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Mst. Jagaribai Vs. Ramkhilawan and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily;Property
CourtMadhya Pradesh High Court
Decided On
Case NumberSecond Appeal No. 196 of 1968
Judge
Reported inAIR1976MP106
ActsHindu Law; Hindu Women's Rights to Property Act, 1937 - Sections 3; Hindu Succession Act, 1956 - Sections 14; Evidence Act, 1872 - Sections 115; Madhya Pradesh Land Revenue Code, 1959 - Sections 165(4), 165(5) and 165(6); Contract Act, 1872 - Sections 23
AppellantMst. Jagaribai
RespondentRamkhilawan and ors.
Appellant AdvocateP.R. Padhye, Adv.
Respondent AdvocateK.N. Agrawal, Adv. for Respondent Nos. 1 to 3
DispositionAppeal dismissed
Cases ReferredSeyyed Ibna Hasan v. Mehtab Lata
Excerpt:
- - 1 acquired a valid end perfect title by adverse possession. budhram as well ,as the plaintiff denied that the former had given to the latter these plots for her maintenance. it is stated in 55 cjs 36 :sale' in legal nomenclature, is a term of precise legal import, both at law and in equity, and has a well-defined legal significance, and has been said to mean, at all times, a contract between parties to give and to pass rights of property for money, which the buyer pays or promises to pay to the seller for the thing bought or sold......1965 sc 825 and satrugham v. sabujpari, air 1967 sc 272. 13. that status and those rights of the hindu widow continued upto june 16, 1956, on which date was enacted the hindu succession act. by virtue of section 14 of the 1956 act, the widow acquired her husband's absolute right in the joint hindu family property. that section conferred on her a right in the property which is absolute, that is, full ownership over her interest in the joint family property, which she got on her husband's death without even claiming partition.14. in sukh ram v. gauri shan-kar, air 1968 sc 365, it was contended that since under the benares school of the mitaksbara a male coparcener is not entitled to alienate even for value his undivided interest in coparcenary property without the consent of the other.....
Judgment:

Shiv Dayal, J.

1. This second appeal arises from a suit instituted by Smt. Dhelabai for possession of certain agricultural lands held in Bhumiswami rights. She died during the pendency of this second appeal and is now represented by her daughter, Smt. Jogaribai.

2. Sampat was the husband of the plaintiff. The relationship between the parties may foe described as follows :

SAMPAT = Smt. DHELABAI

(Plff.)

|

Budhram (son)

(Deft. 4)

GOVINDPRASAD

____________|_______________

| | |

Ramkhilawan Ramautar Ramkumar

(Deft. 1) (Deft 2) (Deft 3)

3. Sampat died in the year 1942, leaving behind him his widow, Smt, Dhelabai (plaintiff) and son, Budhram (Defendant 4).

4. In the year 1928-29, Sampat's father sold plot No. 466, area 0.14 acre, to Balaram, who was father of Govindpra-aad. That plot is now in possession of defendant No. 1.

5. Budhram (defendant No. 4) made certain alienations which are challenged in this suit by the plaintiff :--

(1) On April 25, 1962, Budhram sold to Ramkhilawan (defendant No. 1) plots No, 858 (0.95 acre); No. 864 (0.30 acre); and No. 866 (0.18 acre) vide 'agreement' (Ex. D-1)

(2) On March 9, 1963, Budhram sold plot No, 107 (1.60 acres) to Ramautar (defendant No. 2) vide 'agreement' (Ex. D-2).

(3) Budhnam transferred plot No. 775 (0.30 acre) to Ramautar (defendant No. 2) for which there is no document.

6. The plaintiff's case is that she is the absolute owner of half interest in the suit properties so that Budhram had no right to transfer her undivided interest in the property and the transfers effected by him are void and ineffective as against her. It was also pleaded by her that these transfers were void being within the mischief of Section 165(4) (b), second proviso, M. P. Land Revenue Code, 1959, (hereinafter called the Revenue Code),

7. The defence was that Budhram was the manager of the joint Hindu family consisting of himself and his mother (plaintiff). He sold the properties for legal necessity and, therefore, the alienations are protected.

