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Ranchhod Ramnarayan Vs. Manubai and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtMumbai High Court
Decided On
Case NumberSecond Appeal No. 434 of 1950
Judge
Reported inAIR1954Bom153; (1953)55BOMLR890; ILR1954Bom194
ActsTransfer of Property Act, 1882 - Sections 53A; Hindu Law; Code of Civil Procedure (CPC), 1908 - Sections 11 and 73; Indian Limitation Act - Sections 19, 21 and 21(3); Limitation (Amendment) Act, 1927; Specific Relief Act - Sections 27 and 27(2); Indian Contract Act - Sections 11
AppellantRanchhod Ramnarayan
RespondentManubai and ors.
Appellant AdvocateM.W. Pradhan, Adv. for ;R.B. Kotwal, Adv.
Respondent AdvocateV.S. Desai, Adv.
Excerpt:
- - 1. this appeal raises a short and interesting question under section 53a, t. in other words, all the material ingredients of section 53a are satisfied, and the dispute between the parties is whether even so the defendant is entitled to resist the claim of the purchaser from the reversioners on the ground that the reversioners were persons claiming under the transferor who was the widow chhababai and as such they cannot claim any right in respect of the property of which the transferee has taken possession under the contract of sale. deals with the principle of 'res judicata',and one of the conditions which has to be satisfied before the principle of 'res judicata' can be invoked is that the suit or issue in question should have been directly and substantially in issue between the.....gajendragadkar, j.1. this appeal raises a short and interesting question under section 53a, t. p. act. the question is whether a reversioner can be said to be a person claiming under the widow after whose death he succeeds by reversion. this question has been answered differently by the courts below. the learned trial judge held that the reversioner could not be said to be a person claiming under the widow whereas the lower appellate court has taken a contrary view.2. the facts giving rise to this litigation are very few and there is no dispute about them. the property in suit is a house situated in ka-soda. this house originally belonged to bhila supdu. bhila died in 1940 leaving behind him his widow chhababai and two sisters banabai and manubai. his widow chhababai entered into a.....
Judgment:

Gajendragadkar, J.

1. This appeal raises a short and interesting question under Section 53A, T. P. Act. The question is whether a reversioner can be said to be a person claiming under the widow after whose death he succeeds by reversion. This question has been answered differently by the Courts below. The learned trial Judge held that the reversioner could not be said to be a person claiming under the widow whereas the lower appellate Court has taken a contrary view.

2. The facts giving rise to this litigation are very few and there is no dispute about them. The property in suit is a house situated in Ka-soda. This house originally belonged to Bhila Supdu. Bhila died in 1940 leaving behind him his widow Chhababai and two sisters Banabai and Manubai. His widow Chhababai entered into a contract of sale in regard to this house for Rs. 500 on 5-11-1944. The contract was reduced to writing, an earnest of Rs. 200 was received by Chhababai and the intending purchaser entered into possession of the property. This intending purchaser is the defendant in the present suit.

A few months after she entered into this contract, Chhababai died. On her death, Banabai and Manubai, the two surviving sisters of Bhila, sold the property to the present plaintiff for Rs. 500 on 12-2-1945. The plaintiff, therefore, brought the present suit to recover possession of this property. His claim was resisted by the defendant who is in possession of the property principally under Section 53A, T. P. Act, and as I have already mentioned, his plea was rejected in the trial Court whereas it has been upheld in the lower appellate Court.

3. It has been found by the lower appellate Court that the contract of sale was entered into by Chhababai for a legal necessity. It is found that at the time when this contract was made, Chhababai had to pay the debts of her deceased husband and the only conceivable manner in which this debt could be repaid was to sell the house which was the only property in her hands and raise money by such sale. Therefore, the finding is that the contract of sale was for legal necessity. It is also found that the intending purchaser entered into possession of the property in pursuance of the contract of sale and that he is ready and willing to perform his part of the contract.

