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Vithabai v. Malhar Shankar Kulkarni
Case Summary — Opinion of Barlee, J.
Factual and Procedural Background
The disputed property originally belonged to two brothers, Ramchandra and Laxman, as joint owners. Ramchandra died first, leaving a widow named Bhagubai. Laxman died in 1902 leaving a widow Kalava who succeeded to a widow's estate; Kalava died in 1909 and thereafter Bhagubai succeeded as widow of gotraj sapinda.
Bhagubai had a step-daughter, Vithabai. In 1918 Bhagubai transferred her whole interest in the estate to Vithabai, and shortly afterwards obtained from Vithabai a document (not on record) securing a pension of Rs. 100 a year. Bhagubai's interest was a life interest. The plaintiff contended that Bhagubai drowned in 1921–1922 and that Shankar (defendant No. 12) became entitled as the nearest heir of Laxman.
There was earlier litigation (1925–1929) concerning a mortgage on part of the land (now not in dispute) between Hazarat Patil (purchaser of the equity of redemption from Shankar) and Potdar (assignee of Vithabai's rights). That suit concluded in 1929. Soon afterwards Shankar sold his right, title and interest in the rest of Laxman's estate to the present plaintiff. The plaintiff filed the present suit on April 4, 1930, naming Vithabai (in possession) as defendant No. 1 and including Shankar among the defendants.
The trial Judge made factual findings (1) that Bhagubai had not been heard of by those who would naturally have heard of her for seven years prior to the sale to the plaintiff on May 1, 1929, (2) that Laxman had been the owner of the entire property, and (3) that Shankar was owner at the date of his sale to the plaintiff. The trial decree granted possession and mesne profits to the plaintiff on the ground that Vithabai was in possession without title.
Legal Issues Presented
- Whether Bhagubai is dead or may be presumed to be dead (and if so, the effective date of that presumption).
- Whether the plaintiff acquired title from Shankar by virtue of the 1929 sale when Shankar's interest accrued at a later date — specifically, whether Section 43 of the Transfer of Property Act permits a prior transfer to operate on an interest that accrues after the transfer.
- Whether Section 6 of the Transfer of Property Act (which restricts transferability of a mere chance of succession) conflicts with or limits the operation of Section 43, and if so, how the two provisions are to be reconciled.
- Whether the trial Judge's conclusion as to the date at which Bhagubai should be presumed dead (and related consequences for title) was correct in law.
- Procedural question raised by Mr. Kane regarding whether the plaintiff's invocation of Section 43 in the appellate court was a new case not pleaded and whether respondents had opportunity to meet it.
Arguments of the Parties
Evidence and assertions by Vithabai (defendant in possession)
- Vithabai pleaded and deposed that Bhagubai had left Sankeshvar on pilgrimage and that Vithabai herself had met Bhagubai in 1929 at the villages of Kapshi and Nipani.
- Vithabai did not allege that Bhagubai had ever returned to Sankeshvar (where she had previously lived) during the seven years prior to the sale.
- Some witnesses produced by Vithabai claimed to have seen Bhagubai during the seven years following 1922; these witnesses' evidence was challenged by the trial Judge and the appellate court as false.
Evidence and contentions relied on by the plaintiff
- The plaintiff called numerous village witnesses who testified that Bhagubai had not been heard of in Sankeshvar for seven years prior to the sale to the plaintiff (May 1, 1929).
- The plaintiff relied on factual findings by the trial Judge that Bhagubai had not been seen or heard of in Sankeshvar and that evidence of drowning was unconvincing (only one witness claimed to identify the body and that was contradicted).
- The plaintiff's counsel relied on Section 43 of the Transfer of Property Act, arguing that defendant No.1's title was extinguished at the date of the suit, passed to defendant No.12 (Shankar), and the 1929 sale therefore operated on Shankar's title and conveyed it to the plaintiff.
Opposing legal argument (Mr. Kane and Dr. Ambedkar)
- They relied on Section 6 of the Transfer of Property Act, contending that a mere chance of succession (spes successionis) is not transferable.
- They argued that in 1929 it must be presumed (following Section 107 of the Indian Evidence Act) that Bhagubai was alive, so Shankar in 1929 only had a spes successionis which could not be transferred as property.
- They further contended that the illustration in Section 43 (in the plaintiff's favour) is inconsistent with Section 6 and thus should not be treated as valid law.
