# KALISHANKER DAS AND ANOTHER v. DHIRENDRA NA TH P ATRA AND OTHERS

- **Citation:** [1955] 1 S.C.R. 467
- **Court:** Supreme Court of India
- **Decided:** 1955
- **Case number:** Civil No. 108 of 1952
- **Bench:** MuKHERJEA, V1v1AN BosE, GttuLAM HASAN
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/kalishanker-das-and-another-v-dhirendra-na-th-p-atra-and-others-351
- **Pages:** 15

## Headnote

Hindu
law-Widow's
.71as
got
vested right , in
.reversioner-Whether claims
preceding him.
estate-Nature .of-Whether anybody
the estate during her life-time-Actual
through
the
presumptive
reversioner
It is a well-settle<l doctrine of Hin<lu law
that
nobody has a
vested right so long as the widow is alive and the eventual
rever-
-sioner does not claim through any one who went before him.
The interest of a Hindu widow in the properties inherited by
her bears no analogy
or resemblance
to what may be described as
.an equitable estate
in English law and which cannot be followed
in the hands of a bona fide purchaser for value
without
notice.
A Hindu widow has got only qualified proprietorship in her estate
which she can alienate
only when there is justifying necessity and
the restrictions on her powers
of alienation are inseparable
from
her estate.
For legal
necessity
she
can
convey
to another an
.absolute
title to the property vested in her. If there is
no
legal
necessity the transferee gets
only the widow's estate which is not
<even
an indefeasible
life estate for it
can
come to an end not
merely on
her death
but on the happening of other contingencies
like re-marriage, adoption, etc. H an alienee from a Hindu widow
succeeds in establishing
that
there was legal necessity
for
transfer,
he is
completely
protected
and it is
immaterial
that the
necessity was brought about by the mismanagement of the limited
owner herself.
Even if there
is
no necessity
in fact, but it is
proved that there was representation of necessity and
the
alienee
.after making bana fide enquiries
satisfied
himself as best as he
rnuld that such necessity existed, the actual
existence of a
legal
necessity is not a condition precedent to the validity of the
sale.
'Therefore if there is no necessity in fact or if the alienee could not
prove that he made bona fide enquiries and was satisfied about its
existence, the transfer is
not void but the transferee would get
.only the widow's estate in the property which does not in any way
·affect the interest of the reversioner.
Debi Prasad Chowdhury v. Golap Bhagat (I.L.R. 40 Cal. 721 ),
Rangasami Gounden v. Nachiappa Gounden ( 46 I.A. 72),
Bajrangi
'" Manokarnika (35 I.A. I), The Collector of Masulipatam v. Cavaly
Venkata (8 M. I.A. 529) and Hunoomanpersaud Pandey v. Musammat Babooee Munraj Koonweree (6 M.I.A. 393) referred to.
C1v1L
APPELLATE
JuR1so1cTIOK :
Civil
No. 108 of 1952.
Appeal
Appeal from the Judgment and Decree dated the
29th March, 1950. of the High Court of Judicature at
1954
May21
1954
K alishanker Das
and ATlother
v.
Dhirendra Nath
Patra
and Others.
468
- SUPREME COURT REPORTS
[1955]
Calcutta in Appeal from Original Decree No. 121 of
1945 arising from the Decree dated the 22nd December,_
1944, of the Court of Subordinate Judge at Alipore, in
Title Suit No. 70 of 1941.
N. C. Chatterjee (C. N. Laik, D. N. Mukherjee an&
Sukumar Chose, with him) for the appellants.
S. P. Sinha (B. B, Haldar and S. C. Bannerji, with,
him) for respondents Nos. 1 to 3.
1954. May 21.
The Judgment of the Court wasdelivered by
MuKHERJEA J.-This appeal, which has come beforeus, on a certificate granted by the High Court of
Calcutta, under article 133(1) of the Constitution. isdirected against a judgment and decree of a DivisionBench of that Court dated the 29th March,
1950~
affirming, on appeal, those of the Subordinate Judge,_
Fourth Court, Alipore, passed in Title Suit No. 70•
of 1941.
The appellants before us are the heirs and legal
representatives of the original defendant N9. 3 in thesuit, which _was commenced. by the plaintiffs respondents
to recover possession of the property in dispute,.
on establishment of their title, as reversionary heirs of
one
Haripada Patra, after the death of his mother
Rashmoni, who got the property in the restricted rights
of a Hindu_ female heir on Haripada's death. To·
appreciate the contentions that have been raised by
the parties to this appeal it would be necessary to·
narrate the material facts in

## Text

•
..
:S.C.R.
SUPREME COURT REPORTS
467
KALISHANKER DAS AND ANOTHER
v.
