MALKARJUN ANNARAO GAMBHIRE Vs. SARUBAI SHIVYOGI

JUDGEMENT

(1.) 1.This appeal by the original defendant No.2 arises in a suit by a Hindu widow for a declaration that a sale-deed dated June 28, 1937, passed by her deceased husband's brother defendant No.1 in favour of defendant No.2, was not binding on her and that the house sold thereunder was liable' for her claim of maintenance and residence. It was further prayed that the amount fixed for her maintenance should be charged on the suit house.

(2.) THE facts shortly are that defendant No.1 and the plaintiff's husband were brothers forming a Hindu joint family. Defendant No.1 was the elder brother and in management of the property, the plaintiff's husband being a minor. THE family house was made the subject of a mortgage in 1922 and there were other subsequent mortgages of the house. In October, 1929, defendant No.1 for himself and as guardian of the plaintiff's husband mortgaged the house to one Sarubai for Rs. 1,500. THE purpose of the loan was the payment of the debts incurred for a new business started by defendant No.1 himself. THE mortgagee Sarubai assigned her rights to the appellant who filed a suit on the mortgage against defendant No.1 as well as his minor brother. THE latter, however, died in 1936 pending the suit and the plaintiff as his widow was brought on the record as his legal representative. She disputed the binding character of the mortgage on her husband and prayed that her name may be struck off. THE Court being of opinion that she was not a necessary party, granted her request with the result that the appellant obtained a decree against defendant No.1 alone. In satisfaction of that decree defendant No.1 privately sold the suit house to the appellant on June 28, 1937, for Rs. 4,223. It is this sale-deed which the plaintiff seeks to set aside on the ground that it was neither binding on herself nor on her deceased husband who died during his minority and that she had a right of maintenance and residence against the house. Defendant No.1 denied his liability for maintenance on the ground that he was not in possession of any family property, and the appellant denied his liability on the ground that the sale in his favour was effected for the payment of debts which were binding on the joint family, that the mortgage in favour of Sarubai was effected when the plaintiff's right of maintenance had not accrued as she was not a widow at that time and that she was not therefore entitled to impeach the transaction of mortgage in pursuance of which the sale took place after her husband's death. He further contended that he was a purchaser for consideration without notice of the plaintiff's right and for that reason also the plaintiff had no right to obtain any relief from him.

(3.) IT is urged that the transaction was not invalid against the minor, but as it was entered into by the manager of a joint Hindu family, it was only voidable but not void in its inception. In my opinion, however, the greater part of the consideration for; which the sale was entered into, viz. the debt of the mortgage in favour of Sarubai, cannot be said to be voidable but was wholly invalid. In Benares Bank, Ld. v. Hari Narain the mortgage transaction was considered as wholly invalid as against the minor co-parceners and not merely voidable. With regard to the other part of the consideration also the plaintiff was entitled) to contend that the debts being personal debts of defendant No.1, the minor's interest was not bound by them. I think, therefore, that the plaintiff is not only entitled to challenge the sale transaction, but she has succeeded in proving that her husband's share in the property was not at all affected by that or any other previous alienation.