1. This Second Appeal arises from the decision, dated 39th December 1967, recorded by the learned Assistant Judge, Nadiad, in Civil Appeal No. 227 of 1956, by which the learned Judge confirmed the decree, dated 31st August 1956, passed by the learned Joint Civil Judge (J. D.), Nadiad, in Regular Civil Suit No. 5 of 1956, which, however, was originally instituted on 12th October 1954. The suit was instituted by one Bai Chanchal, sister of one Ranchhodlal Girdharbhai, for a declaration that the sale deed, dated 12th June 1954, executed by Diwali, widow of Ranchhodlal Girdharbhai, was not binding on her as Ranchhodlal's reversionary heir and for possession of the first floor which was, on the date of the suit, in possession of the alienee Parikh Indravadan Manilal, the respondent. Chanchal died since and she is now represented by her heirs who are appellants in this Court. The defence of respondent was that the alienation was for legal necessity, that he had paid proper and full price for the same and that he was a bona fide purchaser for value, who had made enquiries and satisfied himself about the existence of legal necessity. The trial Court came to the conclusion that respondent had paid full consideration, that the price which was paid was proper, and that the alienation was for legal necessity. During the pendency of the above litigation in the trial Court, the Hindu Succession Act, 1956, came into operation on the 17th June 1956. Respondent relied upon Section 14 of that Act and contended that Diwali had become the full owner of the property in suit under that section and that, therefore, Chanchal had no interest as a reversionary heir. The learned trial Judge, however, rejected this contention of respondent. On the aforesaid findings, the learned Judge dismissed the suit of Chanchal. She filed appeal No. 227 of 1956 from the decree of the, learned trial Judge. The learned appellate Judge, however, disagreed with the finding of the learned trial Judge that Diwali had not become the full owner of the suit house by virtue of Section 14 of the Hindu Succession Act. He came to the conclusion that, by virtue of that section, Diwali must be deemed to have become the full owner of the estate in spite of the fact that she died before the coming into operation of that Act as, in the view of the learned Judge, the Act was retrospective in operation and the section was enacted for the benefit of all Hindu widows who were in possession of their husbands' estate even prior to the coming into operation of the Act. The learned Judge, however, agreed with the other findings, of the learned trial Judge. He held that full consideration had passed and that legal necessity was proved. On these findings, the learned Judge dismissed the appeal of Bai Chanchal. Chanchal died after the judgment was delivered by the learned Assistant Judge. Therefore, appeal No. 571 of 1958 was preferred by her heirs, the present appellants, in the High Court of Bombay and, after bifurcation, that appeal was transferred to this Court and was numbered as Second Appeal No. 267 of 1960.
2. Mr. Shah who appears on behalf of appellants raises four points for the decision of this Court. Firstly, he challenges the finding of the learned Judge that Diwali became full owner of the suit property by virtue of Section 14 of the Hindu Succession Act, 1956. Mr. Bhatt, however, does not support that finding of the learned Assistant Judge. In view of the decision of the Supreme Court in Gummalapura Tagglna Matada Kotturuswami v. Setra Veeravva AIR 1969 SC 577, Mr. Bhatt concedes that, in order that Diwali may become the full owner of the suit house, it is necessary that she should have been in possession, either actual or constructive, on the date on which the Act came into operation. He concedes that, having regard to the admitted fact that, on the date on which Diwali died, the Act had not come into operation and that the Act came into operation subsequently on 17th June 1956, when, even if the alienation was not binding, the ground-floor of which Diwali was formerly in possession would be in possession of Bai Chanchal, Section 14 of the Hindu Succession Act, 1956, would not conic to the aid of Bai Chanchal (Diwali?). In view of this concession, it is not necessary for me to record a specific finding on the subject and the only points which survive for consideration are THE other three points raised by Mr. Shah.
