Patna High Court
Rup Raut And Anr. vs Basudeo Raut And Anr. on 18 January, 1962
Equivalent citations: AIR1962PAT436, AIR 1962 PATNA 436, 1962 BLJR 540 ILR 41 PAT 960, ILR 41 PAT 960
JUDGMENT Mahapatra, J.
1. This appeal is by defendants 1 and 2 and arises out of a suit brought by a minor plaintiff, through his sister's husband as guardian, for a declaration that the sale deed executed by the plaintiff's mother, defendant No. 7, on the 25th of February, 1950, in favour of defendant No. 2 for Rs. 50/- in respect of one katha of land and a mortgage deed executed by her the same day in favour of defendant No. 1 in respect of 2 bighas 10 kathas 14 dhurs of land for Rs. 1951/-, were for no legal necessity, and were invalid and not binding against the plaintiff.
In the same suit, the plaintiff also challenged another mortgage, executed on the 1st of March, 1950, by defendant No. 7 in favour of Defendants 4 and 5 who were respectively son and son-in-law of defendant No. 3, and a handnote, executed by her on the 29th of August, 1950, in favour of defendant No. 6. On the basis of the handnote a money decree was obtained, in execution of which, some properties belonging to the plaintiff were purchased by defendant No. 6. The plaintiff claimed recovery of possession of all the lands transferred to different defendants by sale, mortgage or execution of decree. He also prayed for mesne profits of those lands.
2. No written statement was filed on behalf of defendants 3 and 5. The pleader guardian of minor defendant No. 4 filed a written statement and contested the suit. Defendant No. 6 raised a contest by a written statement and evidence during trial. The main contest, however, was on behall of defendants 1 and 2, who were father and son. They challenge in their written statement all the averments in the plaint. Plaintiffs case was that his father had predeceased his grandfather who died in 1946. One year thereafter, plaintiff's mother remarried one Babulal in Sagai form and left the minor plaintiff in charge and guardianship of his sister's husband. By remarriage, she forfeited her interest in the family property and also the guardianship of the minor. She was thus incompetent to dispose of the family properties which had come to the plaintiff, being the sole surviving coparcener, on the death of his grandfather. The family was also not in need of any money for which either sale or mortgage or loan was necessary. The contesting defendants 1 and 2 repudiated the remarriage of defendant No. 7 and wanted to establish the necessities, for which, the loan on mortgage was secured by the plaintiff's mother and an item of property was sold by her. The plea of defendant No. 6 or defendant No. 5 need not be stated here as they have remained contented with the decree passed against them by the trial Court.
3. The learned Additional Subordinate Judge of Chapra, who tried the suit, found that the plaintiff's mother was not remarried, as alleged in the plaint but, as the transactions entered into by her were not for legal necessity, he decreed the plaintiff's suit, on contest against defendants 1, 2 and 6 and ex parte against the remaining defendants 3, 4 and 5. Against that, defendants 1 and 2 have come up in appeal.
4. Learned Counsel for the appellants contended that the suit by the plaintiff through his sister's husband as next friend and guardian was not maintainable. His legal and natural guardian was his mother. As the Court below found that she had not remarried, her guardianship of the plaintiff could not be assailed. Even, if her remarriage was established, it was argued, she would still, in spite of that, continue to be the natural guardian of the minor plaintiff. Anyone else to be competent, to act as next friend and guardian in a suit by the plaintiff, should have got himself appointed under the Guardians and Wards Act.
He referred to Section 3 of the Hindu Widows' Remarriage Act, 1856, where it is provided:
"On the re-marriage of a Hindu widow ......the father or paternal grandfather or the mother or paternal grandmother, of the deceased husband, or any male relative of the deceased husband, may petition the highest Court, having original jurisdiction in civil cases in the place where the deceased husband was domiciled at the time of his death, for the appointment of some proper person to be guardian of the said children, and thereupon it shall be lawful for the said Court, if it shall think fit, to appoint such guardian, who, when appointed, shall be entitled to have the care and custody of the said children, or of any of them during their minority, in the place of their mother;
"Provided that, when the said children have no property of their own sufficient for their support and proper education whilst minors, no such appointment shall be made otherwise than with the consent of the mother unless the proposed guardian shall have given security for the support and proper education of the children whilst minors."
