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Someshvar Jethabhai Dave Vs. Someshvar Govindram Joshi - Court Judgment

LegalCrystal Citation
SubjectProperty;Family
CourtMumbai
Decided On
Case NumberSecond Appeal No. 494 of 1920
Judge
Reported inAIR1923Bom16; (1922)24BOMLR493; 67Ind.Cas.658
AppellantSomeshvar Jethabhai Dave
RespondentSomeshvar Govindram Joshi
DispositionAppeal dismissed
Excerpt:
.....will direct payment to the alienee to the extent of the benefit received by the estate, it follows, therefore, that if the consideration money for the sale is found intact at the death of the widow, the estate has benefited to that extent: hence, if the reversioner after the widow's death wishes to have the sale by her set aside, he can only succeed if he restores the money. it will be different if it cannot be proved that the purchase money is still intact in the estate. - - both the appeals fail and must be dismissed with costs......is bound to hand back the property, while they can retain the purchase price as belonging to the widow's estate. there does not seem to be any direct authority on this question, although, we think, the principles of equity provide the only answer the court should give. if it has been proved that a sale by a widow having a limited interest, has benefited the estate by the payment of debts which were binding on it, although the amount paid may not amount to the whole of the consideration money received for the property sold, the court, when it sets aside the sale, will direct payment to the alienee to the extent of the benefit received by the estate, and it must follow that if the consideration money for the sale is found in tact at the death of the widow, the estate has benefited to.....
Judgment:

Norman Macleod, C.J.

1. There is only one question which arises in these two second appeals with regard to the direction of the Court below that defendant No. 4 should receive back the total sale price of Rs. 799 which he paid for the land which Sarasvatibai sold to him without any legal necessity, as has now been proved. It has been found as a fact that the whole of this amount of Rs. 799 came to the hands of the executors of Sarasvatibai after her death.

2. The appellants contend that as the sale must be set aside as having been made by the widow without legal necessity, the defendant is bound to hand back the property, while they can retain the purchase price as belonging to the widow's estate. There does not seem to be any direct authority on this question, although, we think, the principles of equity provide the only answer the Court should give. If it has been proved that a sale by a widow having a limited interest, has benefited the estate by the payment of debts which were binding on it, although the amount paid may not amount to the whole of the consideration money received for the property sold, the Court, when it sets aside the sale, will direct payment to the alienee to the extent of the benefit received by the estate, and it must follow that if the consideration money for the sale is found in tact at the death of the widow, the estate has benefited to that extent, so that if the reversioner after the widow's death wishes to have the sale by her set aside, be can only succeed if he restores the money. It would be different if it could not be proved that the purchase money was still intact in the estate. But in this case we are bound by the finding of fact by both the Courts below, that the purchase money came to the hands of the executors. Therefore, it was only right that the fourth defendant, having been directed to hand back the property which he purchased, should be entitled to the price he paid for it. Both the appeals fail and must be dismissed with costs.


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