In other words, all the material ingredients of Section 53A are satisfied, and the dispute between the parties is whether even so the defendant is entitled to resist the claim of the purchaser from the reversioners on the ground that the reversioners were persons claiming under the transferor who was the widow Chhababai and as such they cannot claim any right in respect of the property of which the transferee has taken possession under the contract of sale. That is how the questipn which falls to be considered in the present appeal is whether the reversioners are persons claiming under the widow.

4. Mr. Pradhan contends that a Hindu widow is not the absolute owner of the property which she inherits after the death of her husband and she is not a fresh stock of descent in respect of this estate. On her death, inheritance goes to the next heir of the last male holder and the estate passes to the reversioner not because the reversioner is the heir of the widow, but because he is the heir of the last male holder. The words used in Section 53A are, says Mr. Pradhan, quite clear, and if the words 'person claiming under the transferor' are literally construed, they must mean that the reversioner is not a person claiming under the widow. Mr. Pradhan contends that equitable considerations should have no place in construing these words which are plain and unambiguous.

In support of his contention, Mr. Pradhan nas invited our attention to similar provisions in two' other statutes. Section 11, Civil P. C. deals with the principle of 'res judicata', and one of the conditions which has to be satisfied before the principle of 'res judicata' can be invoked is that the suit or issue in question should have been directly and substantially in issue between the 'same parties or between the parties under whom they or any o them claim'. Mr. Pradhan contends that it is well settled that if a decree is passed against a widow, it would not operate as 'res judicata' against the reversioners strictly within the meaning of Section 11 itself.

It has been held in -- 'Risal Singh v. Balwant Singh', AIR 1918 PC 87 (A), that having regard to the nature of estate which devolves upon a reversioner after the death of a Hindu widow, it would be difficult to hold that the reversioner claims under the widow and strictly speaking the rule of 'res judicata' as enacted in Section 11 would not be applicable to him. Even so, the Privy Council held that the general principles of 'res judicata' would be applicable and the decree would bind the reversioner though it was passed against the Hindu widow because a Hindu widow represents the estate in her hands, and if an issue has been decided between her and strangers in respect of the estate which she holds as a limited owner, such a decision would bind the reversioners provided the litigation in which the decision was made was fairly and honestly conducted by the widow.

The argument is that, though the principle of 'res judicata' has been held applicable even as between the Hindu widow and the reversioners that take the estate after her death on general grounds, it has been clearly decided that the case of the reversioners does not in terms fall within the rule mentioned in Section 11 on its literal construction.

Mr. Pradhan has also pressed into service the provisions of the Indian Limitation Act in regard to acknowledgments. Section 19 which deals with the effect of acknowledgment made in writing refers to an acknowledgment of liability made in writing by a party against whom such property or right is claimed or by some person through whom he derives his title or liability. There can be no doubt that a reversioner cannot be said to be a person claiming through the widow and it was, therefore, found difficult to hold that an acknowledgment made by the widow would bind the reversioners. That is why Section 21, Limitation Act was suitably amended in 1927 and it now provides expressly in Sub-section (3) that an acknowledgment made by a duly authorised agent of any widow or other limited owner of property would be binding against the reversioners. In other words, but for this specific provision it would have been impossible to hold the reversioner bound by any acknowledgment which the Hindu widow may have made.

In support of this contention, Mr. Pradhan has relied upon a decision of the Privy Council reported in -- 'Soni Ram v. Kanhaiya Lal', 35 All 227 (B). Therefore, according to Mr. Pradhan, the lower appellate Court was wrong in holding that the reversioner was bound by the contract of sale made by the Hindu widow. Thus presented, the argument is very attractive in its simplicity and its directness. It is based upon the literal construction of the words used and undoubtedly it cannot be said to be devoid of any force.

5. However, before we accept this literal construction of the words, we would inevitably have to consider the nature and characteristics of the widow's estate as it is known under Hinu law. The question as to whether the reversioner can be said to claim under the Hindu widow or not obviously depends upon the provisions of Hindu law in regard to the widow's estate. It is a patent truism to say that the Hindu widow is not the absolute owner of the property to which she succeeds. She cannot dispose of the property in any manner she likes, and as I have already mentioned she never becomes a fresh stock of descent in respect of this property.

