PANNALAL Vs. HARNA BAI

JUDGEMENT

(1.) ONE Burbaji left two widows Radha Bai and Harna Bai and a son Bhikaji by Harna Bai, Plaintiff is the vendee or purchaser from Harna Bai and the defendant is the purchaser of the land from Radha Bai. Both these ladies have transferred the same property by separate registered documents and the defendant that is the purchaser from Radha Bai is in possession of the property. Harna Bai remarried after the death of her husband Burbaji. Both the lower Courts have dismissed the plaintiff's suit on the ground that the sale by Harna Bai was not a bona fide transaction and therefore invalid to sustain a decree for possession. The trial Court laid stress on the fact that the sale was bad for want of authority to sell and for want of consideration. Radha Bai was Bhikaji's step -mother. Bhikaji being the last holder she as step mother could succeed only under the School of Hindu law in force in the Bombay Presidency as sagothra sapinda. That is in the absence of natural mother or other heirs under certain circumstances in Bombay Presidency a Step -mother succeeds to the property of her step -son. Harna Bai's mother is a heir here, and Radha Bai as step mother had only a possibility in her favour (as spes successions) to succeed as sagothra sapinda only long after the mother Harna Bai, in the event of absence of heirs to succeed. It is conceded by both the parties that the Hindu law in force in Bombay Presidency is applicable to this case. The execution of both the registered deeds of sale, one by Radha Bai and Anr. by Harna Bai, has to be taken as proved. Of course the allegations are that these were without adequate Consideration, legal necessity, etc, and that the deed of sale to the plaintiff was intended merely to harass the defendant. The plaintiff in the course of the argument referred to certain proceedings in the High Court during the pendency of this appeal from which it would appear that Radha Bai has died during the pendency of this appeal. The fact that she has since died is of great importance in as much as it finally closes the possibility of her ever succeeding to the estate of her deceased step -son. But beyond this, it would not be conclusive in other respects in itself at this stage for the reason that we have to see whether the judgment of the first appellate Court can be sustained and whether the death of Radha Bai would in any way affect the right of the plaintiff to a decree in existence. A number of delicate arguments have been advanced before us but really all these can be resolved to one or two basic questions. The case comes to this whether the purchaser from the limited owner, (whose right of ownership has been completed by a registered document and which is attacked on the ground of want of consideration and for being executed for the purposes of harassing the defendant) where the transaction is attacked for want of legal necessity, can claim possession on the basis of his title due to a registered sale deed from rightful limited owner against the purchaser from an unauthorised person, without proving legal necessity for the sale, In other words, the point is whether Radha Bai or purchaser from her can object to want of legal necessity, because she never succeeded to her step son, and now the possibility of her ever succeeding has ceased to exist, arid apart from the fast of his being a purchaser. Will a person in possession be considered sufficiently interested to object solely on the ground of want of necessity on the ground that he may loss possession? Of course undoubtedly even a trespasser in possession can challenge a plaintiff's title, but when sale has been completed by a registered sale deed can the person in possession attack its validity for want of legal necessity. In our opinion, the answer to this question depends on the legal effect of sales without legal necessity whether they are void ab initio or they are merely voidable for the benefit of a particular person or persons. If sale by a limited owner without legal necessity is void ab initio of course anybody interested can object to it but in this case our opinion is that the sale would not be void ab initio, but it would be voidable at the instance of a proper pasty. Voidable sales are sales that are valid in them selves but can be avoided at the instance of certain persons who are affected thereby. Here defendant is in possession, and to that extent he is interested certainly in the enforceability of that sale, as he will be dispossessed if the sale is enforced. But we feel that an interested person in the matter of voidability to object on that ground would be one for whose benefit the transaction is held in suspense as a voidable one, and the mere fact of adverse effect such as loss of pecuniary benefit or loss of possession will not be sufficient in itself to confer the option available on cases of voidability. Radha Bai was an interested person in the sense that she might have succeeded under certain circumstances, if the purchaser is considered to be fully representing her of course he can be an interested person only on that account and not merely on account of his possession. As that status to object depends on the possibility of succession, that status would dissolve on the happening of that certain event (Radha Bai's death) as the possibility of succession ceased for ever, and became impossible. Radha Bai might have succeeded to the property as the law in Bombay is applicable to the case if she lived after Harna Bai and looking at that matter with this point of view it cannot be said that Radha Bai cannot be considered a person uninterested in the succession to the property. In our opinion her right of objection was based merely on a possibility or a contingency that she might have out -lived the other widow that contingency and possibility having ceased (i.e., the possibility of Radha Bai ever becoming a successor having been extinguished), the alienee from such a person cannot have any added or extra interest apart or in addition to the right possessed by Radha Bai. With her death nor interest ceased on account of impossibility and it cannot outlive for the benefit of the aliense.

