Skip to content


Fateh Singh and ors. Vs. Raghubir Sahai and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad
Decided On
Reported inAIR1938All577
AppellantFateh Singh and ors.
RespondentRaghubir Sahai and ors.
Excerpt:
- - when dal chand gave evidence no doubt he did state that there was a mortgage which was satisfied, but this apparently related to paragraph 2 of the written statement of kandhai lal which is as follows: 3. now this paragraph refers clearly to the document of 14th july 1904 which is described by the plaint in para. i am satisfied that the learned single judge was mistaken in thinking that the courts below had held that the usufructuary mortgage of half a century ago in favour of tilok singh had been redeemed. issue 1 no doubt in the judgment of the trial court was 'has the mortgage deed in suit been satisfied? ',and it was held that it had been satisfied, but as the plaint shows that mortgage deed was the deed of sub-mortgage of 1904. i am satisfied therefore that the usufructuary.....bennet, ag. c.j.1. this is a letters-patent appeal brought by three plaintiffs whose suit was decreed by the two courts below, but has been dismissed by a learned single judge of this court. the plaint set out that tilok singh, (who was actually the maternal grandfather of the plaintiffs), had received a mortgage with possession of a certain share of zamindari property. the date of this mortgage is not given, but in evidence it has been admitted by defendant 5, dal chand, that tilok died some 40 or 45 years ago and the usufructuary mortgage in his favour by durjan singh must have been prior to that date. the plaintiffs further set out that tilok singh died and left two widows, mt. bilka kuar and mt. gaura. on 23rd july 1907, mt. bilka kuar executed a sale-deed in favour of dal chand,.....
Judgment:

Bennet, Ag. C.J.

1. This is a Letters-Patent appeal brought by three plaintiffs whose suit was decreed by the two Courts below, but has been dismissed by a learned single Judge of this Court. The plaint set out that Tilok Singh, (who was actually the maternal grandfather of the plaintiffs), had received a mortgage with possession of a certain share of zamindari property. The date of this mortgage is not given, but in evidence it has been admitted by defendant 5, Dal Chand, that Tilok died some 40 or 45 years ago and the usufructuary mortgage in his favour by Durjan Singh must have been prior to that date. The plaintiffs further set out that Tilok Singh died and left two widows, Mt. Bilka Kuar and Mt. Gaura. On 23rd July 1907, Mt. Bilka Kuar executed a sale-deed in favour of Dal Chand, defendant 5, and Chandan, the father of defendants 1 to 4. This sale-deed was of one-half of the mortgagee rights which she owned jointly with the co-widow. The consideration was Rs. 250. Both widows and a daughter are now dead. The remedy asked in the plaint is a declaration that this transfer was not binding on the plaintiffs who are reversioners and that they might eject the defendants and be put in proprietary possession of the property detailed below. Now as the plaint was originally brought it was somewhat different and the reference was only to a deed of sub-mortgage by Mt. Bilka Kuar dated 14th July 1904. In regard to that document the written statement of Kandhai Lal, defendant 1, was that it had been paid up and further it was claimed that it did not relate to the property in relief (c) of the plaint. Apparently this position was accepted by the plaintiffs and the plaint was amended by the introduction of the sale-deed of 23rd. July 1907 as the basis of the plaint. It may be noted? in passing that two other defendants Mt. Gulab Kuar and Mt. Bhagwan Kuar were merely persons to whom it was alleged that during the pendency of the suit deeds of gift had been made by the other defendants and their case need not detain us. Now the Courts below found that there was no legal necessity for the sale-deed of 23rd July 1907. The Courts therefore decreed the suit of the plaintiffs. The learned single Judge took a view that Mt. Bilka Kuar was entitled to recover a debt and therefore she could accept money from some other person who was willing to pay the debt and she could transfer her mortgagee interest to that person. He further stated:

It has been found by the Courts below that the mortgage which was transferred to Dal Chand and Chandan has now been redeemed.

2. Accordingly he allowed the appeal of the defendants and dismissed the suit of the plaintiffs. Now in regard to his statement that the mortgage has now been redeemed, learned Counsel for respondents contended that this referred to the usufructuary mortgage deed of the period of about half a centuary ago. It has never been the pleading in the written statement that that usufructuary mortgage deed has been paid or redeemed. When Dal Chand gave evidence no doubt he did state that there was a mortgage which was satisfied, but this apparently related to paragraph 2 of the written statement of Kandhai Lal which is as follows:

The deed of mortgage, dated 14th July 1904, has been paid up. The plaintiffs have brought this suit on some misunderstanding. Probably the claim has been got up on the basis of a paid deed of mortgage by looking the name of the contesting defendants entered in the khewat.

