Abdur Rahman, J.
1. This appeal arises in consequence of an attachment of a property made at the instance of the respondent company on the ground that it was liable to be sold in a decree passed in its favour against one Karuppan Samban. His widow Nallangal objected to the attachment and claimed that the property belonged to her. This objection prevailed in the executing Court, but the order was reversed by the learned Subordinate Judge of Dindigul on appeal. Aggrieved by this order Nallangal has preferred the present appeal. The pattah in regard to the land attached by the decree-holder was issued by the Government in favour of the widow on 25th March 1933 (Ex. I). But it appears that a darkhast for this land was originally made by her husband Karuppan Samban on 19th July 1931 during his lifetime (Ex. A). Before passing any final orders on this application, the tahsildar called upon Karuppan Samban first to deposit a sum of Rs. 37-9-5 for the value of survey stones and of the trees growing on the land. This money was paid on 8th August 1932, but before the grant could be made, Karuppan Samban died on 19th January 1933. The appellant then submitted a fresh application on 21st January 1933 in which after relating all the facts stated above she referred to her impecunious condition and prayed for the grant to be made in her favour for her and her daughter's subsistence. This application was accepted by the Government and the pattah was issued to the widow on 25th March 1933 (Exs. I and V).
2. The widow had alleged in the executing Court that the money which was deposited in pursuance of the Tahsildar's notice was hers, but there is a concurrent finding by both the lower Courts that the price of the trees was paid by Karuppan Samban himself and not by the widow. This is a finding of fact and cannot be questioned in this appeal. In view of this finding, it must be held that the survey stones and the trees on the land belonged to Karuppan Samban and would therefore be attachable by the decree-holder in execution of its decree. The next question is whether the pattah issued by the Government to the widow should be considered to have been issued for the-benefit of her husband's estate or for the benefit of the widow and her daughter. It has been found by both the Courts that under the rules the application made by the husband for the grant of a pattah or the deposit of the value of the trees made by Karuppan Samban during his lifetime would not have made it obligatory on the Government to issue the pattah after his death to his heirs. The Government had a complete discretion in the matter and could very well have refused to make a grant in favour of the widow. It is however urged on behalf of the respondent that the widow should, in the circumstances, be held to have taken the property in trust for the estate of her deceased husband. The question is if it can be so regarded. It is obvious from what has been said that Karuppan Samban was not and could not be the owner of the property at the time of his death and the widow could not therefore have inherited it as her husband's heir. It has been however contended that in view of the application made by the husband for the grant during his lifetime and bearing the deposit made by him for the value of the survey stones and trees in mind, it must be presumed that the application was made by the widow in a representative capacity, and even if she may be assumed to be holding an absolute right against the Government, this could not prevent the company from attaching the property in its decree against the husband. A constructive trust is thus alleged to have arisen under which the widow should be held to be holding the property on behalf of her deceased husband.
3. Having heard the learned Counsel for the parties, I am of opinion that the widow cannot be said to have acquired the property for the benefit of her husband's estate. It is hardly necessary in this case to refer to a large number of cases cited on behalf of the parties regarding the grant of service on personal inams. It may be that when a personal inam held by the husband is enfranchised in favour of the widow, the grant of the inam title deed will not constitute her to be an absolute owner. Karuppan Samban held no inam in this case from the Government and the grant made to the widow for the first time by the Government after her husband's death cannot be governed by the principle on which these cases were decided. It has been found by the lower Courts and the finding was not challenged before me that the property was at the disposal of the Government when Karuppan Samban died and alienable to whomsoever the Government was pleased to grant. It was urged on behalf of the respondent that the widow should be held in the circumstances to have a fiduciary character and since she gained an advantage by availing herself of that character, she must hold the property for the benefit of the estate. In the alternative, it was suggested that the widow was a qualified owner and gained an advantage for herself in derogation of the rights of the other persons interested in the property and she must therefore hold the property for the benefit of the persons so interested. Both these contentions are based on Sections 88 and 90, Trusts Act.
4. A perusal of Section 88 would show that it is inapplicable to the present case. Under the provisions of the Section, a person is to hold the benefit gained by him for another person only when he holds a fiduciary character, is bound in that character to protect the interests of the other person, and availing himself of that character gains any pecuniary advantage for himself. How can the widow in this case be said to be a person holding any fiduciary character and of such a nature as to be bound to protect the interests of the respondent company which was a creditor of her deceased husband? Gould she be said to hold any fiduciary character towards her husband who was no more? Can it be seriously argued then that she was bound to apply to the Government for the grant in the interests of her husband's creditor and acquired it so as to enable the latter to sell it through Court in the execution of its decree? The answer to all these questions must be in the negative and the provisions of this Section cannot 'therefore be held to apply.
