(1) This second appeal raises an interesting question of law about the applicability of S. 14 of the Hindu Succession Act, Central Act XXX of 1956, hereinafter referred to as the Act. The brief facts of the case are:
The properties involved in the suit belonged to one Govindaraja Goundan, who died about 30 years ago. The plaintiff and the first defendant are his brothers while the third defendant is his widow. The second defendant is the son of the first defendant, and he has married the third defendant's brother's daughter. The third defendant who was in possession of her husbands properties conveyed the same to the second defendant under a registered deed of gift, Ex. B. 1, dated 1-6-1948. On 2-9-1958, the plaintiff as the nearest reversioner of Govindaraja Goundan filed the suit for a declaration that the gift deed in favour of the second defendant would not be binding on the reversioner after the death of the widow. Two months later, while the suit was pending, the second defendant, the settle under Ex. B. 1, conveyed back the properties to the widow under Ex. B. 2, dated 12-11-1958. On behalf of the widow, the third defendant, the objection was raised that by reason of this reconveyance under Ex. B. 2, and S. 14(1) of the Hindu Succession Act, she had become the absolute owner of the properties, and that the plaintiff is not entitled to continue the suit as a reversioner of Govindaraja Goundan. In other words, the plea of the third defendant was that as a result of the reconveyance the properties became hers and the plaintiff cannot make any claim thereto, whether immediate or contingent, as a reversioner of Govindaraja.
(2) The trial Court held that the material date was the date when the suit was filed, and that the widow was not in possession of the properties of her husband, that the plaintiff, the reversioner was entitled to the declaration, and that the reconveyance during the pendency of the suit would not in any way affect the right of the reversioner to obtain a declaration that the alienation would not bind the reversionary interest after the lifetime of the widow. But on appeal the learned Subordinate Judge came to a contrary conclusion and allowed the appeal, holding that the plaintiff was not entitled to continue the suit and no declaration can be made in his favour. The plaintiff has preferred this second appeal.
(3) Though some argument was advanced in the courts below that the widow herself was in possession of the property despite the settlement, Ex. B. 1, learned counsel on both sides accepted the position that from 1948, the date of the settlement, till the reconveyance, the widow had no possession of the properties, and that it was with the settlee, the second defendant.
(4) Learned counsel for the appellant placed considerable reliance upon the Bench Decision of this Court in Marudakkal v. Arumugha Goundar, 1958-1 Mad LJ 101: (AIR 1958 Mad 255) and the other decisions in which the view was taken that where prior to the commencement of the Succession Act the limited owner in possession of her husband's estate had alienated the properties without necessity and for purposes not binding upon the estate, and if the alienee was in possession of the properties on the date when the Act came into force, the reversioner to the estate would be entitled to obtain a declaration that the alienation will not bind the reversioner and that S. 14 of the Act had not the effect of converting the alienee's title to the alienated properties, into an absolute and indefeasible one. Applying the ratio of this decision learned counsel for the appellant contended that the material date of determining the plaintiff's right to obtain a declaration was the date of the suit, and that if on that date he was entitled to obtain such a declaration S. 14 had no application because the widow was not in possession of the properties, that right which inhered in the plaintiff on the date of the suit cannot be affected or destroyed by any alienation pendente lite, though between the defendants inter se. He urged that either under the doctrine of lis pendens or an general principles, the right of a litigant should not be affected by the delay on the part of the court in deciding the case and the rights of the plaintiff should be declared as on the date of the suit, ignoring altogether the reconveyance.
He further urged that under the gift deed from the widow, the second defendant had acquired only a limited interest to enjoy the property during the lifetime of the widow, and that he could not convey any title higher than what he himself acquired under the gift deed, and that the reconveyance could convey back only a limited estate and will not have the effect of enlarging it into an absolute one. Learned counsel further contended that in a case where the widow loses possession of the property under an unauthorised alienation the right of the reversioners as a whole--even though the right of an individual reversioner is only a spes successionis--is a very valuable right which has-been preserved, to obtain possession of the properties from the alienee on the death for the widow, and that such a right cannot be affected by any dealing inter se between the widow and the alienee. In other words his argument is that when certain rights have accrued to third parties like the plaintiff, in the instant case, in regard to certain properties, those rights could not be affected by S. 14 of the Hindu Succession Act. I am unable to accept this argument as if proceeds on a misconception of the incidents of a widow's estate under Hindu law and the rights of the reversioner.