By this provision, the widow mother of a minor does not cease to be the legal guardian of her son by her re-marriage, but she can be replaced by a guardian appointed by Court as provided under that section. In the present case, it was urged, no such step was taken, and, as such, defendant No. 7 continued in law to be the legal guardian of the plaintiff. This argument is self-destructive. The mother could not bring the present suit to challenge the alienations made by her on behalf of her minor son. Section 3 of Act XV of 1856 (the Hindu Widows' Re-marriage Act), provides for the appointment of a guardian in place of the re-married mother of a minor in respect of the person of the minor. It does not provide for guardianship relating to the property of the minor. No doubt, if a person wants to deal with the property of a minor and if he is not his legal guardian, he has to take recourse to the Guardians and Wards Act and get himself appointed as a guardian. But, to institute a suit as next friend of a minor plaintiff, there is no necessity of getting an appointment as guardian by the Court under the Guardians and Wards Act. Order 32 of the Code of Civil Procedure provides for suits by or against the minors and lays down that every suit by a minor shall be instituted in his name by a person, who, in such suit, shall be called the next friend of the minor. Rule 4 of that order prescribes that any person who is of sound mind and has attained majority may act as next friend of a minor or as his guardian for the suit; provided that the interest of such person is not adverse to that of the minor and that he is not, in the case of a next friend, a defendant, or, in the case of a guardian for the suit, a plaintiff. Sub-clause (2) of that rule lays down that where a minor has a guardian appointed or declared by competent authority, no person other than such guardian shall act as the next friend of the minor or be appointed his guardian for the suit, unless the Court considers, for reasons to be recorded, that it is for the minor's welfare that another person be permitted to act or be appointed, as the case may be.
It is thus clear that for the institution of a suit in the name of a minor, it is not necessary for a person to be appointed under the Guardians and Wards Act, before he can act as next friend of the minor plaintiff. The only safeguard provided under Order 32 of the Code of Civil Procedure is that his interest will not be adverse to that of the minor and he would be a defendant in such a suit. The objection of the appellants against the plaintiff's sister's husband acting as the next friend of the minor plaintiff in the present suit cannot succeed.
5. The finding of the trial Court that there was no legal necessity for either the sale or the mortgage was contested. The sale deed and the deed of usufructuary mortgage of the 25th February, 1950, by the plaintiff's mother Rajeshri in favour of defendants 2 and 1, respectively were marked as Exhibits A and B during the trial. Mt. Rajeshri acted for herself and as guardian of her minor son in both the documents. The consideration of the sale was Rs. 50/-, and the purpose of the transaction was stated in the document to be maintenance of the minor and household expenses. The usufructuary mortgage was for Rs. 1951/- in respect of 2 bighas 10 kathas 14 dhurs of land. The necessities mentioned in the document were the payment of debts due to the mortgagee, which the executant had taken from him for the Sradh ceremony of the plaintiff's grandfather, marriage of the plaintiff's sister and the maintenance of the family. Another necessity was the construction of the house and the plaintiff's maintenance. (His Lordship after examining the evidence, proceeded).
Neither of the two transactions, sale and mortgage, can be said to have been entered for any legal necessity. The trial Court has given good reasons in support of its finding, and it is not necessary to allude to them here.
6. For the appellants, it was next urged that the plaintiff's mother had an interest in the family properties, as her deceased husband had at the time of his death, in 1943. She could alienate that interest, without any impunity, at least for the lifetime, even though, the alienations were not for legal necessity. At the time of the death of her husband, the plaintiff and his grandfather were there besides the defendant No. 7. The interest of the deceased husband in the coparcenary property devolved on defendant No. 7, and the interest that devolved upon the widow was of the character of a Hindu Woman's estate, according to Sub-section (3) of Section 3 of the Hindu Women's Rights to Property Act, 1937 (Act XVIII of 1937). She could, therefore, alienate her own life estate, in the property, without any legal necessity, and that would be binding till her death. If she wanted to convey her woman's estate absolutely, it was necessary that there should have been legal necessity for that alienation. This position of law is well founded. The moment, an interest in a Hindu joint family property that devolves on a Hindu widow on the death of her husband, assumes the character of Hindu Woman's estate, it clothes the widow with the limited power of alienation, although, any such power of disposal of an undivided interest in coparcenary property was not available to her deceased husband, nor is available to other surviving coparceners in the family. That sounds no doubt some sort of anomaly but, keeping in view the purpose for which Act XVIII of 1937 was made, the widow was given facility to solve her financial difficulty, independent of other members of the family; in case, the circumstances necessitated that, she was given the right to partition the share of her deceased husband or/and alienate her life estate in the same. In this connection, reference may be made to the case of Pem Mahton v. Bandhu Mahto, AIR 1958 Pat 20.
