KRUSHNA BEHERA Vs. FAKIR MAHAKUD
HIGH COURT OF ORISSA
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PANIGRAHI, J. -
(1.) THIS appeal raises a novel point of law, namely, whether the consent of a female reversioner to an alienation made by a limited owner is presumptive proof of legal necessity for the same.
(2.) THE short facts are that Bidu, father of defendant 1 and Raghu, father -in -law of defendant 2, were brothers. Raghu died leaving him surviving his widow, Indu, and his son Hadi. Hadi died in the year
1940, leaving his widow Sarada, defendant 2. Defendant 2 and her mother -in -law Indu jointly executed a deed of saJe in favour of the plaintiff -appellant on 22 -7 -1942 conveying three and odd acres of land for
Rs. 200/ -/ -. The plaintiff's possession was disturbed by the first defendant and hence the suit (out of which
the present appeal arises) was filed for confirmation of possession or recovery of possession in the
alternative. Defendant 1 pleaded that he and Hadi were joint and that on Hadi's death he succeeded by
right of survivorship. He disputed the genuineness and validity of the sale in favour of the plaintiff and
challenged it as a collusive and fraudulent transaction. The courts below found that Raghu and Bidu were
divided and that the estate of Hadi had vested in his widow, Sarada (defendant 2) after his death. On the
question of the validity of the alienation they found that it was supported by consideration only to the
extent of Rs. 45/ -/ -.
The plaintiff's prayer for declaration of his title and confirmation of possession was, in the circumstances,
negatived by both the Courts below as the alienation in favour of the plaintiff was held not binding on
defendant 1. The matter came up in second appeal to this Court and was heard, in the first instance, by
Das C. J. and the point now argued before us was for the first time raised before him. It was contended
before him that on the date of the alienation the mother -in -law (widow of Raghu) was the next
presumptive reversioner and that since she had joined in the alienation she must be taken to have given
her consent to the same which would, in law, raise a presumption in favour of the legal necessity for the
alienation. The learned Chief Justice held that there was no authority for making a distinction between the
consent of a male reversioner and that of a female reversioner, but as the point was not covered by any
clear authority he referred the matter to a Division Bench. It has accordingly come up before us.
The power of a Hindu widow to alienate the estate of her husband to which she has succeeded has been dealt with in many decided cases and has given rise to different currents of judicial opinion. A widow can
extinguish the estate of her husband by surrendering it in favour of the next reversioner or reversioners
provided it is complete and absolute as it has been held that it amounts to an effacement of the widow
herself by civil death and opens the estate to the nearest heirs of her husband. If the surrenderee or the
reversioner conveys the estate to a third party he can pass an absolute title to the purchaser of the estate as
the estate became his. If, on the other hand, the next reversioner gives his consent to an alienation by the
widow why should not the same principle apply? That this is possible was suggested as early as in - -
Nobokishore v. Hari Nath Sarma', 10 Cal 1102 (FB) (A). A direct alienation by the widow to a purchaser
has also been sanctioned by a long line of judicial pronouncements on the ground that if it is supported by
a legitimate purpose such as religious or charitable purpose which are supposed to conduce to the spiritual
welfare of the husband, it is for legal necessity.
The necessity must, however, be proved and shall not be presumed. Even where there is lack of evidence
of necessity, the alienation may be upheld on equitable grounds if the alienee proves that he has, in good
faith, made appropriate enquiry and has satisfied himself that there was a case of true necessity. If the
presumptive reversioner gives consent to the alienation the necessity for the alienation stands fortified,
and such consent may be presumptive proof of necessity. In - - 'Collector of Masulipatam v. Cavaly
Venkata Narrainapah', 8 Moo Ind App 529 (PC) (B) their Lordships of the Judicial Committee observed:
'It on the other hand may be taken as established that an alienation by her which would not otherwise be
legitimate may become so if made with the consent of the husband's kindred. The exception in favour of
the alienee, with consent, may be due to a presumption of law that when that consent is given, the purpose
for which the alienation is made must be proper.'
It will be noticed that the consent of the reversioners is not proof of necessity but that it only raises a
presumption that the alienation is made for a proper purpose. This view was reiterated by the Privy
Council in - - 'Bijcy -gopal v. Girindra Nath', AIR 1914 PC 128 (C). There was, however, a sharp cleavage
of opinion on the point among the High Courts in India. The view of the Calcutta and Madras High
Courts was that if the consent of the reversioner at that time had been obtained to that alienation, the
eventual reversioner could not challenge the transaction. The Allahabad High Court, on the other hand,
had laid down that where the necessity was not proved 'aliunde' then the consent of any number of
reversioners would not bind the reversioner who possessed that character at the death of the widow and
who had not himself been one of the consen -ters: See - - '10 Cal 1102 (FB)' (A), - - 'Radhashyam v.
Joyram', 17 Cal 896 (D); - - 'Marudamuthu v. Srinivasa Pillai', 21 Mad 128 (E).
The Allahabad view was considered by the Privy Council in - - 'Bajrangi Singh v. Manakarnika Bakhsh
Singh', 35 Ind App 1 (PC) (F) but was not approved. In that case the sales were upheld on the ground that
the same had been effected with the consent of the next reversioners. The Privy Council had again to
consider this conflict of opinion and the matter was finally set at rest by their pronouncement in - -
'Rangaswami v Nachiappa', AIR 1918 PC 196 (G). The result of the consideration of the decided cases
was summarised thus:
'When the alienation of the whole or part of the estate is to be supported on the ground of necessity, then
if such necessity is not proved aliunde and the alienee does not prove inquiry on his part and honest belief
in the necessity, the consent of such reversioners as might fairly be expected to dispute the transaction
will be held to afford a presumptive proof which, if not rebutted by contrary proof, will validate the
transaction as a right and proper one.'
Their Lordships pointed out that an alienation by a widow is not a void contract. It is only voidable. If,
therefore, the party who has the right to complain did something which showed that he treated the
alienation as good he would lose his right of complaint. This is based on the general equitable doctrine
common to all systems that one cannot approbate and reprobate.
(3.) IT was pointed out by learned counsel that in all these cases the consenting reversioner was a male and that the cases can be distinguished on that ground. The argument is that if the next reversioner happens to
be a female she would herself be entitled only to a limited estate and that her consent to the alienation will
not raise the presumption of necessity which is permissible in the case of a male reversioner. It is
necessary to discuss a few decided cases which apparently support this view.;
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