DHONDO YESHVANT KULKARNI Vs. MISHRILAL SURAJMAL

JUDGEMENT

(1.) THE question arising for decision in this case is whether the estate in the hands of a reversioner is bound by an unsecured debt contracted by a Hindu widow as representing the estate for legal necessity. It arises in this way. THE plaintiff brought a suit on the Small Cause side of the First IV Class Subordinate Judge's Court at Dhulia on a promissory note passed by a Hindu widow in his favour. THE widow having died, the suit is brought against the reversioner to recover the amount due from the estate of the widow's husband in his possession.

(2.) THE lower Court found that the debt under the promissory note was incurred by the widow for cultivation of her husband's lands and for payment to the servants working on the said lands, and it proceeded on the basis that it was for a purpose constituting legal necessity. THE defendant contended that the debt cannot be realised from the property in his hands, and relied on a recent decision of this Court in Bhagwantrao Abaji v. Ramanath Kaniram (1928) I. L. R 52 Bom. 542 : S. C. 30 Bom. L. R. 881 to the effect that under the Hindu law the property in the hands of a reversioner is not liable to satisfy a personal debt not secured on such property which a widow while enjoying a widow's estate has properly incurred in the course of management of the property. This decision, so far as it went, was a sufficient answer to the suit, but the learned Judge thought that it was contrary to a previous decision of the Privy Council in Karim-ud-Din v. Gobind Krishna Narain (1909) L R. 361. A. 138 : s. c. 11 Bom. L. R. 911 and he therefore refused to follow it and passed a decree in the plaintiff's favour. In doing so, we think the learned Judge fell into a double error. He did not notice that the Privy Council case was distinguishable inasmuch as it was a case of an alienation by the widow while the present case was one of an unsecured debt incurred by her. Secondly, whatever His own opinion, he was bound to follow a decision of this Court so long as it was not overruled. Being aggrieved by this decision, the defendant has filed this revisional application, and it was contended on his behalf that the plaintiff's suit should have been dismissed in view of the clear authority of this Court against him. It was, however, urged on behalf of the plaintiff that the decision in Bhagwantrao Abaji v. Ramanath Kaniram is incorrect and that there is a previous full bench decision of this Court in Sakrabhai v. Maganlal (1901) I. L. R. 26 Bom. 206 : s. c. 3 Bom. L. R. 738 which proceeds upon certain principles which are inconsistent with that decision, and that there are rulings of other High Courts also which are against the view in Bhagwantrao Abaji's case. In view of this conflict and also of the general importance of the point, the question stated above has been referred to this bench.

(3.) IN our opinion, this distinction turns upon an erroneous view of the nature of a Hindu widow's estate. As is well expressed by Golapchandra Sarkar Sastri in his Hindu Law, 7th Edn. , p. 817 : The estate is fully vested in her in the same way as if the husband lived in her, the distinction being that her power of alienation and of charging the estate for debts is Qualified. If the debts contracted by her are lawful, then the same consequences should follow as if the same were the husband's debts, that is to say, the debts should be a charge on the estate in the hands of the reversioner who must be deemed to be the heir of the widow representing the husband, and as such, liable to pay the lawful debts. The reversioner cannot succeed in most cases except upon the theory that the husband lives in the widow, and dies when she dies. It appears to be perfectly reasonable and equitable that his liability should be determined by the same theory which forms the foundation of his right, he being entitled to the residue left after meeting the widow's lawful expenses.