Case: Sheo Kuer Vs. Nathuni Prasad Singh &amp; Ors

the property left by Trilok Prasad Singh between themselves. The appellant, Sheo Kuer, who was appointed as a shebait under the deed of arpannama has thereafter, obtained special leave to appeal to this Court from the judgment of the High Court. We are, in this judgment, concerned with Sheo Kuers appeal, not with the appeal filed by Kachnar Kuer by certificate. 7. The High Court has rejected the evidence led to show that Trilok Prasad Singh had given authority to Kachnar Kuer to make an adoption to him. The finding that the adoption is without the authority of the husband and therefore void is not challenged before us either by Kachnar Kuer or by the adopted son and that finding must therefore be confirmed. 8. Since the evidence on the other question as to whether Trilok Prasad Singh had given authority to Kachnar Kuer to create a religious endowment was closely linked with the question regarding the authority to adopt and since the pattern of evidence on both the question is identical, the High Court held that Kachnar Kuer did not either have the authority of her husband to instal the deity or dedicate any property to the deity. This finding is not challenged before us by Sheo Kuer, the shebait appointed under the arpannama, and therefore we must proceed on the basis that the dedication was created by Kachnar Kuer without the authority of her husband. 9. The point involved for determination in the appeal thus relates to the powers of a Hindu female on whom property has devolved upon the death of her husband, to alienate the property for religious purposes. This question has been the subject-matter of several decisions of the Indian High Courts as also of the Judicial Committee. These decisions, beginning with one of the earliest pronouncements on the subject in Collector of Masulipatan v. Cavaly Vencata upto the decision of this Court in Kamala Devi v. Bachu Lal Gupta have been discussed with fullness and clarity by Mr. Justice Bijan Kumar Mukherjea in his Tagore Law Lectures on the Hindu Law of Religious and Charitable Trust. It is unnecessary to analyse the various decisions which the learned author has considered because the true position on the subject is crystallised in the decision in Kamala Devis case (supra). The law must now be taken as well-settled that a Hindu widow possessing a widows estate cannot alienate the property which was devolved on her except for special purposes. To support an alienation for purely worldly purposes she must show necessity but she has a larger power of disposition for religious and charitable purposes or for those purposes which are supposed to conduce to the spiritual welfare of her husband. As pointed out by the Privy Council in Sardar Singh v. Kunj Behari (49 IA 383 : AIR 1922 PC 261 : 69 IC 36), the Hindu system recognises two sets of religious acts : those which are considered as essential for the salvation of the soul of the deceased and others which, though not essential or obligatory, are still pious observances which conduce to the bliss of the deceaseds soul. The powers of Hindu female to alienate property are wider in respect of acts which conduce to the spiritual benefit of her deceased husband. The widow is entitled to sell the property, even the whole of it, if the income of the property is not sufficient to cover the expenses for such acts. In regard to alienations for pious observances, which are not essential or obligatory, her powers are limited to alienating only a small portion of the property. 10. Applying the principle accepted in Kamala Devis case (supra) the simple question for decision, in view of the fact that the arpannama was executed for a merely pious and not for an essential or obligatory purpose, is whether the alienation effected by Kachnar Kuer in favour of the deity is of a reasonable portion of her husbands property. Respondents Nos. 1 and 2, in paragraph 7 of their plaint, passingly mentioned that Kachnar Kuer had transferred "a considerable portion" of the properties left by her husband. In paragraph 13 of the written statement which Kachnar Kuer filed on behalf of herself and her adopted son, it was stated that in view of the fact that Trilok Prasad Singh had left about 150 bighas of land, the alienation of about 30 bighas in favour of the deity could not be said to be unreasonable or excessive. One hundred and fifty bighas are treated in the area as roughly equal to 90 acres so that 30 bighas come to about 18 acres. Whether the alienation for a pious purpose is of a reasonable portion of the property must necessarily depend the total extent of the property which has devolved upon the widow. The mere circumstance that a 100 acres are alienated by the widow for a pious purpose will not justify the setting aside of the alienation on the ground that 100 acres is large property. The High Court, without adverting to the fact that the widow had alienated only a one-fifth portion of the property which had devolved upon her, held that a dedication of a large part of the property, more than 18 acres of land, cannot be defended on the part of a holder of a widows estate . . . . This is all that the High Court has to say on the point and obviously, what it has said is not enough or relevant for invalidating the alienation. 11. Whether the alienation is of a reasonable portion of the property is not a matter to be decided on precedents because what is reasonable must depend upon the facts and circumstances of each case. But an alienation of a one-fifth portion cannot be said to be unreasonable and excessive. The finding of the High Court must therefore be set aside and along with it its judgment allowing the reversioners appeal and decreeing their suit.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]We are, in this judgment, concerned with Sheo Kuers appeal, not with the appeal filed by Kachnar Kuer by certificateThe finding that the adoption is without the authority of the husband and therefore void is not challenged before us either by Kachnar Kuer or by the adopted son and that finding must therefore be confirmed8. Since the evidence on the other question as to whetherTrilok Prasad Singh had given authority to Kachnar Kuer to create a religious endowmentwas closely linked with the question regarding the authority to adopt and since the pattern of evidence on both the question is identical, the High Court held that Kachnar Kuer did not either have the authority of her husband to instal the deity or dedicate any property to the deity. This finding is not challenged before us by Sheo Kuer, the shebait appointed under the arpannama, and therefore we must proceed on the basis that the dedication was created by Kachnar Kuer without the authority of her husband10. Applying the principle accepted in Kamala Devis case (supra) the simple question for decision, in view of the fact that the arpannama was executed for a merely pious and not for an essential or obligatory purpose, is whether the alienation effected by Kachnar Kuer in favour of the deity is of a reasonable portion of her husbands property. Respondents Nos. 1 and 2, in paragraph 7 of their plaint, passingly mentioned that Kachnar Kuer had transferred "a considerable portion" of the properties left by her husband. In paragraph 13 of the written statement which Kachnar Kuer filed on behalf of herself and her adopted son, it was stated that in view of the fact that Trilok Prasad Singh had left about 150 bighas of land, the alienation of about 30 bighas in favour of the deity could not be said to be unreasonable or excessive. One hundred and fifty bighas are treated in the area as roughly equal to 90 acres so that 30 bighas come to about 18 acres.Whether the alienation for a pious purpose is of a reasonable portion of the propertymust necessarily depend the total extent of the property which has devolved upon the widow. The mere circumstance that a 100 acres are alienated by the widow for a pious purpose will not justify the setting aside of the alienation on the ground that 100 acres is large property. The High Court, without adverting to the fact that the widow had alienated only a one-fifth portion of the property which had devolved upon her, held thata dedication of a large part of the property, more than 18 acres of land, cannot be defended on the part of a holder of a widows estate .This is all that the High Court has to say on the point and obviously, what it has said is not enough or relevant for invalidating the alienation11. Whether the alienation is of a reasonable portion of the property is not a matter to be decided on precedents because what is reasonable must depend upon the facts and circumstances of each case. But an alienation of a one-fifth portion cannot be said to be unreasonable and excessive. The finding of the High Court must therefore be set aside and along with it its judgment allowing the reversioners appeal and decreeing their suit.