantage to them (His Lordship discussed the evidence & concluded.)
8. My conclusion, therefore, in agreement with the learned Subordinate Judge, is that it is well established that Bhagwati Singh & deft. l had no daughter, & that Mahabir is not their daughter's son.
9. The next question is whether this pltf. is the next reversionary heir of the late Bhagwati Prasad Singh. [After discussing the evidence his Lordship held that the pltf. was the nearest male agnatic relation of Bhagwati Prasad Singh & hence his reversionary heir. His Lordship then proceeded.] 10-11. On the merits, therefore, the appeal of Sant Prasad Singh & Mahabir Prasad Singh is not fit to succeed ; but the decree of the learned Subordinate Judge cannot be sustained, as he has merely granted a declaration to the pltf. that he is the nearest reversionary heir of the husband of deft. 1, & has refused to him the main relief. The relief sought is described as follows :
"On adjudication of the above fact, it may be held that the mukarrari deed dated 19-5-1941 is collusive, fraudulent, without consideration & legal necessities, that it is not genuine & that it is not binding upon the pltf., the next reversioner."
One of the pleas taken by the defts. was that, because of s. 42, Specific Relief Act, the pltf's. claim was not fit to succeed, & the learned Subordinate Judge, therefore, framed the following issue: "Is the suit barred by Section 42, Specific Relief Act?" The issue was, however, answered in the negative, & the learned Subordinate Judge was of the opinion that, even if the declaration sought by the pltf. with regard to the mukarrari document could not be granted to him, he was entitled to the declaration that he was the nearest male agnate & the reversionary heir of the husband of deft. l. But, in my opinion, the view taken by the learned Subordinate Judge is erroneous, & he was wrong in not following the decision of the Judicial Committee in Janaki Ammal v. Narayanasami Aiyar, 43 I. A.P. 207 : (A. I. R. (3) 1916 P. C. 117). He has tried to distinguish the P. C. case, but I am not quite able to understand his reasoning in support of his view that the facts of the P. C. case are so much distinguishable from the facts of this present case, that the principle laid down by their Lordships car not be applied in this case. What their Lordships of the Judicial Committee held in Janaki Ammal v. Narayanasami Aiyar, 43 I. A 207 : (A. I. R. (3) 1916 P. C. 117) has been explained & summarized by their Lordships themselves in a subsequent decision, Saudagar Singh v. Pardip Narayan Singh, 45 I. A. 21 : (A. I. R. (4) 1917 P. C. 196). Their Lordships say that the point of that case is this :
"There was a Hindu widow entitled to an estate, & a suit was brought by a person, presumptively entitled as heir after her death, to prevent waste. It was held that there was no waste at all, & the question arose whether, under those circumstances, it was proper to give the persons presumpitvely entitled a declaration of their title as presumptive, or, as sometimes called reversionary heirs, & it was held by this Board, that no such declaration ought to be made."
In this case also, there is a Hindi widow entitled to an estate, & a suit has been instituted by a person presumptively entitled as her heir after her death for a declaration that a mukarrari deed executed by her is fraudulent & without consideration & legal necessity & not binding on the reversion. In the p. C. case, it was held that there was no waste at all, & in this case it has been held that the mukarrari document is neither fraudulent nor without consideration & legal necessity, & that it is binding on the reversion & the pltf. as the reversionary heir. Their Lordships of the Judicial Committee held that, no waste having been proved, the title of the pltf. as presumptive heir could not be declared. This case is certainly analogous to the case before their Lordships, inasmuch as the question in this case also arises as to whether, after the finding that the document was for consideration, & legal necessity & binding on the reversion, it could be merely declared that the pltf. was the next reversionary heir of the husband of deft. l. I feel no hesitation in holding that the principle of Janaki Ammal v, Narayanasami Aiyar, 43 I. A. 207 : (A. I. R. (3) 1916 P. C. 117) is applicable to this case & that no declaration to the effect that the pltf. was the next, reversionary heir of the husband of deft. 1 could have been made in this case, if the pltf. had failed to show that the document was not for consideration & legal necessity & not binding on the reversion. In Saudagar Singh's case, 45 I. A. 21: (A. I. R. (4) 1917 P. C. 196), their Lordships of the Judicial Committee referred to Section 42, Specific Relief Act, & also made mention of the following illustration given in that section :
"The widow of a sonless Hindu alienates part of the property of which she is in possession as such. The person presumptively entitled to possess the property if he survive her may, in a suit against the alienee, obtain a declaration that the alienation was made without legal necessity & was therefore void beyond the widow's lifetime."
