S CHIDAMBARAMMA Vs. SHUSSAINAMMA

JUDGEMENT

(1.) The facts are as follows: the plaintiff is the decree-holder in Original Suit No. 311 of 1901 on the file of the Nandyal District Munsif s Court. The judgment-debtor is the first defendant, a Hindu widow who represented her husband s estate fully and the decree was passed for a debt due by her husband. The plaint property was attached by the plaintiff (decree-holder) as belonging to her husband s estate. The attachment was made on the 11th November 1908, but the widow (the first defendant) had sold the property in 1899 itself to the third defendant, who sold it in his turn to the second defendant in 1905. The widow s sale was not made for necessity and was invalid beyond her life-time.

(2.) On these facts the question in second appeal is whether the plaintiff, who is the appellant before us, is or is not entitled to attach and bring to sale in execution of his decree in Original Suit No. 311 of 1901 that portion of the husband s estate which is left unaffected by the sale executed by the widow, that sale-deed as we said before not affecting more than that interest in the property which could enure during the widow s life-time. There are no doubt observations in several cases deprecating the description of a Hindu widow s estate as a life interest, because she fully represents the estate for most purposes and nobody else represents any interest in the estate during her life-time and she is not a trustee for anybody. (See paragraphs 624 and 625 of Mayne s Hindu law.) My own opinion is that when once it is admitted that she represents the estate fully, some of the Hindu law texts which direct her not to alienate the estate except for necessary purposes are merely moral admonitions and a sale by her in contravention of those moral precepts does not fail to convey the absolute ownership to the purchaser. But authorities which cannot possibly be got over have held that an. alienation not for legal necessity is only valid during her life-time, that is, it conveys to the purchaser only a right to enjoy during the widow s life-time. See the very recent case Singaram Chettiar v. Kalyanasundaram Pillai (1914) M.W.N. 735. When the full estate is vested in her and yet owing to the restrictions which from being moral restrictions have become legal restrictions, she can convey only an interest to last during her life-time by a conveyance not for legal necessity, it seems to me to follow that the absolute estate vested in her becomes by her alienation for her own purposes (valid during her life-time) divided into two estates (1) a life estate enjoyable by the purchaser during her life-time and (2) a reversionary estate to be enjoyed after her life-time, both of which estates or rather the total of which belonged to her husband at his death. So far as her life interest is concerned, it became by her alienation not available to the creditors of her husband; but the ownership of the remaining reversionary estate continues in her as part of the estate which she inherited from her husband. That seems to me to be available to her husband s creditors. Mr. T.M. Krishnaswami Ayyar relied upon the cases, which have held that a presumptive reversioner has no interest in the property during the widow s life-time which can be attached by his creditor. See the latest case of this Court in Sri Jagannadharaju v. Sri Rajahprasada Rao (1916) I.L.R. 39 Mad. 554. In my opinion, these decisions are irrelevant in the consideration of the question whether the widow as heir of her husband has still left in her some property belonging to her husband s estate which could be attached by her husband s creditor after she had made an alienation binding on her during her life-time. No person can claim during the widow s life-time, after the alienation of the, widow s life estate, to be the owner of that reversionary interest, but it does not follow therefrom that no reversionary interest in property forming part of the husband s estate is left after her alienation of her life estate. If an interest belonging to the husband s estate is left some legal person must be its owner. If a presumptive and contingent reversioner is not the legal person in whom the reversionary right exists, it must be the widow in whom the whole legal estate vested at her husband s death. If so the decree-holder who obtained a decree against her as fully representing her husband must be entitled to attach that reversionary interest remaining in her as part of her husband s estate,

(3.) Section 60, Clause (m) of the Civil Procedure Code and Section 6, Clause (a) of the Transfer of Property Act, are also relied on by Mr. T.M. Krishnaswami Ayyar. Section 60(m) of the Civil. Procedure Coda prohibits the attachment of a judgment-debtor s expectancy of succession. Section 6(a) of the Transfer of Property Act prohibits the transfer of the chance of an hair-apparent s succession by such heir-apparent. These statutory provisions again are, in my opinion, irrelevant to the consideration of the question before us because the judgment- debtor here is not the presumptive or contingent reversioner but the widow representing her husband s estate fully, and the transfer which would he made by the attachment and court- sale of the reversionary interest is not made by any contingent reversioner or of the rights of the contingent reversioner in execution of a decree against him but by the Court acting upon the judgment-debtor s rights and upon the husband s estate vested in the judgment-debtor (widow).