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PETITIONER: SHEO KUER

       Vs.

RESPONDENT: NATHUNI PRASAD SINGH & ORS.

DATE OF JUDGMENT12/12/1975

BENCH: CHANDRACHUD, Y.V. BENCH: CHANDRACHUD, Y.V. SARKARIA, RANJIT SINGH GUPTA, A.C.

CITATION:  1976 AIR  709            1976 SCR  (2)1002  1976 SCC  (1) 590

ACT:      Widow’s Estate-Powers of a Hindu Female to alienate the property   devolved,    for   religious   purposes-Test   of reasonableness of alienation.

HEADNOTE:      Kachnar Kuer,  on whom the property of her late husband devolved, executed two registered deeds. By one of these she adopted a  son to  her deceased  husband and by the other, a deed of  Arpan-nama she created a religious endowment in the name of  Shri Gopalji,  appointing  her  mother-in-law  Sheo Kuer, the appellant as the shebait.      The respondents claiming to be the reversioners filed a suit for  declaration that  the two deeds were void, illegal and not  binding on  their reversionary  interest. That suit was dismissed on the ground that the late husband of Kachnar Kuer had  given authority  to her to make an adoption and to create an endowment.      On appeal,  the High Court reversed the findings of the trial court  and decreed  the Suit.  The High Court however, granted a  certificate of  fitness’ under  Art. 133(1)(b) of the Constitution  and since after obtaining the certificate, Kachner Kuer  purported to  compromise  the  suit  with  the reversioners, Sheo  Kuer, the  shebait came  up in appeal by special leave.      Allowing the appeal, ^      HELD. (i)  It  is  well  settled  that  a  Hindu  widow possessing a  widow’s estate  cannot alienate  tho  property which has  devolved on  her except for special purposes. The powers of  a Hindu  female to alienate property are wider in respect of  acts which  conduce to  the spiritual benefit of her deceased  husband. The  widow is  entitled to  sell  the property, even  the whole  of  it,  if  the  income  of  the property is  not sufficient  to cover  the expenses for such acts. In regard to alienations for pious observations, which are not  essential or  obligatory, her powers are limited to alienations of  only a  small portion of her property. [1004 F, H, 1005 A]      (ii) Whether the alienation for a pious purpose is of a reasonable portion  of the  property must necessarily depend

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upon the  total extent  of the property t which has devolved upon the widow. [1005 D]      (iii) The  reasonability of the alienation of a portion of the  property depends  on the  facts and circumstances of each case, but an alienation of 1/5th portion cannot be said to be unreasonable or excessive. [1005 F]      Collector of  Masulipatam v.  Cavaly Vencata  8  M.I.A. 529, Sadar  Singh v. Kunj Behari 491 I.A. referred to Kamala Devi v. Bachu Lal Gupta, [1957] S.C.R. P. 452 applied.