(5) A widow or other limited heir is not a tenant for life but is the owner of the property inherited by her as an heir subject to certain restrictions on alienation's and subject to its devolving upon the nearest heir of the last owner upon her death. As pointed out by the Privy Council in Janaki Ammal v. Narayanaswami Iyer, ILR 39 Mad 634 at p. 637: (AIR 1916 PC 117 at pp. 117-118), the widow's right is of the nature of a right of property; her position is that of owner; her powers in that character are however limited, but so long as she is alive no one has any vested interests in the succession. The law as to the situation of the reversionary heirs is also quite clear. There is no vesting at the date of the husband's death. It is a mere spes succession is and the question as to who is the nearest reversionary heir falls to be decided at the date of the death of the widow.
(6) Before I proceed further one observation requires to be made regarding the scope and effect of the Hindu Succession Act, particularly that of S. 14. It must be borne in mind that the overriding effect of the Act as declared in S. 4 is not all-embracing but rules of Hindu law shall cease to have effect only with respect to matters for which provision has been made in the Act. In other words, on matters for which there is no specific provision in the Act the principles of Hindu law would still continue to apply, though such matters would be very few.
(7) In a recent Bench decision of this court in Ramalingam v. Punithavalli Ammal, the scope of the overriding
effect of S. 4 of the Act came up for consideration. In that case a Hindu widow who had inherited her husband's property even before 1937 adopted a son after the Hindu Succession Act came into force and shortly thereafter she executed a settlement deed in favour of her daughter. The Bench held that even though the property in the hands of the widow became her absolute property before the adoption by reason of S. 14 of the Act, it was nevertheless subject to defiance when she made the adoption. It was observed that defeasibility of an estate can coexist, with the absolute character of the dame in the owner i.e., the widow, till the contemplated event, namely, the adoption, takes place. The matter was put thus at page 326:
"From what we have stated above, and except in the two types of cases referred to, a divestment by an adopted son of the property in the hands of his mother or any other heir of his father, is by virtue of his own right and not by reason of any restriction or a defect in the nature of the estate possessed by the adoptive mother or any other heir. In all such cases, the person who actually inherits on the death of the last male owner can be regarded only as an intermediate heir with certain powers, and whose estate will be liable to be defeated on an adoption being made to the deceased by his widow".
In considering, how far the provisions of the Act being a Code, will have effect of nullifying the ordinary law not only in regard to matters expressly provided for therein but matters not so provided, the matter was put thus at page 323:
"Therefore while the Act can be regarded as a code and interpreted with reference to matters dealt with by it on the principles referred to above, a different rule of interpretation will have to be adopted where the provisions of the statute indirectly affect an unabrogated part of the pre-existing Hindu law. That this will be so will be apparent from the very terms of S. 4, which statutorily makes the provisions of the Act comprehensive".
(8) The Bench ultimately held that the adopted son's rights will date back and the settlement executed by the adoptive mother would not affect his rights. The principle for this decision applies to the instant case as will be seen presently.
(9) I shall now consider how the position stood between the widow and the alienee till the Hindu Succession Act came into force. Despite the alienation, even if it comprises the entirety of the estate, the widow is not civilly dead but continues to represent the estate. The title of the alienee (where the alienation is not for necessity) is undoubtedly defeasible, the defeasance arising out of the incidents of Hindu law. If the widow makes an adoption, the adopted son will be entitled to divest the alienee and recover possession of the property. Again, if the widow makes a surrender in favour of the nearest reversioner, the reversioner will be entitled to recover immediate possession of the property from the alienee. If the widow remarries there would be forfeiture of her rights of inheritance and the next heir will be entitled to recover possession of the property from the alienee. The difference of judicial opinion about the consequences of adoption, surrender, remarriage have all been set at rest by the recent judgment of the Supreme Court in Natvarlal v. Dadubhai, and
Kalishankardas v. Dhirendranath, . In
dealing with the effect of a surrender, the Supreme
Court stated the law in these terms at p. 77 (of Mad LJ): (at p. 68 of AIR).
