Kalishanker Das & ANR Vs.
Dhirendra Nath Patra & Ors [1954] INSC 72 (21 May 1954)
MUKHERJEA, B.K.
BOSE, VIVIAN HASAN, GHULAM
CITATION: 1954 AIR 505 1955 SCR 467
ACT:
Hindu law-Widow's estate--Nature of-Whether
anybody has got vested right in the estate during her life-time-Actual
reversioner Whether claims through the presumptive reversionary preceding him.
HEADNOTE:
It is a well-settled doctrine of Hindu law
that nobody has a vested right so long as the widow is alive and the eventual
reversioner does not claim through any one who went before him.
The interest of a Hindu widow in the
properties inherited by her bears no analogy or resemblance to what may be
described as an equitable estate in English law and which cannot be followed in
the hands of a bona fide purchaser for value without notice. A Hindu widow has
got only qualified proprietorship in her estate which she can alienate only
when there is justifying necessity and the restrictions on her powers of
alienation are inseparable from her estate.
For legal necessity she can convey to another
an absolute title to the property vested in her. If there is no legal necessity
the transferee gets only the widow's estate which is not even an indefeasible
life estate for it can come to an end not merely on her death but on the
happening of other contingencies like re-marriage, adoption, etc. If an alienee
from a Hindu widow succeeds in establishing that there was legal necessity for
transfer, he is completely protected and it is immaterial that the necessity
was brought about by the mismanagement of the limited owner herself. Even if
there is no necessity in fact, but it is proved that there was representation
of necessity and the alienee after making bona fide enquiries satisfied himself
as best as he could that such necessity existed, the actual existence of a
legal necessity is not a condition precedent to the validity of the sale.
Therefore if there is no necessity in fact or if the alienee could not prove
that he made bona fide enquiries and was satisfied about its existence, the
transfer is not void but the transferee would get only the widow's estate in
the property which does not in any way affect the interest of the reversioner.
Debi Prasad Chowdhury v. Golap Bhagat (I.L.R.
40 Cal.
721), Rangasami Gounden v. Nachiappa Gounden
(46 I.A. 72), Bajrangi v. Manokarnika (35 I.A. 1), The Collector of Masulipatam
v. Cavaly Venkata (8 M. I.A. 529) and Hunoomanpersaud Pandey v. Musammat
Babooee Munraj Koonweree (6 M.I.A. 393) referred to.
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 108 of 1952.
Appeal from the Judgment and Decree dated the
29th March, 1950, of the High Court of Judicature at 468 Calcutta in Appeal
from Original Decree No. 121 of 1945 arising from the Decree dated the 22nd
December, 1944, of the Court of Subordinate Judge at Alipore, in Title Suit No.
70 of 1941.
N. C. Chatterjee (C. N. Laik, D. N. Mukherjee
and Sukumar Ghose, with him) for the appellants.
S. P. Sinha (B.B. Haldar and S. C. Bannerji,
with him) for respondents Nos. I to 3.
1954. May 21. The Judgment of the Court was
delivered by MUKHERJEA J.-This appeal, which has come before us, on a
certificate granted by the High Court of Calcutta, under article 133(1) of the
Constitution, is directed against a judgment and decree of a Division Bench of
that Court dated the 29th March, 1950, affirming, on appeal, those of the
Subordinate Judge, Fourth Court, Alipore, passed in Title Suit. No. 70 of 1941.
The appellants before us are the heirs and
legal representatives of the original defendant No. 3 in the suit, which was
commenced by the plaintiffs respondents to recover possession of the property
in dispute, on establishment of their title, as reversionary heirs of one
Haripada Patra, after the death of his mother Rashmoni, who got the property in
the restricted rights of a Hindu female heir on Haripada's death. To appreciate
the contentions that have been raised by the parties to this appeal it would be
necessary to narrate the material facts in chronological order.
