P L D 1955 Dacca 129 (PLP)

CHOWDHURY, J.--‑This appeal is at the instance of the defendants. It is directed against the judgment and decree of the District Judge, Sylhet, dated the 20th November, 1951 reversing the judgment and decree of the second Subordinate Judge of Sylhet passed in a suit for declaration of plaintiff's title and for khas possession of properties in items Nos. 2 to 4 and 6 to 14 of Schedule 1 and in the house of Schedule 2 of the plaint and joint possession to the extent of ten and a half kedars in item No. 1 and one powa of item No. 5 of Schedule 1 of the plaint. Plaintiff's case shortly stated is as follows: One Rebati Mohon De, a Hindu, died leaving his two widows, Sushila Sundari as his first widow, and Kusum Kumari the pro forma defendant No. 1 as his second widow. Both the widows inherited the property in suit left by Rebati except three kedars of land out of the land of Schedule one and two powas land of plot No. 5 which are alleged to have been purchased by Sushila and Kusum Kumari out of thier personal funds. Each of them has 8 arenas share in the afore said land. The house in Schedule 2 was constructed by Kusum Kumari at her own costs out of the corpus of the estate of her husband. The. first widow made a gift of her 8 annas share of the properties to her daughter Sunity the defendant No. 2 and her husband Binode Behari De, defendant No. 1, who had been taken as ghar‑jamai at the time of their marriage. Both the widows remained joint. The defendant No. 1 used to manage the joint property of the parties. The elder widow Sushila died leaving Kusum Kumari the defendant. No. 16 as the surviving widow and 7 or 8 years after the death of Sushila the defendants Nos. 1 and 2 fell out with the defendant No. 16 the surviving widow Kusum Kumari. She went to her brothers's house and executed a kabala, dated 18th of Falgoon, 1354 B.S. of the entire property left by her husband and half of the 3 kedars in Schedule 1 and one powa of Schedule 5 of the plaint in favour of the respondent on a ,:ash consideration of Rs. 4,

000. Thereafter on the 16th Baishak, 1356 B.S., corresponding to 29th of April, 1949 the defendants Nos. 1 and 2 granted a lease to the defendants Nos 6 to 9 the appellants in respect of the property left by Rebati including the 8 annas share of the same covered by the deed of gift, dated 13th Falgoon, 1342 B.S., corresponding to February, 1936 by Sushila as well as her 8 annas share of her personal property in Schedules 1 and 5, at a Jama of Rs.12‑12‑0 on a salami of Rs. 3,

800. The defendants Nos. 3 and 4 are alleged to have been chakran tenants in the homestead of Rebati. The respondents after their purchase served notice on the defendants Nos. 3 and 4 terminating the tenancy 'and asking them to vacate the land of Schedule 3 which formed part 'of the land of Schedule

1. There was a case under section 145 Criminal Procedure Code in which it was held that defendants Nos. 3‑5 had jote right in the land of Schedule

3. The plaintiffs wanted to get khas possession of the land of plots Nos. 2 to 4 and 6 to 14 by evicting all the defendants therefrom and joint khas possession in 10 kedars of Schedule No. 1 and one powa land in Schedule 5 with the defendants. They also claimed mesne profits which was subsequently withdrawn to claim it in suit to be filed later on. The claim of the plaintiffs respondent was mainly opposed by the defendants Nos. 5 to

9. Their substantial defence was that Sushila got 8 annas share in the property left by Rebati and this 8 annas share in the property was gifted to the defendants Nos. 1 and 2 at the time of their marriage in accordance with the will of Rebati to take ghar‑jamai with the consent of Kusum Kumari and this gift was for legal necessity and it was valid and binding on the co‑widow Kusum Kumari, and the plaintiffs are not entitled to any title to this 8 annas share, covered by the deed of gift, on the ground of their purchase from Kusum Kumari. They set up their title by lease from the defendants Nos. 1 and