7. Another line of argument which was stressed for the appellants was that defendant No. 7 acquired absolute rights over her Hindu Woman's estate, relating to the undivided interest in the coparcenary property of her deceased husband, within the meaning of Section 14 of the Hindu Succession Act, 1956. This cannot apply to the sale, under Exhibit A, because she had passed out her interest in favour of the transferee, who had come in possession of the property in 1950, long before the Act came into force. A Hindu female mortgagor, no doubt, will be deemed to be in possession of the mortgaged property within the meaning of Section 14 of Act XXX of 1956 (Hindu Succession Act) as the words "any property possessed" in that section are to be taken in wide and liberal sense. If a Hindu Widow sought a partition of her deceased husband's interest in the coparcenary property and was in possession of the same, when the new Act came into force, she, undoubtedly, would acquire absolute ownership in that. Whether, without such partition, she would acquire full ownership over the undivided interest of her deceased husband, was the question that was canvassed at great length during the argument before us. It was contended for the appellants that the properties covered by the mortgage Deed (Ext. B) would be deemed to have come under the absolute rights and ownership of defendant No. 7 to the extent of the share that belonged to her deceased husband at the time of his death, in the joint family, with effect from the date on which the Hindu Succession Act, 1956, came into force, and in that view, the mortgage cannot be challenged to that extent within the lifetime of defendant No. 7.
There is force in this contention. Under the Hindu Women's Rights to Property Act, the rights conferred on the widow, on the death of her husband, as provided under Section 3 are neither inchoate nor imperfect till she seeks a partition. The rights, devolving on her, come into existence immediately after the death of her husband. The nature of that right was described as Hindu Woman's estate. If she is in possession of a Hindu Woman's estate, in respect of that undivided interest in the coparcenary, which belonged to her deceased husband, that cannot but be a definite property. No doubt, an undivided interest in a Hindu Mitakshara coparcenary property is not definite till it is carved out; but, the interest of a particular coparcener in that property at a particular time can be predicated if his share comes for determination. Sub-section (2) of Section 3 of the Act XVIII of 1937 said that the widow shall have in the property the same interest as her husband himself had at the time of his death. In the next sub-section that interest was characterised as a Hindu Woman's estate. The dimension of that estate may, as it has been held by some High Courts, be subject to fluctuation by birth and death of other coparceners in the family before the widow actually seeks a partition of the interest that devolved upon her.
If the provisions of the Act are taken to mean that the interest devolving upon the widow, on the death of her husband, becomes defined from that moment, irrespective of the partition that she may seek at a subsequent date, while the remaining coparceners continue to constitute a joint family as before, and, on the death of the widow, the interest of her husband would go to his heirs, there would be no incompatibility with the powers of the widow, as a holder of a Hindu woman's estate, to alienate her life interest. If the widow did not seek partition before the alienation, her transferee can do the same. If the alienation is for legal necessity, there can be no question of her husband's heir succeeding to the property on her death; otherwise the alienation would end with her death and succession by the husband's heirs will follow. When a partition is sought by the widow from her husband's surviving coparceners, a disruption of the joint status of the family takes place and the coparcenary is split up into separate properties belonging to the different branches.
What the widow can get for her separate possession on partition, is, before partition, in joint possession of the widow and other members (the coparceners surviving her husband). If the interest that devolves upon the widow would have remained only as undivided interest in the coparcenary property which belonged to her husband, and if that would not have been clothed with the character of a Hindu woman's estate, the position would have been different, and Section 14 of the Hindu Succession Act would not have been attracted. A reference to Section 30 of the Act would disclose that such undivided interest of a co-parcener is deemed as property only for the purpose of that section only. Such undivided interest in joint family property would not have come within the meaning of Section 14. But, as that interest, when devolving upon the widow of the deceased, became a limited owner's estate like that of a Hindu woman or widow, it assumed the incidents of tangible property and became capable of alienation in the hands of the widow. By a legal fiction created by the Hindu Woman's Rights to Property Act, 1937, the undivided interest in the joint family property in the hands of a widow undergoes a change in character, even without and before partition. In that context, it cannot but be treated as property in joint possession of the widow and other members of the joint family and in that event, on the coming into effect of Hindu Succession Act, 1956, she (widow) would acquire absolute rights over her interest or share in that property under Section 14.
