Sheo Kuer Vs. Nathuni Prasad Singh
& Ors  INSC 318 (12 December 1975)
SARKARIA, RANJIT SINGH GUPTA, A.C.
CITATION: 1976 AIR 709 1976 SCR (2)1002 1976
SCC (1) 590
Widow's Estate-Powers of a Hindu Female to
alienate the property devolved, for religious purposes-Test of reasonableness
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
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 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,  S.C.R. P. 452 applied.
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
S.V. Gupte and B.P. Singh for Respondents
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 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
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 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
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.