3. Now this paragraph refers clearly to the document of 14th July 1904 which is described by the plaint in para. 10 as a sub-mortgage by Mt. Bilka Kuar. The defence that that sub-mortgage had been paid up was apparently correct. In this paragraph however there is an admission that the names of the contesting defendants are still in the khewat. It is shown therefore that the contesting defendants are still in possession except so far as they have made deeds of gift during the pendency of the suit. I am satisfied that the learned single Judge was mistaken in thinking that the Courts below had held that the usufructuary mortgage of half a century ago in favour of Tilok Singh had been redeemed. Issue 1 no doubt in the judgment of the trial Court was 'Has the mortgage deed in suit been satisfied?', and it was held that it had been satisfied, but as the plaint shows that mortgage deed was the deed of sub-mortgage of 1904. I am satisfied therefore that the usufructuary mortgage referred to in the plaint as made in favour of Tilok Singh is still in existence as a usufructuary mortgage and has not been redeemed. The learned single Judge drew a distinction between moveable and immovable property. He states:

There is however one other argument which in my opinion is sufficient to cause the suit to fail. I am not satisfied that this was an alienation which the widow was not entitled to make in accordance with Hindu law. It has been more or less presumed that the widow was transferring immovable property.

4. He then proceeded to state that a mortgage was primarily a debt and apparently he considered that because this mortgage was a debt it was therefore moveable property and could be alienated by the widow. Now there are several propositions here which I consider are incorrect. In Bhugwandeen Doobey v. Myna Baee (1866-67) 11 M.I.A. 487 it has been laid down as long ago as 1867 by their Lordships of the Privy Council that no part of the husband's estate moveable or immovable forms portion of his widow's 'stridhan' and she has no power to alienate the estate inherited from her husband to the prejudice of his heirs which at her death devolves on them. This ruling shows therefore that neither the moveable nor the immovable property which forms part of the husband's estate can be alienated by a Hindu widow. I am satisfied that the distinction drawn between moveable and immovable property in the judgment of the learned single Judge is not correct. In connexion with his proposition that the mortgage in suit is moveable property, the learned single Judge referred to the ruling in Jang Bahadur v. Bhagat Ram Sheo Prasad : AIR1930All110 , where it was held that the interest of a mortgagee in the usufructuary mortgage is immovable property for the purpose of Order 21, Rule 89. That ruling proceeded on the ground that the General Clauses Act stated 'immovable property shall include land, benefits to arise out of land, etc.' and the Court held that under the definition in Section 58, T.P. Act, a mortgage was a transfer of an interest in land. Now in the case of a usufructuary mortgage, the mortgagee holds possession of the land and receives the usufruct of the land and clearly that usufruct would come under the words 'benefit to arise out of land.' In the case of a simple mortgage the matter is different because there is the right of the mortgagee to recover his debt which is a right to sue and there is no doubt a transfer of an interest in immovable property for the security of that debt. If the debt is considered in the case of a simple mortgage then no doubt the simple mortgage is not immovable property, and this has been held in a large number of rulings. In Abdul Majid v. Muhammad Faizullah (1890) 13 All 89, a decree-holder had a decree for sale of hypothecated property and he executed a deed of assignment of the decree. It was held that this deed did not require to be registered as the decree was not immovable property. In Karim-un-nisa v. Phul Chand (1893) 15 All 134 a decree-holder of a simple money decree attached the rights under a simple mortgage of his judgment-debtor. It was held that this was not immovable property and that the attachment was correctly made under Section 268 and not Section 274, Civil P.C. of 1882. The judgment stated:

The thing which was sold was a debt due to the mortgagee who was not in possession of, and apparently at the date of sale had no right to the possession of the mortgaged property.

