Motiur Rahman Vs. Hemanta Kumar Shill, 3 LNJ (2014) 346

Case No: First Appeal No. 42 of 2000

Judge: M. Moazzam Husain,

Court: High Court Division,,

Advocate: Mr. Abdul Quayum,Mr. Selim Reza Chowdhury,Mr. S. N. Goswami,Mrs. Afsana Begum,,

Citation: 3 LNJ (2014) 346

Case Year: 2014

Appellant: Motiur Rahman

Respondent: Hemanta Kumar Shill

Subject: Hindu Law,

Delivery Date: 2010-09-27


HIGH COURT DIVISION
(CIVIL APPELLATE JURISDICTION)
 
Sheikh Abdul Awal, J.
And
M. Moazzam Husain, J.

Judgment on
27.09.2010
  Motiur Rahman Bahadur
... Defendant-Appellants.
Vs.
Hemanta Kumar Shill
. . .Plaintiff-Respondents.
 
 
Hindu Law
Stridhana
It is a settled position of law that a widow as a limited heir is not a mere tenant-for-life, but is owner of the property inherited by her, subject to certain restrictions on alienation. The whole estate is vested in her for life and she represents it completely and her position is that of an owner. So long as she is alive no one has a vested interest in the succession. It is similar in incidents to an absolute estate.
It is a settled position of law that a widow as a limited heir is not a mere tenant-for-life, but is owner of the property inherited by her, subject to certain restrictions on alienation. The whole estate is vested in her for life and she represents it completely and her position is that of an owner. So long as she is alive no one has a vested interest in the succession. It is similar in incidents to an absolute estate. As long as a Hindu woman is found in possession of a piece of land either taken by her as life estate or as absolute interest she remains to be the owner of the land. In the circumstances, preparation of record of rights in her name remains to be a matter of course.  It has nothing to do with the nature of her title to the land, limited or absolute. Nor such record of rights per se raises any presumption in favour of stridhana. . . . (31)
 
No mathematical limit can be fixed to the power of alienation of a widow of her husband’s property for the purpose of religious acts which conduce to his spiritual benefit.
No mathematical limit can be fixed to the power of alienation of a widow of her husband’s property for the purpose of religious acts which conduce to his spiritual benefit. The question whether the property dedicated or alienated constitutes a reasonable proportion of the whole estate is relevant. The limited owner must act with the best of motives and without extravagance. Here in this case intention of sale does not appear to be bona fide and the wholesale transfer of life estate by the widow in the name of spiritual benefit of her deceased husband in disregard of her own survival does not appear to be proportionate from any point of view. . . .(40)

Mr. Abdul Quayum with
Mr. Selim Reza Chowdhury, Advocates
. . . For the appellant.

Mr. S.N. Goswami with
Mrs. Afsana Begum, Advocates.
. . . For the Respondent.

First Appeal No. 42 of 2000
 
JUDGMENT
M. Moazzam Husain, J:

This appeal at the instance of the defendant No.1 is directed against the judgment and decree dated 24.8.1999 passed by the learned Subordinate Judge 2nd Court, Pirojpur, in Title Suit No.17 of 1998.

The facts as set out in the plaint, in short, are that 4˙76 acre of land described in Ka schedule of the plaint originally belonged to one Rajkamol Shill and Brindabon Shill in equal shares. Rajkamol Shill died leaving two sons, Lolit Kumar Shill and Rajmohon Shill. Brindabon Shill died leaving one son, Kalinath Shill. Lolit Kumar Shill died childless leaving his wife Kumudini Shill (Defendant-2).  Rajmohon Shill died leaving two sons, Sharot Chandra Shill and Shashi Kumar Shill. Sharat Chandra Shill died leaving two sons, Hemonta Kumar Shill (plaintiff) and Surendra Nath Shill. Shashi Kumar Shill died leaving three sons, Anil Kumar Shill, Amulya Kumar Shill and Adhir Kumar Shill.  SA record stands in the names of Kalinath Shill, Surendra Nath Shill, Hemanta Kumar Shill, Anil Kumar Shill, Amulya Kumar Shill and Adhir Kumar Shill in different shares and in the name of Kumudini Shill in ¼ shares.  Anil, Amulya and Adhir Kumar Shill having died unmarried their shares in the property devolved upon the plaintiff. As per her ¼ share in the property Kumudini Shill possessed 1˙19 acre land which she took out of plot Nos.353, 355,356 and 359 by family arrangement as described in schedule Kha of the plaint. Kumudini Shill inherited the land from her late husband and thus she held the same in life-interest. The plaintiff is the grandson of the brother of Lolit Kumar and happens to be the nearest heir of the last full owner, ie, Lolit Kumar. His interest is expectant upon the death of Kumudini Shill, the limited heir now in possession.

