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Case Number

Second Appeal No. 386 of 1962

Advocates

Y.S.N.Murty
P.K.Patnaik
M.M.Sahu
H.G.Panda
D.Mohanty

Judges

G.K Misra, J.

Acts

HINDU SUCCESSION ACT 1956

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Smart Summary

Structured Summary of the Provided Legal Opinion

Factual and Procedural Background

Plaintiffs filed a suit for partition claiming shares in properties that originally belonged to Gorachand. On his death his widow, Lata, inherited the properties as a limited owner. On 8 May 1946 Lata executed a registered deed of gift in favour of defendant No. 2 in respect of schedule B/1 and B/2 properties and delivered possession. Plaintiffs earlier filed Original Suit No. 138 of 1946–1947 in the Court of the Munsif of Baripada challenging that alienation and obtained a declaration that the gift was not binding on their reversionary right beyond the lifetime of the widow.

Defendant 2 retransferred schedule B/1 to Lata by a registered document (Ext. B) dated 13 February 1957 styled “DANA PRATYAHARA PATRA”. On 19 October 1957 Lata transferred the same property by a registered sale deed (Ex. A) in favour of defendants 3 to 5. Lata died on 11 February 1958 and thereafter the present partition suit was filed. The parties do not dispute that schedules B/2 to B/4 are liable to partition and the Courts below decreed the suit for partition in respect of the entire properties.

The stated defence (as recorded in the opinion) is that Lata acquired full ownership after the Hindu Succession Act, 1956 (referred to in the opinion as “the Act”) and that the transfer by Ex. A conveys full title in schedule B/1 property to defendants 3 to 5.

Legal Issues Presented

Whether the registered deed of gift dated 8 May 1946 executed by Lata in favour of defendant No. 2 was void ab initio and conveyed no title to defendant No. 2 (such that defendant No. 2's possession was that of a trespasser).
Whether, if the gift were void, Lata was in possession of schedule B/1 property at the commencement of the Hindu Succession Act, 1956 such that she became a full owner under Section 14(1) of the Act.
Whether Lata's sale dated 19 October 1957 (Ex. A) to defendants 3 to 5 conveyed full title to them, or whether any title acquired by them was limited by the character of the title held by the transferor(s).

Arguments of the Parties

Appellants' Arguments (as advanced by Mr. Mohanty)

The registered deed of gift dated 8 May 1946 executed by Lata in favour of defendant No. 2 is void ab initio and transfers no title to defendant No. 2; consequently, defendant No. 2's possession after the transfer was that of a trespasser.
Because the transfer was void, Lata was in possession of schedule B/1 property at the commencement of the Hindu Succession Act, 1956, and therefore held the property as a full owner (not a limited owner). Although defendant No. 2 had actual physical possession on that date, his possession was that of a trespasser and could not ripen into title by prescription; the possession of such a trespasser is, in law, the possession of Lata within the meaning of Section 14(1) of the Act.
As Lata was a full owner at the commencement of the Act, her transfer in favour of defendants 3 to 5 by registered sale deed dated 19 October 1957 (Ex. A) is valid and cannot be questioned by the plaintiffs, who are not reversioners.

Defence / Opposing Position (as recorded in the opinion)

