Pannalal vs Harna Bai

Siddiqi, J.—One Burbaji left two widows Radha Bai and Harna Bai anda son Bhikaji by Harna Bai, Plaintiff is the vendee or purchaser from Harna Bai and the defendant is the purchaser of the land from Radha Bai. Both these ladies have transferred the same property by separate registered documents and the defendant that is the purchaser from Badha Bai is in possession of the property. Harna Bai remarried after the death of her husband Burbaji. Both the lower Courts have dismissed the plaintiff''s suit on the ground that the sale by Harna Bai was not a bona fide transaction and therefore invalid to sustain a decree for possession. The trial Court laid stress on the fact that the sale was bad for want of authority to sell and for want of consideration. Radha Bai was Bhikaji''s step-mother. Bhikaji being the last holder she as step mother could succeed only under the School of Hindu law in force in the Bombay Presidency as sagothra sapinda. That is in the absence of natural mother or other heirs under certain circumstances in Bombay Presidency a Step-mother succeeds to the property of her step-son. Harna Bai''s mother is a heir here, and Radha Bai as step mother had only a possibility in her favour (as spes successions) to succeed as sagothra sapinda only long after the mother Harna Bai, in the event of absence of heirs to succeed. It is conceded by both the parties that the Hindu law in force in Bombay Presidency is applicable to this case. The execution of both the registered deeds of sale, one by Radha Bai and Anr. by Harna Bai, has to be taken as proved. Of course the allegations are that these were without adequate Consideration, legal necessity, etc, and that the deed of sale to the plaintiff was intended merely to harass the defendant. The plaintiff in the course of the argument referred to certain proceedings in the High Court during the pendency of this appeal from which it would appear that Radha Bai has died during the pendency of this appeal. The fact that she has since died is of great importance in as much as it finally closes the possibility of her ever succeeding to the estate of her deceased step-son. But beyond this, it would not be conclusive in other respects in itself at this stage for the reason that we have to see whether the judgment of the first appellate Court can be sustained and whether the death of Radha Bai would in any way affect the right of the plaintiff to a decree in existence. A number of delicate arguments have been advanced before us but really all these can be resolved to one or two basic questions. The case comes to this whether the purchaser from the limited owner, (whose right of ownership has been completed by a registered document and which is attacked on the ground of want of consideration and for being executed for the purposes of harassing the defendant) where the transaction is attacked for want of legal necessity, can claim possession on the basis of his title due to a registered sale deed from rightful limited owner against the purchaser from an unauthorised person, without proving legal necessity for the sale, In other words, the point is whether Radha Bai or purchaser from her can object to want of legal necessity, because she never succeeded to her step son, and now the possibility of her ever succeeding has ceased to exist, arid apart from the fast of his being a purchaser. Will a person in possession be considered sufficiently interested to object solely on the ground of want of necessity on the ground that he may loss possession? Of course undoubtedly even a trespasser in possession can challenge a plaintiff''s title, but when sale has been completed by a registered sale deed can the person in possession attack its validity for want of legal necessity. In our opinion, the answer to this question depends on the legal effect of sales without legal necessity whether they are void ab initio or they are merely voidable for the benefit of a particular person or persons. If sale by a limited owner without legal necessity is void ab initio of course anybody interested can object to it but in this case our opinion is that the sale would not be void ab initio, but it would be voidable at the instance of a proper pasty. Voidable sales are sales that are valid in them selves but can be avoided at the instance of certain persons who are affected thereby. Here defendant is in possession, and to that extent he is interested certainly in the enforceability of that sale, as he will be dispossessed if the sale is enforced. But we feel that an interested person in the matter of voidability to object on that ground would be one for whose benefit the transaction is held in suspense as a voidable one, and the mere fact of adverse effect such as loss of pecuniary benefit or loss of possession will not be sufficient in itself to confer the option available on cases of voidability. Radha Bai was an interested person in the sense that she might have succeeded under certain circumstances, if the purchaser is considered to be fully representing her of course he can be an interested person only on that account and not merely on account of his possession. As that status to object depends on the possibility of succession, that status would dissolve on the happening of that certain event (Radha Bai''s death) as the possibility of succession ceased for ever, and became impossible. Radha Bai might have succeeded to the property as the law in Bombay is applicable to the case if she lived after Harna Bai and looking at that matter with this point of view it cannot be said that Radha Bai cannot be considered a person uninterested in the succession to the property. In our opinion her right of objection was based morely on a possibility or a contingency that she might have out-live the other widow that contingency and possibility having ceased (i.e., the possibility of Radha Bai ever becoming a successor having been extinguished), the alienee from such a person cannot have any added or extra interest apart or in addition to the right possessed by Radha Bai. With her death nor interest ceased on account of impossibility and it cannot outlive for the benefit of the aliens.

