Appeal No 1817 of 1967
From the judgment and Decree dated the 21st September 1965 of the Andhra Pradesh High Court in AS No 508 of 1959
K R Choudhury and Veena Khanna for the appellants
M K Ramamurthi and J Ramamurthi for the respondent
The Judgment of the Court was delivered by ALAGIRISWAMI J
Venkanna the father of the appellants had a brother Ramamurti who died childless in the year 1908 leaving behind him his widow Narasimham
After Ramamurti s death a series of litigations started between Venkanna and Narasimham and it is not over yet
Venkanna filed OS No 14 of 1913 against the widow in respect of acts of waste committed by her of Ramamurti s estate and was appointed a receiver in that suit
In that suit he got a decree against Narasimham for a sum of Rs13539 as she failed to furnish security as originally decreed by the court
Venkanna as receiver filed three suits on the foot of three mortgages in favour of Ramamurti
One was O section No 34 of 1916
In execution of that decree item 1 of the A  Schedule properties was purchased in court auction
OS No 443 of 1918 was filed on the foot of another mortgage in favour of Ramamurti executed in 1904 and items 2 and 5 of the plaint schedule properties were purchased in execution of decree in that suit
These three items of properties are the subject matter of this appeal
It is unnecessary for the purpose of this appeal to refer to the third suit
Venkanna died in 1947 and Narasimham in 1951 after executing a will bequeathing in favour of her brother Venkata Sattayya all her properties
Venkata Sattayya filed the suit out of which this appeal arises for possession of the properties bequeathed to him under the will and for mesne profits
The Subordinate Judge who tried the suit held that items 1 2 and 5 become accretions to the main estate of Ramamurti and therefore the plaintiff was entitled only to an account of the income from those properties till the death of Venkanna
The appeal against the Subordinate Judge s judgment came up for hearing before Justice Satyanarayana Raju and Justice Venkatesam of the Andhra Pradesh High Court
The learned Judges called for a finding with regard to the interest on the two mortgages in execution of the decrees in which items 1 2 and 5 had been purchased relating to he period before Ramamurti s death and the period after Ramamurti s death
After that finding was received they allowed the appeal in part and held that the plaintiff would be entitled to a 1934th share of item 1 and 1223rd share of items 2 and 5
This appeal is filed in pursuance of a certificate granted by the High Court
Mr Ramasesneya Chaudhri appearing on behalf of the appellants raised four points which we shall deal with seriatim
The learned Judges of the High Court committed an error in confining the appeal after receipt of the finding from the Subordinate Judge s court only to the question of the share which the appellants and the respondent were entitled to based on the calculation of the 597 interest due on the mortgages before and after the death of Ramamurti
His contention was that as the High Court had merely framed issues and referred them for trial to the court of first instance under Order XLI Rule 25 of the Code of Civil Procedure and not remanded the whole case under Order XII Rule 23 they should have heard the whole appeal and not confined the hearing merely to the points on which the finding was called for
We think that he is right in this contention
Before the High Court the learned advocate for the appellants had contended that Narasimham owed to the estate of Ramamurti a sum of Rs14639 and that when the decree was sought to be executed by Venkanna Narasimham claimed that the account due to her by way of interest under the three mortgage bonds should be set off and that the execution could proceed only for the balance that the set off claimed by Narasimham was actually allowed and that therefore she would not be entitled to any share in the properties purchased in execution of the decrees obtained on the foot of the mortgage bonds in lieu of the interest claimed
The learned Judges disallowed him from raising that question on the ground that it was not raised or argued at the time when the finding was called for on the issues framed by them and that if it had been raised and accepted there would have been no need to call for a finding or at any rate the finding called for would have been different and that the argument of the learned counsel impugned the correctness of the conclusions reached by the Court on the basis of which the findings were called for
We consider that when a finding is called for on the basis of certain issues framed by the Appellate Court the appeal is not disposed of either in whole or in part
Therefore the parties cannot be barred from arguing the whole appeal after the findings are received from the court of first instance
We find the same view taken in Gopi Nath Shukul vs Sat Narain Shukul AIR 1923 Allahabad 384 where it was held that Where an appellate Court at the first hearing does not decide the case but merely remits certain specific issues it is open to the Court before which the case ultimately comes to disregard the findings on those issues and equally to form its own opinion on the whole case irrespective of anything that is said in the remand order
 It was also held that An order remanding issues under Rule 25 is not a final order
No appeal lies against it
The responsibility for the decree ultimately passed is entirely that of the Court before which the case comes after remand
It is quite otherwise with an order of remand passed under order 41 Rule 23 for this is an order which does finally determine subject to any right of appeal the issues which it decides
A similar view was taken by the Nagpur High Court in Sultan 598 Beg Al
chunilal AIR 1918 Nagpur 193
In Abinash Chandra Bidyanidhi Bhattacharjee vs Dasarath Malo XXXII 1927 28 Calcutta Weekly Notes 1233 it was sail An order of remand made under Or 41 r 25 decides nothing
The Court either the same or as differently constituted has jurisdiction while finally hearing the appeal to go back on the reasons given or views expressed in the order of remand and must do so when those appear erroneous