DHIRENDRA NA TH P ATRA AND OTHERS.
[MuKHERJEA, V1v1AN BosE and GttuLAM HASAN JJ.]
Hindu
law-Widow's
.71as
got
vested right , in
.reversioner-Whether claims
preceding him.
estate-Nature .of-Whether anybody
the estate during her life-time-Actual
through
the
presumptive
reversioner
It is a well-settle<l doctrine of Hin<lu law
that
nobody has a
vested right so long as the widow is alive and the eventual
rever-
-sioner does not claim through any one who went before him.
The interest of a Hindu widow in the properties inherited by
her bears no analogy
or resemblance
to what may be described as
.an equitable estate
in English law and which cannot be followed
in the hands of a bona fide purchaser for value
without
notice.
A Hindu widow has got only qualified proprietorship in her estate
which she can alienate
only when there is justifying necessity and
the restrictions on her powers
of alienation are inseparable
from
her estate.
For legal
necessity
she
can
convey
to another an
.absolute
title to the property vested in her. If there is
no
legal
necessity the transferee gets
only the widow's estate which is not
<even
an indefeasible
life estate for it
can
come to an end not
merely on
her death
but on the happening of other contingencies
like re-marriage, adoption, etc. H an alienee from a Hindu widow
succeeds in establishing
that
there was legal necessity
for
transfer,
he is
completely
protected
and it is
immaterial
that the
necessity was brought about by the mismanagement of the limited
owner herself.
Even if there
is
no necessity
in fact, but it is
proved that there was representation of necessity and
the
alienee
.after making bana fide enquiries
satisfied
himself as best as he
rnuld that such necessity existed, the actual
existence of a
legal
necessity is not a condition precedent to the validity of the
sale.
'Therefore if there is no necessity in fact or if the alienee could not
prove that he made bona fide enquiries and was satisfied about its
existence, the transfer is
not void but the transferee would get
.only the widow's estate in the property which does not in any way
·affect the interest of the reversioner.
Debi Prasad Chowdhury v. Golap Bhagat (I.L.R. 40 Cal. 721 ),
Rangasami Gounden v. Nachiappa Gounden ( 46 I.A. 72),
Bajrangi
'" Manokarnika (35 I.A. I), The Collector of Masulipatam v. Cavaly
Venkata (8 M. I.A. 529) and Hunoomanpersaud Pandey v. Musammat Babooee Munraj Koonweree (6 M.I.A. 393) referred to.
C1v1L
APPELLATE
JuR1so1cTIOK :
Civil
No. 108 of 1952.
Appeal
Appeal from the Judgment and Decree dated the
29th March, 1950. of the High Court of Judicature at
1954
May21
1954
K alishanker Das
and ATlother
v.
Dhirendra Nath
Patra
and Others.
468
- SUPREME COURT REPORTS
[1955]
Calcutta in Appeal from Original Decree No. 121 of
1945 arising from the Decree dated the 22nd December,_
1944, of the Court of Subordinate Judge at Alipore, in
Title Suit No. 70 of 1941.
N. C. Chatterjee (C. N. Laik, D. N. Mukherjee an&
Sukumar Chose, with him) for the appellants.
S. P. Sinha (B. B, Haldar and S. C. Bannerji, with,
him) for respondents Nos. 1 to 3.
1954. May 21.
The Judgment of the Court wasdelivered by
MuKHERJEA J.-This appeal, which has come beforeus, on a certificate granted by the High Court of
Calcutta, under article 133(1) of the Constitution. isdirected against a judgment and decree of a DivisionBench of that Court dated the 29th March,
1950~
affirming, on appeal, those of the Subordinate Judge,_
Fourth Court, Alipore, passed in Title Suit No. 70•
of 1941.
The appellants before us are the heirs and legal
representatives of the original defendant N9. 3 in thesuit, which _was commenced. by the plaintiffs respondents
to recover possession of the property in dispute,.
on establishment of their title, as reversionary heirs of
one
Haripada Patra, after the death of his mother
Rashmoni, who got the property in the restricted rights
of a Hindu_ female heir on Haripada's death. To·
appreciate the contentions that have been raised by
the parties to this appeal it would be necessary to·
narrate the material facts in chronological order.
The property in suit which is premises No. 6 Dwarik
Ghose' s Lane situated
in
the
suburb of
Calcutta·
admittedly formed part of the estate of one Mahendra·
Narayan Patra, a Hindu inhabitant of Bengal, owning
considerable properties, who died on the
17th April,
1903, leaving him surviving his widow Rashrnoni, two•
infant sons by her, Mohini Mohan and Haripada and a
grandson Ram Narayan by a predeceased son Shyama•
Charan. Shyama Charan was the son of Mahendra byhis first wife, who died during his lifetime. On the 17thFebruary, 1901, Mahendra executed a will 'by which hemade certain religious
and charitable dispositions
andl
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S.C.R.
