Jagannathan
Pillai Vs. Kunjithapadam Pillai & Ors [1987] INSC 122 (21 April 1987)
THAKKAR,
M.P. (J) THAKKAR, M.P. (J) RAY, B.C. (J) CITATION: 1987 AIR 1493 1987 SCR
(2)1070 1987 SCC (2) 572 JT 1987 (2) 235 1987 SCALE (1)861
CITATOR
INFO : R 1987 SC2251 (12) D 1989 SC1179 (16) D 1991 SC1581 (10,14)
ACT:
Hindu
Succession Act, 1956: S. 14(1)--Hindu widow regains possession of property
subsequent to commencement of Act----Nature of her right or interests--Whether
full or limited owner.
HEADNOTE:
Section
14(1) of the Hindu Succession Act, 1956 provides that any property possessed by
a female Hindu, whether enquired before or after the commencement of the Act
shall be held by her as full owner thereof and not as a limited owner. The
Explanation to the sub-section included property acquired by a female Hindu by
purchase within the expression 'property.' The Hindu widow, in the instant
case, who had acquired a limited estate from her husband by reason of his death
was not in possession on the date of the enforcement of the Act, she having
transferred the property in favour of an alienee, But, later the possession was
restored to her upon the original alienee reconveying the property to her,
reversing the transaction. Her right to the said property was assailed by the
appellant before the Madras High Court and a question arose as to whether upon
the reconvenance of the very property. which she had alienated, after the
enforcement of the Act she would become full owner in respect of such a
property by virtue of s. 14(1) of the Act.
The
High Court following its earlier view in Chinnako- landai Goundan v. Thanji
Gounder, (ILR 1966 I Madras 326) and that of Punjab High Court in Teja Singh v.
Jagat Singh, (AIR 1964 Punjab 403), Bombay High Court in Ramgowda Auna- gowda
v. Bhausaheb, (ILR 52 Bom. 1) and Gujarat High Court in Champa v. Chandrakant
(AIR 1973 Gujarat 227), held that she would become an absolute owner of such a
property in the aforesaid situation.
In
this appeal by certificate. it was contended for the appellant. relying on the
view pronounced by the Orissa High Court in Ganesh Mahanta v. Sukria Bewa, (AIR
1963 Orissa 167) and Andhra Pradesh High Court in Medicherla Venkatarat- nam v.
Siddani Palamma, 1970 II Andhra Weekly Reporter 264), that s. 14(1) of the Act
does not come 1071 into play in the case of a retransfer of the property to the
widow subsequent to the commencement of the Act, as the transferee or the
donee, who had only a limited interest. cannot transfer a title higher than the
title that they themselves had in the property. Dismissing the appeal, the
Court,
HELD:
1. A Hindu woman is entitled to become an absolute owner of the property which
she had alienated, upon its reconveyance to her by the transferee after the
enforcement of the Hindu Succession Act, 1956 by virtue ors. 14(1).
[1082G;
1075B]
2.1
The whole purpose of s. 14(1) is to make a widow who has a limited interest a
full owner in respect of the property in question regardless of whether the
acquisition was prior to or subsequent to the commencement of the Act.
It
comes into operation at the point of time when the right of the Hindu widow to
the property is called into question.
All
that has to be shown by her then is that she had acquired the property and that
she was possessed of the property. Once it is shown by her that she was
possessed of the property on that date in the eyes of law the property held by
her would be held by her as "full owner" and not as limited owner.
