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Marudakkal and anr. Vs. Arumugha Goundar - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtChennai High Court
Decided On
Reported in(1958)1MLJ101
AppellantMarudakkal and anr.
RespondentArumugha Goundar
Cases ReferredR.A. Missir v. Raghunath
Excerpt:
- - we are not satisfied that she was doing any milk trade on her own account. students of hindu law are familiar with the text attributed to brhaspathi (on another topic in hindu law). he, who, having received a sum lent or the like, does not repay it to the owner, will be born hereafter in the creditor's house a slave, a servant, a woman or a quadruped. the principle of equality does not demand that a hindu woman should be placed in a better position. by alienation, a acquired w's right to enjoy the property for her lifetime. the first link in that chain of reasoning is that the property in the hands of w was divisible into two parts, one part consisting of her right to enjoy the lands and buildings for her lifetime and the other part consisting of the reversionary right of enjoyment.....subrahmanyam, j.1. this is an appeal from the judgment and decree of the subordinate judge of coimbatore in o.s. no. 150 of 1949. the defendants are the appellants.2. the suit was for a declaration that the sale exhibit b-7 by the first defendant in favour of the second defendant was not binding on the reversioners to the estate of the first defendant's husband thanga goundan. he died in june, 1944. the plaintiff is thanga goundan's brother's son. it is not denied that he is the presumptive reversioner to thanga goundan's estate. the property sold was a house in coimbatore. it was sold for rs. 7,000. the learned subordinate judge held that the sale was not binding on the reversioner and hence passed a decree.3. the defendants pleaded that the house was the self-acquired property of the.....
Judgment:

Subrahmanyam, J.

1. This is an appeal from the judgment and decree of the Subordinate Judge of Coimbatore in O.S. No. 150 of 1949. The defendants are the appellants.

2. The suit was for a declaration that the sale Exhibit B-7 by the first defendant in favour of the second defendant was not binding on the reversioners to the estate of the first defendant's husband Thanga Goundan. He died in June, 1944. The plaintiff is Thanga Goundan's brother's son. It is not denied that he is the presumptive reversioner to Thanga Goundan's estate. The property sold was a house in Coimbatore. It was sold for Rs. 7,000. The learned Subordinate Judge held that the sale was not binding on the reversioner and hence passed a decree.

3. The defendants pleaded that the house was the self-acquired property of the first defendant and that even if it formed part of the property inherited by her from her husband, the sale was for necessity binding on the reversioners. On both the points, the learned Subordinate Judge recorded findings against the defendants.

4. The first point for determination is whether the property was purchased by the first defendant out of her own funds and for her own benefit benami in the name of her husband Thanga Goundan. The sale-deed Exhibit B-8, dated 2nd September, 1936, was for Rs. 500. The consideration consists of three sums of Rs. 350, Rs. 100 and Rs. 50 reserved with the vendee to discharge certain debts due by the vendor to certain named creditors. Exhibit B-22, the account-book maintained by Thanga Goundan shows that these creditors were paid by him. The first defendant seeks to prove that the moneys which her husband paid were her moneys. In corroboration of her evidence on that point, she relies on the fact that she deposited in 1930 Rs. 500 in the Selva Vridhi Bank. Exhibits B-16 and B-17 show, however, that the deposit was completely withdrawn by her on 18th June, 1931. The fact that she had Rs. 500 in 1931 does not necessarily lead to the inference that she was keeping that sum with her somewhere, for investment for the purchase in 1936. It is true that her husband Thanga Goundan was adjudged an insolvent in 1925. The adjudication was annulled in 1933. Exhibit B-4, a mortgage executed by Thanga Goundan in 1937, shows that he had borrowed Rs. 400 in 1934 on a promissory note. The mortgage was executed in discharge of the debt due on the promissory note. It is the first defendant's own case that four persons contributing moneys as shareholders started a bank in 1931 and placed the first defendant's husband in charge of the bank. He was being paid remuneration by way of bonus on profits. On 23rd May, 1936, he was paid Rs. 300 as bonus. The bank was housed in a part of Thanga Goundan's residential house in Kattur. The bank paid Rs. 40 per annum as rent. On 23rd May, 1936, Rs. 50 was paid to Thanga Goundan as arrears of rent. The evidence stated above makes it clear that Thanga Goundan had assets of his own out of which the house now in dispute could have been purchased by him for his own benefit in 1936.

