Case: Kalishanker Das And Another Vs. Dhirendra Nath Patra And Others

the consent expressed by Mohini who figured as a co-executant of the security bond. It cannot bind the actual reversioner in any way.Mr. Chatterjee attempted to put forward an argument on the authority of certain observations in the case of Bajrangi v. Manokarnika, 35 Ind App 1 (PC) (C), that as the present appellants are the sons of Ram Narayan the admission made by their father would bind them as well. It is true that there is a passage at the end of the judgment in Manokarnikas case (C) which lends some apparent support to the contention of the learned counsel. The concluding words in the judgment stands as follows :"The appellants who claim through Matadin Singh and Bijnath Singh must be held bound by the consent of their fathers".But the true import of this passage was discussed by the Privy Council in their later pronouncement in AIR 1918 (PC) 196 at pp. 200, 201 (B), and it was held that the words referred to above should not be construed to lay down the proposition that such consent on the part of the father would operate proprio vigore and would be binding on the sons. This proposition, their Lordship observed, was opposed both to principle and authority, it being a 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 anyone who went before him. As the sons of Ram Narayan claim as heirs of Haripada and not of their father, the admissions, if any, made by the latter could not in any way bind them. This contention of the appellant must therefore fail.9. The third and the last contention raised by Mr. Chatterjee is that in any event his client is a stranger who has bona fide purchased the property for good consideration after making due enquiries and on proper legal advice and he cannot therefore be affected by any infirmity of title by reason of the absence of legal necessity.10. In our opinion the contention formulated in this form really involves a misconception of the legal position of an alience of a Hindu widows property. 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 purchase for value without notice. From very early times the Hindu widows estate has been described as qualified proprietorship with powers of alienation only when there is justifying necessity, and the restrictions on the powers of alienation are inseparable from her estate : vide--- Collector of Masulipatam v. Cavaly Vencata, 8 Moo Ind App 529 (PC) (D). For legal necessity she can convey to another an absolute title to the property vested in her. If there is no legal necessity, the transferee gets only the widows estate which is not even an indefesible life estate for it can come to an end not merely on her death but on the happening of other contingencies like re-marriage, adoption, etc. If an alience from a Hindu widow succeeds in establishing that there was legal necessity for transfer, he is completely protected and it is immaterial that the necessity was brought, about by the mismanagement of the limited owner herself. Even if there is no necessity in fact, but it is proved that there was representation of necessity and the alience after making bona fide enquiries satisfied himself as best as could that such necessity existed, then as the Privy Council pointed out in --- Hunooman Pershad v. Mt. Babooee Mundraj, 6 Moo Ind App 393 (PC) (E), that actual existence of a legal necessity is not a condition precedent to the validity of the sale. The position therefore is that if there is no necessity in fact or if the alience could not prove that he made bona fide enquiries and was satisfied about its existence, the transfer is undoubtedly not void but the transferee would get only the widows estate in the property which does not affect in any way the interest of the reversioner. In this case the alienation was by way of mortgage. The finding of both the courts below is that there was no legal necessity which justified the execution of the security bond. The mortgagee also could not prove that there was representation of legal necessity and that she satisfied herself by bona fide enquiries that such necessity did exist.11. On this point the finding recorded by the High Court is as follows :"In the present case, there is no scope for an argument that there was such representation of legal necessity or that on bona fide enquiry the alience satisfied herself that there was such a necessity, for as I have already pointed out the security bond itself states that it was in consideration of states that it was in consideration of benefits already received and with a view to induce Suhasini to forbear from proceeding against Mohini, that the bond was being executed. There is no representation in the bond that the alienation was made with a view to securing any benefit to the estate or to avert any danger to the estate or for the purpose of any other legal necessity. Whatever enquiries the appellants may have made would be of no avail to them when the alienation is not binding on the whole estate but only on the womans estate of Rashmoni".12. In our opinion the view taken by the High Court is quite proper. On this finding the security bond could operate only on the widows estate of Rashmoni and it was the interest alone which passed to the purchaser at the mortgage sale. 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.

