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TMI Blog1929 (1) TMI 8X X X X Extracts X X X X X X X X Extracts X X X X ..... tion of legal necessity. There are four documents which we have to consider in this appeal Ex. L-1 executed by Basmati Kuer on 30th March, 1903, to raise a sum of Rs. 541, Ex. L-2 executed on 17th May, 1906, to raise Rs. 89-6-0, Ex. L-7 executed on 12th August, 1911, to raise a sum of Rs. 399 and Ex. L-5 executed on 6th February, 1913, to raise a sum of Rs. 376-8-0. The learned Subordinate Judge found that so far as the transaction evidenced by Ex. L-1 is concerned there was legal necessity to support that transaction to the extent of Rs. 175-8-0 and he set aside the conveyance on terms that the plaintiffs paid Rs. 175 8 0 to the vendees. The learned District Judge in the lower Appellate Court has found that the entire transaction should stand: and he has refused to set aside the transaction of the 30th May, 1903. So far as the transaction of 17th May, 1906, is concerned, the learned Subordinate Judge thought that there was no legal necessity to justify that transaction and in the result he set aside that sale. The learned District Judge has taken a different view and has upheld the transaction. So far as the transaction of 12th August, 1911, is concerned, the learned Subordinate J ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecause the zarpeshgidar was in possession and he had precluded himself from bringing a suit in respect of the loan. This, in my view, is an impossible argument. The debt was there; it was a subsisting debt, only the creditor was in possession of a part of the estate and was unable to recover it by instituting a suit in the Civil Courts. But the result was that a considerable portion of the income was withdrawn from Basmati Kuer who had succeeded her husband. It is well-established that where a case of necessity exists, an heiress is not bound to borrow money, with the hope of paying it off before her death. Nor is she bound to mortgage the estate, and thereby reduce her income for life. She is at liberty, if she thinks fit, absolutely to sell off a part of the estate As it has been put in Venkaji Sridhar v. Vishnu Babaji Beri 18 B. 534 Widow, like a manager of a family, must be allowed a reasonable latitude in the exercise of her powers, provided she acts fairly to her expectant heirs. 3. Now, I can see no unfairness on her part in selling a portion of the estate to discharge the liability of her husband. I held, therefore, that the learned District Judge was right in taking the vi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in execution of the rent decree; and it is for this reason that the Courts of Law have held that the necessity to pay off decrees for rent constitutes a legal necessity within the meaning of that term as used in Hindu Law. Mr. Khursaid Husnain has referred us to various authorities in support of his contention that a limited owner is not entitled to alienate any portion of her husband's estate until the decree is actually put into execution. I have considered these decisions; and, in my opinion, they do not support the contention put forward before us. On the other hand, there is clear authority for the opposite view in the decision of Mukerji, J., in Rameswar Mandal v. Provabati Debi 25 Ind. Cas. 84 : 20 C.L.J. 23 : 19 C.W.N. 313I hold, therefore, that so far as the transaction of 30th March, 1903 is concerned, it must be upheld and the plaintiffs' suit must fail with regard to that transaction. 6. I now come to the transaction of 17th May, 1906, which is evidenced by Ex. L-2. By this document Basmati Kuer sold some of the properties in dispute to some of the defendants for Rs. 87 8-0. It appears that the landlord had obtained a rent decree against her and that she had exe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... item is one of Rs. 75 which has been properly disallowed by the learned District Judge. The result is that so far as the transaction 12th August, 1911, is concerned, the plaintiffs must succeed and they are entitled to a decree for possession in respect of the properties covered by Ex. L-7. 8. The last transaction which I have to consider is one of 6th February, 1913, covered by Ex. L-5. By this transaction Basmati Kuer sold certain properties which is the subject-matter of the suit of 6th February, 1913, for the sum of Rs. 376-8-0. It is established that out of the money which she received she paid off a debt due by her husband on a mortgage transaction of 16th July, 1873. That debt amounted to Rs. 200. It is obvious, therefore, that the transaction of 6th February, 1913, is good for the sum of Rs. 200. As regards the balance the position is a hopeless one. It is stated that Rs. 65-8 0 was necessary for payment of rent; but as I have pointed out, a limited owner is not entitled to sell any portion of the estate for the purpose of paying rent to the landlord and in regard to the other item of Rs. 111 the learned Judge has properly disallowed that item. The question then is, are we ..... X X X X Extracts X X X X X X X X Extracts X X X X
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