The property in suit which is premises No. 6
Dwarik Ghose's Lane situated in the suburb of Calcutta admittedly formed part
of the estate of one Mahendra Narayan Patra, a Hindu inhabitant of Bengal,
owning considerable properties, who died on the 17th April, 1903, leaving him
surviving his widow Rashmoni, two infant sons by her, Mohini Mohan and Haripada
and a grandson Ram Narayan by a predeceased son Shyama Charan. Shyama Charan
was the son of Mahendra by his first wife, who died during his lifetime. On the
17th February, 1901, Mahendra executed a will by which he made certain
religious and charitable dispositions and 469 subject. to them, directed his
properties to be divided amongst his infant sons Mohini and Haripada and his
grandson Ram Narayan. Ram Narayan was appointed' executor under the will. After
the death of Mahendra, Ram Narayan applied for probate of the will and probate
was obtained by him on the 6th of October, 1904, Ram Narayan entered upon the
management of the estate. He developed extravagant and immoral habits and soon
ran into debts. The bulk of the properties were mortgaged to one Kironsashi who
having obtained a decree on the mortgage applied for sale of the mortgaged
properties. Thereupon Rashmoni on behalf of her infant sons instituted a suit
against the mortgagee and the mortgagor and got a declaration that the mortgage
decree could not bind the infants' shares in the properties left by their
father. This judgment was given on the 31st March, 1909. On the 13th August,
1909, the two infant sons of Mahendra to wit Mohini and Haripada, by their
mother and next friend Rashmoni, instituted a suit in the Court of the
Subordinate Judge at Alipore, being Title Suit No. 45 of 1909, claiming
administration of the estate left by Mahendra as well as partition and accounts
on the basis of the will left by him. On the 14th of August, 1909, one Baroda
Kanta Sarkar, Sheristadar of the Court of the District Judge, Alipore, was
appointed, with the consent of both parties, receiver of the estate forming the
subject-matter of the litigation. The receiver took possession of the
properties immediately after this order was made. The -management by the
receiver, as it appears, was not at all proper or beneficial to the interest of
the two sons of Mahendra.
Mahendra himself left no debts and whatever
debts were contracted,, were contracted by Ram Narayan to meet his own immoral
and extravagant expenses. The receiver however went on borrowing large gums of
money upon ex-parte orders received from the Court, the ostensible object of
which was to pay off the debts due by Ram Narayan which were not at all binding
on the plaintiffs. Fearing that the longer the suit continued and the
properties remained in the hands of the receiver the more harmful it- would be
to the interests of the 470 minors, Rashmoni on behalf of the minors
compromised the suit. with Ram Narayan and a Solenama was filed on the 13th
June, 1910. The terms of the compromise, in substance, were, that the
properties in suit were to be held in divided shares between the three parties
and specific allotments were made in favour of each, the properties allotted to
the share of Haripada being specified in schedules Gha and Chha attached to the
compromise petition. It was further provided that the receiver would be
discharged on submitting his final accounts. It may be mentioned here that the
property which is the subject-matter of the present suit was, under the
Solenama, allotted to the share of Haripada.