This, however, is only an imperfect and limited description of her rights. She is by no means a life-tenant. She is an owner with some restrictions, but as such owner she represents the estate entirely. She can sue and be sued in respect of this property, and if she conducts the litigation fairly and bona fide, any decree that may be passed in respect of the estate in her hands as between her and a stranger would bind the estate and cannot be challenged by the reversioners who may ultimately succeed to it after the widow's death. Indeed it is competent to her to enter into a reasonable and bona fide compromise in respect of claims made against the estate in her hands.

The passage in -- 'Janaki Ammal v. Naraya-nasami Aiyer', AIR 1916 PC 117 (C) in which their Lordships of the Privy Council described this position of the Hindu widow has become a classic on this subject. Their Lordships observed that the widow's right is of the nature of a fight of property; her position is that of owner. Her powers in that character are, however, limited, but so long as she is alive, no one has any vested interest in the succession.

6. The main limitation upon her power arises from the fact that under the Hindu law she can dispose of the property in her hands only for a legal necessity. If she disposes of her estate for a legal necessity, the transfer is valid and is binding against the reversioners. If she disposes of part of her estate for a legal necessity, succession will open only in regard to the remainder of the estate which has not been disposed of by her. In other words, when succession falls open after her death, only such estate devolves by inheritance on the reversioner which has not been validly alienated by the Hindu widow.

In this sense, the reversioner succeeds to the estate after the widow and can loosely be described as her successor-in-title. The quantum of the estate which would thus devolve upon the reversioner would always depend upon the valid alienations that the widow may have made during her life-time. In other words, there can be no doubt that if the widow had actually sold the properties during her life-time instead of merely contracting to sell them as she did in the present case, the sale would have bound the reversioners and the purchaser would have obtained a perfectly valid and indefeasible title to the property. It is in the right of these principles of Hindu law that we must consider the question as to whether in a case like the present one where the contract of sale has been made by the widow for a legal necessity, the reversioner can claim to ignore it.

7. In answering this point, it would be pertinent to remember that Section 53A itself is based upon considerations of equity. The development of the law of part performance is well-known and as the Privy Council have observed in -- 'Pir Baksh v. Mahomed Tahar' , the Legislature intervened by Act 20 of 1929 and 'introduced Section 53A in the Transfer of Property Act with the object of making a partial importation into India of the English equitable doctrine of part performance.' It is unnecessary to consider the distinction between the doctrine of part performance as it is enacted in Section 53A and as it is enforced under English law. It is enough to remember that this doctrine is based upon considerations of equity. If that be so, it would be necessary so to construe the words used in Section 53A as not to defeat the object of the section itself.

If the words used are unambiguous and clear and if they yield only one sense and no other, it would not be open to the Court to put upon those words an unnatural construction solely with a view to further the object with which the section has been enacted. On the other hand, if the words used are capable of both constructions, we would be justified in adopting that construction of these words which would further the object of the section.

There can be no doubt that, if the literal construction for which Mr. Pradhan contends is accepted, a contract of sale validly made by a Hindu widow would be defeated at the hands of the reversioner and that clearly is opposed to considerations of equity. Besides, it is inconsistent with the spirit of Hindu law because if the Hindu widow had gone one step further and had sold the property for a legal necessity, the sale would have bound the reversioner. Therefore, in our opinion, it would be more reasonable to put upon the words 'person claiming under the transferor' a somewhat liberal construction. Though the reversioner does not claim through the widow as such, he may be said to claim under her in the sense that he is the successor-in-title of the estate after the widow's death and the extent of the estate which would devolve upon him always depends upon the exercise by the widow of her undoubted right to dispose of the estate for a legal necessity.

8. Incidentally, Section 53A seems to lay emphasis upon the binding character of the contract against the estate more than against the person who has the estate in his hands. The prohibition is against any right in respect of the property of which the transferee has taken or continued in possession other than a right expressly provided by the terms of the contract. Section 53A in substance makes the contract of sale binding upon the transferor and persons claiming under him and it precludes any right asserted in respect of the property agreed to be sold contrary to the terms of the agreement.

