P L D 1960 Dacca 480 (PLP)

11. It is contended on behalf of the appellants that the learned Judge totally misconceived the evidence adduced by defendant No. 1, read with the recital in the kabala, Exh. A, relied on by the trial Court and the provisions of Hindu Law in coming to a finding as to the existence of legal necessity for which the sale took place, and erred in law in holding that there is con tradiction in the evidence adduced by the defendant in respect of the existence of legal necessity. His second contention is that the learned Additional District Judge has totally misconceived the provisions of the Hindu Law and erred in law in holding that the daughters of Budharam and their daughters are not entitled to get maintenance out of the property left by Budharam and that the evidence adduced by defendant No. 1 in support of it was not satisfactory.

12. As to the first contention, the learned Advocate for the appellant has drawn my attention to the material portion of the judgment of the learned Additional District Judge at page 22 of the paper‑book, which runs as follows :‑

"It is stated in this document that, in order to provide main tenance for herself and for her widowed daughters, Rajeswari had been compelled to take loans from Matilal and from other persons. In order to liquidate these debts and also in order to enable Rajeswari to make a journey to Gaya for the spiritual benefit of her deceased husband, it had become necessary for her to dispose of the properties. The evidence on record shows that, in all probability, Rajeswari did not make any journey to Gaya. It is, however, possible that she intended to do so. Let us, therefore, confine to the statement that the sale was necessary to liquidate debts, both of the purchaser Matilal and of other persons. Matilal has deposed as D. W.

1. In his examination‑in‑chief, he stated that Rajeswari sold the land for re‑paying his loan and for journey to Gaya. He does not say that, at the time of the transaction, Rajeswari was indebted to other persons also and it was necessary for her to liquidate those debts as well. In his cross‑examination, he says that he paid Rs. 800 in cash to Rajeswari as the consideration for the kabala. The same amount has been noted in the kabala and so, according to this statement, Matilal paid the entire consideration in cash. He further states that his father advanced a sum of Rs. 400 to him and he himself another sum of Rs. 400 which he had earned in business. In this manner he was able to pay a sum of Rs. 800 to Rajeswari. These state ments would show that Rajeswari did not owe any money to Matilal at the time of the transaction. Had she been indebted to him at the time, the amount of the loan would have naturally been set off against the consideration, as Matilal would not have paid to her the entire amount of Rs.

800. In the later part of his cross‑examination, Matilal states that Rajeswari had taken a loan of Rs. 800 from him and she transferred the disputed land to him in satisfaction of the loan. If we believe this statement as true, then his earlier statement that he paid Rs. 800 to Rajeswari in cash for the liquidation of her other debts would clearly be false." On these reasonings, the learned Additional District Judge could not agree with the finding of the trial Court that the sale by Rajeswari to defendant No. 1 of items Nos. 2 to 13 of the Schedule to the plaint was for legal necessity. Mr. Bose contends that the evidence adduced by the defendant supports the case of the defendant set up by him throughout the trial as well as in the written statement. He also placed the recital in the kabala, Exh. A, before me. The recital in the kabala clearly states that the barga produce of the land was not sufficient to maintain herself and her two helpless destitute daughters. So she had to borrow from defendant No. 1 and from others and that to repay these loans and to offer pinda at Gaya for the benefit of the departed soul of her late husband she is in absolute necessity of money which she having failed to procure from anywhere is obliged to sell the property for Rs. 800, received in cash, to defendant No. 1 who also promised to maintain her and her daughters throughout their lives.

13. The material portion of his evidence in examination‑in- chief as well as in cross‑examination runs as follows :‑ "Rajeswari sold the land for repaying the loan which she took from me and for the sraddha of her husband . . . . Rajeswari gave in marriage her younger daughter. She gave lands in usufructuary mortgage for defraying the expenses of the marriage. The daughters ate living in the house of Budharam as their husbands have no landed property. The two daughters of Budharam have daughters. Rajeswari used to maintain them. They could not be maintained elsewhere if Rajeswari did not maintain them. Rajeswari gave the marriage of her daughter's daughters at her own expense and by taking loan. Rajeswari sold the land to me for repaying the loan. 1n cross‑examination, he stated on the two points as follows :‑

"I purchased the suit land before 5 years at Rs. 80J. 1 was in the house of Rajeswari when I purchased the suit land. My father gave me Rs. 400 by selling his land. I earn money by my business. Rajeswari took loan from Shashi Sarkar. I do not know when she took loan and gave mortgage by registered deed . . . . . I do not exactly know the names of the persons from whom Rajeswari took loan. Rajeswari took loan from me to the extent of Rs.

