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Yeshvanta BIn Bala Gaekwad Vs. Antu BIn Navaji Salunke - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtMumbai
Decided On
Case NumberLetters Patent Appeal No. 15 of 1932
Judge
Reported inAIR1934Bom351; (1934)36BOMLR671
AppellantYeshvanta BIn Bala Gaekwad
RespondentAntu BIn Navaji Salunke
DispositionAppeal dismissed
Excerpt:
.....and her daughter, who was the next reversioner, jointly passed a deed of gift of the entire estate in favour of a third person. subsequently, the widow adopted the plaintiff, who sued to set aside the alienation :-; held, dismissing the suit, that the transaction was valid as it could be treated as a surrender by the widow plus a gift by the next reversioner:; nobokishore sarma roy v. hari nath sarma roy (1884) i.l.r. 10 cal. 1102 f.b. and rangasami gounden v. nachiappa, gounden (1918) l.r. 46 i.a. 72 : s.c., followed.; tukaram v. yesu (1930) 32 bom. l.r. 1463, dissented from. - section 31(4) (since repealed) :[tarun chatterjee & h.l.dattu, jj] jurisdiction of high court - respondent, a government company, chartered appellants vessel to carry rock phosphate from togo to west coast..........with the consent of the reversioner may be split up into two transactions one of surrender of the widow's estate in favour of the reversioner and a contemporaneous alienation by the reversioner in favour of the stranger. the inclusion of the alienation of the whole estate in the second proposition at p. 81 in rangasami gounden v. nachiappa gounden is opposed to any such assumption. 15. as to this i can only say with respect non constat. there is nothing in the general propositions laid down at p. 84 which would prevent a transaction like this being treated as a surrender by the widow plus a gift by the reversioner, and the learned judge does not mention the passage at p. 80 of the judgment of their lordships in which nobokishore's case has been considered. i can only construe this.....
Judgment:

Broomfield, J.

1. This is an appeal under the Letters Patent from a decision of Mr. Justice Baker which involves a point of Hindu law of some importance. The property in suit belonged to one Bala who died leaving a widow Jija and two daughters, Chandra and Ganga, of whom Chandra was married to defendant No. 1. She died in 1915. In 1920 Jija and Ganga, the next reversioner, joined in passing a deed of gift of the property which was the entire estate of Bala in favour of defendant No. 1. In 1926 there was a dispute between defendant No. 1 and Jija and the latter adopted the plaintiff, who subsequently sued to set aside the alienation to defendant No. 1. The suit was dismissed by the trial Court which took the view that the transaction was a valid surrender. In appeal the Assistant Judge reversed this decree. He relied on the case of Rangasami Gounden v. Nachiappa Gounden , in which case at p. 84 their Lordships of the Privy Council laid down the following principles as the result of the consideration of the decided cases:

(1) An alienation by a widow of her deceased husband's estate held by her may be validated if it can be shown to be a surrender of her whole interest in the whole estate in favour of the nearest reversioner or reversioners at the time of the alienation. In such circumstances the question of necessity does not fall to be considered. But the surrender must be a bona fide surrender, not a device to divide the estate with the reversioner. (2) When the alienation of the whole or part of the estate is to be supported on the ground of necessity, then if such necessity is not proved aliunde and the alienee does not prove inquiry on his part and honest belief in the necessity, the consent of such reversioners as might fairly be expected to be interested to dispute the transaction will be held to afford a presumptive proof which, if not rebutted by contrary proof, will validate the transaction as a right and proper one.

2. The learned Assistant Judge held that this was not a valid surrender, because it was not in favour of the next reversioner, and also that it was not valid as an alienation because it was gratuitous. Now, I think, it must be conceded that this view is correct, if the transaction is to be regarded as merely one between the widow and defendant No. 1 who is the respondent in this appeal. But Mr. Justice Baker held that the gift amounted in effect to two transactions, a surrender by the widow to the next reversioner Ganga, and a gift by Ganga to defendant No. 1. For this proposition he relied on a passage in the 6th edition of Sir Dinshah Mulla's Hindu Law at p. 187:

A gift of the entire estate by a widow to a third party with the consent of the whole body of the next reversioners, may be supported as a surrender.. Such a gift amounts in effect to two transactions, namely, (1) a surrender in favour of the next reversioners which would vest the estate in them, and (2) a gift by them of the estate to a third party.

