SOUTH INDIAN EXPORT CO LTD; T N P VISWANATHA AIYAR Vs. TSUBBEER; THE SOUTH INDIAN EXPORT CO LTD

JUDGEMENT

(1.) I have had the great advantage of a perusal of the judgment just now delivered by my learned brother and though I agree practically throughout both in his conclusions and reasons, I think it not inappropriate to say a few words on one or two questions of law which were elaborately argued on both sides.

(2.) On the question whether a Hindu widow is entitled to carry on the trade business which she inherited from her husband, their Lordships of the Privy Council have made the following observations in the case of Amarnath Sah v. Achan Kuar 14 A. 420 at p. 428 : 19 I.A. 196 : 6 Sar. P.C.J. 197 "On this point" (that is, the point whether the deceased Khairati s widow and heir was under a necessity to borrow money in order to ward off total insolvency) "their Lordships agree with the High Court in thinking the effect of Hira Lal s evidence to be that that at Khairati s death the business was solvent on paper, but that there were bad debts the losses on which were never recovered, though the business struggled on for a good many years. The view of the High Court is that the widow ought to have wound up the business at once, and that not having done so, she could not allege necessity to mortgage the inheritance in order to keep the money business going. But they do not lay down any general rule for such cases, and they feel the difficulty of a decision in the entire absence of authority. Their Lordships also feel great difficulty, and they would require to know much more about the nature of, the business in question, and of the condition and fluctuations of this particular business, before venturing to endorse the opinion of the High Court," A trade and its good-will are valuable property and when they are inherited by a widow, I do not see why she should not manage that particular business as heir in the same manner as she has authority to manage, say, a zomindari estate which she might have inherited from her husband. In the present case, the deceased Krishna Aiyar and his elder brother, Narayana Aiyar, carried on a large skin trade as if it was their family business, though it does not appear that it was an ancestral business. It was really a business which Pattammal s husband adopted as his occupation in life. I am not aware of any law which obliges a widow inheriting her husband s trade business to wind up the business as soon as her husband dies. Hindu ladies in the south of India are not generally ghosha or partidanashin. A large proportion of Brahmin ladies are literate in the vernacular and their average business ability is not appreciably, if at all, inferior to that of the average male Hindu. The facts in this present case seem to me clearly to show that the condition in which the deceased Krishna Aiyar had left his business and his affairs at the time of his Peath in March 1909 was such that everybody connected with that business, or in a position to give valuable opinion as to the necessity or otherwise of carrying on that business, was strongly and unhesitatingly of the view that unless the business was carried on by the widow, it was impossible to save anything out of it for her as the heir or for the contingent reversioner, the 1st defendant. The debts then amounted to about Rs. 1,60,000 and the estate, if realised without forced sales, was worth about, Rs. 1,40,000 (say, just sufficient to clear the debts). This is clearly established by the evidence of the plaintiff s 3rd witness, Swaminatha Aiyar. The business was no doubt subject to fluctuations, but there is nothing to show that at Pattammal s death the estate had drifted into a worse position than the position bordering between bare solvency and insolvency in which it was left by her husband, Mr. Krishna Aiyar. The mere fact that the indebtedness to the plaintiffs (one only of the numerous creditors) was about Rs. 15,000 at Krishna Aiyar, death and was Rs. 25,000 at Pattammal s death affords no criterion by which the relative positions of the estate on the two dates could be safely judged, as we do not know how far the debts to other creditors which amounted to nearly a lac of rupees at Krishna Aiyar s death had been paid off or added to during Pattammal s life-time. I further respectfully agree with the frial Judge for the reasons stated by him that a Hindu widow is entitled to carry on the business left by her husband under certain stated circumstances, and the circumstances of this case show that it was a proper thing for Pattammal to have so carried on her husband s business. As the very nature of the business requires borrowings for capital and owing to fluctuations in price results in the case of some of the transactions in the incurring of debts on re-drafts, the incurring of such business liabilities by the widow ought to be treated as debts of necessity binding on the rever-sioner. When the touchstone of necessity is satisfied, the question whether the managing male member of a Hindu family carrjdng on a business has greater powers of charging the property in certain cases than a widow who succeeds to her husband s business, becomes a rather academical question. That the word "necessity" should be given a liberal interpretation even when a guardian acts on behalf of a minor has been decided in Vembu Iyer v. Srinirasa Iyengar 17 Ind. Cas. 609 : 23 M.L.J. 638 : 12 M.L.T. 547 and a Hindu widow who is the sole owner of her husband s estate (though a qualified owner) cannot have a more restricted authority than the guardian of a minor owner, the guardian having no right at all in the property.

(3.) On my above view of the facts and the law it is perhaps unnecessary in this case to consider the other question elaborately argued in this case, namely, whether the next reversioner s consent to and concurrence in the widow s carrying on the trade and incurring the liabilities in the ordinary course of carrying on the trade prevent him, when he succeeds as reversioner at the widow s death, from questioning the validity of the debt. As, however, the question was strenuously argued I shall state my views very briefly. The case-law on this point is rather concerned with alienations by way of sale or mortgage made by the widow and consented to and concurred in by the next reversioner than with the incurring of debts with his consent. I think that the principle underlying the bur in one case must apply in the other case also. In the present suit the 1st defendant did give his consent not only to the incurring of debts, but also to the creation of the charge for these debts on the plaint properties except the Sembium tannery purchased by Pattainmal after the date of Exhibit F.