Medicherla Venkataratnam v. Siddani Palamma And Others

A.D.V Reddy, J.:— This appeal is by the plaintiff in O.S No. 4 of 1962 on the file of the Subordinate Judge, Amalapuram, against the judgment and decree in the said suit.

2. The suit is by a reversioner to the estate of one Medicherla Ramaiah, who died issueless and intestate in 1930 leaving behind his widow Lakshmamma, for possession of the properties belonging to the estate of the said Ramaiah on the death of Lakshmamma on 17th September, 1961 after evicting the defendants therefrom. The circumstances leading to the filing of the suit are as follows: Ramaiah was the eldest of the three brothers, i.e Ramaiah, Sooraiah and Thathaiah. The plaintiff is the only son of Sooraiah while Thathaiah had a daughter Chinta Subbamma, the 2nd defendant in the suit. Ramaiah died possessed of the plaint schedule properties, but without any issue and intestate in 1930. Thereupon Lakshmamma, his widow held the properties with limited rights. Under Exhibit A-17 dated 5th November, 1931, Lakshmamma alienated by way of gift item 1 of the plaint schedule properties (Acre 1-13 cents in extent in S. No. 232/1) in favour of the 2nd defendant i.e, her husband's brother's daughter. She had also put her brother who is the 3rd defendant in the suit in possession of item 3 of the plaint schedule Acre 0-11 cents in extent with a thatched house therein the plaintiff as the nearest reversioner filed O.S No. 181 of 1937 on the file of the District Munsif's Court, Razole to set aside these alienations contending that they were not for necessity. The Court decreed the suit only in respect of item 1, holding however that the 2nd defendant had a right to the gifted property until her lifetime and dismissed the suit with regard to item 3 as there was no alienation in favour of the 3rd defendant and it was only permissive possession. The widow Lakshmamma also alienated on 18th August, 1937, item 5 (Acre 0-58 cents in S. No. 226/4) under Exhibit A-19 in favour of Musalamma, item 6 (Acre 0-58 cents in S. No. 226/4) under Exhibit A-20 in favour of one Venkatachalam and items 2, 4, 7 and 8 (in S. No. 243/1, 223/8, 258/2 and 226/16 of the extents of Acre 2-81 cents. Acre 0-41 cents. Acre 0-10 cents, and Acre 0-18 cents respectively) under Exhibit A-21 in favour of the 1st defendant. The plaintiff thereupon filed O.S No. 205 of 1939 on the file of District Munsif's Court, Razole to set aside the alienations under Exs. A-19 and A-20 and O.S No. 206 of 1936 of the same Court to set aside the alienation under Exhibit A-21. These suits were decreed. After the judgment and decree in these suits, the land sold under Exhibits A-19, A-20 and A-21 were reconveyed to the widow Lakshmamma by way of sales, under Exhibits A-28, A-27 and A-26 respectively on 14th October, 1940. Later, on 25th March, 1957 Lakshmamma executed a settlement deed in favour of Siddani Varadaraju who is the husband of the 1st defendant who is her sister's daughter, settling these properties except item I on him. On 19th March, 1957, the said Siddani Varadaraju executed a settlement deed settling his properties in the name of his wife the 1st defendant under Exhibit A-30. The 2nd defendant who was gifted item I of the plaint schedule under Exhibit A-17 by Lakshmamma, sold Acre 0-63 cents out of it under a registered sale deed dated 14th February, 1961 in favour of the 1st defendant. The widow Lakshmamma died on 17th September, 1961. Thereafter the plaintiff had come forward with the suit contending that Lakshmamma, the widow of his paternal uncle Ramaiah, had only a widow's estate in the properties left by him, that all the alienations made by her earlier were held to be not binding on the plaintiff beyond her life time as per the decrees in O.S No. 181, 205 and 106 of 1937, that the Hindu Succession Act (XXX of 1956) is inapplicable to Lakshmamma, that rights did not get enlarged under the Act, that the subsequent alienations by her in favour of Varadaraju are therefore invalid beyond her life time and that the plaintiff as a reversoner to the estate of Ramaiah has to get possession of the same and hence this suit for possession and mesne profits.

3. The 1st defendant in her written statement contended that Lakshmamma did not part with any of the properties, that even the property under the gift deed Exhibit A-17 was not delivered to the donee, that she did not put the 3rd defendant in possession of the thatched shed in item 3, that the sales under Exhibits A-19, A 20 and A-21 were all nominal as she continued to be in possession and enjoyment of the same, and they were also reconveyed to her subsequently. It was therefore, averred that on the date the Hindu Succession Act, 1956, came into force she was in possession of these properties and under section 14 of the said Act, her rights became enlarged and the settlement deed executed by her Exhibit A-29 is therefore valid even beyond her life. It is further contended that even during Lakshmamma's time, she and the plaintiff induced the 1st defendant and her husband to adopt the plaintiff's son holding out a promise of settlement of the properties in favour of the 1st defendant's husband Varadaraju with a view to ultimately benefit the plaintiffs son and the adoption was accordingly made on 4th March, 1957, and thereafter the settlement deed Exhibit A-29 was executed, that subsequently differences arose between the parties due to the disobedience of the adopted son and the 1st defendant's husband settled all his properties under Exhibit A-30 on the 1st defendant for her lifetime with the vested remainder to devolve on the adopted son and foster daughter (2nd defendant) in equal moieties and due to that grudge, the plaintiff had filed the suit and that he is estopped from questioning the truth and validity of the settlement deed Exhibit A-29 on account of his conduct.

