1. This is a second appeal by the original plaintiff. Full facts leading to this appeal are set out in the judgment dated 21st December 1966 of Mr. Justice M. V. Paranjpe who framed certain issues and referred the same for trial partly to the lower appellate Court and partly to the trial court, as will appear a little later. But for the purpose of the contentions taken before me I may perhaps set out a few of the facts which may be relevant for the purpose of those contentions.
2. The plaintiff instituted the suit from which the present appeal arises against four defendants in the court of the learned Civil Judge, Junior Division, Ahmednagar at Sangamner for possession of a house mentioned in para 1 of the plaint. It was alleged that the house originally belonged to one Bhika Hari. Bhika Hari married six wives but had no son. On 7th December 1934 he made a will bequeathing this house to his daughter's son Shivnath. The will provided that his last wife Sakhubai should take the income during her lifetime as guardian of Shivnath for maintenance. Shivnath was the son of Kondabai, the daughter of Bhika Hari from his third wife, and not from Sakhubai. Bhika Hari died on 1st January 1936 and on 16th June 1937 Sakhubai executed a sale deed in respect of the property left by Bhika Hari in favour of the defendant No. 1 Sonabai. Sonabai was the daughter of Sakhubai by her first husband. Bhika Hari was her second husband. The sale was in the sum of Rs. 4,000/-. On 11th June 1941, the defendant No. 1 Sonabai executed a possessory mortgage in respect of the property in favour of Kankuchand Maganlal. The said possessory mortgage was later satisfied. On 20th May 1943 Sakhubai and Sonabai executed a second mortgage in favour of the plaintiff. On 1st June 1945 Shivnath, the ultimate legatee under the will of Bhika Hari, attained majority and on 18th March 1947 he executed a conveyance of the property bequeathed to him by Bhika Hari in favour of the plaintiff. On 28th March 1951 the plaintiff filed the suit for possession' claiming to be the owner under the sale deed executed by Shivnath. The suit was against the defendant No. 1 and the tenants of the property defendants Nos. 2, 3 and 4. The plaintiff alleged that Sakhubai, the widow of the testator Bhika Hart, had no authority to sell the suit property to the defendant No. 1 and that the transaction of sale in favour of the defendant No. 1 was illegal and void and the defendant No. 1 derived no title thereunder. The plaintiff also alleged that Sakhubai the widow of Bhika Hari had been the guardian of Shivnath, the plaintiff's vendor.
3. The defendant No. 1 contended that Sakhubai had sold the suit property to her for legal necessity, that is to defray the expenses incurred in the litigation in respect of Bhika's property. She contended that she had been in possession in her own right since the sale in her favour of 16th June 1937. In the alternative, the defendant No. 1 contended that Sakhubai, being the widow, was a legal heir of Bhika and the sale was valid. The defendant No. 1 also set up title by adverse possession and took up the contention that the suit was barred by the law of limitation.
4. The trial Court decreed the suit. The defendants appealed to the District Court at Ahmednagar. The learned Assistant Judge, however, disposed of the appeal only on one point holding that the suit was barred by Article 44 of the Indian Limitation Act. He did not deal with the other points. He allowed the appeal and dismissed the suit. Against the said decision the plaintiff has filed the present second appeal.
5. When the second appeal came up for hearing before Mr. Justice M. V. Paranjpe, he found that the trial Court had not dealt with the question of adverse possession and he also found that the lower appellate Court had not dealt with the contentions of the parties other than that of limitation. He therefore, framed certain issues under the provisions of Order 41, Rule 25. C. P. C. and referred the issue as to adverse possession for trial to the trial Court. He also framed other issues on points which the lower appellate Court had not dealt with in the first appeal and directed the lower appellate Court to return the papers with the evidence on the issue as to adverse possession, the finding of the trial court on that issue, and the findings of the lower appellate Court on all the issues referred. The reference has since been returned, and this second appeal was thereafter placed before me for hearing.