5. The presumption that the house was purchased for his benefit, arising from the fact that the sale-deed stands in his name is strengthened by the circumstance that Exhibit B-7 itself in tracing the vendor's title to the property, states that her husband had purchased the house on 2nd September, 1936, that he was in enjoyment of it as absolute owner and that she became entitled to the house subsequent to his death.

6. The sale Exhibit B-7 is dated 25th February, 1949. The plaintiff issued the notices, Exhibit B-2 to the first defendant and Exhibit B-13 to the second defendant in March, 1949, impeaching the alienation as not binding on the reversioners and threatening to take steps to protect the reversioners' interests unless the alienation was acknowledged by the defendants to be not binding on the reversioners. In the reply, Exhibit A-1 given by the second defendant, he said that the house purchased by him belonged to the first defendant as the heir of her husband. The first defendant, however, in the notice sent to the plaintiff (Exhibit B-3) went back on the statement in the sale-deed Exhibit B-7 and set up the present case that the house had been purchased in her husband's name for her benefit.

7. After the purchase, the house was improved and repaired. Thanga Goundan, as the person managing the Kattur Vyapara Vridhi Sangam was in possession of funds. We have read the evidence relating to the first defendant's claim to have had separate funds of her own. We are not satisfied that she was doing any milk trade on her own account.

8. We agree with the learned Subordinate Judge in his appreciation of the evidence on the point and find that the property acquired under Exhibit B-7 was acquired by Thanga Goundan out of his own funds and for his own benefit and that the subsequent additions and improvements mad to the property were also made out of his funds and for own benefit.

9. The next point for determination is whether the sale of the house effected by the first defendant who, at that time held a woman's estate in the property was binding on the reversioners to the estate of her husband. The sale-deed Exhibit B-7 is for Rs. 7,000. The consideration consists of four items. The first item is a sum of Rs. 1,145 reserved with the vendee to discharge the debt alleged to be due by the first defendant on the promissory note Exhibit B-10. The second item is Rs. 540 reserved with the vendee to discharge the debt alleged to be due by the first defendant on the promissory note Exhibit B-12. The third item is a sum of Rs. 1,000 alleged to have been received in cash before the date of the sale-deed. The 4th item is Rs. 4,315 paid by the vendee to the vendor before the Sub-Registrar.

10. Exhibit B-10 is produced as the promissory note executed by the first defendant in favour of Valliakkal on 9th September, 1945, for Rs. 1,000. The promissory note states that the money was received to discharge the debt which the first defendant's husband Thanga Goundan had borrowed from Thangammal. Exhibit B-11 is the receipt granted by Thangammal. It bears a thumb impression described as Thangammal's thumb impression. Thangammal is the plaintiff's sister. D.W. 8 states that Thangammal passed the receipt Exhibit B-n in favour of the first defendant. If Exhibit B-11 did not bear his sister's thumb impression the plaintiff would undoubtedly have examined her. We find that Exhibit B-n is genuine, that Thanga Goundan borrowed Rs. 1,000 from Thangammal and that the debt was discharged by the first defendant on 13th September, 1945. It does not follow, however, that, for discharging that debt the first defendant borrowed money from Valliakkal. She is the first defendant's sister. Valliakkal is not examined. The first defendant is the only witness who speaks to the execution of Exhibit B-11. The second defendant states that he paid money to Valliakkal. The inference from the fact that Valliakkal is not summoned or examined is that, if examined, she would not be able to sustain in cross-examination the story that she lent Rs. 1,000 to her sister. We are unable to accept the interested evidence of the defendants as adequate to prove that any money was borrowed by the first defendant from Valliakkal or that any money was paid to her by the defendant.

11. The second item of consideration is a sum of Rs. 540 reserved with the vendee for payment to Muthukrishna Naidu in discharge of the promissory note Exhibit B-12 said to have been executed in his favour. The second defendant states that she borrowed Rs. 540 from him under the promissory note for effecting repairs to the house. On the questions of the borrowing of the money and of effecting repairs and of repayment of the money, we have only the evidence of the defendants 1 and 2. For ought we know, neither Muthukrishna Naidu nor Valliakkal might be aware of the execution of the promissory notes, Exhibits B-12 and B-10 in their names. If the evidence of the defendants were true in relation to Exhibit B-12 there is no reason why Muthukrishna Naidu is not examined. We consider the interested evidence of D.Ws. 7 and 9 not adequate to prove that the promissory note Exhibit B-12 was executed by the first defendant and accepted by Muthukrishna Naidu or that it was discharged by the second defendant.