4. Defendants 2 and 3 have remained ex parte. 4th defendant is a tenant under the 1st defendant and he adopted the statement filed by the 1st defendant, in addition to pleading that the plaint schedule property did not belong to late Ramaiah.

5. On appropriate issues being framed, the trial Court found that the plaint schedule properties are the properties of late Medicherla Ramaiah, that he died issueless and intestate leaving behind his widow Lakshmamma, that the plaintiff is the nearest reversioner being the brother's son of Ramaiah, that with regard to item I of the plaint schedule property gifted to the 2nd defendant under Exhibit A-17, the widow Lakshmamma did not have her rights enlarged under section 14 of the Indian Succession Act as she was not in possession of the property on the date the Hindu Succession Act came into force, and therefore the gift is not valid beyond the lifetime of Lakshmamma, that the alienation made by the 2nd defendant of Acre-0-63 cents under Exhibit A-31 out of the property gifted to her, in favour of the 1st defendant is also invalid and that the plaintiff as the nearest reversioner is entitled to get possession of these properties on the death of Lakshmamma. With regard to item 3 of the plaint schedule property in the possession of the 3rd defendant the Court held that as it was not an alienation and as the 3rd defendant was only in permissive possession on her behalf, she should be deemed to be in possession of it on the date the Act came into force and therefore her rights got enlarged under section 14 of the Act, and she became an absolute owner. With regard to the rest of the items alienated under Exhibits A-19, A-20 and A-21 by Lakshmamma and later reconveyed to her under Exhibits A-26, A-27 and A-28, the Court held that by virtue of these reconveyances, which were prior to the Act, her position remained unaffected in any manner whatever and as she was in possession and enjoyment of these lands on the date of the Act. The trial Judge accordingly held that her rights became enlarged under section 14 and in respect of items 2 to 8 she had a right to settle these properties under Exhibit A-29 in favour of Varadaraju, the husband of the Ist defendant, that therefore Exhibits A-29 and A-30 are both valid beyond her life and binding on the plaintiff, and that he cannot question the same. He, however, found that the evidence does not disclose that there was any arrangement between the plaintiff and the 1st defendant and her husband to take the plaintiffs' son in adoption so that Lakshmamma may settle the properties on the husband of the Ist defendant in the first instance, that therefore, the plaintiff is not estopped from questioning the settlement deeds.

6. On those findings, he held that the plaintiff is entitled to possession of only item I of the plaint schedule and not the rest of the property and decreed possession of only item I with mesne profits to be determined by way of a separate application, and dismissed the rest of the suit. Hence this appeal by the plaintiff with regard to the rest of the property, i.e items 2 to 8 of the plaint schedule.

7. The fact that the last male-holder, Medicherla Ramaiah, died issueless and intstate in 1930 leaving behind him his widow Lakshmamma and that the plaint schedule properties are those of Ramaiah are not now in dispute. Lakshmamma inherited the properties as his widow and under the law as it then existed, the nature of her right in the property was that known as a widow's estate. It is well settled that the rights of a widow holding under the widow's estate, is not the same as that of a life estate-holder. She is not a tenant for life but owner of the property inherited by her, subject to certain restrictions of alienation and subject to its devolving upon the next heir of the last male holder, upon her death. What vested in her was not a mere life estate, but the whole estate and she represented the estate completely. She could also in certain cases dispose of the whole estate inherited by her, which she would not do if she were a mere life tenant. The Supreme Court pointed out in Kalishanker Das v. Dhirendra Nath . A.I.R 1954 S.C 505., that 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 it cannot be followed in the hands of a bona fide purchaser for value without notice; from very early times the Hindu widow's estate has been described as qualified proprietorship wtih 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, but 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 ont he happening of other contingencies like re-marriage, adoption, conversion, surrender etc.

8. Therefore, ‘widow's estate’ in Hindu Law is an unique institution which carries with it certain limitations and also certain advantages which are different from a life interest. It is the exercise of the power of alienation of the widow Lakshmamma that we are now concerned with. At the time of her husband's death when she inherited the estate, it was the Hindu

9. Women's Rights to Property Act that was in force, and under the Act she had only a widow's interest in the property. After her husband died in 1930 Lakshmamma lived for about 30 years and died on 17th September, 1961. During these 30 years she dealt with the various items, under appeal inherited by her from her husband, and by reason of the impact of the subsequent legislation, (the Hindu Succession Act) enlarging the rights of a widow in possession of her husband's property, it has become necessary to consider the validity of those dispositions.

