Case: Mummareddi Nagi Reddi And Others Vs. Pitti Durairaja Naidu And Others

favour of her son-in-law as well who was to take jointly with the daughter. It was further held that the daughter being a minor, was not competent to consent to the gift in favour of her husband. It is true that there is no question of minority in the present case, but the decision certainly is no authority on the point which we are called upon to decide. In our opinion, the view taken by the High Court in regard to the legal effect of the document (Ex. P-6) is the correct one and the first contention raised by Mr. Rajah Aiyar should therefore fail.20. We now come to the other point which relates to the question of mesne profits. Mr. Aiyars main contention under this head is that as an alienation by the widow is not void but only voidable and the reversioner can avoid it by choosing to institute a suit, the possession of the alienee could not be held to be unlawful before that date and consequently no mesne profits should have been allowed for the period prior to the institution of the suit. The other branch of his contention is that in respect of property No. 1 of the schedule there was only a conditional decree passed against defendants 2 and 3 and so long as the condition is not fulfilled by the plaintiffs depositing the required amount in Court, the plaintiffs right to take possession does not accrue and consequently no mesne profits can be allowed to them. In support of this contention, reliance has been placed upon the decision of the Allahabad High Court (Sic. P. C.) in Banwarilal v. Mahesh,41 ALL. 63 (P. C.).21. As regards the first branch of the contention, it may be pointed out that prior to the decision of the Judicial Committee in Bijoya Gopal v. Krishna Mahishi,34 Cal. 329 (P. C.) there was some misconception regarding the legal position of an alienee of a property from a Hindu widow vis a vis the reversioner, upon the death of the widow. It was held in an earlier case by the Judicial Committee that an alienation by the widow was not void but voidable and the reversioner might elect to assent to it and treat it as valid. It did not absolutely come to an end at the death of the widow. On the strength of this decision, it was held by the Calcutta High Court in Bijoy Gopal v. Krisha Mahisha(supra) that it was necessary for a reversioner to have the alienation set aside before he could recover possession of the widows property and the period of limitation for a suit to set aside such an alienation was that prescribed by Art. 91 of the Indian Limitation Act.On appeal to the Privy Council, it was pointed out by their Lordships that this view was based on a misconception and they explained in what sense a transfer by a Hindu widow was not void but voidable. It was said that the alienation by a Hindu widow does not becomeipso facto void as soon as the widow dies; for, if that were so, it could not have been ratified by the reversioner, at all. the alienation, though not absolutely void, is prima facie voidable at the election of the reversionary heir. He may, if he thinks fit, affirm it or he may at his pleasure treat it as a nullity without the intervention of any Court and he can show his election to do the latter by commencing an action to recover possession of the property. There is in fact nothing for Court either to set aside or cancel as a condition precedent to the right of action of the reversionary heir.22. A reversioners suit for recovery of possession of the property alienated by a widow, it is well settled, is governed by Art. 141 Limitation Act, and as it is not necessary that the transfer should be set aside before any decree for possession is made, all that is necessary is that the reversioner should file a suit for possession within 12 years from the death of the widow and a decree passed in such a suit must be on the basis that the possession of the transferee was unlawful ever since the widow died. This being the position we think that it is quite proper to allow the reversioner mesne profits against the alience from the date of the widows death. There is no rule of law that no mesne profits can be allowed in a case where the alienation cannot be described as absolutely void. The decisions of the Judicial Committee in Bhagwat Dayal v. Debi Dayal,35 Ind App 48, P. C. and Satgur Prasad v. Harnarain Singh,59 Ind App. 147 P. C. may be cited as illustrations where mesne profits were allowed in transactions which were only voidable.23. We think further that there is a difference between the alienee of a widow and the transferee of joint property from a Mitakshara father. A son of a Mitakshara father is bound to set aside an alienation made by the father within the period laid down in Art. 125, Indian Limitation Act, and it is only on the alienation being set aside that he is entitled to recover possession of the property. The High Court, in our opinion, was perfectly right in holding that the decision in Banwarilal v. Mahesh,41 ALL, 63 which related to a suit instituted by a son against an alienee of the father under the Mitakshara law does not apply to the facts of the present case. It is true that as regards defendants 2 and 3 the decree is a conditional decree and the plaintiff cannot recover possession unless he pays a certain amount of money to the extent of which the widows estate has been held to be benefited, but the High Court has very properly allowed interest upon this amount to the alienee while making the latter liable for the mesne profits.24.