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Bai Parvati Vs. Dayabhai Manchharam - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtMumbai
Decided On
Case Number Second Appeal No. 804 of 1917
Judge
Reported in(1920)22BOMLR704; 58Ind.Cas.266
AppellantBai Parvati
RespondentDayabhai Manchharam
Excerpt:
.....of law which may arise. there may have been circumstances in the case which would have enabled gulab and parvati together to give a good title to a third party of the property in question. if those interests together made up what may be called a fee in the property donated, then no doubt it would be a good transaction. in my opinion the gift was only good as regards the life-interest of gulab. but there is no direct authority on the point under hindu law, though there are dicta in several cases which have been cited which clearly show that it is the opinion not only of judges in india, but also of their lordships of the privy council that hindu law does not recognise the transfer of a spes successions. therefore the respondents have not satisfied us that this transfer by parvati of..........was effected. but keeping strictly to the facts in this case at the time of the deed of gift, gulab was the life tenant, parvati had the chance of succeeding to the property on gulab's death if she happened to survive gulab. in these circumstances the document of 1891 was executed. gulab conveys her life-interest, parvati conveys her chance of succeeding after the death of gulab. if those interests together made up what may be called a fee in the property donated, then no doubt it would be a good transaction. but it cannot be said, however one looks at the case, that the whole of the fee was conveyed to defendants 1 to 4 by that document. it is not a case of an alienation by a widow of property of which she is the life tenant with the consent of the next reversioner. from such.....
Judgment:

Norman Macleod, Kt., C.J.

1. One Kashidas died in 1868 leaving a widow Gulab, a son Ghelabhai and two daughters Parvati and Jekore, His property descended to his son Ghelabhai. On Ghelabhai's death his mother Gulab became his heir. Gulab died in 1911. In 1891 Gulab and Parvati one of the daughters gifted two properties to defendants Nos. 1 to 4 who were the minor sons of the deceased daughter Jekore, purporting to convey those properties by Gulab as the life-tenant and by Parvati as the next reversioner. After the death of Gulab, Parvati filed this suit to recover the property from the donees under the gift of 1891 on the ground that the deed as against her was invalid as it conveyed her chance of surviving Gulab, and succeeding therefore to the property as reversioner.

2. The trial Court dismissed the suit, and the appeal against the order of dismissal was also dismissed by the First Class Subordinate Judge. A good deal of confusion often arises in cases of this nature owing to the facts of the case not being properly held in view in arguing the points of law which may arise. There may have been circumstances in the case which would have enabled Gulab and Parvati together to give a good title to a third party of the property in question. It all depended on the manner in which the transaction was effected. But keeping strictly to the facts in this case at the time of the deed of gift, Gulab was the life tenant, Parvati had the chance of succeeding to the property on Gulab's death if she happened to survive Gulab. In these circumstances the document of 1891 was executed. Gulab conveys her life-interest, Parvati conveys her chance of succeeding after the death of Gulab. If those interests together made up what may be called a fee in the property donated, then no doubt it would be a good transaction. But it cannot be said, however one looks at the case, that the whole of the fee Was conveyed to defendants 1 to 4 by that document. It is not a case of an alienation by a widow of property of which she is the life tenant with the consent of the next reversioner. From such consent it can be presumed that the alienation by the widow was for a necessary purpose. The onus would lie upon the person disputing the alienation to show that it was not for necessary purposes. Again the widow might have relinquished the whole of her life-interest into the hands of the next reversioner, in which case the next reversioner will then become solely entitled to the property. It cannot be said here that Gulab relinquished her interest in the proportion gifted to the defendants 1 to 4 by Parvati before the gift was made.

3. Therefore we must consider only the facts as they occurred in this case. What the defendants 1 to 4 got under the deed of gift was the life interest of Gulab plus the chance of Parvati succeeding to the property on the death of Gulab. These were two distinct interests and it cannot be contended that under the gift the defendants 1 to 4 were solely entitled to the whole of the interests in the property. In my opinion the gift was only good as regards the life-interest of Gulab.

4. It has been urged upon us that the father of defendants 1 to 4 gave consideration for the gift by maintaining Gulab. Although that does not seem to me to affect the appellant's argument in any way, there can be no hardship, at any rate as regards defendants 1 to 4, if their father maintained Gulab, during the time he was in possession of the property during Gulab's life-time.

5. So then the transfer by Parvati in the deed of gift of 1891 of her chance of succeeding to the reversion cannot be sustained. It is certainly bad under Section 6 of the Transfer of Property Act, and it would lie upon the respondents to show that Section 6 does not apply because by the provisions of Hindu law such a transfer is recognised as good. But there is no direct authority on the point under Hindu law, though there are dicta in several cases which have been cited which clearly show that it is the opinion not only of Judges in India, but also of their Lordships of the Privy Council that Hindu law does not recognise the transfer of a spes successions. Therefore the respondents have not satisfied us that this transfer by Parvati of her chance of succession is valid. If then it is invalid there is an end of the case, unless it can be argued that Parvati is prevented by some rule of law from setting up the contention that the deed as regards her interest is invalid. I know of no rule of law which can prevent a party from asking the Court to hold that a particular transaction, which as a matter of fact is invalid, should be held to be valid.

6. There can be no estoppel on a point of law. The fact is that it is the duty the Court as' soon as the invalidity of a transfer is pointed out, if it is satisfied that there is such an invalidity, to set aside the document. Therefore in my opinion the deed of gift to defendants 1 to 4 was good only as regards the life-interest of Gulab, and was bad as regards the transfer of a chance which Parvati had at that time to succeed to the reversion. Therefore the appeal succeeds and the decree of the lower appellate Court must be set aside. There must be a decree in favour of the plaintiff for possession of the property with mesne profits from the date of the suit and costs throughout. Under Order XXXIII, Rule 10 the plaintiff to pay Court fees.


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