5. Now this ruling points out that the absence of a right to possession of the immovable property was a factor in the rights of the simple mortgage being held to be moveable property. The case of a usufructuary mort-gage is different because the usufructuary mortgagee has a right to possession of the property but he has no right to bring the property to sale. In Lal Umrao Singh v. Lal Singh (1924) 11 A.I.R. ALL 796 it was held that a simple hypothecation bond is moveable property for attachment and sale in execution of a decree and Order 21, Rule does not apply. A quotation is made or p. 920 from Tarvadi Bholanath Harishanker v. Bai Kashi (1902) 26 Bom. 305, where it was laid down:

A simple mortgage creates a right to recover the debt due on it from land a mortgage with a right of foreclosure creates a right to recover the lane itself. Therefore a debt due on a simple mortgage is a debt, though it is secured on land, and the security is merely collateral.

6. On a consideration of these rulings I hold that the rights of a simple mortgagee are moveable property and the rights of a usufructuary mortgagee are immovable property and on this point I differ from the learned single Judge. As already stated however, the question of moveable or immovable property is not the criterion to apply in the present case because a Hindu widow is not entitled to transfer property, whether moveable or immovable, which formed part of the estate of her husband unless she does so for legal necessity. Learned Counsel for respondents argued that a Hindu widow in possession of her husband's estate has a right to realise debts. That may be so but the present is not a case of realising a debt. No doubt as the learned Counsel pointed out a mortgagor has a right to redeem his mortgage and on a tender or deposit of the mortgage money the mortgagee is bound to accept that offer, but such a case is not before us and the considerations which governed that case cannot apply to the present case, which is a transfer by a Hindu widow of the rights of a usufructuary mortgagee which devolved on her after the death of her husband. Learned Counsel referred to Bai Judi v. Purshottam Narottam Dave (1922) 9 A.I.R. Bom. 387. This was a decision under the Mayukha law where the rights of a Hindu widow are wider than in this province under the Mitakshara law. In that ruling it was held that a usufructuary mortgagee right is not immovable property and on p. 389, col. 2 there is a passage in regard to the redemption of a usufructuary mortgage during the lifetime of the widow. That case is different from the present because the present case is not one of redemption. I do not think that the distinction between immovable property and moveable property applies in the present case and in the Bombay ruling there was no mention of the ruling of their Lordships of the Privy Council which has been quoted above. In conclusion it appears that the usufructuary mortgage in question was a part of the estate of the Hindu husband and that a Hindu widow has no right of transfer of the usufructuary mortgagee rights without legal necessity. I would therefore allow this Letters Patent appeal and set aside the decree of the learned single Judge of this Court with costs in this Court and restore the decree of the lower Appellate Court granting possession to the plaintiffs against the defendants.

Collister, J.

7. I agree that this appeal must be allowed. There can, I think, be no doubt that, apart from considerations of Hindu law, the interest of a mortgagee in a usufructuary mortgage is immovable property, such interest comprising as it does a right to enjoy 'benefits to arise out of land;' and I can find no ground for any differentiation in the conception of immovable property where the rules of Hindu law are being applied to an alienation by a widow, as in the case before us. Influenced by special considerations, the learned Judge of this Court was of opinion that the transfer for value by Mt. Bilka, a Hindu widow, of her late husband's rights in a usufructuary mortgage was not a transfer of immovable property within its 'technical meaning.' His reasoning is based on the ground that a Hindu widow is entitled to recover a debt which was due to her husband and that, as a mortgage is primarily a debt, Mt. Bilka was competent to realise it in such manner as was available to her. I think this argument is fallacious quoad a usufructuary mortgage for the reason that a usufructuary mortgagee has no power to enforce his mortgage and put the property to sale. His function is to remain in possession of the property, enjoying its usufruct as an owner and to the exclusion of all other persons, until redemption or until the expiry of 60 years under Article 148, Limitation Act, after which period his rights in the property become indefeasible.

8. In the Bombay case in Bai judi v. Purshottam Narottam Dave (1922) 9 A.I.R. Bom. 387, the facts were different from the facts of the case before us, but there are certainly observations in the judgment to the effect that possessory mortgagee rights of a Hindu in Bombay in the hands of his widow are not immovable property. If that proposition was intended to apply to any Hindu widow, I respectfully dissent from it. In my opinion Mt. Bilka was not competent, in the absence of such necessity as is recognized by Hindu law, to transfer her interest in this usufructuary mortgage, which formed part of her late husband's estate. I also agree that Hindu law makes no distinction between a widow's right to alienate immovable property and her right to alienate moveable property, so long as it formed part of the corpus of her husband's estate; but the question as to what the legal position would be if the transaction in the present case had been a simple and not a usufructuary mortgage is of course not before us.

