AKKAVA RAMCHANDRAPPA YADAV Vs. SAYADKHAN MUTHEKHAN MULGUND

JUDGEMENT

(1.) On August 14, 1911, the plaintiff Akkawa and her daughter-in-law Tulsawa sold the suit property to one Hayatkhan for Rs. 1,300. That is Exhibit 45. At that time Tulsawa, as the widow of the plaintiff's son Bhimaji, was the immediate owner of the property, and the plaintiff was the nearest reversioner. In the following year Tulsawa remarried and thereupon the plaintiff Akkawa succeeded to the property. In 1921 the plaintiff sued to recover the suit property from Hayatkhan's heirs in suit No. 472 of 1921. She obtained a decree, but in execution she was resisted by Hayatkhan's brother Sayadkhan, with the result that this present suit was instituted on December 13, 1922, against Sayadkhan.

(2.) It has been held by both Courts below that there was no legal necessity for the sale in 1911. Some attempt was made to challenge that finding before us, but we think the concurrent findings of both Courts must be upheld. It is not sufficient to show that possibly the onus of proof was put upon the wrong party. On the facts shown here, it would seem that the Court decided this point irrespective of where the onus lay.

(3.) The main point then for our decision is this. In a case where a Hindu widow without legal necessity sells property with the consent of the nest reversioner, can that same next reversioner subsequently challenge the transaction after the death of the Hindu widow ? One can clear the ground to some degree because two comparatively recent decisions by their Lordships of the Privy Council have made the position up to a certain point quite clear. One proposition established beyond all question by Annada Mohan Roy V/s. Gour Mohan Mullick (1923) L.R. 50 I.A. 239, s.c. 25 Bom. L.R. 1269 is that by Indian law you cannot transfer a mere apes successionis nor can you contract to transfer it. Consequently, the position in India is quite different to what was laid down in England in Tailby V/s. Official Receiver, (1888) 13 App. Cas. 523 where Lord Macnaghten said (p. 542) :-. The claim of the purchaser was rested on well-known principles. It has long been settled that future property, possibilities and expectancies are assignable in equity for value. The mode or form of assignment is absolutely immaterial provided the intention of the parties is clear. To effectuate the intention an assignment for value, in terms present and immediate, has always been regarded in equity as a contract binding on the conscience of the assignor and so binding the subject-matter of the contract when it cornea into existence, if it is of such a nature and so described as to be capable of being ascertained and identified.