Akkanna and Another vs Venkayya and Others

The main facts are sufficiently stated by the District Judge. This appeal is preferred by defendants Nos. 3 and 24 against so much of the decree

as awards to the plaintiffs five-ninths share in certain inam lands, which are partly in the possession of the third defendant and partly in the

possession of the twenty-fourth defendant. The District Judge decided the case on the footing that Parvatamma inherited certain property from her

husband and with the income thereof acquired the lands in question in 1864 on a usufructuary mortgage for 52 years from certain Muhammadans

who were the owners thereof. The usufruct was to extinguish the debt at the end of the 52 years. The District Judge further held that Parvatamma

assigned in 1877 under exhibit K the unexpired portion of the term of the mortgage to Ramayya, the brother of the third defendant, and received a

portion of the sum named therein, viz., Rs. 290, as consideration for the assignment.

The questions argued in support of the appeal are (i) that there is no proof that; the property in question was acquired on mortgage by

Parvatamma or that she alienated the same to the appellants, (ii) that the appellants respectively purchased portions of the property in 1893 from

the Mussalman owners from whom they held leases of an earlier date, (iii) that even if the property was so acquired by her and alienated to the

appellants, the plaintiffs as reversionary heirs cannot impugn the alienation, and lastly (iv) that Parvatamma''s husband Bulli Venkanna predeceased

his father, Venkatarayudu, and that therefore she was not entitled to inherit from her father-in-law the property from the income of which the

mortgaged property was acquired, and that therefore she acquired an absolute right to such property, not merely a widow''s estate. It is

unnecessary to consider the question of law raised in the last-mentioned ground of appeal as we fully concur with the District Judge in his finding

that Bulli Venkauna did not predecease his father. As regards the proof of the mortgage the instrument is not forthcoming, but, according to exhibit

K, it ought to be in the possession of the family of Ramayya, and we think that exhibit K, which is a registered instrument, is sufficient evidence, at

any rate against the third defendant, and there is also some oral evidence in proof of the mortgage. Though the assignment, exhibit K, was in the

name of Ramayya alone, there is evidence that the lands, or at any rate, the income thereof, was enjoyed in common by Ramayya and his younger

brothers the second and third defendants, the eldest brother, first defendant, having become divided from them prior to 1877. Third defendant, no

doubt, got a sale deed exhibit IV for the property in his possession from the Mussalman owners in 1893. This sale would confer on him only the

equity of redemption of the land, and it may be that his brothers have no right in such equity of redemption, but it is not inconsistent with the

plaintiff''s case that third defendant was in possession of the land as assignee of the mortgage in favour of Parvatamma. There is no proof of third

defendant''s plea that his possession prior to 1893 was as lessee directly from the Mussalman owners and no cowle is produced in support of the

plea. His possession therefore must be traced to the alienation made by Parvatamma under exhibit K and, if Parvatamma had no absolute power

of disposal of the lands which she held as mortgagee, it is not contended or established that the alienation under exhibit K was for a purpose

binding on the reversioners. As regards the land in the twenty-fourth defendant''s possession, we find it difficult to concur with the District Judge

either that it was comprised in the moiety of the mortgaged land in respect of which moiety alone Parvatamma''s right was established in the suit

referred to in exhibit K, or that the twenty-fourth defendant derived his title thereto from the transferee under exhibit K.

The twenty-fourth defendant is not a member of Ramayya''s family, and there is evidence that the land had been previously in the enjoyment of

his father-in-law. The only evidence is that the land is part of the Mussalman''s inam land, but there is nothing to show that it is included in the

moiety adjudged to Parvatamma. On this ground, if on no other, it would be necessary to allow the appeal so far as this land is concerned.

As regards the third contention, we are unable to uphold the finding of the District Judge that the property acquired by Parvatamma, on a

usufructuary mortgage for a long term of years, by means of the income derived by her from the jirayati lands inherited from her husband, should

be held to form an accretion to her husband''s estate, and that her alienation of the same does not bind her reversioners. The District Judge, relying

upon the decisions of the Privy Council in Isri Dut Koer v. Mussumut Hansbutti Koerain L.R. 10 IndAp 150 and Babu Sheo Lochun Singh v.

Babu Saheb Singh L.R. 14 IndAp 63 : ILR 14 Calc. 387 holds that it was really Parvatamma''s intention to treat the mortgage as an accretion to

her husband''s property and that there is nothing to show that she made any distinction between the lands acquired by her on mortgage and the

jirayati lands inherited by her from her husband. He considers that the recitals made in the transfer deed, exhibit K, that her occupation was living

on her husband''s property'' and that she alienated the property for the purpose of discharging her debts, show that she treated the property

acquired on mortgage as accretion to her husband''s property. The property comprised in the transfer deed is only the mortgage property and

there is no recital as to the nature of the debt. The occupation of the executant is generally mentioned in documents as required by the rules of the

Registration Department, and the statement in the document that Parvatamma was living on her husband''s property cannot possibly warrant an

inference that it was her intention that the mortgage property should form an accretion to the husband''s estate. In our opinion there is no evidence

on the record either to show that Parvatamma intended thus to incorporate her property or to show that she did not intend so to do. The question

as to the power of disposition which a Hindu widow has over property acquired by her out of the income from her husband''s estate, or out of

savings from such income, has to be determined solely with reference to general principles and judicial decisions, there being no texts of Hindu law

bearing upon it. Mr. Mayne gives a summary of these decisions in paragraphs 626--630 of his ''Treatise on Hindu Law and Usage,'' (sixth edition),

and it is unnecessary to refer here to any of the decisions on the subject prior to the decision of the Privy Council in Isri Dut Koer v. Mussumut

