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1928 Supreme(SC) 57
PRIVY COUNCIL [ON APPEAL FROM THEEAST INDIES]
LORD SHAW, LORD CARSON, LORD SALVESEN, AND SIR JOHN WALLIS.
GAURI NATH KAKAJI - Appellant
Versus
GAYA KUAR - Respondents
On Appeal from the Chief Court of Oudh.
Decided On : July 5, 1928.
Solicitor for appellant: H, S. L. Polak.
Solicitors for respondent: Chapman-Walker & Shephard.
Two Hindu widows succeed as joint tenants with a right of survivorship. One widow cannot alienate the corpus of the estate or burden it with mortgages, even for legal necessity, without the co-widow's consent, unless such consent was sought and unreasonably refused.
Headnote:(A) Hindu Law - Succession and Alienation by Widows - Right of survivorship - Two widows succeeding to a husband's estate as joint tenants - Partition of the life estate for enjoyment of income does not authorize the alienation of the corpus of the estate - One widow cannot burden the estate by mortgage or alienate it by gift or will without the concurrence of the co-widow, even for legal necessity, as such action prejudices the right of survivorship. (Paras 14, 15)
(B) Legal Necessity - A mortgage for necessary purposes executed by one widow without the concurrence of the co-widow is generally not binding on the joint estate - A case for borrowing without consent might be established if concurrence was sought and unreasonably refused, but in the absence of such a request, the alienation is not binding. (Paras 18, 19)
(C) Agency/Management - An inference that one widow acted as the manager or agent of the other cannot be drawn where there is known hostility between the widows. (Para 21)
Facts of the case:
A Hindu died leaving two widows who succeeded to his estate. The widows partitioned the property to separate the enjoyment of their life estates. One widow subsequently mortgaged several villages to secure debts, some of which were claimed to be for legal necessity. After the death of the mortgaging widow, the surviving widow sought possession of the properties, contending that the mortgages were invalid as they were executed without her consent.
Findings of Court:
The court found that the partition between the widows was only for the division of the enjoyment of the life estate and did not grant either widow the power to alienate the corpus of the estate. Since the mortgaging widow did not obtain the consent of the co-widow, nor had she requested consent that was unreasonably refused, the mortgages were not binding on the surviving widow.
Issues: Whether a mortgage executed by one Hindu widow for legal necessity, without the consent of her co-widow, is binding on the surviving widow who succeeds to the estate by right of survivorship.
Ratio Decidendi: Hindu widows who inherit their husband's property succeed as joint tenants with a right of survivorship. While they may partition the estate for the purpose of enjoying separate shares of the income, they cannot alienate the corpus of the estate without the consent of the other. A mortgage for legal necessity created by one widow without the concurrence of the other does not bind the survivor, unless it can be shown that consent was sought and unreasonably refused.
Result: Appeal dismissed with costs to the respondent.
Legal Category Hierarchy
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family law
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hindu law
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widow's estate
- right of survivorship
- alienation of property
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widow's estate
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hindu law
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property law
- mortgages
Judgement
Consolidated Appeal (No. 74 of 1927) from a judgment and two decrees of the Chief Court of Oudh (April 29, 1924) reversing a judgment and decree of the Additional Subordinate Judge of Hardoi.
The respondent, the survivor of two widows left by a deceased Hindu, brought a suit for possession of four villages, which had been part of her husbands estate, and which had passed into the possession of the appellant-defendant under transfers by the plaintiffs co-widow, who died in 1908. The plaintiff by her plaint, after claiming possession, claimed accounts and redemption if there should be found due any sum without payment of which she was not entitled to possession.
The facts appear from the judgment of the Judicial Committee.
The trial judge passed a preliminary decree for redemption on payment of Rs.91,434, holding that the plaintiff was bound by her co-widows transfers in so far as they were for necessity. Both parties appealed to the Chief Court. The plaintiff by her appeal contended that the lower Court had erred in holding that because the two widows had obtained partition one could alienate without the consent of the other.
The Chief Court allowed the appeal of the plaintiff and dismissed that of the defendant. The learned judges (Stuart C.J. and Mohammad Raza J.), after discussing the authorities, held that the deceased co-widow had no power to alienate the property beyond the period of her life, even for necessity, without the consent of the plaintiff, her co-widow. Upon the evidence they found that there had been no consent, express or implied.
1928. June 18, 19, 21. Dunne K.C., Kenworthy Brown and Dube for the appellant.
De Gruyther K.C. and Abdul Majid for the respondent.
The arguments were directed chiefly to the nature of the suit, the effect of the compromise decree of 1887 and the partition proceedings, and to the question whether the plaintiff had consented to the alienations, or was estopped by her conduct from denying their validity. In addition to cases mentioned in the judgment of the Board, reference was made to Nilamani v. Radhamani (( 1877) L. R. 4 I. A. 212.) ; Sundar v. Parbati (( 1889) L. R. 16 I. A. 186.); Hari v. Vitai (( 1907) I. L. R. 31 B. 560.); Thakurmani Singh v. Dai Rani Koeri (( 1906) I. L. R. 33 C. 1079.) ; Vandali Mamidigadu v. Kotipalli Ramayya (( 1902) I. L. R. 26 M. 334.) ; Ram Piyari v. Mulchand . (( 1884) I. L. R. 7 A. 114.)
July 5. The judgment of their Lordships was delivered by
LORD SALVESEN. This appeal arises out of a suit at the instance of the surviving widow of Lalq Singh who was the owner of certain villages situate in the District of Hardoi. The plaintiff in that suit, who is the respondent here, prayed for decree for possession of the villages in question at that time in possession of the appellant under mortgages in favour of his author. The Subordinate Judge of Hardoi granted decree in the respondents favour, but only on the footing that in so far as the mortgages which had been granted by the senior widow were justified by necessity, she was bound as a condition of obtaining possession to pay the amount due to the mortgagees. From his judgment an appeal was taken to the Chief Court of Oudh which by decree dated March 4, 1926, reversed the judgment and decree dated April 29, 1924, of the Subordinate Judge and held that the respondent was entitled to an unconditional decree for possession of the villages. From this decree the present appeal has been brought.
The material facts have been so fully dealt with in the judgment of the Chief Court of Oudh that it is unnecessary to recapitulate them except in the barest outline. The owner of the villages, Lalq Singh, was a Hindu who owned seven villages and shares in others. He died on August 13, 1885, and was survived by two widows, Musammat Umrao and the respondent. Prior to his death he had burdened his estate by mortgages for the principal sum of Rs.28,000 bearing interest at the usual rate. This
obligation was recognize