[1079G; 1075GH; 1077BC]
2.2
Possession, physical or constructive or in legal sense, on the date of coming
into operation of the Act is not the sine-qua-non for the acquisition of full
ownership in property by the Hindu female. The expression "possessed
of" used in s. 14(1) pertains to the acquisition of a right or interest in
the property and not to physical possession acquired by force or without any
legal right. The expression "whether acquired before or after the
commencement of the Act" used in s. 14(1) makes it evident that any property
possessed by a Hindu female whether acquired before or after the commencement
of the Act, would be held by her as a full owner thereof and not as a limited
owner. If the legislature had not contemplated a Hindu widow becoming possessed
of a property by virtue of an acquisition after the commencement of the Act the
aforesaid expression would not have been used. [1076FG; 1081C; 1076CD; 1081AB]
2.3
When the Hindu female in the instant case bought the property from the alienee
to whom she had sold it prior to the enforcement of the Act, she had acquired
the property within the meaning of the explanation to s. 14(1) of the Act. The
transaction by which the vendee of the Hindu female had acquired an interest in
the said property was reversed and she was restored to the position prevailing
before the 1072 transaction took place. In the eyes of law the transaction
stood obliterated or effaced. Thus, on the date on which her right to the
property was called into question, she was possessed of the property which she
had inherited from her husband, she having by then reacquired and regained what
she had lost, and her limited right had natured into a full ownership in view
of s. 14(1) of the Act. [1077C, EF; 1078C]
3.
By the reversal of the transaction no right of the reversioner was affected,
for he had merely a spes successions in the property and nothing more. His
possible chance of succeeding upon the death of the Hindu female disappeared
from the horizon as soon as what she had temporarily parted with was restored
to her. Therefore, whether a challenge was made during her life-time or it was
made after her death, if the question arose as to what was the nature of
interest in the property held by the concerned Hindu female after the reversal
of the transaction the answer would be that she had a 'full ownership' and not
a 'limited ownership'. [1078DE; 1077H-IO78A]
4.
If the transferee from the concerned Hindu female had transferred his right,
title and interest in the property to a third person instead of transferring it
back to her, the principle that the transferor cannot transmit a better title
or a title higher than that possessed by him at the given time would have come
into play. Not otherwise. The transac- tion having been reversed the Hindu
widow became re-pos- sessed of the property which she had possessed prior to
the transfer to the original alienee or the donee and her right straightaway
matured into full ownership by virtue of s.
14(1).
[1078B; 1079DE]
5.
The case of the widow who had temporarily lost the right in the property by
virtue of the transfer in favour of the alienee or the donee cannot be equated
with that of a stranger. The Act is intended to benefit her. And when she
becomes possessed of the property, having regained precisely that interest
which she had temporarily lost during the duration of the eclipse, s. 14(1)
would come to her rescue which would not be the matter in the case of a
stranger who cannot invoke s. 14(1). [1080F] Kotturuswamy v. Veeravva, (AIR
1959 S.C. 577) distinguished.
Chinnakolandai
Goundan v. Thanji Gounder, (ILR 1966 I Madras 326); Teja Singh v. Jagat Singh,
(AIR 1964 Punjab 403); Ramgowda Aunagowda v. Bhausaheb, (ILR 52 Bom. 1) and
Champa v. Chandrakant, (AIR 1973 Gujarat 227), approved.
1073
Ganesh Mahanta v. Sukria Bewa, (AIR 1963 Orissa 167) and Medicherla
Venkataramam v. Siddani palamma, (1970 II Andhra Weekly Reporter 264),
overruled.
Civil
Appellate Jurisdiction: Civil Appeal No. 1196 of 2973.
From
the Judgment and Decree dated 20.9.1971 of the Madras High Court in Appeal No.
425 of 1964.
T.S.
Krishnamoorthy Iyer. K. Ram Kumar and K. Ram for the Appellant.
S.T.
Desai, K. Ramamurthy and A.T.M. Sampath for Re- spondents No. 1 and 2.
Rajendra
Chowdhary for the Respondent No. 3 to 5.
