Basheer Ahmed Sayeed, J.
1. Two points arise in this civil revision petition for consideration. The first is whether the respondent, who happens to be the appellant in the lower court, has proved herself to be still a wife or a widow. The question of her being a wife or a widow will turn upon the fact as to whether there is satisfactory proof of the death of her husband. It is common ground that the husband has not been heard of for the last four or five years.
Under Sections 107 and 108 of the Evidence Act the burden is on the person, who asserts that the man is dead or alive to prove that he is dead or alive as required by the Sections, in this case on the evidence it is difficult to hold that the respondent has become a widow. The evidence is not satisfactory on that aspect of the case. There is no proof that the husband has not been heard of for seven years by those, who would have naturally heard of him if he were alive. It has, therefore, to be held that the respondent has not discharged the burden that lay on her to prove that the husband was dead in order to enable her to attain to the position of a widow.
If she was a widow, then certainly the second question would be easily answered in her favour, namely, that as a widow she has an interest 'in praesenti' in the property of the husband, which she is seeking to save by payment of the auction price and the 5 per cent solatium to the decree-holder, who has brought the property to sale in execution of his decree. She has, therefore, at present no interest in the property as a widow. She has not yet 'derived any title to the property' as such widow in the absence of clear proof that her husband is dead.
2. The second question that arises for consideration is whether the respondent could be brought within the scope of Order 21, Rule 89, Clause (1), Civil P. C. This rule says that where immoveable property has been sold in execution of a decree the judgment-debtor or any person deriving title from the judgment-debtor or any person holding an interest in the property may apply to have the sale set aside on his depositing in court and so forth. The point then is as to whether the wife, who has not yet become a widow, can be said to be holding an interest in the property of the husband.
The fact that the wife could be entitled to maintenance from the husband does not depend really upon the question whether the husband has property. Whether the husband has or has not any property, there is an obligation on the husband to maintain his wife. Therefore, it is clear that the right to maintenance by the husband does not always depend upon the husband holding any property. Irrespective of the husband holding any property, the wife will have always the right of being maintained by the husband as long as she continues to be his lawful wife. But the real point is whether being such a wife of the husband, whose property has been sold away in auction, she has not got that much of interest in the property in order to get the property saved and rescued from the clutches of a decree-holder, who has got it sold away in execution.
If, however, it turns out to be the case that the husband is at sometime later dead, then certainly his wife would be justified in making every attempt to rescue the property by payment of the sale price plus the 5 per cent, solatium to the decree-holder. If the sale gets confirmed and the property passes into the hands of any purchaser and it ultimately turns put to be that the husband was dead, certainly it would be too late for the widow to retrive the position. From this aspect of the case there seems to be some force in the contention that to circumstance like the present the wife could be held to hold an interest in the property belonging to her husband.
3. The learned counsel has invited my attention to Mollayya Padayachi v. Krishnaswami Iyer, (1925) 47 M LJ 622: AIR 1925 Mad 95 in this connection. A Bench of this Court consisting of Spencer and Kumaraswami Sastri JJ. has held that the son of a Hindu father would be having sufficient interest in the preservation of the property, which belonged to the father in his own right, as his self-acquired property, and that such interest of the son would be as the reversionary heir of the father, and that as such reversionary heir his son would be entitled under Section 91 of the Transfer of Property Act to redeem the property or to apply to have the court sale set aside under Order 21, Rule 89, Civil P. C.
If, according to this decision, the son of a Hindu father could be treated as a reversionary heir of the father in respect of his separate or self-acquired property for purposes of asking for a sale being set aside, then certainly the wife of a husband, who has left property behind, could also be considered to be interested in the property, because, if the husband turns out to be dead, certainly she would become entitled to the property under, the present case. That being the case, I think that it would not be a violation of the language contained in Rule 89 of Order 21 to say that the wife would be a person holding an interest in the property of her husband.
4. Another decision relied upon by the learned counsel for the respondents is the one reported in Mammu v. Vinayaka Kamath, : AIR1951Mad816 . Govinda Menon J. who has delivered the judgment, has observed that the substitution of the phrase 'holding an interest therein by virtue of a title acquired before such sale' in Order 21, Rule 89 by the phrase 'holding any interest' is intended to give a more beneficent and wider right than was contemplated before. Ho further held that a person, who has attached property, has certainly got interest in seeing that the property is not alienated or otherwise transformed. On the analogy of this ruling it would seem to be fair that the wife, who is getting an ultimate interest in the property held by the husband, would be entitled to save that property by complying with the requirements of Order 21, Rule 89, Civil P. C., when once it has been sold away in execution of the decree of a decree holder.
In Potti Nayakar v. Suppammal, 20 M LW B1: AIR 1924 Mad 723, a Bench of this Court consisting of Oldfield and Venkatasubba Rao JJ. has held that a person, who has been in possession of properties sold in a court auction, prior to the execution sale, though his possession is that of a trespasser, is a person 'holding an interest' in the property sold 'by virtue of a title acquired before such sale' within the meaning of the words in Order 21, Rule 89, Civil P. C. and is therefore entitled to apply for setting aside the sale on making the deposit tinder the rule. This decision is, of course, on the language of the rule as it existed before the amendment But, as has been observed by Govinda Menon J. in : AIR1951Mad816 , if the amendment was intended to give a more beneficent and wider light than was contemplated by the rule before it was amended, then certainly it stands to reason that the amended rule should be interpreted in a more liberal manner than what could have been the case before the amendment:
5. Another decision, which has been cited by the learned counsel for the respondent, seems to be also in accord with what has been held by the previous decisions. The said decision is reported in Kamiruddin Khan v. Sachidananda Jena, : AIR1948Pat66 . In that decision Beevor J. has held that under Mitakshara School of Hindu law a wife, though she could not herself demand a partition, was entitled to receive a share equal to that of a son, if a partition took place between her husband and his sons, and that that showed that the wife had a certain interest in the property, even if it might be regarded as a contingent interest, and that therefore the wife could apply and make a deposit under Order 21, Rule. 89.
This decision seems to be in point to the facts that arise in the present case. Admittedly there are no other heirs to the husband's property, which is sold under the decree, excepting the wife. It is also not disputed that in all probability the wife is continuing in possession of the property and receiving the benefit therefore in the absence of the husband. Of course, no evidence has been let in on this point but it lias to be presumed that during the absence of the husband no other person could have been in possession and enjoyment of the property sold under the decree excepting the wife herself. Therefore, even from this aspect of the case the wife could by a person holding an interest in the properly of the husband, which has been sold by the decree-holder.
6. On a consideration of these aspects of the case I am inclined to hold that the wife situated, as she is, will be a person holding an interest in the property under the amended Rule 89 of Order 21, Civil P. C. and that she is entitled to have the sale set aside on her depositing in court the purchase money as well as the five per cent solatium. In my opinion, the learned District Judge was correct when he came to !he conclusion that the wife could be a person, who could be said to have an interest under Order 21, Rule 89. I do not think that there is any justification, therefore, for me to interfere with the order of the learned District Judge in revision. The petition is therefore, dismissed but in the circumstances without costs.