On the very day that the compromise was filed,
Rashmoni applied for discharge of the receiver. The Court made an order
directing the receiver to submit his final accounts within one month, or as
early as possible, when the - necessary order for discharge would be made. It
was further directed that as the suit was disposed of on compromise the
receiver should discontinue collecting rents and profits due to the estate from
that day. This order however was modified by a subsequent order made on 23rd
June, 19 10, which directed that the receiver was to continue in possession of
the estate until he was paid whatever was due to him for his ordinary
commission and allowances and until the parties deposited in Court the amounts
borrowed by the receiver under orders of the Court or in the alternative gave
sufficient indemnity for the same. After this, Rashmoni on behalf of her minor
sons filed two successive applications before the Subordinate Judge praying for
permission to raise by mortgage, of a part of the estate, the moneys necessary
for releasing the estate from the hands of the receiver. The first application
was rejected and the second was granted, after it was brought to the notice of
the Subordinate Judge that the receiver was attempting to dissuade prospective
lenders who were approached on behalf of Rashmoni, to lend any money to her. On
the 16th of January, 191 1, Haripada, the younger son of Rashmoni, died and his
interest devolved upon his mother as his heir under the Hindu law. On the 28th
January, 1911, the following order was recorded by the Suborainate Judge:
471 "The receiver has filed a statement
showing the amount as due to him up to the end of the. current month. This
claim amounts to Rs. 20,950-2-6 pies only. The parties may deposit the sum on
or before the 1st February next in Court and on such deposit the receiver will
be discharged and the possession of the estate of late Mahendr Narayan Patra,
will be made over to the parties." On the very same day Mohini exectued a
mortgage (Ex. M-1) in favour of one Suhasini Dasi by which he hypothecated the
properties allotted to his share and also his future interest as reversions to
the share of Haripada, to secure an advance of Rs. 30,000. The loan was to
carry interest at the rate of 18% per annum. One thing may be mentioned in
connection with this mortgage, and that is, that amongst the properties
included in the mortgage were two properties, namely, premises No. 15/1 and 16
Chetlahat Road, which had already been sold and to which the mortgagor bad no
title at the date of the mortgage. On the 1st February, 1911, Mohini deposited
in Court the sum of Rs. 2,0,950-2-6 pies, being the amount alleged to. be due
to the receiver and the Court by an order passed on that date directed the
release of the estate from the hands of the receiver. After the estate was
released a petition was filed on behalf of the plaintiffs on the 15th February,
1911, praying that the loans said to be contracted by the receiver should not
be paid out of the money deposited in Court, as these borrowings were made not
for the protection of the estate but only for the personal benefit of the
defendant, Ram Narayan, and to pay off his creditors. It was contended that the
loans raised by the receiver were not raised in good faith, after proper notice
to the plaintiffs but on the strength of orders which he obtained ex-parte from
the Subordinate Judge without disclosing the material facts. This application.
was rejected by the Court on the 23rd February,1911. After this order was made,
the plaintiffs put in a petition praying that payment of the moneys, due to the
creditor- with the exception of what was necessary to pay off one of the
creditors, named Rakhal Das Adhya, be stayed till the following Monday 472 as
the plaintiffs wanted to move the High Court against the order of the Subordinate
Judge mentioned above. The Court granted this prayer and on the 2nd of March
following, orders were received from the High Court directing that the moneys
were to be detained in Court pending further orders.
The High Court made order on the plaintiff 's
petition on the 29th May, 1911. The learned Judges were very critical of the
appointment of the Sheristadar of the Court as receiver of the estate and in no
measured terms blamed the Subordinate Judge for passing ex-parte, orders for
raising loans on the applications of the receiver without any investigation at
all and the receiver also for borrowing money not for the benefit of the estate
but for the personal benefit of Ram Narayan, the defendant. The High Court
directed a full and proper investigation of the accounts of the receiver by a
Commissioner and a Vakil of the High Court was appointed for that purpose. The
Commissioner after a protracted enquiry submitted his report which was accepted
by the High Court. Under the final orders passed by the High Court not only
were the plaintiffs held not liable to pay any money to the receiver but the
receiver was directed to pay a sum of Rs. 6,708 to the plaintiffs. The
plaintiffs were also to-receive Rs. 4,084 from the defendant, Ram Narayan. The
defendant was to pay Rs. 19,124 to the receiver and the receiver wag made
personally liable for the loans that he had incurred. This order was made on
the 23rd July, 1913.