After the death of Lolit Kumar Shill the plaintiff, Amulya and Kumudini jointly sold ˙21½ acre land from the suit plots, collected money and performed various religious rituals, including, Shradhya ceremony, Brahmin-feast, Chandipath, offering pinda at Goya etc. for salvation of the departed soul of Lalit Kumar.  The defendant No.2, as wife of Lalit Kumar Shill, therefore, had no more obligations so to do for the same purpose. Defendant No.2, nonetheless, sold ˙34 acre land to one Abdul Khaleque by a deed dated 18.9.1975. Present plaintiff (Respondent) filed Title Suit No.23 of 1987 against defendant No.2 and two other persons for permanent injunction. Defendant No.2 was found by the court to have life estate in the land sold and accordingly was adjudged not competent to sell the same except for legal necessity.

Notwithstanding the verdict of the court to the contrary defendant No.2 kept her design alive and finally executed in secret and behind the back of the plaintiff three sale deeds dated 11.6.1990, 29.9.1992, and 24.11.1996 purportedly transferring ˙60 acre land from the suit plots to defendant No.1, i.e., the appellant.

Plaintiff came to know about the sale on 14.3.1997 when the defendant No.1 expressly claimed title to the suit land. The plaintiff on search initially found out two deeds, took certified copies of them and filed Title Suit No. 12 of 1997 seeking relief as against them. During pendency of the suit the defendant disclosed about the third deed which finally led to filing of the present suit for declaration, inter alia, that all the three deeds are void not binding upon him and no title is created in favour of the defendant No.1 by virtue of the deeds.

The defendant No.1 (Appellant) contested the suit by filing a written statement wherein he denied all the material allegations made in the plaint.   The case of the contesting defendant is apparently multi-directional. First line of his defense is that the suit land was not inherited by Kumudini (Defendant No. 2), his vendor, from her husband or any one else. It was her self-acquired property as such stridhana. The claim that the land was stridhana is testified by the fact that RS record was prepared in the name of Kumudini during life-time of her husband Lolit Kumar Shill. Subsequently SA record was also prepared in her name. Another fact that testifies the case of self-acquisition is that the plaintiff, Amulya and Kumudini jointly sold a piece of land from the suit plots to one Abdul Kader and Abdul Zabbar in 1956 which amounted to admission of absolute title of their vendor (Defendant No.2) in the suit land.  The second line of defense sought to be introduced during trial is that the land originally belonged to Lolit Kumar but he gifted the land to his wife Kumudini pursuant to a condition imposed by her father. The precondition imposed by the father of Kumudini was that unless Lolit had agreed to make a gift of a piece of land to his daughter he would not give his daughter in marriage with him. The third line is that Rajkamol and Brindabon did not belong to same family far less being full brothers.  The plaintiff having claimed his descent from Brindabon, stands beyond blood relation of Loit Kumar Shill and, therefore, does not come within the line of his heirs. By the same token the plaintiff is not the successor to the estate of Anil, Amulya and Adhir as reversioner.

The case set out by way of justification for sale, in brief, is that husband of defendant No. 2 suffered protracted illness and finally died. For the treatment of her husband and maintenance of her family she collected money by mortgaging portions of the land.  She plunged into debt after performing funeral, shradhya ceremony and other rituals conduce to the bliss of her husband’s soul. Moreover, for meeting the expenses of her family, medical treatment, payment of rent etc., she had to sell ˙34 acre land (no date mentioned) to one Abdul Khalque.