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

Explanation:
0[ds]The contention, though somewhat plausible at first sight, seem to us to wholly without substance. In the first place the money borrowed by Mohini or deposited by him in court did not and could not benefit Haripadas estate at all. As was found, on investigation of accounts, under orders of the High Court later on, nothing at all was due to the receiver by the estate of Haripada or Mohini. On the other hand, both the brothers were entitled to get a fairly large sum of money from the receiver. The trial Judge found that there was no urgent necessity to borrow money for releasing the estate and in fact it was Mohini who acted in hot haste to execute the mortgage, his only objects being to get to properties in his own hands. It may be, that it was not possible to know the actual state of affairs with regard to the receivers accounts and consequently it might well have been thought prudent to borrow money to ward off what was considered to be a danger to the estate. This might furnish some excuse or explanation for Mohinis borrowing money on the 28th January 1911 but that could not make the act of Rashmoni in executing the security bond, seven months after that event, an act of prudent management on her part dictated either by legal necessity or consideration of benefit to the estate of her deceased son.In the first place it is to be noted that the total amount borrowed by Mohini was Rs. 30,000 out of which Rs. 20,950 only were required to be deposited in court. The recital in the security bond that the rest of the money was spent by Mohini to pay off certain debts of Rashmoni herself and also to meet the litigation and household expenses of both of them has been held by the Subordinate Judge to be false. It has been found on facts that Rashmoni had no occasion to incur any debts either for litigation expenses or for any other purpose. But the most important thing that would require consideration is the state of things actually existing at the time when the security bond was executed. Even if the release of the estate was considered to be desirable, that had been already accomplished by Mohini who borrowed money on his own responsibility. The utmost that could be said was that Rashmoni was bound to reimburse Mohini to the extent that the deposit of money of Mohini had benefited the estate of Haripada. The High Court has rightly pointed out the Rashmoni did not execute the bond to raise any money to pay off her share of the deposit and in fact no necessity for raising money for that purpose at all existed at thatour opinion the only object of executing the security bond was to protect Mohini who was threatened with legal proceedings by his creditor for having included a non-existent property in the mortgage bond. Rashmoni certainly acted at the instance of and for the benefit of Mohini and she might have been actuated by a feeling of maternal affection to save her son from a real or imaginary danger. But by no stretch of imagination could it be regarded as a prudent act on the part of a Hindu female heir which was necessary for the protection of the estate of the last male holder. In our opinion the view taken by the courts below is quite proper and as a concurrent finding of fact it should not be disturbed by thisdo no think that there could be any serious controversy about the law on this point.This alienation here was by way of mortgage and so no question of surrender could possibly arise. Mohini being the immediate reversioner who joined in the execution of the security bond must be deemed to have consented to the transaction. Such consent may raise a presumption that the transaction was for legal necessity or that the mortgagor had act therein after proper and bona fide enquiry and has satisfied himself as to the existence of suchBut this presumption is rebuttable and it is open to the actual reversioner to establish that there was in fact no legal necessity and there has been no proper and bona fide enquiry by the mortgagee. There is no doubt that both the courts below have proceeded on a correct view of law and both have come to the conclusion upon a consideration of the evidence in the case that presumption that arose by reason of the then reversioners giving consent to the transaction was rebutted by the facts transpiring inis true that there is a passage at the end of the judgment in Manokarnikas case (C) which lends some apparent support to the contention of the learnedour opinion the contention formulated in this form really involves a misconception of the legal position of an alience of a Hindu widows property. 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 purchase for value withoutThe position therefore is that if there is no necessity in fact or if the alience could not prove that he made bona fide enquiries and was satisfied about its existence, the transfer is undoubtedly not void but the transferee would get only the widows estate in the property which does not affect in any way the interest of the reversioner. In this case the alienation was by way of mortgage. The finding of both the courts below is that there was no legal necessity which justified the execution of the security bond. The mortgagee also could not prove that there was representation of legal necessity and that she satisfied herself by bona fide enquiries that such necessity didour opinion the view taken by the High Court is quite proper. On this finding the security bond could operate only on the widows estate of Rashmoni and it was the interest alone which passed to the purchaser at the mortgage sale. 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.