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Chanbasappa Puttappa Vs. Chanbasava Mallappa Yaligar - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtMumbai
Decided On
Case NumberSecond Appeal No. 434 of 1922
Judge
Reported inAIR1924Bom176; (1923)25BOMLR1078
AppellantChanbasappa Puttappa
RespondentChanbasava Mallappa Yaligar
Excerpt:
hindu law - widow-alienation-necessity-extent of necessity-inadequacy of price-alienation not set aside when price is adequate. ; where a hindu widow alienates property for a consideration part of which is for necessity, the alienation need not be set aside unless the difference between the true price and actual price paid is particularly inadequate. - - as a result of this transaction she got the other land free from the mortgage for her own benefit, and parted with this land for good in favour of the defendants' father. though the price paid for the land may not have been adequate, there was good reason for the widow to effect this arrangement in 1905, in order to secure one land free of the mortgage for her own benefit;.....the alienation ought not to be set aside. it was an alienation for legal necessity. though the price paid for the land may not have been adequate, there was good reason for the widow to effect this arrangement in 1905, in order to secure one land free of the mortgage for her own benefit; and there is nothing in the case to suggest that in 1905 when this transaction was effected there was any kind of unfair advantage taken by the alienee, or that there was anything improper in the transaction. it is not inconceivable that the property which is now found to be worth rs. 450 in 1905 may not actually fetch that price at the time. given the necessity for the sale, it seems to us that unless the difference between the true price and the actual price paid is particularly inadequate, the.....
Judgment:

Lallubhai Shah, Kt., Ag. C.J.

1. This is a suit by the daughters of Mallappa to set aside an alienation made by the widow of Mallappa in 1905, It appears that Mallappa had mortgaged two lands, one of which was the land in suit, for Rs. 300. Though the terms of the mortgage have not been translated, it appears from the judgment that interest was to be paid in a regular manner, and if there was a default in the payment of interest, the mortgagor was liable to pay a much higher rate of interest. The widow, Hanmava, sold the property in suit for Rs. 300, as now found, to the present defendants' father, and thereby paid off the mortgage effected by her husband. As a result of this transaction she got the other land free from the mortgage for her own benefit, and parted with this land for good in favour of the defendants' father. Hanmava died in 1918, and the present suit was filed by the plaintiffs In June 1919 to recover possession of the property on the ground that the alienation could not operate beyond the life-time of their mother Hanmava The defendants, who are the minor sons of the original alienee, were represented by their mother who pleaded that the sale was for legal necessity. The trial Court came to the conclusion that the sale was for necessity and accordingly dismissed the plaintiffs' suit. The lower appellate Court, however, has reversed that decree and set aside the alienation on condition of the plaintiffs paying Rs. 300 with interest, and also Rs. 600 for improvements effected by the defendants. It is found now, and the finding must be accepted for the purposes of the present second appeal, that the property at the date of the alienation was worth about Rs. 450, and it must also be accepted that the alienation was for Rs. 300 paid by the alienee to the widow who paid off the mortgage created by her husband. In effect it was a sale of property worth Rs. 450 for Rs. 300. It is found that the sum of Rs. 300 has been paid by the alienee, and it is not proved that any excess sum was paid beyond the necessity nor is it suggested that any excess was kept by the widow for her own benefit. It is true that the defendants' case was that the real consideration was Rs. 418, and that that was the sum which was really payable in respect of the mortgage. But the finding of the lower appellate Court is against that allegation, and therefore that must be left out of account. Taking the alienation to be for Rs. 300 of property worth Rs. 450 for legal necessity, the question is whether it ought to be set aside. We are of opinion that having regard to the circumstances of this case, the alienation ought not to be set aside. It was an alienation for legal necessity. Though the price paid for the land may not have been adequate, there was good reason for the widow to effect this arrangement in 1905, in order to secure one land free of the mortgage for her own benefit; and there is nothing in the case to suggest that in 1905 when this transaction was effected there was any kind of unfair advantage taken by the alienee, or that there was anything improper in the transaction. It is not inconceivable that the property which is now found to be worth Rs. 450 in 1905 may not actually fetch that price at the time. Given the necessity for the sale, it seems to us that unless the difference between the true price and the actual price paid is particularly inadequate, the sale ought not to be set aside. Reasonable allowance ought to be made for the difference in price in favour of the alienation. Having regard to all the circumstances of this case, we think that the decree passed by the trial Court is right. We reverse the decree of the lower appellate Court and restore that of the trial Court, except as to costs. Having regard to the circumstances of the case, we direct that each party should pay his or her own costs throughout.


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