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Petitioner: KHUDA BAKHSH VS Respondent: MUHAMMAD HUSSAIN
P L D 1949 Lahore 236
P L D 1949 Lahore 236
(SINGLE BENCH)
Before Muhammad Sharif, J
KHUDA BAKHSH‑Defendant‑Appellant
versus
MUHAMMAD HUSSAIN and others‑Plaintiffs
Mst. SAJADA BEG UM‑‑Defendant‑Respondent
Second Appeal No. 92 of 1947, decided on 14th February 1949 from the order of District Judge, Rawalpindi, dated 30th August 1946.
Custom‑Alienation‑Legal necessity‑Sale by widow of property for defending her honour‑Not justified by law.
The amount really spent by Mst. Sajada Begum on litigation with Muhammad Bakhsh did not in any way concern the estate of the widow. It related to the defence of her own honour and to the refutation of the assertion by Muhammad Bakhsh that she had eloped with him or married of her own free will. The reversioners could not be blamed for what happened.
In the case of a female, the property, to which she has succeeded as such, could not be alienated at her mere sweet will or pleasure and it did not make any difference whether it was or was not ancestral.
These decided cases demand extra caution and circumspection in dealings with females and the mere representation of a so‑called "neces sary purpose" would not afford protection to the extent to which it would be available in the transfer by a male.
If the debt was entered into for a purpose not recognized by Custo mary Law, its discharge shall not be made by the alienation of the estate or part thereof. Time alone could not place it on a higher footing and what could not be done at the time the debt was raised, should not be allowed to be done at a later stage.
44 P R 1890, 128 P W R 1911 and A I R 1930 Lah. 302 ref. to.
Muhammad Yaqub Ali Khan for Appellants.
A. R. Niazi for Respondents.
Muhammad Sharif, J.‑This second appeal has arisen under the following circumstances. On 2nd January, 1945 Mst. Sajada Begum sold 11 kanals 3 marlas of land in favour of her real brother for Rs. 2,000. The purpose stated for the alienation was that she had to discharge debts incurred in the course of the litigation arising out of her abduction. The entire money was paid before the Sub‑Registrar. The suit out of which this appeal has arisen was instituted by the reversioners of her husband on the ground that she having remarried could no longer remain in" possession of her widow's estate and in the. alternative for a declaration that on her death the alienation shall not affect their reversionary rights. The first Court held that no remarriage was proved and the declaration was granted. On appeal to the learned District Judge this judgment was affirmed. The alienee has now come up in second appeal.
It was strenuously urged by the learned counsel for the appellant that Mst. Sajada Begum had in order to defend and vindicate her honour, run into debts to the extent of about Rs. 2,000 and she discharged them by selling off the property in favour of her brother. It was argued that the debt was "just antecedent debt" and was binding upon the estate. Reference was made to the findings of the learned District judge where he had held that the existence of the debt was established and that there was sufficient proof upon the record to show that Mst. Sajada Begum had off and on taken money on loan from different persons and that it was paid off after the alienation.
The sole question for consideration in the case is whether the Customary Law would sanction the sale of the property by the widow for the purpose of defending her honour and not for the purpose of defending the estate of which she was in possession. All that appears from the record is that Mst. Sajada Begum succeeded as the widow on the death of her husband in 1918. Some years later she is said to have been abducted by one Muhammad Bakhsh and she could return to her house after a long time. A report to the police was made that she had been forcibly abducted but no action was taken. Mst. Sajada Begum then presented a private complaint charging her abductor with offences under sect ions 366, 368 and 376, Indian Penal Code. The trial Court convicted him but on appeal the learned Sessions judge acquitted him and doubted the story of abduction itself. After t; is, Mst. Sajada Begum brought a civil suit for
declaration that she was still the widow of Ata Muhammad her late husband. Reversioners were made defendants in that case. At the first hearing, they confessed judgment and declaration was granted to Mst. Sajada Begum.
It would thus appear that the amount really spent by Mst. Sajada Begum on litigation with Muhammad Baksh did not in any way concern the estate of the widow. It related to the defence of her own honour and to the refutation of the assertion by Muhammad Bakhsh that she had eloped with him or married of her own free will. The reversioners could not be blamed for what happened. Even in the civil suit brought against the reversioners, they did not put up a fight and perhaps it was premature as the widow was still in possession of her estate and no attempt had yet been made to oust her.
