1. This appeal by the original defendant No. 2 arises in a suit by a Hindu widow for a declaration that a sale-deed dated June 28, 1937, passed by her deceased husband's brother defendant No. 1 in favour of defendant No. 2, was not binding on her and that the house sold thereunder was liable' for her claim of maintenance and residence. It was further prayed that the amount fixed for her maintenance should be charged on the suit house.
2. The facts shortly are that defendant No. 1 and the plaintiff's husband were brothers forming a Hindu joint family. Defendant No. 1 was the elder brother and in management of the property, the plaintiff's husband being a minor. The family house was made the subject of a mortgage in 1922 and there were other subsequent mortgages of the house. In October, 1929, defendant No. 1 for himself and as guardian of the plaintiff's husband mortgaged the house to one Sarubai for Rs. 1,500. The purpose of the loan was the payment of the debts incurred for a new business started by defendant No. 1 himself. The mortgagee Sarubai assigned her rights to the appellant who filed a suit on the mortgage against defendant No. 1 as well as his minor brother. The latter, however, died in 1936 pending the suit and the plaintiff as his widow was brought on the record as his legal representative. She disputed the binding character of the mortgage on her husband and prayed that her name may be struck off. The Court being of opinion that she was not a necessary party, granted her request with the result that the appellant obtained a decree against defendant No. 1 alone. In satisfaction of that decree defendant No. 1 privately sold the suit house to the appellant on June 28, 1937, for Rs. 4,223. It is this sale-deed which the plaintiff seeks to set aside on the ground that it was neither binding on herself nor on her deceased husband who died during his minority and that she had a right of maintenance and residence against the house. Defendant No. 1 denied his liability for maintenance on the ground that he was not in possession of any family property, and the appellant denied his liability on the ground that the sale in his favour was effected for the payment of debts which were binding on the joint family, that the mortgage in favour of Sarubai was effected when the plaintiff's right of maintenance had not accrued as she was not a widow at that time and that she was not therefore entitled to impeach the transaction of mortgage in pursuance of which the sale took place after her husband's death. He further contended that he was a purchaser for consideration without notice of the plaintiff's right and for that reason also the plaintiff had no right to obtain any relief from him.
3. The trial Court held that the plaintiff was entitled to challenge the sale-deed in the appellant's favour in the present suit and that it was proved that the sale was not for legal necessity with the result that the plaintiff had a subsisting right of maintenance and residence in the property. It also held that the appellant had purchased the house with notice of the plaintiff's right of residence and maintenance, and that therefore was not protected by the terms of Section 39 of the Transfer of Property Act, 1882. The lower appellate 'Court has confirmed all the findings made by the trial Court and dismissed the appeal.
4. This second appeal is, therefore, preferred by defendant No. 2, and it is pressed onthe same grounds as were urged in the lower Court. The first point taken on behalf of the appellant is that the plaintiff is not entitled to challenge the sale transaction as well as the previous mortgage transactions because under the Hindu law she takes her right of maintenance as well as residence in the property as it stood at the time of her husband's death and that she cannot set up her right as against alienations effected during her husband's lifetime. For that argument reliance is placed on the decision in Ramzan v. Ram Daiya. (1917) I.L.R. 40 All. 96 It was there heldthat a widowed daughter-in-law is debarred from setting up the plea of the invalidity of an alienation effected by the' father-in-law during her husband's lifetime. A mortgage was executed in that case by the father of the widow's deceased husband during his lifetime. Thereafter the husband died. A portion of the property was purchased by the plaintiff Ramzan from the father by a private sale and the rest of it was purchased at an auction-sale in execution of the decree on the mortgage passed by the father. In execution of the decree the plaintiff was resisted by the widow, and her objection having been sustained, the plaintiff brought a suit against her for possession. Her defence was that the mortgage by her father-in-law was not executed for legal necessity and was not binding on her, nor was the decree to which she was not a party binding on her. It was held that she was not entitled to challenge the validity of the mortgage made by the father-in-law during her husband's lifetime, although it might have been open to her to challenge it if it was made after her husband's death. A general proposition was laid down that the widow took the right of maintenance and residence in the property as it stood at the time of her husband's death, and that she cannot set up her right as against alienations effected during her husband's lifetime. I think the proposition is stated rather too broadly. There is, to my mind, a distinction between an alienation made by the husband himself and an alienation made by any other person of the husband's family especially when the husband is a minor. In the case of an alienation made by her husband the widow would not be entitled to challenge it after her husband's death. But in the case of alienations made by other members of the family, her right to challenge them would depend, in my opinion, upon their nature and the capacity of the persons making them. In the Allahabad case the alienation was made by the husband's father and it may be said that it was binding on the son provided that it was not for an illegal or immoral purpose. In the present case, however, the alienation is by a brother and is also of a different character. It has been found by the lower Court that out of the total consideration of the sale-deed, viz. Rs. 4,223, a very large part amounting to Rs. 3,123 consisted of a debt due under a mortgage passed to Sarubai which did not bind the interest of the plaintiff's husband at all. It is held that this debt was incurred in respect of an absolutely new business started by defendant No. 1, and as has been recently held by the Privy Council in Benares Bank, Ld. v. Hari Narain the manager of a joint Hindu family has no authority to impose upon a minor member the risk and liability of a new business started by him, and that it made no difference that the manager was the father of the minor. That being so, it is quite clear that the mortgage-debt was not binding on the plaintiff's husband who was a minor not only when the mortgage was passed but also when he died in 1936. Then with regard to the remaining portion of the consideration it is also 'found that there was no evidence to show that defendant No. 1 borrowed the amount for payment to one of the previous mortgagees and that the sum paid in respect of satisfaction of that mortgage would not be binding on the plaintiff's husband. A part of the consideration of the mortgage-deed represented some loans to satisfy the personal debts, of defendant No. 1, and it was held that those debts being his personal debts and not of the family, they were also not binding on the plaintiff's husband. The result was that no part of the consideration of the sale-deed was binding on the share of the plaintiff's husband in the joint family property.