The defence recorded in the opinion is that Lata acquired full ownership after the Hindu Succession Act, 1956 and that Ex. A (the sale deed of 19 October 1957) conveys full title in schedule B/1 to defendants 3 to 5.
The opinion also records that the trial Court found Ex. A to be without consideration; nevertheless the legal question relates to the character of title transmissible by successive transfers.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Kalishankar Das v. Dhirendranath, AIR 1954 SC 505	The interest of a Hindu widow in properties inherited by her is a "qualified proprietorship" (widow's estate) not analogous to equitable estate in English law; restrictions on alienation are inseparable from her estate. For legal necessity she can convey absolute title; absent legal necessity the transferee gets only the widow's estate.	Court relied on this principle to reject the contention that the gift was void ab initio. The Court held that the donee (defendant 2) acquired the widow's estate and was not a trespasser vis-à-vis Lata.
Sansir Patelin v. Satybati Naikani, ILR 1957 Cut 700 : (AIR 1958 Orissa 75)	Illustration and support for the view that a donee from a female heir obtains only the widow's estate; on her death the property reverts to heirs of the last male owner; donee's title is limited.	The Court cited the illustration to reinforce that a gift by a widow vests the widow's estate in the donee and that the reversioner’s rights are preserved after the widow's death.
Kotturuswami v. Veerayya, AIR 1959 SC 577	Construction of the word "possessed" in Section 14 in a broad sense to mean "the state of owning or having in one's hand or power"; actual physical possession as well as constructive possession (licensees, lessees, mortgagees) can come within "possessed".	The Court relied on this broad construction to dismiss the appellants' second contention that Lata was in possession at commencement of the Act even though defendant 2 had physical possession.
Venkayamma v. Veerayya, AIR 1957 Andh Pra 280	(As recorded in the opinion) Took a view that a trespasser in possession could be treated as the widow's possession under Section 14 (a view not accepted by the Bench decision in Orissa).	The Court noted that it did not accept the Venkayamma view; it followed the Orissa Bench decision instead and treated the Kotturuswami construction as authoritative.
Ramsewak v. Sheopujan, AIR 1959 Pat 75	(Patna Single Judge) Dissenting view from the Orissa decision regarding possession under Section 14.	The Court recorded that a Single Judge dissented but that a later Division Bench in Patna (Ram Gulam) followed the Orissa decision; the present Court considered the Orissa/Bench view as correctly representing the law.
Ram Gulam v. Palakdhari Singh, AIR 1961 Pat 60	(Patna Division Bench) Followed the Orissa decision (ILR 1957 Cut 700 / AIR 1958 Orissa 75) as laying down the correct law on possession under Section 14.	The Court observed that the Division Bench followed the Orissa view and that the present Court is bound by that Bench decision which correctly represents the law.

Court's Reasoning and Analysis

The Court proceeded in stages addressing each contention recorded in the appeal.

On the first contention (that the gift dated 8 May 1946 was void ab initio): the Court rejected the contention as based on a misconception. Relying on Kalishankar Das v. Dhirendranath, the Court explained that a Hindu widow's interest is a qualified proprietorship (a widow's estate) and not analogous to an English equitable estate. A transfer without legal necessity, in the form of a gift, is not void; the donee receives the widow's estate. Accordingly, by the gift Lata's widow's estate was extinguished vis-à-vis the donee (defendant 2) and defendant 2 was not a trespasser in relation to Lata.
On the second contention (that Lata was in possession at the commencement of the Act despite actual physical possession by defendant 2): because the Court had concluded that the gift vested the widow's estate in the donee, the question did not arise for determination. The Court further relied on Kotturuswami v. Veerayya, which construed "possessed" under Section 14 broadly to include state of owning or having in one's hand or power and to encompass actual and constructive possession; the Court did not accept the contrary view taken in Venkayamma. The Court therefore found no merit in the second contention.
On the third contention (that Lata's 19 October 1957 sale conveyed full ownership to defendants 3–5): the Court analysed the chain of title. Defendant 2 had only the widow's estate by the gift; when he retransferred by Ex. B to Lata, he could convey only the same limited title he possessed. Section 14(1) of the Act does not enlarge the right, title or interest of an alienee with regard to transfers effected prior to the commencement of the Act. The Court illustrated that if defendant 2 had transferred to a male (who in law might be entitled to full ownership), the transferee would still have acquired only the limited right that the transferor had. Thus, even though Ex. B and Ex. A were effected after the Act, Lata acquired only a limited right from defendant 2 and could not transmit a higher (full) title to defendants 3–5. The trial Court’s finding that Ex. A was without consideration was noted; but even if Ex. A had been for consideration, Lata could not transmit a higher title than she held.

The Court therefore found all the contentions advanced on appeal to be without merit.

Holding and Implications

Holding: The appeal is DISMISSED.

Implications and direct effects:

The Court held that defendant No. 2 acquired only the widow's estate by the gift dated 8 May 1946 and was not a trespasser; the gift was not void ab initio as between the widow and the donee.
Retransfer by defendant No. 2 (Ext. B) conveyed only the limited title he possessed; Lata, on retransmission to defendants 3–5 (Ex. A), could not transmit any higher title than she received from defendant No. 2. Therefore defendants 3–5 did not obtain full ownership by Ex. A.
The appeal fails and is dismissed; the opinion records the dismissal was made "in the circumstances without costs." The prior decrees below (which had decreed the suit for partition in respect of the entire properties) are not disturbed by the appellate Court's dismissal.
The opinion applies and follows existing authority on the nature of a widow's estate and the construction of "possessed" in Section 14(1); it does not purport to lay down a new principle of law beyond applying those precedents to the facts of the case.