3. The second point which Mr. Shall raised was that the learned Assistant Judge had committed an error of law in holding that an alienation for the payment of a time-barred debt, which, when incurred, was for a legal necessity, was an alienation for a legal necessity. The third point which Mr. Shah raised was that, in any case, an alienation for future maintenance and for medical expenses to be incurred in future was not an alienation for legal necessity. The fourth point was raised on the assumption that the second and the third points were substantiated by him, and that fourth point was that as a substantial part of the aforesaid sale was not for legal necessity, the alienation must be set aside on condition that appellants pay to respondent the actual amount which had been proved to have been incurred for legal necessity. I have come to the conclusion that Mr. Shah has not been able to substantiate the second and the third points aforesaid and, therefore, the fourth point does not arise for consideration.
4. Now, in order to appreciate the contention of Mr. Shah that an alienation for payment of a time-barred debt is not an alienation for legal necessity, it is necessary to mention a few more facts. Ranchhodlal, the original owner, died on 15th March 1910, leaving behind him a young widow named Diwali Ranchhodlal left behind him two houses, three shops and two fields. Diwali gifted away the two fields in charity by two separate gift transactions in 1910. She sold one of the three shops on 15th February 1915 and one of the two houses on 22nd June 1930. One of the two remaining shops was sold in 1947. It is not necessary for me to mention the details of the aforesaid alienations because nothing turns on those alienations so far as the points raisedby Mr. Shah in the appeal are concerned. Therefore, the factual position is that, onthe date on which the suit alienation took place.Diwali was in possession of one house andone shop. The house was in her personaloccupation and the shop was let out by her,the income of which was about Rs. 200 peryear only. Both the lower Courts have foundthat Diwali was a chronic patient of diabetesand required medical assistance since a numberof years. The suit house was sold by her on12th June 1954 for Rs. 10,051. However, theactual cash amount which she received underthe transaction was Rs. 30 only. Of the balance,Rs. 4,170 were utilised for payment of the previous debts incurred by Diwali. The learnedappellate Judge has recorded a finding that thisamount was utilised for the payment of thoseprevious debts and that those previous debtshad been incurred 'for daily necessities, suchas food, clothing, medicines, repairs and forpayment of municipal taxes'. However, thefinding of the learned appellate Judge is thatsome of these debts had become time-barredon the date of the aforesaid alienation. Thetwo learned Advocates were not agreed as tohow much of these debts was time-barredAccording to Mr. Shah, the time-barred debtsamounted to Rs. 2,547.14-0 and, according toMr. Bhatt, the amount of time-barred debt wasRs. 1,700. Mr. Bhatt is supported by the finding recorded by the learned trial Judge whohas made the following observation in paragraph 10A of his judgment: 'It cannot bedefinitely ascertained how much amount paidat the time of suit alienation was time-barred.However, it seems, consideration of aboutRs. 3,500 out of consideration of Rs. 5,201cannot be said to be consideration towards time-barred debts.' Unfortunately, the learnedappellate Judge has not recorded a clear finding as regards the amount--of the time-barreddebt. In paragraph 18 of his judgment, thelearned appellate Judge has made the followingobservation: 'It would also appear that themajor portion of the purchase price was notfor payment of time barred debts.' However,in order to determine the second point aforesaid, it is not necessary for me to determine theexact amount which had become time-barred.The question is one of pure law as to whetheran alienation by a Hindu widow for a timebarred debt incurred by her for legal necessitywas itself for legal necessity or not. The balanceof Rs. 5,851 was not paid in cash,as already stated, to Diwali. Of the balance,Rs. 5,100 were kept with the vendee, the respondent, without any liability to pay interestthereon. The finding is that this amount waskept in deposit with the respondent becauseDiwali did not part with the possession of thewhole of the suit house. Under the suit transaction the ground-floor of the house was keptwith Diwali and she was given a right to residetherein for her life-time. In lieu of this right,no rent was to be paid by her to respondent andthe aforesaid amount was kept withrespondent to secure him the return of the premises after her death. However, the further finding is that Diwali was given a fight to receive from out of the above deposit amount payment to the extent of Rs. 400 per year in future for her maintenance. The further finding is that, in case of her death, the whole or the balance of Rs. 5,100 was to be disposed off by paying the same to certain persons named in the said sale deed. The remaining amount of Rs. 751 was deposited with one Manilal Chunilal and the finding is that that amount was kept with that person for purchase of medicines in future. The third contention of Mr. Shah is based upon the last two provisions in regard to the amounts of Rs. 5,100 and Rs. 751.