"If such a transfer is made by a Hindu widow, it is not correct to say that the transferee acquires necessarily and in law an interest commensurate with the period of the natural life of the widow or at any rate with the period of her widowhood. Such transfer is invalid in Hindu law, but the widow, being the grantor herself, cannot derogate from the grant and the transfer cannot also be impeached so long as a person does not come into existence who can claim a present right to possession of the property. As in the majority of cases, persons with such rights come into existence only when the widow dies it is generally said that the alienee gets the estate for the term of the widow's life. We think that the legal position has been correctly indicated by Kumaraswami Sastriar J. In the Full Bench case Vaidyanatha Sastri v. Savithri Ammal, ILR 41 Mad 75: (AIR 1918 Mad 469) referred to above. On the one hand, a Hindu widow has larger rights than those of a life-estate holder, in as much as, in case of justifying necessity she can convey to another an absolute title to the properties vested in her. On the other hand, where there is no necessity for alienation, the interest, which she herself holds and which she can convey to others, is not an indefeasible life estate, but an estate liable to be defeated on the happening of certain events which in Hindu law cause extinction of the widow's estate. Remarriage by the widow is one such event which completely divests her of any interest in her husband's property. Adoption of a son to her husband is another circumstance which puts an end to her estate as heir to her husband, the effect of adoption, being to bring in a son who has prior claims to succession under the Hindu law. In both these sets of circumstances it is not disputed that prior rights derived from the widow, if not supported by legal necessity, could be defeated by the next heir of the husband or the adopted son as the case may be. If the effect of surrender, as explained above, is to destroy the widow's estate in the same way as if she suffered physical or civil death, there is no conceivable reason why the reversioner should not, subject to any question of fraud or collusion that might arise, be in a position to recover possession of the properties from an alienee from the widow, or from one who has obtained title by adverse possession against her, as none of them could acquire rights except against the widow herself".
(10) In the view was reiterated that the transferee gets only the widow's estate which is not even a indefeasible life estate and that it can come to an end not merely on her death but on the happening of other contingencies like remarriage, adoption, etc.
(11) If an alienation is made by the widow and if the same is questioned by reversioner either in a suit or otherwise, thereby casting a cloud on the title of the alienee, there is nothing in Hindu law or under the general principles of law of transfer which would prevent the alienee conveying back the property to the alienor, in the same capacity and in the same right in which it was conveyed by the widow. In the case of an ordinary sale, if the title of the purchaser is questioned he can convey back the property to the vendor and get back the price paid by him. The purchaser can either claim indemnity and damages when he is actually dispossessed or even at the earlier stage when his title is threatened he can convey back the property provided the vendor agrees. The position is the same in the case of every transaction which is voidable at the option of a third party.
Take another illustration, if a son or a junior member of a joint family files a suit, questioning the alienation, the alienee can admit the claim and convey back the property in which event the property will be and could be held by the managing member in the same capacity in which it was held prior to the alienation. I do not see why the same rule should not apply in the case of an unauthorised alienation by a widow. If the Hindu Succession Act had not come into force, it is impossible to contend that during the pendency of the suit in the instant case the alienee could not have conveyed back the property to the widow. Equally it could not be contended that when the alienee conveys back the property, the widow could hold it in any capacity other than a Hindu widow. In fact she will suffer under a legal disability from holding the property in any other character. She got the property only as the heir and widow of her husband alienated the same in the capacity, and she would be clearly estopped from claiming to hold it except as a widow on reconveyance. On reconveyance the property in her hands will be subject to all the incidents of Hindu law as the property inherited by the widow from the husband.
(12) The argument of learned counsel for the appellant that when the alienee reconveys the property the widow gets it under a different root of title, i.e., the right of the alienee to enjoy the property till the life time of the widow alone is conveyed without the incidents of Hindu law is clearly wrong. If the alienee conveys the property to a stranger the position is entirely different, as in that case the stranger can acquire only the limited right of this alienor. The widow on reconveyance cannot by any process of reasoning be assimilated to the position of a stranger.
