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Pandurang Raghunath Hasabnis Vs. Ishwar Kusaji Patil - Court Judgment

LegalCrystal Citation
SubjectFamily;Property
CourtMumbai
Decided On
Case NumberSecond Appeal No. 826 of 1935
Judge
Reported inAIR1939Bom79; (1938)40BOMLR1270
AppellantPandurang Raghunath Hasabnis
Respondentishwar Kusaji Patil
DispositionAppeal dismissed
Excerpt:
.....act (iv of 1882), section 6.;a hindu widow, who had inherited her husband's estate, executed a deed of gift of all her husband's property in favour of the defendant. her daughter, who was the next reversioner, orally consented to this deed of gift and some days later executed a deed of consent in which she expressly stated that her mother had passed the deed of gift with her approval and consent. the deed of consent was not registered. subsequently the widow adopted the plaintiff, who sued to recover possession of the property from the defendant on the ground that as the daughter's consent was not given by a registered instrument, there was no valid consent of the next reversioner and the gift did not operate in favour of the defendant :-;(1) that the widow had made a valid surrender..........consent. in yeshvanta v. antu the daughter had consented to the gift by joining in passing the gift deed. in the present case walu did not actually join in executing the deed of gift passed by her mother renai. the learned assistant judge has found on the evidence that she had consented orally to the deed of gift, and that she had been present when the deed of gift had been made and had consented to it. in the subsequent deed of consent or manyatapatra, which was executed four days later she says expressly that her mother had passed a deed of gift with her consent, that the deed had been agreed to and approved by her and that she was passing the deed of consent of her free will and pleasure.4. the appellants' contention is that the gift by renai without walu's consent would not.....
Judgment:

N.J. Wadia, J.

1. The appellants brought this suit to recover possession of certain properties which originally belonged to one Masu Vithu. Masu died in 1890 leaving two widows Koyna and Renai. Koyna died first. Renai had a daughter named Walu. Respondent No. 1 was the son-in-law of Walu. On June 10, 1921, Renai executed a deed of gift of all her husband's property in favour of defendant No. 1(respondent No. 1). Walu who was the next reversioner had consented to this deed of gift, and four days later on June 14, 1921, she executed a deed of consent or manyatapatna (exhibit 87). This document was not registered. More than a year later, on November 10, 1922, Renai adopted plaintiff No. 2, who as the adopted son of Masu sold the suit property to plaintiff No. 1. The plaintiffs have joined in bringing this suit against defendant No. 1, the son-in-law of Walu, and his alienees to recover possession of the property. Defendant No. 1's contention was that the deed of gift executed by Renai (exhibit 73) evidenced a complete surrender of her entire estate in his favour; that this surrender had been with the consent of the next reversioner Walu and that defendant No. 1 had therefore become full owner of the property. The trial Judge made a decree in favour of the plaintiffs. In appeal the Assistant Judge of Satara held that there had been a valid surrender by Renai of her entire estate in favour of defendant No. 1 with the consent of the next reversioner Walu and that there was no property left which could pass to the adopted son. He therefore set aside the decree of the lower Court and dismissed the plaintiffs suit. The plaintiffs have come in appeal.

2. In Yeshvanta v. Antu : AIR1934Bom351 a Hindu widow, who had inherited her husband's estate, 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. It was held that the transaction was valid as it could be treated as a surrender by the widow plus a gift by the next reversioner. In the judgment in that case, to which I was a party, the decision in Tukaram v. Yesu (1930) 32 Bom. L.R. 1463, which was a decision by a single Judge to the effect that under Hindu law a gift made by a widow of the whole or part of her husband's estate in favour of a stranger with the consent of the next reversioner may be binding on the consenting reversioner either on the ground of estoppel or election, but is not binding on the eventual reversioner or the adopted son, was discussed and dissented from. The view which Mr. Justice Broomfield and I took in Yeshvanta v. Antu followed the decisions in Nobokishore Sarma Roy v. Hari Nath Sarma Roy I.L.R. (1884) Cal. 1102. and Rangasami Gounden v. Nachiappa Gounden . It is therefore clear that if Renai by the deed of gift effected a complete surrender of her entire estate in favour of defendant No. 1 with the consent of the next reversioner Walu, the gift would be a valid one and plaintiff No. 2 would have no right to have it set aside.