3. The authority cited was Nobokishore Sarma Roy v. Hart Nath Sarma Roy I.L.R. (1884) Cal. 1102 and Rangasami Gounden v. Nachiappa Gounden . In the latest edition of Sir Dinshah Mulla's book the passage in question, which is at p. 196, has been modified in view of the decision of Mr. Justice Patkar in Tukaram v. Yesu (1930) 32 Bom. L.R. 1463, a case which was not cited to Mr. Justice Baker and to which I shall refer in due course. If this pro-' position is correct, that is to say, if the transaction can be resolved into its elements in this way, there can be no doubt that the alienation is valid. For, as Mr. Justice Baker says, the transaction as between the widow and Ganga fulfils the legal requirements of a surrender and as between Ganga and defendant No. 1 it is a valid alienation, the daughter being in Bombay a full owner and there being no restriction on her power to alienate gratuitously or otherwise.

4. What we have to decide is whether this view of the legal effect of the transaction is the right one. The matter cannot be said to be altogether free from doubt. I may mention that in a very recent Privy Council case, Narayanswami Ayyar v. Rama Ayyar , the point was referred to but was not decided. But, as the law stands at present, I see no reason to differ from the view taken by Mr. Justice Baker.

5. Nobokishore Sarma Roy v. Hart Nath Sarma Roy was a full bench reference and the question referred was; whether, according to the law current in Bengal, a transfer or conveyance by a widow upon the ostensible ground of legal necessity, such transfer or conveyance being assented to by the person who at the time is the next reversioner, will conclude another person not a party thereto who is the actual reversioner upon the death of the widow, from asserting his title to the property. It was, therefore, a question of alienation, but, in discussing it, the law of surrender was considered. The passages material for our purpose are at p. 1108 in the judgment of Chief Justice Garth. After stating the law as to surrender or relinquishment, the learned Judge said :

But, if it is once established, as a matter of law, that a widow may relinquish her estate in favour of her husband's heir for the time being, it seems impossible to prevent any alienation, which the widow and the next heir may thus agree to make. And it seems equally impossible to deny, that for a long series of years this Court has treated and considered such alienation as lawful.

6. The learned Judge then cited authorities and proceeded (p. 1109):

Besides these reported cases, which represent a long current of authority in this Court, there are several unreported cases to the same effect; and the doubt which has arisen in later days is not so much as to the correctness of those authorities, as upon the question whether a conveyance by the widow, with the consent only of the next reversionary heir, is equivalent to a relinquishment by the widow in favour of such an heir, or a conveyance by them both to some third person.

To allow the widow to relinquish her estate to the next male heir of her husband, is one thing; but to allow her to sell the whole inheritance, without any legal necessity, merely with the consent of the next male heir, so as to bar the rights of other heirs of her husband in the future, is another thing.

7. The learned Judge then said that if the question had been res integra he would have felt great doubt as to whether the mere consent of the next heir to an absolute transfer by the widow ought to give such effect to that transfer as to make it valid as against the person who may be the heir of the husband at the time of the widow's death, but he held that, in view of the long course of authority in Calcutta, the Court could not and ought not to decide the contrary. The other Judges of the full bench concurred, most of them no doubt on the ground of stare decisis, but Mr. Justice Mitter's judgment at p. 1110 is important, since he supported the finding not only on the course of decisions but also on the ground of logic. He said:

But, if the widow is competent to relinquish her estate to the next male heir of her husband, it follows, as a logical consequence, that she can alienate it merely with his consent without any legal necessity. I entirely concur in the reasons given in the case of Mohunt Kissen Geer v. Busgeet Roy (1870) 14 W.R. 379 to show that the one proposition follows as a logical consequence of the other.

8. In the case cited by Mr. Justice Mitter it was held that when several persons join in a conveyance and convey the whole and entire property absolutely, they must be taken to have exercised every power which they possess, and to have parted with their whole interest whether in possession or expectation, and therefore that a Hindu widow in possession and the apparent next taker by joining in one conveyance can make a complete title.

9. Nobokishore's case was considered in Debi Prosad Chowdhury v. Golap Bhagat I.L.R.(1913) Cal. 721 ., and Jenkins C.J. said (p. 751) :

Starting then from the established position that the next heir's succession can be accelerated by relinquishment, it was determined in Nobokishore's case as a logical consequence that the widow, with the next heir's consent, could alienate without any necessity.

The learned Judge proceeded to say (p. 751):

But if logic is to have any place, the alienation so sanctioned must be of the entire estate.

10. In Rangasami's case, their Lordships of the Privy Council made the following observations (p. 80 ):

The surrender, once exercised in favour of the nearest reversioner or reversioners, the estate became his or theirs, and it was an obvious extension of the doctrine to hold that inasmuch as he or they were in title to convey to a third party, it came to the same thing if the conveyance was made by the widow with his or their consent. This was decided to be possible by Nobokishore's Case. The judgment went upon the principle of surrender, and it might do so for the surrender there was of the whole estate;.

11. Their Lordships also pointed out that as the alienation in Nobokishore's case was ostensibly on the ground of necessity it might also have been supported on that ground. But in doing this they do not appear to have suggested any qualification of the preceding observations.