The
Judgment of he Court was delivered by THAKKAR. J. Under the same law1 in an
identical fact situation, a Hindu widow who has inherited property in Orissa or
Andhra Pradesh would be a 'limited owner' and would not become an 'absolute
owner' thereof whereas if she has inherited property in Madras, Punjab, Bombay
or Gujarat she would become an 'absolute owner'. That is to say, in a situation
where a Hindu widow regains possession of a property (in which she had a
limited ownership) subsequent to the com- mencement of the Act2 upon the
retransfer of the very same property to her by the transferee in whose favour
she had transferred it prior to the commencement, of the Act. This incongruous
situation has arisen because of an interpretation and application of Section
14(1)3 of the Hindu Succession Act (Act) in the context of the
1.
Section 14(1) of Hindu Succession Act of 1956 2. The Act came into force on
June 17, 1956.
.lm
3. "Section 14(1): Any property possessed by a female Hindu.
whether
acquired before or after the commencement of this Act, shall be held by her as
full owner thereof, and not as a limited owner.
Explanation--In
this sub-section, "property" includes both movable and immovable
property acquired by a female Hindu by inheritance or devise, or at a
partition, or in lieu of maintenance or arrears of maintenance, or by gift from
any person, whether a relative or not, before, at or after her marriage, or by
her own skill or exertion, or purchase or by prescription, or in any other
manner whatsoever, and also any such property held by her as shri dhana
immediately before the commencement of this Act." 1074 aforesaid
fact-situation the High Courts of Orissa4 and Andhra Pradesh5 have proclaimed
that she would be only a 'limited owner' of such property on such retransfer
whereas the High Courts of Madras6, punjab7 Bombay8 and Gujarat9 have taken a
contrary view and have pronounced that she would become an 'absolute owner' of
such a property in the aforesaid situation. We have therefore to undertake this
exercise to remove the unaesthetic wrinkles from the face of law to ensure that
a Hindu widow has the same rights under the same law regardless of the fact as
to whether her property is situated within the jurisdiction of one High Court
or the other.
The
appellant who unsuccessfully canvassed before the High Court of Madras that the
view propounded by the Orissa and Andhra Pradesh High Courts deserved to be
preferred to the view taken by the other four High Courts, has approached this
Court by way of the present appeal by a certificate granted under Article
133(l)(a) of the Constitution of India that the matter involves a substantial
question of law.
The
typical facts in the backdrop of which the problem has to be viewed are :- (1)
A Hindu female acquired a property, say by reason of the death of her husband,
before the commencement of the Act (i.e. before June 17, 1956).
(2)
What she acquired was a widow's estate as understood in shastric or traditional
Hindu Law.
(3)
She lost the possession of the property on account of a transaction whereby she
transferred the property in favour of an alienee by a registered document of
'sale' or 'gift'.
4.
Ganesh Mahanta v. Sukria Rewa (AIR 1963 Orissa 167).
5.
Medicherla Venkataratnam v. Siddani Palamma, (1970 II Andhra Weekly Reporter
264).
6.
Chinnakolandai Goundan v. Thanji Gounder, (ILR 1966 I Madras 326).
7.
Teia Singh v. Jagat Singh, (AIR 1964 Punjab 403).
8.
Ramgowda Aunagowda v. Bhausaheb, (ILR 52 Bom. 1).
9.
Champa v. Chandrakant, (AIR 1973 Gujarat 227).
1075
(4) The property in question was retransferred to her by the said alienee
'after' the enforcement of the Act by a registered document thus restoring to
the widow the interest (such as it was) which she had parted with earlier by
reversing the original transaction.
It
is in this factual background that the question will have to be examined as to
whether upon the reconveyance of the very property which she had alienated
after enforcement of the Act, she would become a full owner in respect of such a
property by virtue 'of Section 14(1) of the Hindu Succession Act, 1956 (Act).
Be it realized that the law has been settled by this Court that the limited
estate or limited owner- ship of a Hindu female would enlarge into an absolute
estate or full ownership of the property in question in the following fact situation:
1.
Where she acquired the limited estate in the property before or after the
commencement of the Act provided she was in possession of the property at the
time of the coming into force of the Act on June 17, 1956.