SUPREME 'COURT REPORTS
\69
subject to them, directed his properties to be divided
amongst his infant sons Mohini and Haripada and his
grandson
Ram Narayan.
Ram Narayan was appointed
executor under the will. After the death of Mahendra,
Ram Narayan
applied
for probate of
the
will and
probate was obtained by him on the 6th of October,
1904.
Ram
Narayan entered upon the
management
of the estate. He developed extravagant and immoral
habits and soon ran into debts.
The bulk of the
properties
were
mortgaged
to one
Kironsashi
who
having obtained a decree on the mortgage applied for
sale of the mortgaged properties. Thereupon Rashmoni
on behalf of her infant sons instituted a suit against
the mortgagee and the mortgagor and got a declaration
that the mortgage decree could not bind the infants'
shares in the properties left by their father. This
judgment was given on the 31st March, 1909. On the
13th August,
1909,
the two infant sons of Mahendra
to wit Mohini and Haripada, by their mother and next
friend Rashmoni, instituted a suit in the Court of the
Subordinate Judge at Alipore, being Title Suit No. 45
of 1909, claiming administration of the estate left by
Mahendra as well as partition and accounts on the basis
of the will left by him. On the 14th of August, 1909,
one Baroda Kanta Sarkar, Sheristadar of the Court of
the District Judge, Alipore, was
appointed, with the
consent of both parties, receiver of the estate forming
the subject-matter of the litigation. The receiver took
possession
of
the
properties
immediately after this
order was made. The management by the receiver, as
it appears, was not at all proper or beneficial to the
interest of the two sons of Mahendra. Mahendra himself left no debts and whatever debts were contracted,
were contracted by Ram Narayan to meet his own
immoral and extravagant expenses. The receiver however went on borrowing large sums of money upon
ex parte orders received from the Court, the ostensible
object of which was to pay off the debts due by Ram
Narayan which were not at all binding on the plaintiffs.
Fearing that the
longer the suit continued and the
properties remained in the hands of the receiver the
more harmful it would be to the interests of the
1954 .
K alishanker Das
and Another
v.
Dhirendra Nath
Patra
and Others.
M ukheljea J-
1954
Kalishanktr Das
and Anolhtr
v.
Dhirenrfra JVath
Pa tr a
and Others.
Mukhn:jta].
470 •
SUPREME COURT REPORTS
[1955j
mmors, Rashmoni on behalf of the minors compromised
the suit with Ram Narayan and a Solenama was
filed
on the 13th June, 1910. The terms of the compromise,
in substance, were, that the properties in suit were to
be held in divided shares between the three parties and
specific aUotments
were made in favour of each,
the
properties allotted to the share of Haripada being
specified in schedules Gha and Chha attached to the
compromise
petition. It was further provided that the
receiver woukl be discharged on submitting his final
accounts.
It may be
mentioned here that the property
which is the subject-matter of
the present suit was,
under the Solenama, allotted to the share of Haripada.
On the very day that the compromise was filed, Rashmoni applied for discharge of the receiver. The Court
made an order directing the receiver to submit his final
accounts
within one month, or as early as possible,
when the necessary order for discharge would be made.
It was further directed that as the suit was disposed
of
on
compromise
the
receiver
should
discontinue
collecting rents and profits due to the estate from that
day. This order however was modified by a subsequent
order made on 23rd June, 1910, which directed that the
receiver was to continue in possession of the estate
until he was paid whatever was due to him for his
ordinary commission
and
allowances
and until the
parties deposited in Court the amounts borrowed bv
the receiver under orders of the Court or in the alternative gave sufficient indemnity for the same. After this,
Rashmoni on behalf of her minor sons filed two successive applications before the Subordinate Judge praying
for permission to raise by mortgage, of a part of the
estate,
the moneys necessary
for
releasing the
estate
from the
hands of the receiver. The first application
was rejected and the second was granted, after it was
brought to the notice of the Subordinate Judge that the
receiver
was attempting to dissuade
prospective lenders
who were approached on behalf of Rashmoni, to lend
any money
to her. On the 16th of
January,
1911,
Haripada, the younger son of Rashmoni, died and his
interest devolved upon his mother as his heir under the
Hindu law. On
the
28th January, 1911, the following
order was recorded by the Subordinate Judge :
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'·
S.C.R.
