Case: Jaisri Sahu Vs. Rajdewan Dubey And Others

One Prithi Dubey died on July 14, 1932, leaving him surviving, his widow Laung Kuer, who succeeded as heir to his estate. For the purpose of discharging debts due by the deceased Laung Kuer executed on June 21, 1935, a Zerpeshgi deed in favour of two reasons, Rajdewan Dubey and Kailash Dubey, who were also the next reversioners, for a sum of Rs. 1,100. It is not in dispute that this deed is binding on the reversioners. On June 17, 1943, Laung Kuer sold to the appellant a portion of the properties which were the subject-matter of the Zerpeshgi deed dated June 21, 1935, for a consideration of Rs. 1,600. Out of this amount, a sum of Rs. 1,100 was reserved with the purchaser for redemption of the Zerpeshgi, and the balance of Rs. 500 was paid in cash. It is recited in the deed of sale that a sum of Rs. 100 was required to effect repairs to the family dwelling house, a sum of Rs. 200 for purchasing two bulls for agricultural purposes, and a sum of Rs. 200 for repairing a well, which had been constructed by the deceased for user by the public and which was then in a ruined condition. It is to meet these expenses that Laung Kuer raised Rs. 5002. After obtaining the sale deed, the appellant sought to redeem the Zerpeshgi, but the Zerpeshgidars refused to receive the amount and surrender possession of the properties The appellant deposited the mortgage amount in court under S. 83 of the Transfer of Property Act and then instituted Title Suit No. 69 of 1944 for redemption. Meantime the reversioners, the respondents herein, had filed Title Suit No. 126 of 1943 for a declaration that the sale deed in favour of the appellant was not binding on the reversioners. And both the suits were tried together. The parties were at issue on several questions of fact of which the only one material at this stage is whether the sale in favour of the appellant was supported by neccessity and binding on the reversioners. The District Munsif of Palama who tried the suits held on a review of the evidence that necessity was established in respect of all the four items of consideration and that the sale was binding on the reversioners. He accordingly, dismissed Title Suit No. 126 of 1943 filed by the respondents and granted a decree for redemption in Title Suit No. 69 of 1944 filed by the appellant. The respondents herein, the reversioners preferred appeals against both the decrees passed by the District Munsif of Palamau and they were heard by the Subordinate Judge of Palamau, who, agreeing with the findings given by the District Munsif, affirmed the decrees and dismissed the appeals. Against these decrees, the respondents preferred Second Appeals Nos. 2155 and 2156 of 1948 in the High Court of Patna. While these appeals were pending, Laung Kuer died on March 14, 1952, and on the application of the respondents, the plaint in Title Suit No. 126 of 1943 was amended by adding reliefs for possession and mesne profits. The appeals were then heard by a Bench consisting of Rai and Misra, JJ., who in separate but concurring judgments held that the sale deed in favour of the appellant was not binding on the reversioners. Misra J., who delivered the leading judgment did not disagree with the finding of the courts below that all the four items of consideration were supported by necessity. Indeed, being a finding of fact, it would be binding on the court in Second Appeal. He, however, held, following the decision in Dasrath Singh v. Damri Singh, 8 Pat LT 314: AIR 1927 Pat 219   that a widow cannot by selling properties subject to usufructuary mortgage jeopardise the right of the reversioners to redeem, and that, therefore, the sale would not be binding on them. A different view was taken in Lala Ram Asre Singh v. Ambica Lal, 11 Pat. LT 6 : AIR 1929 Pat 216   where it was held that a widow was not debarred from selling properties subject to mortgage where there was necessity for it merely by reason of the fact that they were subject to usufructuary mortgage which contained no personal covenant to pay. But the learned Judge declined to follow this decision and stated the reason thus :Following, therefore, the settled practice of this Court as laid down in a number of decisions, the only course left open to us in the circumstances would be either to follow the previous Division Bench Ruling in preference to the later or to refer the case to a larger Bench for settling the position, In my opinion, however, the present case it not one in which it is desirable to refer this case to a larger Bench. Following, therefore, the authority of this Court in Dasrath Singhs case 8 Pat LT314 : AIR1927 Pat 219  which completely covers the present case it must be held that the courts below were in error in relying upon the decision in Lala Ram Asre Singhs case 11 Pat LT 6; AIR 1929 Pat 216  In the result the learned Judge held that the sale deed in favour of the appellant dated June I7, l943, was not binding on the reversioners. Rai,J., expressed the view that as the bona fides of the sale in favour of the appellant was questioned by the reversioners and is there had been no finding on that point by the Subordinate Judge, the matter might have to be remanded for a finding on that question, but that, as the sale deed was not supported by necessity, he agreed with the conclusion of Misra J. The Second Appeals were accordingly allowed and consequential reliefs granted. Thereafter the appellant applied in the High Court under Art. 133 for leave to appeal to this court, and in granting certificates, Ramaswami, C. J. and Raj Kishore Prasad J. observed in their Order dated November 27, 1956, that there being a conflict between the decisions in Dasrath Singhs case 8 Pat LT 314 : AIR 1927 Pat 219   and Lala Ram Asre Singhs case, 11 Pat LT 6: AIR 1929 Pat 216   the point was one of sufficient importance for grant of leave to appeal to this court. They also stated that the question as to the practice to be followed, when there was a conflict of decisions, was likewise one of public importance, which ought to be settled by this court. They accordingly granted certificates under Art. 133(1)(c) and that is how these appeals come before us.

Reasoning: As already stated, Rai, J. appears to have been impressed by this contention. But when the contention is further examined it will be found to be wholly without substance. What the District Munsif said was that after the death of Pirthi Dubey the relatives of Laung Kuer had fallen on her property like vultures, and that it was quite possible that the transaction in question was also brought at their instance and they were also benefited by it. This only, means that the relatives of Laung Kuer were guilty of spoliation of the estate. But that would not affect the rights of the appellant unless he was a party to it, which however, is not the caseIf the learned Judge intended to lay down as an inflexible proposition of law that, whenever there is a usufructuary mortgage, the widow cannot sell the property, as that would deprive the reversioners of the right to redeem the same, we must dissent from it. Such a proposition could be supported only if the widow is in the position of a trustee, holding the estate for the benefit of the reversioners, with a duty cast on her to preserve the properties and pass them on intact to them. That, however, is not the law6. Judged by these principles, when there is a mortgage subsisting on the property the question whether the widow could sell it in discharge of it is a question which must be determined on the facts of each case, there being no absolute prohibition against her effecting a sale in a proper caseincome from the property has increased in value, it would be a reasonable step to take to dispose of some of the properties in discharge of the debt and redeem the rest so that the estate can have the benefit of the income. In this view, the decision in Dasrath Singhs case, 8 Pat LT 314 : AIR 1927 Pat. 219   in so far as it held that a sale by a widow of a property which is subject to a usufructuary mortgage is not binding on the reversioners must be held to be wrongIn our judgment these observations correctly state the position in law8. It has been found in this case that Laung Kuer had to raise a sum of Rs. 500 for necessary purposes. She could have done that by mortgaging other properties, but that would have reduced the income available for enjoyment by her. On the other hand, by a sale of a portion of the properties covered by the Zerpeshgi deed dated June 21, 1935, she was able to redeem the other properties and the estate had the benefit of the income from those properties. The district Munsif and the Subordinate Judge on appeal have both of them held on a review of all the facts that the sale in favour of the appellant is a proper one binding on the reversioners. We are of opinion that this finding is not open to attack in Second AppealThe better course would be for the Bench hearing the case to refer the matter to a Full Bench in view of the conflicting authorities without taking upon itself to decide whether it should follow the one Bench decision or the other. We have no doubt that when such situations arise, the Bench hearing cases would refer the matter for the decision of a Full Court.