Gnanamma and Another vs Kanniammal and Another

Ramaswami, J.—This is an appeal preferred against the decree and judgment of the learned City Civil Judge of Madras in O. S. No. 1395

of 1949. The facts are: One purohit Samayya was the husband of the first defendant Kanniammal. He had a deceased first wife and a daughter

Gnanamma, who is the first plaintiff. This Samayya had a divided brother who was also his next door neighbour. He is P. Guruvayya, the 2nd

plaintiff in this suit. Samayya died in 1919 surviving him his widow Kanniammal. He died possessed of a house bearing door No. 22 Venkatachala

Chetti St, Triplicane, and six acres of wet and dry lands in three villager, Allian kulam, Janakipuram and Zamin Pallavaram. On the death of this

Samayya in 1919 his divided brother started giving the maximum trouble to the unfortunate widow of his brother and involved her in heavy

litigation. He objected to the transfer of registry of the lands and propounded an alleged will said to have been executed by Samayya. It is fortunate

for the widow that she had a stout supporter in her father Venkatarama Iyer of Agili village in Madurantakam Taluk. On account of her having to

expend nearly Rs. 1200 in litigation, the first defendant had to sell on 16th August 1923 lands in Alliankulam village for Rs. 600 under Ex. B. 1.

The document recites that the expenditure was incurred in connection with a case in the High Court. Then under Ex. B. 2 dated 5th December

1923 this first defendant had to sell the Pallavaram land for Rs. 250. In the meanwhile the house in Triplicane, which was the only substantial

property left by her husband, had become dilapidated. By 1925 it had reached a stage when the Corporation of Madras launched a prosecution

against the 1st defendant for putting on the dilapidated house, which was in a dangerous condition, in a proper state of repairs. Therefore, this

widow had to raise moneys under the sale deed Ex. B. 3 dated 22nd April, 1925 executed in respect of the remaining lands in the third village for

Rs. 300. The document recites the purpose for which the money was raised. Therefore, by 22nd April, 1925 this widow had sold bit by bit all her

lands and was mainly dependent upon the house and which being an old house had to be put into proper order by a large expenditure of money

and also to avert the prosecution by the Corporation. So on 29th July 1925 this widow had to borrow from the only person who would trust her

and who had funds with her viz., her mother''s mother, a sum of Rs. 800 under Ex. B. 16 The document recites that this amount of Rs. 800 was

borrowed with interest at 12 per cent per annum for the expenses of repairs. The house seems to have been put in proper and fair order.

From 29th July 1925 the asset of this widow was the old patched up house in Triplicane and a liability of Rs. 800 due under the mortgage Ex.

B. 16 carrying interest at 12 per cent per annum.

The house unfortunately was not able to give a steady income to this widow. I seems to have been remaining unoccupied at intervals and from

time to time required repairs and had to pay a Corporation assessment of Rs. 53 per annum. The house was occupied in September 1925 by D.

W. 4 a head draftsman in the P.W.D. He paid Rs. 45 per month as rent for about a year and reduced it to Rs. 40 till about 1931 or 1932. The

rent was again reduced to Rs. 35 per month till about 1937. Between 1937 and 1942 D. W. 4 let in his cousin as tenant with the consent of

Kanniammal on a rent of Rs. 32 per month for two years and subsequently on a rent of Rs. 30 per month. In April 1942 D. W. 4 again occupied

the house. On account of evacuation scare, when his office was shifted to Vellore in May 1942, he let the house to a subtenant for Rs. 15 between

April 1942 and May 1943, though the Corporation tax was not reduced. After May 1943, D.W. 4 started paying rent at Rs. 30 per month till

about December 1947 and then in 1948 he raised it to Rs. 35 and was paying from January 1949 Rs. 40 per month till he was evicted by

proceedings taken before the Rent Controller. The evidence of this D. W. 4 shows that during this period major repairs like putting up of a flu-

shout latrine, electrification, re-roofing etc., had to be done and in fact nearly Rs. 1300 seems to have been spent in all. In fact the evidence of D.

W. 4 shows that he was practically sending Rs. 15 to Ra. 20 to the 1st defendant and appropriating the balance of rent towards the expenses

incurred for the house. Sometimes he was adjusting two months'' rent at a time, It will thus be seen that this first defendant who had prudently

removed herself to Agili village was neither getting a steady rent nor anything exceeding Rs. 20 or Rs. 25 per month. In the meanwhile the

mortgage amount was swelling up by reason of the fact that the interest thereon could not be paid and only endorsements had to be made for the

petty amounts for saving limitation.

In these circumstances the 2nd defendant Chellammal''s father, who is a well-to-do man came to D. 1 on learning that this house was likely to

be sold. Therefore, he made enquiries and after finding out that the widow was under a necessity to sell the house in order to pay off the mortgage

which by that time had swelled to an amount of Rs. 3000 and had also been taking hand loans from various people for meeting her maintenance

expenses, and after consulting competent lawyers in Chingleput like the late Sri A. G. Rangachariar and though this very 2nd plaintiff who was the

next door neighbour told him that the house would not be worth more than Rs. 4000 purchased the house for Rs. 6000 for his daughter whose

husband is employed in Madras and both of whom required a residence there. The purchaser Chellammal had undertaken a Hawala of the

discharge of the mortgage amounting roughly to Rs. 3000 which by this time, on account of the death of the first defendant''s grandmother, seems

to have devolved upon this first defendant and secondly had paid before the Sub-Registrar a sum roughly amounting to Rs. 3000. The purchaser

has taken possession of the property.