SUPREME COURT REPORTS
471
"The receiver has filed
a statement showing the
amount as
due to him up to the end of the current
month. This
claim amounts
to
Rs. 20,950-2-6
pies
only. The parties may deposit the sum on or bef~re the
1st February next in Court and on such deposit the
receiver will be discharged and the possession
of the
estate of late Mahendra Narayan Patra will be made
over to the parties."
On the very same day Mohini executed a mortgage
(Ex. M-1) in favour of one Suhasini Dasi by which he
hypothecated the
properties allotted
to his share and
also his future interest as reversioner to . the share of
Haripada, to secure an advance of Rs. 30,000. The
loan was
to carry interest at the rate of 18%
per
annum. One thing may be mentioned in
connection
with
this mortgage, and
that is, that amongst the
properties included in the mortgage were two properties, namely, premises No. 15/1 and 16 Chetlahat Road,
which had already been sold and to which the mortgagor had no title at the date of the mortgage. On
the 1st February, 1911, Mobini deposited in Court the
sum of Rs. 20,950-2-6 pies, being the am<?unt alleged to
be due to the receiver and the Court by an order passed on that date directed the release of the estate from
the hands of the receiver. After the estate was released
a petition was filed on behalf of the plaintiffs on · the
15th February, 1911, praying that the loans said to be
contracted by the receiver should not be paid out of
the money deposited in Court, as these borrowings were
made not for the protection of the estate but only for
the ·personal benefit of the defendant, Ram Narayan,
and to pay off his creditors. It was contended that
the loans raised by the receiver were not raised in good
faith, after proper notice to the plaintiffs but on . the
strength of orders which he obtained ex parte from1 the
Subordinate Judge without disclosing the material facts.
This application was rejected by the Court on the 23rd
February, 1911. After this
order was made, the plaintiffs
put in a petition praying that payment
of
the
moneys' due to the creditor with the exception of what
was necessary to pay off one of the creditors, named
Rakhal Das Adhya, be stayed till the following Monday
1954
Kalishanker Das
and Another
v.
Dhirendra ·Nath
Patra
and Othm.
Mukherjea J.
·1954
Kalisha.nker Das
and Another
v.
..Dhirendra Nath
Patra
and Others.
Mukherjea J.
472
SUPREME COURT REPORTS
[1955]
as the plaintiffs wanted to move the High Court against
the order of the Subordinate Judge
mentioned above.
The Court granted this prayer and on the 2nd of March
follO\i;jng, orders were received from the High Court
directing that the moneys were to be detained in Court
pending further orders. The High Court made order
on the plaintiff's petition on the 29th May, 1911. The
learned Judges were very critical of the appointment
of the Sheristadar of the Court as receiver of the estate
and in no measured terms blamed the Subordinate
Judge for passing ex parte orders for raising loans on the
applications
of the receiver without any
investigation
at all and the receiver also for borrowing money not
for the benefit of the estate but for the personal benefit
of Rama Narayan, the defendant. The High Court
directed a full and proper investigation of the accounts
of the receiver by a Commissioner and a Vakil of the
High Court was appointed for that purpose. The
Commissioner after a protracted enquiry submitted his
report which was accepted by the High Court. Under
the final orders passed by the High Court not on! y
were the plaiμtiffs held not liable to pay any money to
the receiver but the receiver was directed to pay a sum
-0f Rs. 6,708 to the plaintiffs. The plaintiffs were also
to receive Rs. 4,084 from the defendant, Ram Narayan.
The defendant was to pay Rs. 19,124 to the receiver
and
the
receiver was made personally liable for
the
loans that he had incurred. This order was made on
the 23rd July, 1913.
In the meantime while the investigation of accounts
were going on under orders of the High ~urt, ·Rashmoni, together with her son· Mohini executed a security
bond (Ex. E-1) on the 1st August, 1911, and it is upon
.the legal effect of this document that the decision of
this .case practically depends. By this security bond,
which was executed in favour of Suhasini Dasi, the
mortgagee in the mortgage bond of Mohini, Rashmoni
.purported to hypothecate all the properties that she
.got as heir of Harip.ada, as additional security for the
loan of Rs. 30,000 already advanced to Mohini under
.the mortgage. As
is
stated already, two properties
.situated at Chetla were included in the mortgage of
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·-
:S.C.R.
SUPREME COURT REPORTS
473
Mohini although they were already sold. The security
bond recites that the mortgagee having discovered this
fact was
about to institute legal
proceedings against
the mortgagor and it was primarily to ward off these
threatened proceedings
and remove
any
apprehension
from the minds of the mortgagee about the sufficiency
.of the
security that this
bond was executed. It is
further stated in the bond that the estate of Haripada
m the hands of his mother was benefited by the deposit
-0£ Rs. 20,950 in Court by Mohini Mohan out of the
sum of Rs. 30,000 borrowed on the mortgage and that
Mohini had spent the remammg amount of the loan
towards clearing certain debts of Rashmoni herself and
to meet the litigation and other expenses of both of
them. Mohini died soon after on the 8th of November,
1911. On October 13, 1917, Suhasini instituted a suit
for enforcing the mortgage and the security bond
.against Rashmoni and the heirs of Mohini.