12. The third and the fourth items of consideration are sums received in cash aggregating to Rs. 5,315.

13. The house was fetching a rent of Rs. 40 per mensem at the time of the sale. The property was converted into cash by the sale in favour of the second defendant. The reason for such conversion stated in the sale-deed is that the first defendant required money in order that she might carry out the commands of her husband that she should undertake pilgrimage to Benares and other holy places and that she should conduct charities for the salvation of her husband's soul and in order that she might have money for her own maintenance in her last days. If the first defendant's husband had asked her to go on pilgrimage or to sell small portions of his property for charitable purposes in order that his soul might attain salvation, it might have been within her rights to make an alienation of an adequate portion of her husband's properties for those purposes. But there is no evidence of the expression of any such wish on the part of her husband. The first defendant herself does not say that her husband had asked her to go on pilgrimages or to perform charities. Indeed, she does not even say that she intends to go on pilgrimages or to perform charities. The recitals relating to pilgrimages and charities in Exhibit B-7 should in the circumstances be held to be mere words written out to show some kind of cause justifying the alienation as against the claim of the reversioners. Those statements in the sale-deed, relating to charities and pilgrimages, we hold, are false.

14. The other statement made in the sale deed regarding the need for the alienation is that she needed cash for her maintenance during her last days. The house was fetching a rent of Rs. 40 a month. The portion of the Kattur house which was let out to the Bank was fetching a rent of Rs. 40 per annum. In addition, she had received on 4th September, 1945, Rs. 1948-8-0 paid as compensation by the Government for acquiring some land which had belonged to her husband. She does not say that she would need more than about Rs. 40 per mensem for her maintenance. There was consequently no need for her to sell the house in order to find money for her maintenance.

15. During trial, the defendants sought to support the alienation on the ground that the sums received in cash had been applied to pay off debts payable by the Kattur Vyapara Vridhi Sangam which was being managed by the first defendant's husband during his lifetime and by the first defendant after his death. In the notice, Exhibit B-3 which the first defendant sent to the plaintiff's advocate on 16th April, 1949, she said,

Moreover some shareholders are raising objections stating that Thanga Goundan alone should repay the deposit amount received in the bank at the time when Thanga Goundan was working in the Kattur Vyapara Vridhi Sangam and that the shareholders are not liable. My client does not admit it. She states that the shareholders alone are liable. It has not yet been settled.

That statement was made on 16th April, 1949. The suit which has given rise to this appeal had been instituted on nth April, 1949. During the pendency of the suit, moneys are said to have been paid by the first defendant to the creditors of Kattur Vyapara Vridhi Sangam out of the sum that had been received in cash from the second defendant. Obviously, such payments could not form effective consideration to support the alienation as against the reversioners. Exhibit B-18, the book maintained by the Bank, shows that one Ramaswami Ghettiar, Varada-rajulu Mudaliar and the first defendant each contributed Rs. 250 in 1931 towards the share capital of the sangam and that one Venkatachala Konar contributed Rs. 500. It was obviously a partnership formed for the purpose of doing business in banking. The debt payable by the partnership would have to be paid proportionately by the various partners in the event of the assets of the partnership being found inadequate. Exhibit B-7 itself makes it clear that the purpose of the alienation was not payment of any such debts. In any event, the payment by the first defendant of the part of the debts payable by the other shareholders would not bind the reversioners.

16. We agree with the learned Subordinate Judge and find that the alienation is not supported by necessity and is not binding on the reversioners to the estate of late Thanga Goundan.

17. The learned Advocate for the appellants takes the plea that by reason of the coming into force of the Hindu Succession Act during the pendency of the appeal, the plaintiff's cause of action to sue for declaration that the alienations are not binding on the reversioners has become extinguished. The appeal will be posted for arguments on that point.

18. The appeal came on for further hearing on Friday, 25th October, 1957, and on Friday, 1st November, 1957, and the Judgment of the Court was delivered by.

