Mummareddi Nagi Reddi & Ors Vs.
Pitti Durairaja Naidu & Ors [1951] INSC 33 (8 May 1951)
MUKHERJEA, B.K.
MAHAJAN, MEHR CHAND BOSE, VIVIAN
CITATION: 1952 AIR 109 1952 SCR 655
CITATOR INFO :
R 1952 SC 207 (19) R 1954 SC 61 (8)
ACT:
Hindu Law--Widow--Surrender--Release in
favour of daughter and son-in-law--Validity--Suit by reversioner Right to mesne
profits.
HEADNOTE:
Where a Hindu widow who had inherited her
husband's estate executed a deed, described as a deed of release, in favour of
her daughter who was the next reversioner and the daughter's husband jointly:
Held, that though under the Hindu Law it is
open to a widow to surrender the estate to the next reversioner even though the
latter is a female heir, a widow cannot validly surrender in favour of the next
female heir and a stranger jointly. Such a transaction cannot be treated as a
surrender in favour of the female heir and a transfer by the latter to the
stranger, and is not binding upon the ultimate reversioners.
Jagrani v. Gaya (A.I.R. 1933 All. 8561
approved.
Nobo Kishore v. Harinath (I.L.R. 10 Cal.
1102) commented upon. Vytla Sitanna v. Marivada (L R. 61 I.A. 200), Rangasami
Goundan v. Nachiappa Goundan (41 I.A. 72) and Debi Prosad v. Gola Bhagat
(I.L.R. 40 Cal. 721) referred to.
In a suit by the reversioner to set aside an
alienation made by a Hindu widow mesne profits can be awarded to the
reversioner from the date of the widow's death even though such an alienation
is not void.
Even in cases where the decree for possession
in favour of the reversioner is conditional on his depositing the amount which
has been found to have been used for the benefit of the estate, mesne profits
can be awarded to the reversioner if he is ordered to pay interest on the amount
payable to the alienee.
Bhagwat Dayal v. Debi Dayal (L.R. 35 I.A.
48)and Satgur Prasad v. Harinarain Singh (L.R. 59 I.A. 147) referred to.
Banwarilal v. Mahesh (I.L.R. 41 All. 63)
distinguished.
CIVIL APPELLATE JURISDICTION. Civil Appeal
No. 51 of 1950.
Appeal against the Judgment and Decree dated
the 12th January, 1948, of the High Court of Judicature at Madras (Gentle C.J.
and Satyanarayana Rao J.) in 85 656 Appeal No. 167 of 1945 arising out of
decree dated the 17th August, 1942, of the Subordinate Judge at Nellore in O.S.
No. 3 of 1940.
K. Rajah Aiyar (R. Ganapathi lyer, with him)
for the appellants.' B. Somayya (M. Krishna Rao, with him) for the respondents.
1951. May 8. The judgment of the Court was
delivered by MUKHERJEA J.--This appeal is directed against an appellate
judgment of a Division Bench of the Madras High Court dated the 12th January,
1948, reversing in part, a decision of the Subordinate Judge of Nellore passed
in O.S. No. 3 of 1940.
To appreciate the material facts of the case
and ,the controversy that now centres between the parties, it would be
convenient to refer to a short genealogy which is given below :-Udatha
Narayanappa --Chanchamma (d. 1933) | | Venkata Narasamma (d. 1926) --Pitti
Rangayya (d. 1914) | | Venkatadri-Rajakantarama | |
_______________________________________________________ | | | | Durairaja
Rajavathi Balakrishnqa Krishnababulu Plff. 1. Plff. 2. Plff. 3. Plff. 4.
The properties in dispute which are described
in schedule A to the plaint admittedly belonged to one Narayanappa who was the
father of the paternal grandmother of the plaintiffs. Narayanappa died
intestate sometime before 1884 leaving him surviving his wife Chanchamma and a
daughter named Venkata Narasamma. Narasamma was married to one Pitti Rangayya
and they had a son named Venkatadri, who was the father of the plaintiffs.
