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High Court Of Madhya Pradesh
Shiv Dayal, J.
MST.JAGARIBAI - Appellant
Versus
RAMKHILAWAN - Respondents
Second Appeal 196 Of 1968
Decided On : 12/19/1974
(i) The Act conferred new right on the widow in modification of her pre-existing right. Before the 1937 Act, she could not claim any partition but was entitled to maintenance. However, if there was a partition among her sons, she got a share in the property.
(ii) by virtue of section 3 (2) of that Act, she acquired interest of her deceased husband and could give effect to it by claiming partition.
(iii) In case she got her interest separated, that interest would pass, on her death to her husband heirs as if her husband would have did on the date of her death.
(iv) In case she does not get a partition effected, her interest would pass by survivorship to the surviving co-parceners.
(v) However, the widow was not raised to the status of a co-parcener, although she continued to be a member of the joint Hindu family as she was before the 1937 Act. Such joint family would continue as before subject only to her statutory right.
(vi) The interest of a widow under the 1937 Act arose neither by inheritance, nor by survivorship but by statutory substitution. She was introduced in the coparcenary without being a coparcener. [Para 12]
(2) Hindu Succession Act, 1956 - S. 14 - widow getting interest of husband after enforcement of the Hindu Women's Rights to Property Act, 1937 - right ripens into absolute ownership under section 14. [Para 15]
(3) Hindu Women's Rights to Property Act, 1937 - S. 3 (2) - applies to agricultural land.
The Act did not apply to agricultural lands, but there was an amendment (M.P. Act No. 6 of 1942) which included agricultural property within the purview of section 3 (2) of the Act. AIR 1941 FC 72 deferred to. [Para 16]
(4) Evidence Act, 1872 - S. 115 – estoppeal - consent to a transfer-person consenting to transfer can not object to the transfer - estoppel when attracted.
If a Hindu widow who becomes absolute owner of the half share of the property of her husband is present at the time of the execution of the transfer,-deed and gives her consent to the transfer made by the son of her share also, she cannot later on challange the sale.
Estoppel does not depend on the motive or on the knowledge of the matter, on the part of the person making the representation. It is not essential that the intention of the person should have been fraudulent or that he should have been acting with the full knowledge of circumstances and not under a mistake or misapprehension. It is not necessary that there should be a design to mislead. A representation, even when made innocently or mistakenly, may operate as an estoppel. ILR 20 Cal. 296 (PC) relied on. [Paras 18 & 19]
(5) Land Revenue Code, 1959 (MP) - S. 165 (4) (b), proviso II – applicability - area left with transferor less than five acres in each transaction - second proviso does not apply. [Para 20]
(6) Land Revenue Code, 1959 (MP) - S. 170 - applicability of.
Section 170 of the Code does not apply to a transfer which is within the mischief of sub-section (4) of section 165. Section 170 comes into play when there is a transfer to which sub-section (5) or sub-section (6) of section 165 applies. [Para 21]
(7) Land Revenue Code, 1959 (MP) - Ss. 165 (4) and 170 - land transferred in contravention of section 165 (4) of the Code - transferor cannot institute a suit to get back possession. [Para 22]
(8) Land Revenue Code, 1959 (MP) - S. 165 - 'transfer' - import of delivery of possession in consideration of price constitutes transfer - registration not a necessary ingredient.
(9) Words and phrases-word 'transfer' - import of The word 'transfer' in section 165 must really be construed as a transfer of possession in consideration of the price received by the vendor, who is competent to contract.
Registration is a procedural matter and is not a necessary ingredient of a sale. 1960 JLJ 280=1960 RN 113(FB) and 1960 JLJ 222 relied on. [Para 23]
( 1 ) THIS second appeal arises from a suit instituted by Smt. Dhelabai for possession of certain agricultural lands held in Bhumiswami rights. She died during the pendency of this second appeal and is now represented by her daughter, Smt. Jogaribai.
( 2 ) SAMPAT was the husband of the plaintiff. The relationship between the parties may foe described as follows :
( 3 ) SAMPAT died in the year 1942, leaving behind him his widow, Smt, Dhelabai (plaintiff) and son, Budhram (Defendant 4 ).
( 4 ) IN the year 1928-29, Sampat's father sold plot No. 466, area 0. 14 acre, to balaram, who was father of Govindpra- aad. That plot is now in possession of defendant No. 1.
( 5 ) BUDHRAM (defendant No. 4) made certain alienations which are challenged in this suit by the plaintiff :-
(1) On April 25, 1962, Budhram sold to Ramkhilawan (defendant No. 1) plots No, 858 (0. 95 acre); No. 864 (0. 30 acre); and No. 866 (0. 18 acre) vide 'agreement' (Ex. D-1) (2) On March 9, 1963, Budhram sold plot No, 107 (1. 60 acres) to ramautar (defendant No. 2) vide 'agreement' (Ex. D-2 ). (3) Budhnam transferred plot No. 775 (0. 30 acre) to Ramautar (defendant No. 2) for which there is no document.
( 6 ) THE plaintiff's case is that she is the absolute owner of half interest in the suit properties so that Budhram had no right to transfer her undivided interest in the property and the transfers effected by him are void and ineffective as against her. It was also pleaded by her that these transfers were void being within the mischief of Section 165 (4) (b), second proviso, M. P. Land Revenue code, 1959, (hereinafter called the Revenue Code),
( 7 ) THE defence was that Budhram was the manager of the joint Hindu family consisting of himself and his mother (plaintiff ). He sold the properties for legal necessity and, therefore, the alienations are protected.
( 8 ) THE trial Court dismissed the suit and the first appellate Court dismissed the plaintiff's appeal.
( 9 ) BOTH the Courts below have held that in respect of plot No. 466, defendant no. 1 acquired a valid end perfect title by adverse possession. As regards the other plots in suit, it has been held that Budhram was the manager and had, therefore, the right of alienation; and that the alienations were for legal necessity, which were, therefore, binding on the plaintiff. It has further been held that the plaintiff inherited her share in the property on the death of her husband; that she has no subsisting interest in the property and was not entitled to press the appeal in the first appellate Court, as she had sold her interest to third persons; that the agreements for sale (Exs, D-1 and D-2) were not void within the meaning of Section 165 (4) of the Revenue Code; and that the transfers were with the express consent of the plaintiff; and, furthermore the transferees were put in possession of the properties in consequence of the said agreements.
( 10 ) PLOT No. 775 is not in dispute. Shri Padhye, learned counsel for the appellant, does not press this appeal so far as plot No. 466 is concerned. Thus, the dispute before me in this second appeal relates to the properties sold by the 'agreement' (Ex. D-1) dated April 25, 1962, and the 'agreement' (Ex. D-2)dated March 9, 1963.
( 11 ) SHRI Padhye's first contention is that Budhram (defendant No. 4) had no right to transfer these plots in dispute inasmuch as the plaintiff became the absolute owner to the extent of half share in these plots by virtue of the Hindu succession Act, 1956.
( 12 ) IT seems to me clear that when Sampat died in the year 1942, leaving behind him his only two heirs, (defendant No. 4) and widow (plaintiff), the position was that by virtue of the Hindu Women's Rights to Property Act, 1937, she acquired half interest in Sampat's estate. The effect of the Hindu Women's rights to Property Act, 1937, which enshrines the conception that a widow is the surviving half of the deceased husband, may be summed up thus :-
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