5. Therefore, the question which falls to be decided in the Second Appeal is whether the aforesaid alienation can be held to be for a legal necessity in view of the fact that a part of the previous debts for the discharge of which a part of the consideration amount was utilised, was time-barred. Mr. Shah's submission is that such an alienation is not for legal necessity. The finding recorded by the learned appellate Judge, as already stated, is that the time-barred debts which were paid were themselves incurred 'for legal necessities'. Therefore, the question has got to be decided on the basis that, at the time when the aforesaid debts were incurred, the debts were for legal necessity. The question is whether an alienation for time-barred debts which, when incurred, were for legal necessity can be supported on the principle of legal necessity. Mr. Shah concedes that, if Diwali had alienated the property for the discharge of the aforesaid time-barred debts but during their subsistence and within the period of limitation, then, the alienation would be binding. In fact, having regard to the Full Bench decision recorded by the Bombay High Court in Dhondo Yeshvant Kulkarni v. Mishrilal Surajmal : AIR1936Bom59 , Mr. Shah also concedes that if Diwali had happened to die before the debts had become time-barred, then, the reversioner would have been liable to discharge the debts even if no property had been alienated. Mr. Shah also concedes that if Diwali had either acknowledged the debts and had so kept them alive or if she had executed fresh promissory notes within the period of limitation, then, those debts would have also been binding on the reversioner or that if she had alienated the suit house for payment of such debts which had been so kept alive by reason of such acknowledgments or fresh contracts, the alienation would have been binding. The submission, however, is that the necessity for alienation vanished as soon as the debts become time-barred. The main argument which Mr. Shah urges in support of this submission is based upon the well-known test which their Lordships of the Privy Council-formulated in Hunoomanpershad Pandey v. Babooee Munraj Koonweree, (1854-57) 6 Moo Ind App 393 (PC). In that case, their Lordships of the Privy Council were considering the extent of the power of the manager of an infant's estate.
There is no doubt that the test so formulated has also been applied for determining the extent of the power of a limited owner like a Hindu widow. The test has been enunciated by their Lordships of the Privy Council in the following words:
'The power of a Manager for an infant heir to charge ancestral estate by loan or mortgage, is, by the Hindu law, a limited and qualified power, which can only he exercised rightly by the Manager in a case of need, or for the benefit of the estate.'
Mr. Shah's contention is that, having regard to the fact that the debts had become time-barred at the date of alienation, there was no pressure whatsoever on the estate and that, consequently, there was no necessity for Bai Diwali to alienate the suit house. The argument so baldly put is certainly attractive and prima facie persuasive, but a closer examination reveals its fallacy. In my judgment, the fact that the debts when incurred were for legal necessity does not cease to be a significant fact merely because they became time-barred. Their significance requires to be adjudged in the light of the Hindu law--of which the posed question is a part. Can it be said that the necessity come to an end because the debts became time-barred? Therefore, the question for consideration is whether, having regard to the fact that the debts were incurred for legal necessity, it can be stated that the necessity ceased by virtue of the fact that there was a time-lag between the dates on which the debts were incurred and the date on which the alienation took place. In other words, is it necessary under the Hindu law that the alienation and the incurring of the debt should be simultaneous? Having regard to the concessions which Mr. Shah made and specially on the authority of the case (1938) 38 Bom LR 6: (AIR 1936 Bom 59) already referred to, it cannot be said that the two things should be simultaneous. If there is proof in a particular case that, after the debt was incurred and at the date when the alienation took place, there was sufficient fund at the disposal of a limited owner, which fund could have been utilised for payment of a debt which had been previously incurred for legal necessity, then, the legal position may or may not be different. But, if we have a situation of the type as we have in the present case where, at the date when the alienation took place, the limited owner had still no sufficient fund at her disposal, can it be said that the alienation was not