1. On the death of Sakharam Gadade, his widow Savitra inherited his property. On 12 July, 1929, Savitra executed a deed of mortgage to secure repayment of Rs. 2,000 in favour of one Dhondi Imam mortgaging some lands including Survey Nos. 27, 85, 85/1, 85/3, 5S/1 and 56/3 inherited by he: from her husband. The period of the mortgage was 5 years. Savitra then adopted Vithal (who was a minor) as a. son to her deceased husband. Savitra' died some time thereafter. After the death of Savitra, Vithal sold the mortgaged lands to one Ramrao Awate who is respondent No. 2 in this second appeal.
The plaintiff as an assignee of the rights ot the mortgagee Dhondi Imam filed suit No. 593 of 1946 in the Court of the Civil Judge (Junior Division) at Barsi against Vithal, Ramrao Awate and others for enforcement of the mortgage dated 12 July 1929, and claimed a decree for Us. 4,000.
2. Vithal by his written statement denied knowledge of the mortgage and of the consideration thereof. He also contended that Awate had agreed to pay off the mortgage debt due to the plaintiff. Awate contended that the mortgage was 'bogus' and was not binding upon Vithal and consequently it was not binding upon him, and that in any case was not supported by legal necessity.
3. The trial Court held that the mortgage was genuine and for full consideration and was executed for legal necessity. The learned trial Judge accordingly passed the usual preliminary mortgage decree declaring that the amount due on the mortgage was Rs. 4,000.
4. Awate appealed to the District Court at Sholapur against the 'decree of the trial Court. In apoeal the learned District Judge held that the mortgage was executed for legal necessity for Rs. 100 only and that the real consideration for the deed was Rs. 1,600. The learned District Judge also held that Awate was entitled to contend that-the mortgage was not binding upon Vithal and consequently not binding upon him, as it was not supported by legal necessity. The District Court therefore modified the decree of the trial Court and declared that an amount of Rs. 200 was due on the mortgage at the date of the suit. The plaintiff has come to this Court in second appeal, against the decree passed by the District Court.
5. Counsel for the plaintiff has urged two points in support of the appeal: (1) that Awate being a stranger to the reversion was not entitled to challenge the mortgage by Savitra on the' ground that it was not supported by legal necessity; (2) that in any case there was legal necessity for Rs. 500 and a decree for payment of that amount, together with interest at the stipulated rate, should have been passed.
6. The second point is easily disposed of. Even though there is some discrepancy between the finding recorded by the District Judge on the 4th issue and the observations made in para. 14 of his judgment, it is evident that the District Judge found that out of the amount of Rs. 500 alleged to have been received by Savitra before the execution of the mortgage deed only Rs. 100 were required for purposes of legal necessity. That is a finding of fact, which is binding upon this Court in Second Appeal.
7. The principal contention, however, is that Vithal alone, as the reversioner to the estate of Sakharam, was entitled to avoid the mortgage by Savitra on the ground that it was not supported by legal necessity, and that Awate as a purchaser from Vithal of the property could not avoid the-mortgage. It was urged that Awate was a stranger to the reversion and a right to avoid an alienation by a limited owner in excess of her authority could only be exercised by the actual reversioner and by no one else. It was submitted that an alienation by a Hindu widow in excess of her authority was not void but only voidable, and the actual reversioner entitled to the estate on the death of the widow alone could avoid it by pleading that the alienation was not supported by legal necessity or benefit to the estate.
It was submitted that the right to set aside an alienation was personal to the reversioner and that no person other than the actual reversioner is entitled to challenge the alienation, even if such other person be interested in the estate, and that therefore the contention of Awate as purchaser from Vithal of the suit property that the mortgage by Savitra was not supported by legal necessity, could not be entertained when no such contention was raised by Vithal in his written statement.
8. I am unable to agree with the contention that the right to avoid the alienation by a limited owner is personal to the reversioner and the benefit thereof cannot be availed of by persons who are not reversioners. It is true that the reversioner is not bound to avoid an alienation by a limited owner. He may elect to abide by it and treat it as valid. See -- 'Raja Modhu Sudan Singh v. Rooke', 24 I. A 164 (PC) (A). He; may by his conduct be estopped from avoiding the alienation by a limited owner by assenting to the same or by joining in the alienation. See -- 'Ramgouda Annagouda v. Bhausaheb .