In these circumstances the daughter and the divided brother of this P. Samayya have filed this suit for a declaration that the sale deed dated 9th

August 1949 is not binding on the reversioners. Before the learned City Civil Judge the plaintiffs did not examine themselves or adduce any other

oral evidence. On behalf of the defendants, the 1st defendant examined herself and four others. Exs. A. 1 to A. 4 and B. 1 to B. 27 were filed. The

learned City Civil Judge dismissed the suit. Hence this appeal by the defeated plaintiffs.

The powers of a Hindu widow to alienate the corpus of her husband''s estate, whether moveable or immovable , have become really well

settled.

A Hindu widow in possession of her husband''s estate is in no sense a trustee for the ultimate reversioner, within the limits imposed upon her, she

has the most absolute power of enjoyment and is accountable to no one. She is the Owen for the time being, fully capable of representing the

estate in her transactions with the outside world so long as she acts bona fide and in the interests of that estate; but it is an ownership qualified by

limitations which are not imposed upon her for the benefit of reversioners but are of the very essence of her estate-limitations, whether founded on

her natural dependence on others, or her duty to lead an ascetic life, or on the impolicy of allowing the wealth of one family to pass to another :

1907-34 I. A. 87 = 34 Cal. 329; 46 I. A. 72; 37 All. 177; 43 I. A. 207; 7 I. A. 115; 54 I.A. 211.

In order to sustain an alienation by a Hindu widow of the corpus of her husband''s estate, it must be shown, in accordance with the often cited

Case of Hauooman Persaud 6 M.I.A. 393 that there was legal necessity; or (ii) that the alienee after reasonable enquiry as to the necessity acted

honestly in the belief that the necessity existed

In Kalishankar Das v. Dhirendranath Patra, their Lordships of the Supreme Court have held as follows :

It is a well-settled doctrine of Hindu law that nobody has a vested right so long as the Widow is alive and the eventual reversioner does not claim

through any one who went before him. The interest of a Hindu widow in the properties inherited by her bears no analogy or resemblance to what

may be described as an equitable estate in English law and which cannot be followed in the hands of a bona fide purchaser for value without

notice. A Hindu widow has got only qualified proprietorship in her estate which she can alienate only when there is justifying necessity and the

restrictions on her powers of alienation are inseparable from her estate. For legal necessity she can convey to another an absolute title to the

properly vested in her. If there is no legal necessity the transferee gets only the widow''s estate which is not even an indefeasible life estate for it can

come to an end not merely on her death but on the happening of other contingencies like remarriage, adoption, etc. If an alienee from a Hindu

widow succeeds in establishing that there was legal necessity for transfer, ho is completely protected and it is immaterial that the necessity was

brought about by the mismanagement of the limited owner herself (unless the creditor had himself been a party to the misconduct which had

produced the danger). Even if there is no necessity in fact, but it is proved that there was representation of necessity and the alienee after making

bona fide enquiries satisfied himself as best as he could that such necessity existed, the actual existence of a legal necessity is not a condition

precedent to the validity of the sale. [The illustration to S. 38 Transfer of Property Act which now applies to Hindus leaves no doubt on the point-

Vide Amruti v. Sarda Moni A. I. R. 1950 Oriasa 143] . Therefore if there is no necessity in fact or if the alienee could not prove that he made

bona fide enquiries and was satisfied about its existence, the transfer is not void but the transferee would get only the widow''s estate in the

property which does not in any way affect the interest of the reversioners.

Kalishanker Das and Another Vs. Dhirendra Nath Patra and Others, Referred to.

In no case however is the alienee or his transferee bound to see that the money paid by him is applied to meet the necessity. The reason is that he

can rarely have the means of controlling the actual application.

Subject to these limitations where a case of necessity exists, the widow is not bound to borrow money, with the hope of paying it off before

her death. Nor is she bound to mortgage the estate, and thereby reduce her income for life. She is at liberty, if she thinks fit, absolutely to sell off a

part of the estate. And even if a mortgage would have been more beneficial, still if the heiress and the purchaser are both acting honestly, the

transaction cannot be set aside at the instance of the next heir. So, where the income of the property which has been mortgaged is not sufficient to

pay the interest on the debt, the widow is justified in selling it before the debt is due, if in the circumstances this is a proper, though not a necessary,

course to take. In the absence of mala fides or extravagance and so long as it is neither unfair in character or unreasonable in extent, the Court will

not scan too nicely the manner or the quantum of the alienation. A widow like a manager of a family, must be allowed a reasonable latitude in the

exercise of her powers, provided she acts fairly to her expectant heir Taraprosad Saw Vs. Madhu Sudan Giri and Others, .