supported by legal necessity? Mr. Shah did not cite any text of Hindu Law or any authority in support of the aforesaid proposition which is implicit in the submission he makes. There are obvious difficulties in upholding the aforesaid implication. If the law were to require that the incurring of the debt and the alienation must be simultaneous, then, it would leave no choice whatsoever to the limited owner in the course of the management of the limited estate and every time a necessity arises an alienation must simultaneously take place. If this is not the correct legal position and having regard to the aforesaid Bombay case and the concessions made by Mr. Shah, it cannot be so taken, the question which further arises for consideration is whether the legal necessity must be taken to have ceased by virtue of the fact that the creditor had failed to institute a suit for the enforcement of the debt within the period of limitation. Now Mr. Shah's submission is that, having regard to the fact that the debt had ceased to be enforceable at law, it cannot be said that there was any pressure on or danger to the estate. Therefore, the argument can he upheld if, under the Hindu law, the previous debt or the legal necessity or both cease to exist on the debt becoming time-barred or the Hindu law requires that a new legal necessity must arise at the date when the alienation takes place. Having regard to Dhondo's case, (1936) 38 Bom LR 6: (AIR 1936 Bom 59) and the concessions made by Mr. Shah, in my judgment, it is not correct to assess the legal position on the basis that the Hindu law requires a new legal necessity to arise. If the correct legal position is that a previous debt, if incurred for a legal necessity, supports' a subsequent alienation, then, it is obvious that, unless the Hindu law specifically provides that a time-barred debt ceases to possess the quality of legal necessity, the aforesaid proposition cannot be supported. Mr. Shah was unable to show any text of Hindu law or any authority for the proposition that, under the Hindu law, a time-barred debt ceases to have the quality of legal necessity. On the contrary, there are indications to the contrary. The Patna High Court has observed in Darogi Rai v. Basdeo Mahto, AIR 1937 Pat 40, at p. 42, that 'Hindu law is very strict about payment of debts. It makes a man's three generations liable for his debts though the descendants may have received no property from his ancestors'. In my judgment, if legal necessity were to be judged by reference to the statute of limitation, then, one would be introducing a foreign element in the consideration of Hindu law. If Hindu law did not prescribe a period of limitation for enforcement of a debt, then, it is quite obvious that the Hindu law-givers could not have contemplated cessation of legal necessity on account of the lapse of time between the incurring of the debt and the date on which the alienation took place for such a debt. It is true that, in the present case, on the date on which the alienation took place, a suit by any of the creditors would not have been decreed by an Indian Court. But the fact that the debt had lost its enforceability under the general Indian law, in my judgment, has no relevance for determining the question of the power of a limited owner to alienate a property for discharge of a debt validly incurred. The Indian Limitation Act was never enacted for affecting rights of a limited owner like that of a Hindu widow. That Act was passed for the purpose of prescribing a period of limitation, inter alia, for enforcing debts in Courts of law and it would not be proper to apply the provisions of the Indian Limitation Act in a manner as to affect the powers of a person governed by another law. In that view of the matter, unless there is some text of the Hindu law to which my attention has not been drawn or unless there is some binding authority, the contention of Mr. Shah cannot be upheld that an alienation cannot be made by a Hindu widow for a time-barred debt. However, Mr. Shah very strongly relies upon the case, Makkhan Lal v. Sardar Kunwar : AIR1932All555 . Exactly the same question which is raised for my decision in this case arose in that case too. Their Lordships held in that case that a Hindu widow cannot alienate her husband's property for a time-barred debt. One of the arguments which was urged in support of the contention to the contrary was that the power of a Hindu widow to alienate her husband's estate for her own antecedent debt was analogous to the power of a Hindu father to alienate the coparcenary interests of his sons and emanated from the fact that there was a pious duty on every Hindu to discharge his own debt. Their Lordships rejected this argument. No such argument was advanced by Mr. Bhatt in support of his contention that an alienation could be made by a Hindu widow for a time-barred debt. With respect, I entirely agree with the above reasoning of their Lordships of the Allahabad High Court. However, the only positive reason which their Lordships of the Allahabad High Court give for their decision is to be found at p. 557 wherein their Lordships have stated, '...... 