Bombay High Court
Ganesh Ramchandra Kulkarni vs Laxmibai Venkatesh Narayan on 6 December, 1921
Equivalent citations: (1921)24BOMLR249, 67IND. CAS.209, AIR 1922 BOMBAY 96
JUDGMENT Shah, J.
1. In this second appeal we are concerned only with Survey No 4 and the eastern half of Survey No. 96 of Kamatnur. These were Vatan lands held by Gopal. He died in 1894. In execution of a money decree obtained against Gopal during his life-time, the property was put up for sale by the Court and purchased by one Narayan in 1896. He got possession in September 1897. He was a Vatandar of the same Vatan In these execution proceedings the judgment-debtor was represented by his widow. It does not appear whether she raised any objection to the sale in the execution proceedings: but she filed Suit No. 682 of 1897 for a declaration that the sale was illegal. This suit was dismissed on the ground that it was barred by Section 244 of the Code of Civil Procedure of 1882 and that she should have raised the objection in the execution proceedings. The sale certificate does not in terms state whose right, title and interest were put up for sale but it shows that there was a sale of the lands in question. The widow died in November 1901. The present suit is filed by some of the reversioners as the heirs of Gopal. The claim is resisted in respect of these particular lands by the defendants who claim under Narayan on the ground that the sale is binding upon the reversioners and that they have acquired a title by adverse possession for over twelve years from the time they got possession in 1897.
2. The trial Court held that the cause of action accrued to the reversioners on the death of the widow in 1901 and that as the claim was made within twelve years from that time the suit was not time-barred. It further held that as the land was Vatan property the sale was inoperative as it was not liable to be Bold after the death of the last male holder. Accordingly the plaintiffs' claim in respect of the lands was decreed.
3. The lower appellate Court has dismissed the plaintiffs' suit on the ground that the question whether the sale was invalid was res judicata in virtue of the decision in Suit No. 687 of 1897 filed by Kashibai.
4. In the appeal before us it is urged that the sale is not binding upon the reversionary heirs of Gopal and that the question is not res judicata.
5. As regards the plea of res judicata, the lower appellate Court apparently had only the decree in the suit and not the judgment. A certified copy of the judgment has been put in here as it was not possible to deal with this point satisfactorily without referring to the judgment. The lower appellate Court should have insisted upon having the judgment before deciding the point. It appears from the judgment that the suit was dismissed on the ground that it related to a question which should have been raised in execution proceedings and that it was barred by Section 244 of the Code then in force. There was no adjudication on the merits of the question. It does not appear that in the execution proceedings the widow had raised any objection to the sale. Thus there was no adjudication as between the widow and the purchaser which could affect the reversioners. The plea of res judicata must, therefore, fail.
6. As regards the question as to the validity of the sale, it seems to us that it was valid and binding upon the reversioners. The auction-purchaser is a Vatandar of the same Vatan; and an alienation of these Vatan lands by Gopal during his life-time in favour of the purchaser would not have been invalid under Section 5 of the Bombay Hereditary Offices Act. But Gopal did not effect any alienation during his life-time. The widow inherited her husband's property including these Vatan lands. She would be able to alienate her husband's immoveable property for legal necessity: and though there would be a special restriction on her powers in virtue of Section 5 of the Bombay Hereditary Offices Act, she might be able to deal with the Vatan property as a Hindu widow for legal necessity provided the alienee was a Vatandar of the same Vatan. That being her position, it is clear that at the Court sale the auction-purchaser could get only such right as she could have conveyed by a private sale to him. At the date of the sale Gopal was dead: and though the sale-deed refers to the lands it seems to me that at the date of the sale the purchaser could get only the right, title and interest of the widow. In the present case the sale was in execution of a money decree against Gopal. The widow would be bound to pay the decretal debt of her deceased husband: and unless it were proved that she had other moveable estate of her husband from which the debt could have been defrayed the sale would be for a legal necessity and as such it would be binding upon the reversioners. We have the fact that she allowed the Vatan property to be sold in execution of the decree, which she was bound to satisfy. An alienation by her for that purpose would be binding upon the reversioners: and I do not see any reason why the Court sale should not convey such title as a sale by her for the purpose could have conveyed. On the whole, therefore, I am of opinion that the sale was good not only during her life-time, but also against the reversioners.
7. The decree of the lower appellate Court as regards these lands is right and must be confirmed with costs. The appeal is dismissed.
Norman Macleod, C.J.
8. I agree.