Successive crop failures over the years and damage of crops by excessive rainfall dragged the Defendant No. 2 into financial constraint. Meanwhile she became bed-ridden being attacked with paralysis. She was in need of money for maintenance of her family, payment of rent, treatment and religious ceremonies for spiritual benefit of her late husband. Being thus in need of money defendant No. 2 sold ˙19 acre land from the suit plots to defendant No.1 by executing a registered deed dated 11.6.1990 on a consideration of Tk. 50,000/-.

Defendant No. 2 has always been keenly disposed to salvation of the departed soul of her husband. With that end in view she annually arranges religious ceremonies, namely, feasts for Brahmins and relatives; organizing kirtan, congregations for recitations from Chandi and Ramayana.  Apart from that she used to go to India to pay occasional visits to Gaya, Kashi and other holy places for praying in aid the blessings of gods for her husband’s soul. She also used to visit different Kali Mondir and Asram of this country in pursuit of his spiritual benefit.

Defendant No.2 again felt called to perform religious rituals for the spiritual benefit of her husband, including,   offering pinda at Gaya, pilgrimage to holy places and building moth at the samadhi site etc, and thus being in need of money sold ˙16 acre land to the defendant No. 1 by executing a registered deed dated 29.9.1992 at a consideration of Tk.30, 000/-.  Defendant No. 2 in addition, arranged feast for 500 people on the date of her husband’s death. Besides the feast defendant No.2 organized yearly kirtan and recitation from Geeta.  Thereafter she went to India in the month of Agrahayan of 1399 BS for visiting Gaya and Kashi for offerings before deities-all dedicated to the salvation of her husband’s soul.

The defendant No.2 in order to meet family expenses and expenses for treatment of her high blood pressure and paralysis and to bear the expenses of annual religious rituals for her husband including feast for Brahmins and organizing kirtan, recitations from Chandi and Bhagwabath Geeta fell in need of money. She offered ˙25 acre land for sale from the suit plots. Defendant No.1 again agreed to the offer and purchased the land at a consideration of Tk. 70,000/-by a registered sale deed dated 24.11.1996 and took over possession thereof. Defendant No. 2 spent the money, as she did earlier, on her treatment, maintenance of family and on arranging different religious ceremonies for the spiritual benefit of her husband.

The defendant No.1 thus purchased in total ˙60 acre land from the suit plots by three registered sale deeds and has possessed the land ever since by effecting mutation and payment of rent to the government. The plaintiff has brought the suit on false and fictitious story.  The suit, therefore, is liable to be dismissed.

Learned Subordinate judge upon trial found the defendant No.2 to have inherited the land from her husband thus posted with limited interest in the suit land. She as a limited heir holding life-estate is not competent to sell the land except for legal necessity. Major part of the sale was found by the trial court as not made for legal necessity and accordingly the suit was decreed in part.

Mr. Abdul Quayum, learned Advocate appearing for the appellant submits that the land is self-acquired by Kumudini Shill and as such the same is her stridhana in which she enjoys absolute and unqualified right and title including the right to sell at her pleasure.  In his bid to bring home the point Mr. Quayum referred to RS khatian of the land standing in the name of defendant No.2 which he claims to have been prepared during life-time of her husband.   The fact that the RS and SA khatians stand in her name, he contended, goes to show that the land sold was her stridhana not widow’s estate so as to revert back to the reversioner. He sought to buttress up his point by reference to the fact that a portion of land from the suit plots was admittedly sold by the plaintiff jointly with Kumudini and Amulya for meeting expenses of funeral and shradhya ceremonies of Lolit Kumar. This, he argued, is tantamount to admission that the Kumudini held absolute title in the suit land and she was legally competent to dispose of the land by sale. He finally submits that the recitals in the sale deeds also lend support to the case that the land sold was stridhana of the vendor, not inherited by her from her husband.

Mr. S.N. Goswami, learned Advocate appearing for the respondent contended that the facts and evidence on records closely considered lead to the single conclusion that the suit land was inherited by defendant No. 2 from her deceased husband and she held the same in limited interest and that the plaintiff is the next reversioner of Lolit Kumar the last full owner of the suit land. It is also proved, he insisted, on convincing evidence that the suit land is sold with the primary intention of depriving the respondent, the next reversioner. He further submitted that there is an earlier decree against the defendant No.2 passed in a suit for permanent injunction filed by the respondent, restraining her from disposing of the land on the ground that she took only limited estate in the suit land. Subsequently in the instant suit another court of original jurisdiction again adjudged the defendant No.2 as a limited owner of the suit land and found her not competent to transfer the same except for legal necessity. Mr. Goswami submits that the plaintiff has proved by preponderant evidence that he is the nearest reversioner of late Lolit Kumar and his interest in the suit land is expectant upon the death of Kumudini Shill who inherited the same  from her husband and thus obviously held the land in limited interest.

