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Shiba Sundari Dasi Vs. Ram Gobinda Das and ors. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in25Ind.Cas.90
AppellantShiba Sundari Dasi
RespondentRam Gobinda Das and ors.
Cases ReferredDebt Prosad Chowdhry v. Golap Bhagat
Excerpt:
hindu law - alienation by widow--mortgage of whole, estate--consent of next reversionary heir--sale of estate under mortgage-decree before widow's death--reversioners, right of. - .....as it was not necessary. there is one line in the judgment of the learned chief justice which might raise an inference to the contrary, where he says, here the alienation is only of a part of the husband's estate and that by way of mortgage.' but the question which he was then dealing with was the alienation of a part of the estate and there was in fact no decision as to the difference in effect between a sale and a mortgage, nor in this case does it appear to us to matter, for the sale was complete by operation of law before the defendants nos. 3 to 5 obtained any right to object to the alienation. a conditional alienation of the entire interest was made by the widow with the consent of the next reversioner. that alienation became complete by the sale and we do not think that the.....
Judgment:

1. This is an appeal from the judgment and decree of the learned District Judge of Rangpore in a suit for rent for the years 1315 and 1316 brought by the plaintiff as 4 annas co-sharer landlord. The defendants Nos. 3 to 5 are the landlords of the 12 annas, and the defendants Nos. 1 and 2 are tenants. One Shibu was the original proprietor of the 4-annas estate. He died leaving a widow named Surjamoni. She mortgaged the whole 4-annas with the consent of the then nearest reversioner a daughter's son named Ramratan to defendants Nos. 6 and 7. The 4-annas was sold in execution of the mortgage decree and purchased by the defendants Nos. 6 and 7 who sold it to the plaintiff in the year 1908. Upon the death of Surjamoni which took place in 1315 (1908-09) which must have been after the sale, inasmuch as her name appears in the sale certificate, the defendants Nos. 3 to 5, the then nearest reversioners, became entitled to the estate, Ramratan having died pre viously in the year 1900. The Munsif, following the decision of this Court in Pulin Chandra Mandal v. Bolai Mandal 8 C.L.J. 280 : 12 C.W.N. 837 : 35 C. 939 held that the entire estate had passed to the plaintiff by his purchase from defendants Nos. 6 and 7. The learned Judge in the Court below, following another decision reported as Hari Kissen Bhagat v. Bajrang Sahai Singh 1 Ind. Cas. 434 : 13 C.W.N. 544 : 9 C.L.J. 453, has held that the widow with the consent of the nearest reversionary heir cannot mortgage her husband's estate so as to bind all the reversionary heirs in future and he has, therefore, held that the plaintiff is only entitled to the rent up to the end of the year 1315, and that from the year 1316 when the succession opened to defendants Nos. 3 to 5 he is not entitled to the rent. When these decisions of the lower Courts were passed the judgment of the Full Bench in the case of Debt Prosad Chowdhry v. Golap Bhagat 19 Ind. Cas. 273 : 40 C. 721 : 17 C.W.N. 701 : 17 C.L.J. 499 had not been delivered. According to that ruling alienation by way of mortgage by a Hindu-widow as the heiress, of a portion of the estate of her deceased husband, without proof either of legal necessity or of reasonable inquiry and honest belief as to its existence, but with the consent of the next reversioner for the time being, will be valid and binding on the actual reversioner, if the presumption of legal necessity or reasonable inquiry and honest belief raised by such consent is not rebutted by more cogent proof.

2. In dealing with this matter the Full Bench held that a complete alienation by the widow, that is to say, the alienation of her entire interest in the estate inherited by her from her husband with the consent of the whole body of persons entitled to succeed as immediate reversionary heirs would give the transferee a good title as against the actual reversionary heirs at the time of her death. The learned Judges who decided this question appear to have avoided expressing any decided opinion as to whether the mortgage of the entire interest was such an alienation. But Mr. Justice Stephen, who is the only Judge who pronounced an opinion upon the point clearly, says that if the alienation is made with the consent of the then heirs of her husband.' It is not suggested in this case that a mortgage is to be distinguished in this respect from a sale. The same inference can be drawn from the remarks of Mr. Justice Mookerjee at page 782, where he speaks of alienation by a Hindu widow of her entire interest in the estate and in the next sentence, speaks of alienation by way of mortgage making no distinction between the meaning of the word 'alienation' in the two passages. One of us who was a party to the judgment of the Full Bench also holds the same view, although there was nothing expressed in the judgment as it was not necessary. There is one line in the judgment of the learned Chief Justice which might raise an inference to the contrary, where he says, here the alienation is only of a part of the husband's estate and that by way of mortgage.' But the question which he was then dealing with was the alienation of a part of the estate and there was in fact no decision as to the difference in effect between a sale and a mortgage, nor in this case does it appear to us to matter, for the sale was complete by operation of law before the defendants Nos. 3 to 5 obtained any right to object to the alienation. A conditional alienation of the entire interest was made by the widow with the consent of the next reversioner. That alienation became complete by the sale and we do not think that the present reversioners can impugn it.

3. That being so, the judgment of the learned Judge must be set aside and that of the Munsif restored with costs.


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