 We are therefore of opinion that the High Court should have gone into this question and decided the matter for if it turns out that the interest due on the two mortgages subsequent to the death of Ramamurti had been set off against the amount due to Venkanna in the decree obtained by him against Narasimham in OS 14 of 1913 there can be no question of Narasimham being entitled to any share in the properties purchased in court auction in execution of the decree in the two mortgages and her brother getting those properties by virtue of the will executed by her in his favour
In the Trial Court the plaintiff s contention was that these properties were purchased out of the accumulated interest on the mortgages and the defendants asserted that they were purchased out of the principal
That Court dismissed the plaintiff s claim on the ground that there was no proof of his allegations
It was before the High Court apparently that the attempt to split the interest due on the mortgages into two portions one before Ramamurti s death and the other after was made and accepted by the High Court
It was on that basis that the High Court called for findings
After the findings were received the appellants raised the question about the set off
They raised the question before the Trial Court when it was considering the appor tionment of the interest but that Court felt it had no power to go into that question in view of the terms of the High Court s order calling for the finding
And the High Court refused to allow the appellants to raise that question which as we have just held was not correct
The decree in Venkanna s suit appears to have directed payment of interest to Narasimham Para III c of the plaint and judgment of the High Court page 102 of the paper book
We find that Venkanna had submitted accounts to the court in his capacity as receiver till 1940
We have also evidence in this case that even When Venkanna died a sum of Rs4486 was dueto him on the foot of the decree he obtained against Narasimham
It is therefore highly unlikely that any amount due to Narasimham was not given credit to
We find from the finding submitted by the Trial Court Page 86 of the paper book Narasimham claimed that the amounts due to her should be set off and execution should proceed only for the balance and from exhibit A 7 it would appear that the claim was allowed
It seems therefore unlikely taking the direction in the decree and the order evidenced by exhibit A 7 into account that the interest due to Narasimham was not 599 one of the items set off
We do not want to express any final opinion on the point but are of opinion that in the circumstances the High Court should consider this aspect of the matter and dispose of the appeal afresh
Out of about 16 acres comprised in item 1 5 acres had been lost in revenue sale because of Narasimham s failure to pay the land revenue on those lands
It was urged before the High Court and it has been urged again before us that in allotting to the appellants a share of items 1 2 and 5 these 5 acre  which were lost to the estate as a result of Narasimham s negligence should be debited against her share in them
We find ourselves unable to accept this contention just as the High Court though they gave no reason for their conclusion
Neither on principle nor on authority could the contention on behalf of the appellants be supported
A Hindu widow is entitled to the full beneficial enjoyment of the estate
So long as she is not guilty of willful waste she  is answerable to no one
Her estate is not a life estate because in certain circumstances she can give an absolute and complete title
Nor is it in any sense an estate held in trust for reversions
Within the limits imposed upon her the female holder has the most absolute power of enjoyment and is accountable to no one
She fully represents the estate and so long as she is alive no one has any vested interests in the succession
The limitations upon her estate are the very substance of its nature and not merely imposed upon her for the benefit of reversioners
She is in no sense a trustee for those who may come after her
She is not bound to save the income nor to invest the principal
If she makes savings she can give them away as she likes
During her lifetime she represents the whole in heritance and a decision in a suit by or against the widow as representing the estate is binding on the reversionary heirs
It is the death of the female owner that opens the inheritance to the reversioners and the one most nearly related at the time to the last full owner becomes entitled to possession
In her lifetime however the reversionary right is a mere possibility or sues successions
It cannot be predicted who would be the nearest reversioner at the time of her death
It is therefore impossible for a reversioner to contend that for any loss which the estate might have sustained clue to the negligence on the part of the widow he should be compensated from out of the widow s separate properties
He is entitled to get only the property left on the date of the death of the widow
The widow could have during her lifetime for necessity including her maintenance alienated the whole estate
The reversioner s right to institute a suit to prevent waste is a different matter
If it could have been established that in having allowed some part of the properties to be sold in revenue sale she was guilty of willful waste if would have been a different matter
It would still have been necessary for the nevermore to have instituted a suit on that basis
It is doubtful whether such a suit can be instituted after her death
In any case the necessary averments are not available in this suit
We are therefore unable to accept this contention 3
Another point urged before the High Court as well as before us was that the cost incurred by Venkanna in the suit and in the execution proceedings should have been taken into account in allocating 600 items 1 2 and 5 between the appellants and the respondent
The High Court took the view that as the income received by Venkanna and the amounts spent by him including the amounts spent for the suit and the execution proceeding were taken into account at the time of the settlement of the accounts and there was an executable decree in favour of Venkanna for a sum of Rs 4486 as the amount due on settlement of account and it was peon to Venkanna to realise the amount against the estate of Ramamurti in execution of the decree it is not now open to the appellants to claim that these should be separated from the amount of the decree and should be added on to the amount of principal and interest accrued during the lifetime of Ramamurti
We agree with this view
Incidentally it should be noticed that the conclusion of the High Court on this point would seem to point to the same conclusion in respect of the first point