A prelimmary decree was passed on compromise in that suit
-0n the 24th September,
1918, and on the 25th July,
1919, the decree was made final. The decree was put
into execution and on the 15th September, 1919, along
with other properties, the property in dispute was put
up to sale and it was purchased by Annada Prasad
Ghose for Rs. 13,500.
On the 14th November,
1919,
Bhubaneswari, wife of Ram Narayan, as
guardian of
her infant sons filed a suit, being Title Suit No. 254 of
1919 against Suhasini, Rashmoni and Annada attacking
the
validity
of
the mortgage decree
obtained by
Suhasini as well as the sale in execution thereof. The
suit ended on the 6th July, 1921, and the plaintiff gave
up her claim. On September 5, 1922, Annada Ghose
borrowed a sum of Rs. 10,000 from Sarat Kumar Das,
the original defendant No. 3 in the suit and the father
-0£ the present appellants and by way of equitable
mortgage deposited with the lender the title deeds of
the property No. 6, Dwarik Ghose Lane. On the 14th
September, 1925, Annada sold the property by execut- .
ing a conveyance in favour of the mortgagee Sarat
Kumar Das for a consideration of Rs. 15,500. On the
8th June,
1939, Rashmoni died. About a year later
on July 15, 1940, the three sons of Ram Narayan, who
1954
Ka/ishanker Das
and Another
v.
Dhirendra Nath
Patra and Others.
Mukheljea J .
•954
Kalis hanker Das
and Another
v.
Dhirendra Nath
Patra and Others.
474
SUPREME COURT REPORTS
[1955}
are the reversionary heirs of Haripada after the death
of Rashmoni, commenced the present suit in the Court
of the Subordinate Judge at Alipore claiming to recover
possession of the property
on the allegation,
that the
security bond executed by Rashmoni not being supported by legal necessity, the sale in execution of the
mortgage
as
well. as the
subsequent
conveyance
in
favour of Sarat Kumar Das could pass only the right,
title and interest of Rashmoni and could not affect the
reversionary
rights
of
the
plaintiffs.
Several
other
persons were impleaded as
parties defendants and a
number of issues were raised with which we are not
concerned in this
appeal. What concerns us in this
appeal is the dispute between the plaintiffs on the one
hand and defendant No. 3 on the other and this dispute
centered round three points, namely,
(!) Whether the security bond (Ex. E-1) executed
by Rashmoni along with Mohini was executed for legal
necessity
and was therefore binding on the reversioners of Hari1iada after the death of Rashmoni ?
(2) Whether the fact that Mohini, who was
the
presumptive reversioner at that time, joined with his
mother in executing the security bond would make it
binding on the actual reversioner after the death of
Rashmoni ? In any event
if such consent on the part
of the presumptive reversioner raised a presumption of
legal necessity, was that presumption rebutted in the
present case by the evidence adduced by the parties ?
(3) Whether the title of defendant No. 1 was
protected, he being a stranger· purchaser who had purchased the property from the purchaser at an execution
sale after making proper enquiries and obtaining legal
advice ?
The trial Judge by his judgment dated the 22nd
December, 1944, decided all these points in favour of
the plaintiffs and decreed the suit. On appeal by the
defendant to the High Court, the decision of the trial
Judge was affirmed. The heirs of defendant No. 3 have
now come up to this Court and Mr. Chatterjee appearing in support of the appeal has reiterated all the three
points which were urged on behalf of his clients in the
Courts below.
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S.C.R.
SUPREME COURT REPORTS
475
On the first point both the Courts below have held
concurrently, that there was absolutely no legal necessity which justified the execution of the security bond
by Rashmoni in favour of Suhasini. Mr. Chatterjee
lays stress on the fact that it was a matter of imperative necessity
for both the plaintiffs to get back the
estate of their father from the hands of the receiver as
the debts contracted by the receiver were mounting up
day after day.
