1. The question arising for decision in this case is whether the estate in the hands of a reversioner is bound by an unsecured debt contracted by a Hindu widow as representing the estate for legal necessity. It arises in this way. The plaintiff brought a suit on the Small Cause side of the First IV Class Subordinate Judge's Court at Dhulia on a promissory note passed by a Hindu widow in his favour. The widow having died, the suit is brought against the reversioner to recover the amount due from the estate of the widow's husband in his possession.
2. The lower Court found that the debt under the promissory note was incurred by the widow for cultivation of her husband's lands and for payment to the servants working on the said lands, and it proceeded on the basis that it was for a purpose constituting legal necessity. The defendant contended that the debt cannot be realised from the property in his hands, and relied on a recent decision of this Court in Bhagwantrao Abaji v. Ramanath Kaniram I.L.R. (1928) 52 Bom. 542 : S.C. 30 Bom. L.R. 881 to the effect that under the Hindu law the property in the hands of a reversioner is not liable to satisfy a personal debt not secured on such property which a widow while enjoying a widow's estate has properly incurred in the course of management of the property. This decision, so far as it went, was a sufficient answer to the suit, but the learned Judge thought that it was contrary to a previous decision of the Privy Council in Karim-ud-Din v. Gobind Krishna Narain (1909) L R. 361. A. 138 : s.c. 11 Bom. L.R. 911 and he therefore refused to follow it and passed a decree in the plaintiff's favour. In doing so, we think the learned Judge fell into a double error. He did not notice that the Privy Council case was distinguishable inasmuch as it was a case of an alienation by the widow while the present case was one of an unsecured debt incurred by her. Secondly, whatever His own opinion, he was bound to follow a decision of this Court so long as it was not overruled. Being aggrieved by this decision, the defendant has filed this revisional application, and it was contended on his behalf that the plaintiff's suit should have been dismissed in view of the clear authority of this Court against him. It was, however, urged on behalf of the plaintiff that the decision in Bhagwantrao Abaji v. Ramanath Kaniram is incorrect and that there is a previous full bench decision of this Court in Sakrabhai v. Maganlal I.L.R. (1901) 26 Bom. 206 : s.c. 3 Bom. L.R. 738 which proceeds upon certain principles which are inconsistent with that decision, and that there are rulings of other High Courts also which are against the view in Bhagwantrao Abaji's case. In view of this conflict and also of the general importance of the point, the question stated above has been referred to this bench.
3. It is clear that under the Hindu law an alienation by a widow of her husband's property for legal necessity is binding on the reversioner. So also a decree fairly and properly obtained against her in regard to that property is, in the absence of fraud or collusion, binding on him, and this is so in spite of the fact that the reversioner does not claim through the widow but takes the property as heir of the last male owner. The reason is that the widow is not merely a life-tenant but an owner with certain restricted powers to incur debts and even to dispose of the property for legal necessity, and in cases governed by the Mayukha in our Presidency, with full powers of disposition over the moveables by acts inter vivos. Now, it is a cardinal principle of Hindu law that he who takes the estate is subject to the obligation of paying its just debts. About decretal debts and secured debts for legal necessity there is no doubt as to their binding nature on the property in the hands of the reversioner, but a difference of opinion exists with regard to -unsecured debts even though they may be legally justifiable on the ground of necessity. One view is that such debts are not binding on the estate because they involve only personal liability of the widow, while the other view is that they are so binding provided the widow incurs them in her representative capacity and, as laid down in some cases, provided the evidence makes it clear that the lender looked to the credit of the estate and not to the personal credit of the widow. About one class of unsecured debts, however, there seems to be general agreement that they are so binding, and those debts are what are known as trade debts, i.e., debts ordinarily incurred by a widow in the course of the management of a business concern inherited by her. That proceeds on the basis that when she incurs such debts, the presumption is that the creditor looks to the credit of the assets of the business and not to her personal credit, and therefore although no specific charge is created, the credit of the business is impliedly pledged: Sakrabhai v. Maganlal and Pahalwan Singh v. Jiwan Das I.L.R. (1919) All. 109.
4. What then is the reason for this distinction? It is clear that no distinction between secured and unsecured debts or decretal and non-decretal debts exists in the ancient Hindu law texts. As observed by Sir Lawrence Jenkins C. J. in the full bench case in Sakrabhai v. Maganlal, after quoting and discussing these texts, they do not attribute a more binding operation to a debt secured by a specific charge than to one not: so secured, and that the texts appear to be opposed to alienations of the family property though at the same time the payment of debts incurred by others is distinctly recognized and enjoined. According to the texts it is legal necessity that is the touchstone for testing the binding nature of a transaction by a manager, a widow or a guardian. It is true that if the debt is a secured or a decretal debt, its character can be more easily and definitely ascertained than if it were an ordinary loan or a bond, but its obligatory character on the reversioner does not depend upon the manner of incurring it, but on its purpose. But although the texts are silent, some of the decided cases have made out this distinction, and it is therefore necessary to see whether it is well-founded on principle. The distinction is in some cases stated to be that where the creditor does not obtain a charge on property but only accepts the personal credit of the widow, that does not bind the reversionary estate as the obligation created is in personam and not in rem. Therefore, if the estate in the reversioners hands is to be made liable, the property itself must be charged. That is the distinction on which the cases of Gadgeppa Desai v. Apaji Jivanrao I.L.R. (1879) 3 Bom. 237, Ramasami Mudaliar v. Sellatlammal I.L.R. (1881) 4 Mad. 375, Dhiraj Singh v. Manga Ram I.L.R. (1897) All. 300 and Kallu v. Faiyaz Ali Khan I.L.R. (1908) All. 394 proceed, and the principle of these decisions is followed in Bhagwantrao Abaji v. Ramanath Kaniram.