19. We have found that the alienation Exhibit B-7 made in favour of the second defendant on 25th February, 1949, by the 1st defendant is not binding on the reversioners to the estate of the first defendant's husband. It is argued that the right of the reversioner to sue for a declaration that an alienation made by a Hindu woman owning a woman's estate is not binding on the reversioners of the estate of that last male-holder has been extinguished by Section 14(1) of the Hindu Succession Act, 1956, and that, after the commencement of the Act no such suit can be maintained.

20. Section 14 is in these terms:

(1) Any property possessed by a female Hindu, whether acquired before or after the commencement of this Act, shall be held by her as full owner thereof and not as a limited owner.

(2) Nothing contained in Sub-section (1) shall apply to any property acquired by way of gift or under a will or any other instrument or under a decree or order of a civil Court or under an award where the terms of the gift, will or other instrument or the decree, order or award prescribe a restricted estate in such property.

21. In order to be able to return correct answers to questions relating to the applicability of the section to particular situations, it is necessary to know the reasons for the enactment of that section and the purpose which it was intended to achieve. Under the Hindu Law of Succession as it stood before the commencement of the Act, a brother who inherited the property of the father took it as full owner, while the sister who, her brother and mother having pre-deceased her father, inherited his property acquired in it not the full but what is known as woman's estate. The incidents of that estate are that she could not alienate the property except for purposes compendiously described as legal necessity and that on her death the property would devolve not on her heirs but on the heirs of her father. It was not that she was under an obligation to preserve the estate for her father's heirs or that, during her lifetime, any other person had any interest in the property. The limitations upon her estate were the very substance of its nature and were due solely to her sex. Students of Hindu Law are familiar with the text attributed to Brhaspathi (on another topic in Hindu Law).

He, who, having received a sum lent or the like, does not repay it to the owner, will be born hereafter in the creditor's house a slave, a servant, a woman or a quadruped.

No one need cavil at the sage who in that passage, placed women alongside slaves and quadrupeds, any more than a person with a sense of history, would make an adverse comment that so wise a philosopher as Aristotle, defended slavery on the ground that some men were slaves by nature and indeed held that servitude had its compensations. What is material is that Hindu society has had a new birth of freedom. The new ideals that have governed social development in India in recent times have given a permanent habitation in the Preamble to the Constitution of India, which, as regards women, assures them of equality of status and of opportunity with men. Therefore, when Parliament, acting in the exercise of its powers under the Constitution, enacted a Law of Hindu Succession, Parliament freed women from the disability which, compared with men, women suffered from in relation to the holding of and title to, property. The reason for the enactment of Section 14(1), therefore, was to ensure to women equality of status and of opportunity with men in relation to title to, and enjoyment of, property. That equality was the sole aim of Section 14(1) is placed beyond doubt by Sub-section (2), which states that Sub-section (1) would not apply to limitations imposed by the grant where property held by a Hindu woman has been acquired under a grant. A Hindu male acquiring property under such a grant would take the property subject to the limitations. The principle of equality does not demand that a Hindu woman should be placed in a better position. That is the substance of Section 14(2) which, thus, emphasises that equality of men and women is the keynote of Section 14(1). To stretch Section 14(1) to cover a case which is not within its language and which lies outside its purpose (namely, the purpose of freeing Hindu women from the fetters imposed on them by the earlier law in relation to the enjoyment of property), would be to act in violation of correct rules of construction.

22. We have now to proceed to examine the terms of Section 14(1) in greater detail, to ascertain if it could be extended to property held by an alienee from a Hindu woman under an alienation made before the commencement of the Act. The section says

Any property possessed by a female Hindu.... shall be held by her as full owner thereof and not as a limited owner.

The section would apply obviously to property inherited by a female Hindu subsequent to the commencement of the Act. But, at the commencement of the Act, there were a large number of Hindu women in the country who held property which they had inherited before the commencement of the Act. Would they also hold such property after the commencement of the Act as full owners instead of as limited owners as they had done till then? Even if the section contained only the words ' Any property possessed by a female Hindu shall be held by her as full owner thereof and not as a limited owner,' the section would apply to property which had been acquired by a Hindu woman before the commencement of the Act, provided it was in her possession at the commencement of the Act. Every Act speaks with effect from the date of its commencement. Therefore, the words ' property possessed ' occurring in the section would apply to property possessed at the commencement of the Act, that is to say, to property acquired before the commencement. But, with a view to obviate argument and litigation on that matter, the Legislature wisely introduced the clause ' whether acquired before or after the commencement of the Act.' The Legislature thereby made it clear that the section applied also to property which a Hindu woman had inherited before the commencement of the Act provided it was in her possession at the commencement of the Act. To that extent, the section is retrospective. But the section is not retrospective in the full sense of the terms because the operation of the section does not extend to any period before the commencement of the Act. The operative words are 'property ...shall be held.... as full owner'; that is to say, full ownership is had in the future. Property possessed at the time of the commencement of the Act is, with effect from the date of such commencement, held in full ownership. Section 14(1) does not say that property possessed by a woman on the date of the commencement of the Act shall be deemed to have been acquired or held by her as full owner with effect from the date on which it was acquired or with effect from any date anterior to the commencement of the Act. Section 14(1) is not, in that sense, retrospective.

