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Subramanya Chetty Vs. Ramakrishnamma and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtChennai
Decided On
Reported inAIR1925Mad403; 84Ind.Cas.866
AppellantSubramanya Chetty
RespondentRamakrishnamma and ors.
Cases ReferredThammanna Chinna Lakshminarasimham v. Akarapu Venkanna Chinniah
Excerpt:
- spencer, j.1. the plaintiff subramania chetty, is the elder brother of pattabhi chetty, the husband of the first defendant. pattabhi chatty died in september 1914. his widow, the first defendant, has been carrying on the family trade in groceries, in which the plaintiff was at on a time partner, till there was a dissolution of partnership on the 22nd january, 1915, and a distribution of assets and debits under a deed of division, which is exhibit b. the brothers, as a family, became divided in 1910. the suit was brought for a declaration that certain alienations made by the widow were not valid beyond her lifetime. the subordinate judge dismissed the suit on the ground that the first defendant had more than doubled the value of the properties left to her by her husband and that her.....
Judgment:

Spencer, J.

1. The plaintiff Subramania Chetty, is the elder brother of Pattabhi Chetty, the husband of the first defendant. Pattabhi Chatty died in September 1914. His widow, the first defendant, has been carrying on the family trade in groceries, in which the plaintiff was at on a time partner, till there was a dissolution of partnership on the 22nd January, 1915, and a distribution of assets and debits under a deed of division, which is Exhibit B. The brothers, as a family, became divided in 1910. The suit was brought for a declaration that certain alienations made by the widow were not valid beyond her lifetime. The Subordinate Judge dismissed the suit on the ground that the first defendant had more than doubled the value of the properties left to her by her husband and that her transactions were bona fide.

2. When Pattabhi Chetty died, he left besides the widow, a daughter who died three years after her father. The first defendant's father Naganna Chetty, came and lived with his daughter after the death of her husband and assisted her to manage her affairs. Exhibit 1 is a power-of-attorney given to him to continue the maligai or grocery trade and to collect the rents of the shops which fell to the share of her husband. Besides carrying on the grocery trade, the first defendant completed a house for which her husband had left materials and laid the foundation and she built two new houses out of the capital left by her husband and these are rented out for Rs. 7 and Rs. 9 a month.

3. The law as to a widow's power to carry on a trade started by her husband, when that trade constitutes the main source of the subsistence of the family has been well settled. In Sakrabhai v. Maganlal (1902) 26 Bom. 206 Sir Lawrence Jenkins, C.J., laid down the principles, firstly, that in Hindu Law a business is a distinct heritable asset; secondly, that a manager can contract debts for the purposes of the business, and that even in the absence of a specific charge, they are recoverable from the assets of the business; and thirdly, that a widow can, under such circumstances, contract a debt for the purpose of a family business, to which she has succeeded, and by specific charge make it payable, out of assets of business even as against the reversioners. In another part of the judgment, the learned Judge observed that the business to which a widow succeeds, on her husband's death, 'as a distinct asset, includes its debits as well as its credits; each is an integral part of the whole. How then, can a re-versioner, as heir to the business, claim to take the benefit of the one and to reject the burden of the other'?

4. In The South Indian Export Co. Ltd. v. Subbier : AIR1916Mad449 , Sadasiva Aiyar, J., observed:

I am not aware of any law which obliges a widow inheriting her husband's trade business to wind up the business as soon as her husband dies.

As the very nature of the business required borrowings for capital and, owing to fluctuations in price, results in the casa of some of the transactions in the incurring of debts, the incurring of such business liabilities by the widow ought to be-treated as debts of necessity, binding on the reversioner.

5. In Pahalwan Singh v. Jiwan Das (1920) 42 All. 109 Ryyes, J., observed:

In every case, the widow is entitled to alienate only for 'necessity'.... The very existence of the business creates the necessity; it is inherent in its proper conduct'. 'If the business of the husband was that of a cloth merchant, the widow would be entitled to carry it on and she can only do so by selling, buying again and again selling.' 'If she elects to carry on the business, as she is entitled to do, she must surely be entitled to do so, in the same way as her deceased husband.'