2.
Even if the property in question was possessed by her in lieu of her right to
maintenance as against the estate of her deceased husband or the joint family
property, she would be entitled to become a full or absolute owner having
regard to the fact that the origin of her right was traceable to the right
against her husband's estate, The problem which has arisen in the present
appeal is in the context of a fact-situation where while the widow acquired a
limited estate from her husband she was not in possession on the date of the
enforcement of the Act viz.
June
17, 1956, But the possession was restored to her upon the original alienee
reconvening the property to her.
On
an analysis of Section 14(1) of the Hindu Succession Act of 1956, it is evident
that the Legislature has abolished the concept of limited ownership in respect
of a Hindu female and has enacted that any property possessed by her would
thereafter be held by her as a full owner. Section 14(1) would come into
operation if the property at the point of time when she has an occasion to
claim or assert a title thereto. Or, in other words, at the point of time when
her right to the said property is called into question. The legal effect of
Section 14(1) 1076 would be that after the coming into operation of the Act
there would be no property in respect of which it could be contended by anyone
that a Hindu female is only a limited owner and not a full owner. (we are for
the moment not concerned with the fact that sub-section (2) of section 14 which
provides that Section 14(1) will not prevent creating a restricted estate in
favour of a Hindu female either by gift or will or any instrument or decree of
a Civil Court or award provided the very document creating title unto her confers
a restricted estate on her). There is nothing in Section 14 which supports the
proposition that a Hindu female should be in actual physical possession or in
constructive possession of any property on the date of the coming into
operation of the Act. The expression 'possess ,' has been used in the sense of
having a right to the property or control over the property. The expression
'any property possessed by Hindu female whether acquired before or after the
commencement of the Act' on an analysis yields to the following interpretation:
.15
(1) Any property possessed by a Hindu female acquired before the commencement
of the Act will be held by her as a full owner thereof and not as a limited
owner.
(2)
Any property possessed by a Hindu female acquired after the commencement of the
Act Will be held as a full owner thereof and not as a limited owner.
Since
the Act in terms applies even to properties possessed by a Hindu female which
are acquired 'after' the commencement of the Act, it is futile to contend that
the Hindu female shall be in 'possession' of the property 'before' the
commencement of the Act. If the property itself is acquired 'after' the
commencement of the Act, there could be no question of the property being
either in physical or constructive possession of the Hindu female 'before' the
coming into operation of the Act. There is, therefore, no escape from the
conclusion that possession, physical or constructive or in a legal sense, on
the date of the coming into operation of the Act is not the sine-qua-non for
the acquisition of full ownership in property. In fact, the intention of the
Legislature was to do away with the concept of limited ownership in respect of
the property owned by a Hindu female altogether. Section 4 of the Act (it needs
to be emphasized) provides that any text, rule or interpretation of Hindu Law
or custom or usage as part of that law in force immediately before the
commencement of this Act, shall cease to have effect with respect to any matter
for which provision is made in the Act. The legislative intent is there- fore,
abundantly loud and clear.