12. It appears, therefore, that there is a considerable amount of authority in favour of the view which has been taken by Mr. Justice Baker. On the other side, as far as I can see, there is really only the decision of Mr. Justice Patkar in Tukaram v. Yesu. We have been referred to three other cases: Varjivan Rangji v. Ghelji Gokaldas I.L.R.(1881) 5 Bom. 563, Vinayak v. Govind I.L.R.(1900). 25 Bom. 129 : S.C. Bom. L.R. 820, which is relied on by Mr. Justice Patkar in the case to which I am now going to refer, and Bakhtawar v. Bhagwana I.L.R. (1910) All. 176. But these were all cases of alienations by a widow apparently of a portion only of her estate, so that no question of surrender arose or could arise.

13. In Tukaram v. Yesu the facts were these. The property in dispute belonged to one Vithu, who died leaving a widow Paru and a daughter. Yesu. Yesu was married to Maruti who was Vithu's sister's son. In 1915 Paru made a gift of the property, which was the whole of Vithu's estate, to Maruti. This was done with the consent of Yesu. Subsequently Paru adopted Tukaram, the plaintiff, who brought a suit to recover possession of the property. Mr. Justice Patkar held that the gift was not binding on the plaintiff. This is, therefore, a ruling contrary to that of Mr. Justice Baker on almost precisely similar facts, the only substantial difference being that the gift was made by the widow only with the consent of the next reversioner in that case, whereas in the present case both the widow and the next reversioner joined in making the gift.

14. Now the opinion of Mr. Justice Patkar on a point of Hindu law, supported as it is by an exhaustive discussion of the authorities, is entitled to great weight. Nevertheless, with the utmost deference to that learned Judge, I cannot accept his reasoning as convincing. Throughout the judgment he treats the transaction as one simply between the widow and the stranger alienee. Now on that basis of course the alienation could not be supported. But if it is to be regarded as a composite transaction, surrender by the widow plus alienation by the person who became full owner by reason of the surrender, then equally of course the alienation would be good. This point of view was placed before the learned Judge and he dismissed it rather summarily at p. 1471. After referring to Vinayak v. Govind, which has no bearing on this particular question, as I have pointed out, he says :

Their Lordships of the Privy Council cannot be assumed to have decided that an alienation of the estate in favour of a stranger with the consent of the reversioner may be split up into two transactions one of surrender of the widow's estate in favour of the reversioner and a contemporaneous alienation by the reversioner in favour of the stranger. The inclusion of the alienation of the whole estate in the second proposition at p. 81 in Rangasami Gounden v. Nachiappa Gounden is opposed to any such assumption.

15. As to this I can only say with respect non constat. There is nothing in the general propositions laid down at p. 84 which would prevent a transaction like this being treated as a surrender by the widow plus a gift by the reversioner, and the learned Judge does not mention the passage at p. 80 of the judgment of their Lordships in which Nobokishore's case has been considered. I can only construe this passage, as Mr. Justice Baker did, as amounting to approval of the principle which Sir Dinshah Mulla has deduced from Nobokishore's case. For these reasons, I am of opinion that the judgment of Mr. Justice Baker should be confirmed and the appeal dismissed with costs.

N.J. Wadia, J.

16. I agree. It is not disputed that the gift deed passed by Jija and Ganga in favour of defendant No. 1 was of the whole estate which Jija had inherited from her husband. Mr. Justice Baker has treated the transaction as a composite one involving a surrender of the whole of her husband's estate by Jija to the next reversioner Ganga, and a gift by Ganga to defendant No. 1. The view which he has taken, that such a gift must be held to be a valid one on the authority of the decisions in the cases of Nobokishore Sarma Roy v. Hart Nath Sarma Roy I.L.R. (1884) Cal. 1102. and Rangasami Gounden v. Nachiappa Gounden , appears to me to be supported by a large number of previous decisions. Although Nobokishore's case dealt with the alienation by a widow of part of the estate which she had inherited from her husband, the full bench of the Calcutta High Court to which the case was referred considered at great length the whole question of the nature of a Hindu widow's estate and dealt with the question of the consequences of a surrender of the whole estate by the widow. It was there held that a widow could relinquish the whole of her estate in favour of the next reversioner. Chief Justice Garth said (p. 1108 ) :

But, if it is once established, as a matter of law, that a widow may relinquish her estate in favour of her husband's heir for the time being, it seems impossible to prevent any alienation, which the widow and the next heir may thus agree to make. And it seems equally impossible to deny, that for a long series of years this Court has treated and considered such alienation as lawful.

17. Although this second proposition was accepted with considerable hesitation, it was admitted that there was a long course of authority in favour of it.

18. This decision was in 1884. Since then there has been a series of decisions in which both these principles have been accepted.