6. In Bhogaraju Venkatarama v. Addepalli Seshayya (1912) 35 Mad. 560 there is an observation that if a Hindu widow borrows money for constructing a house, which is not necessary for the management of the estate, the debt will not be binding on the reversion. It was held that she might use the income during her life, for building a house, but that she was not justified in mortgaging the estate so as to bind her reversionera for such an object. That was a case, there the property of the family consisted principally of land. The learned Judge did not have to consider the case of a widow continuing a family trade. Circumstances alter cases. In the present case, as regards the construction of the-houses, it appears that at the death of the first defendant's husband, there were two houses and a shop. The shop and one house with the site was valued at Rs. 1,775 at the partition (vide Exhibit A); the house in the Agraharam was purchased for Rs. 1,250. Therefore, the total value of the immovable properties at the date of Pattabhi Chetti's death was Rs. 3,065. At the date of the suit, there were five houses, which according to the evidence of D.W. 5 and D.W. 8, are worth something between Rs. 15,000 and Rs. 18,000. I am clearly of opinion that the plaintiff is not entitled to approbate the accession to the estate, caused by the Construction of these houses and at the same time to reprobate the debts incurred for the purpose of constructing them.

7. The widow's action in building on the vacant site was not wasteful. In the words of Sir Lawrence Jenkins, C.J., a reversioner cannot 'claim to take the benefit of the credits and to reject the burden of the debits.'

8. This being the state of the law, I proceed to examine the five alienations, which are impugned by the plaintiff. The first was a mortgage, Exhibit C, dated 15th May, 1916, for Rs. 1,250 borrowed from the second defendant at 12 par cent, with interest at 18 par cent, in case of default, at the time of the execution of this document, the first defendant's daughter was alive and first defendant signed it as guardian for her. It is mentioned in the document that the money was borrowed for completing the construction of the house in Easwarankoil Street and for improving the house by putting up a terrace and for carrying on trade. It is not known how much of this debt went towards the construction of the house; but it is known that these houses added to the value of the estate and the trade mentioned in the document must be grocery trade, and the trade in yarn was not commenced till later. It is in evidence (vide statement of D.W. 1) that the plaintiff knew of the construction of these houses and of the repair of the old house, and he and the first defendant's father were supervising their construction. Plaintiff also admits that he allowed the first defendant to continue the trade, in order to sell the stock-in-trade and that he had dealings with her shop, up to two years ago. It has not been proved that the interest of 12 per cent, is excessive, according to the custom of the trade in Coimbatore, at that time. The relief asked for by the plaintiff in respect of this transaction must, therefore, be refused.

9. The second alienation is a mortgage for Rs. 3,000 in favour of third defendant who is dead, and whose legal representatives are defendants 3 and 9. The mortgage deed Exhibit 11, is dated 7th December, 1918, and purports to give security for money borrowed for family trade and for building and repairs. It has not been shown that these recitals are false. D.W. 8 who was the Kariyastan in the 3rd defendant's shop, for 4 years, states that the money was borrowed for building the house, as well as for the mundy trade and that before the money was lent, the plaintiff was consulted and said that 3rd defendant might lend money for the trade that his sister-in-law was carrying on. It appears, therefore, that the 3rd defendant made bona fide enquiries and satisfied himself that the money was required for the improvements of the estate and foe carrying on the family trade. This transaction also must be allowed.

10. The third alienation is a mortgage for Rs. 1,000, in favour of the 4th defendant, dated 3rd February, 1919. The 4th defendant was ex parte in the lower Court. The document, Exhibit D, does not declare the purpose for which the money was borrowed and there is no evidence that the 4th defendant made bona fide enquiries as to the necessity for lending the money to a limited owner though the onus lay on him. The plaintiff will be given a decree declaring that this item is not binding on the reversion.