1077
To erase the injustice and remove the legal shackles by abolishing the concept
of limited estate, or the women's or widow's estate once and for all. To
obviate hair-splitting, the Legislature has made it abundantly clear that
whatever be the property possessed by a Hindu female, it will be of absolute
ownership and not of limited ownership not with- standing the position
obtaining under the traditional Hindu law. Once it is shown that at the point
of time when the question regarding title to property held by a Hindu female
arises, she was 'possessed' of the property on that date, in the eye of law,
the property held by her would be held by her as 'full owner' and not as
'limited owner'. In other words, all that has to be shown by her is that she
had acquired the property and that she was 'possessed' of the property at the
point of time when her title was called into question. When she bought the
property from the alienee to whom she had sold the property prior to the
enforcement of the Act, she 'acquired' the property within the meaning of the
explanation to Section 14(1) of the Act. The right that the original alienee
had to hold the property as owner (subject to his right being questioned by the
reversioner on the death of the female Hindu from whom he had purchased the
property) was restored to her when she got back the right that she had parted
with. Whatever she had lost 'earlier', was 'now' regained by her by virtue of
the transaction. The status-quo-ante was restored in respect of her interest in
the said property. In the eye of law, therefore, the trans- action by which the
vendee of the Hindu female acquired an interest in the said property was
'reversed' and the Hindu female was restored to the position prevailing before
the transaction took place. In other words, in the eye of law the transaction
stood obliterated or effaced. What was 'done' by virtue of the document
executed in favour of the transferee was 'undone'. Such would be the
consequence of a retransfer by the alienee in favour of a Hindu female from
whom he had acquired an interest in the property in question. Thus on the date
on which her right to the property was called into question, she was
'possessed' of the property which she had inherited from her husband she having
by then re-acquired and regained what she had lost. And by virtue of the
operation of Section 14(1) of the Act the limitation which previously inhered
in respect of the property disappeared upon the coming into operation of the
Act. It is no longer open to anyone now to contend that she had only a
'limited' ownership in the said property and not a 'full' ownership, the
concept of limited ownership having been abolished altogether, with effect from
the coming into operation of the Act.
Whether
a challenge was made during her lifetime or it was made 1078 after her death.
if the question arose as to what was the nature of interest in the property
held by the concerned Hindu female after the reversal of the transaction the
answer would be that she had a 'full' ownership and not a 'limited' ownership.
It would have been a different matter if the transferee from the concerned
Hindu female had transferred his right, title and interest in the property to a
third person instead of transferring it back to her. In that event the
principle that the transferor cannot transmit a better title or a title higher
than that possessed by the transferor at the given time would come into play.
Not otherwise. When the transaction was reversed and what be- longed to her was
retransmitted to her, what the concerned Hindu female acquired was a right
which she herself once possessed namely, a limited ownership (as it was known
prior to the coming into force of the Act) which immediately matures into or
enlarges into a full ownership in view of Section 14(1) of the Act on the
enforcement of the Act. The resultant position on the reversal of the
transaction would be that the right, title and interest that the alienee had in
the property which was under 'eclipse' during the sub- sistence of the
transaction had reemerged on the disappear- ance of the eclipse. In other
words, the right which was under slumber came to be awakened as soon as the
sleep induced by the transaction came to an end. By the reversal of the
transaction no right of the reversioner was affected, for he had merely-a-spes-successions
in the property and nothing more. His possible chance of succeeding upon the
death of the Hindu female disappeared from the horizon as soon as what she had
temporarily parted with was restored to her.
The
proponents of the view canvassed by the appellant placed strong reliance on the
decision rendered by a learned Single Judge of the Orissa High Court in Ganesh
Mahanta v. Sukria Bewa, A.I.R. 1963 Orissa 167 and the decision of the Andhra
Pradesh High Court in Medicherla Venkataratnam v. Siddani Palamma and Ors.,
A.W.R. 1970(2) 264 wherein the Andhra Pradesh High Court has concurred with the
view of the Orissa High Court, The basis of the reasoning is reflected in the
following passage from Ganesh Mahanta's case:
"Section
14(1) does not purport to enlarge the right, title or interest of the alienee
from widow with regard to the transfers effected prior to the commencement of
the Act. A donee from the widow prior to the commencement of the Act acquires