8. The Hindu Women's Rights to Property Act was repealed by the Hindu Succession Act, 1956. The position of Hindu widows and other female Hindus is beyond any doubt in regard to succession to the undivided interest of a deceased male Hindu of a Mitakshara joint family. Section 6 of the Act provides that in a contingency of that nature, the female relatives of the deceased coparcener, specified in Class I of the Schedule, will succeed to the undivided interest of the deceased in the co-parcenary property according to the Act, although, without any such female relatives, the interest of the deceased will devolve by survivorship upon the surviving members of the coparcenary. In the Explanation to Section 6, it is laid down that the interest of a Hindu Mitakshara coparcener, for the purpose of that section, shall be deemed to be the share in the property, the deceased would have got by partition on the date of his death.
By that deeming provision, the interest of the deceased coparcener, succeeded to by female relatives, including the widow, along with others, would become a defined property and acquisition of that, after the commencement of the Act, by the widow or any other female Hindu, would bestow absolute ownership and title upon such females, as spoken under Section 14 of the Act. The Legislature could not have kept the Hindu widows, who succeeded before the new legislation, to the undivided interest in the coparcenary property of their deceased husband under Section 3 Sub-clause (2) of the Hindu Women's Rights to Property Act, in a position more precarious than and inferior to that of their counterparts, upon whom, under Section 14 of the Hindu Succession Act, absolute rights in all their acquisitions were conferred. That section mentions about acquisitions both before and after the commencement of the Act, which indicates clearly the inclusion of the Hindu woman's estate that devolved upon a Hindu widow before this Act, (under the previous Act), on the death of her husband who was a member of a Mitakshara joint family. If the benefits of Section 14 are denied to such widows, in respect of the interest of the deceased husband, devolving upon them before the 17th June, 1956, an unexplainable difference in legal status between one section of Hindu widows and another, will be inevitable, and that would be plainly against one of the main purposes of the Hindu Succession Act. The enacting provisions of the Act also lead to the same conclusion.
9. Learned Counsel for the plaintiff-respondent draw our attention to a passage in my judgment in the case of Jiwanandan Singh v. Sia Ram Prasad Singh, 1961 BLJR 273 : (AIR 1961 Pat 347) where, in dealing with an argument, I observed passingly that without partition, a Hindu widow cannot be taken to possess a property and in that sense the absolute ownership, as provided in Section 14 of the Hindu Succession Act, would mot come to her benefit. This undoubtedly is in conflict with what I have held above in the present case. In that reported case, the plaintiff brought a suit for specific performance of an agreement to sell some landed property, executed by the defendant of that suit, who had been impleaded in his capacity as the karta of the joint family. Several pleas in defence were raised, such as, non-execution of the agreement, inadequate price, immorality of the transaction, absence of legal necessity, all of which were negatived either by the trial Court or by this Court. One other contention was raised on behalf of the defendant to the effect that the defendant's mother, being alive was entitled to an interest which her deceased husband namely, father of the defendant, had in the joint family, property at the time of his death. It was argued that under Section 14 of the Hindu Succession Act, 1956, she would be an absolute owner in respect of that interest, and, as such, would not be bound by the suit agreement to sell the property by the defendant. This contention was also repelled by me mainly on the ground that the defendant in that suit, who was the karta of the joint family, having executed the suit agreement, his mother, being member of the joint family was bound by the act of the karta and managing member as such act was found in that case to have been for legal necessity and adequate consideration. The mother's interest whatever it was, was covered by the act of the karta. Another reason, with reference to Section 14 of the Hindu Succession Act, was given by me in further support of my view. There I did not consider or discuss the nature of the rights of the Hindu widow under the Hindu Women's Rights to Property Act, 1937. Those observations of mine, in that case, with reference to Section 14, were more or less, obiter, as I had given my findings which disposed of the case otherwise completely. In any case, what I have said on the present occasion about the application of Section 14 of the Hindu Succession Act to a Hindu woman's estate acquired under the Hindu Women's Rights to Property Act will override those observations. For the same reason the view expressed in the case of Hemant Kumar Pande v. Somenath Pandey, AIR 1959 Pat 557 cannot be held to be correct.
