John Dawson Mayne.

A treatise on Hindu law and usage online

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Narain, 31 Cal., 698.

(/) MuteeooUahy. Radhabinodi, S. D. of 1856, p. 596; Badhamohun v.
QirdhareelaJ, S. D. of ia57,460.

{a) Bamchandra v. Bhimrav, 1 Bom., 677 \ Douglas v. Collector of Benar en ^
6 M. I. A., 271 ; Nugender v. Kaminee, U M. I. A., 241 ; S. C, 8 Suth.(P. C),
17. See too sales of under-tenures under Act X of 1869 ; Teluck v. Mudduuy
12 Suth., 604 ; S. C, 15 B. L. R , 143 (note) ; Anund Moyee v. Mohendro, 15
Both., 264, approved ; Baijun v. Brij Bhookun, 2 I. A., 281 ; S. C, 1 Cal., 183,
or under Beagal Act VIII of 1869 ; Mohima v. Bam Kishore, 15 B. L. R., 142 ;
S. C.,23 8uth.,I74.

{h) 6 M. I. A., p. 423 ; S. C, 18 Suth., 81 (note).

(i) Sreenatk Boy v. Butlunmalla, S. D. of 1BC9, 421 ; Lalla Byjnath v.
B%8sen, 19 Suth., 80 ; Mata v. Bhagheeruthee, 2 N.-W. P., 78 ; Lalla Amamath

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[chap. XX,

She may eell.

HuBband'a es-
tate not bound
by personal
obligation of

her husband's property in order to pay the costs properly
incurred in defending it, or her own interest in it against
attack ; but not in a merely speculative suit brought to
recover property, not belonging to his estate, but to which
she alleged a title (k) . So a debt incurred for the neces-
sary repairs of the property will be a charge upon it in the
hands of the reversioners (I).

Where a case of necessity exists, the heiress is not
bound to borrow money, with the hope of paying it off
before her death. Nor is she bound to mortgage the
estate, and thereby reduce her income for life. She is at
liberty, if she thinks fit, absolutely to sell oflf a part of the
estate. And even if a mortgage would have been more
beneficial, still if the heiress and the purchaser are both
acting honestly, the transaction cannot be set aside at the
instance of the next heir (m). So where the income of
property which has been mortgaged is not sufficient to pay
the interest on the debt, the widow is justified in selling
it before the debt is due, if in the circumstances this
is a proper, though not a necessary course to take. ** A
widow, like a manager of a family, must be allowed a
reasonable latitude in the exercise of her powers, provided
she acts fairly to her expectant heirs '* (n).

§ 636. Where a person dealing with a widow wishes to
bind the husband's estate in the hands of reversioners, it
is necessary to show, not only that the dealing was one in
respect of which the widow was authorised to bind the
estate, but that she intended to do so, and was supposed
to do so. A mortgage by a widow for proper and necessary
purpose will bind the estate, though she contracted, not
as widow in her own right, but as guardian for a supposed

y.AchanKuar,l9 I. A., 1%; S. C.,U AM., 420 yLakshman Bhau v. Radhahai,
11 Bom., 609 ; Dharam Chand v. Bhawani Misrain, 24 I. A., 183 ; S. C, 25
Cal., 169 ; Ohanaham v. Badiya Lai, 24 AIL, 547.

(k) Amjad Alt v. Moniram, 12 Cal., 52 ; Debt Dayal v. BhanPertaht 31 Cal.,
433 ; Indar Kuar v. Lalta Prasad, 4 All., 632

(1) Hurry Mohun v. Goneah Ckunder, 10 Cal., 823.

(m) Phoolchundy. Bughoohuns, 9 Suth., 108 : Nabakumarv. Bhaha$undari,
3B. L.R. (A.C. J.), 376.

(n) Venkaji v. Vishnu, 18 Bom., 534.