This illustration & the decision of the Judicial Committee in Janaki Ammal's case, (431. A. 207: A. I. R. (3) 1916 P. C. 117) as explained by their Lordships in Saudagar Singh's case, (45 I A 21: A. I. R. (4) 1917 P. C. 196) appear to be a settler on the point, &, in my opinion, the learned Subordinate Judge, after he had refused to set aside the alienation should not have granted a declaration only to this effect that the pltf. was the presumptive heir of the late Bhagwati Prasad Singh, the husband of deft. 1. The applts., therefore, were right in submitting that, the mukarrari deed in question having been held to be a document binding on the reversion, the Ct. below had erred in granting a declaration to the pltf. that he was the nearest reversionary heir of the late Bhagwati Prasad Singh.
12. The pltf., as I have already stated, has filed a cross-objection in this case, & his cross objection is directed against the finding of the learned Subordinate Judge that the mukarrari document is binding on him, Mr. D. N. Varma on behalf of the defts. has strenuously argued before us that neither the cross-objection of the pltf. nor the cross-objection of the lady Mt. Deomurat Kuer is entertainable. So far as the cross-objection of the lady is concerned, ii raises the following three points: (l) That the Ct. below was wrong in holding that the plaintiff was the nearest agnatic relation of her husband & hence his reversionary heir. (2) That the Ct. below should have held that the mukarrari deed was not a valid document, & had been executed after practising fraud upon her, (3) That the Ct. below should have held that the mukarrari deed was not executed for the benefit of the estate, & should have rejected the evidence adduced by the defts. for proving that it was a document executed for legal necessity.
13. The first contention fails in view of my finding that the pltf. is the nearest male agnate & the reversionary heir of the late Bhagwati Prasad Singh, & the second contention is beyond the scope of this suit. As already stated, a suit has been instituted by the lady for setting aside the mukarrari deed on the ground of fraud, & the issue that has to be decided in that suit cannot be decided by us in this present suit. The third point has been raised by the pltf. as well in his cross-objection, &, if the pltf's. cross objection is maintainable, the cross-objection of the lady also on this point can be entertained. The real question, therefore, is whether the cross-objection filed by the pltf. is maintainable, The contention of Mr. Varma, who appeared for resp. 3, Dulhin Deokumari Devi, wife of Amirchand Lal, in whose name the mukarrari document stands, was that neither the cross objection of the pltf. nor the cross-objection of the lady could be entertained, because the provisions of Order 41, Rule 22, Civil P. C., do not enable the resp. as a matter of right, to urge cross-objection against a co-resp. Mr. Varma has relied on certain decisions of this Ct. & other High Courts, & he thinks that it is now a settled law that where cros3-objections filed by a resp. are directed solely against a co-resp. whose case has nothing in common with that of the applt. they are not maintainable. The important decisions of this Ct. which have been relied on by Mr. Varma are those reported in Mt. Chanda Bibi v. Mohanram Sahu, 13 Pat. 200: (A. I. R. (21) 1934 Pat. 134) & Deo Narain v. Ganesh Ram, A.I R. (S3) 1936 Pat. 604 : (135 I. C. 936). In the former case, Dhavle J. with whom Saunders J. agreed, held as follows :
"A cross-objection against the applt. stands on a different footing from an objection against a co-resp. the former comes from a party who is content with the decree of the lower Ct. provided his opponent does not appeal, while the resp. who wishes to urge an objection against a Co-resp. is, as a general rule, merely availing himself of an appeal by another party relating to other matters to urge at a late stage what he could & should have urged by way of appeal earlier. There is little reason to drive the former to file an unnecessary appeal as there is to let the latter act beyond the period of limitation prescribed for appeals; & yet these would be the results if cross-objections were not permitted against the applt. or objections were permitted as a general rule between co-resps. I would, therefore, hold that the pltfs. reaps- are not entitled, as a matter of right, to urge their so-called cross-objection against those resps. who were defts. 2 to 6 in suit No. 57 below. But objections of this kind, not coming under Order 41, Rule 22, have been entertained under Order 41, Rule 33, in cases of an exceptional Kind."
