Patha Pedda Elliali vs Palagili Gangamma and Others

Umamaheswaram, J.—This second appeal raises u simple question of law. The suit Out of which the second appeal arises was filed by the first Respondent herein for a declaration that the alienation, elected by the third Defendant, the widow of Ramayya, in favour of her son-in-law the second Defendant (the husband of the first Defendant) was not valid and binding upon the reversioners of the estate of Ramayya. The alienation in favour of the son-in-law was effected under Exhibit B-l dated 30th January, 1943. The second Defendant sold the property in his turn in 27th September, .1.943, in favour of i IS Appellant hereunder Exhibit R-2. The recital.-in the sale deed Exhibit B-l is that the sale was effected for discharging the debts. It does not speedily whether the debts were those contracted by the husband, Ramayya, during his life-time or the debts incurred by the widow alter his death. While the Trial Court upheld the alienation under Exhibit B-l, the District Judge of Cuddappah reversed his judgment. He held that, in view of the admission made by the second Defendant he did not make any enquiries and know who the creditors were, and that the necessity for the alienation was not made out.

The law is well settled that if a sale is impeached the burden lies on the alienee to prove -either that there was legal necessity in fact or that he made bona fide enquiries as to the existence of the necessity. As it is found by the District Judge that the alienation was in favour of the son-in-law and that he did not make any bona fide enquiries as to whose debts had to be satisfied, the alienation was invalid. The Appellant, who claims from the son-in-law and who had knowledge of the circumstances under which the sale was effected in favour of the son-in-law, does not stand on any higher footing. So, the appeal consequently fails.

Shri K. Ramachandra Rao, the learned advocate for the Appellant, sought to rely upon the terms of Section 14(1) of the Hindu Succession Act (XXX of 1956) hereinafter referred to as the Act, as enlarging the estate of the widow, and consequently conferring absolute rights of his client. Section 14 (1) of the Act enacts:

Any property possessed by a female Hindu, whether acquired before or after the commence mint of this Act, shall be held by her as full owner thereof and it of as a limited owner.

It is clear from the facts of the case that the Appellant-alienee has been the possession from 27-9-1943, up to date. for a period of over 12 year''s. He, therefore acquired prescriptive title by adverse possession as against the widow. There is no force in the contention that the alienation in favour of the son-in-law was a nominal one and that he was holding the properly on behalf of the widow. The son-in-law had disposed of the property on 27-9-1943, in favour of the Appellant, and he has been in continuous and under reputed possession of the property ever since that date and prescribed title as against. the widow. The observations of Viswanatha Sastri, J., at p. 989 (of Andhra,WR): (at p. 281 of AT 1.1) ''in Gaddam Venkayamma and Others Vs. Gaddam Veerayya (died) and Others would directly apply to facts of this case, and the observations tire as follows:

Even if a trespasser is in possession of land belonging a -female owner on the date when the Act came into force, the female owner might conceivably be regarded as being in possession of the land, if the trespasser had not perfected his title by adverse possession, before the Act came Into force.

I hold that even on the footing that the alienation in favour of the Appellant! was not binding on the widow by reason of the sale in favour of the son-in-law being a nominal transaction, ho had acquired title by adverse possession. It cannot therefore, be held that the widow is still in possession within the meaning of Section 14 (1) of the Act. His possession is ether lawful or unlawful. If lawful by being an alienee from an alienee the widow is not in possession. If his possession is not lawful but is that of a trespasser, his title has been perfected by adverse possession. In any view, the widow is not in possession. I have taken a similar view, following the observations of Viswanatha Sastri, J., in Second Appeals Nos. 194 to 198 of 1953 (Andhra) (B).

Sri Ramachandra Rao, the. learned Counsel for the Appellant, contended that, as his client was an alienee from the son-in-law and the sale in favour of the son-in-law was a void able one, he is protected by being a bona fide purchaser for value, and in support of Unit contention he relied upon the observations of Viswanatha Sastri J., at page 990 (of Andhra WR): (at p. 281 of AIR) in 1956 Andhra WR 988: ((S) AIR 1957 Andhra Pra. 280) (A) which are in the following terms:

If the transferor held the property only under limitations, the transferee! would take it subject to those limitations, except in the case of a bona fide purchaser for value without notice from a person who had himself acquired Alto under a voidable sale.

I am unable to appreciate the relevancy of these observations in Construing the terms of section 14 (1) of die Act., Moreover the observations are also, in my opinion, not supported by authority.

The alienee from a transferee from a widow does not stand on a higher footing than the alienee from the widow. This position is made clear by the Supreme Court in Kalishankar Das v. Dhirendra Nath 1954 SCT 670 at p. 678 : AIR 1954 SG 505 at p. 510) (C). The passage in the judgment of Mukherjea, J. as he then was, is as follows:

The subsequent transferee could not claim to have acquired any higher right than what his predecessor had and it is immaterial whether he bona fide paid the purchase money or took proper legal advice.

The same view is laid down by the Privy Council in AIR 1924 56 (Privy Council) In dialing with the contention that the plea of purchase for value without notice assisted the Respondent, Sir Lawrence-Jenkins observed as follows:

But an initial difficulty in applying this doctrine is that on the face of title the mortgagee had notice that his mortgagor took from one who only had a limited and conditional power of'' disposal. And so the inquiry comes back to this: what was the daughter''s interest and power, bearing in mind that the case comes from the Madras Presidency? It is now settled beyond dispute that a daughter as heiress of her father takes a restricted interest similar to that taken by a widow with a similar power of disposal. This power is conditional; she can, dispose of the inheritance for legal necessity, but it lies on the alienee to prove the existence of this necessity, and this so even though the absence of necessity be not pleaded by the reversioner.

The observations apply ad idem to this case. In Exhibit B-2, it is expressly stated that the 2nd Defendant purchased from Mundala Subbamma the widow and his sale therefore depended for its validity upon whether the sale in favour of the second Defendant was supported by necessity.

In Ramanand Lal v. Damodar Das AIR 1942 All 110 (E), the same view is expressed at page 113. The relevant passage is as follows.

In our opinion the alienee from a Hindu widow and a transferee from alienee stand in the same position in the matter of burden of proof and both have to discharge the same burden as against a reversioner though presumptions of facts may arise in either case when by lapse of time evidence ''has disappeared.

Reliance for this view was placed by the Allahabad High Court upon Mulla''s Hindu Law, 11th edition, at page 193. Mayne also takes the sumo view and it is to be found in his book on Hindu Law, 11th Edition, at page 778. I am therefore not prepared to follow the observations of Gaddam Venkayamma and Others Vs. Gaddam Veerayya (died) and Others (A) and hold that the Appellant has acquired a valid title even though the second Defendant''s title is defective and the sale in his favour is liable to be set aside as not being supported by necessity.

In the result, the second appeal fails, and is dismissed with Costs. No leave.