800. She gave land to me for the amount. I cannot say what amount she took from me for the first time. There is evidence to show about the money which Rajeswari took from me . . . . Rajeswari incurred expenses at the time of marriage of the second daughter of Phulmala who was given in marriage at Tara." In paragraph 10 of the written statement, defendant No. 1 stated the same thing as stated in the kabala and in his evidence.

14. From the pleadings, from the evidence adduced by the plaintiffs as well as from the evidence of P. W. 2 Amrita Dasya and P. W. 3 Budhiswar Bharai, it is established beyond doubt that the property left by Budharam was not of good quality and was not sufficient for the maintenance of Rajeswari and her widowed daughters and their daughters and she had to incur loans for their maintenance and for family expenses. It also appears from the R. S. Khatian, Exh. 1, that Budharam himself also used to take loan on the basis of agrakara. The evidence led by defendant No. I was to the effect that he advanced loans to Rajeswari from time to time for the family expenses and expenses for the main tenance of Rajeswari, her widowed daughters and their daughters. It is also in the evidence that Rajeswari used to perform sraddha ceremony of her husband every year and intended to go to Gaya to offer pinch and for all these purposes she used to borrow money either by way of howlat or by mortgaging' the land of Budharam on agrakara basis. The evidence of defendant No. 1 is that he used to advance loans to Rajeswari from time to time to maintain the expenses of the family as well as to enable her to go to Gaya for offering pindas and thus he advanced a loan of Rs. 800 and Rajeswari in satisfaction of her loans executed the kabala in question. That is what has been stated in the recital of the kabala as also in his cross‑examination and examination‑in‑chief. But it appears that the learned Additional District Judge made much of the words "paid in cash". Undoubtedly the money said to have been paid by defendant No. 1 was paid in cash and not in kind. But nowhere has defendant No. 1 stated that he paid the money in cash at the time of the transaction. All that he stated is that he paid money in cash by way of loans, that the total amount of loan he advanced to Rajeswari was Rs. 800 and in satisfaction of that loan the kabala had been executed for trans ferring the kabala land to hire. It is no doubt true that defendant No. l stated that Rajeswari had to borrow money to meet family expenses and to pay off the loans to others. Besides this payment, in the written statement, defendant No. 1 stated that he promised to pay off the loans due to others from Rajeswari. Further he said that the consideration of the kabala did pass and it is not a fact that it is without consideration. I do not find any contra diction in the evidence of defendant No. 1 to set aside the finding arrived at by the trial Court on that score. It is clearly established by the evidence on record that Rajeswari had to borrow money now and then from here and there for the maintenance of the family and for other necessities including the annual sraddha of her husband as well as for going to Gaya to offer pinda. Whether she went to Gaya or not, that is not very much material. If for that purpose and for other legal purposes she transferred the property, it cannot be said that the transfer was without legal necessity. The learned Additional District Judge himself observed at page 22 of the paper‑book thus: "The evidence on record shows that, in all probability, Rajeswari did not make any journey to Gaya. It is, however, possible that she intended to do so."

15. If the purchaser is satisfied that there were legal necessities for selling the property, that is quite sufficient. It is not the concern of the purchaser to keep a watch and to prove as to how that money was spent after the payment. Therefore, I think the first contention of the learned Advocate is of substance. The evidence on record is quite satisfactory and there is no contradiction to reject it and thereby to set aside the finding of the trial Court relying on such evidence. It is an established principle that, if the finding is based on the appreciation of oral evidence, the lower Appellate Court, not being in so advantageous position to mark the demeanour of the witnesses and other circumstances, should not interfere with the finding of fact arrived at by the trial Court unless there is a very strong and cogent reason for it.

16. Now, coming to the second contention, it is necessary to ascertain whether the widowed daughters of the deceased are entitled to get maintenance from the properties of their father. The evidence of defendant No. 1 is that Phulmala became a widow during the lifetime of Budtlaram and came with her little daughters to stay with him. The evidence of defendant No. 3 is that Sanatan, the husband of Phulmala, died before the death of his father. There is no evidence that Sanatan had any property of his own and, as such, Phulmala is not legally entitled to get maintenance from her father‑in‑law's property, if any. It is a moral obligation for her father‑in‑law to maintain her. Further there may be circumstances in which it is not possible for a Hindu widow to stay at her father‑in‑law's house after the death of her husband. If there are such circumstances, certainly she can be treated as destitute to be maintained by her father's property under the Hindu Law. Apart from this consideration, the fact remains that during; the lifetime of Budharam his daughter Phulmala came with her daughters to stay with her father and, an his death, they were dependent on the family of Budharam and were entitled to be maintained out of the property left by the, deceased. Under section 544 of the Mulla's Hindu Law (10th Edition), "an heir is legally bound to provide, out of the estate which descends to him, maintenance for those persons whom the late proprietor was legally or morally bound to maintain. The reason is that the estate is inherited subject to the obligation to provide for such maintenance." Therefore, as to the question of maintenance of Phulmala and her daughters, there is no doubt, in view of the provisions mentioned in the Hindu Law, that they were entitled to be maintained out of the property left by Budharam.