In our opinion, on the facts found by both the Courts below, the agreement to sell the property was perfectly valid because it is justified by legal necessity. On these facts, we would prefer to hold that the reversioner who succeeds to the estate claims the estate under the widow inasmuch as a valid contract for sale of the property made by her for a legal necessity binds her. The position of the Hindu widow 'quae' the reversioner may perhaps be compared to that of the executor or trustee on the one hand and the legatee under a will or the beneficiary under a trust. Analogy may perhaps be drawn between the case of a manager contracting to sell the property of the family and the members of the family who are bound by such a contract if it is properly made by the manager within his authority. But the nearest analogy is afforded by ill. (2) to Section 27, Specific Relief Act.

This illustration deals with two joint tenants of land, A and E. A contracts to sell his moiety to C and dies. The illustration says that C may enforce specific performance of the contract against B. If A had put C in joint possession of the property along with B under the contract of sale, he would have been able to defend his possession against a claim made by B on the ground that B claimed under A so far as A's share was concerned. The right which B obtains on the death of A arises by survivorship, and in a technical sense it may perhaps be difficult to say that it is a claim made through the deceased joint tenant; and yet if a literal construction of Section 53A is adopted, it would be difficult for C to protect his possession against the claim made by B. Whatever may be the position under Section 53A, it is quite clear that under Section 27 of the Specific Relief Act, C would be entitled to claim specific performance of the contract even after the death of A.

Similarly, whore a manager enters into a contract for sale of immoveable property belonging to the family for a legal, necessity, specific performance of the said contract can be obtained by the purchaser against all the coparceners of the family. If that be so, if the manager had led into possession the intending purchaser under the contract of sale, he would be entitled to protect his possession on the ground of part performance provided of course all the other conditions of Section 53A are satisfied. This would be so even though the other coparceners cannot be said to claim under the manager.

Looking at this question from the point of substance, even the principle of 'res judicata' on which Mr. Pradhan has relied shows that though technically the case of the reversioner does not fall within the letter of Section 11, he is held barred by 'res judicata' on the ground that the widow represents the estate. In other words, in effect the reversioner is no better than a person claiming under the widow provided of course that the widow acted fairly and bona fide in her conduct of the litigation in question.

9. In this connection, Mr. Desai has relied upon a recent decision of the Privy Council in -- 'Subrahmanyam v. Subba Rao' , where their Lordships have held that a minor whose property has been agreed to be sold by his mother as guardian could in certain cases be treated as a transferor himself. There was a contract of sale of immoveable property made by the minor's mother acting as his guardian and the question was whether the intending transferee was entitled to rely upon the provisions of Section 53A in supporting his possession against the minor. On behalf of the minor it was urged that the minor could not be a transferor because he was incompetent to contract under Section 11, Indian Contract Act.

The Privy Council had undoubtedly to accept this position, but they went on to consider the nature of the contract of sale and found that the contract was binding upon the minor. Having found that the contract of sale made by his guardian was binding upon the minor, their Lordships came to the conclusion that the minor could properly be treated as himself being the transferor in this case and so must be precluded from setting up any right in respect of the property contrary to the terms of the contract made by his mother. In other words, in construing the word 'transferor' the Privy Council considered certain extrinsic facts. They first decided the question as to whether the contract was binding on the minor. If they had found that the contract was not binding on the minor, they would certainly have held that the minor was not a transferor within the meaning of Section 53A. Having found that the contract was binding on the minor, however, they held that the minor can be safely deemed to be a transferor himself.

