1. This appeal raises a question of law whether property in the hands of a Hindu reversioner is liable to satisfy a personal debt not secured on such property which a widow while 1928 enjoying a widow's estate has properly incurred in the course of management of the property. Both the lower Courts have held BAO that it is so liable.
2. Respondent No. 1 sued the appellant as reversionary heir and the 2nd respondent on a money bond for Rs. 600 dated June 13, 1921, executed jointly in her life-time by one Manubai and the 2nd respondent who was her brother. The bond carried interest at twelve per cent which rate was to be increased to eighteen per cent if the debt was not paid within a specified period. The bond did not recite that the widow was borrowing the money for a legal necessity or in course of conducting a trade or business of her deceased husband. It was proved by evidence that out of the moneys she borrowed Manubai had spent Rs. 425 for the benefit of the estate. From that the trial Judge in the absence of evidence to the contrary inferred that the whole amount was so spent. The appellate Court has confirmed that finding. At the date of the bond the widow was in possession and management of fifty bighas of land yielding an income of Rs. 700 to 800 per annum. The major part of the moneys borrowed was expended in payment of assessment and of servants' wages and in the purchase of certain bullocks all connected with the land.
3. On the death of Manubai the land passed on to the appellant as the reversionary heir of her husband. The widow's estate she enjoyed in the land terminated with her death. The land cannot be said to form part of any estate she may have left. There is no encumbrance created by her on the laud. Prima facie therefore the ruling of this Court in Gadgeppa Desai v. Apaji Jivanrao I.L.R (1879) Bom. 237 would apply and the land in the hands of the reversioner would not be liable for a debt which is not secured on it. To the same effect is the ruling in Ramasami Mudaliar v. Sellattammal I.L.R (1882) Mad. 375. The lower appellate Court holds that these rulings have since been practically overruled in this Court by the Full Bench case of Sakrabhai v. Maganlal I.L.R (1901) Bom. 206, : 3 Bom. L.R. 378. and in Madras by Regella Jogayga v. Nimushakavi Venkataratnamma I.L.R (1910) Mad. 492. The effect of these later rulings according to the learned Judge h that where a widow incurs a debt for the purpose of carrying on her husband's avocation and could have validly created a charge on the estate in respect of it, the debt after the widow's death would equally bind the estate in the hands of the reversioner although there may be no specific charge created on it. The proposition laid down by the learned Judge appears to me to be too wide and 192S is not justified by the rulings to which he has referred.
4. Sakrabhai v. Maganlal has not in my opinion either expressly or by necessary implication overruled Gadgeppa Desai v. Apaji Jivanrao. The judgment discusses that case at pages 115-6. The ratio decidendi of that case is there referred to as being that as the advance was made on the widow's personal credit the property in the hands of her adopted son could not be made liable for a necessary debt she had previously incurred in order to pay judi leviable to Government on the property in which she then had a widow's estate. Sakrabhai v. Maganlal only decided that trade debts properly incurred by a Hindu widow on the credit of the assets of the business to which she has succeeded as the heiress of her deceased husband are recoverable after her death out of the assets of the business as against the reversioners who have succeeded thereto, even in the absence of a specific charge. The Full Bench was there considering trade debts which were incurred on the credit of the assets of the business and not debts which are incurred in the course of the management of an estate as was the ease in Gadgeppa Desai v. Apaji Jivanrao. The Full Bench case seems to contemplate ordinary trade dealings and not all loans or transactions entered into by the widow. In Pahalwan Singh v. Jiwan Das I.L.R (1919) All. 109 the Allahabad High Court has followed Sakrabhai v. Maganlal, The Court there held that a Hindu widow who had succeeded to the banking business of her husband and had conducted it prudently was competent in the course of that business to alienate both movable and immovable property which formed part of the business without showing in the case of the immovables 'legal necessity.' The distinction between trade dealings and ordinary dealings is not there departed from.
5. The lower appellate Court states that Manubai held fifty bighas of land which had to be cultivated and she incurred the debt in suit for the purchase of bullocks for the purpose of cultivation, for payment to farm-servants and for other miscellaneous items of expenditure connected with the carrying on of her husband's trade, viz., that of an agriculturist. The learned Judge seems to assume that being an agriculturist is the same as trading. I am not inclined to accept that description. A trade usually implies transactions both of sale and purchase and they must be sufiiciently numerous and of a general kind before they can come the description of trade. An agriculturist who merely cultivates his soil and sells its extra produce can hardly in nay opinion be called a 'trader.' if the description were to be so widened every transaction of a Hindu widow managing her husband's estate would be regarded as a 'business or trade' transaction. As long as the transaction was bona fide there would be no need then to prove legal necessity. Such a doctrine would be perversive of the elementary principle of the Hindu law on the subject. Regella Jogayya v. Nimushakavi Venkataratnamma does not in my opinion overrule Ramasami Mudaliar v. Sellat-tammal. There the case was remanded to the lower Court for a finding whether the loan was made to the widow personally or on the credit of her husband's estate. If that test were to be applied to the present case it would appear that credit was given to Manubai personally and not to the estate she represented. The rate of interest is high and her brother who is not interested in the estate is made a surety for the debt by his jointly executing the bond with her.
6. In Ramcoomar Mitter v. Ichamoyi Dasi I.L.R (1880) Cal. 36 the Calcutta High Court came to a different conclusion. They did so by applying the English principles of equity to the case before them. In a case governed by the Hindu law as the present case is, we should be chary I think in invoking such an aid where the principle applicable is clear and not unreasonable. The present case in my opinion is governed by Gadgeppa Desai v. Apaji Jivanrao and the principle of that decision is entirely in keeping with that of the Hindu law.
7. The appeal in this ease should be allowed with costs throughout against respondent No. 1 and the decree of the lower Court should be amended by striking out from it the portion 'and from the estate of Manubai's husband in the hand of defendant No. 1.'
8. I agree. I think that Sakrabhai v. Maganlal I.L.R (1901) Bom. 206. Bom. L.R. 738. lays down a qualification of the general rule formulated in Gadgeppa Desai v. Apaji Jivanrao I.L.R (1879) Bom. 237, and cannot be taken as absolutely over-ruling the latter decision. The former case is clearly confined within certain limits, which must be regarded before that ruling is applied to a specific case. In my opinion, the present case does not fall within those limits. It might have been different if Manubai's husband had been buying and selling bullocks as a trade and the widow had merely raised money in order to carry on such trade. But those are not the facts found by both the lower Courts.