P L D 1967 Dacca 378 (PLP)

This appeal is by the defendants Nos. 1 and 2 and it arises out of a suit for declaration of title and recovery of possession. The suit related to half portion of plot No. 641 and the plaintiff's case is that although the Kabala by which the previous owner of the said plot conveyed the same stood in the names of himself and his widowed sister Barada, the latter could not contribute her share of the consideration money as a result of which he paid the entire amount and possessed the entire plot till he was wrongfully dispossessed there from on the 4th Baisakh, 1366 B.S. by the defendants Nos. 1 and 2 claiming that they had purchased the same from the defendant No. 3, being the sister's son of Barada's deceased husband and as such a legal reversioner to his estate on the death of Barada, which took place sometime in 1361 B.S. The defence case on the other hand to this behalf was that it is Barada who actually made the purchase through the agency of her brother, i.e. the plaintiff, and the latter taking advantage of his position fraudulently got his name inserted in the kabala as one of the purchasers. It has, however, been concurrently found by both the learned Courts below that the purchase was made by the plaintiff and his sister Barada in equal shares and there is no dispute as to this any longer. As to the source of the considera tion money for Barada's share, their concurrent finding is that she made the purchase with the money obtained by her by selling some lands appertaining to her deceased husband's estate. The first mentioned finding evidently dispossess of the plaintiff's exclusive claim by purchase but his alternative claim by inheritance, i.e. that even if the suit land belonged to Barada it was her stridhan and as such he, i.e. the plaintiff, has inherited the same, still remained to be adjudicated upon. To the said claim laid by the plaintiff the counter claim arising out of the defence case was that the disputed land having been purchased with the money obtained by sale by Barada of a part of her deceased husband's estate was an accretion to the said estate and naturally therefore devolved upon the defendant No. 1 who is the reversioner to Barada's husband, being his sister's son. As to this, the view taken by the learned Munsif is that he is not aware of any law laying down that in case a widow sells land without legal necessity and acquires property with that money it becomes her stridhan, and when Barada sold land of her husband and purchased this land, the disputed lance took place of the land sold. The learned Subordinate Judge, however, has taken the contrary view, as may be seen from the following extract from his judgment:‑ "Admittedly she (Barada) h. d no other source of income. Apparently she procured the consideration for the disputed land by selling her husband's property. But to purchase new land, is no legal necessity. A Hindu widow cannot sell the corpus of her husband's property without legal necessity. And if she has done that and acquired other lands with the money so obtained, that land may also be treated as her husband's property provided she treated this, after purchase, as properties accreted to the estate of husband. But here there is no such evidence that she so treated the disputed land. So it must be held that the amount she received by selling her husband's properties, was the value she got by selling her life interest which she was entitled to do in those properties and she treated this amount as her own and the suit land which she purchased with that amount necessarily was her own property, that is stridhan. The reversioners have no right to attack this property acquired with the money she received by selling her life interest. They as reversioners must fall back on the lands she sold and the purchasers have to blame themselves if they were not careful while purchasing a widow's property and if they loose it. Mr. Tofazzel Ali appearing on behalf of the defendants‑appellants has attacked the soundness of the above view taken by the learned lower appellate Court and supporting that of the Court of first instance contended that a property acquired by a Hindu widow with the money obtained by her by selling a part of her husband's estate is an accretion to that estate and must, according to the provisions of the Hindu Law, devolve, on the death of the widow, upon the reversioner of her husband, the reversioner in the instant case being the defendant No.

1. He has further contended that even if the question as to how the widow treated the property as acquired were at all relevant, the presumption of law would be that it forms a part and parcel of her husband's estate and it would be for the party that asserts the contrary to substantiate its assertion and show that the widow, as a matter of fact, treated the property as her stridhan, i.e., personal property and thus establish that it is stridhan and not a part of husband's estate. According to him, therefore, the learned Subordinate Judge made a wrong approach and thrust the burden upon wrong shoulders in proceeding on the basis that when there is no evidence that Barada treated the disputed land as an accretion to the estate of her husband it must be held that the suit land which she purchased with the amount obtained by her selling some lands appertaining to her husband's estate was her own property, i.e. stridhan. Mr. Shaukat Ali Khan appearing on behalf of the plaintiff respondent has contested the above proposition propounded by Mr. Ali and contended that the disputed land, even though purchased with the money raised by Barada by selling some lands appertaining to her deceased husband's estate, became her stridhan or personal property. So, the learned Subordinate Judge, according to him, was perfectly right and justified in holding that the disputed land was the stridhan of Barada and not an accretion to the estate of her deceased husband. I have already referred above to the concurrent finding made by the learned Courts below that Barada made her purchase in question with the money she obtained by selling some lands appertaining to her husband's estate. Both appear further to be of the opinion that the transfers by which Barada obtained the money for acquisition of the disputed land operated only to the extent of her, i.e. widow's interest, inasmuch as purchase of land is not a legal necessity, though the learned Munsif thinks that the reversioner of Barada's husband, in the circumstances, has an option either to pursue the sold land or to reconcile himself to the property acquired with the proceeds thereof, while the learned Subordinate Judge appears to be of the opinion that the only remedy available to the said reversioner is to fall back on the land sold, that is to say that the reversioner has no legal right to claim the purchased land as a part of the estate of the deceased in question. It is, however, interesting to note that according to the recitals of the relevant documents, which are on record, the above‑mentioned transfers were made for performance of pilgri mage and not for purchasing some other land or rather the disputed land. Where, as in the instant case, the purpose of a transfer by a Hindu widow of some immovable property apper taining to her deceased husband's estate is stated to the relevant document to be something which is a legal necessity and the sale proceeds are found to have been spent by the widow for a different purpose, which is not a legal necessity, another question falling to be determined before the transaction can be pronounced to be invalid, i.e. ineffective as to the interest of the reversioners, is weather in making the purchase the transferee gave credit on reasonable grounds to representations that the money was wanted for such necessity. In case the answer is in the affirmative, the transfer shall stand good and absolute. This is a proposition well‑settled by numerous authorities (See Ramanand Lal v. Damodar Das (A I R 1942 Al1. 