6. The findings of the lower appellate Court on the issues referred to it by Mr. Justice M. V. Paranjpe are that the defendant No. 1 had not proved that she had acquired title to the suit property 'by adverse possession. It appears that both the trial Court as well as the lower appellate Court came to the conclusion that Sakhubai had been in physical possession of the property and not the defendant No. 1 Sonabai. This was a finding of fact. It was also found that the sale deed 1937 was not hollow or bogus, and that It was also not for legal necessity. With regard to defendants Nos. 2 to 4 it was found that they were not entitled to the protection of the Bombay Kent Act. 1947, as against the plaintiff.
7. Before me Mr. Kotwal appearing for the respondents-defendants has taken only two contentions. The first contention is that the sale deed dated 16th June 1937 executed by Sakhubai in favour of defendant No. 1 is at best voidable and not ab initio void. Unless the sale deed was set aside by a suit under the provisions of Art. 91 of the Indian Limitation Act, 1908, it was good against the plaintiff. In any event, the plaintiff attained majority on 1st June 1945 and ought to have filed a suit for setting aside the sale deed on or before 1st June 1948. In absence of setting aside of the sale deed, the present suit by the plaintiff would not be maintainable. His second contention was that even if the sale deed was void, it ought to be held that the defendant No. 1 was in possession adverse to the plaintiff and his predecessor-in-title Shivnath for a period exceeding 12 years and had thus perfected her title.
8. I shall first deal with the contention that the suit is not maintainable, on the ground that the sale deed dated 16th June 1937 is voidable and has not been set aside. An agreed translation of the will has been produced before me. The will is Ex. 57. The testator Bhika Hari states in the will that a thought came to his mind that after his death his immovable property should go to Shivnath and that his last wife Sakhubai Who was living with him should take the income during her lifetime as guardian of Shivnath for maintenance. After his death, the estate should not be wasted and the relations should not trouble Sakhubai. He states that the property disposed of by the will was self-acquired property. In the will he describes Sakhubai as^ekz>h O;oLFkk Bso.kkjh ck;dks l[kwckb**(Sakhubai,my wife in-charge of management). The will provides that Sakhubai should Incur expenses of obsequies out of the property of Bhika, and after Sakhubai's death, Shivnath should get the property. If at the time of Sakhubai's death Shivnath was a minor his mother Kondabai should take possession of the estate as guardian and should preserve the estate till Shivnath attained majority. The will also provides that the testator's sixth wife Sakhubai had no right to mortgage or sell the suit property and only the income should be enjoyed. It will thus be observed that the will absolutely prohibits a sale or mortgage by Sakhubai. Mr. Kotwal for the defendant No. 1 contended that Sakhubai was constituted an 'executor within the meaning of Section 2(c) of the Indian Succession Act, 1925, which defines an executor as meaning a person to whom the execution of the last will of a deceased person is, by the testator's appoint-ment, confided. In the present case, tha management of the property is confided to Sakhubai. She is to apply the income during her lifetime to her maintenance and to that of Shivnath. She is asked to perform the obsequies of the testator. She is called the guardian of the property of Shivnath and is referred to as ^^O;oLFkk Bso.kkj** (manager). In my opinion Sakhubai would be 'executor' within the meaning of that word in Section 2(c) of the Indian Succession Act, 1925.
9. Section 307(1) and (2) of the Indian Succession Act reads as under:--
'307 (1) Subject to the provisions of Sub-section (2), an executor or administrator has power to dispose of the property of the deceased, vested in him undes; Section 211; either wholly or in part, in such manner as he may think fit.
(2) If the deceased was a Hindu, Muhammadan, Buddhist, Sikh or Jain or an exempted person, the general power conferred by Sub-section (1) shall be subject to the following restrictions and conditions namely:--
(i) The power of an executor to dispose of immovable property so vested in him is subject to any restriction which may be imposed in this behalf by the will appointing him unless probate has been granted to him and the Court which granted the probate permits him by an order in writing, notwithstanding the restriction, to dispose of any immovable property specified in the order in a manner permitted by the order.