In the meantime while the investigation of
accounts were going on under orders of the High Court, Rashmoni, together with
her son Mohini executed a security bond -(Ex. E-1) on the 1st August, 1911, and
it is upon the legal effect of this document that the decision of this case
practically depends. By this security bond, which was executed in favour of
Suhasini Dasi, the mortgagee in the mortgage bond of Mohini, Rashmoni purported
to hypothecate all the properties that she got as heir of Haripada, as
additional security for the loan of Rs. 30,000 already advanced to Mohini under
the mortgage. As is stated already, two properties situated at Chetla were
included in the mortgage of 473 Mohini although they were already sold. The
security bond recites that the mortgagee having discovered this fact was about
to Institute legal proceedings against the mortgagor and it was primarily to
ward off these threatened proceedings and remove any apprehension from the
minds of the mortgagee about the sufficiency of the security that this bond was
executed. It is further stated in the bond that the estate of Haripada in the
hands of his mother was benefited by the deposit of Rs. 20,950 in Court by
Mohini Mohan out of the sum of Rs. 30,000 borrowed on the mortgage and that
Mohini had spent the remaining amount of the loan towards clearing certain
debts of Rashmoni herself and to meet the litigation and other expenses of both
of them.
Mohini died soon after on the 8th of
November, 1911. On October 13, 1917, Suhasini instituted a suit for enforcing
the mortgage and the security bond against Rashmoni and the heirs of Mohini.
preliminary decree was passed on compromise in that suit on the 24th September,
1918, and on the 25th July, 1919, the decree was made final. The decree was put
into execution and on the 15th September, 1919, along with other properties,
the property in dispute was put up to sale and it was purchased by Annada
Prasad Ghose for Rs. 13,500.
On the 14th November, 1919, Bhubaneswari,
wife of Ram Narayan, as guardian of her infant sons filed a suit, being Title
Suit No. 254 of 1919 against Suhasini, Rashmoni and Annada attacking the
validity of the mortgage decree obtained by Suhasini as well as the sale in
execution thereof. The suit ended on the 6th July, 1921, and the plaintiff gave
up her claim. On September 5, 1922, Annada Ghose borrowed a sum of Rs. 10,000
from Sarat Kumar Das, the original defendant No. 3 in, the suit and the father
of the present appellants and by way of equitable mortgage deposited with the
lender the title deeds of the property No. 6, Dwarik Ghose Lane. On the 14th
September, 1925, Annada sold the property by executing a conveyance in favour
of the mortgagee Sarat Kumar Das for a consideration of Rs.
15,500. On the 8th June, 1939, Rashmoni died.
About a year later on July 15, 1940, the three sons of Ram Narayan, who 61 474
are the reversionary heirs of Haripada after the death of Rashmoni, commenced
the present suit in the Court of the Subordinate Judge at Alipore claiming to
recover possession of the property on the allegation, that the security bond
executed by Rashmoni not being supported by legal necessity, the sale in
execution of the mortgage as well as the subsequent conveyance in favour of
Sarat Kumar Das could pass only the right, title and interest of Rashmoni and
could not affect the reversionary rights of the plaintiffs.
Several other persons were impleaded as
parties defendants and a number of issues were raised with which we are not
concerned in this appeal. What concerns us in this appeal is the dispute
between the plaintiffs on the one hand and defendant No. 3 on the other and
this dispute centered.
round three points, namely, (1)Whether the
security bond (Ex. E-1) executed by Rashmoni along with Mohini was executed for
legal, necessity and was therefore binding on the reversioners, of Haripada
after the death of Rashmoni ? (2)Whether the fact that Mohini, who was the
presumptive reversioner at that time, joined with his mother in executing the
security bond would make it binding on the -,actual reversioner after the death
of Rashmomi? In' any event if such consent on the part of the presumptive
reversioner raised a presumption of legal necessity, was that presumption
rebutted in the present case by the evidence adduced by the parties ?
(3)Whether the title of defendant No. I was protected ,he being a stranger
purchaser who had purchased the -property from the purchaser at an execution
sale after making proper enquiries and obtaining legal advice ? The trial Judge
by his judgment dated the 22nd December, 1944, decided all these points in
favour of the plaintiffs and decreed the suit. On appeal by the defendant to
the High Court, the decision of the trial Judge was affirmed.