GG/K.S.B

This summary is strictly based on the content of the provided opinion and does not add or infer facts or law beyond what the opinion expressly contains.

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Ganesh Mahanta And Others v. Sukria Bewa And Others

1. Defendants 3 to 5 are the appellants. The following geneology would show the relationship of the parties.

2. Plaintiffs filed the suit for partition claiming one third share for plaintiff 1, one-third for plaintiffs 2 and 3 and one-third for defendant 1. The disputed properties belonged to Gorachand. On his death his widow Lata inherited these properties as a limited owner. On 8th May, 1946, she executed a registered deed of gift in favour of defendant No. 2 in respect of Schs. B/1 and B/2 of the plaint and delivered possession. Plaintiffs filed original suit No. 138 of 1946-1947 in the Court of the Munsif of Baripada challenging the alienation and obtained a declaration that it was not binding on their reversionary right beyond the life time of the widow. As both the Courts below have decreed the suit for partition in respect of the entire properties and as there is no dispute amongst the parties that schedules B/2 to B/4 are liable to partition, the history of previous litigation with regard to schedules B/2 to B/4 need not be mentioned. On the 13th February 1957 defendant 2 retransferred schedule B/1 property in favour of Lata by a registered document (Ext. B) styling it as “DANA PRATYAHARA PATRA”. On 19th October 1957 Lata transferred this very property by a registered sale deed (Ed. A) in favour of defendants 3 to 5. She died on 11th February 1958 whereafter the suit for partition has been filed. The defence is that Lata acquired full ownership after the Hindu Succession Act, 1956 (hereinafter called the Act) and the transfer by Ex. A conveys full title in schedule B/1 property to defendants 3 to 5. The defence with regard to the properties in other schedules need not be mentioned in view of the undisputed position already stated.

3. Mr. Mohanti advanced the following contentions:—

(i) The registered deed of gift dated 8th May 1948 executed by Lata in favour of defendant 2 is void ab initio and transfers no title to defendant 2 whose possession after the transfer was that of a trespasser:

(ii) As the transfer was void, Lata was in possession or schedule B/1 property at the time of the commencement of the Act and held the property as a full owner and not as a limited owner. Though on that date defendant 2 was in actual physical possession, his possession was that of a trespasser without acquiring a title by prescription by being in possession for more than 12 years. The possession of such a trespasser is the possession of Lata in law within the meaning of Section 14(1) of the Act; and

(iii) As Lafa was full owner, her transfer in favour of defendants 3 to 5 by registered sale deed dated 19th October 1957(Ex. A) is valid and cannot be questioned by the plaintiffs who are not reversioners.

4. The first contention of Mr. Mohanty that the deed of gift dated 8th May 1946 executed by Lata in favour of defendant 2 is void ab initio and conveys no title in favour of defendant 2, is based on a fundamental misconception of law. As was observed by their Lordships of the Supreme Court in Kalishankar Das v. Dhirendranath, AIR 1954 SC 505, the interest of a Hindu widow in the properties inherited by her bears no analogy or resemblance to what may be described as an equitable estate in English law and which cannot be fallowed in the hands of a ‘bona fide’ purchaser for value without notice. The Hindu widow's estate has been described as qualified proprietorship with powers of alienation only when there is justifying necessity, and the restrictions on the powers of alienation are inseparable from her estate. For legal necessity she can convey to another an absolute title to the property vested in her. If there is no legal necessity, the transferee gets only the widow's estate which is not even an indefeasible life estate, for it can come to an end not merely on her death but on the happening of other contingencies like remarriage, adoption etc. If there is no necessity in fact, or if the alienee could not prove that he made bona fide enquiries and was satisfied about its existence, the transfer is undoubtedly not void, but the transferee would get only the widow's estate in the property which does not affect in any way the interest of the reversioner.

5. The aforesaid principle that a transfer without legal necessity is not void, but the transferee would get only the widow's estate in the property without affecting the interest of the reversioner is fully applicable to the case of gift by a widow. In the case of sale without legal necessity, the absence of legal necessity is to be established. In the case of a gift, there is absolutely no room for advancing the theory of legal necessity, because gift is a transfer of certain existing movable or immovable property made voluntarily and without consideration and accepted by or on behalf of the donee. When the gift itself is without consideration, the question of application of that consideration, either for legal necessity or for the benefit of the estate, does not arise. By the gift itself the widow's title vests in the donee. The nature and character of the title in the donee are the same as vested in the widow before the transfer and that is widow's estate. The transfer is not void as against the donee. It is perfectly valid as between the widow and the donee, and the widow cannot bring a suit for eviction of the donee as her title is completely extinguished by the gift. The transfer is voidable at the instance of the reversioner on the death of the widow.