Mulla, J.

9. This is a Letters Patent appeal by the plaintiffs in a suit for possession of a small parcel of zamindari land and for mesne profits. The property in dispute was originally held under a usufructuary mortgage by one Tilok Singh who died 40 or 45 years ago leaving him surviving two widows, Bilka Kunwar and Gaura, and a daughter namely Dulari by the former. Mt. Gaura died 17 or 18 years before the institution of the suit and upon her death the whole estate of Tilok Singh comprising the property in dispute came into the possession of Mt. Bilka Kunwar as his sole heir. Mt. Bilka Kunwar died eight or nine years before the institution of the suit and thus the whole estate devolved upon her daughter, Dulari. The suit was instituted seven or eight months after Dulari's death in 1932 by her three sons who were admittedly the next reversioners of Tilok Singh. Two of them have died during the pendency of the case and are now represented by their father Rabi Lal Singh. The dispute centres round a deed of sale executed by Mt. Bilka Kunwar on 23rd July 1907. By that deed she transferred one-half of the mortgagee rights in the property in dispute, which she had inherited from her husband, jointly to two persons named Chandan Lal and Dal Chand. Dal Chand is one of the contesting defendants, the others being the heirs and representatives of Chandan Lal. There are two more defendants in the suit who have been impleaded on the ground that they are donees from the original vendees, Chandan Lal and Dal Chand. A doubt appears to have been arisen during the trial of the suit that the property in dispute had been redeemed but that doubt has been resolved and the argument has proceeded on the assumption that the defendants are still in possession of the property in dispute as usufructuary mortgagees having acquired that right under the deed of sale executed by Mt. Bilka Kunwar.

10. The plaintiffs claimed that they were entitled to eject the defendants and to recover possession of the property in dispute because the defendants' title rested on the sale deed executed by Mt. Bilka Kunwar which was invalid inasmuch as id was not supported by any legal necessity.

11. The plaintiffs also claimed mesne profits for a period of three years before the institution of the suit, but they failed to produce any evidence in support of that claim and it was consequently rejected by the Courts below and we are no longer concerned with it in this appeal. The suit was contested in the First Court mainly on the ground that there was legal necessity for the sale deed in question but one of the defendants who was impleaded for the first time in the lower Appellate Court also raised the plea that the question of legal necessity did not arise at all because the sale deed involved only a transfer of the rights of a usufructuary mortgagee which did not constitute immovable property and hence the power of Mt. Bilka Kunwar to make the transfer was not subject to the limitations imposed by the Hindu law. This latter plea does not appear to have been seriously pressed in the lower Appellate Court and the argument was confined to the question of legal necessity. On that question both the Courts below found upon the evidence that the sale deed in question was not supported by any legal necessity and hence the suit was decreed. In the second appeal before a learned Judge of this Court, the defendants pressed the plea that the rights of a usufructuary mortgagee did not constitute immovable property as contemplated by the Hindu law and hence it was not necessary that the sale deed in question which transferred merely those rights to the defendants should have been supported by any legal necessity. It was also contended that the transaction really amounted to the recovery of a loan by transfer of the security for it and such a transaction was fully within the competence of Mt. Bilka Kunwar and the restrictions imposed by the Hindu law upon a widow's power of transfer did not apply to it. These arguments found favour with the learned single Judge of this Court and he consequently dismissed the suit; hence the present appeal.

12. The argument on behalf of the appellant is that the finding of the learned single Judge of this Court is vitiated by an erroneous conception of the powers of a Hindu widow in dealing with the property which she inherits from her husband and by a mis-appreciation of the true nature of the property in dispute on the assumption that the conception of immovable property as embodied in the statutory law was something different from that contemplated by the Hindu law. In order to appreciate the force of this contention it is necessary to set out the relevant portion of the judgment of the learned single Judge which runs as follows:

