1. A civil litigation initiated in the year 1954 is yet to reach finality. This appeal filed by the successors of the original plaintiff is directed against the judgement rendered by the High Court of Allahabad on 20th January, 1981 in second appeal No. 2064 of 1972 and the connected case, second appeal No. 2694 of 1972. The High Court in the judgement under challenge set aside the judgment of the lower appellate court confirming the judgment of the trial court decreeing the suit and passed the decree on the following terms:
"In the result, second appeal No. 2694 of 1972 is dismissed.
The second appeal No. 2064 of 1972 is allowed. The decree under appeal is set aside. Instead, there shall be a decree for recovery of Rs. 1,5007- (one thousand five hundred only) with pendente life and future interest at the rate of Rs. 6 % per annum in favour of the plaintiff respondent No. 1 and Balchand, defendant No. 17 (respondent No. 2), against the defendants Nos. 2 and 3 or their representatives, who are respectively Ghanshyam Das appellant No. 6, Smt. Radha Devi and Mohan, respondent Nos. 5 and 6; and Munni Lal, appellant No. 5 and there shall be a charge for recovery of the decretal amount against the property in suit in the hands of Shankar Lal, defendant No. 14, who is appellant No. 1.
In the peculiar circumstances of the case the parties shall bear their own costs throughout including the costs in this Court."
2. The relevant facts necessary for appreciating the question raised may be stated thus:
One Method was the original owner of the suit property comprising of a plot of land with four shop rooms (Nos. 26-29) on it. In the suit the plaintiffs prayed for recovery of possession of the suit property and for mesne profits etc. alleging inter alia that they are the next two reversioners of the last male holder Ganney, the only son of Method and in that capacity they are entitled to get the property after the death of Jasoda - the widow of Method. The defendants 3,4,5,13-15 were the contesting defendants in the suit. It may be stated here that defendant No. 3, respondent No. 3 herein described as Ram Janki Birajman Mandir, Jhansi City (Uttar Pradesh), which as stated by learned counsel appearing for the party is running a Vidya Mandir School on the said property.
3. The main question for consideration in the case relates to validity of the alienation of the suit property by Jasoda in favour of Ram Chand @ Mani Ram in the year 1934. The question for consideration is whether this document is a deed of gift or a sale deed. The trial court held it as a deed of gift which finding was accepted by the first appellate court. However, the High Court took a different view and held it to be a sale deed. The further question that arises for consideration is whether the transaction is one of sale and whether it was supported by necessity/legal necessity. The position is not disputed that if the transaction is held to be one of the outright sale of the property supported by necessity/legal necessity then the plaintiff who claimed it as reversion will have no right therein. If, on the other hand, the document is construed to be a deed of gift then Jasoda being a limited owner, the alienation will be valid and effective during her lifetime and thereafter the property is to revert to the next reversion of the last male holder.
4. Jasoda became a widow in 1907. She lost her daughter in 1908 and her son Ganney, in 1909. Baldev, son-in-law of Jasoda had intervened in the property on the basis of a deed of gift allegedly executed in his favour in January, 1928 by Jasoda with the condition of payment of Rs. 8/- per month for her maintenance which he could not fulfil. Thereafter he (son-in-law) gave his consent for the alienation of the property by Jasoda in favour of Ram Chand @ Mani Ram in 1934 (exhibit E-4). As noted earlier, the trial court as well as the lower appellate court construed the document to be a deed of gift. On the question of legal necessity the courts held that there was no necessity or legal necessity for the alleged sale. Since the court had held that the document was one of gift, the finding on legal necessity was recorded while discussing the alternative case pleaded by the defendants.
5. On perusal of the lower appellate court's judgment we find that there was no legal necessity recorded in a rather casual manner making an observation that Jasoda had some ornaments at the time of death of her husband which she was maintaining herself after his death. This circumstance even if accepted cannot reasonably lead to the conclusion that in 1934 when Jasoda parted with the property 27 years after the death of her husband, she was still maintaining herself with the ornaments. The High Court, in our view, was right in holding that there was legal necessity for the alienation of the suit property by Jasoda in 1934.