It is
pointed out that on the 28th
January, 1911, the Court had made a peremptory
order
to
the
effect
that the
properties
could
be
released
only if the plaintiffs deposited Rs. 20,950
annas odd on or before the 1st February next. In order
to comply with this order Mohini had no other alternative but to borrow money on the mortgage of his
properties
and
this he had
to
do before the ht
February, 1911. It is true that because of the unfortunate death of Haripada only a few days before,
Rashmoni could not join in executing the mortgage
but she, as heir of Haripada, was really answerable for
half of the money that was required to be deposited in
Court. It is said that this was not a mere moral obligation but a legal liability on the part of the lady, as
Mohini could have claimed contribution from her to
the extent that Haripada's estate was benefited by the
deposit. The execution of the security bond therefore
was an act beneficial to the estate of Haripada. The
contentions, though somewhat plausible at first sight,
seem to us to be wholly without substance. In the
first place the money borrowed by Mohini or deposited
by him in Court did not and could
not benefit Haripada's estate at all. As was found, on investigation of
accounts,
under orders,
of the High Court la~er on,
nothing at all was due to the receiver by the estate of
Haripada or Mohini. On the other hand, both the
brothers were entitled to get a fairly large sum of
money from the receiver. The trial Judge found that
there was
no urgent
necessity
to borrow money for
releasing . the estate and in fact it wa~ Mohini who acted
in hot haste to execute the mortgage, his only object
being to get the properties in his own hands. It may
be, that it was not possible to know the actual state·
12-87 S. C. India/59
1954
K alishanker Das
and Another
v.
Dhirendra Nath
Patra and Others.
~... i:-
Mukherjea J.
1954
K alishanku Das
arid Another
v.
Dhirendra Nath
-Potra and Others.
MukMrjta J.
476
SUPREME COURT REPORTS
[1955]
of affairs with regard to the receiver's accounts and
consequently it might well have been thought prudent
to borrrow money to ward off what was considered to
be a danger to the estate. This might furnish some
excuse
or explanation for Mohini's borrowing money
on the 28th January, 1911, but that could not make the
act of Rashmoni in executing the security bond, seven
months after that event, an act of prudent management on her part dictated either by legal necessity or
considerations of benefit to the estate of her deceased
son. In the first place it is to be noted that the total
amount borrowed by Mohini was
Rs. 30,000 out of
which Rs. 20,950 only were required to be deposited in
Court. The recital in the security bond that the rest of
the money was spent by Mohini to pay off certain
debts of Rashmoni herself and also to meet the litigation and household expenses of both of them has been
held by the Subordinate Judge to be false. It has been
found on facts
that Rashmoni had no occasion to incur
any debts either for litigation expenses or for any other
purpose. But the
most important thing that would
reqmre consideration
1s
the state of things actually
existing at the time when the security bond was
executed. Even if the release of the estate was considered to be desirable, that had been already accomplished by Mohini who borrowed money on his own
responsibility. The utmost that could be said .was that
, Rashmoni was bound to reimburse Mohini to the extent
, that the deposit of money by Mohini had benefited the
estate of Haripada. The High Court has rightly pointed
out that Rashmoni did not execute the bond to raise
any money to pay off her share of the deposit and in
fact no necessity for raising money for that purpose at j
all existed at that time. As has been mentioned already,
by an order passed by the High Court on the revision
petition of Mohini and his mother against the order of
the Subordinate Judge
dated the 23rd February, 1911,
, the whole amount of money deposited in Court on the
1st, February, 191/, with the exception of a small sum
that was paid to a creditor, with the consent of both
parties, was detained in Court. The High Court disposy
' ed of the revision case on 29th May, 1911, and directed
~
'
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j
..
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•.
S.C.R.
SUPREME COURT REPORTS
477
investigation into the accounts of the receiver by a Commissioner appointed by it. As said already, the Court
passed severe strictures on the conduct of the receiver as
well as of the Subordinate Judge and plainly indicated
that the
moneys
borrowed by the receiver were
borrowed not for the benefit of the plaintiffs at all.
Undoubtedly the accounts were still to be investigated
but what necessity there possibly could be for Rashmoni
to execute, after the High Court had made the order
as stated above, a security bond by which she mortgaged all the properties that were allotted to Haripada
in his share as an additional security for the entire loan
of Rs. 30,000 no portion of which benefied the estate of
Haripada at all ? In our opinion the only
object of
executing the security bond was to protect Mohini who
was threatened with legal proceedings by his creditor for
having included a non-existent property in the mortgage
bond. Rashmoni certainly acted at the instance of and
for the benefit of Mohini and she might have been
actuated by a feeling of maternal affection to save her
son from a real or imaginary danger. But by no stretch
of imagination could it be regarded as a prudent act
on the part of a Hindu female heir which was necessary
for the protection of the estate of the last male holder.
In our opinion the view taken by the Courts below is
quite proper and as a
concurrent finding of fact
it should not be disturbed by this Court.