10. The rights of the Hindu widows were getting enlarged from time to time. Originally Hindu widows, who under the Hindu Law were treated as chattel sometimes classified along with slaves, had only rights to maintenance, but with march of time and the impact of other cultures, ideals and ideas, the inquity of the inequality between the Hindu male and the Hindu female came to be recognised and this was sought to be set right. Under the Hindu Women's Rights to Property Act (XVIII of 1937) she came to acquire a limited interest in her husband's property known as widows' estate. On the attaintment of independence and change in the social ideals, the necessity for full emancipation of women and bringing them on a par with men regarding their rights to property came to be recognised and the Hindu Succession Act, 1956 (hereinafter referred to as the Act) was passed. Section 14 of the Act embodies the principles in relation to title to or enjoyment of property by Hindu females, and reads as follows:

“14 (I) Any property possessed by a female Hindu, whether acquired before or after the commencement of this Act, shall be held by her as full owner thereof and not as a limited owner.

Explanation.— In this sub-section, ‘property’ includes both movable and immovable property acquired by a female Hindu by inheritance or devise, or at a partition, or in lieu of maintenance or arrears of maintenance, or by gift from any person, whether a relative or not, before, at or after her marriage, or by her own skill or exertion or by purchase or by prescription, or in any other manner whatsoever, and also any such property held by her as Stridhana immediately before the commencement of this Act.

(2) Nothing contained in sub-section (1) shall apply to any property acquired by way of gift or under a will or any other instrument or under a decree or order of a Civil Court or under an award where the terms of the gift, will or other instrument or the decree, order or award prescribe a restricted estate in such property”

11. It is the application of the provisions of this section to the property held and dealt with by Lakshmamma with which we are now concerned. The lower Court had decreed possession of item 1 in favour of the plaintiff and there is no appeal against the same. We are now concerned only with items 2 to 8 of the A schedule and they fall into two categories. Item 3 is a that ched shed in Acre 0-11 cents of land in S. No. 195/13 which the widow had put in possession of her brother, the 3rd defendant, and he was in enjoyment of the property. There was no binding alienation by sale or otherwise of this property. With regard to items 2 and 4 to 8 there were alienations by Lakshmamma and reconveyances in her favour.

12. According to the plaintiff, the 3rd defendant was in possession of item 3, the house and site on the date of the death of Lakshmamma, while according to the 1st defendant, the 3rd defendant was not put in possession of this property by Lakshmamma but only after she executed the settlement deed Exhibit A-29 settling her properties in favour of Varadaraju, husband of the 1st defendant, the 3rd defendant was allowed in possession as a licensee in occupation and the 3rd defendant is now colluding with the plaintiff as he had been asked to surrender possession of the that ???hed house. According to the plaintiff the 3rd defendant who was put in possession of it by Lakshmamma continued in possession till her death and she was out of possession. The 3rd defendant has remained exparte. Even the suit O.S No. 181 of 1937 filed against him by the plaintiff as the then presumptive reversioner was dismissed, on the ground that there was no alienation in favour of the 3rd defendant by the widow Lakshmamma, and that he was only in permissive possession. The trial Court has now found that the possession of 3rd defendant constituted possession of Lakshmamma and that under Section 14(1) of the Act, her right has been enlarged into absolute rights and she could dispose of it under Exhibit B 22 in favour of 1st defendant's husband.

13. In Arumuga Gounder v. Nachimuthu Pillai, it was pointed out that the word ‘possession’ in section 14(I) of the Succession Act is used in a broad sense and in the context ‘possession’ means the state of owning or having in one's hands or power, and the ‘possession’ contemplated by the section may be either actual or constructive or in any form recognised by law that thus the possession of licensee, lessee or mortgagee from the female owner or the possession of a guardian or trustee or agent of the female owner would be her possession for the purposes of this section. The word ‘possession’ in section 14(I) came up for interpretation in various cases before a number of High Courts as well as the Supreme Court. In Venkayamma v. G. Veerayya . 1956 A.L.T 1045, it was pointed out that the word possession is used in section. 14 in a broad sense, that even if a trespasser was in possession of the land belonging to a female owner, it might conceivably be regarded as being in possession of the female owner provided that trespasser had not perfected his title. While considering the above remarks their Lordships in Kotturuswamy v. Veeravva . 1959 S.C.J 437, observed:

“We do not think that it is necessary in the present case to go to the extent to which the learned Judges went. It is sufficient to say that ‘possessed’ in section 14 is used in a broad sense, and, in the context, means the state of owning or having in one's hand or power.”

14. But, in Mangal Singh v. Rattno . 1968 1 S.C.J 487, the remarks of Viswanatha Sastri, J., in Venkayamma v. Veerayya, cited above came to be approved. Dealing with the contentions raised, it was observed as follows.