It is to be noted that his Lordship was careful enough to point out that the pltfs. resps. were not, as a matter of right, entitled to urge cross-objections against the resps. who were defts. 2 to 6. His Lordship further pointed out that an objection of this kind, even if it does not come under Order 41, Rule 22 can be entertained under Order 41, Rule 33. This case cannot be regarded as an authority for the proposition that in no case can a cross-objection filed by a resp. as directed solely against a co-resp. whose case has nothing in common with that of the applt. be entertained. In the other case (Deo Narain v. Ganesh Ram), (A I. Rule (23) 1936 Pat. 604: 165 I. C. 936) the cross, objection in question was found to be nothing more than an old appeal which had been dismissed as time barred. The outstanding fact of this case was that an applt. who had filed an appeal beyond time, had attempted to take the same points which be had taken in his memorandum of appeal in a cross-objection. The last para of the judgment of Wort J. runs as follows :
"In my judgment, as I have already stated, the cross-objection in the present case is nothing more than the old appeal which was dismissed & therefore in my opinion does not lie. The cross-objection is therefore dismissed."
The fact which weighed very much with his Lordship, therefore, was that the cross objection was nothing more than an old appeal which had been dismissed as-time-barred. On the other hand, there are certain other decisions which have definitely laid down, on a consideration of the provisions of Rule 22 of Order 41 that it is open to a deft. resp. to file a cross-objection against a co-resp. & these decisions are Munisamy Mudaly v. Abbu Reddy, 38 Mad. 705 : (A. I. Rule (2) 1915 Mad. 648 F. B ) & Vankata Rao v. Satyanarayanamurthy, A. I. R. (30) 1943 Mad. 698 : (I. L. R. (1944) Mad. 147 F. B.). Both are E. B. decisions, & the question raised before us has been elaborately discussed by Leach C. J. & Krishnaswami Ayyangar, J. in the latter case. I would quote the following passage from the judgment of Krishnaswami Ayyangar J.:
"Where there is a decree for a part only of a claim, it means that it is party in favour of the pltf. & partly is favour of the deft. & when the reap. is given liberty by the rule to support the decree it is to enable him to support that part of the decree which is really is his favour. In doing so, ho is not attacking the decree in so far as it is in favour of the pltf. nor is he supporting it; for obviously he is not interested in supporting it at all. In fact, he is only attempting to prevent the pltf. from increasing the burden of the liability beyond the limit fixed by the decree appealed against. The word "decree" in this rule may be taken to mean decision as held in Sri Ranga, Thathachariar v. Srinivasa Thathachariar, 50 Mad. 866: (A. I. R. (14) 1927 Mad. 801) but that does not solve the difficulty. What is necessary to bear in mind is that the principle which is applicable to a simple case where a claim is wholly decreed or wholly dismissed, is equally applicable to a case where the claim is allowed in part & dismissed as regards the rest. In the latter class of oases. namely, where there is a decree for a part only of a larger claim, the decision is to be understood as comprising a decree in favour of the resp. to the extent to which the Ct. below had disallowed the claim of the applt. So understanding it, there is no difficulty whatever. It is by an omission to see clearly this double aspect when there is a decree for a part only of a claim, that errors are likely to occur."