The second point urged by Mr. Chatterjee raises the
question as to whether the fact of Mohini's joining his
mother in executing the security bond would make the
transaction binding on the actual reversioner, Mohini
being
admitteciiy
the
presumptive
reversioner of
Haripada at me date of the transactions. We do not
think · that there could be any serious controversy about
the law on this point. The alienation here was by way
of mortgage and so no question of surrender could
possibly arise. Mohini being the immediate reversioner
who joined in the execution of the security bond must
be deemed to have consented to the transaction. Such
consent may raise a presumption that the transaction
was for legal necessity or that the mortgagee had acted
therein after proper and bona fide
enquiry and has
.1954
Ira/ishanker Das
and Another
v.
Dhir,,.dra Nath
Patra and Others.
.-
. Mutwrjeo J.
1954
Ealish«nkd D11
atttl Aaolher
v.
Dhirw.drtJ Nath
Patra aJid Others.
478
SUPREME COURT REPORTS
[1955]
satisfied himself as to the existence of such necessity(').
But this presumption is rebuttable and it is open to
the actual reversioner to establish that there was in
fact no legal necessity and there has been no proper
and bona fide enquiry by the mortgagee. There is no
doubt that both the Courts below have proceeded on a
correct view of law and both have come to the conclusion upon a consideration of the evidence in the case ·
that the presumption that arose by reason of the then
reversioner's giving
consent to the transaction was
rebutted by the facts transpiring in evidence.
Mr. Chatterjee . placed
considerable reliance
upon
another document which purports to be a deed of
declaration and was executed by Ram Narayan on the
5th of October, 1918. At this time Mohini was dead
and Ram Narayan was the immediate reversioner to
the estate of Haripada and by this deed he declared
inter alia that the debts contracted by Rashmoni were
for proper and legal necessity. This deed purports to
be addressed to Bangshidari Ghosh and Keshav Dutt,
two other alienees of the properties of Mohini and
Haripada and does
not
amount to a representation
made to the auction purchaser Annada Prasad Ghose
or to the father of the present appellants. In fact they
had not come in the picture . at all at that time. At the
most it can be regarded only as an admission by a
presumptive
reversioner
and cannot have any
higher
value than the consent expressed
by
Mohini who
figured as a co-exe.cutant of the security hond. It
cannot bind the actual reversioner in any way.
Mr.
Chatterjee attempted to put forward
an argument on
the authority of cetrain observations in the case of
Bajrangi v. Monokarnika( 2 ) that as the present appellants are the sons of Ram Narayan
the admissions
made by their father would bind them ·as well. It is
true that there is a passage at the end of the judgment
in Monokarnika's case(') which lends
some apparent
support to the contention of the learned counsel. The
concluding words in the judgment stand as follows :
· (1) VideDebiProsadChowdhuryv. GolapBhagat, I. L. R. 40 Cal. 72I at
781. Approved of by the Judicial
Committee in
Goundtn
v. Gounden,
46 I. A. 7•, 84.
•, (•) 35 I.A. 1.
-\-
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-
-
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$.C.R.
SUPREME COURT REPORTS
479
"The appellants who claim through Matadin Singh
and Baijnath Singh must be held bound by the consent
of their fathers.''
But the true import of this passage was discussed by
the Privy Council in their later pronouncement in
Rangasami Gounden v. Nachippa Gounden(1) and it was
held that the words referred to above should not be
construed to
lay
down the proposition that such
consent on the part of the father would operate proprio
vigore and would be binding on the sons. This proposition, Their Lordships observed, was opposed both
to principle and authority, it being a settled doctrine
of Hindu law that nobody has a vested right so long
as the . widow is alive and the eventual reversioner
does not claim through anyone who went before him.
As the sons of Ram Narayan claim as heirs of Haripada
and not of their father, the admissions, if any, made
by the latter could not in any way bind them. This
contention of the appellant must therefore fail.
The third
and
the last
contention
raised
by
Mr. Chatterjee
is
that in any event his client is a
stranger who has bona fide purchased the property for
good consideration after making due enquiries and on
proper legal advice and he cannot therefore be affected
by any infirmity of title by reason of the absence of
legal necessity.
In our opinion the contention formulated in this form really involves a misconception
of the legal position of an . alienee of a Hindu widow's
property. The interest of a Hindu widow in the properties inherited by her bears no. analogy or resemblance to what may be described as an equitable estate
in English law and which cannot be followed in the
hands of a bona fide purchaser for· value without 'notice.
From very early times the Hindu widow's estate has
been described as qualified proprietorship with powers
of alienation only when there is justifying necessity,
and · the restrictions on the powers of alienation are
inseparable from her estate(3 ). For legal necessity she
can convey to another an absolute title to the property
vested in her. If there is no legal necessity, the transferee gets only the widow's estate which is not even an
' (J) 46 I. A. 7ut 83-84.
