Alladi Kuppuswami, J.
1. The appellants in this appeal are defendants 1 and 2 in O. S. No. 59/61 on the file of the Subordinate Judge's Court, Ongole. That suit was filed by the respondents herein for recovery of possession of certain properties, which according to the plaintiffs belonged to one Abburi Subbaiah, who died on the 20th October, 1918 leaving his widow Kotilingamma, a son, Punnaiah and a daughter, Chenchamma. The son and daughter died immediately after the death of the father, on the 30th October, 1918. The case of the plaintiff was that after the death of Subbaiah, his son Punnaiah became entitled to has properties and on his death, his mother Kotilingamma was entitled to a Hindu woman's estate. Kotilingamma died on 1-6-1961 and on her death, the plaintiffs, were entitled to the properties as reversioners, they being the grandfather's brother's grand-sons of Subbaiah. Subbaiah had executed a will dated 20-10-1918 whereby he bequeathed his properties absolutely in favour of his son, Punnaiah and in case, his son did not survive him, to his widow Kotilingamma absolutely. Thereafter, on 11-9-1937 Kotilingamma executed a settlement in favour of the first defendant who was her paternal uncle's son and who had been brought by her to her house in order to assist her in cultivation. By this document, she also settled certain other properties which belonged to her in her own right. After the coming into force of right. After the coming into force of the Hindu Succession Act on 17th June, 1956, Kotilingamma and the donee under Ex. B-2, namely the first defendant, executed a settlement in favour of the first defendant's wife, the second defendant. In that settlement, it was recited that the settlers had come to know that the will executed by Abburi Subbaiah was not valid, as he had a minor son living, at that time and hence the settlement-deed executed by Kotilingamma in favour of the first defendant was also invalid. Hence, as Kotilingamma had acquired absolute right under the Hindu Succession Act, she and the first defendant were again executing a settlement deed in favour of the second defendant.
2. The plaintiffs contended that the will executed by Subbaiah was invalid for the reason that his minor son was living at the time, that the settlement by Kotilingamma in favour of the first defendant could not convey absolute rights to the donee, but the settlement operated to convey her woman's estate, that as Kotilingamma had parted with possession on the coming into force of the Hindu Succession Act, she did not acquire absolute rights to the properties under defendant could not affect the rights of the plaintiffs who were the reversionsers. Defendants 1 and 2 contended that as Subbaiah's son Punnaiah was congenitally blind, the will executed by Subbaiah was valid and Kotilingamma had absolute rights to the properties under the will. Even if the will was invalid, she continued to be in possession of the properties even after the settlement by her in favour of the first defendant in 1937 and therefore, she acquired absolute rights under Section 14 of the Hindu Succession Act and therefore, could convey absolute rights to the second defendant under the settlement-deed, Ex. B-3. The trial court held that Punnaiah was not congenitally blind and hence the will executed by Subbaiah when his son was alive, is not valid. It also held that Kotilingamma was not in possession on the date of coming into force of the Hindu Succession Act and her rights therefore, did not become enlarged under Section 14 of that Act. In the result, he gave a decree for possession of items 2, 3 of B Schedule and items 1, 2, 4, and 6 of C Schedule and for partition and separate possession of 2/3rd share in regard to plaint 'A' Schedule and item 1 of B Schedule. Defendants 1 and 2 preferred an appeal, A. S. 195 of 1965 to this court in regard to items 2 and 3 of B Schedule and items 1, 2 and 6 of C Schedule which formed part of properties covered by the settlement, Ex. B-2 dated 11-9-1937 executed by Kotilingamma in favour of the first defendant. Our learned brother, A. D. V. Reddy, J., agreed with the trial Court and dismissed the appeal with costs. It is against the said judgment and decree that this appeal is filed by defendants 1 and 2 in the suit.
3. No arguments were address on the finding of the trial Court that Punnaiah was not congenitally blind and that the will, Ex. B-1 executed by Subbaiah on 20-10-1918 was invalid. It was, however, contended by the learned Advocate-General on behalf of the appellants that Kotilingamma acquired absolute title to the properties under Section 14 of the Hindu Succession Act, as she was in possession, or deemed to have been in possession of the properties on the date when the Act came into force. In the first place, he contended that the settlement, Ex. B-2 was not intended to be acted upon and was not acted upon and Kotilingamma continued to be in possession notwithstanding the settlement and he relied on the evidence of P. W. 1 that Kotilingamma was enjoying the properties as she was enjoying prior to the document in favour of the first defendant. We are not inclined to agree with this submission. There is no plea in the written statement that the settlement was a sham transaction or that it was not intended to be acted upon and was not acted upon. It is also in evidence that the donee and his wife who were brought up her and who are her cousin and niece were living in the same house along with Kotilingamma. All that the evidence of P. W. 1 amounts to is that the those circumstances she continued to enjoy the properties. We cannot take this as an admission that the settlement was not acted upon.