23. We have now to consider whether Section 14(1) can have any effect on property possessed by an alienee under an alienation made by the Hindu woman before the commencement of the Act. So as to keep the discussion close to facts, let us use an illustration. A Hindu woman inherits, let us say, from her husband, immoveable properties worth a lakh of rupees. She considers it difficult to manage them and realise the income and therefore resolves to convert the property into cash and go and live with a relation, say D, her sister's daughter. She sells the property to an alienee, say A, (a male Hindu) for Rs. 30,000 and spends the rest of her days, with that money, as a member of D's family. The arrangement suits the convenience of all the three parties, W, A and D. But it is clear that, on the date of the alienation, which was, let us say, in 1950, W and A knew that the property was not, sold for ' legal necessity ' and that the alienee or his representative would hold the property after W's lifetime, at the pleasure of the reversioners to her husband's estate. The question is whether Section 14(1) serves to augment the rights held by A in the property, into rights of full ownership.

24. The nature of the interest acquired by .4 under the alienation which we have described above, is defined, if we may say so with respect, in terms of the utmost precision by the Supreme Court in Natvarlal v. Dadhubhai : [1954]1SCR339 :

The Hindu Law certainly does not countenance the idea of a widow alienating her property without any necessity, merely as a mode of enjoyment.... 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.

Let us suppose that W, A and D in the illustration given above were alive when the Hindu Succession Act came into force in 1956. The property alienated by W and possessed by A is not within the language of Section 14(1). Nor does an enlargement of the interest owned by A in the property form any part of the purpose sought to be achieved by the enactment of Section 14(1). The purpose of the section is merely to free Hindu women from the fetters imposed on them by the earlier Hindu Law in relation to the holding and enjoyment of property. No such purpose would be served by enlarging the interest which A acquired under the alienation which W had made. To say that the effect of Section 14(1) is to make him full owner of the property would be to say that Parliament intended to make him the object of its bounty in the sum of Rs. 70,000.

25. The argument in support of the contention that A's interest in the illustration given above gets enlarged to full ownership is put, first, in the following way. By alienation, A acquired W's right to enjoy the property for her lifetime. He did not acquire the reversionary interest. The reversionary interest continued to vest in W. If she had not alienated the property but had remained in possession, she could, after the commencement of the Act, transfer full ownership to A, if such was her pleasure receiving only Rs. 30,000. By virtue of the Act, the reversionary interest which she retained gets transferred to A. Let us examine that argument. The first link in that chain of reasoning is that the property in the hands of W was divisible into two parts, one part consisting of her right to enjoy the lands and buildings for her lifetime and the other part consisting of the reversionary right of enjoyment after her death, and that, under the alienation, she sold the first part and retained the second part. That argument finds some support in the judgment of this Court in Chidambaramma v. Hussainamma (1915) 29 M.L.J. 546 : I.L.R. 39 Mad. 565, 568. In that case, there was an alienation by a widow for purposes not binding on the reversioners. A creditor of the last male holder, who had obtained a decree against the widow on a debt incurred by the last male-holder, attached and brought to sale the reversionary interest said to remain in the widow after the alienation. Sadasiva Ayyar, J., held:

When the full estate is vested in her and yet owing to the restrictions which from being moral restrictions have become legal restrictions, she can convey only an interest to last during her lifetime by a conveyance not for legal necessity, it seems to me to follow that the absolute estate vested in her becomes by her alienation for her own purposes (valid during her lifetime) divided into two estates (1) a life-estate enjoyable by the purchaser during her life-time and (2) a reversionary estate to be enjoyed after her lifetime, both of which estates or rather the total of which belonged to her husband at his death. So far as her life interest is concerned, it became by her alienation not available to the creditors of her husband ; but the ownership of the remaining reversionary estate continues in her as part of the estate which she inherited from her husband. That seems to me to be available to her husband's creditors.