(ii) An administrator may not, without the previous permission of the Court by which the letters of administration were granted
'(a) mortgage, charge or transfer by sale, gift, exchange or otherwise any immovable property for the time being vested in him under Section 211, or (b) lease any such property for a term exceeding five years. (iii) A disposal of property by an executor or administrator in contravention of clause (i) or clause (ii), as the case may be. is voidable at the instance of any other person interested in the property.'
10. Section 307(1) of the Indian Succession Act, provides that subject to the provisions of Sub-section (2) an execute? or administrator has power to dispose of property of the deceased, vested in him under Section 211, either wholly or in part In such manner as he, may think fit. Section 211 provides that-the executor is the legal representative of the deceased person for all purposes, and all the property of the deceased person vests in him as such. It would, therefore, appeal that Section 307(1) of the Indian Succession Act confers on an executor or administrator a general power to dispose of the property of the deceased subject, however, to the provisions of Sub-section (2). Sub-section (2) provides that if the deceased was a Hindu, as he was in this case, the general power to dispose of the property conferred by Sub-section (1) shall be subject to the following restrictions and conditions, namely, that the power of an executor to dispose of immovable property so vested in him is subject to any restriction which may be imposed in this behalf by the will appointing him unless probate has been granted to him and the Court which granted the probate permits him by an order in writing, notwithstanding the restriction, to dispose of any immovable property specified in the order in a manner permitted by the order. The general power of disposal over property conferred by Section 307(1) is therefore, subject to restrictions and conditions imposed in the will. In this case the will totally prohibits sale and mortgage. Section 307(2)(iii) provides that a disposal of the property by an executor in contravention of the restrictions and conditions contained in the will is voidable at the instance of any other person interested in the property. The contention of Mr, Kotwal is that as in this case the will had imposed a prohibition on disposal of the property, the prohibition amounted to a restriction within the meaning of Section 307(2) and the disposal of the property by Sakhubai to defendant No. 1 was, therefore, voidable and not void. Ho further contended that a voidable instrument must be set aside at the suit of the person affected by it and but for such setting aside a suit by him for possession would not he maintainable. I shall, however, deal with that aspect of the matter a little later.
11. The contention of Mr. Kotwal that at best the sale deed dated 16th June 1937 was voidable at the instance of Shivnath was objected to by Mr. Chitale appearing for the plaintiff on two grounds. He firstly contended that Section 307(2) talks oi restriction, and not absolute prohibition. Restriction merely confines the power of disposal within certain limits, whereas prohibition altogether forbids the disposal. He, therefore, contended that Section 307(2)(iii) of the Indian Succession Act was not applicable to the facts of the case and the sale was void. His second contention was that the power to dispose of property referred to in Sub-section (1) of Section 307 is the power contained in the will, and no power was conferred by Section 307(1) as such. This second contention of Mr. Chitale has no validity because on the face of it Sub-section (1) itself confers the general power of disposal and Sub-section (2) also talks of the general power conferred by Sub-section (1) and provides that it shall be subject to the restriction and conditions therein referred to. I. therefore, reject this contention straightway.