4. It was further contended on behalf of the appellate that even if the settlement was acted upon, Kotilingamma could not claim any rights whatsoever under the will which was invalid and no rights passed to the donee under the said document. Hence, even if the donee was in possession under the document, it must be deemed to be on behalf of the true owner, Kotilingamma and she must be deemed to be in possession on the date when the Hindu Succession Act came into force. Under, Section 14 of that Act, the Hindu woman's estate which she possessed became enlarged into an absolute estate and therefore, she was entitled to convey those rights under Ex. B-3 in favour of the second defendant. On the other hand, it is contended on behalf of the respondents that a the will was invalid, Punnaiah became entitled to the properties on the death of his father and on his death Kotilingamma was entitled to a Hindu woman's estate as his mother and though under the settlement, Ex. B-2 she purported to convey the properties absolutely to the donee, the first defendant, the settlement was not void but was only voidable at the instance of the reversioners. Hence, it operated to convey her Hindu woman's estate in favour of the donee. As it was valid to that extend and as Kotilingamma had parted with her possession in pursuance of the settlement, she was not in possession on the date of the Hindu Succession Act and hence Section 14 did not enlarge her rights with the result that under Ex. B-3 she could not convey an absolute right to the suit properties in favour of the second defendant. On her death, therefore, the plaintiff's as reversioners were entitled to the properties.
5. In support of the respondents' contention that an alienation by a widow is not void, but voidable at the instance of the reversioners, reliance was placed on Bijoy Gopal Mukerji v. Krishna Mahishi Debi, (1907) ILR 34 Cal 329 (PC) and other decisions. It was therefore, argued that the settlement deed, Ex. B-2 executed by Kotilingamma was valid during her life time. The next step in the argument was that if there is an alienation by a Hindu widow, she cannot be said to be in possession within the meaning of Section 14 of the Hindu Succession Act. This submission in which it has been held that the section can have no application where a Hindu widow alienates the property, in which case she cannot be said to be in judicial possession at the commencement of the Act. This submission in which it has been held that the section can have no application where a Hindu widow alienates the property, in which case she cannot be said to be in judicial possession at the commencement of the Act. In Kotturuswami v. Veeravva, : AIR1959SC577 the Supreme Court observed that the object of the Act was to improve the legal status of Hindu women, enlarging their limited interest in property inherited or held by them to an absolute interest, provided they were in possession of the property when the Act came into force; but the Act was not intended to benefit alienees who purchased the property from the limited owners at a time when the vendors had only a limited interest of Hindu women. In this case, however, we are concerned with a mere case of alienation by a Hindu widow of the property. In the settlement executed by Kotilingamma in favour of the first defendant, it is recited that her husband died after executing a will enabling her to enjoy the property with absolute powers of disposition. Under that document she conveyed the property which passed to her through a will executed by her husband, as well as her self-acquired property. Thus, it is clear from the recitals of this document that she was under the impression that she was entitled to the property absolutely under the will executed by her husband and she was conveying that property as the legatee of her husband, but the read position was that the will was invalid as the testator had a minor son living at that time and therefore Kotilingamma did not acquire any interest as a legatee. On the death of her husband the property passed to her son, Punnaiah and on the latter's death she inherited the property as Punnaiah's mother. Thus, her interest in the property was only that of an heir of Punnaiah and she had only a Hindu woman's estate. The settlement deed of property in her capacity as a legatee of her husband, whereas in fact, she was only an heir entitled to woman's estate of her son, Punnaiah could not have any effect at all and could not pass any title to the donee. We are inclined to agree with the contention of the appellants that the decisions cited on behalf of the respondents to the effect that the alienation by a Hindu widow is voidable, that it operates to convey the widow's or woman's estate to the alienee and therefore, she could not be said to be in possession of the property and hence Section 14 of the Hindu Succession Act does not enlarge her estate, have no application to the facts of the case.
