Allahabad High Court
Harihar Prasad vs Udai Nath Sah on 4 December, 1922
Equivalent citations: 74IND. CAS.113
JUDGMENT
1. This appeal in an insolvency matter raises a pure question of law. The name of the insolvent is Champa Prasad and he was so adjudicated on the 21st of June 1918. Champa Prassd's mother was one Ganeshi Kuer the daughter of one Durga Prasad. This gentleman died possessed of considerable property, which passed with a widow's estate to his widow, Musammat Moola Kuer. This lady died in the month of December 1919 and it is admitted that, thereupon, the property passed to Ganeshi Kuer, also with the limited estate of a Hindu widow. That lady, however, proceeded to execute at once a deed of gift conveying the whole estate to her grandson, Harihar Prasad, the son of the insolvent Champa Prasad, who joined with her in the execution of the document.
2. On the death of Musammat Ganeshi Kuer, the creditors of the insolvent claimed to take this property as that of the insolvent Champa Prasad. On objection taken by Harihar Prasad the Insolvency Court has gone into the question, but has upheld the contention of the creditors. The finding of the Court below is that this property vested in the insolvent Champa Prasad on the death of his mother, Ganeshi Kuer. It undoubtedly did so vest unless it had previously passed to Harihar Prasad under the deed of gilt of the nth of December 1019.
2. There is one complication which ought to be mentioned. One of the creditor held a mortgage affecting a portion of the property concerned, which had been executed by Moola Kuer, Ganeshi Kuer and Champa Prasad, jointly, on the 4th of February 1915, He has obtained a decree on his mortgage in a contested suit to which Harihar Prasad was a party. In that suit the Court tried, as between the mortgagee and all the defendants, the issue whether the deed of gift of December 11th, 1919, conveyed anything to Harihar Prasad beyond the lifetime of Ganeshi Kuer. In substance, the Court found that this was an alienation by a Hindu widow without legal necessity; that it conveyed nothing to the donee beyond a right of possession and enjoyment in the lifetime of the widow, and that, on the death of Ganeshi Kuer, the property had vested hi the insolvent Champa Prasad. It is suggested that this finding operates as res judicata at any rate, as between the secured creditors and the appellant Harihar Prasad. The only answer to this is a contention on the part of Harihar Prasad that he was not properly represented in the suit on the mortgage. In the view which we take of the law applicable to the case as a whole, it is not necessary for us to go into this question. We thought it advisable to refer to this previous litigation partly as a matter of record, and also because it is quite clear that in the mortgage suit the question of the valdity of the deed of gift in favour of Harihar Prasad was fought out solely on the ground of the presumption or otherwise of legal necessity for the transfer. Now, if this be the right way in which to regard this transfer, then the decision of the Trial Court is unquestionably right. To begin with, a transfer by way of gift, eannot, broadly speaking, be supported by any allegation of legal necessity. If the fact that Champa Prasad, being the nearest reversioner living at the time, expressed his consent to the alienation by joining in the same, be relied upon merely as raising a presumption in favour of legal necessity, then that presumption is in the case how before us abundantly rebutted. Champa Prasad, having been adjudicated an insolvent, could derive no benefit from his succession to the property, which would revert to the Receiver in Bankruptcy on the very day he succeeded to it. It was obviously to his advantage to agree to a transfer of that property in favour of his own son and to the detriment of his creditors. The fact of his doing so raises no presumption whatever in favour of the necessity for the alienation.
3. It has, however, been contended before us that a transfer in favour of a third person--and for the purposes of the question now before us Harihar Prasad must be treated as a third party, who had no concern whatever in the possible devolution by inheritance of the estate in hands of Ganeshi Kuer--if made by a Hindu widow with the consent of the nearest reversionary heir living at the time of the alienation, so long as it be a surrender of the entire estate in the hands of such widow, operates as a valid transfer proprio rigore, and not by reason of the reversionser's consent raising a rebuttable presumption as to legal necessity. This contention is sought to be founded on certain passages in the decision of their Lordships of the Privy Council. In the case of Rangasami Gounden v. Nachiappa Gounden 50 Ind. Cas. 498 : 42 M. 523 : 36 M.L.J. 493 : 7 A.L.J. 536 : 29 C.L.J. 539 : 21 Bom. L.R. 640 : 23 C.W.N. 777 : (1919) M.W.N. 262 : 26 M.L.T. 5 : 10 L.W. 105 : 46 I.A. 72 (P.C.), which is the latest and most authoritative pronouncement on the whole question of a Hindu widow's powers in dealing with the property of her husband to which she had succeeded with a the estate on his death. It seems to us, however, that, where their lordships definitely sum up the principles which they propose to lay down for the guidance of the Courts in India, they limit the cases in which the question of necessity does not fall to be considered to those cases in which there has been a surrender by the widow of her whole interest in the whole of the estate in favour of the nearest reversioner or reversioners at the time of the alienation. They go on to, deal with alienations in favour of persons who are not the nearest reversioner for the time being, and they seem to us to place ail such alienations in the second category, that is, of alienations which require to be supported on the ground of necessity. We may add that the present case is a particularly strong one. The older opinion, which was to some extent supported by decisions disclosed in the judgment of their lordships of the Privy Council above referred to, which treated a conveyance by a widow in favour of a third party as valid proprio rigore if made with the consent of the nearest reversioner or reversioners alive on the date of such alienations, w%s bssed upon the notion that that was a surrender of the estate into the hands of such reversioner or reversioners, instantly followed by a conveyance to a third party. Such a doctrine could not be applied in the present case because, if there was any vesting of the estate for a single moment in Champa Prasad on the day on which his mother Ganeshi Kuer surrendered it by executing, the deed of gift of December 11th, 1919, in that very same instant whatever rights vested in Champa Prasad passed to the Receiver in Insolvency and there was nothing which Champa Prasad could convey to his son. We are satisfied, therefore, that the decision under appeal is correct. We dismiss, this appeal with costs.