14. In the present case also, we find that the suit was decreed in part, & to quote the language of Krishnaswami Ayyangar J., we have in reality what may be described as a double or composite decree. In fact, there is something more in this case, & it is this that the decree passed by the learned Subordinate Judge in favour of the pltf. is an infructuous & an invalid decree, inasmuch as it was passed in contravention of the provisions of Section 42, Specific Relief Act. After the finding that the mukarrari document was a document binding on the reversion, the Ct. below could not grant a decree to the pltf. resp. that he was the nearest reversionary heir of the husband of deft. &, therefore, the pltf. was bound to urge by way of cross-objection in this case that the view taken by the learned Subordinate Judge was wrong, & that the decree which had been passed in his favour did not mean anything, unless it was declared that the mukarrari document was a document not binding on the reversion. It is therefore that the language of Rule 22 of Order 41 & of Rule 53 of Order 41 has been made very wide. Rule 22 says that any resp. though he may not have appealed from any part of the decree, may not only support the decree on any of the grounds decided against him in the Ct. below but take any cross objection to the decree which he could have taken by way of appeal, provided he has filed such objection in the appellate Ct. within the time prescribed. This pltf.-resp. has the right to support the decree on the grounds decided against him by the Ct. below, which are that the mukarrari document is a document binding on the reversion, &, if he can support the decree on these grounds, he can certainly file a cross-objection embodying the grounds on which he wants to support the decree. This decree was insupportable without a declaration that the mukarrari document was not binding on the reversion, &, therefore, it was quite open to the pltf. resp. to urge that the document had been executed without any legal necessity & did not confer any benefit upon the estate, & was consequently not binding on him as the reversioner. In, fact, the facts of this present case are somewhat peculiar & quite dissimilar to the facts of the other cases which had to consider the meaning & the effect of Rule 22 of Order 41 & for the simple reason that the decree passed in this suit, was unsustainable in absence of a declaration that the mukarrari document was not binding on the reversion, I think it was quite open to the pltf.-resp. to support this decree on the ground that the mukarrari document had not been executed for the benefit of the estate, & was consequently not binding on the reversion. I have already pointed out with reference to the relief portion of the plaint that it was the mukarrari document which was sought to be set aside. The learned Subordinate Judge misdirected himself when he granted a declaration to the pltf. that he was the nearest reversionary heir of Bhagwati Prasad Singh without granting the declaration that had been sought with regard to the mukarrari document. The pltf.-resp. is certainly entitled to show, that the decree is erroneous on this account, &" under the provisions of Rule 22 of Order 41 he is entitled to ask this Ct. to rectify the error committed by the learned Ct. below & to pass a proper & legal decree. In this view, I am of the opinion that the cross-objection of the pltf. is maintainable. It is needless to point out that Rule 38 of Order 41 has given even wider powers to the Ct. Under this rule, the Ct. has power to make a proper decree, & such power can be exercised in favour of all or any of the parties even though they may not have filed an appeal or objection. We cannot conceive of a better case in which we can act according to the provisions of B. 33 of Order 41. Here, on account of an erroneous view having been taken by the Ct. below an invalid or an infructuous decree has been passed, & we cannot refuse to hear the pltf.-resp. if he says that the decree passed by the Ct. below is erroneous, & that it should be corrected or amended in the manner urged by him. If the cross-objection filed by the pltf. resp. is entertainable, as, in my opinion, it is in so far as it seeks to have the mukarrari document set aside for want of necessity & benefit to the estate, then the cross-objection of the lady Mt. Deomurat Kuer as well, in so far as it relates to this point only, is entertainable. I was not able to under, stand the argument of Mr. Varma in this case that the lady's cross-objection is not maintainable, because she cannot derogate from her own grant. There is no bar to the lady showing that the document which she had executed was a fraudulent document, & that there was no necessity for it. The question whether it is a fraudulent document or not will be properly decided in the pending suit to which reference has already been made; but the question whether the document is for legal necessity or for the benefit of the estate is a question which can be properly decided only in this present suit. I, therefore, hold that, so far as the question whether the document was executed for the benefit of the estate or for legal necessity & is binding on the reversion is concerned, the cross-objection of the pltf. as well as the cross-objection of Mt. Deomurat Kuer are maintainable.