I am not satisfied that this was an alienation which the widow was not entitled to make in accordance with the Hindu law. It has been more or less presumed that the widow was transferring immovable property. In this Court a reference has been made to the case in Jang Bahadur v. Bhagat Ram Sheo Prasad : AIR1930All110 in order to establish the proposition that mortgagee rights are rights in immovable property. That judgment is based upon the technical meaning applied to the term by the Transfer of Property Act and the General Clauses Act. Where the term Immovable property is used in a statute it must of course include the interests of a mortgagee in immovable property, but there is no such technical use of the term when the rules of Hindu law are to be applied. A mortgage is primarily a debt. It is true that it is a secured debt that certain interests in immovable property are involved if the debt is not paid, but as I have already said, in its primary aspect the mortgage is a debt and the mortgagee has a right to enforce the recovery of money. A Hindu widow is entitled to recover the debts due to her husband. In the present case Mt. Bilka Kunwar did not take the money from the mortgagors, but if she could recover the debt I do not see why she could not accept the money from some other person who was willing to pay her and transfer her mortgagee interests in the property to that person.

13. Upon a careful consideration of the matter in all its legal aspects, I am definitely of the opinion that the appellant's contention is sound in law and ought to prevail. It is quite clear from the quotation which I have made from the judgment of the learned Judge that the whole structure of his argument is primarily based on the assumption that the limitations imposed by the Hindu law upon the powers of a widow in dealing with her husband's estate apply only to immovable property. No elaborate argument is needed to show that this assumption is wholly erroneous. The Hindu law makes no distinction between moveable and immovable property in the hands of a Hindu widow so long as the property is inherited by her from her husband. Strictly speaking the Hindu law permits a Hindu widow only to enjoy the income of her husband's estate in a frugal manner. She is enjoined to lead a life of ascetic privation and to preserve her husband's estate whether moveable or immovable as far as possible in its entirety for the benefit of the reversioners. It is true that in the course of its interpretation by the British Courts which could not help being influenced by the gradual change in social conditions, the Hindu law has lost a great deal of its purity and rigour and it is now well recognized on the highest authority that a Hindu widow possesses absolute power of disposal over all accumulations and income of her inherited estate, but it has been consistently held that the restrictions placed upon her power of transfer apply equally whether the property she has inherited is moveable or immovable. The matter was concluded by the decision of their Lordships of the Privy Council as far back as 1867 in Bhugwandeen Doobey v. Myna Baee (1866-67) 11 M.I.A. 487. In that case their Lordships upon an exhaustive consideration of the Hindu law texts and other authorities arrived at the following conclusion:

Their Lordships therefore have come to the conclusion that, according to the law of the Benares School, notwithstanding the ambiguous passage in the Mitakshara, no part of her husband's estate, whether moveable or immovable, to which a Hindu woman succeeds by inheritance, forms part of her stridhan, or particular property; and that the Text of Katyayana, which is general in its terms, and of which the authority is undoubted, must be taken to determine first, that her power of disposition over both is limited to certain purposes; and, secondly that on her death both pass to the next heir of her husband.

14. In the same case their Lordships observed in the course of their judgment as follows:

The reasons for the restrictions which the Hindu law imposes on the widow's dominion over her inheritance from her husband, whether founded on her natural dependence on others, her duty to lead an ascetic life, or on the policy of allowing the wealth of one family to pass to another, are as applicable to personal property invested so as to yield an income as they are to land. The more ancient texts importing the restriction are general. It lies on those who assert that moveable property is not subject to the restriction to establish that exception to the generality of the rule.

15. The authority of this case has, of course, since been followed in several cases in various High Courts in India, e.g. Gadadhar Bhat v. Chandra Bhagabai (1893) 17 Bom. 690 (F.B.) and Durga Nath Pramanik v. Chintamani Dasi (1904) 31 Cal. 214. It must therefore be held that the power of a Hindu widow to alienate moveable property is as limited as it is in the case of immovable property. This finding is enough to dispose of the appeal and to entitle the plaintiffs to a decree, but in view of the fact that a question was specifically raised in the course of argument on behalf of the respondents that the rights of a usufructuary mortgagee do not constitute immovable property and this question being one of general importance, it is necessary to examine the contention in order to see if it is well founded. It is conceded that for the purposes of statutory law, such rights must be deemed to constitute immovable property. So far as this High Court is concerned, there is the clear authority of Jang Bahadur v. Bhagat Ram Sheo Prasad : AIR1930All110 where it was held that a mortgagee's interest in a usufructuary mortgage is immovable property within the meaning of Rule 89, Order 21, Civil P.C. It appears further from that case that the same view has been taken by the Bombay and the Calcutta High Courts, though a dissentient note has been struck by the Madras High Court in various cases, the latest of which is reported in Chullile Peetikayal v. Othenam Nambier (1915) 2 A.I.R. Mad. 551. So far as this High Court is concerned, it may be taken to be well settled that if a question arises as to whether the rights of a usufructuary mortgagee constitute immovable property within the meaning of the statutory law, the answer must be in the affirmative.