Mr. Goswami pointed out that the appellant tried to introduce a story of gift at the trial which is nowhere to be found in his pleadings. The genealogy of the Shill family given by the respondent goes unassailed. He argued with emphasis that the suit land is nothing but portion of the land appertaining to khatian No. 185 admittedly belonging to different members of the Shill family of which husband of defendant No.2, Lolit Kumar Shill, is one. Defendant No.2 is married into the family and her source of ownership to the property can only be attributable to her husband unless otherwise proved. But nothing is proved to the contrary. Mr. Goswami finally submits that the decree passed by the trial court is well founded in law and on facts and there is no cogent ground so as to justify interference by this court in appeal.

Two witnesses were examined on behalf of the plaintiff and three on behalf of the defendants. Plaintiff himself was examined as PW-1. He stated on oath that the land in suit khatian originally belonged to Rajkomol and Brindabon Shill. He has put in the genealogy of the Shill family and claimed his descent from Rajkomol Shill. He established that Rajkomol Shill had two sons, namely, Lalit Kumar Shill and Rajmohon Shill. Kumudini Shill is the widow of Lolit Kumar Shill while he (plaintiff) is the grandson of Rajmohon Shill. He also stated that he succeeded to the estate of three sons of Shashi Kumar Shill as their cousin. He claimed that he is the nearest reversioner of Lolit Kumar Shill. His specific case   is that Kumudini Shill inherited the land from her husband and took limited estate in the property. She is not entitled to sell the land except for legal necessity but she surreptitiously sold the land without such necessity.

Earlier in 1975 defendant No. 2 took an attempt to sell out certain portion of the land and the plaintiff prevented the same through intervention of the court and got a decree as mentioned above. PW.1 stated that Lolit Kumar died 50/60 years ago and they performed funeral and shradhya ceremonies. With that end in view he along with his cousin Amulya and aunt Kumudini (defendant. 2) jointly sold a portion of land out of the suit plots to bear the expenses. The deeds executed by defendant No.2 in favour of defendant No.1 are void and not binding upon him.

PW.2 Keshab Lal Das is a next door neighbor of the plaintiff and known to both plaintiff and defendant No.2. He said that Kumudini did nothing towards spiritual benefit of her deceased husband within 15/20 years after his death. To quote his words:
২ নং বিবাদী তাহার স্বামী মারা যাওয়ার পর তার ১৫/২০ বৎসরের মধ্যে তাহারা আত্মার সদ্গতির জন্য কোন  কিছু করে নাই।  ইহা সত্য নয় যে এক বৎসর আগে কুমুদিনীর বাড়ীতে রামায়ন পাঠ হয়|

DW.1, (Appellant) who is the vendee of the deeds and the contesting defendant admits the factum of purchase from defendant No.2 by three registered deeds.  But his case is that the land was self-acquired by defendant No.2 not inherited from her husband, therefore, the same was her stridhana. She sold the land for performing yearly shradhya ceremony, offering pinda at Gaya, paying debt etc. Though the question of self-acquisition for that matter ‘stridhana’ is the crux of the defendant’s case he failed to bring home the point by evidence worth consideration. He asserted that the plaintiff is not anyone in the line of heirs of the last full owner of the land. But in his cross-examination he admitted that plaintiff belongs to the family of Lolit Kumar Shill. To quote his words:
স্বামীর মৃত্যুর পর হইতে কুমুদিনী স্বামীগৃহে বসবাস করিয়া অসিতেছেন। ভ্রাতুষ্পুণ শরৎ ও শশী তাহার দেখাশুনা করে। বাদী হেমন্ত উক্ত শরতের পুত্র.