The heirs of defendant No.3 have now come up
to this Court and Mr. Chatterjee appearing in support of the appeal has
reiterated all the three points which were urged on behalf of his clients in
the Courts below.
475 On the first point both the Courts below
have held concurrently, that there was absolutely no legal necessity which
justified the execution of the security bond by Rashmoni in favour of Suhasini.
Mr. Chatterjee lays stress on the fact that it was a matter of imperative
necessity for both the plaintiffs to get back the estate of their father from
the hands of the receiver as the debts contracted by the receiver were mounting
Up day after day. It is pointed out that on the 28th January, 1911, the Court
had made a peremptory order to the effect that the properties could be released
only if the plaintiffs deposited Rs. 20,950 annas odd on or before the 1st
February next. In order to comply with this order Mohini had no other
alternative but to borrow- money on the mortgage of his properties and this he
had to do before the 1st February, 1911. It is true that because of the
unfortunate death of Haripada only a few days before, Rashmoni could not join in
executing the mortgage but she, as heir of Haripada, was really answerable for
half of the money that was required to be deposited in Court. It is said that
this was not a mere moral obligation but a legal liability on the part of the
lady, as Mohini could have claimed contribution from her to the extent that
Haripada's estate was benefited by the deposit. The execution of the security
bond therefore was an act beneficial to the estate of Haripada. The
contentions, though somewhat plausible at first sight, seem to us to be wholly
without substance. In the first place the money borrowed by Mohini or deposited
by him in Court did not and could not benefit Haripada's estate at all. As was
found, on investigation of accounts, under orders of the High Court later on,
nothing at all was due to the receiver by the estate of Haripada or Mohini. On
the other hand, both the brothers were entitled to get a fairly large sum of
money from the receiver. The trial Judge found that there was no urgent
necessity to borrow money for releasing the estate and in fact it was Mohini
who acted in hot haste to execute the mortgage, his only object being to get
the properties in his own hands. It may be, that it was not possible to know
the actual state 476 of affairs with regard to the' receiver's accounts and
consequently it might well have been thought prudent to borrow money to ward
off what was considered to be a danger to the estate. This might furnish some
excuse or explanation for Mohini's borrowing money on the 28th January, 191 1,
but that could not make the act of Rashmoni in executing the security bond,
seven months after that event, an act of prudent management on her part
dictated either by legal necessity or considerations of benefit to the estate
of her deceased son' In the first place it is to be noted-that the total amount
borrowed by Mohini was Rs. 30,000 out of which Rs. 20,950 only were required to
be deposited in Court. The recital in the security bond that the rest of the
money was spent by, Mohini to pay off certain debts of Rashmoni herself and
also to meet the litigation and household expenses of both of them has been
held by the Subordinate Judge to be false. It has been found on facts that
Rashmoni had no occasion to incur any debts either for litigation expenses or
for any other purpose. But the most important thing that would require
consideration is the state of things actually existing at the time when the
security bond was executed. Even if the release of the estate was considered to
be desirable, that had been already accomplished by Mohini who borrowed money
on his own responsibility. The utmost that could be said was that Rashmoni was
bound to reimburse Mohini to the extent that the deposit of money by Mohini had
benefited the estate of Haripada. The High Court has rightly pointed out that
Rashmoni did not execute the bond to raise any money to pay off her share of
the deposit and in fact no necessity for raising money for that purpose at all
existed at that time. As has been mentioned already, by an order passed by the
High Court on the revision petition of Mohini and his mother against the order
of the Subordinate Judge dated the 23rd February, 191 1, the whole amount of
money deposited in Court on the 1st, February, 191 1, with the exception of a
small sum that was paid to a creditor, with the consent of both parties, was
detained in Court. The High Court dispos- ed of the revision case on 29th May,
1611, and directed 477 investigation into the accounts of the receiver by a
Commissioner appointed by it. As said already, the Court passed severe
strictures on the conduct of the receiver as well as of the Subordinate Judge
and plainly indicated that the moneys borrowed by the receiver were borrowed
not for the benefit of the plaintiffs at all. Undoubtedly the accounts were
still to be investigated but what necessity there possibly could be for
Rashmoni to execute, after the High Court had made the order as stated above, a
security bond by which she mortgaged all the properties that were allotted to
Haripada in his share as an additional security for the entire loan of Rs.
