Nallajerla Krishnayya vs Vuppala Raghavulu

Chandra Reddy, J.—This second appeal is placed before a Bench Umamaheswaram J, who heard it first thought important question of law was involved.

The controversy in the appeal centres row S. 6(d) of the Transfer of Property Act. The facts the have given rise to this appeal may be briefly recalle(sic) The respondent gave two acres of land for maintenance to his brother''s widow under Ex. A-l dated 29-(sic) 1933. He took the property from her on lease u(sic) order three documents, Ex. A-5 dated 16-7-1934 (sic) a period of three years, there being a renewal un(sic) Ex. A-6 dated 30-4-1937 for a period of three yea(sic).

On the expiry of this lease, the respondent executed Ex. A-7 on 4-5-1940, for another term of f(sic) years. Shortly after the termination of the last lea(sic) the grantee sold her rights in the property to appellant for a sum of Rs. 1,000/- under Ex. A(sic) As the respondent refused to Surrender possess of the property to him, he was obliged to instit(sic) the present suit to recover possession of the ph(sic) scheduled land. The suit was contested on sevt(sic) defences, but the one relevant for the purpose(sic) this enquiry is that as the interest created in fav(sic) of the widow under Ex. A-l was restricted to enjoyment personally, the transfer was invalid the vendee had acquired no rights thereunder.

The Subordinate. Judge, who tried the suit(sic), that since life interest was given to the widow the concerned property, it was competent for to convey her interest. On appeal, the District Ju(sic) differed from him and dismissed the suit as, in opinion, the enjoyment of the property was rest (sic)ed to her personally. We have now to cons(sic) which of the two views is correct.

(2a) In order to appreciate the point that to be determined in this appeal, it is convenier refer to the terms of Section 6 of the Transfer Property Act.

Property of any kind may be transferred (sic)cept as otherwise provided by this Act or by other law for the time being in force.

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(d) An interest in property restricted in its e(sic) (sic)ment to the owner personally cannot be transf(sic) by him.

The question debated before us is whether Ex. created a life interest in the grantee or whether bestowed only an interest which was inalien(sic) The answer to this dependst on the relevant cl(sic) in the document Ex. A-1.

The schedule property worth Rs. 300 given to you for maintenance and gut in your p(sic)ion this day. From now onwards, you may, keep he said properly in your possession and enjoy the income therefrom for your life. I and my heirs shall take possession of the property given to you for your maintenance after your death. You should pay the, Sircar cist. due on the land. You should not alienate (sic)le property in any manner, nor contract any debt(sic)(sic)lereon. You should enjoy the produce of this pro(sic) (sic)rty and should not claim enhanced maintenance. and my heirs shall not raise any disputes in res(sic) (sic)ect of this property", the language of the document consistent with (sic)e creation of life interest or is it something less an that bringing it within the purview of Section(sic) of the Transfer of Property Act?

In support of his conclusion, the District(sic) (sic)dge relied on Basangowda Virupaxgowda v. Ir(sic) (sic)wadati Kallangowda, ILR 47 Bom 597: (AIR 1923 in 276) (A) and AIR 1939 157 (Privy Council) ). In the first of the cases, document that was to be considered by the (sic)rned Judges ran as follows:

I have taken for myself the property for the (sic)iod of my life-time. I alone shall pay Judi(sic) I shall go on making Vahivat(sic). I shall not sell (sic)mortgage or give it as present or in any manner (sic) it into the possession of others. If I do so, it not be valid After my death, the said or alone is owner of the said property", execution of a decree obtained against the widow, decree-iolder applied to attach and sell her inte(sic)- in the property. The question arose whether restriction on alienation prevented the judgment(sic)tor from having a disposing power within the (sic)ming of Section 60, and consequently, if the (sic)iction was valid, whether the property could be (sic)ied. This was answered in the affirmative rig regard to the contents of that document. In 1939 PC 157 (B), one Narbadeshwar Sahai, a (sic)i governed by the Mitakshara, had married (sic) and had a son by each of the wives. In a brought by one of the sons for partition, the four (sic)s share of the plaintiffs was separated, the father brother being also entitled each to a four annas(sic)t and the 3rd wife, who by that time had no being given a four annas share for her life.

The second son brought a similar suit in 1923 four annas share out of the remaining twelv(sic). Meanwhile, the 3rd wife, who was the pres(sic) (sic)ent before their Lordships, give birth to a son. matter having thus become complicated, it was (sic)ed to arbitration and a partition deed was en(sic) into by Narbadeshwar Sahai, his wile and his persons by and under which the 3rd wife relin(sic) (sic)ed her four annas share which was obtained the decree of 1922 and Narbadeshwar Sahai (sic)ach of the three sons was allotted a four annas (sic)in severalty. In its stead she was given an (sic)t after her husband''s death in the four annas the passage bearing upon it was this :