6. In a Bench decision of this Court reported in Sansir Patelin v. Satybati Naikani, ILR 1957 Cut 700 : (AIR 1958 Orissa 75) Mr. Justice Mohapatra gave identical illustration in support of the aforesaid view which is as follows—

“We will give a further illustration. A female heir executes a deed of gift; the donee on the basis of the deed of gift obtains only a limited ownership of the female heir and it will enure during the lifetime of the female heir as she is not the full owner in respect of this property and the property is no longer hers as she had parted with all her right, title and interest therein on the basis of the deed of gift. On her death, the property must revert back to the heirs of the last male owner and, therefore, the conception of a reversioner can never be said to have beers abrogated.”

7. By the deed of gift Lata's widow's estate in the property was completely extinguished and the donee (defendant 2) acquired the widow's estate and was not a trespasser vis-a-vis Lata. The first contention of Mr. Mohanti is wholly devoid of force.

8. On the aforesaid conclusion, the second contention that Lata was in possession on the date of commencement of the Act even though defendant 2 was in possession, does not arise for determination. On this question the Supreme Court in Kotturuswami v. Veerayya, AIR 1959 SC 577 did not think it necessary to go to that extent. Their Lordships construed the word ‘possessed’ in Section 14 in a broad sense and in the context as meaning “the state of owning or having in one's hand or power.” The actual physical possession of the widow or her constructive possession through licensees, lessees or mortgagees were construed as coming within the word ‘possessed’ in Section 14. In ILR 1957 Cut 700 : (AIR 1958 Orissa 75) their Lordships did not accept the view in Venkayamma v. Veerayya, (S) AIR 1957 Andh Pra 280 that even if a trespasser is in possession, the widow would be said to be in possession under Section 14 of the Act. A learned Single Judge of the Patna High Court in Ramsewak v. Sheopujan, AIR 1959 Pat 75 dissented from the aforesaid Orissa view, but later a Division Bench of the same High Court in Ram Gulam v. Palakdhari Singh, AIR 1961 Pat 60 followed the Orissa decision as laying down the correct law. I am bound by the Bench decision of this Court which correctly represents the law. There is no merit in the second contention.

9. As I have discussed above defendant 2 acquired only the widow's estate by the gift in his favour. His re-transfer on 13th February 1957 by Ex. B, even if genuine and not fraudulent or collusive as has been held by the trial Court, would transmit to Lata the same title which defendant 2 himself had. In this regard the declaration made in O.S 138 of 1946-1947 that her gift in favour of defendant 2 was not binding on the reversioners after her death, does not make any difference in the legal position. Even if such a suit had not been filed, the interest of the alienee or the donee in the property would be that of a limited owner. Section 14(1) does not purport to enlarge the right, title or interest of the alienee with regard to the transfers effected prior to the commencement of the Act. By Ex. B. Late would again get the widow's estate. The position would be made clear by an illustration. Supposing defendant 2 haft effected a transfer not in favour of Lata but in favour or another male who is in law always entitled to hold the property as a full owner. Would the transferee in such a case acquire a limited right or a full ownership? The obvious answer is that he would acquire only a limited right as the donee cannot transmit any title higher than what he himself had. The position does not become in any way different merely because defendant 2 re-transferred the I property in favour of a female. Though the transfer is subsequent to the Act, Lata acquired only a limited right and did not acquire full ownership on account of the limited nature of the interest of the transferor. The trial Court has found that Ex. A was without consideration. Even if it were for consideration, Lata could not transmit a higher title than what she got by Ex. B. The third contention has no merit. All the contentions fail. The appeal fails and is dismissed, but in the circumstances without costs.

GG/K.S.B

10. Appeal dismisses.

Ganesh Mahanta And Others v. Sukria Bewa And Others

Structured Summary of the Provided Legal Opinion

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Appellants' Arguments (as advanced by Mr. Mohanty)

Defence / Opposing Position (as recorded in the opinion)

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Ganesh Mahanta And Others v. Sukria Bewa And Others

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