“It was urged on behalf of the appellants that, in order to attract the provisions of Section 14(1) of the Act, it must be shown that the female Hindu was either in actual physical possession, or constructive possession of the disputed property. On the other side, it was urged that even if a female Hindu, be, in fact, out of actual possession, the property must be held to be possessed by her, if her ownership rights in that property still exist and, in exercise of those ownership rights, she is capable of obtaining actual possession of it. It appears to us that, on the language used in Section 14(1) of the Act, the latter interpretation must be accepted.”

15. It was further pointed out that it is significant that the Legislature begins Section 14(1) with the words “any property possessed by a female Hindu” and not “any property in possession of a female Hindu” that if the expression used had been “in possession of” instead of “possessed by.” the proper interpretation would probably have been to hold that, in order to apply this provision, the property must be such as is either in actual possession of the female Hindu or in her constructive possession, that the constructive possession may be through a lessee, mortgagee, licensee, etc, that the use of the expression “possessed by” instead of the expression “in possession of.” in their opinion, was, intended to enlarge the meaning of this expression, that it is commonly known in English language that a property is said to be possessed by a person, if he is its owner, even though he may, for the time being be out of actual possession or even constructive possession. They went on further to observe that it appears that the expression used in Section 14(1) of the Act was intended to cover cases of possession in law also, where lands may have descended to a female Hindu and she has not actually entered into them or is in actual physical or constructive possession of the same. In that case, while the widow was in possession of her husband's immovable property some collaterals of her husband obtained some orders from the Tahsildar for mutation in their favour and dispossessed her on the ground that she had entered into karewa marriage with one Ishar Singh, one of the collaterals and had lost her right to hold the land of her first, husband, the widow then instituted the suit for possession denying any such marriage and during the pendency of the suit, the Hindu Succession Act had come into force on 17th June, 1956. While that suit was pending, the widow died in 1958 and her legal representatives were brought on record. Finding that the marriage was true, the trial Court dismissed the suit but the first appellate Court found that the marriage was not true and held that though the land was in possession of the collaterals, by reason of the provisions of the Act her right in the land had become enlarged as the collaterals were in possession only as trespassers and she had a right to recover the same, that she should be considered to have been in possession and her rights will get enlarged under section 14(I) of the Act. This view was confirmed by the High Court. The Supreme Court while confirming i??? observed that though she was out of actual possession of the property, i??? must be held that she was dispossessed by the collaterals and in exercise o??? her ownership right, she was capable of taking possession of it. In the instant case, there was no alienation in favour of the 3rd defendant. He was only allowed to be in possession of item 3. That being permissive possession, it should be held that the widow Lakshmamma was in constructive possession of the same and therefore her right in the property would get enlarged into absolute right by reason of section 14(I) of the Act and she will be entitled to dispose of the same. So her disposition of this property, i.e, item 3 under Exhibit B-22 cannot be questioned by the Plaintiff.

16. Items 2 and 4 to 8 stand on a different footing. They are the properties sold by the widow Lakshmamma under Exhibits A-19, A-20 and A-21 on 18th August, 1937. They were subject-matters of the suits O.S Nos. 181, 205 and 206 of 1937 filed by the plaintiff as a reversioner to declare them as not binding on him and the suits had been decreed, except with regard to item 3 dealt with above it is after this that she got the same lands reconveyed to her under Exhibits A-28, A-27 and A-26 respectively on 14 th October, 1940, and she was in possession and enjoyment of these lands on the date of the Hindu Succession Act, 1956 had come into force. Thereafter, in 1957 under Exhibit A-29 dated 25th March, 1957 she settled these properties on Varadaraju, the husband of the 1st defendant, who is her sister's daughter. The question now to be determined is whether by the reconveyances in her favour her rights in these properties had become enlarged by reason of Section 14(1) and whether the settlement deed Exhibit A-29 under which the lands were conveyed in favour of Varadaraju is valid. If it is valid, the claim of the plaintiff as a reversioner to the properties of Lakshmamma's husband Ramayya must be negatived. Otherwise, the plaintiff's suit for possession and mesne profits with regard to these properties must be decreed.

17. The learned Counsel for the 1st respondent-defendant contended that the widow Lakshmamma who sold the properties under Exhibits A-19 A-20 and A-21 repurchased the properties under Exhibits A-28, A-27 and A-26 respectively with the same monies that she had obtained under the earlier sales, that therefore these become accretions to the estate of her husband and as such, the life interest which she was holding in this property got enlarged into absolute right by reason of Section 14(1) of the Act. Admittedly no such plea was taken in the written statement. There was no issue and no finding. The learned Counsel, however, says that the plaintiff himself had admitted this in his evidence when examined as P.W 4, which reads as follows:

“It is for a part sale price of Exhibits A-19 to A-21 she purchased the property under Exhibits A-26 to A-28.”