6. The main thrust of the contentions raised by the learned counsel for the appellants was that the question of legal necessity was essentially one of fact; therefore the High Court in second appeal should not have interfered with the same. The contention appears attractive on a first look in view of the limited jurisdiction to be exercised by the High Court under section 100 of Civil Procedure Code. But as noted earlier, a contention was raised before the lower courts as well as before the High Court;
whether the document can be construed to be one of gift or a sale. This question is not a pure question of fact, but one of law. Regarding the question of existence of legal necessity the High Court as appears from the discussions in the judgment has drawn an inference from certain undisputed facts emerging from the records. Such a finding in our view can be disturbed by this Court in an appeal filed by special leave under Article 136 of the Constitution only if it is found to be patently erroneous or irrational or based on no evidence or is vitiated by an erroneous approach on a question of law. On perusal of the judgment of the High Court, we do not find that the finding on legal necessity does not suffer from error or infirmity. At the cost of repetition we may state here that the findings recorded by the High Court on factual aspects of the case are reasonable, proper and rational.
7. The question that next arises for consideration is whether Jasoda - a widow, having limited interest in the property could sell the same for future maintenance. This position appears to be settled by certain decisions of different High Court like P. Kuthalinga Mudaliar v. M.M. Shanmuga Mudaliar & Ors. [AIR 1926 Madras 464] and Ramalinga lyer v. Parvathathammal and Others , This Court in the case of Jaisri Sahu v. Raj Dewan Dubey and Others held:
"When a widow succeeds as heir to her husband, the ownership in the properties both legal and beneficial, vests in her. She fully represents the estate, the interest of the re-visionary therein being only spes successions. The widow is entitled to the full beneficial enjoyment of the estate and is not accountable to any one. It is true that she cannot alienate the properties unless it be for necessity or for benefit to the estate, but this restriction on her powers is not one imposed for the benefit of reversioners but is an incident of the estate as known to Hindu Law. It is for this reason that it has been held that when Crown takes the property by escheat, it takes it free from any alienation made by the widow of the last male holder which is not valid under the Hindu law, vide: collector of Masulipatam v. Kavaly Venkata 8 Moo Ind. [App. 529 (PC)]. Where however, there is necessity for a transfer, the restriction imposed by Hindu law on her power to alienate ceases to operate and the widow as owner has got the fullest discretion to decide what form the alienation should assume. Her powers in this regard are, as held in a series of decisions beginning with Hunooman Persaud v. Mussamat Babooee Mundraj Koonweree 6 Moo Ind. [App. 393 (PC)] those of the manager of an infant's estate or the manager of a joint Hindu family. In Venkaji v. Vishnu, [ILR 18 Bom 534 at P.536] it was observed that "A widow like a manager of the family, must be allowed a reasonable latitude in the exercise of her powers, provided ........ she acts fairly to her expectant heirs."
8. In Mulla's Hindu Law (17th edition Vol. I at page 261) in paragraph 181-B it is observed :
"The touchstone of the authority is a necessity. The word 'necessity', when used in this connection has a somewhat special, almost technical meaning. It does not mean actual compulsion, but the kind of pressure, which the law recognizes as serious and sufficient. The receipt even of full value for property sold by her, where there is no pressure on the estate, will not justify the sale: otherwise every transaction with a limited heir for full value would be valid."
9. Therein a reference has been made to the case of Ramsumran Prasad v. Shyam Kumari [(1922) AIR Privy Council 356].
10. The question that remains to be considered is whether the document executed by Jasoda in 1934 (exhibit E-4) was to be construed as a deed of gift or a sale deed. From the judgment of the High Court we find that the court has given cogent reasons for holding that the document is one of outright sale and not of a gift. The said finding, in our view, is not vitiated on any count and hence does not call for interference. In the meantime since the institution of the suit more than five decades before, the property has passed hands, structures have come upon it and at present a charitable educational institution for the benefit of the residents is being run on the premises. In the facts and circumstances of the case, we are not satisfied that the judgement of the High Court under challenge calls for interference. Accordingly, the appeal is dismissed but in the circumstances without any order for costs.