Document Fragment View

Matching Fragments

9. In Bakhtawar v. Bhagwana 5 Ind. Cas. 270 : 32 A. 176 : 7 A. L. J. 121., which was relied on by the respondents, the question for decision was whether a gift made by a Hindu widow with the consent of the immediate reversioner could be impeached by a more remove reversioner. The High Court at Allahabad held that it could. They drew a distinction between a gift and other forms of alienation and held that the earlier decision of the Pall Beach of the Allahabad High Court in Ramphal. Rai v. Tula Kuari 6 A. 116 : A. W. N. (1813) 213 : 3 Ind. Dec. (n. s.) 707., had cot been overruled by the decision of the Judicial Committee in Bajrangi Singh v. Manokarnika Bakhsh Singh 30 A. 1 : 9 Rom b, R, 1348 : 12 C. W. N. 74 : 17 M. L. J. 605 : 6 C. L. J. 765 : 5 A. U. J. L : 35 I. A. 1 : 3 M. L. T. 1 : 11 O, C. 78, (P. C.), The restrictions on alienation laid down by the Fall Bench of the Allahabad High Court in Ramphal Bai v. Tula Kuari 6 A. 116 : A. W. N. (1813) 213 : 3 Ind. Dec. (n. s.) 707., had been dissented from by their Lordships in tie cue last mentioned. It is unnecessary, however, to express an opinion upon the authority of the two oases deeded by the Allahabad High Court, for, assuming that they were rightly decided, they go no further than this that the consent of the immediate reversioner to a gift by a Hindu widow does not bar the right of a more remote reversioner to challenge the transaction. They do not afford any authority for the proposition now contended for that such a gift is void beyond the lifetime of the widow even if it remains unchallenged by any of the reversioners during her lifetime or after her death. In the liter ease of Abdulla v. Bam Lal 12 Ind. Cas. 601 : 34 A. 129 : 8 A. h. J. 1318. decided in 1911 the ruling in Bairangi Singh v. Manokarnika Bakhsh Singh 30 A. 1 : 9 Rom b, R, 1348 : 12 C. W. N. 74 : 17 M. L. J. 605 : 6 C. L. J. 765 : 5 A. U. J. L. : 35 I. A. 1 : 3 M. L. T. 1 : 11 O, C. 78, (P. C.), was again discussed by the Allahabad High Court. The view there taken was that the consent of the immediate reversioners to an alienation by a Hindu widow was merely evidence from which legal necessity could be presumed, and unless rebuttal it would bind the more remote reversioners. The consent raising such a presumption must necessarily be limited to transfers for consideration. It could not be extended to gif s where there was no room for the theory of legal necessity. This also was the view expressed by the Bombay High Court in 1909 in the case of (sic)ilu Appa Nalwade v. Babaji Nam Mang 4 Ind. Cas. 584 : 11 Bom. L. Rule 1291 : 34 B. 165,. Toe whole subject of the powers of a Hindu widow to deal with her discussed husband's property was discussed by their Lordships of the Judicial Committee in 1918 in the case of Rangasami Gounden v. Nachiappa Gounden 50 Ind Cas, 493 : 42 M. 523 : 36 M. L. J. 493 : 17 A. L. J. 536 29 C. L. J. 539: 21 Bom. L. Rule 640 : 23 C. W. N. 777 : (1919) M. W. N. 262 : 26 M. L. T. 5 : 10 L. W. 105 : 48 I. A. 72 (P. C.)., and the result of the decided cases was there summarised. "A distinction is drawn between a surrender of the widow's interest in the whole estate in favour of the nearest reversioner, where the question of necessity does not fall to be considered, and the case of an alienation of the whole or a part of the estate where the consent of such reversioners as might fairly be expected to be interested to dispute the translation will afford presumptive proof of its validity. None of there cases, however, in my opinion, form a gaide to the determination of the exact question we are now called upon to decide. It is not a question between presumptive and remote reversioners. 1919 question is, whether a gift of the whole of her husband's property made by a Hindu widow, not challenged by the reversioners during her lifetime and asquiesced in by those who would take a vested interest after her death an be challenged by any one else. In my opinion, there can be only one answer to this question. It is the reversioners and the reversioners alone who can dispute the gift, If they choose to allow the property to which they are entitled, to remain in the possession of the donee that is their affair and no one else can object. If the donee remains in possession under a slum of a right for 12 years he will acquire an indefeasible title even against the reversioner. There are certain cases, however, which have been drawn to our attention where expressions have been need to the effect that a gift by a Hindu widow is void and not marsly voidable on her death. Nabakrishna Boy v. Hem Lal Boy 2 C. L. J. 144., is an instance amongst others which need not be discussed in detail in which such expressions ocsur. In all those oases the question was one of the rights of reversioners and in most of them the point' arose in connection with limitation where it was, contended that the alienation must first be set aside before the reversioner could sue for possession. Such expressions must be regarded in connection with the context and the subject-matter of the suit. It is, in a sense, permissible, though perhaps not strictly accurate, to say that the gift is void when considering its validity as against the reversioner. He may treat it as a nullity and need not sue to have it set aside before claiming possession. The true view appears to be that it is not binding upon him and he can elect to treat it as a nullity and sue for possession at any time within 12 years of his interest becoming vested without first suing to have it set aside notwithstanding Article 91 of the Limitation Act, He may, on the other hand, elect to rect it as valid but no third parson can claim this option or set up the plea that such a gift is void merely because it may have be8n but was not so treated by the reversioner. The judgment of the Calcutta High Court in Kishori Pal v. Bhushai Bhuiya 3 Ind. Cas. 78 : 14 C. W. N. 106, is, I think, an authority for this view. In my opinion the respondents' plea that the gift was void cannot be supported.