.
(2) Vidc The Col/eclor of Masaulipatam v. Cavai;I Venkpla, 8 M.I.A. 529.
tgM
----
K •li•h•llk" Du
•nd Anolhlr
.,.
Dhi,,~dra Nath
Palra and Olh"1.
Mukh1rj1a J.
1954
KMi1honbr D1.1
on4 .Anolhtr
v.
Dhirtnam N alh
Pidro. and 01h,,-1
Mukh1rj1a J.
480
SUPREME COURT REPORTS
[1955)
indefeasible life estate for it can come to an end not
merely on her death but on the happening of other
contingencies like re-marriage, adoption, etc.
If an
alienee from a Hindu widow succeeds m establishing
that there
was legal necessity for transfer, he 1s
completely protected and it 1s immaterial that the
necessity was brought about by the mismanagement of
the limited owner herself. Even if there is no necessity
in fact, but it 1s proved that there was representation
of necessity and the alienee after making bona fide
enquiries satisfied himself as best as he could that such
neces,ity existed, then as the Privy Council pointed
out in Hunooman Persaud Panday's case(') the actual
existence of a legal necessity is not a condition precedent to the validity of the sale. The position therefore
1s that if there 1s no necessity in fact or if the alienee
could not prove that he made bona fide enquiries and
was satisfied
about
its existence, the
transfer is
undoubtedly not void but the transferee would get
only the widow's estate in the property which does not
affect in any way the interest of the reversioner. In
this case the alienation was by way of mortgage. The
finding of both the Courts below is that there was no
legal necessity which justified the execution of the
security bond. The mortgagee also could not prove
that there was representation of the legal necessity and
that she satisfied herself by bona fide enquiries that
such necessity did exist. On this point the finding
recorded by the High Court is as follows :
"In the present . case, there is no scope for an
argument that there was such representation of legal
necessity or that on bona fide enquiry the alienee satisfied herself that there was such a necessity, for as I
have already pointed out the security bond itself states
that it was in consideration of benefits already received
and with a view to induce Suhasini to forbear from
proceeding against Mohini, that the bond was being
executed. There is no representation in the bond that
the alienation was made with a view to securing any
benefit to the estate or to avert any danger to the
estate or for the purpose of any other legal necessity.
Whatever enquiries
the appellants
may have made
(•) 6 M.l.A. 393·
•
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"'
•
'~
S.C.R.
SUPREME COURT REPORTS
481
would be of no avail to them when the alienation is not
binding on the whole estate but only on the woman's
estate of Rashmoni."
In our opinion the view taken by the High Court is
quite proper. On this finding the security bond could
operate only on the widow's estate of Rashmoni and
it was that interest alone which passed to the purchaser
at the mortgage
sale.
The subsequent transferee
could not claim to have acquired any higher right
than what his predecessor had and it 1s immaterial
whether he bona fide paid the purchase money or took
proper legal advice. The result is that in our opinion
the decision of the High Court is right and this appeal
must stand dismissed with costs.
Appeal dismissed.
RATIAN
ANMOL
SINGH
AND
ANOTHER
ti.
ATMA RAM AND OTHERS.
[MuKHERJEA, VIVIAN BosE and
VENKATARAMA AYYAR JJ.]
Representation of the People Act, 1951 (XLill of 1951), ss. 2
(J)(k), 33(1) and (2), 36(2)(d) and (")-Representation of the People
(Conduct of Elections and Election Petitions) Rules, 1951, r. 2(2)-
Nomination paper-Subscribed by illiterate proposer and seconderContaining thumb-mark instead of signatures-No attestation thereof
-Validity
of-Attestation-Whether
a
necessary
formality-At
what stage it must exist~Whether can be validated at scrutiny .stage.
Under section 33( 1) of the Representation of the People Act,
1951, each nomination paper should be "subscribed" by a proposer
and a seconder. Where the proposer and the seconder of a nomination paper (as in the present case)
arc illiterate and so place
thumb-marks instead of signatures and those thumb-marks arc not
attested,
the nomination paper is
invalid as
attestation
in the
prescribed manner in such a case is necessary because of rule 2(2)
of the Representation of the People (Conduct of Elections and
Election Petitions) Rules, 1951, which requires it.
Signing, whenever
signature is necessary, must be
in strict
accordance with the requirements of the Act and where the signature cannot be written
it
must
be
authorised
in the manner
prescribed by the Rub.
&.a
1954
X•li1luaker Dt11
tmtl Anolher
v.
Dhirmdra Nath
Polro and Qlhus
M~ '"'·