Procedural objection by Mr. Kane
- Mr. Kane complained that Section 43 was not pleaded by the plaintiff in the lower Court and that his clients had no opportunity to meet a case based on that section.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Lal Chand Marwari v. Eamrup Gir (Privy Council) | When a person has not been heard of for more than seven years, there is no presumption that death occurred at the end of the first seven years or at any particular date. | The court applied this principle to hold that the presumption is that Bhagubai was dead at the date of the suit (not necessarily at the date of the 1929 sale); this altered the legal effect of events between sale and suit. |
| Jeshankar v. Bai Divali | Supports the rule that no fixed date of death is presumed merely because a person has not been heard of for seven years. | The court cited it alongside Lal Chand Marwari to confirm that no specific date of death is presumed and therefore treated Bhagubai as presumed dead at the date of the suit. |
| Sri Jagannanda Raju v. Sri Rajah Prasada Rao | Involves attempt by a reversioner to obtain specific performance (used as comparative authority). | The court noted this case is not parallel to the present facts and did not rely on it for its principal ruling. |
| Pilu v. Babaji | Involves a reversioner who relinquished rights of inheritance (used as comparative authority). | The court observed this case is not parallel and did not use it as the basis for its decision. |
| Shyam Narain v. Mangal Prasad (Allahabad High Court) | Holds that where a transferor mistakenly represents himself to be full owner (though actually only holding a spes successionis), a subsequent acquisition of the real interest by the transferor may operate to vest that interest in the earlier transferee; reconciles operation of Section 43 with Section 6. | The court found this an exact parallel, accepted its reasoning, and applied the principle to reconcile Section 43 and Section 6: where the transferee believed the vendor to be full owner (and did not know vendor merely had a spes), a later-accrued interest can pass to the prior transferee. |
Court's Reasoning and Analysis
The appellate court proceeded from the trial Judge's factual findings (noting agreement that Bhagubai had not been heard of in Sankeshvar for seven years prior to the sale) but identified an error of law in the trial Judge's approach to the date at which death should be presumed.
The court analysed the relevant statutory presumptions in the Indian Evidence Act. It explained Section 107 (presumption that when a person was alive within thirty years, the burden of proving death is on the person who affirms it) and Section 108 (proviso shifting the burden: if a person has not been heard of for seven years by those who would naturally have heard, the burden of proving he is alive shifts to the person who asserts life). Because Bhagubai had not been heard of for seven years, the court held that the burden to prove she was alive lay on Vithabai, and Vithabai failed to discharge this burden.
However, relying on Privy Council authority (Lal Chand Marwari v. Eamrup Gir and Jeshankar v. Bai Divali), the court emphasised that even where a person has not been heard of for more than seven years, there is no presumption as to the precise date of death (for example, at the end of the first seven years). Consequently, the correct legal presumption was that Bhagubai was dead at the date of the suit, not necessarily at the date of the 1929 sale as the trial Judge had held.
The court then confronted the Transfer of Property Act arguments. The plaintiff's counsel relied on Section 43 (illustration showing that where a vendor later obtains title, the earlier purchaser can enforce delivery), while Mr. Kane and Dr. Ambedkar relied on Section 6 (which provides that the chance of an heir apparent succeeding cannot be transferred). The opposing counsel argued that in 1929 it should be presumed Bhagubai was alive (Section 107) and therefore Shankar only had a mere spes successionis which was not transferable.
To resolve this conflict, the court located and relied on Shyam Narain v. Mangal Prasad (an Allahabad High Court decision) as an exact parallel. That authority held that when an erroneous representation is made by a transferor that he is full owner (although in truth he only has a spes successionis), and if the transferor later obtains the real interest, the prior transfer can operate on that subsequently acquired interest. The appellate court accepted and adopted this reasoning as reconciling Section 43 with Section 6. The court explained it would confine the operation of Section 6 to cases where the transfer expressly purports to be of a spes successionis or where the transferee knows that the transferor has no more to give.
Applying that reconciliation, the court concluded that defendant No.12's interest which accrued at the date of the suit passed to the plaintiff by virtue of the earlier sale, and therefore the plaintiff acquired the right to sue and to evict persons in possession without title.
The court also addressed the procedural complaint that Section 43 had not been pleaded in the lower court: it held that pleading a point of law is not necessary and that a person in possession without title should not be permitted to raise defenses (such as absence of consideration) that might have been available to defendant No.12 when he remained on record and did not make such a defence.
Holding and Implications
Core Holding: The appeal is dismissed on the merits except in respect of mesne profits. The court held that Bhagubai was to be presumed dead at the date of the suit (for legal effect), and that the 1929 sale by Shankar to the plaintiff operated on the interest which accrued to Shankar by the date of the suit. The court reconciled Section 43 and Section 6 of the Transfer of Property Act by adopting the reasoning in Shyam Narain v. Mangal Prasad.