But where the reversioner has not elected to1 affirm the transaction, either before or after the succession opens, and is not otherwise estopped from challenging the transaction, the reversioner has the right to avoid the transaction. The right to avoid the transaction relates to the property disposed of, and is not a personal right. If a re-versioner has not previously elected to affirm the transaction and is not estopped from challenging it, a transfer of the property by the rever-sioner ignoring the alienation by the limited owner would be a clear indication of his intention to avoid it.
Till the reversiouer elects to set aside the alienation, the right of the reversioner in the estate alienated is inchoate. When he elects to exercise his right to the estate alienated, the right becomes concrete. If by expressing an unequivocal intention to avoid an alienation by a limited owner the reversioner treats it as a nullity and then transfers the estate as if it is free from the alienation, the transferee is undoubtedly entitled to get the estate if the transfer is not supported by legal necessity or benefit to the estate. Similarly, when the reversioner expresses an unequivocal intention to avoid the alienation by the limited owner by transferring the property, the transferee,, in my judgment, would get it free from the alienation if the alienation is unauthorised.
Now, Vithal transferred to Awate the property in suit free from the mortgage. There is nothing to show that before the transfer to Awate he had elected to affirm it or that he was otherwise estopped from avoiding it. Vithal having transferred the property in suit free from the mortgage, he must be regarded as having made an unequivocal declaration of intention that he was not bound by the mortgage executed by Savitra. In order to make his election to avoid the alienation effective it is not necessary that the reversioner should seek intervention of the Court.
By the very act of transfer of the estate to Awate, Vithal must be held to have unequivocally declared his intention not to be bound by the mortgage by Savitra. See -- 'Bijoy Gopal Mukerji v. Kishan Mahishi Debi, 34 Gal 329 (PC) (C). The assumption underlying the argument of counsel for the plaintiff that the alienee from Vithal was attempting to exercise the option to avoid the mortgage, is in my judgment unfounded. The transfer by Vithal to Awate itself amounted to an election not to be bound by the mortgage executed by Savitra.
It is true that Vithal by his written statement did not plead that he had avoided the mortgage or that he was avoiding the mortgage thereby. Vithal even pleaded by his written statement that Awate had orally undertaken to redeem the mortgage in favour of the plaintiff. But no issue was raised on that plea and it was never attempted to be proved by the plaintiff.
In fact the plaintiff never raised any plea of election or estoppel against Vithal or Awate, cut argued as a pure question of law that an alienation by a Hindu widow for purposes not binding upon the estate is binding upon a transferee from the reversioner, unless the reversioner has before the transfer expressly repudiated the alienation by the widow. For reasons already mentioned the contention cannot be accepted.
9. Counsel for the plaintiff referred to several decisions of this and other High Courts in India la support of his contention that Awate was not entitled to raise the contention that the mortgage by Savitra was not supported by legal necessity, when Vithal who could have raised the contention did not do so. I propose to refer to them briefly in order to show that none of the cases relied upon has a direct bearing on the question to be decided.
In -- 'Sitaram v. Khandu', AIR 1921 Bom 413 (D), a Division Bench of this Court held that a mortgagee from a Hindu could not challenge the-right of a donee of the equity of redemption from a limited owner, who succeeded to the estate, to redeem the property from the mortgagee. The Court held in that case that the alienee from the 'last male owner cannot challenge the right of the alienee from his heir who is a limited owner to redeem, because an alienation by a limited owner is not void but is voidable at the instance of the reversioner.
In that case the dispute was between the transferee from the limited owner and a mortgagee from the last full owner. In -- 'Govind v. Deekapa AIR 1938 Bom 388 (K) it was held, that a second mortgagee from the manager of a Hindu joint family who had notice of the first mortgage and subject to which he took his own mortgage was not at liberty to raise the question that there was no legal necessity for the first mortgage. In that case the coparcener who was entitled to avoid the mortgage, had not avoided it, nor had he transferred his interest in the property indicating an intention to avoid the mortgage.