12. With regard to the first contention of Mr. Chitale that a prohibition is not a restriction, Mr. Kotwal has drawn my attention to two judgments of the Supreme Court interpreting Articles 13 and 19 of the Constitution of India which provide that reasonable 'restrictions' may be put by the Legislature on the fundamental rights guaranteed by the Constitution. The first judgment is in the case of Narendrakumar v. Union of India, : 2SCR375 . It has been held in that case that it is reasonable to think that the makers of the Constitution considered the word 'restriction' to be sufficiently wide to save laws inconsistent with Article 19(1) of the Constitution of India or taking away rights conferred by the article, provided this inconsistency or taking away was reasonable in the interests of the different matters mentioned in the clause. The judgment proceeds to say that there can be no doubt that the framers of the Constitution intended the word 'restriction' to include cases of prohibition also. The contention that a law prohibiting exercise of a fundamental right is in no case saved cannot therefore be accepted. It is undoubtedly correct, however, that when the restriction reaches the stage of prohibition, special care has to be taken by the Court to see that the test of reasonableness is satisfied. The other case is that of Madhya Bharat Cotton Association Ltd. v. Union of India, : AIR1954SC634 . There are in this case observations in the judgment of Bose J. to the effect that cotton being a commodity essential to the life of the community, it is reasonable to have restrictions which may in certain circumstances extend to total prohibition for a time of all normal trading in the commodity, and such prohibition would not offend Art. 19(1)(g) of the Constitution, because Sub-clause (5) validates it. It will, therefore, appear that in interpreting certain articles of the Constitution of India, the word 'restriction' has been held to cover a total prohibition. However, words in the Constitution of India and Indian Succession Act need not receive a uniform construction. I am referring to these judgments only to show that the word 'restriction' is capable of including and covering a total prohibition. Whether in section 307 of the Indian Succession Act this meaning should be given to the word 'restriction' or not has to be determined independently.
13. I am afraid, unless in Section 307(2) the word 'restriction' is so interpreted as to cover a total prohibition of disposal of property, the results will be iniquitous. The general power of disposal of property conferred by Section 307(1) is made sub-Sect to the restriction imposed by Subsection (2). If the word 'restriction' in Sub-section (2) did not cover and include total prohibition, the consequence will be that the general power of disposal over property conferred by Sub-section (1) will not be subject to or affected by total prohibition, and the executor will be free to dispose of the property in spite of the prohibition. The statutory general power of disposal conferred by Sub-section (1) will override the prohibition, the general power not having been made subject to the prohibition. Thus, while restrictions on power of disposal will prevail total prohibition of disposal will not prevail. It cannot be that the general power of disposal over property is made subject to restrictions that is bound and confined within limits, but is not made subject to a total prohibition. If this contention of Mr. Chitale were correct, then notwithstanding a total prohibition of disposal of property, the general power conferred by Section 307(1) will remain. This cannot be the intention of the Legislature. I am, therefore, of the view, and I also hold, that in Section 307(2) of the Indian Succession Act the word 'restriction' includes and covers a total prohibition. The general power of disposal of property conferred by Sub-section (1) is. therefore, subject to the prohibition on disposal imposed by the will, and a sale in contravention of such prohibition is voidable at the instance of a person interested as provided in clause (iii) of Sub-section (2) of Section 307. Mr. Chitale's contention that under Sub-section (2) a disposal of property in violation of a restriction is made voidable but a disposal of property in violation of prohibition will be totally void cannot be accepted, because neither Section 307 so provides, nor does such inference follow from it. I, therefore, hold that the sale by Sakhubai to defendant No. 1 Sonabai on 16th June 1937 was voidable within the meaning of Section 307(2)(iii) of the Indian Succession Act.
14. There has been considerable controversy on the point whether a sale which is voidable at the instance of a person interested can only be avoided by a suit or it is open to the interested person to declare that he will not be bound by it. Mr. Chitale contended that in case of a void as well as voidable transfer, all that the person interested has to do is to declare that he will not be bound by it. He invited my attention to the judgment of the Privy Council in the case of Bijoy Gopal Mukerji v. Krishna Mahishi Debi ILR (1907) Cal. 329 . That was a case of reversioner filing a suit for possession without a prayer for setting aside a transfer made by a Hindu widow. It was held that a Hindu widow is the owner of her husband's property subject to certain restrictions on alienation and subject to its devolving upon her husband's heirs upon her death. Her alienation was not absolutely void; but it was prima facie voidable at the election of the reversionary heir, who may affirm, it or treat it as a nullity without the intervention of any Court, there being nothing to set aside or cancel as a condition precedent to his right of action. It was further held that the institution of a suit for possession showed his election to treat the alienation as a nullity, and in such a suit it was, therefore unnecessary for him to ask for a declaration that the transfer was inoperative. I might here observe that this case is a good authority where a reversioner seeks to recover possession. A transfer by a Hindu widow will operate only during her life time. If the suit is instituted while the widow is living, it will not be maintainable and if a suit for possession is filed after her death, the transfer has already become inoperative and there certainly is nothing to set aside. But that case will not apply to a case such as the one I am dealing with which is not the case of a reversioner, but it is a case of a voidable transfer effected by an executor in violation of a restriction or prohibition in the will.