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adopted son, whose adoption turned out to be invalid (o).
On the other hand the Courts of Bombay, Madras and
Allahabad have refused to hold reversioners liable to
satisfy bonds executed by a widow as security for loans
contracted by her, which neither specifically pledged the
estate, nor purported to be executed by her as representing
the estate, though in each case the object of the loan was
one for which the widow might legitimately have bound
her successors (p). A contrary decision appears to have
been arrived at in Calcutta. There a widow had borrowed
money ior the marriage expenses of a granddaughter. A
suit was brought after her death to recover the money
from her husband's heirs. The Court held that there was
nothing in the circumstances which constituted the debt a
charge upon the estate, but that the estate was, and there-
fore that the heirs in possession of the estate were, liable
to satisfy the debt as being incurred by the deceased
Hindu's widow for a proper pur-pose (q). Either of the two
views put forward by the Calcutta High Court is intelligi-
ble, but it is difficult to see how both can be reconciled.

§ 637. In cases which would not otherwise justify a salejconsent of heirs,
by a female, the transaction will be rendered valid by thel
consent of the heirs. Either on the ground suggested by I
the Judicial Committee, that such a consent is itself an
evidence of the propriety of the transaction (r), or because
this consent operates as a release of the claims of those
who might otherwise dispute the transaction. But it
seems to be by no means clear who are the parties whose
consent is required. The pundits in an early Supreme
Court case in Bengal (s) stated, that a gift or a sale of the

(o) Lala Parbhu Lai v. Mylne, 14 Cal., 401.

Ip) Gadgejppa v. Appaji, 3 Bom., 237 ; Hamasami v. Sellnttammal^ 4 Mad.,
876 ; Dhiraj Singh v. Manga Ham^ 19 All., 800, where the Court refused to
follow the Calcutta decision next cited.

{q) Ramcoomar v. Ichamoyi Dan, 6 Cal., 36.

(r) Ante § 624. See Madhub v. Gobind, 9 Suth., 350, where Markby, J.,
appeared to think that the signature of the next heir was only material as
evidence of the necessity for the transaction ; occ, Raj Bullubh v. Oomesh^
5 Cal., 49.

(«) Bamanund v. Bam Kissen^ 2 M. Dig., 115, 119.

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856 woman's estate [chap, xx,

whole estate by the widow would be valid, if made ** with
the consent of those who are legally entitled to succeed to
the estate after her death." In a later case, the Supreme
Court held, that where the immediate reversioners aban-
doned their rights, those who claimed through them were
equally bound (t). And in a case before the Sudder Court
in 1849 the Judges seem to have been of opinion, that
where the next heir, a daughter's son. consented to an
alienation by a widow, this would bar the right of a more
remote heir, such as an uncle's son, not claiming throagh
him (u). And so it was ruled by the High Court of
Bengal in later cases, in one of which Markbi/y J., said ** To
hold otherwise would only necessitate the adding of two or
three words to the conveyance, because the widow may at
any time surrender the property to the apparent next
taker, who will then bscome absolute owner (v). The
contrary decision, however, was arrived at in 1812. There
the husband left a widow and two sets of heirs ; the sons
of his maternal uncle, who were the next in succession,
Who rnoBt con- a^d paternal kindred in a more distant degree. It was
®®°*- held, on the opinion of the pundits, that not only was the

consent of all the maternal uncle's sons necessary, but
that even if this consent had been given, it would have
been further necessary to procure the consent of the
paternal kindred. Not as heirs in reversion, but as being
the legal guardians and advisers of the widow. Those,
however, who did consent would be unable to claim in

{t) Kaleechund v. Moorfi, cited MutetooUah v. Hadhabinode, S. D. of 1866,
604 ; 8. C, 8ub nomine^ CuUychiivd. v. Moore. Fulton, 73.

(w) Deep Chuitd v. Hurdeal, S. D. of 1849, 204. A reversioner cannot delegate
to his executor the' power to consent to an alienntion by a widow. J/ayes v.
Harendra Narain. 31 «'al., 698.

