Supreme Court: An appeal was filed against the judgment and decree of the Patna High Court (‘High Court’) dated 23-2-1949 modifying the judgment of the Additional Subordinate Judge, Motihari, dated 5-7-1943. The 3-Judges Bench of M.C. Mahajan*, S.R. Das, and N.H. Bhagwati, JJ., held that under Hindu law, a reversioner had no locus standi to challenge an alienation made by a sonless proprietor, whether that alienation was made by himself or by somebody else acting on his behalf as guardian or agent; he was only entitled to challenge an alienation made by a limited owner.
Background
Appellant died before 1921 and two of his sons, Radhakrishen Gir and Tejanand Gir, died during his lifetime. Appellant was survived by his sons, Mahabir Gir and Narsingh Gir, and by a minor grandson, who was living with his mother Gheodharo Kuer-Respondent 1, the widow of one of the deceased sons. After appellant’s death, Mahabir Gir came into possession of the property, but he failed to maintain Respondent 1 and her son leading to a suit against appellant for partition of the joint family property. Appellant resisted the suit stating that the property sought to be partitioned was trust property and Respondent 1’s son had no share in it.
A preliminary decree for partition was passed in appellant’s favour, after which an appeal was filed in High Court, wherein a compromise decree was made. Under the compromise decree, a trust was created, and appellant was appointed as trustee. Three annas share was allotted to Narsingh Gir and Respondent 1’s son respectively. The remaining two annas share was given to appellant. To finance this litigation, Respondent 1 incurred considerable debts, and Narsingh Gir supplied the funds for the litigation. Thus, Respondent 1 executed a mortgage bond on 11-4-1923 in Narsingh’s favour for Rs 10,000.
On 26-1-1929, Respondent 1’s son died as a minor and Respondent 1 came into possession of his estate. The mortgage executed in 1923 remained payable from the estate of Respondent 1’s son. The mortgage had interest of 12% p.a. and by January 1929, the amount due was Rs 18,000. Thus, to discharge this liability, Respondent 1 executed a usufructuary mortgage, of Rs 19,498 in favour of Babu Harihar Prasad Sahi, Babu Hargun Prasad Sahi and others. Further, Rs 18,000 was left in deposit with the mortgagees to satisfy the principal and interest due on the mortgage bond dated 11-4-1923. Rs 400 was credited to the alienees on account of petty loans which was borrowed from them for the treatment of Respondent 1’s son, and a third sum of Rs 1098 was taken in cash by the alienor for performing the shradh of Respondent 1’s son, for payment of certain creditors who had advanced money for the maintenance of the lady herself and for some of the expenses of the partition suit.
Under the compromise decree, liability to pay off certain debts incurred by Damodar Gir fell on Respondent 1’s son and Narsingh Gir in equal shares. In order to discharge this liability, Respondent 1 executed a second usufructuary mortgage of Rs 13,650 in Lalji Prasad Sah’s favour. Further, Respondent 1 executed a sale deed for a plot of land for a consideration of Rs 600 in Dheodhari Lal’s favour.
All these three alienations were impugned by appellant, as being in excess of Respondent 1’s powers and not binding on the reversionary estate being without legal necessity. The Trial Judge held that all the deeds were for legal necessity and were binding on the estate of Respondent 1’s son and on the reversioner’s rights, including appellant. Appellant thus filed an appeal to the High Court, wherein decision of the Trial Court was confirmed but it reversed the decision regarding the sale deed of 22-7-1932 and held that this sale was not binding on the reversionary estate.
Thereafter, an appeal was filed before the Supreme Court.
Analysis, Law, and Decision
The Supreme Court found no force in appellant’s contention that the courts below were in error in treating the mortgage bond dated 11-4-1923 executed by Respondent 1 as guardian of her son as immune from attack and in holding that that mortgage was to be considered on a different footing than an alienation made by a limited owner. The Supreme Court opined that under Hindu law, a reversioner had no locus standi to challenge an alienation made by a sonless proprietor, whether that alienation was made by himself or by somebody else acting on his behalf as guardian or agent; he was only entitled to challenge an alienation made by a limited owner.
The Supreme Court also opined that the mortgage of 11-2-1923, not made by Respondent 1 as mother, could not be challenged by appellant. Respondent 1’s son alone could contest the action of his mother if she had not made that alienation for his benefit. His legal representative could also challenge it on the same ground but within the period of limitation allowed by law and in the present case, within the period of limitation allowed by law, no suit was brought to challenge that alienation.
The result was that the estate of Respondent 1’s son was bound to pay the debt raised on that mortgage and Respondent 1 discharged the mortgage by executing the usufructuary mortgage of 30-1-1929. She discharged a liability which was outstanding on the estate and was entitled to do so. Moreover, the courts below on the merits of the mortgage of 1923 concluded that it had been made for necessity and for the benefit of Respondent 1’s son. The Supreme Court thus dismissed the appeal with costs.
[Mahabir Gir v. Gheodharo Kuer, (1953) 1 SCC 112, decided on 21-1-1953]
Note: Alienation of property under Hindu Law
Alienation refers to the transfer of property, for sales, gifts, mortgages, etc. The alienations related to coparcenary property under the Hindu law are governed by the Hindu Succession Act, 1956 and the Transfer of Property Act, 1882. The joint family property can be alienated for the purposes, (a) legal necessity; (b) benefit of estate; and (c) indispensable duties. Moreover, if the father, Karta, coparcener or sole surviving coparcener oversteps their power in making the alienation, it can be challenged and set aside by any other coparcener who has an interest in the property, from the time he comes to know of it till the time the suit is barred due to limitation.
*Judgment authored by: Justice M.C. Mahajan
Advocates who appeared in this case :
For the Appellant: B.K. Saran, S.L. Chhibber, Advocates
For the Respondents: S.P. Sinha, Senior Advocate (K.P. Gupta, Advocate, with him)
