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Harihar Prasad Vs. Udai Nath Sah - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtAllahabad
Decided On
Judge
Reported in(1923)ILR45All260; 74Ind.Cas.113
AppellantHarihar Prasad
RespondentUdai Nath Sah
Excerpt:
hindu law - widow--gift to third person with consent of next reversioner--reversioner an adjudicated insolvent--donee, rights of. - - we may add that the present case is a particularly strong one. we are satisfied, therefore, that the decision under appeal is correct......the name of the insolvent is champa prasad and he was so adjudicated on the 21st of june, 1918. champa prasad's mother was one ganeshi kunwar, the daughter of one durga prasad. this gentleman died possessed of considerable property, which passed with a widow's estate to his widow, musammat mula kunwar. this lady died in the month of december, 1919, and it is admitted that, thereupon, the property passed to ganeshi kunwar, also with the limited estate, of a hindu widow. that lady, however, proceeded to execute at once a deed of gift conveying the whole estate to her grandson, harihar prasad, the son of the insolvent champa prasad, who joined with her in the execution of the document.2. on the death of musammat ganeshi kunwar, the creditors of the insolvent, claimed to take this.....
Judgment:

Piggott and Walsh, JJ.

1. This appeal in an insolvency matter raises a pure question of law. The name of the insolvent is Champa Prasad and he was so adjudicated on the 21st of June, 1918. Champa Prasad's mother was one Ganeshi Kunwar, the daughter of one Durga Prasad. This gentleman died possessed of considerable property, which passed with a widow's estate to his widow, Musammat Mula Kunwar. This lady died in the month of December, 1919, and it is admitted that, thereupon, the property passed to Ganeshi Kunwar, also with the limited estate, of a Hindu widow. That lady, however, proceeded to execute at once a deed of gift conveying the whole estate to her grandson, Harihar Prasad, the son of the insolvent Champa Prasad, who joined with her in the execution of the document.

2. On the death of Musammat Ganeshi Kunwar, the creditors of the insolvent, claimed to take this property as that of the insolvent Champa Prasad. On objection taken by Harihar Prasad, the insolvency court has gone into the question, but Las upheld the contention of the creditors. The finding of the court below is that this property vested in the insolvent Champa Prasad on the death of his mother, Ganeshi Kunwar. In undoubtedly did so vest, unless it had previously passed to Harihar Prasad under the deed of gift of the 11th of December, 1919.

3. There is one complication which ought to be mentioned. One of the creditors held a mortgage, affecting a portion of the property concerned, which had been executed by Mula Kunwar, Ganeshi Kunwar and Champa Prasad, jointly, on the 4th of February, 1915. He has obtained a decree on his mortgage in a contested suit to which Harihar Prasad was a party. In that suit the court tried, as between the mortgagee and all the defendants, the issue whether the deed of gift of the 11th of December, 1919, conveyed anything to Harihar Prasad beyond the life-time of Ganeshi Kunwar. In substance the court round that this was an alienation by a Hindu widow without legal necessity; that it conveyed nothing to the donee beyond a right of possession and enjoyment in the life-time of the widow, and that, on the death of Ganeshi Kunwar, the property had vested in the insolvent Champa Prasad. It is Kuggested that this finding operates as res judicata, at any rate, as between the secured creditor and the appellant Harihar Prasad. The only answer to this is a contention on the part of Harihar Prasad that he' was not property represented in the suit on the mortgage. In the view which we take of the law applicable to the case as a whole, it is not necessary for us to go into this question. We thought it advisable to refer to this previous litigation, partly as a matter of record, and also became it is quite clear that in the mortgage suit the question of' the validity of the deed of gift in favour of Harihar Prasad was fought out solely on the ground of the presumption or otherwise of legal necessity for the transfer. Now, if this be the right way in which to regard this transfer, then the decision of the trial court is unquestionably right. To begin with, a transfer by way of gift cannot, broadly speaking, be supported by any allegation of legal necessity. If the fact that Champa Prasad, being the nearest reversioner living at the time, expressed his consent to the alienation by joining in the same, be relied upon merely as raising a presumption in favour of legal necessity, then that presumption is, in the case now before us, abundantly rebutted. Champa Prasad, having been adjudicated an insolvent, could derive no benefit from his succession to the property, which would revert to the receiver in bankruptcy on the very day he succeeded to it. It was obviously to his advantage to agree to a transfer of that property in favour of his own son and to the detriment of his creditors. The fact of his doing so raises no presumption whatever in favour of the necessity for the alienation.

4. It has, however, been contended before us that a transfer in favour of a third person--and for the purposes of the question now before us Harihar Prasad must be treated as a third party, who had no concern whatever in the possible devolution by inheritance of the estate in the hands of Ganeshi Kunwar--if made by a Hindu widow with the consent of the nearest reversionary heir living at the time of the alienation, so long as it be a surrender of the entire estate in the hands of such widow, operates as a valid transfer proprio vigore and not by reason of the reversioner's consent raising a rebuttable presumption as to legal necessity. This contention is sought to be founded on certain passages in the decision of their Lordships of the Privy Council in the case of Rangasami Gounden v. Nachiappa Gounden (1918) I.L.R. 42 Mad. 523, which is the latest and most authoritative pronouncement on the whole question of a Hindu widow's powers in dealing with the property of her husband to which she had succeeded with a life-estate on his death. It seems to us, however, that, where their Lordships definitely sum up the principles which they propose to lay down for the guidance of the courts in India, they limit the cases in which the question of necessity does not fall to be considered to those cases in which there has been a surrender by the widow of her whole interest in the whole of the estate in favour of the nearest reversioner or reversioners at the time of the alienation. They go on to deal with alienations in favour of persons who are not the nearest reversioners for the time being, and they seem to us to place all such alienations in the second category, that is, of alienations which require to be supported on the Ground of necessity. We may add that the present case is a particularly strong one. The older opinion, which was to some extent supported by decisions discussed in the judgment of their Lordships of the Privy Council above referred to, which treated a conveyance by a widow in favour of a third party as valid proprio vigore if made with the consent of the nearest reversioner or reversioners alive on the date of such alienation, was based upon the notion that there was a surrender of the estate into the hands of such reversioner or reversioners, instantly followed by a conveyance to a third party. Such a doctrine could not be applied in the present case because, if there was any vesting of the estate for a single moment in Champa Prasad on the day on which his mother Ganeshi Kunwar surrendered it by executing the deed of gift of the 11th of December, 1919, in that very same instant whatever rights vested in Champa Prasad passed to the receiver in insolvency and there was nothing which Champa Prasad could convey to his son. We are satisfied, therefore, that the decision under appeal is correct. We dismiss this appeal with costs.


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