'legal necessity' not only means the existence of a previous debt but the existence of a debt enforceable in a Court of law. If, therefore, the debt was actually barred by limitation at the time of the mortgage, there was no legal necessity for the alienation.' With the greatest respect, I am unable to agree with this reasoning. I have already given my reasons for not accepting the aforesaid argument which was put forward by Mr. Shah in support of his contention. In my judgment, the introduction of the concept of enforceability of a debt by a Court of law for determining the aforesaid question is introducing a foreign element in Hindu law. As against the above decision of the Allahabad High Court, Mr. Bhatt relies upon the decision of the Patna High Court in AIR 1937 Pat 40, already referred to. Their Lordships of the Patna High Court have considered the aforesaid Allahabad case and have differed from it on the ground that that case introduces into the Hindu law considerations which are foreign to it. With the greatest respect, I agree with this criticism of the Allahabad case. Their Lordships, in my judgment, have correctly approached the problem in the following words reported at p. 42.
'In deciding what are legal necessities under the Hindu law, we must include all those 'necessities' which the Hindu law-givers have recognised as legal, justifying alienation of properties by a limited owner Payment of an antecedent debt legally incurred is a legal necessity. Does this necessity ceases to be 'legal' under the 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 payment of that debt has become barred Hindu law does not recognize limitation.'
Therefore, with the greatest respect, I prefer the reasoning adopted by their Lordships of the Patna High Court in Darogi Rai's case, AIR 1937 Pat 40 to the reasoning adopted by their Lordships of the Allahabad High Court in Makkhan Lal's case : AIR1932All555 and I reject the contention of Mr. Shah that an alienation for a time-barred debt was not an alienation for legal necessity.
6. The next contention of Mr. Shah is that an alienation of a property by a limited owner for maintenance required in futuro and for payment of medical expenses similarly required is not an alienation for legal necessity. In support of this contention, Mr. Shah relies upon the case Gyanu Kashiba Dhangar v. Sarubai Biru Dhangar : AIR1943Bom266 . In this case, it was decided that, under Hindu law, a widow has no power to sell her husband's estate in return for a covenant to pay her an annuity for maintenance for the rest of her life. Apart from the fact that, with the greatest respect, I entirely agree with this proposition, I am bound by this authority. But, the present case, in my judgment, is distinguishable from the above case. In Gyanu's case : AIR1943Bom266 there was an alienation simpliciter in return for a covenant to pay an annuity for future maintenance. In the present case, we have not an alienation for future maintenance and for future medical expenses simpliciter. The alienation came to be made under circumstances already narrated by me and found by the learned Judges. It appears from the history of Diwali's dealings with her husband's estate that, in 1964, she was left with only one house in which she resided and a shop from out of which she got an annual income of Rs. 200. It appears from the record of the case that she was a chronic patient of diabetes and required to be medically attended to almost every day. It also appears that the doctors did not insist in the past upon cash payment for such treatment. Therefore, she got indebted to the doctors, for a fairly large amount. The finding also is that Diwali required much more than Rs. 200 per annum for her bare maintenance. In fact, the learned Judge has referred to an admission made on behalf of Chanchal that Diwali's requirement for maintenance was Rs. 2,000 per year. Therefore, we have a situation here in the year 1954 in which not only Rai Diwali required a large amount of about Rs. 4,500 for payment of the debts which she had previously incurred, but also large debts, were incurred by her for legal necessity. The only properties from out of which she could raise the amount was the residential house in which she lived and the shop aforesaid. The question as to whether she could have raised this amount by mortgaging one of the two properties was never canvassed by Chanchal in any of the two lower Courts. In