19. In Hem Chunder Sanyal v. Sarnamoyi Debi I.L.R.(1894) Cal. 354 the two propositions laid down in Nobokishore's case were again affirmed. In that case S, one of the two widows of one M, came to an arrangement with R, the son of the other widow, under which two deeds were executed, by the first of which she relinquished to R her life interest in the properties she inherited as the widow of M, and by the other R conveyed to S an absolute right in half the properties so relinquished, retaining the other half himself. It was held in that case, following Nobokishore's case, that the half of the property, which had been given by the widow to R, had been absolutely alienated in his favour. With regard to the other half, which the widow had received back from R, it was held that the two deeds passed by the widow and R were inoperative in affecting the interest of the reversioner, but this was on the ground that the widow could not, with the consent of the presumptive reversioners, convert her life interest in any portion of her husband's estate which she retains for herself into an absolute interest. Nobokishore's case was considered at some length and their Lordships said (p. 361) :

Touching the Hindu widow's power of alienation otherwise than for legal necessity) two propositions appear to us to be well established.

First, the widow may relinquish the whole of her interest in her husband's estate, and then the next reversioner will acquire the estate absolutely. The reason of this is that it is the intervention of the widow that postpones the succession of the reversioner, and if she walks out of the scene, she thereby anticipates for the reversioner the time of his succession. This view, which is quite in accordance with reason, is also amply supported by the authority of decided cases

Second, the widow may convey to the next reversioner, or to a third party with the consent of the next reversioner, the whole or any portion of the estate, and the transferee will acquire an absolute interest.

20. It was admitted that this second proposition, though amply supported by the authority of decided cases, was not reconcilable in its broad generality with the strict principle of Hindu law, as laid down by the original authorities, and it was accepted that the real ground upon which the decision of the full bench in Nobokishore's case in favour of the second proposition was based was that it would be wrong to upset the long course of decisions such as there was on the point, and thereby to disturb numerous titles that have been acquired on the strength of those decisions. This case was in 1894.

21. Nobokishore's case was again considered in 1913 in Debt Prosad Chowdhury v. Golap Bhagat I.L.R.(1913) Cal. 721. That again was a case of alienation by a Hindu widow with the consent of the next reversioner for the time being of a portion of the estate of her deceased husband. After a lengthy discussion of the authorities on the subject Jenkins C.J. said (p. 752):

The result, then, of the authorities binding on us appears to me to be this. To uphold an alienation by a widow of her deceased husband's estate where she is his heir it should be shown-(i) that there was legal necessity, or (ii) that the alienee, after reasonable enquiry as to the necessity, acted honestly in the belief that it existed, or (iii) that there was such consent of the next heirs as would raise a presumption, either of the existence of necessity, or of reasonable inquiry and honest belief as to its existence, or (iv) that there was a consent of the next heirs to an alienation capable of being supported by reference to the theory of the relinquishment of the widow's entire interest and consequent acceleration of the interest of the consenting heirs. Where any one of the first three positions is established, the alienation may be of the whole or any part of the husband's estate; but where the fourth alone is proved, then the alienation must be of the whole.

22. The fourth proposition covers, in my opinion, the case with which we are dealing, viz., the relinquishment of the widow's entire estate with the consent of the next reversioner.

23. The question of the power of a Hindu widow to deal with the property of her husband to which she has succeeded as a life estate on his death came up before the Privy Council in Rangasami's case, and their Lordships, after discussing various relevant authorities on the subject, including Nobokishore's case, with reference to the widow's power of surrender, made the remarks which have been quoted in Mr. Justice Baker's judgment. It seems to me clear from that passage that the view then taken by their Lordships was that the obvious extension of the doctrine of surrender, to which they refer, and which according to them was decided to be possible by Nobokishore's case, was a justifiable extension. It seems to me that this long course of decisions, and especially the decision of the Privy Council in Rangasami's case, fully support the view taken by Mr. Justice Baker. I confess I am unable to follow Mr. Justice Patkar's reasoning in Tukaram v. Yesu (1930) 32 Bom. L.R. 1463, when he says that their Lordships of the Privy Council in Rangasami's case cannot be assumed to have decided that an alienation of the estate in favour of a stranger with the consent of the reversioner may be split up into two transactions, one of surrender of the widow's estate in favour of the reversioner and a contemporaneous alienation by the reversioner in favour of the stranger. The only ground which he gives for this view is that the inclusion of the alienation of the whole estate in the second proposition at p. 84 in Rangasami's case is opposed to any such assumption. The second proposition, however, deals with the case of alienation of the whole or part of the widow's estate when it is for consideration and to be supported on the ground of necessity. The case of surrender to the next reversioner would not come under the second proposition at all. I agree, therefore, that the decision of Mr. Justice Baker should be confirmed and the appeal dismissed with costs.


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