18. What he appears to have meant was that it was for a fraction of the sale price obtained under Exhibits A-19, A-20 and A-21 that she repurchased the property under Exhibits A-26, A-27 and A-28, as in fact she got back the properties under these three sale deeds for half of the consideration she had received as vendor of these properties. The contrary construction cannot be accepted as it cannot be assumed that she had kept the monies with her for over three years to repurchase the properties with the same money. We are fortified in this conclusion because P.W 4 further stated that he did not know what amount of cash Lakshmamma invested out of the sale price of Exhibits A-19, to A-21 in money-lending business, and that he was not present at the time of the execution, negotiation or registration of the sale deeds relating to repurchase, i.e, Exhibits A-26 to A-28.

19. The important question for consideration relates to the quantum and nature of the estate Lakshmamma acquired on repurchase and whether it enabled her to get the benefits under Section 14(1) of the Act. It cannot be disputed now that the properties repurchased are not accretions to the estate of Ramayya as there is no plea, nor an issue nor a finding in this regard by the/trial Court. As the winow Lakshmamma had sold the properties under Exhibits A-19 to A-21 on 18th August, 1937 and repurchased them on 14th October, 1940 under Exhibits A-28, A-27 and A-26 respectively, it was next to be considered, with whatever monies she had repurchased, what is the character of such property.

20. The learned Counsel for the 1st respondent defendant contends that by reason of the repurchase by the widow Lakshmamma under Exhibits A-26 and A-28 of the properties that she had parted with under Exhibits A-19 to A-21 as she got back the same property alienated by her, it puts her in the same position as before the alienations, and the alienation should be deemed to have been cancelled by reason of the repurchase and as she was in possession of this property on the coming into force of the Hindu Succession Act, by virtue of Section 14(1), her rights therein got enlarged, and that she could execute the settlement deed Exhibit A-29 as her absolute property and that the decisions obtained by the reversioner in O.S Nos. 181, 205 and 206 of 1937 declaring that the alienations will be effective only upto the lifetime of the widow had no longer any force. In support of this contention, he has relied on the decisions in Teja Singh v. Jaghat Singh, and Chinnakolandai v. Thanji, In both these cases, a Hindu widow had gifted away the properties obtained from her husband and on suits filed by a presumptive reversioner the alienations were held not to be binding beyond the lifetime of the widow, and later as the same properties were gifted back to the widow, it was held that by reason of the gift back, the possession of the widow with regard to this property was restored to the same position that she held before the alienation as gift back cancels the alienation, that the declaratory decrees have become useless and the widow's right in the property gets enlarged by reason of Section 14(1) of the Act. In the first of the two cases, i.e, Teja Singh v. Jagat Singh, D.K Mahajan, J. held that what the alienee validly and unquestionably acquires under an unauthorised alienation from a widow is the limited interest, that what he passes back is again the limited interest and so at two points of time, what the widow parted with was a limited interest and what she acquired again was that very interest, that the gift and the gift back have not and could not enlarge the widow's limited interest. It was therefore, held that there was no question of any declaratory decree either stepping in this situation to undo what could not be done, that the declaration merely undid the gift after the death of the widow and did not pervent the widow from undoing the gift in her lifetime, that what the parties could validly do they can also by mutual consent undo later, that this course would merely make the declaratory decree inoperative, for what it sought to achieve after the death of the widow is achieved in her lifetime, thus, rendering the declaratory decrees useless. It was further held that the parties were thus restored back to the same position in which they were before the alienation, and as the widow held life interest in the property it gets enlarged under Section 14(1) of the Act.

21. In the second of the decisions cited above, i.e, Chinnakolandai v. Thanji, Ramamurti, J. came to the conclusion and also relied on the above decision in support of his finding and observed that he was clearly of the opinion that there is nothing in law to prevent an alienation being completely nullified as if it never took effect, provided that the alienor and the alienee agreed to such a course, that for all purposes the intervening alienation and reconveyance will have to be left out of account and the widow should be regarded as enjoying the property as a heir to her husband, that on reconveyance the property in her hands will be subject to all the incidents of Hindu Law as the property inherited by her from her husband and that Section 14(1) of the Act will apply enlarging her interests into an absolute estate. The learned Judge further held that the right of the presumptive reversioner to get a declaration of invalidity of the alienation is itself a precarious and a defeasible right in its very nature, that the institution of the suit does not carry with, it a right in the reversioner to prevent the alienee from reconveying the property back to the widow, that the right of the alienee to reconvey the property which inhered in him upto the moment of the suit cannot be controlled or curtailed by the institution of the suit.

22. The principle recognised by both the decisions cited is that the gift back cancelled the original gift, that the effect of both the transactions put together would be nullifying the alienation made by the widow and the parties are restored back to the same position in which they were before the alienation and that the declaratory decree becomes useless.