11. The 4th alienation is a mortgage, Exhibit IV, for Rs. 1,300, in favour of the 5th defendant dated 17th February, 1919. This mortgage went to pay off two promissory notes, Exhibits V and VI the amounts of which appear to have been borrowed for trade in yarn, a new venture which the widow was not entitled to embark upon. At the end of 1918, there was much speculation in yarn trade and the 1st defendant entered into a partnership, between July, 1918 and February, 1919, with other dealers in cloth and yarn and incurred losses, as proved by D.W. 6. D.W. 1 admitted that in 15 days the price of yarn fell from Rs. 28 to Rs. 15 and from Rs. 15 to Rs. 12 to 14. D.W. 3 and D.W. 6 state that 1st defendant's loss in yarn trade was Rs. 1,200. Accounts have not been produced to prove any of the sums borrowed, under Exhibit IV, were for family necessity. It is stated in the document that part of the consideration for Exhibit IV went to pay a yarn merchant. D.W. 6 was the 5th defendant's agent for carrying on trade in yarn and he admits that there was a loss of Rs. 3,200 in the business conducted in partnership by the first defendant. Anganna Chetty and himself. It follows from this that the 5th defendant must have known that the first defendant was acting beyond her powers in using the assets of her husband's property for speculating in yarn trade. The plaintiff will therefore be given a decree declaring that this item also is not binding.

12. The fifth and the last alienation is Exhibit E, dated 12th April, 1919, in favour of the 6th and 7th defendants for Rs. 1,000. The document recites that money was due for trade, carried on, according to the promise given by first defendant to her husband and as found to be due in the accounts. These defendants have produced their accounts and they show that their accounts were balanced on the 8th September, 1918. Exhibit E must therefore represent money lent between 8th September, 1918 and 2nd July, 1919. Camphor, matches and broken rice are some of the items between those dates but not yarn. Rs. 750 credited on 26th April, 1919, must be the basis of Exhibit E. The plaintiff has not elicited by the cross-examination of D.W. 1, that any of the items of borrowing between those dates was objectionable. He deposed that the document was executed to discharge the balance due on dealings, with the mundy of these defendants and for sundry debts. The accounts support his statement. There is therefore no reason to declare this alienation invalid.

13. The appeal will be allowed, in respect of the alienations evidenced by Exhibits D and IV and the plaintiff will be given his costs in both the Courts against defendants 4 and 5, proportionate upon the value of their alienations. His appeal so far as it concerns other defendants is dismissed with costs, one set to the second respondent, upon the value of his alienation, one set to respondents 5 to 8, upon the value of their alienations.

Devadoss, J.

14. In this appeal, five alienations made by the first defendant, who is the widow of Pattabhi Chetty, the brother of the plaintiff, are challenged, on. the ground that they are not binding on the estate of Pattabhi Chetty.

15. The second defendant is the mortgagee, under Exhibit C. dated the 15th of May, 1916. The contention of the appellant is that the consideration for Exhibit C was for building a house and for carrying on trade, that the widow had no right to build a house or to carry on trade and to incur debts for the purpose and that such debts would not bind the reversion. The amount of consideration for Exhibit-C is not seriously disputed. The recital in Exhibit C is that the amount of Rs. 1,250 was borrowed for expenses to be incurred, in completing the construction work o the house, situated in Iswarankoil Street, for expenses to be incurred, in improving a portion of the house and for carrying on trade.

16. The first question is whether the debt incurred for building a house is binding on the reversion. There is evidence in this case, that the husband of the first defendant Pattabhi Chetty had collected materials for building two houses and that one house was incomplete and for another house, the foundation was laid by him, before his death. Some of the witnesses speak of first defendant having built the two houses, but they form one block of buildings and are treated as two houses. Whether a Hindu widow could complete a houses left incomplete by the husband and. whether she could make use of the materials collected by the husband for building a house and in so doing, whether she could incur debt is the point to be decided. A Hindu widow is not entitled to build a new house, to the prejudice of the reversion. If she builds a new house, out of the savings or income of the property, there could be no objection to her doing so; but if she mortgages or alienates any portion of the estate inherited by her for the purpose of building a house, such alienation would not bind the reversion. In Bhogaraju Venkatarama Jogiraja v. Addepalli Seshayya (1912) 35 Mad. 560 the learned Judges observe

A limited owner has no right to force a house on her reversioners, at the risk of the estate itself or portion thereof being brought to sale, for discharging the debt.