JUDGMENT:      CIVIL APPELLATE  JURISDICTION: Civil Appeal No. 1815 of 1969.      Appeal by  Special Leave  from the  Judgment and Decree dated the  3rd October, 1964 of the High Court of Judicature at Patna in Appeal from Original Decree No. 152 of 1959.      P.K. Chatterjee and Rathin Das for the Appellant.      S.V. Gupte and B.P. Singh for Respondents 1-2. 1003      Santok Singh for Respondents 3-4.      The Judgment of the Court was delivered by      CHANDRACHUD, J.-One  Trilok Prasad  Singh, who  was the last male  holder in  his line, died on May 12, 1948 leaving behind his widow Kachnar Kuer and his step-mother Sheo Kuer. On February  12, 1956  Kachnar Kuer  executed two registered deeds. By  one of  these she  adopted a  son to her deceased husband and  by the  other, which  is described as a Deed of Arpan-nama, she created a religious endowment in the name of Sri Gopalji  and appointed  her mother-in-law Sheo Kuer as a shebait.      Respondents 1 and 2, claiming to be reversioners, filed suit No.  16 of  1956 in  the court of the First Subordinate Judge, Gaya,  for a declaration that the two deeds were void and illegal  and were  not  binding  on  their  reversionary interest. Kachnar  Kuer was defendant 1, the adopted son was defendant 2 and Sheo Kuer was defendant 3 to the suit.      During the  suit, the  defendants were evidently of one mind and they contended by their written statements that the impugned deeds  were executed  under the  authority given by the deceased  Trilok Prasad Singh and that respondents 1 and 2 had  no right  to bring  the suit after June 17, 1956 when the Hindu Succession Act, 1956 came into force      The trial  court dismissed the suit holding that Trilok Prasad Singh  had given authority to Kachnar Kuer to make an adoption and  to create  an endowment and therefore both the deeds were valid.      Against the  dismissal of their suit, respondents 1 and 2 filed  First Appeal  No. 152  of 1959 in the High Court of Patna. By  its judgment dated October 3, 1964 the High Court allowed the  appeal and decreed the suit holding that Trilok Prasad Singh had not given authority to Kachnar Kuer to take a son  in adoption and under the Banaras School of Hindu Law by which  the parties  were governed,  an adoption made by a widow without  the authority of her husband was invalid. The High Court  also held  that Trilok  Singh had not authorised Kachnar Kuer  to create  a religious endowment over any part of his property and since by the Arpan-nama a large piece of property was dedicated to the deity the dedication was void. On the  question whether, after the coming into force of the Hindu Succession  Act, respondents  1 and  2 as reversioners could maintain  the suit,  the High  Court held  that on the material date  Kachnar Kuer  was not  in possession  of  the property and  therefore her  limited estate  could not ripen

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into an absolute estate under the Hindu Succession Act.      Kachnar Kuer  made an application to the High Court for a certificate  of fitness  to appeal  to this  Court and the High Court  by its  order  dated  May  10,  1965  granted  a certificate of  fitness under  Article  133(1)  (b)  of  the Constitution. But after the petition of appeal was lodged in this Court, Kachnar Kuer joined hands with respondents 1 and 2 and purported to enter into a compromise dividing the 1004 property left by Trilok Prasad Singh between themselves. The appellant, Sheo  Kuer, who  was appointed as a shebait under the deed  of Arpan-nama  has  thereafter,  obtained  special leave to  appeal to this Court from the judgment of the High Court. We  are, in this judgment, concerned with Sheo Kuer’s appeal, not  with  the  appeal  filed  by  Kachnar  Kuer  by certificate.      The High  Court has  rejected the  evidence led to show that ’Trilok  Prasad Singh  had given  authority to  Kachnar Kuer to  make an  adoption to  him.  The  finding  that  the adoption  is  without  the  authority  of  the  husband  and therefore void is not challenged before us either by Kachnar Kuer or by the adopted son and that finding must there. fore be confirmed.      Since the  evidence on the other question as to whether Trilok Prasad  Singh had  given authority to Kachnar Kuer to create a  religious endowment  was closely  linked with  the question regarding  the authority  to adopt  and  since  the pattern of  evidence on both the questions is identical, the High Court  held that  Kachnar Kuer  did not either have the authority of her husband to instal the deity or dedicate any 1 property  to the  deity. This  finding is  not  challenged before us  by Sheo  Kuer, the  shebait appointed  under  the Arpan-nama, and  therefore we must proceed on the basis that the dedication  was created  by  Kachnar  Kuer  without  the authority of her husband.      The point involved for determination in the appeal thus relates to the powers of a Hindu female on whom property has devolved upon  the death  of her  husband, to  alienate  the property for  religious purposes. This question has been the subject matter  of several  decisions  Of  the  Indian  High Courts as  also of  the Judicial Committee. These decisions, beginning with  one of  the earliest  pronouncements on  the subject in  Collector of  Masulipatam v. Cavly Vencata, upto the decision of this Court in Kamala Devi v. Bachu Lal Gupta have been discussed with fullness and clarity of Mr. Justice Bijan Kumar  Mukherjea in  his Tagore  Law Lectures  on  the Hindu  Law   of  Religious   and  Charitable  Trust.  It  is unnecessary to  analyse  the  various  Decisions  which  the learned author  has considered  because the true position on the subject  is crystalised in the decision in Kamala Devi’s case. The law must now be taken as well-settled that a Hindu widow  possessing  a  widow’s  estate  cannot  alienate  the property which  has  devolved  on  her  except  for  special purposes.  To  support  an  alienation  for  purely  worldly purposes she  must show necessity but she has a larger power of disposition  for religious and charitable purposes or for Those  purposes   which  are  supposed  to  conduce  to  the spiritual‘ welfare  of her  husband. As  pointed out  by the Privy Council  in Sardar  Singh v.  Kuni Behari,  the  Hindu system recognises  two sets  of religious  acts: those which are considered as essential for the salvation of the soul of the deceased  and others  which,  though  not  essential  or obligatory, are still pious observances which conduce to the bliss of the . deceased’s soul. The powers of a Hindu female to alienate  property are  wider in  respect of  acts  which