Defendant No.2 Kumudini Shill herself was examined as DW.2. She tried to establish that she sold her own property not the property of her husband saying, inter alia, -‘I have sold my own property not the property of my husband’. Her words are apparently vague in that the words- ‘I have sold my own property’ do not necessarily mean that the property sold was her stridhana in that stridhana is a highly technical word used strictly in technical sense.  Even if the words are construed to mean stridhana there must be some evidence on records which in the circumstances of the case, must lead to the inference that the property was received or acquired by her in a manner which may constitute stridhana.  There is none except two records of rights standing in the name of Kumudini and the factum of joint sale for stridhana to stand on. The question would be addressed at an appropriate stage of our judgment.

Taking cue from DW.1 Kumudini Shill also made an attempt at introducing a case closer to ‘gift’ and said in her deposition that her father gave her in marriage to  Lolit Kumar on condition that Lolit would give her some land in writing but before doing so he died. Back to her words:
ললিত কুমারের নিকট  আমার পিতা  আমাকে বিবাহ দিয়াছিল এই্ শর্তে যে ললিত কুমার আমাকে সম্পত্তি লিখিয়া দিবে।  লিখিয়া দেওয়ার পূর্বেই ললিত কুমার মারা যায়। ”

Nothing remains of ‘gift’ after such a statement made by Kumudini, the alleged donee herself.

Amid the toil and wrangling on gift one curious question looms large, that is, whether or not a gift of immoveable property made by husband constitutes stridhana according to Dayabhaga or Bengal school.  The view of Jimutavahana represented by   Dayabhaga School possibly resolves the issue. According to Dayabhaga School:

‘…all gifts from relations constitute stridhana, except a gift of immoveable property  made by the husband; and that gifts from strangers also constitute stridhana if made before the nuptial fire or at the bridal procession.’ (Quoted from Mulla Principles of Hindu Law, 15th Ed by ST Desai p.189).

It follows, therefore, that gift of immov-able property by the husband, according to Dayabhaga law, does not constitute stridhana. The defendant’s case of gift, therefore, falls through as a matter of law rendering the factual attempt at proving it without any consequence.

So far as the question of identity of the plaintiff is concerned DW.2 like DW.1 admitted that she and plaintiff live in one house and plaintiff stands to her as her grandson.  As she said: আমি ও বাদী য়েল¿গ্গ একই বাড়িতে থাকি। বাদী আমার নাতি হয়|Ó   The case of the plaintiff as to his identity, therefore, stands established by the admissions of both DW.1 and DW.2. The plaintiff virtually emerges as one in the line of heirs of deceased Lolit Kumar. It is not also denied by the defendants that he is the nearest reversioner of Lolit Kumar Shill.

DW.3, a co-villager of the plaintiff deposed in support of the possession of the defendant No.1. He said that defendant No.2 has been performing religious rituals ever since her husband’s death. He did not say anything about the alleged self-acquisition of the suit land by defendant No.2 or about the relation-ship of the plaintiff with Lolit Kumar Shill.

In view of the facts and evidence on records it may fairly be concluded that the respondent is a member of the Shill family and is the nearest heir of deceased Lolit Kumar Shill, the last full owner of the land sold. Respondent’s case on this point is established by his own statement on oath and reaffirmed by the admissions made by the DWs in court.  It is also proved by the respondent that the land sold is a portion of the ancestral property of the Shill family and admittedly the vendor is the widow of late Lolit Kumar Shill.  Respondent’s clear case is that defendant No. 2 inherited the land from her husband. The appellant (contesting defendant), though denied acquisition by inheritance, has miserably failed to press home his own case by cogent evidence oral or documentary. Moreover, he appears to have taken multi-dimensional defenses going beyond his pleadings which again were contradicted by his own witness as is discussed above.

Back to the crucial question of record of rights and the joint sale.  Mr. Quayum seems to have placed a good deal of emphasis on the fact that the RS and SA records stand in the name of Kumudini  as well as on the joint sale of a piece of land from the suit plots with Kumudini and Amulya. The point he seeks to canvass is that the RoR standing in the name of Kumudini and the joint sale of land with her by the respondent amply suggest that the suit land is stridhana of Kumudini not inherited from her husband. He sought to buttress up his point submitting that the RS record was prepared in the name of Kumudini during the lifetime of her husband which clearly raises a presumption in favour of stridhana and further strengthens the case of the appellant.  The trial court, he stressed, committed an error of law having failed to take into notice such a decisive piece of evidence. We are not persuaded to agree with Mr. Quayum for the precise reason that the revenue records of the government by its nature does not squarely correspond to the  intricacies and peculiarities of  title of a person attached to a piece of land.  For the purpose of revenue records one is not required to lay bare all the details relatable to title. Apparent interest in the land either as a proprietor, tenure-holder, raiyat, under raiyat, even possession as an occupant may form sufficient basis for preparation of record of rights.