only a widow's estate in the gifted property and even if the donee retransfers
the property in favour of the widow after the commencement of the Act, the
widow 1079 would acquire only a limited interest and not an absolute interest
in the property as the donee cannot transmit any title higher than what he
himself had." It appears that the Orissa and the Andhra Pradesh High
Courts have been carried away by the argument that the donee or the transferee
who retransfers the property to the widow cannot transmit a title higher than
the title that they themselves had in the property. In substance, the argument
is that as the transferee or the donee had only a limited interest, what he can
transmit to the widow is a limited interest. This argument postulates that
Section 14(1) of the Act does not come into play in the case of a retransfer
(by the donee or the transferee as the case may be), to the widow subsequent to
the commencement of the Act. There is a basic fallacy in proceeding on the
assumption that Section 14(1) has no impact or that the provision has no role
to play in case of such a retransfer. This line of reasoning overlooks the fact
that upon retransfer to the widow, the original transaction is obliterated and
what transpired by virtue of the consequence of the original transfer stands
reversed. The resultant position is that the widow is re- stored to the
original position. Section 14(1) would not be attracted if the widow was not
possessed of the property after the coming into force of the Act. But in view
of the reversal of the transaction, the widow becomes possessed of the property
which she had possessed prior to the transfer to the original alienee or the
donee. And Section 14(1) straightaway comes into play. By virtue of the
reversal of the original transaction, her rights would have to be ascertained
as if she became possessed of the property for the first time, after the
commencement of the Act. It is now well settled that even if the widow has
acquired the interest in the property and is possessed of the property after
the commencement of the Act, her limited right would ripen or mature into an
absolute interest or full ownership. The question that has to be asked is as to
whether the widow became possessed of the property by virtue of the acquisition
of interest subsequent to the operation of the Act and whether such interest
was a limited interest. The whole purpose of Section 14(1) is to make a widow
who has a limited interest a full owner in respect of the property in question
regardless of whether the acquisition was prior to or subsequent to the
commencement of the Act. On the date on which the retransfer took place, she
became possessed of the property. She became possessed thereof subsequent to
the commencement of the Act. In the result her limited interest therein would
enlarge into an absolute interest, for, after the commencement of the Act any
property possessed of and held by a widow becomes a property in which she has
absolute interest 1080 and not a limited interest, the concept of limited
interest having been abolished by Section 14(1) with effect from the
commencement of the Act. The Orissa High Court and the Andhra Pradesh High
Court have fallen in error in testing the matter from the stand point of the
alienee or the donee who retransfers the property. The High Court posed the
question as to whether they would be entitled to full owner- ship in view of
Section 14(1), instead of posing the question as to whether the widow who
becomes possessed of the property after the commencement of the Act would be
entitled to claim that her limited interest had enlarged into an absolute interest.
Of course, Section 14(1) is not intended to benefit the alienee or the donee,
but is intended and designed to benefit the widow. But the question has to be
examined from the perspective of the widow who becomes possessed of the
property by virtue of the acquisition pursuant to the retransfer. The Andhra
Pradesh High Court has also fallen in error in accepting the fallacious
argument that the widow would be in the position of a stranger to whom the
property was reconvened or retransferred. This fallacy is reflected in the
following passage:
"
.... Therefore reconveyance will not revive her original right in the property
and she will be holding the estate reconveyed just like any other stranger
alienee, for the lifetime of the alienor widow, though she happens to be that
widow, and there can be no question of one alienation cancelling the other and
the status-quo-ante, the widow's alienation being restored." The case of
the widow who had temporarily lost the right in the property by virtue of the
transfer in favour of the alienee or the donee can not be equated with that of
a stranger by forgetting the realities of the situation.
Surely,
the Act was intended to benefit her. And when the widow becomes possessed of
the property, having regained precisely that interest which she had temporarily
lost during the duration of the eclipse, Section 14(1) would come to her rescue
which would not be the matter in the case of a stranger who cannot invoke
Section 14(1). A further error was committed in proceeding on the mistaken
assumption that the decision in Kotturuswamy v. Veeravva, A.I.R. 1959 S.C.