So far as the right of the defendant is concerned to remain in possession unless dispossessed by person entitled, we are afraid that the plaintiff is such a person whose right must prevail without regard to the fact whether sale between Harna Bai and -the plaintiff was voidable or not. As the violability of that sale depended at the instance of Harna Bai or persons having interest in succession and as it was not finally and conclusively decided that the sale was ineffective at the instance of Radha Bai and the matter being sub judies the position is that the sale to the plaintiff still subsists and has not been avoided at the instance of Radha Bai or by her alliance during her life time as representing her during that period. The matter was under appeal before this Court, the interest of the alienate from Radha Bai ceased in that respect and he cannot now object and take advantage of the avoidability of the sale which is only for the benefit of the possible heir a and successors. In other words, whatever may be the position of the defendant in this respect before the death of Radha Bai and the matter not having been finally concluded in her life time, the interest to object to a sale for want of legal necessity would not outlive the person for whose benefit such a right has been reserved. The reason is that Radha Bai having died all possibility of her succession to this property ceased [completely and her alliance who might have held the property for her life time if she ever became their. The position of the defendants becomes that of mere trespassers against Harna Bai for all practical purposes, and in this suit plaintiff stands in the shoes of Harna Bai, so long as the sale is not declared ineffective or void against her. It Harna Bai had obtained such a declaration, then the trespassers might have said that the plaintiff cannot claim possession for want of title. It would be useful to bear in mind that even if the sale by Harna Bai was set aside at the instance of Anr. heir or successor or reversioner the sale would have in spite of its voidability, remained valid and enforceable for the life time of Harna Bai and Harna Bai is still alive. Voidable sales are of course valid and effective sales and possess all the force of valid transaction unless they are avoided by the person for whose benefit the right of confirmation; or right of avoiding them has been reserved. As no other person can object to Harna Bai''s possession or right during her lifetime and her sale could have been attached by reversionary etc, at all even the defendants cannot (nor could Radha Bai their vendor who had merely a possibility of succession) challenge the sale in plaintiff''s favour on the grounds on which it baa been attacked. Whatever may be the ulterior motive of the parties it is conceded that Harna Bai did by the execution of this document intend to transfer, her rights in the property and she effectively accomplished it by registering that document. If the consideration has not been paid, she may sue for such consideration or she has every right to forgive or forget it and unless it can be shown that the reasons existing are of a nature that rendered the sale void ab-initio for some valid reason such as fraud etc. However in the present state of affairs the defendant has no locus standi whatever to object on these grounds. A person might validly effect a sale with the ulterior motive of harassing a neighbor or injuring his-heir or successor or foe worrying or disappointing somebody but that need not necessarily invalidate a sale which is otherwise enforceable and effective. Defendant certainly has no business to challenge the motive or intentions of somebody who could validly convey property and did so convey it simply because he happened to make a deal indeed a highly speculative one for purchasing a property from a person who could only, transfer it unless under certain circumstances. I am afraid the lower Court has missed the point in holding that the document is fictitious one and have confused a case of a document being ab initio void and ineffective and that of a transaction which can only be set aside or rendered ineffective against a particular person on a particular ground in the exercise of an option reserved for his benefit. u/s 54, T.P. Act, property where held (sic) is transferred by registration of a document and Harna Bai had a right to transfer and, therefore, the defendant has no right to remain in possession and user of that property against the exercise of the plaintiff''s rights which must prevail. Motive -to harass or dispossess the defendant would not render a transfer of property ineffective merely on that account. The validity for want of legal necessity in case of a transfer by limited owner can only be questioned by certain definite persons who are entitled to the property ultimately such as reversioners etc. It would appear from the under mentioned authority that an alienation of this nature is only voidable and not void at the instance of certain interested parties such as reversioners etc. Bijoy Gopal v. Sm. Krishna Maheshi 34 Cal. 329, Sheikh Jabedali and Others Vs. Prasanna Kumar Nag and Another, , Rangaswami Gounden v. Nachiappa AIR 1918 P.C. 196, Sitaram Kavaji Bhosle Vs. Khandu Mairala Shinde, , Sarojendra K. Dutt Vs. Srimathi Binapani Dassi and Others, and Lilku Mahto and Others Vs. Amar Mahto, In Sitaram Kavaji Bhosle Vs. Khandu Mairala Shinde, it was held that other persons such as those merely in possession without title, will not be in a position to object to want of legal necessity. In Sarojendra K. Dutt Vs. Srimathi Binapani Dassi and Others, it was pointed out that in the case of Hindu widow it is open to the reversionary to challenge the legality of an alienation made by her but this is a right which is limited to them and is not one of which a third person can take advantage. Similarly in Lilku Mahto and Others Vs. Amar Mahto, it was pointed out in AIR 1927 227 (Privy Council) their Lordships of the Judicial Committee observed that it is settled law that an alienation by widow in exercise of her powers is not altogether void but only voidable by the reversioners. In Madhusudan Singh v. Rooke 24 I.A. 164 Anr. case referred to in Lilku Mahto and Others Vs. Amar Mahto, it was observed by their Lordships that the High Court had fallen into the error of treating the patni'' as if it absolutely camp to an end at the death of the widow, and that it was not void but only voidable and the Raja might elect to assent to it and treat it as valid. As pointed out by Heaton J. in Sitaram Ravji v. Khandu AIR 1921 Bom. 418 not only does a widow convey her life interest but she conveys something that may become a permanent interest unless it is claimed by somebody competent to claim it, and then his Lordship goes on to point that the interest so transferred continues until it is put an end to in Borne regular and legal way. We may, however, point out that for the purposes of this principle, it would make no difference whether the alienation is by the widow or mother or some other limited heir of Hindu family. So far as the effect of re-marriage is concerned, the cumulative effect of 89. 6 and 6 would be that she cannot succeed to her husband''s estate, and it does not create any disability of an absolute nature, qualified disabilities must be confined to the particular oases contemplated. Here re-marriage, therefore, does not come in the way of her Succession to her son as mother.