6. It was next contended that even though Kotilingamma had not right to the property as legatee of her husband and even though she purported to convey the rights she possessed as a legatee, to the donee under Ex. B-2 the settlement would operate to transfer whatever interest she had in the property on that date, that is, the Hindu woman's estate to which she was entitled as mother of Punnaiah. Reliance was placed upon Section 8 of the Transfer of Property Act under which, unless a different intention is expressed or necessarily implied, a transfer of property passes forthwith to the transferee all the interest which the transferor is then capable of passing in the property, and in the legal incidents thereof. The learned counsel for the respondents drew our attention to certain decisions in this connection. In Subramania Patter v. Krishna Embrandri, 39 Mad LJ 590 = (AIR 1920 Mad 496) a Karnavan of a Tarwad who had absolute powers to transfer a decree purported to do so on the ground that it was his self-acquired property. It was held that the recitals as to under what particular state of facts he obtained his power to convey cannot affect the title of the transferee provided the transferor has got the power to give an absolute title and professes to convey such absolute title. Similarly, in Sabapathy Chetty v. Ponnuswamy Chetty, 28 1st Cas 365 = (AIR 1915 Mad 875) it was held that a gift by a father in favour of his daughter purporting to be in respect of his self-acquired property could be sustained even though it was joint family property, as even in such a case he had power to make a gift. It was observed that the donor intended to part with all the interest he possessed in any capacity in the property and that the recital in the deed that the properties were purchased with his self-acquired money did not in the circumstances of the case negative his intention of exercising any power of disposition he might have as managing member of the family. Another decision that was relied on is that of the Privy Council in Bijraj Nopani v. Pura Sundari, ILR 42 Cal 56 = (AIR 1914 SC 92). Where an executor who was also one of the beneficiaries sold the property of the testator together with all the estate, right, title and interest of the vendor it was held that the deed conveyed the whole title vested in the executor and not merely his beneficial interest, though he did not purport to convey in his capacity as executor. We do not think that these decisions apply to the facts of this case. The decisions relied on deal with cases where the alienor has got an absolute interest in the property and a right to dispose it of in two capacities and the mere fact that he purports to exercise the right in one capacity does not preclude the court from holding that all interest in the property in whatever capacity he has possessed passes under the document. Further, in these cases the alienor conveyed all interest he had in the property. In Ex. B-2 there is no recital that the donor is conveying all interest or whatever interest she had in the property. On the other hand, it is stated that she conveyed the property which passed to her through a will executed by her husband. It cannot therefore, by her husband. It cannot therefore, be argued that the she conveyed also here interest which she got as heir of Punnaiah. Section 8 of the Transfer of Property Act starts with the words 'Unless a different intention is expressed or unnecessarily implied'. In this case it appears to us that the intention was not to transfer all the interest whatever the transferor was capable of passing, but only the interest which she acquired under the will of her husband. As she did not any such interest, Ex. B-2 did not operate to pass any interest. Reliance was placed upon the following recitals in the settlement-deed; 'From now onwards you and your heirs alone shall enjoy the said property with absolute powers of disposition by way of gift and sale etc. But I and my heirs shall have no right or liability at the time.' We do not think that these words will have the effect of passing whatever interest the donor had in the property.
7. In this connection reference may be made to a decision of the Privy Council in Sahu Harprasad v. Fazal Ahmad, 60 In that case a Mahomedan sold two villages to his mother and left a substantial part of purchase money with her to be spent in charity. On his death, the mother spent some money in charity and then settled the villages to Wakf subject to a charge for the amount actually paid plus the amount spent in charity. The sale was set aside as being merely a clack for a gift in fraud of the heirs. The wakf fell with the sale, but it was contended that as the mother was entitled to a third share of the villages as heir to her son, the wakf was operative as to that third share. But the Privy Council held that the reservation of a charge for what she had paid and spend showed that the mother had no intention of settling anything of her own or anything except what she thought had been entrusted to her by her son. In this case also it appears to us that the intention of Kotilingamma was to settle the property which according to her she got absolutely under the will of her husband. But there was no intention on her part to settle the property which she got as heir to her son Punnaiah by way to Hindu woman's estate.
8. In Venkatappayya v. Raghavayya, : AIR1951Mad318 it was held that it was incompetent for an undivided member of a Hindu family to alienate by way of gift his undivided share or any portion thereof and such alienation is void in toto, and as there were no rights created by a void transaction, Section 8 of the Transfer of Property Act has no application.
9. It was then contended on behalf of the respondents that the recital that Kotilingamma got the property under a will executed by her husband would amount only to a mis-description regarding the identify and the learned counsel referred in this connection to Section 78 of the Indian Succession Act and to the decision in Sheodhyan Singh v. Sanichara Kuer, : AIR1956Pat349 . We do not think that the present case can be said to be a case of mere mis-description.
10. In the result we are of the view that under Ex. B-2 no title passed to the donee, but it continued with Kotilingamma. Therefore the possession of the donee would in law be the possession of Kotilingamma. In Mangal Singh v. Rattno, AIR 1967 SC 1786 the Supreme Court accepted the contention that even if a female Hindu is out of possession the property must be held to be possessed by her, if her ownership rights in the property still exist and in exercise of those ownership rights she is capable of obtaining actual possession of it. We therefore, hold that Kotilingamma's rights were enlarged by reason of Section 14 of the Hindu Succession Act and she became entitled to the property absolutely on and after that date. She was therefore, entitled to execute the second settlement-deed, Ex. B-3 along with the first defendant in favour of the second defendant. The reversioners of Subbaiah were not therefore, entitled to ask for possession of the property.
11. It follows that the decision of our learned brother, A. D. V. Reddy, J. has to be set aside and the suit dismissed in respect of the items which are the subject-matter of the appeal viz., items 2 and 3 of the B Schedule and items 1, 2 and 6 of C Schedule, but in the circumstances we direct each party to bear its own costs throughout.
12. Appeal allowed.