8. The trial Court dismissed the suit and the first appellate Court dismissed the plaintiff's appeal.

9. Both the Courts below have held that in respect of plot No. 466, defendant No. 1 acquired a valid end perfect title by adverse possession. As regards the other plots in suit, it has been held that Budhram was the manager and had, therefore, the right of alienation; and that the alienations were for legal necessity, which were, therefore, binding on the plaintiff. It has further been held that the plaintiff inherited her share in the property on the death of her husband; that she has no subsisting interest in the property and was not entitled to press the appeal in the first appellate Court, as she had sold her interest to third persons; that the agreements for sale (Exs, D-1 and D-2) were not void within the meaning of Section 165 (4) of the Revenue Code; and that the transfers were with the express consent of the plaintiff; and, furthermore the transferees were put in possession of the properties in consequence of the said agreements.

10. Plot No. 775 is not in dispute. Shri Padhye, learned counsel for the appellant, does not press this appeal so far as plot No. 466 is concerned. Thus, the dispute before me in this second appeal relates to the properties sold by the 'agreement' (Ex. D-1) dated April 25, 1962, and the 'agreement' (Ex. D-2) dated March 9, 1963.

11. Shri Padhye's first contention is that Budhram (defendant No. 4) had no right to transfer these plots in dispute inasmuch as the plaintiff became the absolute owner to the extent of half share in these plots by virtue of the Hindu Succession Act, 1956.

12. It seems to me clear that when Sampat died in the year 1942, leaving behind him his only two heirs, (defendant No. 4) and widow (plaintiff), the position was that by virtue of the Hindu Women's Rights to Property Act, 1937, she acquired half interest in Sampat's estate. The effect of the Hindu Women's Rights to Property Act, 1937, which enshrines the conception that a widow is the surviving half of the deceased husband, may be summed up thus :--

(1) The Act conferred new right on the widow in modification of her preexisting right. Before the 1937 Act, she could not claim any partition but was entitled to maintenance. However, if there was a partition among her sons, she got a share in the property.

(2) By virtue of Section 3(2) of that Act, she acquired interest of her deceased husband and could give effect to it by claiming partition.

(3) In case she got her interest separated, that interest would pass, on her death, to her husband's heirs as if her husband would have died on the date of her death.

(4) In case she does not get a partition effected, her interest would pass by survivorship to the surviving coparceners,

(5) However, the widow was not raised to the status of a coparcener, although she continued to he a member of the joint Hindu family, as she was before the 1937 Act. Such joint family would continue as before subject only to her statutory right.

(6) The interest of a widow under the 1937 Act arose neither by inheritance, nor by survivorship but by statutory substitution. She was introduced in the coparcenary without being a coparcener. See Potti Lakshmi Perumallu v. PottiKrishnavenamma, AIR 1965 SC 825 and Satrugham v. Sabujpari, AIR 1967 SC 272.

13. That status and those rights of the Hindu widow continued upto June 16, 1956, on which date was enacted the Hindu Succession Act. By virtue of Section 14 of the 1956 Act, the widow acquired her husband's absolute right in the joint Hindu family property. That section conferred on her a right in the property which is absolute, that is, full ownership over her Interest in the joint family property, which she got on her husband's death without even claiming partition.

14. In Sukh Ram v. Gauri Shan-kar, AIR 1968 SC 365, it was contended that since under the Benares School of the Mitaksbara a male coparcener is not entitled to alienate even for value his undivided interest in coparcenary property without the consent of the other coparceners, unless the alienation be for legal necessity, or if the coparcener is the father, for payment by him of his antecedent debts, which are not illegal or avyavaharika, it could not have been intended by Parliament to confer upon a widow in a Hindu family a larger right than the right which the surviving coparceners could exercise at the date of the sale by the widow. Their Lordships did not accept this contention and observed :--