Mr. Desai says that similar extrinsic facts should be taken into account for deciding the question as to whether the reversioner in a given case claims under the Hindu widow or not. Mr. Desai concedes that if the contract of sale made by the Hindu widow is not for a legal necessity, it would not be binding, against the reversioner and the reversioner cannot be said to claim under the widow in such a case. On the other hand, if the contract of sale is made by a Hindu widow for a legal necessity, it would be as binding against the reversioner as the sale would have been if it had been completed by the widow during her life-time; and Mr. Desai's argument is that applying by analogy the test which the Privy Council adopted in -- 'Subrahmanyam's case (E)', we should hold that in cases where-a contract of sale of immoveable property is made by a Hindu widow for a legal necessity, the reversioner who succeeds to the estate after the widow's death claims that estate under her and is, therefore, precluded in setting up a right contrary to the terms of the contract made by the Hindu widow herself.

We are disposed to think that it would be legitimate to adopt such a test on the authority of the Privy Council decision in 'Kakulam's'' case and we propose to decide this question by adopting this test. As I have already mentioned, the adoption of this test inevitably leads to the conclusion that the reversioner is bound by the contract of sale and must be taken to be a person claiming under the widow-on the facts proved in this case. We are free to confess that we do realise that it is somewhat unusual to put upon the words used in a section different constructions according as certain material facts are proved or not; but such a course seems to be inevitable because the construction of the words depends upon the somewhat unusual position of the Hindu law in regard to the widow's estate, and we feel that the construction which we propose to adopt has the merit of giving effect to the principles of Hindu law and of furthering equitable object of Section 53A itself.

10.It now remains to consider two decisions where this question has been considered. The Calcutta High Court have adopted the construction for which Mr. Pradhan contends in -- 'Bhupal Chandra v. Jagad Bhusan' : AIR1943Cal344 . They have held that the daughter who succeeds to the estate of her father on the death of her mother or a transferee from the daughter is not the person claiming through the widow and, therefore, is not debarred under Section 53A, T. P. Act from claiming possession of the property in the pos-session of the transferee in pursuance of the contract of sale. Nasim Ali and Blank JJ. have construed the words 'person claiming Under the transferor' as meaning 'person claiming through the transferor' and in their opinion this can be said only about an assignee from the transferor or a legal representative of the transferor.

Whether or not the expression 'claiming under' means exactly the same as 'claiming through', it seems to us with respect that the construction which was put on the Words 'claiming Under' in this case is a little too literal and inconsistent with the object of the section. On the other hand, Niyogi J. of the Nagpur High Court has accepted the same view that we have taken of the material words in Section 53A. The learned Judge referred to the widow's power to make a valid alienation lor a legal necessity and came to the conclusion that to the extent to which the reversioner would thus be bound by the acts of the Hindu widow, he becomes a person claiming under her.

11. Incidentally, I may also refer to a Full Bench decision of this Court in -- 'Mulchand Kesaji v. Shiddappa' AIR 1947 Bom 18 (G), to which I was a party. In this case, we had to consider the expression 'decrees for the payment of money passed against the same judgment-debtor' and we rejected the literal construction of the words 'same, judgment-debtor' and held that the coparceners of an undivided Hindu family could be deemed to be included in the said expression even though the manager of the family alone may have sued or may have been sued. In coming to this conclusion, we were impressed by the argument that the material words in Section 73, Civil P. C. should be so construed as to give effect to the equitable object underlying the provisions of Section 73.

Somewhat similar considerations have weighed in my mind in corning to the conclusion in the present case that the literal construction of the words should not be adopted. I would, therefore, hold that the view which has been accepted by the lower appellate Court does no violence to the material words in Section 53A and has besides the merit of carrying out the object of the section. Therefore, in my opinion, the lower appellate Court was right in holding that the reversioners are bound by the contract of sale and that the purchaser from the widow is entitled to rely upon the provisions of Section 53A, T. P. Act.

12. The result is the appeal fails and must be dismissed with costs.

Vyas, J.

13. A short but an interesting point of law which this appeal raises is the point about the construction of the words 'any person claiming under him' occurring in para 4 of Section 53A, T. P. Act. The question is this: In the case of a Hindu reversioner who claims by reversion the estate to the last full owner, can the reversioner be called a person claiming under the widow of the last full owner or is he a person claiming under the last full owner himself?