17. But where a widow finds an incomplete house and also materials for building a house the question is whether she should leave the house incomplete and allow the materials to deteriorate or whether she should use the materials as a prudent owner would and whether she should complete the incomplete house is not a difficult question to answer. A widow is not a trustee for the reversioner or a mere manager on behalf of the reversioner. She is entitled to the use of the property as long as she lives and she has power under the Hindu Law to bind the estate with debts incurred for necessary purposes. Where a husband leaves a house, which is almost complete and leaves a large quantity of materials and a site with a foundation on it, for the construction of a house a widow would be perfectly entitled to complete the house and to use the materials for such construction, as was planned by the husband, provided, she acts in a prudent manner. The plaintiff, who is the husband's brother, is a resident of the place and the evidence is that he actually assisted the first defendant in several ways and that he made no objection to the completion of the house by the 1st defendant. The debt was incurred in 1916 and the evidence is that the house was completed in 1917.

18. As regards the debt incurred for the trade, the evidence is that Pattabhi Chetty and the plaintiff carried on a trade in a partnership, after becoming divided in 1910. Pattabhi Chetty died about September or October, 1914. After the death of the husband, the plaintiff and the first defendant dissolved the partnership, as evidenced by Exhibit B, dated the 22nd of January, 1915. The widow carried on the trade of the husband and incurred debt in the course of the trade. It is vehemently argued on behalf of the appellant that a Hindu widow has no right to carry on trade and to incur debts in so doing. That a widow cannot start a new trade, is well settled. The plaintiff and the first defendant belong to the Komatti Chetty caste who, by caste and profession, are traders. The trade was started by the husband and was continued by the widow. In such a case the widow does not begin a new trade but only continues the trade of the husband. Where it is incidental or necessary for the carrying on of the trade to incur debts, it cannot be said that the debts are incurred without necessity. The word 'necessity' should be understood as meaning in the sense of being necessary.

19. A widow, who succeeds to her husband's property and finds a flourishing business or trade, is not bound to wind it up and invest the capital on land. She is entitled to the income of all the property left by the husband and there is nothing in law to prevent her from getting as much income as is possible without endangering the reversion, or without in any way involving the reversion in any loss. This question is elaborately dealt with in Sakrabhai v. Maqanlal (1902) 26 Bom. 206. Sir Lawrence Jenkins, C.J., after an examination of the authorities, lays down the following propositions; (1) that in Hindu Law a business is a distinct heritable estate; (2) that a manager can contract debts for the purposes of the business and, even in the absence of a specific charge they are recoverable from the assets of the business; and (3) that a widow can under certain circumstances contract a debt for the purpose of family business to which she has succeeded and by a specific charge make it payable out of the assets of the business, even as against the reversioners. Sadasiva Ayar, J., in the course of his judgment in The South Indian Export Co. Ltd. v. Subbier : AIR1916Mad449 , observes:

I am not aware of any law which obliges a widow inheriting her husband's trade business to wind up the business, as soon as the husband dies. A trade and its good-will are valuable property and, when they are inherited by a widow, I do not see why she should not manage that trade business, in the same manner as she has authority to manage, say a Zamindari estate, which she might have inherited from her husband.

20. The widow is entitled to carry on the business of the husband. If, in the course of carrying on the business, it is necessary to incur debts, or the incurring of debts is incidental to buying and selling as in this case, such debts should be considered as being incurred for necessary purposes. In Pahalwan Singh v. Jiwan Das (1920) 42 All. 109 it was contended that a widow, who carried on the money-lending business of her husband, was not competent to sell outright property, which she purchased in the course of the business. The learned Judges held that, where it was incidental to money-lending business to buy immovable property, the widow had a right to sell such immovable property, without proof of legal necessity in the strict sense of the expression. The principle of the case is that, where immovable property is acquired by a widow, in the course, or in consequence of carrying on a business which she inherited her power to sell that property and convert it again into money is not taken away, by the mere fact that the property which she acquired happens to be immovable property. The real question to be considered in each case is whether the widow by doing such act is endangering the reversion, or whether the act which she does is an act, which any prudent manager would do.