'It is true that under the Benares School of the Mitakshara a coparcener may not, without the consent of the other coparcener, sell his undivided shares in the family estate for his own benefit, Madho Parshad v. Mehraban Singh, (1891) 17 Ind App 194 (PC); Balgobind Das v. Narain Lal, (1893) 20 Ind App 116 (PC) and Chandradeo Singh v. Mata Prasad, (1909) ILR 31 All 176 (FB). But the words of Section 14 of the Hindu Succession Act are express and explicit; thereby a female Hindu possessed of property whether acquired before or after the commencement of the Act holds it as full owner and not as a limited owner..... When she became 'full owner' of the property, she acquired a right unlimited in point of user and duration and uninhibited in point of disposition..... A male member of aHindu family governed by the Benares School of Hindu Law is undoubtedly subject to restrictions qua alienation of his interest in the joint family property but a widow acquiring an interest in that property by virtue of the Hindu Succession Act is not subject to any such restrictions.'

Their Lordships observed that the Parliament chose not to impose those restrictions on the widow.

15. Applying these dicta to this case, it must be said that under the 1937 Act, the plaintiff had acquired half share in the suit property but with limited interest. However, on June 17, 1956, she became full owner of that half share in those plots, which are in dispute before me. It could, therefore, be legitimately contended that after June 17, 1956, Budh-ram had no right to transfer her undivided interest in those plots.

16. It may be recalled that in In re Hindu Women's Rights to Property Act, AIR 1941 FC 72 it was held that the 1937 Act did not apply to agricultural lands, but there was an amendment (M. P. Act No. 6 of 1942) which included agricultural property within the purview of Section 3(2) of the 1937 Act.

17. Shri Agarwal, learned counsel for the transferees, contends that since the plaintiff gave her express consent to these transfers, which were effected by Exs. D-1 and D-2, she was stopped from laying a claim to these plots in the present suit. In my opinion, effect must be given to this contention. The learned trial Judge, after appreciating the entire evidence and relying on the evidence of Ramkhilawan (D.W. 1), Babulal (DW 2), Sunderlal (DW 3), Bhola (D.W. 4) and Rajkumar (D.W. 7), found that it was established beyond doubt that both Budh-ram and Dhelabai were present at the time of execution of Ex. D-l and Ex. D-2 and that Dhelabai had there expressed her consent to the sale of the fields in question. The learned trial Judge further added :--

'Her conduct subsequent to sale transactions is also compatible with the fact that she was a consenting party. She has said in her deposition that she did not protect against defendants' possession over the suit fields. She did not enquire from Budhram. Only defendants cultivated the fields.'

18. The learned Judge of the first appellate Court held that the transfers were made with the consent of the plaintiff and that the defendant-transferees were put in possession of the property in part performance of the contract. Estoppel does not depend on the motive or on the knowledge of the matter, on the part of the person making the representation. It is not essential that the intention of the person should have been fraudulentor that he should have been acting with the full knowledge of circumstances and not under a mistake or misapprehension. It is not necessary that there should be a design to mislead. A representation, even when made innocently or mistakenly, may operate as an estoppel. See the leading case, Sarat Chunder Dey v. Gopal Chunder Laha, (1892) ILR 20 Cal 296 (PC).

19. It must, therefore, be held that the plaintiff having consented to these transfers, disentitled herself to claim the property.

20. Shri Padhye's next contention is that the agreements were void within the meaning of Section 165 (4) (b) of the M. P. Land Revenue Code, 1959, inasmuch as the area left with the transferor after the transfers was less than 5 acres. Shri Agrawal relied on the second proviso to Section 165 (4) (b), which was repealed by .M. P. Act No. 25 of 1965. That unre-pealed proviso permitted a transfer of & holding if such transfer was of the entire holding, so that nothing was left behind with the transferor Bhumiswami. In my opinion, that proviso is not applicable here. The total area of the plots mentioned above and the remaining plots No. 53 (0.90 acre), No. 907 (0.15 acre) and No. 909 (0.02 acre) was 4.60 acres. Each one of these transfers patently left less than 5 acres with the transferor, when the entire area itself was less than 5 acres. Shri Agrawal's contention that at least the last transfer will be protected is also without force because there remain the three just now mentioned plots Nos. 53, 907 and 909. In my opinion, Shri Agrawal is not right in his contention that these three plots have been given away by Budhram to the plaintiff before the impugned transfers and after the alleged family partition as pleaded in the written statement. Budhram as well ,as the plaintiff denied that the former had given to the latter these plots for her maintenance.