2. The defendants Nos 3 and 4 though filed written state ment contesting the claim of the plaintiffs ultimately compromised the suit with the plaintiff and filed a solenama. The other defendant did not appear though some of them filed written statement. The trial Court upheld the contention of the appellants and dismissed the suit of the plaintiffs so far as it related to the 8 annas share of Sushila and decreed the remaining 8 annas share and directed joint possession with the defendants in the declared share. On appeal by the plaintiffs the learned District Judge reversed the decision of the trial Court, aril allowed the appeal and decree the suit out but the question whether the transfer by Kusum Kumari in favour of the respondent was for legal necessity or not to be determined hereafter. Against this decision the present appeal has been filed. Mr. Das, the learned Advocate for the appellants has raised two points in support of the appeal. His first point is that the Court of appeal below is wrong in not holding that the gift which is for legal necessity is binding and effective against the surviving widow Kusum Kumari during her life time. His second point is that the gift is valid and binding as it was with the consent of the surviving widow. As to his first point, his contention is that under Hindu Law to give the daughter of the deceased in marriage is spiritual benefit to the deceased Rebati and that the ghar‑jamai in whose favour the gift was made, with his issues of the marriage is entitled to be maintained from the estate and as such the gift in favour of the ghar‑jamai was of legal necessity and therefore it is binding on the surviving co‑widow. His further contention is that apart from the question of maintenance the gift at the time of marriage, is gift out of legal necessity and relied on the case of Fani Bhusan Saha and others v. Ful Kumari Dasi and others (A I R 1937 Cal. 1). Nobody disputes that the gift under the Hindu Law at the time of the marriage ceremony of Sunity the defendant No. 1 with Binode defendant No. 2 who was taken as ghar jamai is valid and binding during the life time of Sushila. Now the question is whether that will affect the right of the surviving widow Kusum Kumari who is to get the property as surviving widow on the death of Sushila. In the Privy Council's case of Gauri Nath Kakaji v. Gaya Kuar (55 1 A 399) their Lordships of the Judicial Committee held that: "If a Hindu dies, leaving two widows, they succeed as joint tenants with a right of survivorship, but they can partition the property so that each may separately enjoy an equal share of the income. If they act together they can burden the reversion with debts contracted for necessity, but one of them cannot prejudice the right of survivorship by alienations save by the consent of the other, or possibly (though it was not necessary so to determine in the present case) where that: consent had been applied for and unreasonably withheld". On page 403 their Lordships observed "The general law is so well settled that it scarcely requires restatement. If a Hindu dies leaving two widows, they, succeed as joint tenants with a right of survivorship. They are entitled to obtain a partition of separate portions of the property so that each may enjoy her equal share of the income accruing therefrom. Each can deal as she pleases with her own life interest, but she cannot alienate any part of, the corpus of the estate by gift or Will so as to prejudice the rights, of the survivor or a future reversioner. If they act together they can burden the reversion with any debts contracted owing to legal necessity, but one of them acting without the authority of the other, cannot prejudice the right of survivorship by, burdening or alienating any part of the estate". Mr. Das, the learned Advocate for the appellants con tends that there is a distinction between the secular necessity and spiritual necessity and the case reported in 55 1 A 399 is a case of secular necessity whereas the alienation for marriage of a daughter is for a spiritual necessity and in support of his contention he relied on the case of Khub Lai Singh v. Ajodhya Missers (I L R 43 Cal. 574). In this case their Lordships held that the widow has a larger power of disposition for religious or charitable purposes which are supposed to conduce to the spiritual welfare of her husband than what she possesses for purely worldly purposes. In this case their Lordships dealt with the question of the power of a widow to alienate her husband's property for religious purpose. This case has got nothing to do with the question of affecting right of survivorship of the surviving widow by alienation of a property by the co‑widow. Mr. A. C. Bhattacharjee, the learned Advocate for the opposite parties contends that whether an alienation was for secular benefit or spiritual benefit it came under legal necessity. In one case the power of a widow is wider and in the other it is limited in the sense that the legal necessity is to be strictly proved in case of secular necessity and refers to section 181A of Mulla's Hindu Law, 10th Edition, sub section (2) of that section deals with what are religious and charitable purposes and clause (i) of that subsection deals with what are essential and obligatory and clauses (ii) and B (iii) of that subsection deal with what are not essentiall and obligatory. Spiritual welfare of the deceased husband. of a widow comes under clause (iii). Therefore he contends; that the gift at the time of the marriage of the daughter of Rebati which is for a spiritual welfare of the deceased Rebati is not essential and obligatory. The Privy Council case reported in 55 I A 399 deals with the case of a debt left by the deceased husband of the two widows and therefore comes under clause (iv) of subsection (2) of section 181A, of Mulla's Hindu Law which is essential and obligatory. His contention therefore is that the case reported in 55 I A 399 is stronger than the case of gift on account of the marriage of the daughter of the deceased or the gift in favour of the domesticated son‑in‑law which is not essential and obligatory. The gift to the daughter and the domesticated son‑in‑law may be one of the purposes of legal necessity under section 181B, clause (2) (v). Section 181C of Mulla's Hindu Law lays down the principle enunciated in the Privy Council's case reported in 55 I A 399 which is definitely against the con tention of Mr. Das that the gift by Sushila is binding on the surviving widow affecting the right of survivorship on the death of Sushila. Therefore I am unable to accept the contention of Mr. Das. As regards his second contention that the gift was with the consent of the surviving widow, the finding of the Court of appeal below, on evidence is that there was no consent expressed or implied by Kusum Kumari to the gift in favour of the defendants Nos. 1 and

2. Mr. Das contends that she did not protest rather she enjoyed the property jointly with the defendants Nos. 1 and 2 for more than 12 years and more than 7 or 8 years after the death of Sushila and that leads to the conclusion that she consented to the gift by implication. But there is definite finding of the lower appellate Court that on consideration of the evidence on record there was no consent express or implied. Inference of fact drawn from certain circumstances is a question of fact and not a question of law. I am not entitled to interfere in second appeal with the findings of facts of the Court of appeal below. The case reported in 55 I A 399 is one under the Mitakshara School of Hindu Law whereas the present case is covered by the Dayabagh School of Hindu Law but there is no difference between two Schools of Hindu Law on this point. In this connection reference may be made to a passage in Mayn's Hindu Law, 10th Edition at page 705 which runs as follows: "Where a man leaves more than one widow, they take jointly with rights of survivorship and their rights are the same as under the Mitakshara Law". The points raised by Mr. Das in support of this appeal are of no substance. The result, therefore, is that the appeal is dismissed with costs. Leave to appeal under clause 15 of the Letters Patent prayed for is refused. A. H. Appeal dismissed.