15. Mr. Chitale then invited my attention to a judgment of a Full Bench of this Court in the case of Narsagauda v. Chawagauda ILR 42 Bom. 638 : : AIR1918Bom188 . It was decided by the Full Bench of which Mr. Justice Shah was a member that Article 91, Schedule I of the Indian Limitation Act, 1908, did not apply to a suit for possession where the plaintiff alleged and proved that a sale deed was void because it was executed by him while he was a minor, but did not claim expressly to have it cancelled or set aside. It is not disputed by Mr. Kotwal that this judgment would be applicable to cases of void instruments. A sale deed executed by a minor is undoubtedly a void instrument. On the question of voidable instruments, Mr. Justice Shah had something to say in a later case to which I shall refer later. Mr. Chitale also invited my attention to two judgments of the Madras High Court in the cases of Unni v. Kunchi Amma ILR (1891) Mad. 26, and Ganapati Aiyar v. Sivamalai Goundan ILR (1912) Mad, 575. I consider it unnecessary to deal with these cases in detail in view of the direct judgments of our own Court on the point in controversy, to which I shall refer immediately.
16. In the case of Fakirappa Limanna v. Lumanna Mahadu Dhamnekar AIR 1920 Bom. 1 , it was held that where a Hindu mother, acting as the natural guardian of her minor son, transfers property during his minority, the minor, in order to recover possession of the property so transferred must sue to set aside the transfer, and such suit must be brought within three years of the minor attaining majority under Article 44, and if he fails to bring such suit within that time, neither, he, nor the next reversioner can dispute the alienation. In this judgment earlier Division Bench decision in the case of Laxmava v. Rachappa ILR 42 Bom. 628 : : AIR1918Bom180 and several other previous decisions of the Bombay High Court have been considered. The judgment of the Privy Council in ILR (1907) Cal. 329 has also been considered. In the judgment of Mr. Justice Macleod, it has been observed that the argument that a plaintiff need not sue to set aside a transfer to which he is not a party may well apply to a suit by a reversioner impugning a transfer by a Hindu widow, for the widow represents her husband's estate, and until her death there is no one who has a vested interest, nor is there an obligation on any one to take proceedings until the reversion falls In. After reviewing the judgment of the Privy Council and several judgments of Bombay and other High Courts, Mr. Justice Shah, who was a party to the Full Bench case in ILR 42 Bom. 638: : AIR1918Bom188 , observed that in some cases it was contended as well as held that whether a plaintiff must sue for cancellation of a document under which the defendant in possession claims, depends upon whether the onus of proving circumstances establishing its validity lies upon the plaintiff or upon the defendant. Mr. Justice Shah also considered the argument which has been advanced before me by Mr. Chitale that where a person is not a party to the Impugned instrument, nor does he claim under a person who has executed it, it is not necessary for him to have it set aside by a suit. Mr. Justice Shah held that this view was generally based upon observations made in cases relating to suits by reversioners in respect of alienations made by widows inheriting their husband's estates as such. Mr. Justice Shah was conscious of the fact that he himself had been a party to some decisions where each view had been taken in cases of reversioners. In fact in the case in hand Mr. Justice Shah was dealing with a suit of a person who was challenging a sale on his behalf effected by his mother during his minority without having got it set aside by a suit. The minor was neither a party to the sale nor did he claim under his mother. He observed as under:--
'On further consideration I am satisfied that the necessity for suing to set aside a sale does not depend so much upon the question whether the onus lies upon the plaintiff or the defendant 'in the first instance, but upon the question whether the sale is by a person wholly unauthorised or by a person who is authorised only under certain circumstances to alienate the property, or in other Words whether the sale is null and void or only voidable if the person interested seeks to void it. If the latter is the case, the persons concerned should sue to have it set aside if there is any article of the Limitation Act applicable to such a suit. In the present case Art. 44 applies, and therefore the necessity of suing to set aside the sale is established under the circumstances.'