23. D.K Mahajan, J. in Teja Singh v. Jagat Singh, relied on the decision of the Division Bench of the Lahore High Court in Mohammad Rafi v. Faiz Ahmad, where the parties were Muslims being the Awans of Shahpur District, among them there was an unrestricted power of alienation of ancestral property. On a sale by a proprietor in favour of his son-in-law, the reversioners filed a suit for declaration that the sale does not affect their reversionary rights and the suit was decreed and subsequently the property was mutated back by the son-in-law in favour of the vendor and the vendor later gifted it in favour of his daughter and it was held that the sale was cancelled by mutual consent and it was open to the parties to do so and the declaratory decree became useless, as the parties had placed themselves in the same position as they were before when the sale was effected. The question of the estate of a Hindu widow as a ‘limited estate’ recognised in Hindu Law had not come up for consideration in that case, as the parties, there, were Muslims and were governed by special law of the Awans of Shahpur District, who were given unrestricted power of alienation of ancestral property. It has however, to be seen how far the principle of reconveyance of property sold ends in cancellation or wiping out of the entre transaction can be accepted.

24. Sale and reconveyance are two independent transactions both valid and binding. A sale as defined in section 54 of the Transfer of Property Act is a transfer of ownership for a price and its legal incidence is that there is an absolute transfer of all the right, title and interest of the vendors in the property, unlike in a lease where there is a partial transfer or demise or in a mortgage where there is a transfer of an interest. In sale there is an extinction of the vendor's right and the vendor has no reversionary interest as in a lease or mortgage. If a Hindu widow sells her limited interest, she parts with her interest completely and if the limited estate comes to an end by the death of the widow or other modes of defeasance, the reversioner is the heir of her husband. A sale deed that creates rights and obligations can be cancelled or rescinded through Court under section 31 of the Specific Relief Act on the grounds of fraud, undue influence, misrepresentation, mistake etc. or the very sale deed executed can be cancelled by mutual consent by another deed paying the requisite stamp duty under Article 17 of Schedule I to the Stamp Act. The statement that one sale deed can be cancelled by another sale deed though in respect of the same property and between the same parties to our mind, has no legal basis. Complications that may arise if that is the correct view can easily be thought of. When a widow or a female alienates her limited interest in the property, or her whole interest and later it is found by Court that there being no necessity, she could only convey her life interest and the vendee creates some encumbrance on the property or it is attached by his creditors, can it be said that the reconveyance terminates the rights of the encumbrance of the attaching creditor before the reconveyance. Would that not be the result if a recoveyance is a cancellation of the earlier sale deed. All the acts in the interregnum are legally valid and carry their own obligations. They cannot be wiped out and the original transaction of sale or gift cannot be said to have been set at nought or cancelled by the mere fact of resale or gift back.

25. According to the view in those two decisions, it would mean that after reconveyance, the widow holds the property as if it had never left her hands, and, if she again alienates it would again become necessary for the reversioner to file a suit for a declaration that the alienation is not for necessity and is not binding on him.

26. There, are other situations also that can be envisaged which would make the doctrine of a resale wiping out the sale, unacceptable. If a widow sells her husband's property for necessity and later repurchases the property with her ‘Stridhana monies’ ordinarily one would expect her to get an absolute right in the property But if the original sale is to be considered to have been cancelled by the reconveyance and she is put back in the same position as prior to the sale, would she get only a limited interest in the property and not an absolute interest as she would otherwise get? These are some of the anomalous situations that would arise by accepting that principle.

27. In Ganesh Mahanta v. Sukriya Bewa, where a Hindu widow gifted certain properties inherited from her husband, it was held that the donee gets only the widow's estate (limited interest) in the property and even if the donee retransfers the property in favour of the widow after the commencement of the Act, the widow would acquire only a limited interest and not an absolute interest in the property as the donee cannot transmit any title higher than what he himself had. In dealing with the question, the learned Judge stated as follows:

“As I have discussed above defendant 2 acquired only the widow's estate by the gift in his favour. His retransfer on 13th February, 1957 by Exhibit 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 No. 138 of 1946–47 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 that Act. By Exhibit B Lata would again get the widow's estate. The position would be made clear by an illustration. Supposing defendant 2 had effected a transfer not in favour of Lata but in favour of 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 retransferred the 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 Exhibit A was without consideration. Even if it were for consideration, Lata could not transmit a higher title than what she got by Exhibit B.”

28. Referring to the above remarks, Ramamurti, J. in Chinnakolandat v. Thanji, stated as follows:

“With respect, I am unable to agree with the view, as the entire reasoning is based upon the view that there is no difference between a reconveyance in favour of the widow herself and alienation in favour of the stranger. In my opinion, there is all the difference between a case of annulment of a conveyance by consent of both the parties and a case of a subsequent alienation by the alienee in favour of a stranger. In the former case the effect of the alienation is completely wiped out and the, original position is restored. This distinction has not been noticed in the decision of the Orissa High Court. The acceptance of the contention urged by learned Counsel for the appellant would lead to startling results. Take for instance an unauthorised alienation by a guardian. If some cloud is cast on the validity of the alienation, and if the alienee, not willing to take any risk till the attainment of majority, by the minor, conveys back the property to the guardian, it would not be open to the guardian to contend that he had acquired the voidable title of the alienee. In other words, he cannot contend as against the quondam minor that the income from the property would be his, and that till the minor takes proceedings for setting aside the alienation the guardian should be deemed to have acquired the right, title and interest of the alienee. Such a contention on the face of it is untenable.