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]If the document could be read and interpreted that way, obviously the decision should be in favour of the appellants: but, in our opinion, there seem to be difficulties and those of an insuperable character in the way of construing the document being interpreted as such. Neither in form nor in substance does the document purport to be a relinquishment of the entire widows estate in favour of the daughter alone, nor is there any indication that the interest intended to be given to the son-in-law was being received by him by way of transfer from the daughter. The document is not one executed by the widow and her daughter jointly in favour of the son-in-law containing a recital of relinquishment of the estate by the widow in favour of the daughter and transferring a portion of the same to the son in law. The daughter does not figure as an executant of the deed nor even as an attesting witness. She is the recipient of the deed along with her husband and it is impossible to spell out of the document either that she received the entire estate on renunciation by her mother or transferred or even consented to transfer a portion of it to her husband.The present case obviously does not come within the purview of the doctrine laid down in Nobokishore v. Harinath, 10 Cal. 1102   (F. B.), which presupposes an alienation of the entire property in favour of a stranger to which the immediate reversioner was a consenting party. Here it cannot be said that the entire interest was transferred to the son in law of the widow with the consent either daughter. The interest transferred was a fraction of the interest held by the widow and strictly speaking, there was no consent expressed by the daughter. She was a sort of a co-assignee with her husband. Mr. Aiyar contends that her consent was implied by her accepting the deed and joining in several subsequent transactions on the basis of the same, and once this consent is established, we can import the fiction of surrender in her favour of the entire estate, and if that fiction could be invoked it would be only a logical extension of the principle in Nobikishores case, to hold that a part transfer in favour of a stranger could also be validated on the theory of surrender. We are unable to accept this chain of reasoning as sound. As stated above, it would be most improper to extend the doctrine in Nobokishore case, which is not itself based on sound legal principles to what Mr. Aiyar calls, its logical consequence. We cannot invoke the fiction of surrender in a case like this when the renunciation, if any, was of a part of the estate; and the attempt to validate a part alienation by the widow in favour of a stranger on the basis of the doctrine of surrender, simply because the reversioner has impliedly assented to it is, in our opinion, absolutelydo not know what the contents of the document in the case actually were, nor whether the husbands brother joined in the execution of the document. Be that what it may, we cannot for the reasons already discussed accept the view that a transfer made by a widow of her entire estate in favour of the nearest reversioner and an outsider jointly would operate as a surrender of the whole estate to the immediate reversioner and a transfer of a half share in it to the stranger. This, of course, is subject to any rule of estoppel that may on proper materials be urged against the presumptive reversioner.Of the other case which is to be found reported inBala Dhondi v. Baya Bhagwant, 60 Bom. 211  , the facts are somewhat similar to those in the present case, but the actual decision does not assist the appellants. There a Hindu widow made a gift of the entire estate of her husband in favour of her daughter and her husband jointly, the daughter being the next heir at that time. The lower appellate Court held that the gift was a valid surrender, but this decision was reversed by the High Court on appeal and it was held that the transaction was not valid in law inasmuch as it was not a gift in favour of the daughter alone but in favour of her son-in-law as well who was to take jointly with the daughter. It was further held that the daughter being a minor, was not competent to consent to the gift in favour of her husband. It is true that there is no question of minority in the present case, but the decision certainly is no authority on the point which we are called upon to decide. In our opinion, the view taken by the High Court in regard to the legal effect of the document (Ex. P-6) is the correct one and the first contention raised by Mr. Rajah Aiyar should thereforereversioners suit for recovery of possession of the property alienated by a widow, it is well settled, is governed by Art. 141 Limitation Act, and as it is not necessary that the transfer should be set aside before any decree for possession is made, all that is necessary is that the reversioner should file a suit for possession within 12 years from the death of the widow and a decree passed in such a suit must be on the basis that the possession of the transferee was unlawful ever since the widow died. This being the position we think that it is quite proper to allow the reversioner mesne profits against the alience from the date of the widows death. There is no rule of law that no mesne profits can be allowed in a case where the alienation cannot be described as absolutely void. The decisions of the Judicial Committee in Bhagwat Dayal v. Debi Dayal,35 Ind App 48, P. C. and Satgur Prasad v. Harnarain Singh,59 Ind App. 147 P. C. may be cited as illustrations where mesne profits were allowed in transactions which were onlythink further that there is a difference between the alienee of a widow and the transferee of joint property from a Mitakshara father. A son of a Mitakshara father is bound to set aside an alienation made by the father within the period laid down in Art. 125, Indian Limitation Act, and it is only on the alienation being set aside that he is entitled to recover possession of the property. The High Court, in our opinion, was perfectly right in holding that the decision in Banwarilal v. Mahesh,41 ALL, 63 which related to a suit instituted by a son against an alienee of the father under the Mitakshara law does not apply to the facts of the present case. It is true that as regards defendants 2 and 3 the decree is a conditional decree and the plaintiff cannot recover possession unless he pays a certain amount of money to the extent of which the widows estate has been held to be benefited, but the High Court has very properly allowed interest upon this amount to the alienee while making the latter liable for the mesne profits.