A widow can alienate her husband's property for legal necessity, such as the performance of Gaya Sradh and construction of a well.

Choudhary, J.

1. This appeal by the plaintiff is directed against the judgment and decree of the First Additional Subordinate Judge of Patna affirming those of the Additional Munsif, Barh.

2. The facts leading to the institution of the suit out of which the present appeal arises, put shortly, are these: The land in suit which bears plot No. 428 of Khata No. 326 and has an area of 0.62 acres lying in village Bhagwatipur belonged to one Tilak Singh. On his death, his widow Mt. Jasomati Kuer inherited the same. She, thereafter, died in 1942 and then Basudeo Singh, defendant 3, the admitted next reversioner of Tilak Singh, inherited his entire property. Thereafter, he sold the suit land, along with other lands, for Rs. 1500.00 to the plaintiff who, though got possession over other lands, could not get possession over the suit land. He, thereafter, instituted the present suit for declaration of title and recovery of possession with mesne profits against defendants 1 and 2, and in the alternative, for refund of proportionate consideration money against defendant 3.

3. The suit was contested by defendants 1 and 2. Their defence was that the suit land was the Stridhan property of Mt. Jasomati Kuer who sold it to them through a registered sale deed dated 8-3-1933, for Rs. 265/- and that they were in possession of the same since after their purchase. In the alternative, they also pleaded that even if the suit land belonged to Tilak Singh his widow sold it to them for legal necessity. Defendant 3 did not appear in the suit.

4. The trial Court held that the suit land was the Stridhan property of Mt. Jasomati Kuer and the suit was, therefore, dismissed. On appeal, the case was remanded to the trial Court for fresh decision in accordance with law. After, remand, the trial Court held that the land in suit was part of the inheritance of Tilak Singh and was held by Mt. Jasomati Kuer as a part of her widows estate. On the question of legal necessity, however, it held that the alienation was for legal necessity. The suit was, therefore, dismissed as against defendants 1 and 2 by the trial Court which, however, gave a decree for the alternative claim to the plaintiff against defendant 3. On appeal, the lower appellate Court affirmed the decision of the trial Court. The plaintiff has, therefore, preferred this second appeal in this Court.

4A. The sale deed executed in favour of the contesting defendants (who for the sake of brevity will be referred to hereinafter as the defendants) contains recital that Mt. Jasomati Kuer was selling the suit land to them for the performance of Gaya Sradh and construction of a pucca well. The evidence adduced in the case also establishes that the consideration money was spent over the performance of the Gaya Sradh & Bhandara after that Gaya Sradh as well as for making a Kutcha well in a certain Thakurbari pucca.

It is not, disputed here that the Gaya Sradh of the deceased husband would entitle a widow to alienate her husbands property. What has been contended by Mr. Samaiyar for the appellant is that it is not known as to for whose Gaya Sradh the alienation was being made. This point was not taken at any stage of this suit or before the first appellate Court. For the first time in this Court Mr. Samaiyar has raised it and has contended that there is no evidence in the case to prove that the Gaya Sradh of the husband was performed.He has, however, not given any special certificate as required by the High Court Rules, and, therefore, he cannot be permitted to raise this point for the first time in second appeal. He has then contended that even a reading of the judgments of the Courts below would show that there is no evidence to establish that the Sradh in question was the Sradh of the husband. I am unable to agree with his contention.

It is apparently clear from the record of the case that all concerned, namely, both the parties as well as the Courts below, clearly understood that the Sradh referred to in th