The instance of an alienation by a trustee or an executor may also be considered. If after the alienation by the trustee or executor the beneficiary raises some objection about the validity of the alienation whether well founded or ill-founded and if the alienee who is not prepared to take any risk conveys back the property to the trustee or the executor as the case may be it cannot possibily be contended that the trustee or the executor got back the property in any right or character other than in which it was originally alienated. As a result of the reconveyance the property would form part of the trust estate. In all these cases the alienor suffers under a legal disability from holding the property in any other capacity. It is needless to multiply instances. I am therefore clearly of the opinion that there is nothing in law to prevent an alienation being completely nullified as if it never took effect provided the alienor and the alienee agree to such a course. The position is a fortiori where the title conveyed to the alienee is a voidable one. It cannot be disputed that when the reversioner files the suit, it is open to the alienee to submit to a decree. After such a declaratory decree is passed, there is nothing in Hindu Law which compels or obliges the alienee to retain and keep the property himself and hand it over to the reversioner. It is certainly open to him to respect the decree and convey back the property to the widow even before her death. It is obvious that what the alienee can do after the termination of the suit can equally be done during its pendency. Surely the alienee is not a trustee for the reversioner to keep the property in trust and deliver the property on the death of the widow”.

29. The above observations show that he had held that there is a clear distinction between the case of an alienation by the vendee to a stranger and an alienation by the vendee to the widow herseif. The distinction is, no doubt, there, but it does not show how it makes any difference with regard to the right of the purchaser, depending on whether the purchaser is stranger or the widow herself.

30. The analogy of purchase by a guardian of minor's property, and of a trustee or executor alienating the property and re-purchasing it himself, relied on by the learned Counsel for the appellant, cannot apply to the alienations by a widow who subsequently repurchases the same, because in the case, of a minor or the beneficiary under the trust, the guardian in the first case, and the trustee or executor in the other, stand in a fiduciary capacity and they cannot indulge in any act detrimental to the interests of the minor or beneficiary Under Order 32, Rule 4(1) Civil Procedure Code only a person whose interest is not adverse to that of the minor can be appointed as a guardian and his relationship with the minor or other person for whom he is appointed as a guardian is such that he cannot acquire any interest adverse to that of the minor even after appointment. Under section, 53 of the Indian Trusts Act also, no trustee, and no person who has recently ceased to be a trustee, may, without the permission of the Court, buy or become mortgagee or lessee of the trust property or any part thereof, and such permission shall not be given unless the proposed purchase, mortgage or lease is manifestly for the advantage of the beneficiary. Thus, the obligation is governed by a statutory provision also. These instances cannot be compared with those of a widow, who alienates and repurchases, as she does not stand in a fiduciary relationship, and is not a trustee even of the reversioners. The widow represents only herself and the purchase is for her own-benefit. Therefore the analogy is not apt and cannot apply to the case of a repurchase by the widow.

31. The real principle which should govern these alienations in our judgment is the one adopted in Ganesh Mahanta v. Sukriya Bewa, cited above, viz., that on an alienation by the widow, her title in the property is completely extinguished and on a repurchase either before or after the Act, a widow would acquire only a limited right, as the alienee cannot transmit any title higher than what he himself has. In Mangal Singh v. Rattoo, cited above, at the bottom of page 1791, referring to die case in Kotturuswami v. Veervva, cited above, on the question of possession Their Lordships observed as follows:

“It was, thus, made clear in that case that the property was held not to be possessed by the widow, because the alienation made by her being binding on her, she had no longer any legal right left in that property even in the sense of being in the state of owning it.”

32. It was indicated that having completely parted with her legal rights in the property, she could not be said to be possessed of that property any longer. This shows that her interest in the property has become extinct on her alienation which is binding on her for her lifetime and she cannot be said to have any further interest in the property, having parted with whatever right, title and interst she had in it. On repurchase by her though it be of the same property she will be holding it as any other alienee. As pointed out in Mst. Bisarti v. Mst. Sukrti, the expression “possessed by a female” in Section 14(1) obviously means that the widow must have acquired it or be in possession of the property as a Hindu widow, since possession must be in consequence of and related to the life estate which a Hindu widow has in her husband's property, and it is only when such possession continues that she becomes full owner of the property and not when it ceases by reason of her Alienation. This is indicated by the words “as a limited owner” at the end of Section 14(1). Therefore reconveyance will not revive her original right in the property and she will be holding the estate reconveyed just like any Other stranger alienee, for the lifetime of the alienor widow, though she happens to be that widow, and there can be no question of one alienation canncelling the other and the status quo ante, the widow's alienation being restored.