The underlying principle is that if the limitations set out in the preceding paragraph are complied with the transaction is not vitiated by some excess

of the widow''s powers as rigorously construed.

It has been further laid down in Neelambal Ammal v. Rajaratnam Pillai S. A. No. 795 of 1951 (1956 M.W.N. ) to which one of us Govinda

Menon J. was a party, as follows :

No hard and fast rule can be laid down as to whether a Hindu widow in possession of very little property left by her husband can or cannot sell the

same for her future maintenance. The principle of law is well established that a widow can alienate her husband''s property for necessity of the

estate. No authority is needed for that proposition. As stated in the order of reference, Venkatasubba Rao J. in Ramalinga Iyer Vs.

Parvathathammal and Others, and Devadoss J. in Kuthalinga v. Shanmuga AIR 1926 Mad. 464 : 23 L.W. 373, took a liberal view that where

there is compelling necessity the widow can sell the entire property of her husband for the purpose of her future maintenance. A different view

seems to have been taken by Raghava Rao J. in Ratnam Pillai and Others Vs. Ganapathi Subramaniya Aiyar, , on the observations of Chief Justice

Beaumont in Gyanu Kashiba Dhangar Vs. Sarubai Biru Dhangar, that a widow has no power to sell the properties for her future maintenance.

In our opinion it is difficult to say with exactitude that she has no power. Every thing will depend on the facts of the case. Suppose for example, a

Hindu widow is left with Government Promissory Notes or other securities to the extent of a few hundred rupees and nothing more, can it be said

that she has no right or authority to collect the money but should collect only the very meagre interest arising on that and starve herself ? The

question answers itself.

The nature of the property to be alienated may also be such that it is not possible to sell only a portion just sufficient to cover the needs of the

widow, as in case of a house or land which if separated would lose irrigation facilities. In such cases the alienation of that portion of the property

which constitutes an entity and cannot be marketed after division, may be sold in its entirety. It all depends upon the circumstances of each case.

All that can be legitimately expected of the widow is to preserve the nets balance of the sale price subject of course to her maintenance needs etc,

so that in course of time this substituted corpus may be available for the reversioners. The underlying principle is that it would be manifestly

impossible and possibly prejudicial to the interest of the estate if the widow were held to be bound to sell in every instance the exact portion of the

property of her husband for the exact sum required for satisfying the legal necessity; Mamanmal v. Har Bhagusan 2 Lah. 357 , Balakrishna v.

Hiralal 41 All. 338 Felaram Roy and Others Vs. Bagalanand Banerjee, , Venkaji v. Vishnu 18 Bom. 534, Rai v. Dayal 54 I.A. 211.

Bearing these principles in mind, if we examine the facts of this case, we find that first of all the alienation was made for legal necessity. We

have pointed out how this widow had to sell the lands bit by bit and finally mortgage the house for a binding purpose. In fact, as pointed by the

learned City Civil Judge, the plaintiffs never questioned the mortgage deed or the sale deeds in respect of the lands at any time from 1925 and even

now they do not question the transactions but they simply state in their plaint that they reserve their rights to question these transactions. We have

also further pointed out how after 1925 this widow got an irregular rental income of not more than Rs. 25 per month on the whole from the suit

house. In the meanwhile the principal and interest on the mortgage had been accumulating and had practically quadrupled. In addition, as pointed

out by the learned City Civil Judge in paragraph 9 of his judgment, the widow has been borrowing moneys for maintaining herself and these small

undischarged debts have naturally become pressing. Therefore, the alienation of the property was for legal necessity. In this connection the point of

substance urged is that after paying off the mortgage debt and the sundry debts, at the time of the execution of the sale deed in 1949 there would

have been a balance between Rs. 2,000 and Rs. 3,00. In regard to this, it has to be borne in mind that the widow had to maintain herself from

1949 onwards and she is alive even today having become an old woman and having passed the Biblical three score and ten. This widow must have

been put to considerable expenses in defending herself in this litigation also, as she has to support her vendee under the provisions of the Transfer

of Property Act. It is clear therefore that every pie of this sale price has been utilised for legal necessity.

Turning to the vendee, she belongs to an entirely different community and there is no suggestion of any collusion between the second

defendant''s family and the first defendant, or enmity towards the plaintiffs. The purchase was not a speculative one but made after enquiries taking

legal advice and even after asking the 2nd plaintiff what the house would be worth. The purchase price has gone towards the Havala of a mortgage

and for payment before the Sub Registrar. The purchaser has taken possession of the property after the sale and has been in enjoyment thereof. It

is idle to contend in these circumstances illustrations which fall directly within the meaning of S. 38 of the Transfer of Property Act which now

applies to Hindus that this purchase by a stranger, who has bona fide purchased the property for good consideration after making due enquiries

and proper legal ad vide and acting on the representations of not only the first defendant but also of the 2nd plaintiff which she had no reason to

disbelieve, can be got declared as not binding on the reversioners. In the result, this appeal is dismissed with costs-one set.