17. In the final analysis, what the Full Bench held was that where a sale was voidable at the instance of a person interested and there is an article in the Limitation Act applicable to such a suit, he can only get it set aside by a suit. In the Indian Limitation Act, 1908 there was Article 91 for setting aside voidable sales to which no other specific article was applicable. In the Limitation Act, 1963; there is Article 59. The position in law now, therefore, is that where a sale is voidable at the instance of a person interested he can only get it set aside by a suit. This will however not apply to a reversioner challenging a sale by a limit-ed owner. A reversioner may treat such a sale as a nullity without the intervention of a Court. A person other than a reversioner must sue to set aside a void-able sale even if he is not a party to the Instrument or a person claiming under a person who has executed the instrument and even if the onus of proving circum-stances establishing the voidability of the instrument is not upon him, but on the person affirming the instrument.
18. In the present case a suit to set aside the sale deed dated 16th June 1937 would have been governed by the residuary Article 91 of Schedule I to the Indian Limitation Act, 1908. The said transfer being both voidable in terms of Section 307 of the Indian Succession Act and being governed by Article 91 of the Indian Limitation Act, 1908, it was necessary for Shivnath to have it set aside by a suit within three years of Shivnath's attaining majority, which he did on 1st June 1954. Since Shivnath has not got the sale deed set aside, I am afraid, a suit for possession by him is not maintainable,
19. The Full Bench decision In AIR 1920 Bom. 1 was referred to in the case of Gangadhar Balkrishna v. Dattatraya Baliram, : AIR1953Bom424 where it was held that an agreement entered into in contravention of Order 32, Rule 7(1) is not altogether void, but is voidable only at the option of the minor and if it is so voided, the parties would naturally be restored to the position which they occupied before the agreement was made. But if the minor does not avoid the agreement, the other parties were bound by the agreement, and it would be fully effective against them. In the above case the judgments of Bombay High Court in ILR 42 Bom. 638 : : AIR1918Bom188 and the judgment of the Privy Council in ILR (1907) Cal. 329 were also discussed and thereafter their Lordships came to the conclusion that it was necessary for the plaintiff to have sued within three years of his attaining majority to set aside the impugned compromise. In view of these two judgments of the Bombay High Court. I am of the view that in this case also, it was necessary for Shivnath to file such suit within three years of Shivnath attaining majority.
20. The next contention of Mr. Kotwal was that the defendant No. 1 had established her case of adverse possession. He contended that the sale deed in favour of Sonabai was executed on 16th June 1937 and the present suit was instituted on 28th March 1951. The defendant No. 1 was in possession of the property from 16th June 1937 to 28th March 19_51 adversely to Shivnath and the plaintiff. This argument of Mr. Kotwal, however, proceeds on the assumption that on the execution of the sale deed on 16th June 1937 the defendant No. 1 entered into possession of the suit property. But both the trial Court and the lower appellate Court have found it as a finding of fact that Sakhubai continued to be in possession of the suit property even after the sale deed of 16th June 1937. The defendant No. 1 was not in possession of the property at all and, therefore, cannot be in possession adverse to any one, This contention must, therefore, be rejected.
21. In the result, the appeal must be dismissed and the plaintiff's suit for possession must stand dismissed. In the circumstances of the case, there will be no order as to costs throughout.
22. Appeal dismissed.