George Knox, Tudball and Chamier, JJ.
1. The facts of this case as found by the court below and which are not now contested before us are briefly as follows:
Rup Ram, a separated Hindu, died leaving a widow, Musammat Ganga Kunwar, and a mother, Musammat Parbati. One part of his estate was a debt secured by a simple mortgage over certain property. The widow and mother without legal necessity transferred this by deed of sale in favour of the present plaintiff appellant, who has brought this suit for sale impleading as defendants,
(1) the mortgagors or their representatives,
(2) the transferors of the bond, and
(3) certain prior mortgagees who had sued upon their bond without impleading the puisne mortgagee and having obtained a decree for sale had in execution thereof purchased the property and obtained possession.
2. The mortgagors did not defend the suit. The vendors admitted the claim. The prior mortgagees contested it, and the one defence with which we are concerned in this appeal was that the plaintiff had no right to sue, as the sale was without legal necessity and the widow could not transfer her right to sue.
3. During the pendency of this suit certain reversioners brought another suit against the two ladies and their vendee asking for a declaration that the sale in favour of the latter was null and void as against them, and that under it the vendee acquired no right to the bond. They claimed that their maternal grand-father Puran Mal and Rup Ram had been joint, and that on the death of the latter Puran Mal became the sole owner of the joint family property, and on his death their mother, whom they also impleaded, became entitled to a life interest.
4. The two suits were heard together, and the court held that Rup Ram was separate from Puran Mal and was the last male owner, but that the plaintiffs in the second suit were the next reversioners as being bandhus; that the transfer was without legal necessity, and that the transferee acquired no right under the sale-deed. It accordingly decreed the suit of the reversioners in toto and dismissed that of the transferee Musammat Durga.
5. The latter appealed in both suits, and the appeals coming before a Bench of this Court, the Judges who constituted that Bench, differed on the question of law which arises for decision in the case. The learned Chief Justice agreed with the court below. Mr. Justice Banerji held that the widow at least transferred to the appellant her interest as a Hindu widow, and she being still alive the transferee was entitled to sue and recover the debt, and that the reversioners were only entitled to a declaration in their suit that the transfer, as against them, was null and void.
6. The present appeal has been preferred under the Letters Patent.
7. In our view the decision of Mr. Justice Banerji is correct.
8. In the circumstances the suit of the reversioners is, from the point of view of their interests, suicidal. If the assignee cannot sue to recover the debt, the bar of limitation will prevent both the widow and the reversioners, who succeed her, from recovering the money. Their suit has, therefore, been brought really in the interests of the prior mortgagees.
9. It is not denied that the estate of a Hindu widow is more than a mere life interest. She is an owner whose powers of alienation are restricted. See Bijoy Gopal Mukerji v. Krishna Mahishi Debi (1907) I.L.R., 84 Calc., 329. In certain circumstances she can represent the estate and her acts will bind the reversioners.
10. She is entitled to enjoy and spend the whole income of the estate, though she can be restrained from wasting and destroying the corpus, and there is nothing in law to prevent her from transferring her so-called life interest. A transfer by her of the corpus of the estate without legal necessity and not for a pious purpose, is not void, but is voidable by the reversioners and may be so declared at their instance. It cannot be denied that if she transferred immovable property in this manner her transferee would be entitled to hold and possess it during her life-time and to recover possession of it by suit as against a third party who was wrongfully in possession; i.e., if the mortgage in the present instance had been usufructuary, her transferee would clearly have been entitled to sue for possession, provided there was no bar of limitation.
11. In the present case the widow is entitled to spend all income accruing on the debt after the death of Rup Ram and her transferee is 'at least' entitled to recover this amount and to appropriate it to her own use. It is impossible to hold, therefore, that the latter has no power to sue. It may be that if the reversioners intervened in the suit of the assignee, the court might pass such a decree as would protect their interests and the corpus of the estate, but in the present case, though they are fully aware of the suit, they have not intervened to protect their own interests; on the contrary, they have preferred the suicidal course of attempting to destroy the corpus by preventing the recovery of the debt.
12. We agree with Banerji, J., that the transferee acquired all the rights which the widow had, and could exercise, during her life-time in respect of the mortgage, one of those being the right to recover the debt. It is pleaded that if the mortgagors pay the debt they will be open to another suit by the reversioners on the death of the widow and may have to pay a second time. The widow is a party to the suit and the estate is duly represented, and we do not think that there is any force in the argument. It is urged that the sale for Rs. 7,500 in the present case of a debt amounting to over one lakh is, on the face of it, a wasting of the corpus by the widow. We can express no opinion on this at this stage, nor are we called upon to do so. The value of the property mortgaged and the amount of the prior burden are two other material factors which would have to be considered in this connection. But the point does not arise for our decision.
13. We, therefore, allow this appeal and set aside the decrees both of this Court and of the Additional Subordinate Judge, and remand the suit to the latter court for decision on the merits. The appellant will have her costs in this Court in any event.