In the present case, this question has arisen in this manner. One Bhila Supdu was the owner of the suit house. He died issueless in 1940 leaving surviving behind him his widow Chhababai. He also left two married sisters, Banabai and Manubai. During his life-time Bhila had leased out the suit house to a tenant Dhaku Sitaram. Even after the death of Bhila the possession of the house remained with Dhaku. On 5-11-1944, Chhababai passed a written agreement of sale (Ex. 47) in favour of Dhaku contracting thereby to sell the suit house to him for Rs. 500 in order to pay off her deceased husband's debts. Shortly after executing the above agreement of sale of the suit house Chhababai died.

Dhaku who was originally in possession of the house as a tenant continued in possession after November 5, 1944, under the agreement of sale aforesaid. On the date of the agreement he had paid earnest of Rs. 200 to Chhababai and the balance of Rs. 300 was to be paid at the time of the execution of the sale-deed. However, before the sale-deed could be executed, Chhababai died. On 12-2-3945, Banabai and Manubai, the two sisters of Bhila, sold the suit house to Ranchhod Ramnarayan for Rs. 500 under a registered sale-deed. A fortnight later Ranehhod gave a notice to Dhaku telling him that the period of his rent-note had expired and asking him to hand over possession of the house to him within three days.

To that notice Dhaku replied saying that Chhababai had executed a written agreement of sale of the house in his favour for Rs. 500, that he had paid Rs. 200 to her and was willing to perform his part of the contract, but would not vacate the house.

The question on these facts is whether Dhaku, a transferee from the widow, is entitled to retain possession of the house in view of the provisions of Section 53A, T. P. Act or whether the reversioners' transferee Ranchhod Ramnarayan is entitled to eject him. If the reversioners (i.e. the deceased Bhila's sisters Banabai and Manubai) are persons claiming under the widow Chhababai, their transferee would not be entitled to eject Dhaku, since Dhaku would be protected by the equitable doctrine of part performance embodied in Section 53A. On the other hand, if the reversioners are persons claiming not under the widow but Under the last full owner Bhila himself, their transferee would succeed in his action against Dhaku.

So the point of law which has arisen in this case and which is of general importance is: Is the reversioner a person claiming under the widow of the last full owner or is he a person claiming under the last full owner himself?

14. This is a controversial question and much could undoubtedly be said in support of either view. In -- 'AIR 1943 Cal 344 (F)', a Hindu widow had sold the disputed property for Rs. 200 by a 'kabala', but the instrument was not registered. The transferee was in possession and after his death his heirs were in possession. The plaintiff was a transferee from the stepdaughter of the last full owner of the property. The question arose whether the step-daughter, who was the reversioner, was a person claiming under the widow. It was held that the daughter or her transferee was not the person claiming through the widow and, therefore, was not debarred under Section 53A, T. P. Act from claiming possession of the property.

In the body of the judgment, it was observed by Nasim Ali and Blank JJ. at p. 345 :

'.........A person claims under another person when he is either an assignee from that person or is a legal representative of that person.'

Now, since the reversioner is a person nearest in blood to the last full owner, i.e. since the tie between the two is inherent in the relationship between the two and since the reversioner is not a legal representative of the widow, it cannot be denied that there is force in the view taken by the Calcutta High Court in the above-mentioned case. This is a view which strictly speaking is a more literal view and is more consistent with the words 'claiming under' occurring in Section 53A, T. P. Act.

But, with respect, we prefer to 'accept the view taken by the Nagpur High Court in --'Balaram Jairarn v. Kevalram' , which view is based upon the dictum of the Privy Council in -- 'Katama Natchiar v. Moottoo Vijaya Raganadha', 9 MIA 539 (PC) (I) where Turner L. J. delivering the judgment of the Board said at p. 604:

'......the whole estate would for the time be vested in her, absolutely for some purposes, though, in some respects, for a qualified interest; and until her death it could not be ascertained who would be entitled to succeed.'