my four annas share (referring to Nar(sic) (sic)lwar Sahai) shall remain in possession and oc(sic) ?n of Bahuria Moti Rani Kunwar, Party No. to her life time with life-interest, that up to re-time Bahuria Moti Ram Kunwar shall have : to appropriate the profits therefrom after pay-e(sic) Government revenue and the other (go(sic) (sic)int dues, without a Power of making a mort(sic) gage or other transfers, that if Bahuria Moti Ran(sic) Kunwar dies before the death of me, Babu Narbadeshwar Sahai The language of this document in so far as it related to the interest created in favour of Rani Kunwar presented some difficulty, and therefore the High Court which disagreed with the trial Court, took into consideration the surrounding circumstances in interpreting the language of the document Their Lordships of the Privy Council, in agreement with the High Court, decided that no his estate was created in favour of Rani Kunwar, but that she was given only a right to appropriate the profits, thereby attracting the provisions of Section 6(d) of the Transfer of Property Act. It was remarked by the Privy Council that the language of the partition deed was not clear, and for that reason they had to take into account die attendant circumstances viz., Rani Kunwar relinquishing her hip-interest in the four annas share which was assigned to her under the decree of the Court and was content to take something less than that. In those circumstances, Their Lordships thought that the only reasonable inference was that the interest created in favour of the third wife was inalienable. We.do not think that either of.these two cases renders much assistance to the respondent.

In addition to these two cases, reliance was placed by Mr. Ramanarusu, the learned counsel for the respondent, on a judgment of the Patna High Court in Lai Mohan v. Onkar Mall, AIR 1946 Pat(sic) 55 (C). In our opinion, this case also is of the same category as the two noticed above. On a construction of the document, which was a compromise petition, it was held that it was a family arrangement which did not involve any transfer and that what was given to the widow was something which was restricted to her enjoyment personally.

The doctrine of this case also is inapplicable to the instant case. None of these cases has laid down as an invariable rule of law that any property given for maintenance to a widow is inalienable falling u/s 6 (d) of the Transfer of Property Act as contended by the learned counsel for the respondent. The stress of the argument on behalf of the respondent is that since a restriction was placed on the power of disposal of the grantee and since she was prohibited from incurring any debts, the interest that was created in favour of the widow was one that was within the purview of Section 6(d) of the Transfer of Property Act and that it did not involve any transfer of property.

We cannot subscribe to this proposition. If by the preceding disposition a life-estate is created the subsequent clause imposing a condition or limitation restraining the transfer comes within the mischief(sic) of Section 10 of the Transfer of Property Act and consequently void since the right of transfer is incidental to the beneficial enjoyment of the property for life. If the condition is to be held to be valid and not repugnant to the prior disposition the grantee would be practically deprived of the enjoyment of that property. Therefore, in our judgment, the subsequent limitation violates the right that was conferred under her in the earlier part of the document.

We also feel that the argument of Mr. Rajeswara Rao that the condition annexed to this enjoyment of the property relates particularly to an out right and absolute transfer of property and was not meant to prevent her from transferring the life estate which she had is not altogether without force. However, we are relieved of the necessity of going into that matter in the view we take on this question.

On the terms of the instrument, we have no hesitation in thinking that what was bestowed open the widow Somamma was a life estate and her enjoyment of the property was not confined to her personally. The relevant clause only connoted a life estate. There is nothing in the language of the document to indicate that what was given was limited to her personal enjoyment falling short of a life estate. The very fact that the respondent himself had taken this property on lease from his sister-in-law denotes that the parties did not intend to impose any limitation on the enjoyment of the property.

Our view is reinforced by a judgment of the Allahabad High Court in Dhup Nath Upadhya and Others Vs. Ram Charitra Upadhya and Others, Here also property was put in possession of the widow in lieu of maintenance. When the widow gifted it, the grantors brought a suit for cancellation of the gift deed. Repelling the contention of the plaintiff that the widow had no right to transfer the property during her lifeline, the High Court "upheld the transfer during the duration of the widow''s late. The remarks of the learned Judges are apposite in this connection.

A Hindu widow put in possession of the property in lieu of maintenance may not be able to manage her property herself and may be under the necessity of leasing out the property for purposes of good management. Similarly, in years of dearth and scarcity, she might he compelled to raise money against the security of the property so given to her The judgment of a single; Judge of the Calcutta High Court, Panckridge, J., in Kamal Ch. Chunder Vs. Sm. Sushilabala Dassee and Others, is to the same effect.

In our judgment, the test for deciding whether the property allotted to a widow or to some other person for maintenance or for any other purpose comes within the ambit of Section 6(d) or not is whether the deed conferred any right against the properties comprised therein or whether the intention was to give her for her maintenance a personal right to appropriate the profits in the property assigned to her. The answer to this question depends upon the facts of each case and the interpretation of the relevant document. If, on a construction of the relevant terms of the instrument, the Court comes to the conclusion that right were created against the property, the matter is taken out of the purview of Section 6(d) of the Transfer of Property Act.

It follows that the interpretation placed by the Subordinate Judge is correct and the decree and judgment of that Court will have to be restored and that of the District Judge set aside. Having regard to the circumstances, of the case, we think this is a profit case where the parties should be directed to bear their own costs throughout.