30,000 no portion of which be defied the estate of Haripada at all? In our
opinion the only object of executing the security bond was to protect Mohini
who was threatened with legal proceedings by his creditor for having included a
nonexistent property in the mortgage bond. Rashmoni certainly acted at the
instance of and for the benefit of Mohini and she might have been actuated by a
feeling of Maternal affection to save her son from a real or imaginary danger.
But by no stretch of imagination could it be regarded as a prudent act on the
part of a Hindu female heir which was necessary for the protection of the
estate of the last male holder. In our opinion the view taken by the Courts
below is quite proper and as a concurrent finding of fact it should not be
disturbed by this Court.
The second point urged by Mr. Chatterjee
raises the question as to whether the fact of Mohini's joining his mother in
executing the security bond would make the transaction binding on the actual
reversioner, Mohini being admittedly the presumptive reversioner of Haripada at
the date of the transaction. We do not think that there could be any serious
controversy about the law on this point. The alienation here, was by way of
mortgage and so no question of surrender could possibly arise. Mohini being the
immediate reversioner who joined in the execution of the security bond must be
deemed to have consented to the transaction. Such consent may raise a
presumption that the transaction was for legal necessity or that the mortgagee
had acted therein after proper and bona fide enquiry and has 478 satisfied
himself as to the existence of such necessity(1).
But this. presumption is rebuttable and it is
open to the actual reversioner to establish that there was in fact no legal
necessity and there has been no proper and bonafide enquiry by the mortgagee.
There is no doubt that both the Courts below have proceeded on a correct view
of law and both have come to the conclusion upon a consideration of the
evidence in the case that the presumption that arose by reason of the then
reversioner’s giving consent to the transaction was rebutted by the facts
transpiring in evidence.
Mr. Chatterjee placed considerable reliance
upon another document which purports to be a deed of declaration and was
executed by Ram Narayan on the 5th of October, 1918. At this time Mohini was
dead 'and Ram Narayan was the immediate reversioner to the estate of Haripada
and by this deed he declared inter alia that the debts contracted by Rashmoni
were for proper and legal necessity. This deed purports to be addressed to
Bangshidari Ghosh and Keshav Dutt, two other alienees of the properties of
Mohini and Haripada and does not amount to a representation made to the auction
purchaser Annada Prasad Ghose or to the father of the present appellants. In
fact they had not come in the picture at all at that time. At the most it can
be regarded only as an admission by a presumptive reversioner and cannot have
any higher value than the consent expressed by Mohini who figured as a
co-execuitant of the security bond. It cannot bind the actual reversioner in
any way. Mr. Chatterjee attempted to put forward an argument on the authority
of certain observations in the case of Bajrangi v.
Monokarnika(2) that as the present appellants
are the sons of Ram Narayan the admissions made by their father would bind them
as well. It is true that there is a passage at the end of the judgment in
Monokarnika's case(1) which lends some apparent support to the contention of
the learned counsel. The concluding words in the judgment stand as follows:
(1)Vide Debi Prosad Chowdhury v. Golap
Bhagat, I.L.R. 40 Cal. 721 at 78I. Approved of by the judicial Committee in
Gounden v. Gounden, 46 I.A. 72, 84.
(2) 35 I.A. 1.