Now it is well settled law that one of the purposes for which the whole estate of the last full owner is vested absolutely in his widow is legal necessity. It would, therefore, logically follow that in disposing of the estate of the last full owner for a legal necessity, for instance for paying off the legitimate debts left by him, the widow would have the same untrammelled power of disposal as the last full owner himself; for that purpose, the character of her ownership over the estate would be the same as that of the ownership of the last full owner; she would not be bound to consult the reversioner nor would the reversioner be legally competent to challenge that particular alienation. In that case, the reversioner must be held to be a person claiming under the widow.

In the Nagpur case cited above, it was observed that a Hindu widow had two capacities, (1) personal, and (2) as representing her husband's estate. Whether or not the reversioner should be regarded as claiming under her would depend on the proof of the particular capacity in which the widow transferred her husband's property. If she did so in her latter capacity, the reversioner could well be described as claiming under her. The test was whether the acts of the deceased widow affecting the property bound the reversioner or not.

Niyogi J. went on to say in the course of his judgment at p. 399 :

'.....In -- 'Bijoy Gopal v. Sm. Krishna Mahishi Debi', 34 Cal 329 (J), their Lordships of the Privy Council stressed the proposition that a Hindu widow is not a mere tenant for life but is owner of her husband's estate subject to certain restrictions on alienation and subject to its devolving upon her husband's heirs upon her death.........It is clear that a reversioner has to take the estate as it stands on the widow's death subject to such of her acts as are binding on it. If her acts bind the property, they must bind the reversioner in the same manner and to the same extent as the acts of any absolute owner would bind his heir. The reversioner may not be her heir but is certainly her successor. The widow's estate indeed terminates with the death of the widow and it does not devolve on the reversioner; nevertheless he is bound by her acts which lawfully affect the property. To the extent that he is so bound, he becomes a person claiming 'under' her.'

With respect, this view appears logical since the last full owner's estate vests in his widow absolutely and without any restriction 'or qualification for certain purposes amongst which legal necessity is one. If we hold that even in such a case the reversioner claims under the last full owner, it would be open to him to repudiate the alienation made by a widow even for a legal necessity, which according to the well-settled law he could not do. The doctrine of part performance which is contained in Section 53A is an equitable doctrine, and in our view it is a logical, fair and just construction to construe the words 'claiming under him' liberally and to hold that where the widow's act binds the property, it must also bind the reversioner and to that extent the reversioner becomes a person claiming under the widow.

15. It would be convenient to test this view in this way. If a widow passes an agreement in writing to sell her deceased husband's estate to another person for a legal necessity, and if after putting that person in possession after accepting the earnest from him, she declines to execute the sale-deed and complete the sale, what is the position? In a suit for specific performance by the widow's transferee against her, the transferee would be entitled to a decree in view of the provisions of Section 53A, T. P. Act and there is no doubt that such a decree would bind the reversioner also.

In -- 'Vaithialinga Mudaliar v. Srirangath Anni' , it was observed at p. 255:

'Where the estate of a deceased Hindu has vested in a female heir, a decree fairly and properly obtained against her in regard to the estate is, in the absence of fraud or collusion, binding on the reversionary heir.'

It would seem to follow from this authority that where the act or conduct of a Hindu widow lawfully binds the estate of her deceased husband who was the last full owner, it would also bind the reversioner who to that extent would become a person claiming under the widow.

It is a well-settled law that a Hindu widow or other limited heir is not a tenant for life, but is owner of the property inherited by her, subject to certain restrictions on alienation and subject to its devolving upon the next heir of the last full owner upon her death. The whole estate is for the time vested in her, and she represents it completely. It was observed by the Privy Council in -- 'AIR 1916 PC 117 (C)':

'Her right (i.e. widow's right) is of the nature of a right of property; her position is that of owner; her powers in that character are, however, limited; but...... 'so long as she is alive no one has any vested interest in the succession.'