All the contention of the defendant is now centered on the proposition that even a trespasser can resist ejectment unless one who claims possession has a better title. Here plaintiff certainly has a batter title. Defendant in possession is only a purchaser from Radha Bai, step-mother, who never succeeded to the interest. Section 6, T.P. Act, affects such transaction. The doctrine that a trespasser can be ejected by one who has better title is a corollary to the principle that the follows possession, and is a rule that arises from certain presumption in a case. In this case there is no ground for such a presumption. We, therefore, allow this appeal, set aside the judgments of the Courts below. We make no order as to costs of this appeal.

Srinivasa Chari, J.

I am in agreement with my learned brother that this appeal should he allowed. I desire to add a few words to the judgment of my learned brother in this case. Hurbaji was the owner of the suit land. He had two wives Harna Bai and Radha Bai; by Harna Bai he had a son by name Bhikaji. After Hurbaji''s death, Bhikaji succeeded to the estate but soon after he died. Now the dispute is with regard to the property of Bhikaji the last male holder in this family. After Bhikaji died Harna Bai re-married. The surviving members of the-family were Harna Bai the mother of Bhikaji and Radha Bai his step mother.

The present suit was filed for possession of the suit land by the alliance of the suit property under a Bale executed by Harna Bai on the allegation that Harna Bai sold the suit land to the plaintiff and promised to give possession of the same but failed to do so. The plaintiff also prayed for the grant of a patta in his name in respect of the suit land. The suit was filed against Harna Bai, the vendor, who is defendant 1, and against the person in possession of the property who alleged that he held the sale-under a sale deed executed by Radha Bai the step-mother of Bhikaji. Defendant 3 is Radha Bai herself. Defendant 1 admitted the claim while defendant 2 pleaded that defendant 1 had no right to sell the property by reason of the fact that she had forfeited her right in her husband''s property on account of her re-marriage. In defence it was alleged that this property was mortgaged by Radha Bai with defendant 2 and later on it was sold to him. The trial Court dismissed the suit of the plaintiff and this judgment was upheld by the lower appellate Court. The plaintiff appealed to the High Court. This case came on for hearing before a single Judge and Ramachander Naik J. referred the case to the Division Bench as he thought an important question of law bring involved in the case. The-case came on before the Division Bench consisting of Ahmed Moinuddin Ansari, J. and my-self and we allowed the appeal on 17th Ardhibhishet 1357 Fasli and as we heard the arguments exparte the party who was absent applied under Regulation (i)[1] of 1358 Fasli to set aside the the exparte judgment, and the application was allowed, now the case has come up before us for a re-hearing. The arguments for the parties were heard in detail.