16. It is contended however that what may be immovable property within the meaning of the statutory law need not necessarily be immovable property as contemplated by the Hindu law and this contention has found favour with the learned single Judge of this Court. The argument necessarily implies that the conception of immovable property as derived from the statutory law is something quite different from the same conception in the Hindu law or to put it in other words is repugnant to the letter or spirit of the Hindu law. I do not however find any justification for this assumption. There is no warrant for the supposition that the Hindu law classed only land and houses as immovable property and did not include, within the meaning of that term, any right or interest immediately connected with land. The Hindu law has nowhere defined immovable property, but it is clear that it regarded many incorporeal rights as falling within that class of property. The doctrine of Nibandh being classed as immovable property by the Hindu law is well known and well recognized by judicial decisions. According to that doctrine the royal grant of an annuity or a fixed pension has been classed as immovable property within the contemplation of the Hindu law as in the Full Bench case in Collector of Thana v. Hari Sitaram (1881) 6 Bom. 546 (F.B.). It is thus clear that where a right to receive a payment or to derive an income was charged upon some land, it fell within the purview of immovable property as contemplated by the Hindu law. We find further that even incorporeal rights which were not immediately connected with land were regarded by the Hindu law as immovable property, for instance, a hereditary office or a right to officiate as a priest at funeral ceremonies. It may also be noted that in Krishnaji Pandurang v. Gajanan Balvant (1909) 33 Bom. 373 Chandavarkar J. held that an allowance granted in permanence whether secured on land or not was according to the Hindu law Nibandh and must therefore be held to be immovable property. It is thus clear that the conception of immovable property in Hindu law was not confined to land or houses but was wide enough to include various incorporeal rights whether they had any immediate relation to land or not. The conception being so wide in its scope, I see no reason to hold that the rights of a usufructuary mortgagee which are recognized as immovable property by the statutory law and which are immediately and most intimately connected with land do not fall within its purview. The usufructuary mortgagee is in actual possession of the land and is entitled to enjoy its usufruct to the fullest extent. What is still more important is that he has the right of exclusive enjoyment of the property. He is entitled to exclude all others including the owner himself from the possession or enjoyment of the property and if he is wrongfully deprived of his possession, he has the right to recover it. Williams in his Principles of the Law of Real Property in dealing with the incident of ownership observed as follows:

This right to maintain or recover possession of a thing as against all others may, we think, be said to be essential part of ownership. As regards its other incidents, ownership may be absolute or else limited or restricted. Thus, absolute ownership would cease to include the right of free as well as exclusive enjoyment; by which we mean the right of using, altering or destroying the thing owned at the owner's pleasure, so long only that he does not violate any other person's right to security of person and property. But those who have rights of exclusive though restricted enjoyment, are nevertheless commonly termed as owners. The rights given by the law to the usufructuary mortgagee, though they fall short of absolute ownership, are yet a very important part of it and they are so intimately connected with land that in my opinion they cannot but be deemed to constitute immovable property within the meaning of that term in the statutory law.

17. I see nothing repugnant either to the letter or the spirit of the Hindu law in holding that such rights constitute immovable property. I would therefore hold that the transfer of such rights by a Hindu; widow is a transfer of immovable property within the contemplation of the Hindu law. The learned Counsel for the respondent however relied on an authority of the Bombay High Court in Bai judi v. Purshottam Narottam Dave (1922) 9 A.I.R. Bom. 387. In that case a Hindu widow had made sub-mortgage of her rights as a usufructuary mortgagee in certain property which she had inherited from her husband and a question arose whether such rights-constituted immovable property. In dealing with this question, Macleod C.J. observed as follows:

But no authority has been cited for the proposition that a usufructuary mortgage is immovable property so that if the mortgage is redeemed during the widow's lifetime and the widow spent the money, as she would be entitled to do, the reversioners could claim against the party redeeming, again to be in possession of the property until redeemed a second time. Clearly the mortgaged rights which were vested in Baimanik represented, moveable property and could be sold in execution of the decree against Baimanik and no question of legal necessity would arise. The mere fact that Baimanik was in possession as mortgagee would not cause those mortgaged rights to be treated in law as immovable property as all that the widow was entitled to was to retain possession of the property as security for the debt until she was redeemed.