17. Now, coming to the other widowed daughter Kalabatit, the evidence of defendant No. 1 is that she was married after the death of Budharam and soon after she became a widow and came to stay with her mother Rajeswari and the expenses of this marriage bad been met by Rajeswari out of the income of the property of Bhudharam as well as by borrowing. Even if it is, accepted that Kalabati became a widow after the death of Budharam, the evidence on the defence side is that her husband left no property to maintain her. On the other hand, the plaintiffs could not prove that she had sufficient means to be maintained out of the property of her husband. In this view of the matter, she was also entitled to get maintenance from her father's property when she came to stay as a destitute daughter of the deceased Budharam.

18. Under the Hindu Law, a daughter on marriage ceases to be a member of her father's family and becomes a member of her husband's family and. she is entitled to be maintained by her husband and, after the husband's death, out of the husband's estate, but, if the husband leaves no estate, then .her father‑in‑law, if he has got sufficient property of his own, is morally, though not legally, bound to maintain her, but, after his death, she acquires a legal right to be maintained out of his estate on the principle stated in section 544 above. If she is unable to obtain maintenance from her husband, or, after his death, from his family, her father, if he has got separate property of his own, is under a moral, though not a legal, obligation to maintain her. But it is not settled whether, after the father's death, she acquired a legal right to be maintained by his heirs out of his estate. The opinion expressed by the High Court of Calcutta is that she does acquire such a right provided she is unable to obtain main tenance from the husband's family Mukhada Dassee v. Nundolall Haldar and others (28 Cal. 278 (288)). In view of the fact that her (Kalabati's) husband left no means for her maintenance and, in the absence of any evidence that there are means or properties out of which Kalabati could be maintained, she is entitled to be maintained out of the properties of her father, in the hands of her mother. So, if Rajeswari borrowed money or incurred loans for her own maintenance as well as for, the maintenance of the widowed daughters and their daughters these expenses come within legal necessity and, if she transferred the property on account of this loan, the transfer is for legal necessity. The learned Additional District Judge at the end of his judgment at page 28 observed: "I am inclined to take the view that the widowed daughters came to live with Rajeswari not because they were destitutes but because the mother wanted them to live with her. Thus Rajeswari was not legally bound to provide maintenance for the widowed daughters." This finding is not based on any evidence. There is no evidence that these widowed daughters' had means to be maintained out of the property left by their husbands and in spite of that they were living with their mother Rajeswari, because she wanted them to live with her. I asked that learned Advocate for the respondents to show me any evidence on record to this effect. He expressed his inability and frankly admitted that there is no such evidence on record. On the other hand, I find that there are evidence on record and, relying on this evidence, the trial Court, at page 9 of the paper‑book, observed: "Here, in the present case, Phulmala's husband predeceased her father. It is also in evidence that she could not obtain maintenance from her father‑in‑law's house. So under the circumstances she was compelled to come over to her father's house, to be maintained out of her father's estate. As regards Kalabati, another daughter of Budharam, we find that she also came to her father's house to get maintenance." P. W. 3 Budhiswar Barai, a witness on the plaintiffs' side, admitted that Phulmala's husband died before the death of his father. The evidence of defendant No. 1 is that he left no properties of his own. There is also no evidence that her father- in‑law had sufficient means to maintain her under moral obligation. D. W. 2 Shashibbusan Sarkar deposed :‑‑ "Budharam died leaving two daughters and a widow. The daughters of Budharam are now being maintained from the land of Budharam as they are widows, and their husbands had no landed property. They could not be maintained elsewhere without the help of Budharam's property. They are destitute ; Rajeswari gave the marriage of the daughter's daughter of Budharam." In view of this evidence, the findings arrived at by the learned Additional District Judge that the widowed daughters came to live with Rajeswari not because they were destitutes but because the mother wanted them to live with her is absolutely without any foundation and are liable to be set aside. Further, if the widowed daughters are destitutes, their daughters also came within the meaning of destitute relations to be maintained out of the income of the property left by Budharam, and, if Rajeswari borrowed money and incurred loans for the maintenance of herself and her daughters and grand‑daughters, they are legal expenses and if, for the loans incurred by her, she transferred the property in satisfaction of the loan taken from defendant No. 1, I cannot but hold that it is for legal necessity.

19. The result, therefore, is that this appeal is allowed with costs and the judgment and decree of the lower Appellate Court are set aside and those of the trial Court restored.

20. In view of the decision in the appeal, the connected Rule has become infructuous and it is discharged without any order as to costs. K. B. A. Appeal accepted.