Lastly it was argued that Narasimham the widow had treated this property as accretion to the husband s estate and therefore the appellants are entitled to the whole of the property
The facts on the basis of which this contention is urged are  a When Narasimham s life interest in the estate was sold in EP No 93 of 1927 filed by Venkanna she did not question the legality of the sale on the ground that her interest in the property was not a life interest but was a full interest
b In the order in EA 624 of 1935 passed by the Subordinate Judge Visakhapatnam the widow treated items 1 2 and 5 as part of the estate of her husband and she had also asserted therein that she had a right to enjoy the same as representative of his estate
c Life interest in the A Schedule properties was old in EP 28 of 1940 in execution of the decree in OS 14 of 1913 and the widow did not object to the sale on the ground that what was being sought to be sold was a life interest but that she was entitled to full interest
We do not think anyone or all of these grounds are sufficient to establish that the widow had treated this property as accretion to the husband s estate
As observed by the Madras High Court in Akkanna vs Venkayya ILR 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 recognised 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 en 601 joyed by her without any distinction along with properties inherited from her husband can in no way effect 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
 The fact that she wanted possession of those properties or that when in execution of his decree Venkanna bought what he alleged was her life interest in the properties she did not object to it and assert that she had full interest does not affect this question
It was to her advantage to keep quiet
She was not there by estopped from contending that she had an  absolute interest in the properties
It should more over be remembered that the question that the items 2 and 5 may have to be divided as between the reversioners and the widow in proportion to the respective shares of the husband s estate and the widow in that property was really a later development
Before the Trial Court both parties proceeded on a different footing altogether as mentioned earlier
The widow was all along doing everything to prevent her husband s reversioners getting anything from the estate
She had transferred quite a good part of it to her brother which was what enabled the reversioner to file the suit against her for acts of waste
She exhibited a very clear intention that whatever she possessed should go to her brother
There is absolutely no room on the facts of this case to hold that she exhibited the least intention to treat the income from the husband s estate as an accretion to that estate
In the result the appeal is allowed and the judgment of the High Court set aside
The High Court will dispose of the appeal afresh
The costs of this appeal will abide and be provided in the fresh decree to be passed by the High Court
CMP No 2016 of 1969 is dismissed
SC Appeal allowed


Summary:
V the father of the appellants had a brother R who died childless leaving behind him his widow N
After R s death a series of litigation started between V  N V filed a suit in 1913 against R for waste committed by her husband s estate and was appointed a receiver in that suit
In that suit he got a decree V as receiver filed 3 suits on the foot of 3 mortgages in favour of R
In execution of the decrees 3 valuable properties were purchased
These three properties are the subject matter of the present appeal
V died in 1947 and N in 1951 after executing a will bequeathing in favour of her brother S all her properties
S filed the suit out of which this appeal arises for pos session of the properties bequeathed to him under the will and for mesne profits
The Sub judge held that the said properties became accretions to the main estate of R and therefore the plaintiff was entitled only to an account of the income from these properties till the death of V
On appeal the High Court allowed the appeal in part
Before this Court four points were raised by the appellants  I The High Court committed an err or in not hearing the whole appeal but confining the hearing merely to the points on which the finding was called for from the lower court
2 a portion of the properties which was lost to the estate due to N s negligence of not paying the land revenue should be debited against her share in them
3 the cost incurred by V in the suit and in the execution proceedings should have been taken into account in allocating the properties between the appellants and the respondents and 4 that the widow N bad treated the properties as accretion to the husband s estate and therefore the appellants are entitled to the whole of the property
Allowing the appeal HELD  1 When a finding is called for on the basis of certain issues framed by the Appellate Court the appeal is not disposed of either in whole or in part
Therefore the parties cannot be barred from arguing the whole appeal after the findings are received from the Court of first instance
597 E Gopi Nath Shukul vs Sal Narain Shukul AIR 1923 Allahabad 384 referred to
2 A Hindu widow is entitled to the full beneficial enjoyment of the estate
So long as she is not guilty of wilful waste she is answerable to no one
In her lifetime the reversionary right is a mere possibility or spes successionis
It cannot be predicted who would be the nearest reversioner at the time of her death
It is there  fore impossible to contend that for any loss to the estate due to the negligence on the part of the widow he should be compensated from out of the widow s separate properties
He is entitled only to the property left on the date of the death of the widow
599 C FG 3 The income received by V and the amounts spent for the suit and the execution proceeding were taken into account at the time of settlement of accounts and it was open to V to realise the excess amount from the estate of R
It is not now open to the appellants to claim that these amounts should be separated from the amount of the decree and should be added to the amount of principal and interest accrued during the lifetime of R 600 A C 4 From the evidence it is clear that the widow did not show any intention to treat the income from the husband s estate as an accretion to that estate
601D Akkanna vs
Venkayya ILR  referred to
The appeal was sent back to High Court for hearing afresh