The facts of this case are practically admitted and we have to decide only the questions of law that arise in the case and on the decisions-of those questions of law would depend the decision of this case.

The plaintiff in this case is an alliance-from Harna Bai the mother of the last holder. Under the Hindu law, Harna Bai would succeed to Bhikaji as the mother but the objection that has been raised is that she re-married after the-death of her husband, and therefore by reason of the re-marriage she forfeited her right to-succeed to the estate of her deceased husband. In SO far as this point is concerned, we would be governor by the Hindu Widow Re-marriage Act, Act I[1] of 1347 Fasli. According to Section 6 of the Act the widow would forfeit her right to succeed to for husband''s estate. But Section 6 of the same Act enacts that barring the position mentioned in Section 6 her right to succeed would not be affected that is to say she would only forfeit her right to succeed to her husband''s estate and her right to succeed to the estate of any other would not be affected by her re-marriage. In this case Harna Bai is only succeeding to the estate of her son Bhikaji as mother and therefore her re-marriage would not in any way affect her becoming entitled to her son''s property.

This having been settled, the other question is as to what the position of defendant 2 would be, who has purchased the property from Radha Bai the other widow of Hurbaji. In so far as this question is concerned, it is clear that Radha Bai who is the stop-mother of Bhikaji the last male holder can succeed to him only as a sagothra sapinda in the Bombay Presidency. Even in the Bombay Presidency she would come in only after the female heirs recognised in Bombay are exhausted. Mother is a heir and the stepmother succeeding as a sagothra sapinda would come in the order of succession only long after the mother. Therefore in the presence of Harna Bai, Radha Bai has no right to inheritance. Not having the right to immediate succession what she transferred in favour of defendant wag only the interest of a presumptive reversioner which would become concrete after the death of Harna Bai provided it is proved that there are No. nearer reversioners alive. This is a spies successions which cannot be transferred as such a transfer is prohibited u/s 6(a), T.P. Act. Therefore the alienee under the sale deed executed by Radha Bai cannot acquire any right to the suit property because there was no right in existence in Radha Bai which could be transferred. There suit of this would be that while the alienee from Harna Bai namely the plaintiff could be said to have derived her title from a person competent to alienate the property the alienee from Radha Bai has absolutely no right. The only question that remains to be considered is as to whether this sale was for legal necessity as even Harna Bai if she succeeded to the estate of her son as the mother held only a limited interest. It is settled law that an alienation by one having a limited interest is not void but is only voidable and can be impeached only by the reversioners. In this connection the judgment of their Lord-ships of the Privy Council in the case reported in Madhusudan Singh v. Rooks 24 I.A. 164 is in point. Their Lordships of the Privy Council observe "Her alienation is not absolutely void but is prima facie voidable at the election of the reversionary heir"--vide Bijoy Gopal v. Krishna Maheshri 34 I.A. 87. A stranger to the reversion cannot impeach an alienation made by a widow, and an alienation made by a widow even with-out legal necessity is valid as against strangers and questions regarding legal necessity and adequacy of consideration can be canvassed only by the next reversioner who is entitled to sue. In this case it is not clear as to whether Radha Bai is the next reversioner and when that is not clear her alienee has no right to question this alienation.

The position of defendant 2 in this caser is only that of a trespasser not having any title-to the property. The plaintiff as I have shown has certainly a better title than defendant 2. A tress passer can always be ejected by one who can show a bettor title and inasmuch as there is no question of adverse possession of defendant 2 arising in this case. I agree with my learned brother that the plaintiff is entitled to succeed.