21. Eyves, J. observes at page 114:

If the business of the husband was, let us say that of a cloth merchant, the widow would be entitled to carry it on, and she could only do so, by selling, buying again and again selling. The very existence of the business creates the necessity: it is Inherent in its proper conduct.

22. The business that was carried on by Pattabhi was a business in grocery and it was necessary for carrying on the trade to buy and sell. Buying on credit is more beneficial than paying ready cash. When credit can be obtained without incurring any heavy responsibility, it is good business to get credit and not to pay cash and thereby lose interest. So far as the alienation under Exhibit C is concerned, I hold that the consideration was for purposes binding upon the reversion.

23. The next alienation is evidenced by Exhibit II, a mortgage dated the 7th December, 1918, for Rs. 3,000 in favour of the 3rd defendant. The mortgagee has obtained a decree, Exhibit III on the mortgage. Though the document Exhibit II is for Rs. 3,000, the decree dated 15th December, 1919, is only for Rs. 2,750. Exhibit II was executed, in respect of the money dealings for meeting the expenses of the family trade, and of building and repairs. The contention, on behalf of the appellant, is that this amount includes some debt borrowed by the father, and great reliance is placed upon the recital in the document.

The amount borrowed by the said N.K. Naganna Chetty in his capacity as agent and separately by executing promissory notes and the amount due up to this date to you deducting the payment is Rs. 3,000.

24. There is no evidence that the sum of Rs. 3,000 includes a debt incurred by Naganna Chetty, 1st defendant's father on his own account. That he traded during the speculation period, 1918, on his own account is clear from the evidence; but there is no evidence to show that the 1st defendant undertook to pay any portion of the debt incurred by the father. I do not think the words 'borrowed by the said N.K. Naganna Chetty in his capacity as agent and separately by executing promissory notes' should be taken to mean that some debt borrowed by Naganna Chetty on his own account is part of the consideration for Exhibit II.

25. Considerable arguments had been advanced to show that the 1st defendant started a yarn trade, which was a new venture. There is no satisfactory evidence that she had incurred any heavy liability in the yarn trade and that any portion of the debt incurred in the yarn trade is part of the consideration for Exhibit II. Exhibit III sets out the various promissory notes under which money was borrowed by the 1st defendant. They are five promissory notes, dated 19th September 1917, 26th January 1918, 2nd July 1918, 22nd July 1918 and 25th September 1918. D.W. 7; proves the consideration for Exhibit II and speaks to the purposes for which the -debts were incurred.