In -- 'Maharaja Kesho Prasad Singh v. Chan-drika Prasad Singh AIR 1923 Pat 122 (F) it was held that a gift by a Hindu widow of the whole of the property of her deceased husband of which she is in possession is valid against every on a-except the reversioners and it is also valid against, the latter, unless they elect to treat it as a nullity and sue for possession within twelve years of their interest becoming vested. In that case the question arose in a redemption suit brought by a gratuitous transferee from a widow against Zar-peshgidars from her and it did not raise any question as to the right of a transferee from a reversionary heir to set aside the alienation. The dispute in that case arose between the donees from the widow and the mortgagees of the estate from the widow.
In -- 'Bipat Mahton v. Kulpat Mahton : AIR1934Pat498 (G) it was held that an alienation by a limited owner without legal necessity was. valid against strangers to the reversion, and such questions as those of legal necessity and adequacy and existence of consideration could only be raised by a limited class of persons and not by strangers to the reversion. In that case the dispute arose between an alienee from a limited owner and a trespasser. In -- 'Shanmughasundaram Pillai v. Parvati Animal AIR 1945 Mad 454 (H) it was held that an alienation by one of two co-widows in whom the estate was vested was voidable and not void and it could be avoided at the instance of the co-widow or the reversioners after her death and not by third parties, and that a stranger creditor could not impugn the alienation.
In that case the dispute was between the alienee-from the widow and the subsequent purchaser of the right, title and interest of the widow in execution of a money decree obtained against the widow as representing her husband's estate; and the Court held that the alienation not being void but only voidable could be avoided only at the instance of the co-widow or reversioners and not by third parties.
In -- 'Bijoy Gopal Mukerji v. Krishna Mahishi Debi (C)', it was held by the Privy Council that a Hindu widow is the owner of her husband's property subject to certain restrictions on alienation, and subject to its devolving upon the heirs of the last owner. It was observed that alienation of property by a Hindu widow was not void but it was prima facie voidable at the election of the reversioners. The dispute arose in that case between the alienee from a widow and the rever-sioners.
10. In none of the cases cited by counsel for the plaintiff did the question arise whether a transferee from the reversioner of an estate which has been alienated by a limited owner is entitled to claim the benefit of a plea that the alienation by the limited owner was for purposes not binding upon the estate. There have been some cases which have come before the Courts in which the benefit of a plea that the alienation by a limited owner was without legal necessity was obtained by persons other than actual reversioners.
In -- 'Thakur Singh v. Mst. Uttam Kaur AIR 1929 Lah 295 (I) the question which arises in this appeal directly arose for decision. In that case one D, a Hindu governed by the Punjab customary law, died leaving him surviving three widows. The widows had from time to time made numerous alienations of 'portions of their husband's estate to the defendants. After the death of the widows a suit was filed for possession by a reversioner and certain assignees from the reversioner to whom the reversioner after the death of the last surviving widow had transferred a share in the property. It was held in that case that where succession has opened on the death of the widow and the reversioner has become the real owner of the property, though he is still out of possession, there is no bar to his assigning the whole or a part of it to third parties, and the assignees from the reversioner were therefore entitled to sue.
Tek Chand J. who delivered the principal judgment of the Court observed at p. 303:
'......it was urged on behalf of the respondents, an alienation by a widow is not void but voidable, and until the reversioner has exercised his option to avoid the transaction the alienee continues to be the owner of the alienated property and the reversioner has no legal right to transfer it. This argument appears to me to be fallacious and is completely met by the following observations of Sir A. Mookerjee J. in -- 'Nishakar Chakravarti v. Ram Kumar Tewari', 16 Ind cas 634 (Gal) 635 (J) and I cannot do better than quote the following passage from his judgment;
''......it has been contended that an alienation effected by a Hindu widow must be avoided before the reversionary heirs can recover possession and that the right to avoid an alienation is personal to the reversionary heirs and cannot be exercised by a transferee from them. There is, in our opinion, no foundation for this contention. It cannot be disputed that, as was pointed out by Sir Richard Couch in 24 Ind App 164 (PC) (A)', an alienation of this description is not void but only voidable and that the reversionary heirs elect to assent to it and treat it as valid.