Chanchamma died in 657 March, 1933, and the plaintiffs aver that they being the
heritable bandhus of Narayanappa as the daughter's son's sons of the latter and
there being no nearer heir in existence, they became entitled to all the
properties left by Narayanappa on the death of his widow. It appears that on
22nd February, 1894, Chanchamma executed, what has been described as a deed of
release, in favour of her daughter Narasamma and her son-inlaw Pitti Rangayya,
under which the entire estate of Narayanappa came into the possession of the
latter. After the execution of this document, the daughter and son-in-law of
Chanchamma began to deal with the properties left by Narayanappa as their own
and entered into various transactions on that footing. Pitti Rangayya died in
1914 and Narasamma followed him in 1926. There are six items of property
comprised in schedule A to the plaint. Of these items, 4 and 5 were sold by Venkata
Narasamma. along with her son, the father of the plaintiffs, on July 9, 1922,
to the 5th defendant and the father of defendants 6 to 9 for a sum of Rs.
6,500. Again, on October 26, 1929, when both Narasamma and the plaintiffs'
father were dead, item 1 of schedule A was sold by the mother of the plaintiffs
as their guardian to the 1st defendant for a consideration of Rs.
33,000. Defendants 2 and 3 are the undivided
sons of the 1st defendant. There are other transfers in favour of other
defendants in the suit but they are not the subject-matter of the appeal before
us.
The plaintiffs' allegations in substance are
that these alienations are not binding on them as the so-called deed of release
executed by the widow could not and did not operate as a deed of surrender and
any transfer effected on the strength of this deed by Venkata Narasamma or her
son, Venkatadri, or even on behalf of the plaintiffs by their mother as
guardian, could not be operative after the death of the widow. As these
transfers were made during the lifetime of Chanchamma and without any legal
necessity, the plaintiffs as actual reversioners were not bound by them and
they are entitled to recover possession of the properties 658 by evicting the
transferees. It was for the recovery of possession of these properties that the
present suit was brought and there was a claim for mesne profits as well from
the date of the widow's death to the date of delivery of possession.
The defence of the defendants who are
interested in the properties mentioned above, were really of a threefold
character. It was contended in the first place that the plaintiffs were not the
next reversionary heirs of Narayanappa and consequently were not entitled to
succeed to the estate of the latter on the death of the widow. The second
contention was that the deed of release operated as a surrender of the widow's
estate in favour of the daughter who was the next reversioner and although by
such a surrender the daughter could get only a limited estate which she would have
been entitled to on the death of the widow, yet as the daughter died in 1926,
the present suit which was instituted more than 12 years after the date of
death, was barred by limitation. The third plea was that in any event, these
alienations could not be set aside as they were justified by legal necessity.
The learned Subordinate Judge who heard the
suit decided it adversely to the plaintiffs. It was held first of all that
though the plaintiffs were the heritable bandhus of Narayanappa, the evidence adduced
by them fell short of establishing that there were no agnatic relations or
nearer heir in existence. As regards the document of release (Exhibit P. 6)executed
by the widow in favour of her daughter and son-in-law, the Subordinate Judge
came to the conclusion that the deed operated as a surrender of the widow's
estate and as the daughter died in 1926, the plaintiffs' suit was barred by
limitation. On the question of legal necessity, the finding recorded by the
Subordinate Judge was that the sale deed (Exhibit D-I) executed in favour of
the 1st defendant was supported by legal necessity to the extent of Rs. 5,061
and odd annas and that the other document under which defend: ants 5 t0 9
claimed title was not binding on the estate 659 at all. In the result, the
plaintiffs' suit was dismissed in its entirety.
Against this decision, the plaintiffs took an
appeal to the High Court of Madras and the appeal was heard by a Division Bench
consisting of Gentle C.J. and Satyanarayana Rao J. The learned Judges allowed
the appeal in regard to the items of property mentioned above and reversed the
decision of the trial Judge to that extent. It was held that the plaintiffs
were the nearest reversionary heirs of Narayanappa and that the deed of release
did not operate as a surrender of the widow's estate. The plaintiffs were given
a decree for possession in respect of item 1 of the schedule properties as
against defendants 2 and 3 on condition of their depositing into court the sum
of Rs. 5,061, and odd annas, that being the amount of debt legally binding on
the estate which was discharged out of the sale proceeds of the transfer, and
there was a further direction to pay interest upon this amount at the rate of
six per cent per annum from certain specified dates up to the date of making
the deposit. It may be noted here that the 1st defendant died after the trial
Court's decree and his interest passed by survivorship to defendants 2 and 3,
who are his undivided sons. As against defendants 5 to 9, there was an unconditional
decree for recovery of possession in respect of items 4 and 5 of schedule A.