5. Turning to Section 90 of the Act, I find that it applies in terms to a tenant for life, co-owner, mortgagee, or other qualified owner of any property. A Hindu widow can neither be described to be a tenant for life or qualified owner in the sense in which these expressions have been used in this Section. Her position in regard to her husband's estate is that of an owner with limited rights. She can alienate the property inherited by her absolutely under certain circumstances which need not be stated here. In the absence if those circumstances, the property left be her husband may devolve on the reversioners. But she cannot be said to be a tenant for life only because she inherits a life estate and as a qualified owner her right of alienation is restricted and may be questioned by her husband's reversioners, if she exceeds it. Even if either of these expressions are assumed to cover a widow, which in my opinion they cannot, she could not in any case be held responsible until she gained an advantage in derogation of the rights of the other 'persons interested' in the property. The expression 'persons interested' has been held by a Full Bench of the Allahabad High Court not to cover the reversioners : Sriram Jankiji Birajman Mandir v. Jagadamba Prasad (1921) 8 A.I.R. All. 11. Much less can it be said to cover the creditors of a widow's deceased husband. So far as one can glean the facts from the evidence on the record, the only property which Karuppan Samban is shown to have left behind him was the amount held to have been paid by him for the value of the stones and trees. When she is proved to have paid nothing out of her husband's estate for obtaining the grant from the Government, she cannot be held to have gained an advantage in derogation of the rights of the persons interested in the property left by her husband. The illustration to this Section, to which my attention was drawn by the learned Counsel for the respondent does not help his contention.
6. It was contended that even if these two Sections are not held to be in terms applicable they are not exhaustive and the principles underlying them and particularly under Section 90 would make the widow liable to surrender the property acquired by her for the discharge of her deceased husband's debts. In that connexion reliance was placed on Babani Soiroo v. Dulba Gobind (1932) 19 A.I.R. Bom. 240, the leading English case in Keech v. Sandford 25 E.R. 223 commonly called the Ramford Market case and Yem v. Edwards 44 E.R. 855. But before these cases are considered, it might be observed that the terms of Sections 88 and 90 are not exhaustive only in the sense that if a person cannot be brought within these Sections, and held liable as a trustee, he must be found to fall under the residuary Section in this Chapter, i.e., Section 94. In other words where no trust has been declared, a person would not be accountable as a trustee until obligations are found to have been created which are in the nature of a trust and under which he may be held to be, what is termed in English law, as a constructive trustee. These obligations have been described in Chapter 9, Trusts Act. Having already held Sections 88 and 90 of the Act to be inapplicable to the facts of the present case, I must now ascertain if the appellant as required by Section 94 has no beneficial interest in the property granted to her by the Government. If she is found to be holding the property for the use of others and not for herself, the doctrine of constructive trust would be held to apply to her and she would be assumed to be holding it for their benefit as provided by Section 94 of the Act. But can the appellant in the abovementioned circumstances be said to be holding the property for the benefit of the respondent company? The grant was made to her by the Government and she did not stand in any fiduciary position towards her husband who had died or towards a creditor of her husband, whom she was under no obligation to repay from out of the property acquired by her, without any help from or detriment to her husband's estate. It was held in In re Bliss (1903) 2 Ch. 40, that a person cannot be held to be a constructive trustee unless his possession is such that he owed some duty to the other persons interested. Since the widow cannot be held to have owed any duty to the respondent company or to be holding the property for its benefit, the provisions of Section 94 of the Act cannot be held to apply.
7. Turning to the English cases cited on behalf of the respondent, I find that the facts in Keech v. Sandford 25 E.R. 223 were that a lessee of the profits of a market had devised the lease to a trustee for an infant. The trustee applied for renewal on behalf of the infant, but his application was refused on the ground that the minor was incapable of entering into a contract and that there could be no distress of the profits of a market. The trustee then took the lease for himself. In a suit on behalf of the infant it was held that the trustee could not take advntage of his position and he was therefore ordered to assign it to the infant. This case was decided on the principle that the trustee was 'the only person of all mankind,' who could not have the lease for his benefit. This was simply because he was an express trustee for the infant while the appellant is neither an express nor a constructive trustee. The next English case relied upon on behalf of the respondent was that in Yem v. Edwards 44 E.R. 855. There it was held that a grant having been obtained by a widow by virtue of a possession referable to her husband's will must be treated in equity as made for the benefit of the devisees, to whom the husband had bequeathed the remainder after giving merely a life interest to the widow. It was decided in those circumstances, and if I may say so with great respect, rightly, that the widow, who had got into possession of a property belonging to the Crown for her life under a will of her husband, cannot be held to have acquired any interest in that property if the Crown allowed persons, who had encroached on the properties, to take a conveyance on payment of a nominal consideration.
8. It will thus be seen that both the English cases do not help the contention raised on behalf of the respondent. In the first case, the trust in favour of the infant was an express one and the trustee was, on account of his fiduciary capacity, held to have acted for the infant's benefit alone. In the second case, the widow was found to have purchased the land encroached upon on very easy terms as she was put into possession, of the land for her life under her husband's will and was held to have no beneficial interest in the land. Once it is found that the widow in this case was not a trustee on behalf of her deceased 'husband or that of the creditor company and the acquisition under the Government grant on a darkhast made by her was not an unfair gain or benefit obtained by her in a fiduciary or semi-fiduciary capacity, the doctrine of 'graft' embodied in Section 90, Trusts Act, must be held to be inapplicable. I would therefore find that the property acquired by the widow from the Government on her darkhast is her own property and not liable to be attached in the execution of a decree obtained by the respondent company. The same however cannot be said of the survey stones and the trees which were paid for by Karuppan Samban during his life. The appeal is there>re accepted to that extent, with costs of both this and the lower Appellate Courts. If the trees or the stones have been removed by the appellant, she will have to account for the same in appropriate proceedings.