21. Shri Agarwal's next contention is that the plaintiff could not avail herself of any benefit under Section 165 (4) (b) of the Revenue Code, inasmuch as the consequences of such a transfer are provided in Section 166 (2) (since repealed). Under the unrepealed Sub-section (2), the land was to be forfeited to the State Government. Section 170 of the Revenue Code does not apply to a transfer which is within the mischief of Sub-section (4) of Section 165. Section 170 comes into play only when there is a transfer to which Sub-section (5) or Sub-section (6) of Section 165 applies,

22. The result of this discussion is that the transferor could not institute the suit for claiming back from the transferees.

23. Shri Padhye then argues that in fact there was no sale deed executed so that the impugned transfers were not 'transfers' as such but were mere agreements to transfer. In my opinion, this contention must be rejected. Although it is true that both the documents (Exs. D-1 and D-2) have been described as agreements, yet, it is plain enough from them that they were sale-deeds. Full consideration passed to the vendor and the property was sold to the vendee. The transaction was described by the word 'sold' (BECH DIYA) and possession was also given. 'AAJ TARIKH KO HI DAKHIL QABJA THEY DIYA'. What was postponed for future was the registration of the document. In my opinion, it is undoubted that a transfer within the meaning of Section 165 of the Revenue Code is all the seme a transfer even if it is not effected by a registered document or a document at all. If that was not so, it was very easy to avoid the statutory consequences of Section 165 by entering into an oral transfer or a transfer by en unregistered document. As in the present case, the word 'transfer' in Section 165 must really be construed as a transfer of ipossession in consideration of the price received by the vendor, who is competent to contract. According to its ordinary acceptation, there are only three requisites to complete a sale, namely, (1) there is a transfer of ownership by one person to another; (2) the price must be paid or agreed to be paid; and (3) both parties must be competent to contract. It is stated in 55 CJS 36 :--

' 'sale' in legal nomenclature, is a term of precise legal import, both at law and in equity, and has a well-defined legal significance, and has been said to mean, at all times, a contract between parties to give and to pass rights of property for money, which the buyer pays or promises to pay to the seller for the thing bought or sold.'

Registration is a procedural matter and is not a necessary ingredient of a sale. A Full Bench of this Court also took the same view, while construing Section 13 of the C. P. Tenancy Act. See Mahabir Presad v. Samaroo Kaliram, 1960 MPLJ230 = (AIR 1960 Madh Pra 165) (FB). See also Seyyed Ibna Hasan v. Mehtab Lata-fat Husain, 1960 MPLJ 879 = (AIR I960 Madh Pra 237).

24. This renders unnecessary to consider in any detail Shri Padhye's contention that these were mere agreements, which were hit by Section 23 of the Contract Act. According to the learned counsel, these agreements were forbidden by law. In this context, I may just mention that there is a remarkable difference between the language employed in Sub-section (4) And that used in Sub-sections (5) and (6) of Section 165. In Sub-section (5), the law declares that no land of a Bhumi-swami shall.....be sold. And, in subsection (6), the declaration is that the right of a Bhumiswami.....shall not betransferred. But, in contradistinction to that language, Sub-section (4) merely provides that no Bhumiswami shall have a right to transfer. In the case of contravention of Sub-section (5) or Sub-section (6), the property can be claimed back by the person, who would be the nearest heir of the transferor, if he survived the transferor [see Section 170], while no such right has been given, if there is contravention of Sub-section (4) [see Section 166]. Therefore, it cannot be said that the agreements are forbidden by law.

25. The appeal is dismissed with costs.


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