26. It is urged that the account books of the 3rd defendant have not been produced and that that is a circumstance Co be taken against the 3rd defendant's case. The account books are likely to show the purpose for which the money was harrowed and the non-production of the account books - which were not called for by the plaintiff - should not be taken as a circumstance against the evidence of D.W. 7. D.W. 1, the father of the 1st defendant, proves that money was borrowed for purposes of trade, building and repairs and that Exhibit II was executed in discharge of the promissory notes evidencing the loans. In this connexion, it is necessary to consider whether the 1st defendant has really improved the reversion and has added to the estate, or whether she has in any way endangered the reversion or acted prejudicially to it. When the plaintiff and Pattabhi Chetty divided family properties, Pattabhi was given property worth Rs. 1,775 and was required to discharge family debt to the extent of Rs. 1,000. He was also given outstandings amounting to Rs. 800, vide Exhibit A. When the plaintiff dissolved his partnership with Pattabhi Chetty after his death the 1st defendant got goods worth Rs. 1,000 and outstandings amounting to Rs. 526-13-7. She had to pay debts to the extent of Rs. 330-13-10 and the bad debts amounted to about Rs. 100. So he practically got Rs. 1,000 under Exhibit B. The evidence of D.W. 8 is that the houses are worth now Rs. 15,000. Mr. Krishnaswami Iyer, who appears for the 3rd defendant, estimates the value of the houses at Rs. 17,000; but taking the lower estimate of Rs. 15,000 we find that the estate has been considerably improved. It is also stated that the business is being carried on. The houses inherited by the 1st defendant were not worth more than Rs. 6,000 or Rs. 7,000. The family house was purchased for only Rs. 200 and odd and the other house was purchased by Pattabhi for Rs. 1,000 and odd. Considering the accretion to the estate owing to the exertions of the 1st defendant, can it be, said that her act has in any way endangered the reversion? The plaintiff or the reversioner is not entitled to have the benefit of the increase or accretion to the estate, without taking over the liability incurred in improving the estate. If the estate has increased in value owing to the improvement of the locality or other cause, independent of any act of the widow, then it might be said that the widow is not entitled to the benefit of such increase; but where the increase is directly due to the additions and new constructions by the widow it cannot be said that the reversioner is entitled to take the benefit of such additions and constructions, without paying the debts incurred for such additions and improvements. As regards Exhibit II, the debts were incurred for improving the houses and for trade. That a considerable amount was spent upon the houses is clear from the evidence. D.W. 1 put it at Rs. 2,000 to Rs. 3,000; D.W. 7 says that the new houses and improvements must have cost Rs. 3,000 and D.W. 8 says that the new houses and improvements must have cost Rs. 3,500.

27. Taking the lowest figure, it cannot be said that the widow incurred the debt without necessity. The business inherited by the 1st defendant was a paying business, and the family, being a trading family; in other words, the Kulachar of the family being trade the first defendant's act cannot be said to be an imprudent act. A widow, if she Acts prudently in carry on the business of the husband, is entitled to bind the estate with the debts incurred in the course of such trade. The appellant relied upon Kutti Haji v. Hussain Kunhi Haji (1919) 142 Mad. 761 as supporting his contention. In that case, it was held that a Karnavan was not entited to start a trade and to incur debts binding on the family. But where the family is a trading family or the caste to which the parties belong is a trading class or caste, such as, the Vysia Komatti Chetties or the Nattu Kottai Chetties of Southern India, it would be against all principle to hold that a widow is not entitled to carry on the trade of the husband, provided) of course, she carries that on, as a prudent person would. In carrying en such trade, credit is obtained on the strength of the property of the family. Where the husband obtained credit on the strength, or by reason of his possessing immovable property, and when the widow carries on the trade and obtains credit on the strength, or possession of immovable property, the property of the family should be considered as having been embarked on such trade. Credit depends upon the possession of property, movable or immovable. Persons who lend money or give credit to the husband do so ostensibly on account of his owning houses; and when the widow continues the trade, there is no reason to suppose that they do not look to the immovable property, for security for the debts incurred in the trade. In all these cases, the question for consideration is, what was the property that was embarked on the trade; and if the immovable property I is kept altogether separate from the trade, then it might be said that the trade debts cannot bind the immovable property; but where improvements are made, or property is purchased from the income of the trade, such property cannot be free from the liability for trade debts. It is on this principle that minor members of a joint Hindu family are made liable to the extent of their shares of the family property for the debts incurred by, the managing member, where the managing member carries on a family trade and incurs debts the shares of the minor members not only in the trade but also in the family property are liable, provided it can be shown that the family property was embarked on such business : vide Thammanna Chinna Lakshminarasimham v. Akarapu Venkanna Chinniah (1920) 11 L.W. 55. There is no reason for supposing that any portion of the consideration for Exhibit II was not for purposes, which were necessary for the trade as well as for completing the houses left incomplete by the husband. I hold that the debt evidenced by Exhibit II, which afterwards was merged in the decree under Exhibit III is binding on the reversioner.