It is clear, therefore, that what vests in a Hindu widow after the death of her husband (the full owner) is not a mere life estate but the whole estate. Furthermore, she represents the estate completely and it is for this reason that in certain cases a decree passed against her with reference to property inherited by her binds not only herself but also the reversioners, though the reversioners were not parties to the suit. In other words, the estate of a Hindu widow is an absolute one subject to certain restrictions. She holds it absolutely for certain purposes; for instance, she could alienate it absolutely as though it was her own property for legal necessity.

In para. 199 of Mulla's Principles of Hindu Law, the learned author has said,

'A widow..... .represents the whole estate in legal proceedings relating thereto. Therefore, a decree passed against her and a sale of the estate in execution of such decree is binding not only on her, but on the reversioners, even though they were not parties to the suit, provided--

(1) the suit was in respect of a debt or other transaction binding on the estate, and

(2) the decree was passed against her as representing the estate, and not in, her personal capacity.'

This would also show that if an alienation is made by a Hindu widow, who represents the estate of her deceased husband completely, for a legal necessity, it would bind the estate and also the reversioner, and to that extent the re-versioner becomes a person claiming under her.

16. In (E)', a question arose whether in the circumstances of that case, the minor or his guardian the mother was a transferor within the meaning of Section 53A, T. P. Act. Immoveable property was agreed to be sold by the mother acting as a guardian of her minor son and a point arose whether the transferee was entitled to take advantage of the provisions of Section 53A in resisting the minor's claim to possession. It was contended for the minor that Section 53A would not help the transferee as he (minor) was not a transferor as he was legally incompetent to enter into a contract of sale.

It would not of course be denied that it was not competent to a minor to enter into a contract, but the Privy Council came to the conclusion that the circumstances of that case showed that the contract was binding on the minor and, therefore, the minor himself should be considered to have been the transferor, although literally and actually the contract of sale was made by the mother of the minor. In other words, in construing the word 'transferor', their Lordships of the Privy Council took into consideration an extraneous circumstance, namely, whether the guardian's act was binding on the minor or not. Having held that it was binding upon the minor, they put a liberal construction on the term 'Transferor' and held that the minor was the transferor in that case within the meaning of Section 53A and, therefore, the transferee could successfully resist the minor's claim to possession.

In AIR 1947 Bom 18 (G)' also, to-which decision my learned brother was a party, a liberal construction was put on the words 'same judgment-debtor' in order to effectuate the equitable doctrine embodied in Section 73, Civil P. C., and it was held that the coparcerners in an undivided Hindu family would be included in the expression 'same judgment-debtor' although the manager alone may have sued or have been sued.

I do not see why in giving effect to an equitable doctrine of part performance embodied in Section 53A, T. P. Act we should not be guided by similar considerations for putting a liberal construction on the words 'claiming under him'. The spirit of these authorities, -- Subrahmanyam v. Subba Rao (E)' and -- 'Mulchand Kesaji v. Shiddappa (G)' would support us in our view that we should put a liberal construction on the words 'claiming under him' in a case where a Hindu widow's act lawfully binds the estate of her deceased husband and is, therefore, binding on the reversioner also.

17. Mr. Pradhan has relied on the Privy Council decision in -- '35 All 227 (PC) (B), but in that case the equitable considerations arising out of Section 53A, T. P. Act were not gone into. Section 53A, T. P. Act was enacted by Act 20 of 1929, and the object of that enactment was to bring in, to a certain extent, a just and equitable doctrine of part performance so well-known to the English law. In our view, therefore, the decision in -- 'Soni Ram v. Kanhalya Lal (B)' which is a decision before Section 53A was introduced into the Transfer of Property Act by Act 20 of 1929 would not assist the appellant.

18. The net result, therefore, is that in ourview the learned Judge of the lower appellateCourt was right in holding that in the circumstances of this case the reversioners Banabaiand Manubai were persons claiming under thewidow Chhababai and that, therefore, thewidow's transferee Dhaku was protected asagainst the reversioners' transferee by the provisions of Section 53A, T. P. Act. I agree with mylearned brother that the appeal must fail andbe dismissed with costs.

19. Appeal dismissed.


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