(v) Mohunt Kishen w Busgect, 14 Suth., Sid; Raj BuUuhhv. Oomtsh, 5
Cal., 44. But quaere whether such a conveyancing contrivance would l>e allowed,
if the general principle as to consent would be defeated by it. To make a
surrender effectual, all interest in and possession of the life estnto must be
abandoned by the widow. Behari Lai v. Madho Lai, 19 I. A., 80; S. C, 19
Cal., 286. A transaction by which the widow surrenders her life-inrerent to the
presumptive reversioner, and he re-conveys to her an absolute interest in a
moiety, is ineffective as regards that moiety. Bemchunder x. Samawoyt^ 22
Cal., 854. Qucere ought not the whole transaction to be treated as void, being
merely a colourable mode of dealing with her estate in a way not contemplatea
by the law. Sham Lall v. Amarendro^ 28 Cal., 460.

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opposition to the deed {w). This ruling was followed by
the Bengal Sudder Court in 1856, when they said, ** We
are of opinion from the authorities cited in the margin (x),
that in order to render a sale by a Hindu widow valid it
must be signed or attested by all the heirs of her husband
then living ; the execution or attestation by the nearest
heirs alone is insufficient *' {y). To the same effect is the
language of the High Court of Bombay, in a case where
a widow and daughter (the latter of whom in Bombay
would take an absolute estate) conveyed to the defendant.
It was held that the grant was invalid as against the
plaintiff who, on the death of the daughter before her
mother, became next heir. The Court said {z) \'' It may
be taken as well established that the consent of heirs will
render valid an alienation by a widow under circumstances
which would not otherwise justify it. But the question,
who are the heirs whose consent will thus render the
alienation indefeasible, has led to much conflict of decision.
The principle, however, upon which that question is to be
answered has, we apprehend, been laid down by the Privy
Council in the case of Raj Lukhee Dabea v. Gokool
Chunder Chowdhry (a). Their Lordships say : ** They do
not mean to impugn the authorities, etc., which lay down
that a transaction of this kind may become valid by the
consent of the husband's kindred, but the kindred in such

{w) Mohan v. Siroomunnee, 2 3. D., 32 (40). See Narada, cited Daya Bhaga,
xi., J, § 64 ; Sid Dasi v. Gur Sahai, 3 All., 362 ; Bamadhin v. Mathura Singh,
10 All., 407.

(x) Nandkomnr v . Rughoonundun, 1 S. D., 261 (349) ; Bhuwani v. SoluJehnat
♦6., 3*2*2(431); Hemrhundv. Taraniunnee, i6., 359 (481) ; Mohunv. Siroomunnee,
2 S. D., 32 (40). Only th« last touched the point.

Iw) MutecooUah v. Radhahinode, S. D. of 1866, 596.

{z) Varjivan v Ohelji, 5 Bom., 563, p. 571 ; folld. Vinayek v. Govind, 26
Bom., 1*29, p. 134.

(a) 13 M.I. A.,p 22o;S.C.,3B. L. R. (P. C.\67; S. C, 12 Suth. (P. C), 47.
in an earlier ca«e before the Privy ('ouncil where the validity of a gift i>y a widow
was disputed, it watt established that the ef>tate was governed by Dr.ya Bhaga
law, artd that the gift was absented to by all the heirs under that law, the
claim mts who disputed the gift setting up a reversionary title under Mitakshara
law which was held nol to apply. Sriinati D^hia v. Rani Kooiid, 4 M. 1. A.,
292. In a later case the Judicial Committee appeared to draw a distinction
between an ab;K>lute consent by all the reversioners, binding themselves personally,
and such a consent by some as would raise a presumption that the transaction
wasafairone, or one justified by Hindu law. Snam Sunder v. Achan Kunwar,
26 I. A., p. 189 ; S. C, 21 All., p. 80.

