Dalsukhram Mahasukhram And Ors. vs Lallubhai Motichand on 11 April, 1883

Bombay High Court
Dalsukhram Mahasukhram And Ors. vs Lallubhai Motichand on 11 April, 1883
Equivalent citations: (1883) ILR 7 Bom 282
Author: Kemball
Bench: Kemball, Pinhey


Kemball, J.

1. The only objection taken in argument by the appellants against the decision of the District Judge is, that the sale of the house in the occupation of Bat Jadav was void by reason Saheb Lallubhai P. Parakh, Subordinate Judge of Ahmedabad.

2. The plaintiff originally brought this suit against the first defendant, Dalsukhram Mahasukhram, to recover possession of two houses situated in the city of Ahmedabad. He alleged that he purchased these houses from the defendant under a registered deed of sale, dated 13th of November, 1873, for Rs. 900, and let them to him at an annual rental of Rs. 46 under an agreement of 3rd September, 1877. The defendant Dalsukhram admitted the execution of the deed of sale, but contended that it had been obtained fraudulently and without consideration, in settlement of certain time-bargain transactions between the plaintiff and Dalsukhram’s brother, and that one of the houses was the self-acquired property of his late father, and by him devised to his mother Jadav, his sister Paryati and his sister’s sons Chhotalal and Nanka, in whose joint possession it now was. The defendant also admitted the execution of the agreement for rent, but contended that that also was a nominal transaction, and that he had never actually paid any rent. All these persons were, accordingly, joined as co-defendants with Dalsukhram, and they contended that Dalsukhram had no right to sell the houses, that the transactions between him and the plaintiff were not bona-fide, and that one of the houses had been bequeathed, to them by Dalsukhram’s father, whose self-acquired property it was.

3. The Subordinate Judge found that the sale to the plaintiff by Dalsukhram was not a bona-fide transaction, and that the will set up by the defendants was proved and valid, and he, therefore, rejected the plaintiff’s claim. The District Judge came to a different conclusion. He pronounced both against the execution as well as the validity of the will; but found that Dalsukhram’s father was not himself the acquirer of the house alleged to have been devised, but was part owner of in with Dalsukhram. The District Judge further held that the defendants failed to prove that the sale of the houses effected by Dalsukhram was fraudulent or invalid, though the consideration seemed insufficient. He, therefore, reversed the decree of the Subordinate Judge; but being of opinion that, “by Hindu law and the custom of the country, a widow is entitled to residence in the house of her husband during her life-time, of Dalsukhram not having been in possession at the time of its sale to plaintiff; but it is clear that neither Dalsukhram nor the other defendants ever relied, or intended to rely, on this objection; and if they failed to ask the Judge to consider the question of possession as affecting the validity of the sale, they cannot now require that the case be returned for the Judge to record his finding upon it. The respondent, however, has taken exception to the order of the Judge that Bai Jadav was to be allowed to live in the house she occupied during her life-time; and several cases have been cited to us on either side, all of which were considered and discussed in Lakshman Ramchandra, Joshi v. Satyabhamabai I.L.R. 2 Bom. 494. That was a suit for maintenance brought by a Hindu widow against her husband’s brother (against whom she had previously obtained a decree), who was the sole surviving member of her husband’s family, and against certain bona-fide purchasers for value from the husband’s brother of certain immoveable ancestral property of the family. It was contended there, as here, that the widow’s maintenance was not such a charge on the estate as to give her any kind of proprietary interest in it; it was also contended that her right, although its value was dependent on the amount of her deceased husband’s share in the property, was a merely personal one against her husband’s brother; and that notice of what was not really a charge, in the sense of an interest, in the property could not convert the merely personal obligation into a real right by way of incumbrance on the property, accompanying it into whose soever hands it might pass. And it was held by West, J., after a very able and exhaustive discussion of numerous authorities, that it was open to the sole surviving proprietary member to sell the estate which had vested in him; that he could not, however, by so doing affect the right of the widow if it had become a right in re adhering to the estate, though the widow’s right, until made a precise and actual charge on the property, could not prevent the said proprietary member dealing with it at his discretion; that such member who, with a view to defraud the widow, parted with the estate could not by so doing get rid of his liability, and that the vendee, who shared in the proposed fraud, could not be allowed to profit by it; though, if he bought knowing of the widow’s existence and of her claim, but in the bona-fide belief that no wrong would be wrought upon her by the sale, he would acquire a title free from the claim. But here, independently of the circumstance of the absence of evidence of proper reasons for the alienation, and of the insufficiency of the consideration noted by the Judge, there is this notable difference in the present case, that the widow is a defendant in possession, and the plaintiff purchased admittedly with full knowledge of such possession. The precept in the passage from Katyayana in Colebrooke’s Digest, page 423, Bk. II, chap. IV, Section II., test XIX, appears to place the requisites for the maintenance of the family on the same footing as the family dwelling; and although the rule laid down in Baboo Golup Chunder Bose v. Ranee Ohilla Dayee 25 Calc. W.R. 100 and other Bengal cases–that “where a purchaser purchases property from the heir, with notice that a Hindu widow is entitled to be maintained out of it, the property in the hands of the purchaser continues to be charged with that maintenance”–may be, and is, subject to certain conditions, we think, having regard to the circumstances of this case and to the case of Mangala Debi v. Dinanath Bose 4 Beng. L.R. O.C.J. 72 decided by Sir B. Peacock, C.J., and fully concurred in by Mitter, J.–where it was held, partly on the, authority of Prankoonwur v. Deokoonwur 1 Borr. 404 a Bombay case, that a son could not evict his widowed mother, or authorize a purchaser to do so, without providing some other suitable dwelling for her–and also to the case of Srimati Bhagabati Dasi v. Kanailal Mitter 8 Beng. L.R. 225 we should not be justified in interfering with the order of the District Judge. Bai Jadav’s claims may be said to have been recognized as chargeable on the estate, in the hands of her son Dalsukh, by the apparent allotment to her of the house under consideration for residence; and we know of no authority which would warrant her being summarily evicted, as sought by the plaintiff, even though there may be other property in the hands of Dalsukh out of which her maintenance can be derived. We confirm the decree of the Court below, with costs.

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