18. With the greatest respect for the learned Judge venture to think that this is not a wholly true appreciation of the position, of the usufructuary mortgagee. As I have-pointed out above, the rights of a usufructuary mortgagee taken as a whole form a very large and important part of the bundle of rights which constitute ownership. It is not in my opinion a wholly correct description of such rights to say that what a usufructuary mortgagee is entitled to is to retain possession of the property as security for the debt until he is redeemed. He is entitled in fact to the fullest enjoyment of the property and has the right to exclude all others including the owner from its possession and enjoyment. He may not be the absolute owner of the property, but, for all practical purposes, he may well be deemed to be the owner thereof while he is in possession. If he is not redeemed within the period prescribed by the law, his rights mature into absolute ownership. I cannot persuade myself to hold that the rights which he thus possesses and which are so intimately connected with immovable property can be properly described as move able property. The fact that the property in his possession is open to redemption by the owner is to my mind quite irrelevant for the purposes of determining the nature of the property. Under Section 58, T.P. Act, what is conveyed to the usufructuary mortgagee is the transfer of an interest in specific immovable property. I fail to see how it can be suggested that the transfer of an interest in specific immovable property is really the transfer of some moveable property. I further fail to understand how the nature of the property which is transferred by a mortgagor can undergo any alteration in the hands of the mortgagee. If the mortgagor transfers what in the eye of the law is included within the meaning of immovable property the subject of the transfer must retain its character even in the hands of the mortgagee. Again with great respect I cannot agree to the proposition laid down by the learned Chief Justice that the rights of a usufructuary mortgagee in the hands of a Hindu widow must obviously be deemed to be moveable property because they can be seized in execution of a decree against her, based on her personal security and no question of legal necessity would arise in that case. I think on the other hand that even if a Hindu widow incurs a debt for legal necessity but without creating a charge upon her husband's property, the creditor who obtains a decree against her on the basis of such a debt, can only bind the rights and interest of the widow in any property forming part of her husband's estate which he might seize in execution. I am supported in this view by the decision of this Court in Kallu v. Faiyaz Ali Khan (1908) 30 All 394. I am therefore unable to accept the authority of the case relied upon by the learned Counsel for the respondent for holding that the rights of a usufructuary mortgagee are only moveable property. It is unnecessary to pursue this question any further because the decision of the present case must necessarily be against the respondents in view of the finding that the restrictions placed upon the powers of a Hindu widow apply equally to moveable and immovable property forming part of her husband's estate.

19. Lastly it was argued on behalf of the respondents that the transaction with which we are concerned in the present case was entirely within the competence of Mt. Bilka Kunwar because it amounted only to the recovery of a loan. In the first place I cannot possibly accept the suggestion that the transaction in question was not a transfer of property but only the recovery of a loan. Under the law she had no right to recover the loan but only to remain in possession of the property and to enjoy its usufruct until the mortgagor came to redeem it. In the second place even if it is conceded that a Hindu widow is entitled to recover a debt payable to her husband's estate, it does not necessarily follow therefrom that she is entitled to transfer any property for that purpose without any legal necessity. The power given to her by the law to manage her husband's estate and to recover any debts payable to it does not set aside the limitation placed upon her power of transfer. Ordinarily the recovery of a debt cannot involve the transfer of any property, but even if in any case a widow transfers any part of her husband's estate for the ostensible object of recovering a debt, I think the validity of that transfer shall always be open to question on the ground that it was not supported by legal necessity. The fact that the property in the hands of Mt. Bilka Kunwar could always be redeemed by the mortgagor is to my mind entirely irrelevant to the question in issue.

20. For these reasons I hold that the sale-deed executed by Mt. Bilka Kunwar on 23rd July 1907 by which she transferred the mortgagee rights in the property in dispute which formed part of her husband's estate was invalid because it was not supported by legal necessity and could not therefore convey any title to the defendants which could enure after her death. I would therefore allow this Letters Patent appeal and set aside the decree of the learned single Judge of this Court with costs in this Court and decree the plaintiff's suit for possession of the property in dispute.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //