P.V.B. Rao, J.
1. This Second Appeal is filed by the plaintiff against the reversing judgment of Shri K.K. Bose, Subordinate Judge, Berhampur in Title Appeal No. 64 of 1949.
2. The plaintiff and defendant No. 3 are the brothers of the deceased husband of defendant No. 1. The plaintiff filed the suit for a declaration that the registered sale deed Ext. G dated 15-11-46 for Rs. 1300/- executed by defendant No. 1 in favour of defendant No. 2 in respect of the suit property which fell to her share in the partition suit O. S. 501 of 1940 brought by her, on the death of her husband in the Court of the District Munsif of Berhampur, was not binding on the plaintiff and defendant No. 3 and the entire body of reversioners. The plaintiff alleged that the sale was collusive and without legal necessity and that it was intended to defeat and defraud the claims of the reversioners.
3. The defendant No. 1 contended, denying all the allegations of fraud, collusion and absence of consideration that the sale was for valid legal necessity as it was for the discharge of the loans incurred on pronotes on account of expenses of her maintenance and of the aforesaid partition suit which was carried in appeal by the plaintiff and defendant No. 3 and in which she was ultimately driven to the necessity of getting her share partitioned by a commissioner and obtaining possession through Court. She also contended that the sale deed was valid and binding on the reversion. Defendant No. 2 the alienee adopted the written statement of defendant no. 1 and defendant No. 3 supported the plaintiff's case.
4. The trial Court held that the pronotes which fromed the substantial portion of the consideration of the sale deed were genuine transactions and that the disputed sale deed was supported by consideration and was not fraudulent and collusive. With regard to the question of legal necessity he held that the promissory notes were executed in her personal capacity and not in her representative capacity and as such the debts for which the sale deed was executed do not constitute legal necessity. He also held that the alienation was made in respect of the barred debts and as such the alienation was also not for legal necessity.
5. In appeal by the defendants 1 and 2 the learned pleader for the plaintiff did not press the contention that the debt was contracted by the widow in her personal capacity and as such the alienation was not binding on the reversioners. He conceded that in the present case the debts under the promissory notes having been incurred by the widow for necessary purposes which would bind the reversion, he would not press the ground that the alienation is invalid as the debts werecontracted in her personal capacity. He contended that the sale deed is invalid and not binding as it was executed in consideration of barred debts. But the learned Subordinate Judge in appeal held that there was an implied authority given by defendant No. 1 to her father to make payments or endorsements on the loans on her behalf though there was no express authority. He also held that an alienation for barred debts would be for legal necessity so as to bind the reversion following the decision of the Patna High Court reported in the case of -- 'Daroga Rai v. Basdeo Mohato', AIR 1937 Pat 40 (A).
6. The promissory notes covered by Ext. C series were executed by defendant No. 1 and her father. But the endorsements of payment on the said promissory notes were made only by the father. There is no evidence either of defendant No. 1 or of her father to the effect that the father made an endorsement of payment on the promissory notes on behalf of defendant No. 1 or as an agent.
The decisions relied upon by the learned Subordinate Judge in the cases of -- 'Annamalai Pattar V. Natesa Iyer', AIR 1915 Mad 307 (1) (B); and -- 'Rangasami Aiyangar v. Somasundaram Chettiar', AIR 1928 Mad 173 (C), for holding that there was an implied authority to her father to make payments or endorsements on the loans on her behalf inasmuch as she executed the sale deeds to discharge those debts, in my opinion, do not apply to the facts of this case. Those two cases dealt with the respective endorsements on the promissory notes at various times by all the co-obligors. It was held in those cases that when one co-obligor makes a subsequent payment towards the debt when a prior payment was made by a different co-obligor, the promisor making the subsequent payment can be taken to have impliedly authorised the prior payment of his co-promisor.
But in this case there are no payments on the promissory notes made subsequently by the defendant No. 1. The execution of the sale deed in which the promissory notes debts are referred to as forming a consideration cannot be relied upon as an implied authority required to keep the promissory notes debts alive as the sale deed is challenged by the plaintiff. It is therefore clear that the debts covered by the promissory notes for which the sale deed was executed are barred at the time the impugned sale deed came into existence.
7. The next question which is the important question in this appeal to be decided, is whether a barred debt of a widow can be a legal necessity to support an alienation so as to bind the reversioners though the debt was contracted for a purpose which would, according to the Hindu Law, be a debt for a binding purpose. The learned counsel appearing for the respondent contended on the authority of the case reported in 'AIR 1937 Pat 40 (A)', that an alienation to discharge a barred debt of the widow would be for legal necessity. In this case it was held by a Division Bench of the Patna High Court that a female owner, having a limited interest, is entitled to alienate the property in her possession, for the payment of a debt, incurred by her for legal necessity, although the debt may hare become time-barred.
In the judgment, the learned Judge observed atp. 42:
'In deciding what are the legal necessities under the Hindu Law we must include all those 'necessities' which the Hindu Law givers have recognised as legal, justifying the alienation of properties by a limited owner. Payment of an antecedent debt legally incurred is a legal necessity. Does this necessity cease to be legal under Hindu Law when the debt has become barred, under the Statute Law? If the Hindu Law authorises a limited female owner to incur debt for certain purposes and also authorises her to alienate properties for the payment of that debt, the authority cannot be said to have come to an end simply because the enforcement of the payment of that debt has become barred. Hindu Law does not recognize limitation.'
Then the learned Judge proceeds to quote passages from Mayen's Hindu Law dealing with the widow's obligation to pay her husband's debt and her right to alienate property descended from him for that purpose.
8. The widow's obligation to pay her husband's debts and her right to alienate property inherited from him for that purpose is based, in my opinion, on the principle that the widow can alienate the estate for religious or charitable purposes, even though the debt of the husband is a barred debt at the time of the alienation. In the case of -- 'Sardar Singh v. Kunj Behari Lal', AIR 1922 PC 261 (D), their Lordships of the Judicial Committee observed:
'There can be no doubt upon a review of the Hindu Law taken in conjunction with the decided cases, that the Hindu system recognizes two sets of religious acts. One is in connection with the actual obsequies of the deceased, and the periodical performance of the obsequial rites prescribed in the Hindu Religious Law, which are considered as essential for the salvation of the soul of the deceased. The other relates to acts which although not essential or obligatory, are still pious observances which conduce to the bliss of the deceased's soul.'
In the case of -- 'Ashutosh Sikdar v. Chidam Mondal', AIR 1930 Cal 351 (E), it was held, that the payment of husband's debt although barred has been held to be a pious duty on the part of the widow and it is not necessary that there should be any danger to the estate in order to entitle the widow to incur the debts or alienate the property of her husband in order to pay off the barred debts.
9. But this right of the widow to alienate the property to discharge a barred debt of the husband which is mainly based upon the principle of a pious duty cannot be applied, in my view to the case where the alienation is for discharge of a barred debt contracted by her even though it may be otherwise for a legal necessity. I may also with respect state that the question of antecedency of the debt has no bearing on a decision of this question. It is only an antecedent debt, of a father that the son is under a pious obligation to discharge. The principle of liability on the basis of the antecedency of a debt arises only in the case of discharge of a father's antecedent debt by a son.
10. In the case of the validity of an alienation for discharge of a barred debt of the widow, though it might have been contracted for a purpose which might be a legal necessity, it has to be determined by a consideration of the power of the widow as a limited heir. The power of a widow or other limited heir to alienate the estate is analogous to that of a manager of an infant's estate and is defined by the Judicial Committee in the case of -- 'Hanoomanpersaud Panday v. Mt. Babooee Mundraj Koonweree', 6 Moo Ind App 393 (PC) (F), and that power is a limited and qualified one: it can only be exercised rightly in a case of need or for the benefit of the estate. The actual pressure on the estate, the danger to be averted, or the benefit to be conferred, upon it in a particular instance is the thing to be regarded.
In the case reported in -- 'Venkata Hanumantha v. Gade Subbayya', AIR 1936 PC 283 (G), their Lordships of the Judicial Committee observed:
'The power of a Hindu widow to alienate the estate inherited by her for purposes other than religious or charitable is analogous to that of a manager of an infant's estate, as described in 6 Moo Ind App 393 (PC) (F).'