It is a settled position of law that a widow as a limited heir is not a mere tenant-for-life, but is owner of the property inherited by her, subject to certain restrictions on alienation. The whole estate is vested in her for life and she represents it completely and her position is that of an owner. So long as she is alive no one has a vested interest in the succession. It is similar in incidents to an absolute estate. As long as a Hindu woman is found in possession of a piece of land either taken by her as life estate or as absolute interest she remains to be the owner of the land. In the circumstances, preparation of record of rights in her name remains to be a matter of course.  It has nothing to do with the nature of her title to the land, limited or absolute. Nor such record of rights per se raises any presumption in favour of stridhana.

Over and above Mr. Quayum appears to be factually wrong in that the defendant No.2 herself as DW.2 stated in clear terms that the land was  recorded  in  her name  after  death of her husband. Her own words read  as  follows: "স্বামীর  মৃত্যুর  পর  আমার  নামে  রেকর্ড হয়|" The appellant himself  also  did  not stick to the point and said nothing on oath about the timing of preparation of R.S. record. Be that as it may, our view is that record of rights standing in the name of the widow even if found to have been prepared during lifetime of her husband, does not ipso facto raise any presumption in favour of stridhana.

As for the joint-sale Mr. Quayum submits that the joint sale of a portion of land by the plaintiff, his cousin Amulya and the defendant No.2 amounts to admission of her absolute interest in the suit property. We are again unable to accept the contention, firstly because, we do not find any reason why a Hindu widow should be unable to join other co-sharers or next reversioner in transferring her life-estate or portion thereof for her legal necessity. Secondly, such transfer, if any, speaks more in favour of her limited estate than in favour of absolute title in the property in that joining the reversioners for sale of property held in absolute interest is more unlikely.  And finally, in the face of the credible and convincing evidence prevailing in favour of the plaintiff’s case and apparent failure of the defendants to outweigh the same by any evidence to the contrary mere joint sale cuts no ice either in terms of law or of facts.

Now the question we are left with is that given the fact that the land sold by defendant No.2 was inherited by her from her deceased husband and she took life estate in the same whether it can be said that the transfers made were made for legal necessity. Defendant No.2 inherited ۠1.19 acre land from her husband. Back in 1956 she sold jointly with the plaintiff and Amulya ˙21½ acre land for meeting expenses of funeral and shradhya ceremony of her deceased husband. Admittedly she later sold .34 acre land to one Abdul Khaleque which was prevented by intervention of court at the instance of the present appellant. In 1990 defendant No. 2 sold ˙19 acre land at Tk. 50,000/-. Thereafter in 1992 she sold ˙16 acre land at Tk.30, 000/- and finally in 1996 she sold ˙25 acre land at Tk. 70,000/-. In all the three sale deeds (Ext.1, 1Ka & 1Kha) under challenge the necessities for sale as set out are (with little variations) as follows:

..এই্ক্ষণে পরলোকগত স্বামীর পারলৌকিক কার্যের  জন্য গঙ্গায় পিন্ডদান ও আমার তীর্থ ভ্রমন করার জন্য গয়া কাশি প্রভৃতি নানা স্থানে গমন ও স্বামীর সমাধিস্থলে মঠ তৈরি ও আমার খোরাক পোষাক প্রভৃতি কার্যের  জন্য এছাড়া সাংসারিক নানাবিধ কারণে বহু টাকার আবশ্যক বিধায় আমি আমার নিজ রেকর্ডীঁ ভোগদখলীয় সম্পত্তি ছাপ বিণিক্ষ্ম করার প্রদ্মগ্গবয ঘোষনা করায় আপনি…..