The plaintiffs were further given a decree for mesne profits, both past and
future, commencing from the date of the widow's death down to the date of
delivery of possession, and the amount of mesne profits was directed to be
ascertained in a separate proceeding under Order XX, rule 12of the Code of
Civil Procedure. It is against this decision that the present appeal has been
preferred by defendants 2, 3 and 5 to 9.
Mr. Rajah Aiyar, appearing for the
appellants, did not seriously challenge the finding of the High Court as to the
plaintiffs being the nearest reversioners at the time of Chanchamma's death. He
has assailed the propriety of the High Court's decision substantially on two
points. His first contention is that the deed of 660 release (Exhibit P-6)
executed by Chanchamma had the effect of a surrender of the widow's estate in
favour of her daughter and son-in-law and the daughter having died in 1926, the
plaintiffs' suit was barred by limitation. The second ground urged is that the
High Court should not have given the plaintiffs a decree for mesne profits from
the date of the widow's death. Mesne profits could at best have been allowed
from the date of the institution of the suit and so far as defendants 2 and 3
are concerned against whom a conditional decree was given, mesne profits could
be allowed only from the time when the condition was fulfilled by the
plaintiffs' depositing the specified amount in court.
The first point taken by the learned counsel
for the appellants raises the question as to the legal effect of the document
(Exhibit P-6), upon which the defendants mainly base their contention. The
document is more than 50 years old and the language of it is not very clear or
definite.
It begins and ends by saying that it is a
deed of release.
It says that as the executant is a woman
unable to look after her worldly affairs and as the persons in whose favour the
document is executed are the son-in-law and daughter of the executant, she has
put the latter in possession of all her properties, movable and immovable. Then
comes a description of the properties and after that the provisions run as
follows :"Therefore you shall yourself pay the quit rent, etc., payable
here for every year to the Government and enjoy the same permanently from your
son to grandson and so on hereditarily. For my lifetime you shall pay for our
maintenance expenses Rs. 360 per year every year, before the month of Palguna
of the respective years. ' ' The remaining clauses of the deed enjoin upon the
recipients thereof the duty of realizing all debts due to the executant by
other people and also of paying all just debts due by her. It is stated finally
that the lands are under an izara lease executed by the widow in favour of one
Narasimha Naidu which is due to expire 661 by the end of 1346 Fasli and it
would be for the daughter and son-in-law to consider what they would do with
regard to the lease.
There are no words of transfer used in the
deed, though the widow purports to endow her son-in-law and daughter with
hereditary rights of enjoyment in the property. The document is described as a
release and is stamped as such. Apparently it comprises all the properties
which the widow had, and in a sense the document indicates an intention on the
part of the lady to give up all connection with business affairs.
Prima facie, these facts lend support to the
story of surrender. It is not and cannot be disputed that there can be a
surrender even when the next reversioner is a female heir herself who takes a
limited interest in the property, though such surrender cannot give her a
larger interest than she would get as an heir under the law of inheritance. The
whole difficulty in this case, however, is created by the fact that the widow
purports to exercise her right of relinquishment of her husband's estate in
favour of two persons, one of whom is a next heir, but the other, though
related to her as son-in-law, is a complete stranger so far as rights of
inheritance are concerned; and there can be no doubt that she intended that her
husband's estate should go to the son-in-law jointly with her own daughter.
The doctrine of surrender or relinquishment
by the widow of her interest in the husband's estate which has the effect of
accelerating the inheritance in favour the next heir of her husband is now a
well-settled doctrine of Hindu law which has been established by a long series
of judicial decisions. Though the judicial pronouncements cannot be said to be
altogether uniform or consistent, yet there can be no doubt as regards the
basic principle upon which the doctrine rests, namely, that it is the
self-effacement by the widow or the withdrawal of her life estate which opens
the estate of the deceased husband to his next heirs at that date. "It
must be remembered" thus observed the 662 Judicial Committee in Vytla
Sitanna v. Mariwada(1) "that the basis of the doctrine. is the effacement
of the widow's estate and not the ex facie transfer by which such effacement is
brought about. The result merely is that the next heir of the husband steps
into the succession in the widow's place". This effacement may be effected
by any process and it is not necessary that any particular form should be employed.