5. It is urged that the transaction was not invalid against the minor, but as it was entered into by the manager of a joint Hindu family, it was only voidable but not void in its inception. In my opinion, however, the greater part of the consideration for; which the sale was entered into, viz. the debt of the mortgage in favour of Sarubai, cannot be said to be voidable but was wholly invalid. In Benares Bank, Ld. v. Hari Narain the mortgage transaction was considered as wholly invalid as against the minor co-parceners and not merely voidable. With regard to the other part of the consideration also the plaintiff was entitled) to contend that the debts being personal debts of defendant No. 1, the minor's interest was not bound by them. I think, therefore, that the plaintiff is not only entitled to challenge the sale transaction, but she has succeeded in proving that her husband's share in the property was not at all affected by that or any other previous alienation.
6. It is contended that the decision in Ramzan's case has been noted with approval by our Court in Gurushiddappa v. Parwatewwa. : AIR1937Bom135 It is no doubt referred to, but it is distinguished on its facts. It was not necessary to examine whether the proposition was too broadly stated in Ramzan's case which was distinguished on the ground that there the alienation was before the husband's death while in the case which our Court was considering it was after the husband's death. There was thus no occasion for considering the case of an alienation made by the husband's brother during his lifetime as in the present case with regard to the mortgage of 1929. The correct principle, in my opinion, has been laid down in Jamiat Rai v. Mst. Malan (1931) I.L.R. 13 Lah. 41 and it is to the effect that although a widow is not entitled to claim maintenance out of the property transferred or attached in execution of a decree for an alienation made by her deceased husband, she is entitled to challenge' debts incurred by a coparcener, such as a son or a brother of her husband, and to enforce her rights against the property sold to pay off those debts, unless it was proved that they had been incurred for family necessity. The learned advocate for the appellant relied upon a full bench decision of this Court in Fakirappa Limanna v. Lumanna bin Mahadu I.L.R. (1919) 44 Bom. 742 in which it was held that a minor on his attaining majority was not competent to dispute an alienation made by his guardian if he did not sue to set it aside within three years from his attaining majority. That decision however relates to an alienation by a natural guardian) and not by a manager of a joint Hindu family. It has been rightly held in Sheoraj v. Ajudhiya (1929) I.L.R. 4 Luck. 503 that Article 44 of the Indian Limitation Act has no application to a suit to set aside a transaction entered into by a manager of the joint Hindu family, and therefore, the minor on attaining majority was not required to challenge the sale-deed passed by such manager without legal necessity which was void in its inception. In the case of a person who is not a manager but a de facto guardian it has been held by a full bench of our High Court in Tulsidas v. Vaghela Raisingji I.L.R. (1932) 57 Bom. 40 that such guardian can validly sell the minor's property only for his benefit or legal necessity. It would therefore be void if no legal necessity was proved. It is thus quite clear that if such alienation is made either by a manager of a Hindu family or a de facto guardian of the minor's interest in the property, it is not voidable but is void in its inception. If the alienation is made by a natural guardian or a guardian appointed by the Court, then only it is required to be' avoided within three years after attaining majority. In the present case defendant No. 1 was not a natural guardian, nor was he a guardian appointed by the Court. He was at the most a de facto guardian, and even taking it that he: purported to act as manager, the transactions would be void and ineffective against the minor's interest if they are not supported by legal necessity. Looked at in any way, therefore, the transactions of the sale-deed as well as the previous mortgages would be invalid and would not affect the minor's interest, with the result that the appellant by his sale-deed of 1937 cannot be said to have acquired the minor's half share in the property.
7. The next point urged on behalf of the appellant is that although it is found by the lower Courts that he had notice of the plaintiff's right of maintenance when he took the sale-deed, Section 39 of the Transfer of Property Act was not applicable to the facts of this case because the amended section came into operation in 1930 and the mortgage transaction was in 1929, and the amendment was not made retrospective in its effect. It is contended, therefore, that the section as it stood previously would apply, with the result that on the terms of that section it was necessary to prove that the transfer was made with the intention of defeating the right of maintenance, and as there is no proof in the present case of such intention, the plaintiff was not entitled to claim the property against the appellant. This argument is, in my opinion, not correct. Section 11 of Act XX of 1929, which amended Section 39 of the Transfer of Property Act, is not mentioned in Section 63 of the amending Act. Therefore the amendment in Section 39 of the Transfer of Property Act made by Section 11 of the amending Act must be regarded as retrospective in its effect, with the result that the plaintiff has not got to prove the intention of defeating the right of maintenance but only that the purchaser had notice of that right. Such notice is proved in this case' and the plaintiff can enforce her right against the property in the appellant's hands.
8. The last point urged on behalf of the appellant is that the lower Court was wrong in making the whole of the suit property in the appellant's possession as a charge for the plaintiff's maintenance. Generally speaking the property that is made a charge for the widow's maintenance and residence is her husband's share in it, and I think that the lower Court ought therefore to have charged only half of the property. There is now no question of separate residence because the lower Courts have given her a, lump sum for her right of residence.
9. The result, therefore, is that the decree of the lower Court is modified to the extent that the charge' in the plaintiff's favour for the amount of her maintenance and residence would be made not upon the whole of the suit property in the appellant's possession but upon a moiety of it. The decree of the lower Court is confirmed with this modification and the appeal is dismissed with costs.