(2.) SO far as the right of the defendant is concerned to remain in possession unless dispossessed by person entitled, we are afraid that the plaintiff is such a person whose right must prevail without regard to the fact whether sale between Harna Bai and -the plaintiff was voidable or not. As the violability of that sale depended at the instance of Harna Bai or persons having interest in succession and as it was not finally and conclusively decided that the sale was ineffective at the instance of Radha Bai and the matter being sub judice the position is that the sale to the plaintiff still subsists and has not been avoided at the instance of Radha Bai or by her alliance during her life time as representing her during that period. The matter was under appeal before this Court, the interest of the alienate from Radha Bai ceased in that respect and he cannot now object and take advantage of the avoidability of the sale which is only for the benefit of the possible heir a and successors. In other words, whatever may be the position of the defendant in this respect before the death of Radha Bai and the matter not having been finally concluded in her life time, the interest to object to a sale for want of legal necessity would not outlive the person for whose benefit such a right has been reserved. The reason is that Radha Bai having died all possibility of her succession to this property ceased [completely and her alliance who might have held the property for her life time if she ever became their. The position of the defendants becomes that of mere trespassers against Harna Bai for all practical purposes, and in this suit plaintiff stands in the shoes of Harna Bai, so long as the sale is not declared ineffective or void against her. It Harna Bai had obtained such a declaration, then the trespassers might have said that the plaintiff cannot claim possession for want of title. It would be useful to bear in mind that even if the sale by Harna Bai was set aside at the instance of Anr. heir or successor or reversioner the sale would have in spite of its voidability, remained valid and enforceable for the life time of Harna Bai and Harna Bai is still alive. Voidable sales are of course valid and effective sales and possess all the force of valid transaction unless they are avoided by the person for whose benefit the right of confirmation; or right of avoiding them has been reserved. As no other person can object to Harna Bai's possession or right during her lifetime and her sale could have been attached by reversionary etc, at all even the defendants cannot (nor could Radha Bai their vendor who had merely a possibility of succession) challenge the sale in plaintiff's favour on the grounds on which it baa been attacked. Whatever may be the ulterior motive of the parties it is conceded that Harna Bai did by the execution of this document intend to transfer, her rights in the property and she effectively accomplished it by registering that document. If the consideration has not been paid, she may sue for such consideration or she has every right to forgive or forget it and unless it can be shown that the reasons existing are of a nature that rendered the sale void ab -initio for some valid reason such as fraud etc. However in the present state of affairs the defendant has no locus standi whatever to object on these grounds. A person might validly effect a sale with the ulterior motive of harassing a neighbor or injuring his -heir or successor or foe worrying or disappointing somebody but that need not necessarily invalidate a sale which is otherwise enforceable and effective. Defendant certainly has no business to challenge the motive or intentions of somebody who could validly convey property and did so convey it simply because he happened to make a deal indeed a highly speculative one for purchasing a property from a person who could only, transfer it unless under certain circumstances. I am afraid the lower Court has missed the point in holding that the document is fictitious one and have confused a case of a document being ab initio void and