All that is required is that there should be a bona fide and total renunciation
of the widow's right to hold the property and the surrender should not be a
mere device to divide the estate with the reversioners: vide Rangasami Goundan
v. Nachiappa Goundan(2). It would be clear from the principle underlying the
doctrine of surrender that no surrender and consequent acceleration of estate
can possibly be made in favour of anybody except the next heir of the husband.
It is true that no acceptance or act of consent on the part of the reversioner
is necessary in order that the estate might vest in him; vesting takes place
under operation of law. But it is not possible for the widow to say that she is
withdrawing herself from her husband's estate in order that it might vest in
somebody other than the next heir of the husband. In favour of a stranger there
can be an act of transfer but not one of renunciation. The position is not
materially altered if, as has happened in the present case, the surrender is
made in favour of the next heir with whom a stranger is associated and the
widow purports to relinquish the estate in order that it might vest in both of
them. So far as the next heir is concerned, there cannot be in such a case a
surrender of the totality of interest which the widow had, for she actually
directs that a portion of it should be held or enjoyed by somebody else other
than the husband's heir. As regards the stranger, there can be no question of
renunciation; the transaction at the most may be evidence of an intention to
confer a bounty on him, though such intention is not clothed in proper legal
form.
(1) L.R. 61 I.A. 200at 207, (2) L.R. 41 I.A,
72, 663 Mr. Rajah Aiyar made a strenuous attempt to induce us to hold that the
document is a composite document combining really two separate transactions,
one, an act of surrender by the widow of the entire estate in favour of her
daughter and the other a transfer of a portion of the interest which thus
vested in the daughter in favour of her husband. If the document could be read
and interpreted that way, obviously the decision should be in favour of the
appellants;
but, in our opinion, there seem to be
difficulties and those of an insuperable character in the way of the document
being interpreted as such. Neither in form nor in substance does the document
purport to be a relinquishment of the entire widow's estate in favour of the
daughter alone, nor is there any indication that the interest intended to be
given to the son-in-law was being received by him by way of transfer from the
daughter. The document is not one executed by the widow and her daughter
jointly in favour of the son-in-law containing a recital of relinquishment of
the estate by the widow in favour of the daughter and transferring a portion of
the same to the son-in-law. The daughter does not figure as an executant of the
deed nor even as an attesting witness. She is the recipient of the deed along
with her husband and it is impossible to spell out of the document either that
she received the entire estate on renunciation by her mother or transferred or
even consented to transfer a portion of it to her husband.
Mr. Aiyar in support of his contention placed
great reliance upon the principle enunciated in the Full Bench decision of the
Calcutta High Court in Nobokishore v. Narinath(1) which was impliedly accepted
by the Judicial Committee in Rangasami Goundan v. Nachiappa Goundan(2). It was
held by the Calcutta High Court in a number of cases which were reviewed and
affirmed in Nobokishore v.