(13) Learned Counsel relied upon the decision of the Orissa High Court in Ganesh Mahanta v. Sukriya Bewa. . In the case a
donee from a widow prior to the commencement of the Act re-transferred the property in favour of the widow after the Act came into force. It was held that the widow would acquire only a limited interest and that the donee cannot transmit any title higher than what he himself had. It was also held that S. 14(1) would not enlarge the estate of the widow on reconveyance. The learned Judge put the matter thus at page 168:
"As I have discussed above defendant 2 acquired only the widow's estate by the gift in his favour. His retransfer on 13-2-1957 by Ex. B, even if genuine and not fraudulent or collusive as has been held by the trial court, would transmit to Lata the same title which defendant 2 himself had. In this regard the declaration made in O. S. 138 of 1946-47 that her gift in favour of defendant 2 was not binding on the reversioners after her death, does not make any difference in the legal position. Even if such a suit had not been filed, the interest of the alienee or the donee in the property would be that of a limited owner. Section 14(1) does not purport to enlarge the right, title or interest of the alienee with regard to the transfers effected prior to the commencement of the Act. By Ex. B Lata would again get the widow's estate. The position would be made clear by an illustration. Supposing defendant 2 had effected a transfer not in favour of Lata but in favour of another male who is in law always entitled to hold the property as a full owner. Would the transferee in such a case acquire a limited right, or a full ownership? The obvious answer is that he would acquire only a limited right as the donee cannot transmit any title higher than what he himself had. The position does not become in any way different merely because defendant 2 retransferred the property in favour of a female. Though the transfer is subsequent to the Act, Lata acquired only limited right and did not acquire full ownership on account of the limited nature of the interest of the transferor. The trial Court has found that Ex. A was without consideration. Even if it were for consideration. Lata would not transmit a higher title than what she got by Ex. B...................."
With respect, I am unable to agree with this view, as the entire reasoning is based upon the view that there is no difference between a reconveyance in favour of the widow herself and alienation in favour of the stranger. In my opinion, there is all the difference between a case of annulment of a conveyance by consent of both the parties and a case of a subsequent alienation by the alienee in favour of a stranger. In the former case the effect of the alienation is completely wiped out and the original position is restored. This distinction has not been noticed in the decision of the Orissa High Court. The acceptance of the contention urged by learned counsel for the appellant would lead to startling results. Take for instance an unauthorised alienation by a guardian. If some cloud is cast on the validity of the alienation, and if the alienee, not willing to take any risk till the attainment of majority, by the minor, conveys back the property to the guardian, it would not be open to the guardian to contend that he had acquired the voidable title of the alienee. In other words, he cannot content as against the quondam minor that the income from the property would be his, and that till the minor takes proceedings for setting aside the alienation the guardian should be deemed to have acquired the right, title and interest of the alienee. Such a contention on the face of it is untenable.
The instance of an alienation by a trustee or an executor may also be considered. If after the alienation by the trustee or executor the beneficiary raises some objection about the validity of the alienation whether well founded or ill founded and if the alienee who is not prepared to take any risk conveys back the property to the trustee or the executor as the case may be it cannot possibly be contended that the trustee or the executor got back the property in any right or character other than in which it was originally alienated. As a result of the reconveyance the property would form part of the trust estate. In all these cases the alienor suffers under a legal disability from holding the property in any other capacity. It is needless to multiply instances. I am therefore clearly of the opinion that there is nothing in law to prevent an alienation being completely nullified as if it never took effect provided the alienor and the alienee agree to such a course. The position is a fortiori where the title conveyed to the alienee is a voidable one. It cannot be disputed that when the reversioner files the suit, it is open to the alienee to submit to a decree. After such a declaratory decree is passed, there is nothing in Hindu law which compels or obliges the alienee to retain and keep the property himself and hand it over to the reversioner. It is certainly open to him to respect the decree and convey back the property to the widow even before her death. It is obvious that what the alienee can do after the termination of the suit can equally be done during its pendency. Surely the alienee is not a trustee for the reversioner to keep the property in trust and deliver the property on the death of the widow.
(14) If this is the legal position till the Hindu Succession Act came into force the question arises whether S. 14 brings about different results. Section 14 while it enlarges the limited estate of a female, subject to the conditions in sub-sections (1) and (2) thereof, does not otherwise abrogate or render inapplicable other rules or principles of Hindu law. In fact, the recognition of the continuance of the right of the reversioner to file the suit when the widow had alienated and parted with possession of the properties is itself founded upon Hindu law of reversionary succession. It is obvious that when this right of the reversioner is recognised despite S. 14, the right must be subject to all the incidents of Hindu law referred to earlier. In other words, S. 14 is completely out of the picture and principles of Hindu law alone will determine the fate of the suit.
The question therefore arises as to what exactly were the precise rights of the reversioner when he filed the suit and how far the doctrine of lis pendens would improve his position or would protect his rights. The doctrine of lis pendens would not confer upon the reversioner any rights higher than what he had on the date of the suit, but would only safeguard his rights whatever they were on the date of the suit. From what has been observed above it will be seen that the right of the reversioner to get a declaration of invalidity of the alienation is itself a precarious and a defeasible right in its very nature. The institution of the suit does not carry with it a right in the reversioner to prevent the alienee from reconveying the property back to the widow. The right of the alienee to reconvey the property which inhered in him upto the moment of the suit cannot be controlled or curtailed by the institution of the suit.