577
supported the point of view which found favour with the Orissa and the Andhra
Pradesh High Courts. In Kotturuswamy's case the alienation had taken place
before the commencement of the Act and the widow had 'trespassed' on the
property and had obtained physical possession as a trespasser without any
title. It was not a case where the widow had regained possession lawfully and
become entitled to claim 1081 the benefit of Section 14(1) having become
possessed of the property by way of a lawful acquisition subsequent to the
commencement of the Act. It was overlooked that Section 14(1) in terms used the
expression "whether acquired before or after the commencement of the
Act". If the legislature had not contemplated a widow becoming possessed
of a property by virtue of an acquisition after the commencement of the Act,
the aforesaid expression would not have been used by the legislature. The
Orissa and the Andhra Pradesh High Courts have failed to give effect to these
crucial words and have also failed to apply the principle in Kotturuswamy's
case properly, wherein the widow obtained possession as a trespasser. In fact
the expression "possessed of" pertains to the acquisition of a right
or interest in the property and not to physical possession acquired by force or
without any legal right. The ratio in Kotturuswami's case was there- fore
misunderstood and misconceived by the Orissa and the Andhra Pradesh High
Courts. We agree with the reasoning of the Madras High Court in Chinnakolandai
v. Thanji, [1965] 2 M.L.J. 247: A.I.R. 1965 Mad. 497, wherein Ramamurthi, J.
has made the point in a very lucid manner in the following passage:
"With
respect, I am unable to agree with this view, as the entire reasoning is based
upon the view that there is no difference between a reconveyance in favour of
the widow herself and alienation in favour of the stranger. In my opinion,
there is all the difference between a case of annulment of a conveyance by
consent of both the parties and a case of a subsequent alienation by the
alienee in favour of a stranger. In the former case the effect of the
alienation is completely wiped out and the original position is restored. This
distinction has not been noticed in the decision of the Orissa High Court. The
acceptance of the contention Urged by learned counsel for the appellant would
lead to startling results.
Take
for instance an un-authorised alienation by a guardian. If some cloud is cast
on the validity of the alienation, and if the alienee, not willing to take any
risk till the attainment of majority by the minor, conveys back the property to
the guardian, it would not be open to the guardian to contend that he had
acquired the voidable title of the alienee. In other words, he cannot contend
as against the quondam minor that the income from the property would be his,
and that till the minor takes proceedings for setting aside the alienation the
guardian should be deemed to have acquired the right, title and interest of the
alienee. Such a 1082 contention on the face of it is untenable.
The
instance of an alienation by a trustee or an executor may also be considered.
If
after the alienation by the trustee or executor the beneficiary raises some objection
about, the validity of the alienation whether well rounded or ill turned and if
the alienee who is not prepared to take any risk conveys back the property to
the trustee or the executor as the case may be it cannot possibly be contended
that the trustee or the executor got back the property in any right or
character other than in which it was originally alienated. As a result of the
re-conveyance the property would form part of the trust estate.
In
all these cases the alienor suffers under a legal disability from holding the
property in any other capacity. It is needless to multiply instances. I am
therefore clearly of the opinion that there is nothing in law to pre- vent an
alienation being completely nullified as if it never took effect provided the
alien- or and the alienee agree to such a course. The position is a fortiori
where the title conveyed to the alienee is a voidable one. It cannot be
disputed that when the reversioner files the suit it is open to the alienee to
submit to a decree. After such a declaratory decree is passed, there is nothing
in Hindu law which compels or obliges the alienee to retain and keep the
property himself and hand it over to the reversioner. It is certainly open to
him, to respect the decree and convey back the property to the widow even
before her death. It is obvious that what the alienee can do after the
termination of the suit can equally be done during its pendency. Surely the
alienee is not a trustee for the reversionary to keep the property in trust and
deliver the property on the death of the widow." Our own reasons we have already
articulated. The reasoning unfolded in the foregoing passage, we fully and
whole- heartedly endorse. In the result we uphold the view that in such
circumstances the concerned Hindu woman is entitled to become an absolute owner
of the property in question.
The
appeal fails and is dismissed. No costs.
P.S.S.
Appeal dismissed.
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