Harinath(1), that a widow is entitled to sell
or transfer the (1) I.L.R. 10 Cal. 1102. (2) L.R. 46 I.A. 72, 664 entire estate
of her husband without any necessity but with the consent of the next
reversioner so as to bar the rights of the actual reversioner at the time of
her death. This was explained by the Judicial Committee as an extension of the
principle of surrender in Rangasami Goundaan v. Nachiappa Goundan(1) "The
surrender, once exercised", observed their Lordships, "in favour of
the nearest reversioner or reversioners, the estate became his or theirs, and
it was an obvious extension of the doctrine to hold that inasmuch as he or they
were in title to convey to a third party, it came to the same thing if the
conveyance was made by the widow with his or their consent. This was decided to
be possible by Nobokishore's case(2) already cited. The judgment went upon the
principle of surrender, and it might do so for the surrender there was of the
whole estate: but if.is worthy of notice that the order of reference showed
that the alienation was ostensibly on the ground of necessity, so that it might
have been supported on the grounds to be mentioned under the second head above
set forth." It would be quite consistent with established principles of
law if the widow relinquishes her interest in the husband's estate and the
reversioner in whom the estate vests transfers the estate either in whole or in
part to another person. If the transfer is of the entire estate, the two
transactions may be combined in one document and the widow and the reversioner
might jointly transfer the whole estate to a stranger but the implication in
such cases must always be that the alienee derives his title from the reversioner
and not the widow. The extension of this doctrine in the class of cases of
which Nobokishore v. Harinath (2) may be taken as the type seems to be rather
far-fetched and somewhat anomalous. In these cases the effect of the immediate
reversioner's giving consent to the alienation of the whole estate by the widow
to a stranger has been held to import a double fiction: the first is the
fiction of a surrender by the widow in favour of the consenting reversioner and
the second is the fiction of (1) I.L.R, 46 I.A, 72, (2) I.L,R, 10 Cal 1102.
665 a transfer by the latter to the alienee,
although both fictions are contrary to the actual facts. It is difficult to say
in the first place why a surrender should be presumedat all when the widow
gives the property directly to the stranger and not to the reversioner. Even if
this position is assumed, then also the question arises as to how the consent
of a party can take the place of a conveyance which is requisite for the
purpose of vesting title in a transferee. A consent merely binds the consenting
party or anybody else who derives his title from him. If the actual reversioner
at the date of the widow's death is the same person who gave his consent,
obviously he can be precluded from challenging the transfer; but if the actual
reversioner is a different person, there seems to be no justification for
holding that he would be bound by the consent expressed by a person who had
nothing but a chance of succession at that time and which chance did not
materialize at all. (See observations of Mahajan J. in Ali Mohammad v. Mst.
Nughlani (1). Sir Richard Garth C.J. in his judgment in Nobokishore v. Harinath
(,2) expressed considerable doubt as to the propriety of the view which would
make a sale by the widow with the consent of her reversioner stand on the same footing
as an actual renunciation. But in view of a series of previous decisions of the
court he was constrained to accept that view as correct.
It may be necessary for this court at some
time or other to reconsider the whole law on this subject. It seems probable
that the Privy Council did not subject the decision in Nobokishore's case to a
critical examination from the point of view of the doctrine of surrender, as
the transfer in that case was upheld on the ground of legal necessity as well.
For the purpose of the present case we will proceed on the assumption that the
law laid down in Nobokishore's case is correct. But the doctrine should
certainly not be extended any further. As was felicitously expressed by Sir
Lawrence Jenkins, "The road to the decision in Nobokishore's case was not
without its difficulties but the learned (1) A.I.R. 1946 Lah. 180 at 188. (2)
I.L.R. 10 Cal. 1102.
666 Judges felt it had to be travelled that
titles might be quieted. But it is settled that there should be no extension of
this Bengal doctrine": Per Jenkins C.J. in Debiprosad v. Gola Bhagat (1).
The present case obviously does not come
within the purview of the doctrine laid down in Nobokishore v. Harinath (2)
which presupposes an alienation of the entire property in favour of a stranger
to which the immediate reversioner was a consenting party. Here it cannot be
said that the entire interest was transferred to the son-in-law of the widow
with the consent of her daughter. The interest transferred was a fraction the
interest held by the widow and strictly speaking, there was no consent
expressed by the daughter. She was a sort of a co-assignee with her husband.
Mr. Aiyar contends that her consent was implied by her accepting the deed and
joining in several subsequent transactions on the basis of the same, and once
this consent is established we can import the fiction of surrender in her
favour of the entire estate, and if that fiction could be invoked it would be
only a logical extension of the principle in Nobokishore's case to hold that a
part transfer in favour of a stranger could also be validated on the theory of
surrender. We are unable to accept this chain of reasoning as sound. As stated
above, it would be most improper to extend the doctrine in Nobokishore's case
which is not itself based on sound legal principles to what Mr. Aiyar calls,
its logical consequence. We cannot invoke the fiction of surrender in a case
like this when the renunciation, if any, was of a part of the estate; and the
attempt to validate a part alienation by the widow in favour of a stranger on
the basis of the doctrine of surrender, simply because the reversioner has
impliedly assented to it, is, in our opinion, absolutely unwarranted.