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conduce to the spiritual benefit of 1005 her deceased  husband. The  widow is  entitled to  sell  the property, even  the whole  of it, the income of the property is not  sufficient to  cover the  expenses for such acts. In regard to  alienations for  pious observances, which are not essential  or   obligatory,  her   powers  are   limited  to alienating only a small portion of the property.      Applying the principles accepted in Kamala Devi’s case, the simple  question for  decision, in view of the fact that the Arpan-nama  was executed  for a merely pious purpose and not for  an essential  or obligatory  purpose is whether the alienation effected  by Kachnar  Kuer in favour of the deity is of  a  reasonable  portion  of  her  husband’s  property. Respondents 1  and  2,  in  paragraph  7  of  their  plaint, passingly mentioned  that Kachnar  Kuer had  transferred  "a considerable portion" of the properties left by her husband. In paragraph  13 of the written statement which Kachnar Kuer filed on  behalf of  herself and  her adopted  son,  it  was stated that in view of the fact that Trilok Prasad Singh had left about  150 Bighas  of land,  the alienation of about 30 Bighas in  favour of  the deity  could not  be  said  to  be unreasonable or  excessive. One hundred and fifty Bighas are treated in  the area as roughly equal to 90 acres so that 30 Bighas come  to about 18 acres. Whether the alienation for a pious purpose  is of  a reasonable  portion of  the property must  necessarily  depend  upon  the  total  extent  of  the property  which  has  devolved  upon  the  widow.  The  mere circumstance that a 100 acres are alienated by the widow for a pious  purpose will  not justify  the setting aside of the alienation on  the ground  that 100 acres is large property. The High Court, without adverting to the fact that the widow had alienated only a one fifth portion of the property which had devolved  upon her,  held that  "a dedication of a large part of  the property, more than 18 acres of land, cannot be defended on  the part  of a  holder of  a widow’s estate -". This is  all that the High Court has to say on the point and obviously, what  it has  said is  not enough or relevant for invalidating the alienation.      Whether the  alienation is  of a  reasonable portion of the property  is not  a matter  to be  decided on precedents because what  is reasonable  must depend  upon the facts and circumstances of each case. But an alienation of a one-fifth portion cannot  be said to be unreasonable or excessive. The finding of  the High  Court must  therefore be set aside and along with it its judgment allowing the reversioner’s appeal and decreeing their suit.      We therefore  hold  that  the  Arpan-nama  executed  by Kachnar Kuer  in favour of the deity is lawful and valid. In the result  we allow  the appeal,  set aside the judgment of the High Court and direct that the suit filed by respondents 1 and 2 shall stand dismissed with costs. S.R. Appeal allowed. 1006