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868 woman's estate [chap, xx,

cases must generally be understood to be all those who are
likely to be interested in disputing the transaction. At all
events, there should be such a concurrence of the members
of the family as suffices to raise a presumption that the
transaction was a fair one, and one justified by Hindu
law." In the present case, the plaintiffs, although distant
heirs, were the heirs presumptive of the deceased husband
at the time of the sale, entitled to succeed in the event of
Vakhat dying before her mother without issue, and. as
such, clearly interested in disputing the sale. Nor can
the mere concurrence of Bai Vakhat, albeit the nearest in
succession (having regard to the state of dependence in
which all women are supposed by Hindu law to have their
being), be regarded as affording the slightest presumption
that the alienation was a justifiable one.*' Where, however,
a sufficient consent has been given, the transaction cannot
be questioned by one who subsequently comes into exist-
ence either by birth or adoption (6).

§ 638. It must be remembered that where an estate is
held by a female, no one has a vested interest in the suc-
cession. Of several persons then living, one may be the
next heir in the sense that, if he lives, he will take at her
death in preference to anyone else then in existence. But
his claim may pass away by his own death, or be defeated
by the birth or adoption of one who would be nearer than
Who mast con- himself. It certainly does seem to be common sense that
the person who turns out to be the actual reversioner
should not find his rights signed away by the consent of
one who, when he consented, had a preferable title in
expectation, but who, in the actual event, proved to have
no title at e,ll (c). Till recently the decisions of the High
Court of Bengal were in favour of this view (d). The
Allahabad High Court went even further. It not only
held that the consent of the heir presumptive to an

(b) Rajkri9to V. Kishoree ^3 Snth., 14; Vinayek v. Gomn<f, 25 Bom., 129. As to
what 18 sufficient evidence of consent, see Bhimappa v. BasatcOj 29 Bom., 400.

(c) This view is supported by the language of Lord Davey in Ba/iadMr v. Ho^flr,
29 I. A., p. 8 ; S. C, 24 All., p. 107.

(d) Ramchunder v. HcmdaSt 9 Cal., 463 ; Oopeenath v. Kallydoas^ 10 Cal. , 225 .


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alienation by a widow was not sufficient to defeat the
rights of a more remote reversioner, but that even an
assignment by the widow to the heir presumptive had no
greater effect in his favour than it would have had if he
had been a stranger. That is to say, that it did not
accelerate his reversionary interest, so as to vest the whole
estate absolutely in him at once, but only conferred upon
him the widow's life-interest, leaving the contingency still
open that he might not be the next heir at her death (e).
For instance, if the widow assigned or surrendered to the
daughter's son, he would upon this view be entitled for
her life, and if he survived her would become absolute
owner. If, however, he died before her, leaving a son, that
son would hold for her life, but not longer, because at her
death he would not be the heir of the widow's husband.
A contrary conclusion, however, was arrived at by the
High Court of Bengal upon a reference to the Full Bench,
in which the question referred was, ** whether, according
to the law current in Bengal, a transfer or conveyance by
a widow upon the ostensible ground of legal necessity,
such transfer being assented to by the person who at the
time is the next reversioner, will conclude another person,
not a party thereto, who is the actual reversioner upon
the death of the widow, from asserting his title to the
property." This question the Court answered in the
affirmative (/). They considered it as settled beyond all
question by a long current of decisions that a widow
might surrender her estate to the next reversioner, so as to
bring his estate at once into possession, and thereby defeat
all subsequent interests. They considered that it followed
as a logical consequence, that the widow and the next
reversioner might by their joint act convey an indefeasible
estate to a stranger, of their own mere will and without
any necessity. Garth, C J., yielded to this conclusion

{e) Ramphul Bai v. Tula Kuari, 6 All (P. B ), 116; Madan Mohan v. Puran
Mull, ibid, -288 ; Duli Singh v. Sundar Singh, 14 All.. 377.
(/) Nobokishore v. Harmath, 10 Cal., 1102.