In the fitness of things a piece of statement of DW.1 (Appellant) made in cross examination needs be quoted:

‘বিবাহকালে কুমুদিনীর বয়স ছিল ১০ বৎসর। বিবাহের দেড় বছর পর স্বামী ললিত কুমার মারা যায়। অবমলবব ৬৮ বৎসর পূর্বে।

The above statement of DW.1 made during trial (held in late 1999) shows that Kumudini was married at the age of 10 and lost her husband only 1½ years thereafter and her husband died 68 years ago. PW.1 (Respondent) on the other hand stated that Lolit died 50/60 years ago. The joint sale appears to have been made in 1956 allegedly for meeting expenses of sradhya etc. of Lolit. It is fairly deducible from the above evidence on records that Lolit died in mid-fifties. 

The three deeds under challenge were executed by the defendant No.2 from 1990 onward and completed within 1996. Defendant No.2 is admittedly childless. In addition to her disposal made twice earlier the disputed deeds seeking to dispose of total .60 acre land thereby collecting Tk. 50000+30000+70000= 1, 50,000/- within such a short span of time  assumes an apparent look of liquidation-sale for depriving the next reversioner of her husband.

Husband of defendant No.2 died long 55 (approximate) years ago when she was a girl of 12 years only (per PW.1). That means she lost her husband before true attachment between them could grow.  Her age and maturity at the time of her husband’s death do not go with the case of the appellant that the youthful widow was extremely dedicated to her husband and did everything possible for recovery of her ailing husband. It is also unusual for a girl of 12 years that she had plunged into debt for her husband and mortgaged some land. It is also incompatible with her age that she again fell in need of money for her own treatment, payment of rent and maintenance of her family which led her to sell 34 decimal land to one Abdul Khaleque.  The story of transferring the land to Abdul Khaleque, moreover, is factually incorrect in that the deed of Abdul Khaleque was executed in 1975, long after the death of her husband in mid- fifties which is too remote to relate the necessities for sale alleged.

By the same token it is also unbelievable that Kumudini, poor widow as she was,  had been performing various religious ceremonies every year which includes pilgrimage to holy places, offering pinda at Gaya, building moth at the samadhi site of her husband, offering feasts to Brahmins and relatives arranging kirtan, chandipath and recitations from Bhgwabath Geeta etc. all the above expensive religious ceremonies observed  every year by a widow of scant means stand in stark contrast with reality. It is equally unbelievable that with the little means she had she threw feast for 500 people in 1992. Moreover, the story of visiting Goya and Kashi by Kumudini, being herself an old woman of above 70 years at the material time and a patient of acute paralysis is too difficult a pill to swallow. 

No mathematical limit can be fixed to the power of alienation of a widow of her husband’s property for the purpose of religious acts which conduce to his spiritual benefit. The question whether the property dedicated or alienated constitutes a reasonable proportion of the whole estate is relevant. The limited owner must act with the best of motives and without extravagance.  Here in this case intention of sale does not appear to be bona fide and the wholesale transfer of life estate by the widow in the name of spiritual benefit of her deceased husband in disregard of her own survival does not appear to be proportionate from any point of view.

Learned Subordinate Judge, however, found one deed, i.e., deed of 1990 seeking to dispose of ˙16 acre land at Tk. 50,000/- to be executed for legal necessity and other two are not.  True it is that the case of the appellant as is pleaded cannot be measured on the scale of legal necessity. It cannot still be denied that the defendant No.2 is a poor widow left with the small parcel of land for her maintenance and all the incidental expenses of life. Respondent has not come with a case duly proven that defendant No.2 had other property to support her many different expenses at her old age. All the impractical and irrational excuses for sale apart, she needed money and the only source again remained to be the same small piece of land. We, therefore, agree with the learned Subordinate Judge to the extent that the land sold under the deed of 1990 was sold for legal necessity. But that does not mean that the disposal of almost the entire property on the excuses as were shown, by two subsequent deeds can be called disposal for legal necessity.

For the reasons stated above we find substance in the contention of Mr. Goswami that, in view of the facts and evidence on records there is no justifiable reasons for interference of the judgment and decree passed by the trial court. The appeal must, therefore, fail.

In the result, the appeal is dismissed without any order as to cost. The impugned judgment and part decree passed by the Subordinate Judge 2nd Court, Pirojpur, is maintained.

Send down the lower court records at once.

Ed.