5. In our opinion, this distinction turns upon an erroneous view of the nature of a Hindu widow's estate. As is well expressed by Golapchandra Sarkar Sastri in his Hindu Law, 7th Edn., p. 817 :-
The estate is fully vested in her in the same way as if the husband lived in her, the ^distinction being that her power of alienation and of charging the estate for debts is Qualified. If the debts contracted by her are lawful, then the same consequences should follow as if the same were the husband's debts, that is to say, the debts should be a charge on the estate in the hands of the reversioner who must be deemed to be the heir of the widow representing the husband, and as such, liable to pay the lawful debts. The reversioner cannot succeed in most cases except upon the theory that the husband lives in the widow, and dies when she dies. It appears to be perfectly reasonable and equitable that his liability should be determined by the same theory which forms the foundation of his right, he being entitled to the residue left after meeting the widow's lawful expenses.
6. In Bhagwantrao Abaji v. Ramanath Kaniram the decision of the full bench of this Court in Sakrabhai v. Maganlal is distinguished from the decision in Gadgeppa Desai v. Abaji Jivanrao which has been followed. The ground of distinction is that, in the former case, the debt was a trade debt which, though unsecured, was held binding on the reversioner, while in the latter case the debt was an ordinary one on a bond. Although the full bench decision was confined to trade debts, it contains a general discussion about the liability of the reversioner for unsecured debts and these observations, in our opinion, correctly interpret the Hindu law when it is said that there is no warrant for the doctrine which would lend a more binding value to a* secured debt. Indeed, it seems to us that most of the reasons given by Sir Lawrence Jenkins C. J. in that case regarding the binding nature of trade debts on the reversioner would equally apply to other debts for legal necessity contracted by the widow.
7. So far as the reversioner is concerned, we do not think there is any difference in principle between a debt incurred by a widow in conducting the family trade or business and a debt incurred by her in managing the property left by her husband or in carrying on his avocation. Both may involve paying and receiving as well as borrowing monies though in different degrees. It may be that in trade one may require to borrow monies more often, but that does not appear to be a sufficient reason why the reversioner is bound in the case of one and not of the other. It is not the nature of the property but the nature of the debt that determines the liability of the reversioner. Suppose .an estate in the widow's hands consists of a big rent-fetching property. That may involve as many items of receipt and expenditure as a family business. Why should it be said that in one case the lender looks to the credit of the business for satisfying his unsecured loans, and in the other case, he does not or is not presumed to look to the credit of the rent-fetching estate unless the contrary is proved ?
8. We are of opinion that there is no warrant in Hindu law for making a distinction between secured and unsecured debts provided they are both for legal necessity, We prefer the reasons given in the full bench case of Sakrabhai v. Maganlal on this point to those in the case of Gadgeppa Desai v. Apaji Jivanrao, and we think that in so far as the latter decision rests on such-distinction, it is not correct. It follows that the decision in Bhagwantrao-Abaji v. Ramanath Kaniram, which follows Gadgeppa Desai v. Apaji Jivanrao-on this point, is also not correct. For the same reasons the decisions in, Ramcoomar Mitter v. Ichamoyi Dasi I.L.R. (1880) Cal. 36 and Hurry Mohun Rai v. Ganesh Chunder Doss I.L.R. (1884) Cal. 823 seem to us to be good law, and those in Ramasami Mudaliar v. Sellattammal, Dhiraj Singh v. Manga Ram and Kallu v. Faiyaz Ali Khan are erroneous.
9. In some cases the extreme view taken in these decisions has been modified-and it is held that where the intention of the contracting parties is that the-estate was to be bound, it would remain liable in the reversioner's hands-although it was not charged, and it would be otherwise where the widow intended to bind herself alone, and that such intention can be gathered from the statements in the deed, if any, or from the surrounding circumstances: Rameswar Mandal v. Provabati Debi (1914) Cri.L.J. 23, Regulla Jogayya v. Nimushakavi Venkataratnamma I.L.R. (1910) Mad. 492 Veerabadra Aiyar v. Marudaga Nachiar I.L.R. (1910) Mad. 188, and Maharaja of Bobbili v. Zamindar of Chundi I.L.R. (1910) Mad. 108 It is nevertheless recognized in the first of these cases by Mookerjee J. that there is no real distinction in principle between a case where a charge is formally created by a widow and-another where she executes a bond for the money advanced, although where a charge is created, there may be surer indication of her intention to make the estate liable than where she had executed a promissory note; but once the intention was established, the effect of the act must depend upon the nature of the debt recoverable from the estate in the reversioner's hands if it had been/ incurred for necessary purposes.
10. We are of opinion that where the widow incurs the necessary liability in-her character as such, i.e., as representing the husband's estate, the intention-of binding the estate as opposed to binding herself alone is to be implied, because, as we have observed before, the reversioner's obligation depends on' the purpose of the debt rather than on the intention of the parties contracting it. Definite evidence would be necessary to prove an agreement confining the-liability to the widow's personal capacity.
11. Our answer, therefore, to the question referred is in the affirmative.