any case, there are no materials on the record of the present case from which it can be reasonably held that the liabilities which Diwali had incurred could have been discharged by some such method. In fact, I find it difficult to hold that the problem of Bai Diwali could have been solved by a mere mortgage of any one of the two properties. It is quite clear that, by mortgaging one of the properties, Diwali would have jeopardized either her residence or her source of maintenance. In any case, the income of the property would then have been utilized first for the payment of interest and the prospect of redeeming the mortgage debt would be as bleak as ever. If the house were to be mortgaged, it is probable that a large part of the income from the shop would have been utilized for the payment of interest and Diwali would have been on the brink of starvation. In the year 1954, when Diwali had to deal with the aforesaid problem for payment of her debts, she had also to deal with the problem of her future maintenance and the meeting of future medical expenses. On the other hand, if we take an over-all view of whole of the transaction, it is quite obvious that Bai Diwali solved all her three problems by executing the aforesaid sale deed. By executing the sale deed, she reserved for herself a ground-floor for personal occupation, thereby solving the problem of her personal residence. She also got a sum of Rs. 5,851 set apart, which would be available to her annually in small instalments, both for the purpose of future maintenance and for the purpose of future medical expenses, If, under these circumstances, instead of mortgaging the property, Bai Diwali sold the whole of the suit house and secured for herself the aforesaid benefits which would, at least, for some time secure her maintenance and medical assistance, it cannot be said that the transaction was such as indicated want of legal necessity. In this connection, Mr. Shah very strongly relies upon the disposition which Bai Diwali had made in regard to the deposit of Rs. 5,100. Mr. Shah drew my attention to the fact that in the sale deed itself, it had been provided that if, after her death, any amount remained outstanding, then, the same, should be paid to two named persons and Mr. Shah drew my attention to the fact that those persons were amongst those who were creditors of Bai Diwali and to whom the time-barred debts were to be paid. It may be that, in law, the aforesaid disposition might have been assailable. I am not concerned in the present proceedings as to whether that particular disposition is legally valid or not. It may be that, in law, that provision may not be valid and may not pass on any of the aforesaid amounts to the aforesaid two persons and the same may be payable to the next reversioner. But the fact that the aforesaid provision is so assailable does not have any repercussion whatsoever on the question of legal necessity. I am unable to draw an inference from the aforesaid provision that the legal necessity was not in existence at all or that the aforesaid alienation was made for any ulterior motive. In this connection, I may refer to the case Neelambal Animal v. Rajarathnam Pillai : AIR1956Mad336 . In this case, Gyanu's case, (1943) 46 Bom LR 477: (AIR 1943 Bom 266) was also referred to. Their Lordships in that case pointed out that it was difficult to say with exactitude that a Hindu widow has no power to alienate her husband's estate for future maintenance. They pointed out that whether she had such a power or not would depend upon the facts of each case. Their Lordships observed that if a Hindu widow was left with Government promissory notes or other securities to the extent of a few hundred rupees and nothing more, it cannot be said that she had no authority or power to collect the principal amount and that she was, in law, bound only to collect the interest and thereby starve herself. With great respect, I agree with the view expressed in this case that the question as to whether a Hindu widow can or cannot alienate her husband's estate for future maintenance cannot be answered in absolute terms and that the answer to the question must depend upon the circumstances in which the alienation for such purpose comes to be made. In the present case, as already pointed out by me, the circumstances are such that if an integrated view of the whole transaction is taken, in my judgment, the alienation by Diwali must be regarded to be an alienation justified by Hindu law. Under the circumstances, the third contention of Mr. Shah must also fall and must be rejected.
7. In that view of the matter, the fourth submission of Mr. Shah, as already stated, does not survive for consideration.
Therefore, the present appeal deserves to be dismissed with costs.
8. Appeal is dismissed with costs.