Hambutti Koerain L.R. 10 IndAp 150 : ILR 10 Calc. 324 in which all the earlier decisions are reviewed and considered. ""While laying down

clearly in that case that a widow''s savings from the income of her husband''s estate are not her stridhana, and that, if she made no attempt to

dispose of them in her lifetime, it is undisputed that they follow the estate from which they arose, it was held that it was a question to be decided

upon the facts of each case whether such savings form an accretion to the husband''s estate as distinguished from income held in suspense in the

widow''s hands, as to which she has not determined whether or not she will spend it. In that case the properties consisted of certain shares of land

in which the husband was a shareholder to a large extent, and the purchase was made by the widows out of their savings within a short time after

his death in 1857, and they made no attempt to alienate them till 1873, and even then ""the object of the alienation was not the need or the personal

benefit of the widows, but a desire to change the succession and give the inheritance to the heirs of one of themselves in preference to their

husband''s heirs."" This was carried out by conveying to such heir part of property inherited from the husband and part of property subsequently

acquired by the widows. These circumstances in their Lordships opinion clearly established ""accretion to the original estate"" and made the after-

purchases inalienable by the widows for any purpose which would not justify alienation of the original estate. In Babu Sheo Lochun Singh v. Babu

Saheb Singh L.R.14 IndAp 63 the above decision was followed and it was held that the purchased properties were dealt with by the widows as

accretions to their husbands'' estate, and that the original properties and such accretions were treated by the widows precisely alike in the deed of

gift; which they executed in favour of the alleged adopted son. In this case, no doubt their Lordships observe that ""where a widow cornea into

possession of the property of the husband and receives the income and does not spend it but invests it in the purchase of other property"" it must be

taken prima facie to be the intention of the widow to keep the estate of the husband as an entire estate, and treat the property purchased as an

accretion to that estate. This was only a dictum which must be understood with reference to the facts and circumstances of that case, which, it was

held, indicated that it was the intention of the widows to keep the estate entire, and that the same should descend in one line of succession. In

Saodainini Dasi v. The Administrator-General of Bengal L.R. 20 IndAp 12 the latest decision of the Privy Council on the subject, the income

which accrued on the estate of the husband for a period of about eight years subsequent to his death and which was not disposed of by his will,

came to his widow as his heir at law and she invested the same in Government securities exceeding two lakhs of rupees in value; and after the lapse

of about 20 years she disposed of the same as her own. It was held that the money so invested by her belonged to her as income derived from her

widow''s estate, and was subject to her disposition. With reference to the contention raised in that case that the savings of a Hindu widow must be

presumed to have been made for the benefit of her husband''s estate, their Lordships observed as follows:

Without examining the precise result of the decisions, it is sufficient to say that in this case there is no room for any such presumption, for the

corpus of the estate never came to the widow, but was taken by Shamcharan Mullick under the will, and the income to which the widow

succeeded was separated from it, and became and was dealt with, as an entirely separate fund.... She did nothing to indicate an intention to make

the fund received or the interest on it, part of her husband''s estate, which was in other hands, or to justify the inference that she wished it to revert

to her husband''s heirs. It was said she had placed it in investments of a permanent nature. Had she done so, it does not appear to their Lordships

that this circumstance alone would have added the fund to the estate devolving on her husband''s heirs.... The fund in question was not in any sense

received by Badam Kumari (the widow) as capital or capitalized income of her husband''s estate, but was received as income which, under the

arrangement with Shamcharan Mullick, was her own absolute property, and she never indicated any intention to make the same part of her

husband''s estate for the benefit of his heirs.

In the present case, as already stated, there is no evidence that Parvatamma ever indicated any intention to make the mortgage property part of

her husband''s estate for the benefit of his heirs. The acquisition made by her out of the income of her husband''s estate was not in the nature of an

enlargement of that estate or of redeeming the same from an incumbrance or charge or in the nature of an appurtenance thereto; it was simply an

investment, on a usufructuary mortgage, of her small savings over which she had absolute power of disposal, and it is difficult to see on what

principle it is to be presumed that she thereby intended to part with her power of disposition, for the benefit of her reversionary heirs. The acquirer

of property presumably intends to retain dominion over it, and in the case of a Hindu widow the presumption is none the less so when the fund with

which the property is acquired is one which, though derived from her husband''s property, was at her absolute disposal. In the case of property

inherited from the husband, it is not by reason of her intention but by reason of the limited nature of a widow''s estate under the Hindu law, that she

has only a limited power of disposition. But her absolute power of disposition over the income derived from such limited estate being now fully

recognized, it is only reasonable that, in the absence of an indication of her intention to the contrary, she must be presumed to retain the same

control over the investment of such income. The mere fact that properties thus acquired by her are managed and enjoyed by her without any

distinction, along with properties inherited from her husband, can in no way affect this presumption. She is the sole and separate owner of the two

sets of properties so long as she enjoys the same, and is absolutely entitled to the income derived from both sets of properties. She cannot but

manage and enjoy both sets of properties alike. The case, therefore, is not analogous to that of an undivided member of a Hindu family possessing

joint family property, who, by throwing into the common stock the income he derives from his separate or self-acquired property, manifests his

intention to impress such self-acquired property with the character of joint family property. Purchasers from a Hindu widow of property acquired

by her from the income derived from her husband''s estate can be expected to deal with her only on the presumption that she has not parted with

her control for the benefit of the reversionary heirs, and it will be subjecting such bond fide purchasers to serious hardship to throw upon them the

onus of establishing, after the death of the widow, and it may be as in this very case many years after the transaction, that when the widow

originally acquired the property she did not intend it to be an accretion to the husband''s estate.

We must therefore allow the appeal and dismiss the suit as against the appellants with costs (one set) throughout.