15. The only other point to be decided is whether the mukarrari document is a document which can bind the reversion. As already pointed out, the document in question is a perpetual mukarrari patta with regard to 152.76 acres of land equivalent to about 244 bighas, & it was executed on 19- 5-1941, for a consideration of Rs. 8000. The total rent payable by the mukarraridar is Rs. 240 including cesses. By the execution of this document, two rehan bonds (Exs. D 3 & D-4) executed by deft, l herself in favour of defts. 4 & 5 on 22 12-1939, for a consideration of Rs. 3000 each were redeemed. There was further a redemption of a rehan bond executed by Jadunandan Singh, the father of Bhagwati Prasad Singh, of the value of Rs. 799. Exhibits D (3) & D (4) had been executed by the lady for satisfying another rehan bond executed by Jadunandan Singh & a rehan bond executed by Bhagwati Prasad Singh. Rupees four thousand was required for the redemption of the rehan bond executed by Jadunandan Singh in favour of Tirlok Singh & Aslok Singh, & Rs. 700 was required for the redemption of the rehan bond executed by Bhagwati Prasad Singh in favour of Ghagh Singh. Besides these two documents, the lady herself had executed a rehan bond in favour of Sant Mahto for a consideration of Rs. 400, & this rehan bond was also satisfied after the execution of Exs. D (3) & D (4), the consideration of Exs. D (3) & D (4) being Rs. 6000. Some petty amounts had been required for meeting the expenses of certain oases, & Rs. 644 had been taken for repairing a portion of the residential house. From a perusal of the mukarrari document, also it appears that about RS. 700 was required for reconstructing a portion of the residential house, & Rs. 500 was required for satisfying petty loans which had been incurred for the treatment & the sradh expenses of Kailashpati Singh's wife & for repaying a loan of Rs. 100 which had been incurred for the treatment of Mahabir Singh & for performing the sataisa ceremony of his son The area mortgaged under the document Ex D (3) was 19.72 acre3, & the area mortgaged under the document Ex. D (4) was 24.89 acres. The total is 44.61 acres corresponding to 72 bighas. Besides this, 12 bighas had been mortgaged by virtue of the document Ex. D (1) which had been executed by Jadunandan Singh in favour of Tirlok Singh & Aslok Singh on 20-10-1896. The areas mortgaged under the rehan bond of 1891 executed by Jadunandan Singh, under the rehan bond executed by Bhagwati Singh in favour of Ghagh Singh, & under the rehan bond executed by the lady herself in favour of Sant Singh were 50 bighas, 4 bighas 11. kathas, & 4 bighas, respectively. Thus, the total area which had been mortgaged under these documents was only 59 bighas. For satisfying these rehan documents & for payment of certain petty loans & also for certain necessary expenses, the lady has executed a permanent mukarrari patta with regard to 244 bighas of lands at a rent which has been fixed for all time. If the intention was merely to redeem the rehan with regard to 60 bighas executed by Jadunandan in favour of Tirlok & Aslok, the rehan with regard to & bighas 11 kathas executed by Bhagwati Singh in favour of Ghagh Singh, & the rehan with regard to 12 bighas executed by Jadunandan Singh in favour of Tirlok Singh & Aslok Singh, it was not at all necessary to part with such a vast area of land belonging to the estate. Assuming that the lady, had executed the documents dated 22-12-1939, for legal necessity, & required money for redeeming the rehan bond of 1896, & also required Rs. 500 for repayment of the petty loans incurred for treatment, sradh & sataisa expenses, & Rs. 685 for reconstructing a portion of the house, it was not