It remains to notice a few decisions of the
Calcutta and Bombay High Courts upon which Mr. Rajah Aiyar relies in support of
his contention. The case of Abhay (1) I.L.R. 40 Cal. 721 at 781. (2) I.L.R. 10
Cal. 1102.
667 Padha v. Ramkinkar(1), decided by a
Division Bench of the Calcutta High Court, seems to be very similar in its'
facts to the present case, and prima facie it is in favour of the appellants.
There a Hindu widow executed a 'nadabi patra' or deed of release in favour of
her husband's brother who was the nearest reversioner and three sons of a
predeceased 'brother of her husband. After the death of the widow the husband's
brother instituted a suit for recovery of possession of the entire property
denying the rights of his nephews under the deed executed by the widow. The
suit was dismissed by both the courts below and this decision was affirmed in
second appeal by the High Court. The point was definitely raised before the
High Court that the transaction could not be upheld on the footing of surrender
as it was partly a surrender in favour of the next heir and partly an
alienation in favour of certain remoter heirs. This point was disposed of by
Cumming J., who delivered the judgment, in the following manner:" I do not
think that there is much substance in this contention. It is a question more of
form than of substance. If the widow had surrendered the whole estate to the
reversioner and the reversioner had at the same moment made a transfer of his
estate to his nephews nothing could be said against the transaction, and this
is what in effect has been done by the present document." We do not know
what the contents of the document in the case actually were, nor whether the
husband's brother joined in the execution of the document. Be that what it may,
we cannot for the reasons already discussed accept the view that a transfer
made by a widow of her entire estate in favour of the nearest reversioner and
an outsider jointly would operate as a surrender of the whole estate to the
immediate reversioner and a transfer of a half share in it to the stranger.
This, of course, is subject to any rule of estoppel that may on proper
materials be urged against the presumptive reversioner. This is precisely the
view that has (1) A.I.R. 1926 Cal. 228.
668 been taken by the Allahabad High Court in
Mr. Jagrani v. Gaya(1) and, in our opinion, this is the correct view to take.
The learned 'counsel for the appellants has
in this connection referred us to two decided authorities of the Bombay High
Court. The first is the case of Yeshwanta v. Antu(2), where the widow together
with her daughter who was the immediate heir executed a deed of gift of the
entire estate in favour of a stranger who was the husband of a predeceased
daughter. It was held that the transaction was valid on the basis of the
doctrine of surrender. It is quite clear that this case comes directly within
the purview of the principle enunciated in Nobokishore's case, and there are
two material facts which distinguish it from the case before us. In the first
place, the reversioner joined with the widow in making the transfer in favour
of a stranger and secondly, the transfer to the stranger was of the entire
estate. There can be no difficulty in construing such a transaction as a valid
act of surrender.
Of the other case which is to be found
reported in Bala Dhondi v. Baya(3) the facts are somewhat similar to those in
the present case, but the actual decision does not assist the appellants. There
a Hindu widow made a gift of the entire estate of her husband in favour of her
daughter and her husband jointly, the daughter being the next heir at that
time. The lower appellate court held that the gift was a valid surrender, but
this decision was reversed by the High Court on appeal and it was held that the
transaction was not valid in law inasmuch as it was not a gift in favour of the
daughter alone but in favour of her son-in-law as well who was to take jointly
with the daughter. It was further held that the daughter being a minor. was not
competent to consent to the gift in favour of her husband. It is true that
there is no question of minority in the present case, but the decision
certainly is no authority on the point which we are called upon to (1) A.I.R.
1933 All. 856. (3) I.L.R. 60 Bom. 211. (2) I.L.R. 58 Bom. 521.
669 decide. In our opinion, the view taken by
the High Court in regard to the legal effect of the document (Exhibit P-6) is
the correct one and the first contention raised by Mr. Rajah Aiyar should
therefore fail.