That view of this Court as to the divisibility of the estate denoted by the term woman's estate was dissented from by Sulaiman, J., in Lachmi Chand v. Lachho ILR(1926) All. 334, 347. The observations of Sulaiman, J., were endorsed by the Supreme Court in Natvarlal v. Dadubhai (1954) M.L.J. 69, 78 : (1954) S.C.J. 34 : : [1954]1SCR339 (S.C.). Their Lordships state:

Sulaiman, J.,.... enunciated the law with perfect precision when he said that the effect of an alienation by a widow is not to split up the husband's estate into two parts or to give to the alienee an interest necessarily co-extensive with her lifetime. The reversionary right to challenge it is no part of the widow's estate at all.

On that point therefore, the law can no longer be said to have been correctly stated in Chidambaramma v. Hussainamma (1915) 29 M.L.J. 546 : I.L.R. 39 Mad. 565. In view of the statement of the law made in NatvarlaVs Case (1954) M.L.J. 69 : (1954) S.C.J. 34 : : [1954]1SCR339 , in the illustration we have given in the preceding paragraphs, acquires no interest in the property, but merely a right of enjoyment based on W's disability to derogate from the grant. It would seem to follow that the right of the creditor considered in Chidambaramma v. Hussainamma (1915) 29 M.L.J. 546 : I.L.R. 39 Mad. 565, 568, was to attach the property as the property of the last male holder and to bring the property to sale to satisfy the debt owed by him. On the alienee's objection to the attachment, equities might be worked out to the extent considered just and proper. But since situations of that kind are likely to be of rare occurrence in the future, nothing further need be said on that topic in this judgment. We are dealing at present with the argument advanced on behalf of the alienee that the woman's estate is divisible into two parts, and that, in the case of an alienation not binding on the reversioner, the part which entitles her to enjoyment during her lifetime is alienated and the reversionary interest continues to vest in her and gets transferred to the alienee by the operation of Section 14(1) of the Hindu Succession Act. We have seen how brittle is the first link in that chain of reasoning, namely, that the woman's estate is capable of division into two parts. But even if it were capable of division into two parts, and even if the second part, namely, the reversionary interest remained vested in her prior to the commencement of the Act, it is difficult to see how that interest could get transferred to the alienee by the operation of Section 14(1) of the Act.

26. The next argument advanced on behalf of the alienee is that, since the widow purported to transfer full ownership and she had power to transfer full ownership for legal necessity, and since, if the property had remained in her possession at the commencement of the Act, she would have become full owner of the property, full ownership must, by the operation of the Act be deemed to have been transferred to the alienee. In so far as the argument can be founded on principle, reference can be made only to Section 43 of the Transfer of Property Act. Section 43 enacts:

Where a person.... erroneously represents that he is authorised to transfer certain immoveable property and professes to transfer such property for consideration, such transfer shall, at the option of the transferee, operate on any interest which the transferor may acquire in such property at any time during which the contract of transfer subsists.

In the illustration given in the preceding paragraphs, neither A nor W could have been under any misapprehension as to the nature of the interest which W could transfer to A. The property had been inherited by her as the heir of her husband. She owned only a woman's estate and could not validly transfer full ownership for the reasons stated in the instrument of transfer. Even if the facts relating to consideration were different and both parties believe that the consideration paid was effective in law to transfer full ownership, but it is declared subsequently by a Court of competent jurisdiction that the transfer was not binding on the reversioners, it cannot be said that there was any representation on the part of the woman, which the alienee, unaware of its truth or effectiveness, acted upon. The first part of Section 43 relating to erroneous representation cannot therefore be brought into play in the case of an alienation by the holder of a woman's estate, which is not binding on the reversioners. The second part of Section 43 requires that, subsequent to the transfer, the woman acquires an interest in the property which she did not own at the time of the transfer. Section 14(1) of the Hindu Succession Act does not deal with property which was not in the possession of, or which was not held, by the Hindu women at the time of the commencement of the Act. Therefore, the ground of subsequent acquisition of title is not available for enlargement of the title previously acquired. There is no other principle that could be invoked in support of the position that Section 14(1) which was intended to remove the woman's disability could ensure for the benefit of an alienee.