at all necessary to transfer 244 bighas of land permanently. The learned Subordinate Judge was very much influenced by the consideration that. by executing the mukarrari document, the lady made 160 bighas of barren & unculturable lands a source of permanent income to the estate, & redeemed rehans with regard to 84 bighas of lands, & thus added them to the corpus of the estate. It is impossible to agree with the learned Subordinate Judge that 84 bighas of lands, that is, the lands covered by documents Exs. D (3), D (4) &s D (1), had been added to the corpus of the estate. These lands have rather been lost to the estate for ever, & even if the lady wanted to redeem the old rehans, she could have done that by executing other rehan documents. I find no justification for a complete alienation of these 84 bighas of lands which can never come back to the estate now, if the mukarrari document is held to be a document binding on the reversion, & it is not at; all a sound argument to urge that about 169 bighas of barren & unculturable lands have become a source of income to the estate because of the execution of the mukarrari deed. A widow or limited heir has no power to grant a permanent lease, or a lease for a long term, so as to bind the reversion, unless it is justified by legal necessity, or it is for the benefit of the estate, or made with the consent of the next reversioners, & the argument that a permanent lease was granted because some lands were lying barren & uncultivated can be of no avail. The Judicial Committe has laid down that, if there is no necessity, benefit or consent, a limited owner cannot create a new & fixed rent for all time, though such rent be adequate at the time of fixing it. In Shibessuree Debia v. Mothoora Nath, 13 M. I. A. 270: (2 sar. 528 P. C.), their Lordships of the Judicial Committee laid down as follows :
"To create a new & fixed rent for all time, though adequate at the time, in lieu of giving the endowment the benefit of an augmentation of a variable rent, from time to time, would be a breach of duty in a sebait, & is not, therefore, presumable."
It is not necessary to say that the power of a limited owner to alienate a property in her possession is analogous to that of a shebait or mahanth to alienate debottar properties or to that of a manager of an infant heir as defined by the Judicial Committee in Hunoomanpersaud v. Mt. Babooee Munraj, 6 M. I. A. 893 : (1 Sar. 552 P. C.). In Abhiram v. Shyama Charan, 36 I. A. 148 : (36 Cal. 1003 P. C.), their Lordships observed as follows :
"The second question is whether, this being so, the mohunt had power to grant a mokarrari pottah of the mouzah. It is well settled law that the power of the mohunt to alienate debottar property is, like the power of the manager for an infant heir, limited to cases of un-avoidable necessity : Prosunno Kumari v. Golab Chand, 2I. A. 145 : (14 Beng. L. R. 450 P. C). In the case of Kanwar Doorganatk v. Ram Chunder, 4 I. A, 52 : (2 Cal. 341 P. C.) a mokarrari Pottah of dewattar lands was supports) on the ground that it was granted in consideration of money said to be required for the repair & completion of a temple, far which no other funds could be obtained. But the general rule is that laid clown in the case of Shibessuree Debia v. Mothooranath, 13 M. I. A. 270 : (2 Sar. 528 P. C.), that apart from such necessity to create a new & fixed rent for all time, though adequate at the time, in lieu of giving the endowment benefit of an augmentation of a variable rent from time to time, would be a breach of duty, in the mohunt. There is no allegation that there were any special circumstances of necessity in this case to justify the grant of the pottah of 1860."