Direct Consequences for the Parties:
- The plaintiff will obtain a decree for possession against persons in possession without title.
- The trial Court's decree is amended so that Vithabai will not have to pay any mesne profits (as expressly stated by the court), but the plaintiff will obtain a decree for possession with such mesne profits as may be found to be due to him after an inquiry under Order XX, rule 12 (which the court ordered).
- The appellants (the unsuccessful parties in the appeal) must pay the plaintiff's costs of the appeal.
The opinion does not purport to establish a broader statutory reinterpretation beyond the specific reconciliation adopted; the court confined its reconciliation of Sections 6 and 43 to cases where the transferee believed the transferor to be full owner and did not know the vendor only had a spes successionis.
Decree amended.
Barlee, J.:—
The property in dispute in this case belonged to two brothers Ramchandra and Laxman, and it is not now disputed that they were joint. Ramchandra died first leaving a widow Bhagubai. Laxman died in 1902 leaving a widow Kalava, who succeeded to a widow's estate. She died in 1909, and after her came Bhagubai as the widow of gotraj sapinda. Bhagubai had a step-daughter Vithabai, and in the year 1918 she transferred the whole of her interest in the estate in suit to Vithabai, and shortly afterwards it is common ground that she obtained from Vithabai some document (not on record) which secured her a pension of Rs. 100 a year. Bhagubai's interest was a life interest, and it is the case of the plaintiff that she died by drowning in the year 1921-1922 and that defendant No. 12 Shankar became entitled to the estate as the nearest heir of Laxman.
There was some litigation in connection with a mortgage in 1925. The land mortgaged is not now in dispute. The contest was between one Hazarat Patil who had purchased the equity of redemption from Shankar (defendant No. 12) and one Potdar an assignee of Vithabai's rights. In that suit it was held that Shankar's alienee could not succeed inasmuch as it was not proved that Bhagubai was dead. The suit ended in 1929, and almost immediately Shankar (defendant No. 12) sold his right, title and interest in the rest of the estate of Laxman to the present plaintiff, who filed the present suit on April 4, 1930, joining as defendants Vithabai who was in possession as defendant No. 1 and amongst others his vendor Shankar.
The learned Judge found on the evidence that (1) Bhagubai had not been heard of by persons who ought to have heard of her if she were alive for seven years prior to the sale to the plaintiff on May 1, 1929, (2) that Laxman, whose next reversioner was Shankar, had been the owner of the entire property, and (3) that Shankar was the owner at the date of the sale by him to the plaintiff. Accordingly he made a decree for the plaintiff for possession and mesne profits on the ground that Vithabai was in possession without title.
In this appeal the first question which we have to decide is whether Bhagubai is dead or may be presumed to be dead. The plaintiff called as witnesses a number of persons from the village of Sankeshvar in which the property is situated and where Bhagubai's husband used to live and she herself used to live until she disappeared. Their evidence has been attacked on the ground that they are Brahmins or that for other reasons they are interested in the plaintiff who is a Brahmin. I need not discuss these objections in detail since we find that the defendant Vithabai has not chosen to contest their evidence. She asserted in her pleadings and deposed later that Bhagubai had left Sankeshvar and gone on pilgrimage, that she had herself met her in 1929 (that is four years before she gave evidence) at the village of Kapshi, and that she had met her also at Nipani, but she never alleged at any time that Bhagubai had ever returned to Sankeshvar where she had lived before. It is in evidence that some time after Bhagubai transferred the property to Vithabai she (Vithabai) left Kapshi which was her husband's village and came to Sankeshvar. She had no connection with Kapshi except that it was her husband's village, and it is twenty-four miles from Sankeshvar. Bhagubai too had no other connection with Kapshi, and it is not understood why if she returned from pilgrimage at any time during the seven years before suit, she should have gone to Kapshi or to Nipani avoiding Sankeshvar where her husband had lived and her step-daughter was living. We think that there can be no doubt that the learned Judge was correct in his View that Vithabai's evidence and the statements made by her witnesses who said that they had seen Bhagubai during the seven years following 1922 were false. The only evidence on which we have been asked to rely is a post card which is said to have been written by the witness Bhagoji from Pandharpur about three years before the suit. He deposed that he had written it on behalf of Bhagubai; but the learned Judge has held that it is not genuine. It may be genuine but it cannot be relied on for at the time there was in progress the litigation about the mortgage in which Bhagubai's existence was a relevant fact and it may have been written to create evidence in that suit.