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860 woman's estate [chap, xx,

with reluctance, but considered that the Court was bound
by a series of authorities, on the faith of which many
thousands of estates had been bought and sold in Bengal
during the last twenty years. If no similar current of
authorities exists in the other Presidencies this decision
would, of course, have little weight with them {g). Where
the next reversioner is herself a female, who only takes a
life estate, her consent will not bind the next reversioner
who takes an absolute estate (h). The High Court of
Bengal has also held, that the Full Bench decision above
cited only applies where the whole body of persons
constituting the next reversion assent to the alienation.
For instance, suppose there are four persons equal in
degree who would all take simultaneously on the death of
the widow. If she alienated to the four, their estate
would at once come into possession and her's would cease.
But if she alienated to two only, one half of her estate
would remain, which the Court held could not be done,
except of course for her own life. And the consent of two
to an alienation to a stranger would, apparently, be
equally ineffectual (i). In Madras the High Court con-
siders that it is settled by the decision in Behari Lai v.
Madho Lai (k) that a widow may effect a valid and com-
plete surrender of her entire estate to the then presumptive
reversioner, but they do not admit that a consent by such
will give validity to a transfer of part of the estate to a
third person, or against those who are the actual rever-
sioners at the death of the widow (Z). In a very recent
case (1904) the same Court has held that as reversioners
claiming after a life estate held by a female heir make title
direct to the last full owner and not through each other,
no such reversioner can be barred by the act or omission

(a) See per Jenkins, C. J., 26 Bom., p. ]33.

(h) Kooer Ooolab Singh v. Rao Kurhn Singh, 14 M. I. A., 176; S. C, 10
B. L. R., 1 ; Bhupal Bam v. Lachma Knar, U All., 25S ; Varjivan v. Ghelgi,
5 Bom., 663; Vinayek v. Govind, 25 Bom., p. 135; Akkineri v. Maliapudit 26
Maa., 731.

(*) Radha Ski/an v. Jcy Ram, 17 Cal., 896.

[k) 19 I. A.. 30; S. C, 19 Cal.. 2.%.

([) Marudamuthu v. Srinivosa, 21 Mad., 123.

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of any previous reversioner unless he is the heir of such
reversioner in whom the estate has vested (m).

§ 639. Consent by signature or attestation is spoken of. Evideaceof
But, of course, this is only one of many modes by which ^^^^^
it is evidenced. Presence at, or knowledge of, the transac-
tion, followed by acquiescence, express or implied, would
be just as effective, though less easily proved than consent
given in writing (n). The consent must also be, and have
been obtamed bond fide, that is to say, it must be a con-
sent to an actual transfer, and not to a colourable one
made for the purpose of defeating the rights of some other
than the consenting party (o) . It must be given with a *
full knowledge by the consenting parties of the effect of |
what they are doing, and an intelligent intention to
consent to such an effect. They must know that they are
not merely witnessing a transfer by the widow of her own
life estate, but that they are giving validity to the des-
truction of their own future expectations, and this must
be made out all the more clearly where a pardanashin
female is a party to the transaction {p). In Malabar it
has been laid down that consent of all the members of
the tarwad is necessary to a sale, but no written consent
is required. The signature of the chief anandraven, or
member of the family who is next in seniority to the
karnaven or manager, is not necessary, but if given it is
primd facie evidence of the assent of all who are interested
in the property. If they did not in fact consent they are
bound to prove their dissent (q). More recently, how-
ever, it has been decided that there is no invariable rule
requiring the consent of all the junior members, and
** that a factious or capricious dissent of a single anan-

[m) Oovinda v. Thayammal, 28 Mad., 57 ; folld. Abinash v. HnHnafh, 32
Cal., 62.

(n) Muteeoollahy. Radhnhinode, S. D. of 1856, 596; Moheak v. Ugra, 24
Suth., 127.

(o; Kolandaya Sliolagan v. Vedamuthity 19 Mad., 387.

(p) Jiwan Singh v. MisH Lai, 23 I. A., 1 ; S. C, 18 All., 146 ; Sham Suitdarv.
Achan Knnwar, 25 I. A., 183, p. 189; 8. C, 21 All., 71, p. 80; Tika Ram v.
Deputy Commisaioner of Bara-Banki, 26 I. A., 97 ; S. C, 26 Cal ; 707.

iq) Jkondi Menon v. Sranginreagatta, 1 Mad. H. C, 248; Kaipreia v.
MakkaiyU, ib., 859 ; Koyiloth v. Puthenpurayil , 3 Mad. H. C, 294.