33. The learned Counsel also relied on the decision in Chinti v. Daultu,5 where it was held that a daughter in whose favour gift has been made before the commencement of the Act by her widow mother: becomes a full owner of the gifted property with effect from the date of commencement of the Act, by virtue of section 14 and she cannot be denied that right for the mere fact that under similar circumstances a male donee will not have the same benefit, as the benifit is intended and is inherent in sec. 14 itself. It is doubtful whether the provisions of section 14 could be strecthed to that extent. If this interpretation is accepted, any female can buy up any number of limited estates from men and become full owner thereof by reason of her acquisition of their property. By reason of a mere repurchase of a limited estate by a female limited owner, she cannot enlarge her rights therein, because it would adversely affect the interests of stranger reversioner with regard to this property. Under section 4 of the Hindu Succession Act, the overriding effect of the provisions of the Act is only with regard to any text, rule or interpretation of Hindu Law, or any custom or usage as part of that law in force immediately before the commencement of the Act as they will cease to have effect with respect to any matter for which provision is made in the Act and any other law in force immediately before the commencement of the Act shall cease to apply to Hindus in so far it is inconsistent with any of the provisions contained in the Act. Therefore under the general law applicable to all the citizes of India, there can be no dispute that a vendee cannot get a better title than the vendor himself has, and if the vendor has only a limited interest, the title that he passes will also be limited, and the vendee by reason of the provisions of the Hindu Succession Act, cannot get that interest enlarged to the detriment of the reversioners who may or may not be Hindus. Therefore it cannot be said that in the case of every limited estate that is acquired by female Hindu her right in it will get enlarged into absolute right by reason of Section 14(1) of the Act.

34. It is next contended by the learned Counsel for the 1st respondent-defendant that as long as the widow who had alienated the property retains a vestige of interest in the property, her interest would get enlarged under Section 14(1) on her reacquiring the property. It is submitted by him that though the widow had alienated the property, she still has the right to surrender her interest in favour of the reversioners and as long as that right is still with her by reason of the provisions of the Hindu Succession Act, her right will become enlarged once the property comes back to her possession. This right to surrender which the widow has, is a distinct one which can be put into operation at the will of the widow, whether she is in possession of the property or not. The reversioner derives his title from the last male holder as his successor-in-law and the rights of succession open out either on the death of the widow or self-effacement by the widow by surrender which operates in the same manner as her physical death. Though it operates as a transfer of the properties without consideration, it is a self-effacement by the widow which forms the basis of surrender and not the Exfacie transfer by which such effacement is brought about. It is difficult to understand how this right which she has, has any effect on her right to the possession of the, property and the enlargement of her interests in it under Section 14(1) of the Act. Section 14(1) applies only if she holds her husband's property as a widow with a limited interest in it. The moment she loses that interest and the interest gets extinguished by reason of alienation or gift or any conveyance binding on her and her title in it as that of a widow becomes extinct and surrender can have no effect on her possession.

35. On the above considerations, we find that the widow Lakshmamma by reason of alienation of items 2, 4 to 8 under Exhibits A-19. A-20 and A-21 had lost her title to the property and by reason of the repurchase under Exhibits A-26, A-27 and A-28 she did not get restored to the same position she occupied before the sales as what she had repurchased is only a limited estate but not the right that got extinguished.

36. The recitals in the reconveyance deeds Exhibits A-26, A-28 themselves show that they were repurchased for half the consideration that she had received under the original sale-deeds Exhibits A-19 to A-21 and that the vendors under these sale-deeds (Exhibits A-26 to A-28) had purchased these properties from the widow on a representation that she was passing her full rights in the property, that later by the decisions of the Court they came to realise that they have only a limited estate i.e, upto the life time of the widow, that they did not want to keep to property and were preparing to sell it to anyone who was willing to purchase them and as the widow herself had come forward to buy them, they were selling them for a reduced consideration.

37. This shows that the vendors were willing to sell the property to anyone, not necessarily to the widow and the widow was only in the postion of any stranger wanting to purchase the property. The parties were not executing the reconveyance deeds with the intention of cancelling the prior conveyances in their favour by the widow. The widow who had therefore lost her title to the property was only repurchasing it as any stranger, purchasing a limited interest, and her interest therefore cannot get enlarged by reason of Section 14(1) of the Act.

38. On the above considerations we find that the widow's rights in items 2, 4 to 8 did not get enlarged by virtue of the provisions of Section 14(1) into absolute rights and disposition of this propoerty by way of settlement by the widow under Exhibit B-22 (Exhibit A-29) to Varadaraju will not bind, the reversioner. It follows that the settlement of this property by Varadaraju in favour of his wife the 1st defendant under Exhibit A-30 is also not valid and binding oh the plaintiff-appellant who is the reversioner. The plaintiff will therefore be entitled to recover possession of the same with mesne-profit.

39. The judgment and decree of the lower Court with regard to items 2, 4 to 8 are therefore set aside. There will be a decree in favour of the plaintiff for recovery of possession of these properties, in addition to item 1 already decreed by the lower Court the quantum of mesne profits will be determined by way of a separate petition as directed by the lower Court with regard to items 2 and 4 to 8 also.

40. In the result, this appeal is allowed with costs throughout.

41. Appeal allowed.