3. It is however contended by Mr. Desai on behalf of the appellants that Walu's consent in this case cannot be regarded as a valid consent. In Yeshvanta v. Antu the daughter had consented to the gift by joining in passing the gift deed. In the present case Walu did not actually join in executing the deed of gift passed by her mother Renai. The learned Assistant Judge has found on the evidence that she had consented orally to the deed of gift, and that she had been present when the deed of gift had been made and had consented to it. In the subsequent deed of consent or manyatapatra, which was executed four days later she says expressly that her mother had passed a deed of gift with her consent, that the deed had been agreed to and approved by her and that she was passing the deed of consent of her free will and pleasure.

4. The appellants' contention is that the gift by Renai without Walu's consent would not amount to a valid surrender, that Walu's consent could1 only be given by a registered document, and that not having been done, it must be held that there was no valid consent of the next reversioner to the surrender by the widow. It was argued that Walu had a contingent interest in the property which she could only transfer to defendant No. 1 by a registered document under Section 17(2) (6) of the Indian Registration Act. There is no force in this contention. Walu as the next reversioner had a mere spes successionis as regards the property. Under Section 6 of the Transfer of Property Act such a mere spes successionis cannot be transferred. Sir Dinshah Mulla in his commentary on Section 6 of the Transfer of Property Act (2nd edn.) at p. 51 points out that by the Hindu law the right of a reversionary heir expectant on the death of a Hindu widow is a spes successionis and its transfer is a nullity and has no effect in law. In Amrit Narayan Singh v. Gaya Singh their Lordships of the Privy Council said (p. 39):-

A Hindu reversioner has no right or interest in praesenti in the property which the female owner holds for her life. Until it vests in him on her death, should he survive her, he has nothing to assign or to relinquish, or even to transmit to his heirs. His right becomes concrete only on her demise ; until then it is mere spes successionis.

5. The question raised on behalf of the appellants about the necessity of Walu's consent being evidenced by a registered instrument is entirely covered by a decision of a division bench of this Court in Mallik Saheb v. Mallikarjunappa I.L.R. (1913) 38 Bom. 224 : 15 Bom. L.R. 1142. In that case a Hindu widow who had inherited property from her husband alienated a portion of it; her only daughter assented to the alienation a few days after by a writing which was not registered ; after the deaths of the widow and the daughter, an heir of the daughter sued to set aside the alienation on the ground that it was not made for legal necessity. The lower appellate Court found the legal necessity not proved and decreed the claim; and the defendant having appealed, it was held that the alienation having been assented to by the next reversioner, no question of legal necessity could arise, that the assent in writing was not compulsorily registrable for the executant had at its date no more than a spes successionis as heir, and that all that the daughter purported to do by the deed was to give her consent to the alienation by her mother. That was a case of an alienation by a widow for legal necessity, but there is in principle no distinction between an alienation by a widow of a part of her property for legal necessity and a complete surrender of her entire estate by a widow by way of gift. The question we have to consider is whether Walu's consent, which was admittedly given, required to be evidenced by a registered instrument, and in my opinion as a mere spes successionis, which was all that Walu had at the time of the gift by Renai, could not be validly transferred, there was no necessity for her consent being expressed in a registered document.

6. It was next contended that, if following the decision in Mallik Saheb v. Mallikarjunappa, it is held that Walu's consent merely amounted to an undertaking by her that if she happened to survive Renai she would not sue to set aside the gift which Renai had made and would ratify it, such a consent would come into operation only at Renai's death and the gift could not bind the adopted son. I am unable to agree with this contention. It is clear on the authority of Yeshvanta v. Antu and the cases there relied on that Renai could make a valid surrender of her entire interest in her husband's property in favour of defendant No. 1 with the consent of the next reversioner Walu. That consent having been properly given, Renai ceased to have any interest in the property after the deed of gift and the subsequent adoption of plaintiff No. 2 would give him no right to challenge the gift,

7. The view taken by the learned Assistant Judge is correct. The appeal fails and is dismissed with costs.


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