(15) After the alienee reconveys the property S. 14(1) undoubtedly comes into play. Section 14 would apply to any property acquired by the widow before or after the commencement of this Act. Where the property was acquired by the female Hindu before the Act came into force she must be in possession of the property at that time or she must have a legal right to such possession, and in either case the estate would get enlarged. In the case of acquisition of property after the coming into force of the Act, the matter admits of no doubt because the very scheme of the Act is to abolish altogether limited estate and to wipe out all distinctions between a male and a female. Take for instance a settlement executed by a Hindu male whether before of after the commencement of the Act, the deed of settlement containing a clause for defeasance or divestiture on the happening of an event i.e., the settlee marrying a woman of a particular community without any provision as to who should take the vested remainder on such a contingency. After the settlement had taken effect and if the contingency occurred after the Act had come into force at a time when the settlor was dead leaving a widow as heir the latter would become entitled to the vested remainder as the heir of the settlor.
There can be no doubt that in such a situation S. 14 would apply and enlarge the estate into an absolute one, even though the title of the right to possession accrued only after the Act came into force. The crucial fact is that the right accrued to a Hindu female. Adopting the same principle in the instant case that title and possession acquired by the widow, though after the Act, would become enlarged under S. 14. Looked at from any point of view, I am clearly of the opinion that by reason of the reconveyance the reversioner's suit has become useless and cannot be prosecuted any further, as the widow has become the absolute owner of the property. For all purposes, the intervening alienation and the reconveyance will have to be left out of account and the widow should be regarded as enjoying the property as an heir to her husband.
(16) After the dictation of the judgment and before delivery I noticed a judgment of the Punjab High Court in Teja Singh v. Jagat Singh AIR 1964 Punj 403 October Part, in which the same view as I have indicated above has been taken. In that case a widow gifted the property inherited by her from her husband in 1938, and the reversioner had obtained a declaration that the alienation would not bind the reversioner after the death of the widow. After the Hindu Succession Act came into force, on 3-6-1959, the alienee gifted back half the property to the widow under a deed of reconveyance and the widow died on 29-10-1959. The widow alienated this half in favour of defendants 5 and 6. The reversioners filed the suit that this subsequent alienation by the widow in favour of defendants 5 and 6 would not bind the reversioner. Mahajan J, held that the effect of both the alienation and the fight back put together was that the widow by her own act nullified the alienation made by her and became the absolute owner of the property, and that the presence of absence of a declaratory decree made no difference on her rights. It was also held that the declaratory decree merely avoided the alienation and it did not prevent the parties to it to put and end to it. I may refer to the following observations at pages 405-406:
"What the alienee validly and unquestionably acquires under an unauthorised alienation from a widow is the limited interest. What he passes back is again the limited interest. So at two points of time, what the widow parted with was a limited interest, and what she re-acquired again was that very interest. The gift and the gift back have not and could not enlarge the widow's limited interest. Therefore, there is no question of any declaratory decree either stepping in this situation to undo what could not be done. The declaration merely undid the gift after the death of the widow. It did not prevent the widow to undo the gift in her lifetime. Nor it could, for what the parties can validly do, they can also by mutual consent undo it later. This course would merely make the declaratory decree inoperative for what it sought to achieve after the death of the widow is achieved in her lifetime, thus rendering the declaratory decree useless......In my view the presence or the absence of a declaratory decree would make no difference. The declaratory decree avoids the alienation. It does not prevent the parties to it to put an end to it. If they do so after the declaratory decree, they are in fact obeying the decree and giving effect to it and thus serving the purpose of the decree. The parties are thus restored back to the same position in which they were before the alienation."
The learned Judge followed the Bench decision of the Lahore High Court in Muhammad Rafiq v. Faiz Ahmad, AIR 1933 Lah 597 (2) in which it was held that after a decree had been obtained by a reversioner regarding the alienation by a widow it would be open to the parties by mutual consent to have the sale annulled, on the ground that there was nothing in law to prevent the parties by mutual agreement to cancel and nullify an earlier sale and thus restore back the parties to their original position.
(17) The result therefore is the second appeal is dismissed but under the circumstances the parties shall bear their own costs throughout. No leave.
(18) Appeal dismissed.