ineffective and that of a transaction which can only be set aside or rendered ineffective against a particular person on a particular ground in the exercise of an option reserved for his benefit. Under Section 54, T.P. Act, property where held (sic) is transferred by registration of a document and Harna Bai had a right to transfer and, therefore, the defendant has no right to remain in possession and user of that property against the exercise of the plaintiff's rights which must prevail. Motive -to harass or dispossess the defendant would not render a transfer of property ineffective merely on that account. The validity for want of legal necessity in case of a transfer by limited owner can only be questioned by certain definite persons who are entitled to the property ultimately such as reversioners etc. It would appear from the under mentioned authority that an alienation of this nature is only voidable and not void at the instance of certain interested parties such as reversioners etc. Bijoy Gopal v. Sm. Krishna Maheshi, 34 Cal. 329, Jabed Ali v. Prasanna Kumar : A.I.R. (10) 1923 Cal. 423, Rangaswami Gounden v. Nachiappa, A.I.R. 1918 P.C. 196, Sitaram Raoji v. Khandu : A.I.R. (8) 1921 Bom. 413, Sarogendra K. Dutt v. Binapani Dassi : A.I.R. (25) 1938 Cal. 468 and Lilku Mahto v. Amar Mahto : A.I.R. (23) 1936 Pat. 602. In Sitaram Raoji v. Khandu : A.I.R. (8) 1921 Bom. 413 it was held that other persons such as those merely in possession without title, will not be in a position to object to want of legal necessity. In Sarogendra v. Binapani Dassi : A.I.R. (25) 1938 Cal. 468 it was pointed out that in the case of Hindu widow it is open to the reversionary to challenge the legality of an alienation made by her but this is a right which is limited to them and is not one of which a third person can take advantage. Similarly in Lilku Mahto v. Amar Mahto : A.I.R. (23) 1936 Pat. 602 it was pointed out in Ramgowda v. Bhausaheb : A.I.R. (14) 1927 P.C. 227 their Lordships of the Judicial Committee observed that it is settled law that an alienation by widow in exercise of her powers is not altogether void but only voidable by the reversioners. In Madhusudan Singh v. Rooke 24 I.A. 164 Anr. case referred to in Lilku Mahto v. Amar Mahto : A.I.R. (23) 1936 Pat. 602 it was observed by their Lordships that the High Court had fallen into the error of treating the patni' as if it absolutely camp to an end at the death of the widow, and that it was not void but only voidable and the Raja might elect to assent to it and treat it as valid. As pointed out by Heaton J. in Sitaram Ravji v. Khandu, A.I.R. 1921 Bom. 418 not only does a widow convey her life interest but she conveys something that may become a permanent interest unless it is claimed by somebody competent to claim it, and then his Lordship goes on to point that the interest so transferred continues until it is put an end to in Borne regular and legal way. We may, however, point out that for the purposes of this principle, it would make no difference whether the alienation is by the widow or mother or some other limited heir of Hindu family. So far as the effect of re -marriage is concerned, the cumulative effect of 89. 6 and 6 would be that she cannot succeed to her husband's estate, and it does not create any disability of an absolute nature, qualified disabilities must be confined to the particular cases contemplated. Here re -marriage, therefore, does not come in the way of her Succession to her son as mother.

(3.) I am in agreement with my learned brother that this appeal should he allowed. I desire to add a few words to the judgment of my learned brother in this case. Hurbaji was the owner of the suit land. He had two wives Harna Bai and Radha Bai; by Harna Bai he had a son by name Bhikaji. After Hurbaji's death, Bhikaji succeeded to the estate but soon after he died. Now the dispute is with regard to the property of Bhikaji the last male holder in this family. After Bhikaji died Harna Bai re -married. The surviving members of the -family were Harna Bai the mother of Bhikaji and Radha Bai his step mother.