16. In this case also, it cannot be said that there were any special circumstances of necessity to justify a grant of 244 bighas of lands by the patta of 1941. It need hardly be said that the prices of lands have considerably gone up since the date of the execution of the patta, & the obvious result is that properties which could have been regarded very valuable even at the present time, that is, in the year 19.9, were parted with permanently in the year 1941 for a consideration of Rs. 8000 only. It really shocks one's conscience to find that 244 bighas should have been transferred for a consideration of Rs. 8000 only & at an annual rent of Rs. 240. In Palaniappa Chetty v. Deivasikamony Pandara Sannadhi, 44 I. A. 147 : (A. I. R. (4) 1917 P. C. 33), their Lordships relied on the two decisions mentioned above, & observed as follows:
"Three authorities have been cited which established that it is a breach of duty on the part of a shebait, unless constrained thereto by unavoidable necessity, to grant a lease in perpetuity of debottar lands at a fixed rent, however, adequate that rent may be at the time of granting, by reason of the fact that by this means the debottar estate is deprived of the chance it would have, if the rent were variable, of depriving benefit from the enhancement in value in the future of the lands leased. These authorities are Shibessouree Debia v. Mothooranatk, 13 M. I. A. 270 at P. 275 : (2 Sar. 528 P. C.), Seena Peena Reena Mayandi v. Chokkalingam, 81 I. A. 88 at P 88 : (27 Mad. 291 P. C.) & Abhiram v. Shyama Charan, 36 I. A. 14.8 at p. 1.65 : (36 Cal. 1003 P. C.).
No doubt these cases dealt with agricultural lands, but no reason can be suggested why the principles they establish should not apply to a building site situate in the street of a village, as is the site in the present case. It may appreciate in value just as the land may. Moreover, if for the reasons above mentioned the grant of a lease in perpetuity of debottar lands at a fixed rent requires to be justified be unavoidable necessity, it is difficult to see why an absolute alienation in perpetuity of the same kind of lend in consideration of a premium should not equally require to be justified by the same kind of necessity, since it brings about quite as completely the same prejudicial result."
There can be no doubt that these lands have very much appreciated in value, & if the prices of the lands are fixed on the basis of selling rates prevailing at present, the conclusion is irresistible that the estate has suffered a very great loss by the execution of this document. Even the learned Subordinate Judge says that it is obvious from the statements of Mr. Amircand Lal that he has made a good bargain out of this transaction. But learned Subordinate Judge thinks that he has no reasons to suspect that Mr. Amirchand Lat has made an unconscionable bargain. As already pointed out, it was a clear breach of duty on the part of a lady to grant a mukarrari patta at a fixed rent, &, nobody can dispute that the lands have now so much appreciated in value that, if they are disposed of at present, they may fetch a very high price, & probably ten times more than Rs 8000, which, is the consideration of this document. This was, therefore, an absolutely imprudent transaction entered into by the lady who, as I have already said, was completely under the influence of Sant Mahabir, Amirchand Lal & Amirchand Lal's wife. This is the glaring instance of a case in which a lady of a very respectable family has, under evil influences, parted with a very valuable property for a nominal consideration, & the way in which this particular lady has acted shows that the spirit of the Hindu law not to give undue liberty to a woman, whatever be her age or condition in life, should still be maintained.
17. The cross-objection of the pltf., therefore, succeeds, & it is held that the permanent lease granted by the lady was not justified by legal necessity, & was not for the benefit of the estate. The mukarrari deed is not binding on the reversion & on the pltf. as the nearest reversionary heir of the husband o£ deft. 1. The cross objection of the lady succeeds only in part, that is, only in so far as it urges that the Ct. below should have held that the mukarrari deed was not executed for the benefit of the estate.
18. The appeal is dismissed with costs to the pltf.-resp. The cross objection of the pltf.-resp. is allowed with costs to be realized from the applts. & the resps. other than Mt. Deomurat Kuer, & the decree of the Ct. below is varied to this extent that it is further declared that the mukarrari deed in question is not binding on the reversion & on the pltf. as the reversionary heir. The pltf.-reap. would get full costs of the Ct. below which would be realized from the defts. other than deft. l. The cross-objection of the lady Mt. Deomurat Kuer is allowed in part, as indicated above; but she will not be entitled to any costs.
Sinha, J.
I agree.