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Mallik Saheb Abdul Saheb Gandigiwad Vs. Mallikarjunappa Shivamurteya - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtMumbai
Decided On
Case NumberSecond Appeal No. 890 of 1912
Judge
Reported in(1913)15BOMLR1142
AppellantMallik Saheb Abdul Saheb Gandigiwad
RespondentMallikarjunappa Shivamurteya
Excerpt:
.....law-widow-alienation-reversioner-consent of the reversioner-reverioner's heir cannot set aside alienation-legal necessity for alienation need not be proved-registration act (xvi of 1908), section 17, class. (d);daughter's assent to the alienation-spes succession is-assent in witting not compulsorily registrant.;a hindu widow alienated property which she had inherited from her husband. a few days after the sale, her only daughter consented to the alienation in a writing which was not registered. after the death of both the widow and the daughter, the heir of the latter sued to set aside the alienation on the ground that it was not made for a legal necessity. the lower court held that that the necessity was not made out and decreed the claim. 1 he defendants having appealed :-;(1) that..........which you have made and i will ratify it'. in point of fact she did survive her mother by one day. now her daughter's husband seeks to set aside the alienation on the ground that it was without legal necessity. no question of that kind, we think, can arise, the facts being as we have just stated them.2. the legal point is completely covered by the authority of bajrangi singh v. manokamika bakhsh singh i.l.r (1907) all. 1 : 9 bom. l.r. 1348, a decision of the privy council.3. we therefore think that the, decree of the lower appellate court must be reversed and the plaintiffs claim dismissed with all costs throughout upon him.
Judgment:

Beaman J.

1. In 1891 a widow with the life estate Irawa sold the plaint property to the defendants. The then heir was the daughter of her deceased husband Gurushidawara Thirteen days after the sale assented to it. The only difficulty that could have arisen in the case would have Jain in proving the consent of Garushidawa. -That has been done by a writing. The Courts below appear to have doubted whether such a writing could be admitted without registration. Looking to the terras of the writing however, it appears to us that it is clearly outside and beyond the scope of Section 17, class. (of), of the Registration Act. All that Gurushidawa had at that time was a spes successions as heir. In the writing she purports to convey nothing but merely gives her consent to the alienation by her mother which amounts to this. She says ' If I should happen to survive you I will not endeavour to set aside the alienation which you have made and I will ratify it'. In point of fact she did survive her mother by one day. Now her daughter's husband seeks to set aside the alienation on the ground that it was without legal necessity. No question of that kind, we think, can arise, the facts being as we have just stated them.

2. The legal point is completely covered by the authority of Bajrangi Singh v. Manokamika Bakhsh Singh I.L.R (1907) All. 1 : 9 Bom. L.R. 1348, a decision of the Privy Council.

3. We therefore think that the, decree of the lower appellate Court must be reversed and the plaintiffs claim dismissed with all costs throughout upon him.


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