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[chap. XX,

Odob of proof.

draven ought not to be allowed to invalidate a sale made
in pursuance of the decision of a family conclave, and
which was either absolutely necessary, or the most
reasonable and prudent arrangement for the protection of
the other family property '* (r).

§ 640. In this, as in all other cases, when a person deals
with a qualified owner, he must prove the facts, either
of purpose or consent, upon which he relies as giving
validity to the transaction. But the amount of proof may
vary considerably, according as he is the immediate
party to the transaction, or only the representative of
such party, and according to the lapse of time that has
taken place, and other similar circumstances. And if he
once proves the existence of a debt, which would justify
the transaction, its continuance will be assumed, unless
the person who contests the transaction shows sufficient
cause for assuming that it was satisfied (s). Nor is he
bound to prove that the facts were actually as they were
represented to him, provided he made bond fide and
proper enquiry, and such facts were represented to him as
would, if true, have justified the transaction (t). Nor is
he in any case bound to see to the application of the
money (w). But the mere statement in a document that
it was executed for a particular purpose is not sufficient
evidence either of the existence of the purpose or of the
adequacy of the enquiry (v). It is hardly necessary to add
that, as between the widow herself and the person dealing
with her, the transaction must be absolutely free from
fraud, and must be shown to have been entered into

(r) Kalliyani v. Narayava, 9 Mad., 266.

(«) Hunoomanpenad'a case^ 6 M. I. A., 393; Cavaly Vcncata v. Collector of
Matvlipatam, 11 M. I. A., 619; S. C, 2 Sath. (P. C), 61 ; Ltt/rAeuv. GoAooZ, 13
M. I. A., 209; 8. C, b B. L. R. (P. C), 57; S. C, 12 Suth. (P. C), 47; Rao
Kurunx. Nawab Mahomed, 14 M. I. A.. 187 ; 8. C, 10 B L. R. .P. C ), 1 ;
Lala Amarnath\. AchanKuuwar, 19 I. A., 196; 8. C. 14 All., 420; Sham
Snndar v. Achan Kunwar, 26 I. A., 183 ; 8. C, 21 All., 71.

(t) Hunocmanperaad'a case, ub sup. ; Kameswar v. Bun Bahadoor^ 8 1. A.,

8 ; 3. C, 6 Cal., 843; Act IV of 1862, § 88 (Transfer of Property).

(u) Bunoomanperaad'a cate^ ub sup. ; Bam Perahad v. Iff. Nagbungahe^,

9 Suth., 601.

(r) Sunker Lall v. Juddoobuna, 9 Suth., 286. Soe aiUe § 34 9, et seq.

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with the fullest knowledge by her of its nature and
consequences (w),

§ 641. A sale in execution of a decree against a female Effect of exeoa-
heir is merely an involuntary alienation, and will be female,
judged of by the previous principles. Where the suit is
founded upon a purely personal debt or contract of her
own, the decree can only be against her own person and
property, and a sale in execution will only convey her own
interest in the property (x). But even though the foun-
dation of the decree be a liability which might bind the
reversioners, that alone is not sufl&cient. The suit must
be so framed as to show that it is not merely a personal
demand upon the female in possession, but that it is
intended to bind the entire estate, and the interests of all
those who come after her. The reason of this is that,
although in a suit brought to recover, or charge an estate
of which a Hindu female is the proprietress, she will, as
defendant, represent and protect the estate, as well in
respect of her own as of the reversionary interest ; still,
and on this very account, the plaintiff is bound to give
notice that he is seeking so large a remedy, in order to put
those who may be ultimately affected upon their guard,
and to enable them to protect themselves (y). If, there-
fore, the suit is framed so as only to claim a personal
decree against the heiress, the plaintiff will be relieved
from the necessity of • proving anything beyond her
personal liability. But then the decree can only be
executed against the female holder personally, and against

Online LibraryJohn Dawson MayneA treatise on Hindu law and usage → online text (page 89 of 97)