Para. 63 of Rattigan's Digest of Customary Law enumerates the necessary purposes for which an alienation might be made. The learned counsel for the appellant contended that it was "just antecedent personal debt not incurred for an immoral purpose" and as such was binding upon the estate. Too wide an interpretation was sought to be put upon these words. The amount required to be spent upon litigation is mentioned in clause (h) "to defray legal expenses incurred by a widow in defending her life estate" The legal expenses for which the widow could charge the estate of her husband could only be the legal expenses incurred in defending her life estate and the necessities upon which the money could be spent or for which the estate could be made liable are mentioned in clause (g), "Personal necessities arising from poverty etc., to meet State demands, or pressing private wants which cannot be met from other available sources". None of these clauses covers the case of a litigation like the one in which Mst. Sajada Begum was engaged. It cannot be overlooked that there is a fundamental difference between a widow and a male proprietor. There is some limitation inherent in the estate of the widow. She has only a life‑estate while that is not so in the case of a male proprietor. The powers of alienation of a male over ancestral property are fettered to protect the interest of those who might have a right to succeed after him and who claim descent from the common ancestor in possession of the land. In the case of a female, the pro perty to which she has succeeded as such could not be alienated at her mere sweet will or pleasure and it did not make any difference whether it was or was not ancestral. The difference as I have pointed out, lies in the fact that the estate of a female limited in its very nature while that is not so in the case of a male. In order to fully understand the "necessary purpose" in the case of a female, the necessary limitation implicit in her estate should not be ignored. It might be very hard that a female might not be in a position to bring to book her abductors or other enemies in the absence of funds which she could not raise by parting with her property, but Customary Law considerations appear to limit the needs of a female to be met out of the estate only to those arising out of the protection of the estate. A different view might lead to some starting results and the whole estate might be alienated on one pretext or another. Anybody dealing with a female is presumed to know, that her estate is limited and that he must satisfy himself before he advances her any loan. He is not charged with the same degree of responsibility when dealing with a male though the ancestral property in his hands is also subject to limitations for the benefit of the reversioners.
No direct decided case was referred to on the point. Reference was made to 44 P R 1890, 128 P W R 1911 and A I R 1930 Lah. 302, 44 P R 1890 laid down :‑
"Money borrowed to defray legal expenses incurred by a widow in defending her life‑estate constitutes legal necessity for which she may legitimately alienate her husband's estate".
This would not clearly cover the case where the litigation was not con cerned with the protection of the life‑estate. 128 P W R 1911 deals with the duty of a widow to manage the life‑estate property. It was held that‑‑
(1) "If a widow by properly managing her life‑estate can defray all her necessary expenses, an advance made knowingly by a creditor even for legal necessity cannot be a charge on the estate especially when the widow appears to have fallen into the hands of that creditor who is encouraging her in unnecessary expenditure, real or pretended, for his own objects.
(2) A widow is not permitted to anticipate wants and cannot validly alienate her husband's estate for the maintenance of her mother- in‑law.
(3) When a widow is to blame herself for the litigation started by her husband's reversioners, a loan raised by her to meet its expenses is not for legal necessity".
According to this authority every debt incurred by a widow could not be considered to be a legal debt for which the estate could be made liable. Even where the money was raised to meet the expenses of litigation, it could be seen as to who was to blame for the litigation. In the case of Mst. Sajada Begum as I have mentioned above, the offence said to have been committed was a cognizable one and the police could take action upon it. The police refused to take action as they perhaps were not convicted that the story disclosed a case of forcible abduction and this is what ultimately was found to be the case by the learned Sessions judge who acquitted Muhammad Bakhsh A I R 1939 Lah. 302 says:
"In the case of alienations by widow the necessity for previous mortgages must be proved ;where necessity is not established, the alienations by the widow cannot be countenanced".
These decided cases demand extra caution and circumstances in deal ings with females and the mere representation of a so‑called "necessary purpose" would not afford protection to the extent to which it would be available in the transfer by a male. This is no more than a corollary of the nature of the estate held by a female.
In the light of the principles enunciated above, the contention of "just antecedent debt" should present no difficulty. It could not be considered apart from the nature of the estate. What might be "just antecedent debt" for a male, might not be so far a female. The debt for which sanctity is claimed by the efflux of time, must itself be a "debt" which a widow could contract, having regard to her position under Customary Law A I R 1930 Lah. 302 (supra) would necessitate an enquiry into a previous mortgage of property and this would be all the more necessary in the case of a simple money transaction. If it was entered it to for a purpose not recognized by Customary Law, its discharge shall not be made by the alienation of the estate or part thereof. Time alone could not place it on a highest footing and what could not be done at the time the debt was raised, should not be allowed to be done at a later stage. Or it may be looked at, in another way. A creditor could do no more than obtain a simple money decree but in execution of the same the estate could not, in all probability, be put up to auction and sale. The woman herself could not be sent to prison. There would thus be no pressure against the estate or person and a voluntary sale by the widow would have no object other than to deprive the reversioners of their dues.
For the reason given above I would concur with the conclusion of the lower Courts and dismiss this appeal with costs.
K. M. A. Appeal dismissed.