27. It is argued t at Section 14(1) abolishes the system of reversioners and that therefore, after the commencement of the Hindu Succession Act, no suit by a Hindu reversioner for a declaration regarding an alienation by the limited owner can be maintained. What Section 14(1) states is that property possessed by a female Hindu shall be held by her as full owner and not as a limited owner. In relation to such property, she becomes a fresh stock of descent and therefore there can be no question of reversion to the estate of the last male holder. Reversion gets abolished as a consequence of the estate being enlarged to full ownership. Therefore, unless the alienee's interest also gets enlarged to full ownership by the operation of Section 14(1), it would not be correct to speak of reversion in relation to such alienated property getting abolished. The first question to ask is, does the alienee's interest get enlarged and does he become a fresh stock of descent If that question is answered in the affirmative, it would follow as a consequence that there could be no reversion to the last male holder's estate in relation to that property. To say that there is no reversionary interest and then to proceed to consider the rights of the alienee is to look at the problem from the wrong end of the telescope and therefore to get incorrect answers. The nature of the interest acquired by an alienee from a female Hindu gets fixed on the date of the alienation. In a case where the alienation is not binding on the reversioners to the estate of the last male holder, the interest which the alienee gets is the right not to have the alienation impeached by the woman and to hold the property at the pleasure of the reversioners on the termination of the woman's estate. That interest of the alienee is not affected either to his advantage or to his prejudice by Section 14(1).

28. It is argued that if the alienee's interest does not get affected and the property in his hands is liable to devolve on the heirs of the last male holder on the termination of the woman's estate, then, if the woman is on the date of the commencement of the Act in possession of property which she had inherited from the last male holder and dies without alienating them, the result would be that those properties would devolve on her heirs, while the properties alienated by her before the commencement of the Act would devolve on her husband's heirs, in a case where the two sets of heirs are different. But that is a consequence which followed from Parliament leaving untouched, properties in the hands of the alienees, while dealing beneficently with properties which are in the possession of the woman, at the commencement of the Act. Where, for example, there is a single mortgage-debt owing by an agriculturist and a non-agriculturist and the Legislature of a State enacts a law requiring scaling down of the debt as regards the agriculturist, different sums become payable by the debtor in relation to the same indivisible mortgage. Such results cannot be called anomalies where they are the consequences of competent legislative policy.

29. We should like to add that our conclusions have not been influenced in any manner by the use of the word 'possessed' in Section 14(1). In the appeal under consideration and in the illustration which we have given in the preceding paragraphs, the property was in the possession of the alienee at the commencement of. the Act. But in order that the woman should get the benefit of Section 14(1) it is not necessary that the property should be in her physical possession at the commencement of the Act. If, for example, the property was in the possession of a trespasser at the time of the last male holder's death and the trespasser had not perfected his title by adverse possession when the Act came into force, the property would be inherited by the female Hindu. She would hold in it a woman's estate, though she was not in possession of the property. Her interest gets enlarged by Section 14(1) into full ownership, although she is not in possession. If, instead of filing a suit against the trespasser for possession, she decides to sell the property she could sell it as full owner and her vendee could sue the trespasser for possession of the property. The word 'possessed' and the word 'held' used in Section 14(1) mean one and the same thing and the little controversy that has centred round the word 'possessed' would have been avoided, if the parliamentary draftsman had used the same word 'held' in both places. Our view that the alienee in the case under appeal did not have his rights in the property enlarged to full ownership by Section 14(1) is not based on the fact that he was in possession of the property on the date of the commencement of the Act, but on the facts that the property is not within the language of Section 14(1) and that an enlargement of the alienee's interest does not form any part of the purpose sought to be achieved by its enactment. As the relevant latin maxim puts it, the sense and reason of the law is the soul of law.

30. We agree with respect with the views expressed in Venkayamma v. Veerayya (1956) 2 An. W.R. 988, and Gostha Behari v. Haridas Samanta : AIR1957Cal557 , and with respect, are unable to adopt the conclusions reached in R.A. Missir v. Raghunath : AIR1957Pat480 . We hold that there is nothing in the Hindu Succession Act, which affects the maintainability of the respondent's suit.

31. The appeal is dismissed with costs.


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