110), I L R 35 Cal. 420 (PC), 19 1 A 196 and 6 D L R 225). Thus in first mentioned case Ramanand Lal and another v. Damodar Das and others it has been held:‑ "The alienee in order to justify an alienation by a Hindu widow must prove either that there was legal necessity in fact; or that be made proper and bona fide inquiry as to the existence of the necessity and did all that was reasonably to satisfy himself as to the existence of the necessity. In no case, however, is he bound to see that the money paid by him is applied to meet the necessity. The same rule applies to a transferee from an alienee though presumptions of facts may arise in either case when by lapse of time evidence has disappeared." Turning now to the present case it may be pointed out that in the event envisaged above, the reversioner can neither fall upon the sold land nor can he, in case, of course, the view taken by the learned Subordinate Judge were accepted as sound, claim the purchased land, in that, according to the said view, it became stridhan of Barada and must, therefore, devolve on her death, not upon the reversioner of her deceased husband, i.e. defendant No. 1, but upon her own heir, i.e. the plaintiff. To me this appears to be inconceivable. The learned Subordinate Judge, however, has made one exception and it is that the disputed land may also be treated as her husband's property provided Barada treated this after purchase as property accreted to the estate of her husband. I must frankly confess that I have not been able to lay my hand on any reported decision exactly to the point nor could any be placed before me from the bar although I set down the case for further hearing specifically for that purpose. There are, however, numerous authorities relating to properties acquired by a Hindu widow with the savings from the income of her husband's estate. There is no doubt conflict of judicial decisions in this behalf, too, but the view finally settled by some pronouncements of the Privy Council and also followed by this Court appears to be that where a Hindu widow acquires property with the savings made from the income received by her from her husband's estate, prima facie it is an accretion to the estate of her husband. Thus in the case of Kala Chandra Dey Sarkar v. Mohim Chandra Mandal and others (10 D L R 312) it has been held‑ "When a Hindu widow acquires property with the saving made from the income received by her from her husband's estate, prima facie it is an accretion to the estate of her husband but if it is found that the intention was not to improve the estate of her husband but to acquire property for her own interest and she treated it as such it will be her stridhan property and the property will be inherited by her reversioner and not by the reversioner of her deceased husband." It appears that this view has been taken following two decisions of the Privy Council, to wit, Isri Dut Koor and others v. Hansbutti Koerain and others (10 I A 150) and Sheolochun Singh v. Saheb Singh (14 I A 62). In the latter their Lordships of the Judicial Committee have laid down the relevant law in these terms:‑ "Where a widow comes into possession of the property of the husband and receives incomes and does not stand it but invests it in the purchase of other property, their Lordships think that, prima facie, it is the intention of the widow to keep the estate of the husband as entire estate and that the property purchased would, prima facie, be intended to be an accretion to the estate." The option to treat a property thus acquired by a widow as per personal property is really a concession in consideration of the fact that she had absolute control over the cash that went to make that acquisition. No such consideration arises where there is no such control over the source, or as in this case, where the acquisition is in lieu of a part of the parent estate itself. The said option in a case of this nature would have the effect of authoris ing the widow even to liquidate completely the estate in her hand and acquire therefore new property so as to pass the same upon her death on to her own heirs thereby leaving to the right ful claimants, i.e. the reversioners of her deceased husband, if anything at all, a succession of uncertain litigations. Thus having given the matter my anxious consideration i am of opinion that an immovable property acquired by a Hindu widow in lieu or with the sale proceeds of a part of her deceased husband's estate takes the place of the property in lieu or with the sale proceeds of which the said acquisition is made and is thus an accretion to the said A estate and it makes no difference however the widow may choose to treat it. I may however add that even if the question as to how the widow treated the property thus acquired were relevant, it would be presumed to be an accretion to her husband's estate and it will be for the party that alleges the contrary to establish its allegation by showing that after acquisition the widow treated it as her personal property. To support his contention to the contrary Mr. Shaukat Ali Khan replied mainly upon the case of Keshav Bin Pandurang Lokhande and others v. Maruthi Bin Krishna Sinde and others (A I R 1922 Bom. 144) and Prabhakar Vithoba Courkhede v. Sarubai w/o Sheoranji Gourkhede (A I R 1943 Nag. 253), but in view of the authorities referred to above including a decision of this Court I find myself unable to follow these authorities. Furthermore these appear to be also disting uishable inasmuch as they relate to the Bombay School of Mitakshara law where the parties concerned in the present litigation are governed by the Dayabhaga law. Thus the petition in the instant case, as found by the learned Subordinate Judge himself also is that the property was acquired by Barada with money obtained by her by selling a part of her husband's estate and there is no evidence to show that she treated it as her personal property. That being so, the presumption would be that the disputed land acquired by her was an accretion to, i.e. formed part and parcel of her husband's estate. In this view of the matter, therefore, the decision of the learned Appellate Court appears tome to be contrary to law and cannot as such be supported or sustained. The appeal is therefore allowed, the judgment and decree of the learned lower appellate Court are set aside and those of the Court of first instance restored. Having regard to the circumstances of this case I make no order as to costs. Leave under clause 15 of the Letters Patent prayed for is refused. K. B. A. Appeal accepted.