10. But, in the instant case, even though defendant No. 7 possessed a Hindu woman's estate, on the death of her husband, in respect of the husband's undivided interest in the coparcenary property, and in that, she could have acquired absolute ownership and title, with effect from the 17th June, 1956, under the provisions of the Hindu Sucession Act, yet, that would be of no material assistance to the contesting defendants, the transferee and the mortgagee from her. Plaintiff asserted in his plaint that one year after the death of the plaintiff's grand-father, his mother (defendant No. 7) remarried (in 1947) one Babu Lal Kurmi of Kasdeura Bangra, and went to live with him. By such remarriage, she forfeited all her rights in the family property, and, as such, had no title to pass either by sale or by mortgage.
This remarriage was denied in the written statement of defendants 1 and 2. Defendant No. 7, however, did not file any written statement, but she and her second husband, Babu Lal, were examined as witnesses on behalf of the plaintiff as P. Ws. 9 and 8, respectively. (His Lordship discussed the evidence and proceeded.) On a consideration of the oral evidence, I am left with no doubt that defendant No. 7, Rajeshri, did remarry Babu Lal about a year after the death of her father-in-law and since them (1947) she was living with Babu Lal in his village. By that remarriage, she forfeited all her rights in the joint family property of her first husband. In that view, she could not be in a position to derive any benefit of absolute ownership about any interest in that property, on account of the provisions of the Hindu Succession Act, 1956, as long before that, her remarriage had taken place.
11. It was feebly contended that according to the custom prevailing in the community to which the plaintiff belongs, remarriage of widows in Sagai form is prevalent and such remarriage would not act as a forfeiture on the part of the widow in regard to her interest in the first husband's family property which, accrued to her, under the Hindu Women's Rights to Property Act. There is no evidence that Sagai marriage is a normal feature in the plaintiff's community. No witness has spoken about it. Secondly, even if it is conceded that such was the case, that alone would not counteract the normal forfeiture, which ensues on the remarriage of a Hindu widow, unless, it was established by evidence that the custom in that community was against such forfeiture. Section 2 of Act XV of 1856, (The Hindu Widows' Remarriage Act, 1856) says:
"All rights and interests which any widow may have in her deceased husband's property ......shall upon her remarriage cease and determine as if she had then died."
This provision is applicable to all the Hindu widows irrespective of the caste to which they belong or the special customs, if any, of such caste. Reference may be made to the cases of Vithu v. Govinda, ILR 22 Bom 321 (FB) and Mst. Anarajia v. Tengari Kahar, 1961 BLJR 622 : (AIR 1962 Pat 65). The 1856 Act was legislated to do away with the social prohibition of remarriage as prevalent in some communities. As there was no custom in any community to prohibit general forfeiture, in regard to interest in the property of the first husband's family, by the remarriage of a widow, the Legislature put the Section 2 in a general and wide form, so as to be applicable to all the re-marrying Hindu Widows. This rule of forfeiture is based upon the general principle of Hindu law. But, if, in a particular case, it is established that there is a special custom prevailing in any particular community by which, in spite of remarriage of the widow, she retains her interest in the first husband's property as before the remarriage, the Court may give effect to that, in spite of Section 2 of the Act XV of 1856. In the present case, there is no indication, far less any proof of any such custom.
12. For the reasons given above, the alienations made by the plaintiff's mother were invalid and by them, neither of the defendants 1 and 2 obtained any title. The plaintiff is entitled to the declaration asked for and to recovery of possession of the disputed properties from defendants 1 and 2, as well as to mesne profits from them from the 25th of February, 1950, till recovery of possession which will be determined in appropriate proceeding by the Court below.
13. The result is that this appeal is dismissed with costs to plaintiff respondent and the decree passed by the trial Court is confirmed, though on different grounds and reasons.
Tarkeshwar Nath, J.
14. I agree.