A pilgrimage to Benares does not constitute legal necessity for a Hindu widow to alienate her husband's property.

JUDGMENT : -This appeal is concerned with the question of validity of an alienation made by one Laxmibai on 6-4-1908. Laxmibai was the widow of one Vasudeo. Vasudeo and Ramchandra were two separate brothers Ramchandra died in 1917, Vasudeo having died previously in 1903. Ramchandra left a widow Gangabai, but no son, and the widow Gangabai adopted one Vishwanath as a son to her deceased husband in 1922.

Gangabai died in 1927 and Laxmibai died in 1941. Vasudeo had left certain immoveable property consisting of some seven lands, including the suit land, which is Survey No.654. Between 1904 and 1906 Laxmibai sold six lands to several persons and in 1908, she sold the suit land to one Narayan for a sum of Rs.200/-.

The sale-deed recites that Laxmibai required the amount for going upon a pilgrimage to Kashi. On 11-2-1949, Vishwanath filed the present suit challenging the several alienations made by Laxmibai and the basis of his claim was that the alienations were not supported by legal necessity and that the plaintiff, as the nephew of Vasudeo, the last owner, was entitled to recover possession of the property.

2. Defendant No.1 is a purchaser of the suit property from Krishnaji, a nephew of Narayan, who was the original purchaser of the property from Laxmibai, and he purchased the suit land on 1-5-1934, for the consideration of Rs.1,000. Defendant No.1 contended, by his written statement, that the alienation made by Laxmibai was for legal necessity and he raised several other contentions. But since those contentions have not been agitated in this appeal, it is not necessary to mention them.

3. The learned Judge held that the alienation of 6-4-1908, was not supported by legal necessity and made a decree in favour of the plaintiff, conditional upon the plaintiff paying to defendant No.1 a sum of Rs.1,500 which was the amount of improvements made by defendant No.1. There was a usual order about mesne profits and costs of the suit. From that decree, defendant No.1 has come up in appeal.

4. In the Court below the plaintiff was called upon to prove his adoption. The learned Judge recorded a finding in his favour, and that finding is not now challenged in this appeal. The only question for decision is whether the alienation effected by Laxmibai on 6-4-1908, is justified by legal necessity. Now, the necessity as recited in the sale-deed is that the widow required money for a pilgrimage to Kashi, i.e., Benares. Mr. Hungund who appears for defendant No.1 contends that, looking to the recital of necessity in the sale-deed, the Court below was wrong in holding that the alienation was not justified by legal necessity.

In Mullas "Principles of Hindu Law", 11th edn., p. 183, it is stated in S. 181A as follows:

"A widow or other female heir may alienate an estate for certain religious or charitable purposes. These purposes may be divided into two classes, namely:

(a) The performance of the obsequial ceremonies of the deceased owner mentioned in cl. (i) below, and the payment of his debts mentioned in cl. (iv) below.

(b) The performance of religious ceremonies of persons other than the deceased owner mentioned in cl. (ii) below, and religious or charitable acts which are supposed to conduce to the spiritual welfare of the deceased owner mentioned in cl. (iii) below.

The first class relates to acts which are essential and obligatory. The second class relates to acts which although not indispensable or obligatory are still pious purposes which conduce to the benefit of the soul of the deceased. As regards the second class, she can alienate a small portion only of the estate for the pious or charitable purpose she may have in view; ....."

At page 184, cl. (iii) referred to above is as follows:

"Religious or charitable acts which conduce to the spiritual welfare of her husband. These acts are not essential or obligatory."

It has been held that if a widow undertakes a pilgrimage to Gaya for performing her husbands shradha or undertakes a pilgrimage to Pandh