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Sitaram Kavaji Bhosle Vs. Khandu Mairala Shinde - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtMumbai
Decided On
Case Number Second Appeal No. 576 of 1918
Judge
Reported inAIR1921Bom413; (1920)22BOMLR1155
AppellantSitaram Kavaji Bhosle
RespondentKhandu Mairala Shinde
DispositionAppeal allowed
Excerpt:
.....the only person who can dispute such alienation-alienation of equity of redemption by a widow cannot be disputed by mortgagee.;an alienation by a hindu widow is perfectly valid until it is set aside; in other words, it is only voidable and not void.;the only person who can contest the validity of an alienation by a hindu widow is the reversioner. a mortgagee has no locus standi to resist the claim of an alienee of the equity of redemption from a hindu widow. - - it is perfectly valid until it is set aside. clearly the reversioners. in my opinion the mortgagee in a case like this has no locus standi to resist the claim of the person who on the face of it has a perfectly good title to the equity of redemption granted by a hindu widow, and the only person who can dispute the..........or possibly in other ways but it does not automatically cease. indeed it continues until it is put an end to in some regular and legal way.3. in this case the plaintiffs acquired such an interest, or rather their predecessors acquired such an interest. it was in fact a right to redeem a mortgage. now that right did not automatically cease to exist on the death of the widow, and it has never been put an end to in a legal and regular way, and, therefore, it still exists, and, therefore, i agree in the order proposed by my lord the chief justice.
Judgment:

Norman Macleod, Kt., C.J.

1. The plaintiffs sued to redeem the plaint land They claimed as the heirs of the donees of one Gopal. She purported to make a deed of gift, Exhibit 40, in favour of one Laxman and others of the equity of redemption in 1863. The defendant claims under a mortgage from one Krishnai. The plaintiffs' suit has been dismissed on the ground that Gopal could not convey to any one more than the right to redeem the mortgage during her life-time. But it appears to me that the decision of the Privy Council in the case of Raja Modhu Sudan Singh v. Rooke concludes the question regarding the nature of the widow's alienation. It is perfectly valid until it is set aside. In other words it is only voidable, not void. The question is who are the persons who are entitled to dispute the validity of such a grant. Clearly the reversioners. In this case the defendant, mortgagee, resists the attempt of Gopal's representatives to redeem the mortgage, on the ground that the gift of the equity of redemption was void. In my opinion the mortgagee in a case like this has no locus standi to resist the claim of the person who on the face of it has a perfectly good title to the equity of redemption granted by a Hindu widow, and the only person who can dispute the validity of such a grant is the reversioner. It does not matter to the mortgagee who pays him off. Of course in this case it has been found in the trial Court that the mortgagee has been paid off long before the date of this suit on taking accounts under the Dekkhan Agriculturists' Relief Act, and, therefore, naturally the defendants are anxious to resist the plaintiffs' claim. In my opinion they are not the persons who could do so, and, therefore, the appeal succeeds, and the plaintiffs are entitled to the relief they sought. As it has been found that the mortgage has long been paid off, the plaintiffs Would than be entitled to recover possession of the plaint land. The appellants to have the costs in this Court and the Court below. In the trial Court they must pay the mortgagee's costs.

Heaton, J.

2. I agree. The Subordinate Judge who heard the first appeal founded his decision on the case of Jagannath Vithal v. Apaji Vishnu (1868) 5 B.H.C.R 217. I am not quite sure what the Subordinate Judge supposed was the effect of the decision on which he relied. If he supposed the effect of that decision to be that a gift by a widow is absolutely inoperative, that it is a thing forbidden by law, and, therefore, a thing which can have no legal effect, then I think either he misunderstood the judgment in Jagannath Vithal'a case; or else that judgment is no longer in accordance with what is well understood to be the law in this part of India. The law as now understood is that a widow who takes a life-interest in her husband's property has an interest which she can dispose of. She can bargain with it. She can sell it, mortgage it, or give it away. But it is only a life-interest and she cannot do more than finally give or sell or convey her life-interest except in special circumstances. But a life-interest she can dispose of, and it follows from this fact supplemented by what was said by the Privy Council in the case of Raja Modhu Sudan Singh v. Rooke, that not only does a widow convey her life-interest, but she conveys something that may become a permanent interest, unless it is claimed by somebody competent to claim it. The next reversioner, for example, on the widow's death can get an alienation declared to be no longer of any validity. But any one dealing with a widow, and taking her 'interest in the property does acquire an interest in that property, and acquires an interest that does not automatically cease to exist merely because the widow dies. It may come to an end as the result of proceedings taken by the reversioner, or possibly in other ways but it does not automatically cease. Indeed it continues until it is put an end to in some regular and legal way.

3. In this case the plaintiffs acquired such an interest, or rather their predecessors acquired such an interest. It was in fact a right to redeem a mortgage. Now that right did not automatically cease to exist on the death of the widow, and it has never been put an end to in a legal and regular way, and, therefore, it still exists, and, therefore, I agree in the order proposed by my Lord the Chief Justice.


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