11. In the case of -- 'Makhan Lal v. Mt. Sardar Kunwar', AIR 1932 All 555 (H), it was held that--
'The transfer by a Hindu widow of a part of her husband's estate in payment of a time-barred debt incurred by her for the benefit or preservation of the estate is not for legal necessity so as to make the alienation binding on reversioners. In such cases 'legal necessity' not only means the existence pf a previous debt but the existence of a debt enforceable in a Court of law.'
Their Lordships observed--
'Here we have a case of a Hindu widow transferring property in payment of time-barred debts incurred by herself although they were binding on the estate at the time. We are not here concerned with the moral obligation of the widow to pay her own time-barred debts. What we have to consider is whether there is any pious obligation on her daughter to discharge that debt. Neither on principle nor on authority we are able to see that there is any such pipus obligation on the daughter to discharge the debt incurred by her deceased mother. The widow represented the estate for the time being but she could transfer the property only for legal necessity. When the debt became time-barred, there was no pressure on the estate at all and she was under no personal obligation to pay a time-barred debt. Alienations made by her in order to discharge such a debt do not come within the definition of 'legal necessity' as laid down by their Lordships of the Privy Council in the case of -- 'Hanooman Persaud Pandey v. Mt. Babooee Mundraj Koonwaree (F)'.'
12. In a later Patna case reported in --'Sunderbati Kuer v. Sikhdeo Singh', AIR 1946 Pat 120 (I), Justice Shearer in his judgment observed:
'This decision AIR 1937 Pat 40 (A) was subjected to a good deal of criticism, and I mustconfess myself to some difficulty in appreciating the reasoning by which it is supported. It is well settled that a Hindu widow is in substantially the same position as the guardian of a minor. There are no doubt authorities that when the guardian of a minor pays the time-barred debt he is not necessarily liable to refund the money. But I find no authority for the proposition that when, in such a case the guardian alienates the property of the minor, the alienation is binding on the minor. If, on other grounds, the plaintiff was entitled to succeed, I should, I think, have been disposed to suggest that the decision in AIR 1937 Pat 40 (A) required consideration by a larger Bench.'
13. In the case of -- 'Anganna Thevan v. Ayyasami Thevan', AIR 1953 Mad 706 (J), Justice Chandra Reddi held that--
'A mother succeeding to the estate of her son is not competent to alienate the property in order to discharge the time-barred debt of her son.'
AIR 1937 Pat 40 (A) was quoted before his Lordship who observed that another Bench of the same High Court was inclined to doubt the correctness of this ruling and did not follow AIR 1937 Pat 40 (A).
14. In the case of -- 'Chandrika Prasad v. Bhagwan Dass', AIR 1940 Oudh 93 (K), though it was held that the payment of the husband's debt, though barred, is a pious duty on the part of the widow, it did not uphold the alienation in that case as the mortgage bond in question was executed by the widow in consideration of a barred debt.
15. For the reasons given above, I would respectfully agree with the decision of the Allahabad High Court reported in AIR 1932 All 555 (H).
16. The learned advocate for the respondent also relied upon a passage in Mulla's Hindu Law, 1952 Edition at page 181, Mayne's Hindu Law, 1953 Edition' at page 770, the case of -- 'Nagiah v. Venkiah', AIR 1950 Hyd 50 (L), and the case of AIR 1930 Cal 351 (E). These authorities, in my opinion, are irrelevant to the question at Issue, They referred to alienations made by a widow to discharge her husband's barred debts and not to alienations made to discharge her own barred debts.
17. My conclusion, therefore, is that the alienation in question in this appeal is made for discharge of debts contracted for purposes of maintenance and for expenses to meet the litigationarising out of a partition suit. An alienation todischarge those debts is a purpose which wouldbind the reversion. But the debts were barredat the time when the sale-deed was executed bydefendant No. 1. The debts covered by the promissory notes could not have been enforcedagainst her in a Court of law. There was, thus,no pressure on the estate so as to entitle her toalienate the property inherited from her husband.The alienation in question is, therefore, invalidbeing one executed to discharge barred debts of,the widow and consequently not for legal necessity. The plaintiff is, therefore, entitled to thedeclaration prayed for. I would, therefore, allowthe appeal, set aside the judgment and decree ofthe lower appellate Court and decree the suitwith costs throughout.
18. I agree. It is curious that the alienee (the second defendant in the suit) did not go into the box, nor adduced any evidence to show that she had made a leasonable enquiry into the necessity for the loan. A widow's alienee who seeks to charge the inheritance after the death of the widow has to prove that there was justifying necessity for the loan or that he made an enquiry into such necessity and satisfied himself that the widow was acting, in the particular instance, for the benefit of the estate. A bona fide alienee should not suffer when he has acted honestly and with due caution, though he may himself have been deceived. In the instant case the alienee is a near relative of the widow. It was therefore all the more necessary that evidence should have been adduced, to dispel all suggestions of collusion between them.
19. The alienation can be justified on the alternative ground of legal necessity as denned In 6 Moo Ind App 393 (PC) (F). The principles laid down in that case have been applied to alienations by a widow in several cases decided by the Judicial Committee. As my learned brother has pointed out a widow discharges her pious duty to her husband if she pays up his debts even though they are unenforceable, but there is no authority for the statement that there is any piety in paying off her own debts though barred. Her obligation to pay off her husband's debts arises from the fact that she represents the estate of her husband while in possession.
Apart from this there is authority in the HinduLaw texts enjoining upon a widow the duty ofdischarging her husband's debt. Narada says:
'The debts contracted by the husband shall bedischarged by the widow if sonless; or if herhusband has enjoined her to do so in hisdeath-bed, or if she inherits the estate--forwhosoever takes the estate must pay the debtswith which it is encumbered.'
The same religious duty is incumbent on the sonand the grandson. But this right is not availableto the mother of a deceased Hindu son and awidow cannot alienate her husband's property todischarge her deceased son's debts--See 'SheoramPande v. Sheo Ratan Panda', AIR 1921 All 163(M). Undoubtedly, every debtor is under a moralobligation to pay off his debt, and a widow couldpay off her own barred debt if she had funds ofher own. Her position under the law being thatof a limited owner, the right of alienation hasto be exercised within certain defined limits andin accordance with certain well recognised principles.
The right of the widow to alienate is very similar to that of the manager of a Hindu family and both are bound by the same limitations--See -- 'Kameshwar Prasad v. Run Bahadur Singh', 8 Ind App 8 (PC) (N). In -- 'Maheshar Baksh v. Ratan Singh', 23 Ind App 57 (PC) (O) a widow contracted loans at a lower rate of interest to pay off the old debts of her deceased husband. There was, however, no evidence to connect the mortgage created by the widow with the debt of her deceased husband. Their Lordships held, in the circumstances, that there was no ground for presuming that the alienations were made for a legitimate purpose.
20. In AIR 1937 Pat 40 (A) the two deeds, the validity of which was challenged, were executed by the daughters of the deceased Ram Pat, and it was found that they were supported by consideration and a part of the consideration was utilised for payment of debts said to have been incurred for meeting the Saradha expenses of Ram Pat and his widow. Mohammed Noor J., held, in the circumstances, that there was necessity for the alienation and that it did not come to an end when the debts became enforceable under the law of limitation. Referring to the position of the Karta of a joint family the learned Judge observed:
'But there is a difference between the powers of a Karta and of a female limited owner. The former acts under an implied authority of the coparceners which authority does not extend to his paying a barred debt, but the latter within certain limits is an owner and there is no reason to debar her from paying up a debt which she has legally incurred.'
With great respect I am unable to follow the reasoning of his Lordship. A Hindu widow is a limited owner and has no power to dispose of her deceased husband's estate so as to bind her reversioners except under certain prescribed circumstances. What an owner can do with his property is a different matter, and it would be introducing a novel conception of a woman's estate to hold that there is no difference between a widow and an absolute owner. I am unable to accept the reasoning of this decision and accept it as a binding authority.
21. I would, therefore, in agreement with mylearned brother, allow this appeal with coststhroughout.