479 "The appellants who claim through
Matadin Singh and Baijnath Singh must be held bound by the consent of their
fathers." But the true import of this passage was discussed by the Privy
Council in their later pronouncement in Rangasami Gounden v. Nachippa
Gounden(1) and it was held that the words referred to above should I not be
construed to lay down the proposition that such consent on the part of the
father would operate proprio vigore and would be binding on the sons. This
proposition, Their Lordships observed, was opposed both to principle and
authority, it being a settled doctrine of Hindu law that nobody has a vested
right so long as the widow is alive and the eventual reversioner does not claim
through anyone who went before him. As the sons of Ram Narayan claim as heirs
of Haripada and not of their father, the admissions, if any, made by the latter
could not in any way bind them. This contention of the appellant must therefore
fail.
The third and the last contention raised by Mr.
Chatterjee is that in any event his client is a stranger who has bona fide
purchased the property for good consideration after making due enquiries and on
proper legal advice and be cannot therefore be affected by any infirmity of
title by reason of the absence of legal necessity. In our opinion the
contention formulated in this form really involves a misconception of the legal
position of an alienee of a Hindu widow's property. The interest of a Hindu
widow in the pro- perties inherited by her bears no analogy or resemblance to
what may be described as an equitable estate in English law and which cannot be
followed in the hands of a bonafide purchaser for value without notice. From
very early times the Hindu widow's estate has been described as qualified
proprietorship with powers of alienation only when there is justifying
necessity, and the restrictions on the powers of alienation are inseparable
from her estate (2). For legal necessity she can convey to another an absolute
title to the property vested in her. If there is no legal 'necessity, the
transferee gets only the widow's estate which is not even an (1) 46 I.A. 72 at
83-84.
(2) Vide The Collector of Masaulipatam v.
Cavaly Venkata, S.M.I.A. 529, 480 indefeasible life estate for it can come to
an end not merely on her death but on the happening of other contingencies like
re-marriage, adoption, etc. If an alienee from a Hindu widow succeeds in
establishing that there was legal necessity for transfer, he is completely
protected and it is immaterial that the necessity was brought about by the
mismanagement of the limited owner herself. Even if there is no necessity in
fact, but it is proved that there was representation of necessity and the
alienee after making bona fide enquiries satisfied himself as best as he could
that such necessity existed, then as the Privy Council pointed out in Hunooman
Persaud Panday's case (1) the actual existence of a legal necessity is not a
condition precedent to the validity of the sale. The position therefore is that
if there is no necessity in fact or if the alienee could not prove that he made
bona fide enquiries and was satisfied about its existence, the transfer is
undoubtedly not void but the transferee would get only the widow's estate in
the property which does not affect in any way the interest of the reversioner.
In this case the alienation was by way of mortgage. The finding of both the
Courts below is that there was no legal necessity which justified the execution
of the security bond. The mortgagee also could not prove that there was
representation of the legal necessity and that she satisfied herself by bona
fide enquiries that such necessity did exist. On 'this point the, finding
recorded by the High Court is as follows :
" In the present case, there is no scope
for an argument that there was such representation of legal necessity or that
on bona fide enquiry the alienee satisfied herself 'that there was such a
necessity, for as I have already pointed out the security bond itself states
that it was in consideration of benefits already received and with a view to
induce Suhasini to forbear from proceeding against Mohini, that the bond was
being executed. There is no representation in the bond that the alienation was
made with a view to securing any benefit to the estate or to avert any danger
to the estate or for the purpose of any other legal necessity. Whatever
enquiries the appellants may have made (1) 6 M.I.A, 481 would be of no avail to
them when the alienation is not binding on the whole estate but only on the
woman's estate of Rashmoni." In our opinion the view taken by the High
Court is quite proper. On this finding the security bond could operate only on
the widow's estate of Rashmoni and it was that interest alone which passed to
the purchase. at the mortgage sale. The subsequent transferee could not claim
to have acquired any higher right than what his predecessor had and it is
immaterial whether he bona fide paid the purchase money or took proper legal
advice. The result is that in our opinion the decision of the High Court is
right and this appeal must stand dismissed with costs.
Appeal dismissed.
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