I need not discuss the evidence any further. We are satisfied with the conclusion at which the learned Judge arrived that Bhagubai had not been seen or heard of in Sankeshvar where she would naturally have been heard of if she had been alive. We agree with him too that the evidence that she was drowned was unconvincing. Only one witness has deposed to having identified the body, and his statement is contradicted by another witness for the plaintiff. That only one witness has come forward to say that he saw the body is itself a justification for our believing the plaintiff's evidence generally for none of the witnesses seen to have exaggerated his case.
The learned Judge however was wrong in law. Section 107 of the Indian Evidence Act lays down a rule that there is presumption that when the question is whether a man is alive or dead, and it is shown that he was alive within thirty years, the burden of proving that he is dead is on the person who affirms it. Section 108 adds a proviso that when the question is whether a man is alive or dead, and it is proved that he has not been heard of for seven years by those who would naturally have heard of him if he had been alive, the burden of proving that he is alive is shifted to the person who affirms it. The burden of proving (as Bhagubai had not been heard of by her neighbours for seven years before suit) that she was alive was on Vithabai, and she failed to satisfy that burden. But it has been held by the Privy Council in Lal Chand Marwari v. Eamrup Gir that when the Court has to determine the date of the death of a person who has not been heard of for a period of more than seven years, there is no presumption that he died at the end of the first seven years, or at any particular date. See also Jeshankar v. Bai Divali. The presumption, then, in this case is that Bhagubai was dead at the date of the suit, and not at the date of the sale as the learned Subordinate Judge has held. Mr. G.N Thakor accepts this view of the law and agrees that it is sufficient for the plaintiff's purpose.
The learned counsel relies on section 43 of the Transfer of Property Act. He contends that defendant No. 1's title was extinguished at the date of the suit, that it passed to defendant No. 12, the plaintiff's vendor, and that the sale of 1929 then operated on defendant No. 12's title and transferred it to the plaintiff, so that he acquired a right to sue at the moment when he filed his plaint. He points to the illustration to the section which reads:—A, a Hindu, who has separated from his father B, sells to C three fields, X, Y and Z, representing that A is authorized to transfer the same. Of these fields Z does not belong to A, it having been retained by B on the partition; but on B's dying A as heir obtains Z. C., not having rescinded the contract of sale, may require A to deliver Z to him. Mr. Kane and Dr. Ambedkar on the contrary rely on section 6 of the same Act and maintain that the illustration is bad law since it contradicts that section. Section 6 provides that the chance of an heir apparent succeeding to an estate cannot be transferred. In 1929, they say, it must be presumed that Bhagubai was alive since this is clearly the effect of Section 107 of the Indian Evidence Act; and they claim that all that defendant No. 12 had to transfer at that date was a spes successionis, a mere hope which is not transferable property.
We have been referred to no exact parallel to this case in the authorized series of reports. In Sri Jagannanda Raju v. Sri Rajah Prasada Rao an attempt was made to obtain specific performance of the contract by a reversioner and in Pilu v. Babaji, a reversioner had relinquished all her rights of inheritance. Neither of these cases is parallel. But we have found an exact parallel case in Shyam Narain v. Mangal Prasad. The sale there as here was not the sale of a reversionary right but of an estate which the vendee believed to be property of the vendor; and a Bench of the Allahabad High Court held that where an erroneous representation is made by a transferor that he is the full owner (though in fact he has merely a spes successionis), then if the transferor happens later to obtain the real interest, previous transfer can operate on that interest. We agree with the reasoning of this case for we think that it reconciles section 43 with section 6, and it is our duty to reconcile these sections if possible and we would confine the operation of section 6 to cases in which the transfer purports to be that of a spes successionis, or where the transferee knows that the transferor has no more to give. On this view defendant No. 12's interest which accrued at the date of suit passed to the plaintiff who can evict any person in possession without title.
Mr. Kane has complained that this was not the case of the plaintiff in the lower Court and that his clients had no chance to meet it. It appears that the plaintiff did not plead section 43, but it is not necessary for a party to plead law, and it is not clear why a person in possession without any title should be allowed to plead that there was no consideration or any other defence which might have been open to defendant No. 12 when he himself was on record and did not choose to make such defence.
The result is that this appeal must fail except that Vithabai will not have to pay any mesne profits. The decree of the lower Court is therefore amended in this respect. The plaintiff will get a decree for possession with such mesne profits as may be found to be due to him after the inquiry under Order XX, rule 12, which has been ordered. The appellants must pay the plaintiff's costs of this appeal.
Decree amended.
Y.V.D
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