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/s. Ramanath Kaniram (1928) I. L. R 52 Bom. 542 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/s. Gobind Krishna Narain (1909) L R. 361. A. 138 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/s. Ramanath Kaniram is incorrect and that there is a previous full bench decision of this Court in Sakrabhai V/s. Maganlal (1901) I.L.R. 26 Bom. 206 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.) It is clear that under the Hindu law an alienation by a widow of her husband's property for legal necessity is binding on the reversioner. So also a decree fairly and properly obtained against her in regard to that property is, in the absence of fraud or collusion, binding on him, and this is so in spite of the fact that the reversioner does not claim through the widow but takes the property as heir of the last male owner. The reason is that the widow is not merely a life-tenant but an owner with certain restricted powers to incur debts and even to dispose of the property for legal necessity, and in cases governed by the Mayukha in our Presidency, with full powers of disposition over the moveables by acts inter vivos. Now, it is a cardinal principle of Hindu law that he who takes the estate is subject to the obligation of paying its just debts. About decretal debts and secured debts for legal necessity there is no doubt as to their binding nature on the property in the hands of the reversioner, but a difference of opinion exists with regard to -unsecured debts even though they may be legally justifiable on the ground of necessity. One view is that such debts are not binding on the estate because they involve only personal liability of the widow, while the other view is that they are so binding provided the widow incurs them in her representative capacity and, as laid down in some cases, provided the evidence makes it clear that the lender looked to the credit of the estate and not to the personal credit of the widow. About one class of unsecured debts, however, there seems to be general agreement that they are so binding, and those debts are what are known as trade debts, i.e., debts ordinarily incurred by a widow in the course of the management of a business concern inherited by her. That proceeds on the basis that when she incurs such debts, the presumption is that the creditor looks to the credit of the assets of the business and not to her personal credit, and therefore although no specific charge is created, the credit of the business is impliedly pledged: Sakrabhai V/s. Maganlal and Pahalwan Singh V/s. Jiwan Das (1919) I.L.R. 42 All. 109.