But It was explained by Lord Davey in 34 case 329 (PC) (C) that although such an alienation is not absolutely void and is 'prima facie' voidable at the election of the reversionary heirs, there is in fact nothing for the Court 'either to set aside or cancel as a condition precedent to their right of action. They may, if they think fit, affirm the transaction or they may, at their pleasure, treat it as a nullity without the intervention of any Court and they show their election by commencing an action to recover possession of the property.
Consequently, in the case before us, the entire property vested in the reversionary heir upon the death of the widow, and it was competent to him to transfer it to the present plaintiffs. What has been transferred is not a right personal to the heir, but the interest in the property which, upon the death of the widow, has descended to him from the original owner.' '
11. In-- 'Thakur Prasad v. Mt. Dipa Kuer : AIR1931Pat442 (K) the question arose whether an heir of a reversioner who had not elected to affirm the alienation by a limited owner was entitled to challenge the alienation. Dhavle J. who delivered the judgment of the Court observed at pp. 444-445:
'..... .the reversioner in the present case died four or five years after the death of the widow, and long before his right to recover possession of the property could be barred by limitation. What passed to the plaintiff was the property that had vested in her father as the reversioner upon the death of Lakhpati Kuer, and this meant the entire property. The appellant's contention is that the alienated property continued to be the property of the alienees until the reversioner made his election.
This is true only in the sense that it was not open to third parties, strangers to the reversion, to challenge their title. But the property of Surjan Singh vested, all of it, in Ishwar Prasad upon the death of Lakhpati Kuer, though without possession in respect of the items alienated. It was consequently open, in my opinion, to Ishwar Prasad's heir, the plaintiff, to sue for recovery of possession -- she is in one sense in a stronger position than a mere transferee from the reversioner - within the period of limitation. The mere failure of Ishwar Prasad to sue in his lifetime is no indication of his election to affirm the transactions.'
'Thakur Prasad's case (K)' is a clear authority for the proposition that the right to challenge an alienation by a limited owner is not personal to the reversioner and may be vested in a person who is a stranger to the reversion by operation of law and may be exercised by him.
12. Two other cases only need be mentioned. In 16 Ind Cas 634 (J)' the plaintiffs as transferees from the reversioners sued for recovery of possession of property permanently leased by a Hindu widow to the predecessor in interest of the defendants. It was held that the plaintiffs were entitled to obtain possession.
In -- 'Bhagwat Dayal Singh v. Debi Dayal Sahu 35 Ind App 48 (PC) (L) one Jileb Koer -- who inherited the property of her grandson Narayan Singh as a limited owner -- and two others sold the villages of Chiyani and Ganka to one Debi Dayal Singh. After the death of Jileb Kuer in the year 1894, the estate of Narayan Singh devolved upon Bhanparfcap Singh and Kirpa Narayan Singh. Bhanpertap Singh and Kirpa Narayan Singh by deed dated 29th November 1895, sold the villages to Bhagwat Dayal Singh. Bhagwat Dayal Singh, Bhanpertap Singh and Kirpa Narayan Singh then filed a suit for possession, of the village and mesne profits. Their Lordships of the Privy Council held that the alienations were not supported by legal necessity and advised His Majesty that a decree be passed in favour of Bhagwat Dayal Singh.
It is true that in that case the reversioners Bhanpertap Singh and Kirpa Narayan Singh had Joined the alienee In the suit. But the Privy Council ultimately took the view that the alienee alone was entitled to obtain a decree. That again is an authority for the proposition that the right to obtain benefit of the contention that an alienation by a limited owner is not supported by legal necessity or benefit to the estate is not personal' but is annexed to the ownership of the property which was the subject-matter of alienation by the limited owner.
13. In that view of the case the decree passed by the Court below -must be confirmed and the appeal dismissed with costs.
14. Appeal dismissed.