We now come to the other point which relates
to the question of mesne profits. Mr. Aiyar's main contention under this head
is that as an alienation by the widow is not void but only voidable and the
reversioner can avoid it by choosing to institute a suit, the possession of the
alienee could not be held to be unlawful before that date and consequently no
mesne profits should have been allowed for the period prior to the institution
of the suit. The other branch of his contention is that in respect of property
No. 1 of the schedule there was only a conditional decree passed against
defendants 2 and a and so long as the condition is not fulfilled by the
plaintiffs depositing the required amount in court, the plaintiffs' right to
take possession does not accrue and consequently no mesne profits can be
allowed to them. In support of this contention, reliance has been placed upon
the decision of the Allahabad High Court in Banwarilal v. Mahesh(1).
As regards the first branch of the
contention, it may be pointed out that prior to the decision of the Judicial
Committee in Bijoya Gopal v. Krishna Mahishi(2) there was some misconception
regarding the legal position of. an alienee of a property from a Hindu widow
visa vis the reversioner, upon the death of the widow. It was held in an
earlier case by the Judicial Committee that an alienation by the widow was not
void but voidable and the reversioner might elect to assent to it and treat it
as valid.. It did not absolutely come to an end at the death of the widow. On
the strength of this decision, it was held by the Calcutta High Court in Bijoya
Gopal v. Krishna Mahishi(2) (supra) that it was necessary for a reversioner to
have the alienation set aside before he could recover possession of the widow's
property and the period of limitation for a suit to set aside such an
alienation was that (1) I.L.R. 41 All. 63. (2) I.L.R. 34 Cal. 329, 670
prescribed by article 91 of the Indian Limitation Act. On appeal to the Privy
Council, it was pointed out by their Lordships that this view was based on a
misconception and they explained in what sense a transfer by a Hindu widow was
not void but voidable. It was said that the alienation by a Hindu widow does
not become ipso facto void as soon as the widow dies; for, if that were so, it
could not have been ratified by the reversioners at all. The alienation, though
not absolutely void, is prima facie voidable at the election of the
reversionary heir. He may, if he thinks fit, affirm it or he may at his
pleasure treat it as a nullity without the intervention of any court and he can
show his election to do the latter by commencing an action to recover possession
of the property. There is in fact nothing for the court either to set aside or
cancel as a condition precedent to the right of action of the reversionary
heir. A reversioner's suit for recovery of possession of the property alienated
by a widow, it is well settled, is governed by article 141 of the Limitation
Act, and as it is not necessary that the transfer should be set aside before
any decree for possession is made, all that is necessary is that the
reversioner should file a suit for possession within 12 years from the death of
the widow and a decree passed in such a suit must be on the basis that the
possession of the transferee was unlawful ever since the widow died. This being
the position, we think that it is quite proper to allow the reversioner mesne
profits against the alienee from the date of the widow's death. There is no
rule of law that no mesne profits can be allowed in a case where the alienation
cannot be described as absolutely void. The decisions of the Judicial Committee
in Bhagwat Dayat v. Debi Dayal(1) and Satgur Prasad v. Harnarain Singh(2) may
be cited as illustrations where mesne profits were allowed in transactions
which were only voidable. We think further that there is a difference between
the alienee of a widow and the transferee of joint property from a Mitakshara
father. A son of a Mitakshara father is bound to set aside an (1) L.R. 35 I.A.
48. (2) L.R. 59 I.A. 147, 671 alienation made by the father within the period laid
down in Article 125 of the Indian Limitation Act and it is only on the
alienation being set aside that he is entitled to recover possession of the
property. The High Court, in our opinion, was perfectly right in holding that
the decision in Banwarilal v. Mahesh(1) which related to a suit instituted by a
son against an alienee of the father under the Mitakshara law does not apply to
the facts of the present case.
It is true that as regards defendants 2 and 3
the decree is a conditional decree and the plaintiff cannot recover possession
unless he pays a certain amount of money to the extent of which the widow's
estate has been held to be benefitted, but the High Court has very properly
allowed interest upon this amount to the alienee while making the latter liable
for the mesne profits.
The result is that, in our opinion, the
decision of the High Court cannot be assailed on either of these two points and
the appeal therefore fails and is dismissed with costs.
Appeal dismissed.
Agent for the appellants: M.S.K. Aiyangar.
Agent for the respondents: M.S.K. Sastri.
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