28. The nest alienation is under Exhibit D a mortgage deed, dated 3rd February, 1919 for Rs. 1,000 in favour of the 4th defendant and it does not show that it was borrowed for any necessary purposes. The onus is upon the 4th defendant and he has not chosen to appear and adduce any evidence. I find the alienation under Exhibit D, is not binding on the reversioner.

29. The next alienation is under Exhibit IV, a mortgage deed, dated 17th February, 1919, for Rs. 1,100, in favour of the 5th defendant. Exhibit IV was executed in discharge of a promissory note dated 5th November, 1918, for Rs. 2,000, and another promissory note dated 8th November, 1918, for Rs. 1,000. Exhibits V and VI are the promissory notes and they bear interest at 24 and 36 per cent, per annum. It cannot be said that the trade necessitated the borrowing as an exorbitant rate of interest Rs. 1,000. Considering the time at which these two debts were incurred, that is, at the close of the speculation period, when merchants lost heavily it can be presumed that the debts were incurred for the purpose of covering the loss, incurred in the yarn trade. There is no satisfactory evidence on the side of the defendants to show that there was necessity to borrow these two sums, at exorbitant rates of interest. D.W. 6, the agent of the 5th defendant says:

There was a general loss to all traders: in cloth and yarn. First defendant, Arjanna Chetty and I were dealing in yarn and mull pieces in partnership.' 'We lost about Rs. 3,200, in that partnership.' 'The first defendant incurred loss in yarn and cloth.

30. The evidence of this witness lends considerable support to the contention of the appellant that the first defendant and her father speculated in yarn in partnership with other people and the absence of any satisfactory evidence to show that the debt was incurred for necessary purposes can be explained only on the supposition that the defendants are unable to adduce any evidence of necessity. Though it is proved that the first defendant has paid a considerable portion of the debt, yet there is no ground for making the estate liable for it, I hold that the alienation under Exhibit IY is not binding on the reversioner.

31. The next alienation is under Exhibit E, a mortgage, dated the 12th of April, 1919, for Rs. 1,000 in favour of the 6th and 7th defendants. The recital in Exhibit E is to the effect that the money was due, on account of dealings with the first defendant, in the books of the 6th and 7th defendants. The debts were incurred for the purposes of the trade; but the appellant contends that a sum of Rs. 1,890 was borrowed on a promissory note on the 5th of October, 1917 and that the widow was not entitled to borrow that amount. But whatever the purpose was for which the money was borrowed, we find that the debt was practically wiped out in September, 1918. Where a widow carries on a trade and where she borrows money, granting for argument's sake, for purposes which ate unconnected with the trade, and where she pays the debt out of the income of the trade, the reversioner is not entitled to say that the widow should not have paid the debt out of the income. The sum of Rs. 1,000, which is shown as consideration for Exhibit E, was practically incurred between September, 1918 and July, 1919. All the items are credits given to the first defendant for goods purchased; in other words, she was debited, with the value of the goods supplied and the amount of Rs. 1,000 is the balance due to the 6dh and 7th defendants after giving credit for the amounts paid by the first defendant. There is no difficulty in finding that the debt was incurred in the course of the trade and for the purpose of the trade and is, therefore, binding on the reversion, In connexion with this trade there is evidence that this plaintiff himself supplied goods to the first defendant and carried on transactions with her. If he thought that she was not carrying on the trade properly, or by carrying on the trade she was endangering the reversion, he certainly would not have trade transactions with her. For these reasons I hold that the trade carried on by the first defendant was carried on in a business-like and prudent manner and that the debts incurred in the course of the trade are binding on the reversion. I hold therefore that the debt under Exhibit IL is binding on the reversion.

32. In the result, the plaintiff's appeal is allowed as regards the alienation evidenced by Exhibit D and Exhibit IV. With this modification the appeal is dismissed with costs in favour of defendants 2, 3, 6, 7, 8 and 9. The plaintiff will get his costs both in the lower Court and in the appeal so far as the alienation evidenced by Exhibits D and IV are concerned from defendants 4 and 5.


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