Sir Richard Couch, Kt., C.J.@mdashThe case first came to be heard before us on the 16th of September last, when it was admitted that the decrees were not decrees under Act X of 1859, and it was stated that the rent which was the subject-matter of one Bait, and for which the bond which was sued upon in the second suit was given, was rent which became due after the death of Chundi Proshad. It was contended before us by the pleader for the respondent that this had not been found by the lower Courts, and we were asked to have the question now raised; but we are of opinion that the rent must be considered to have become due after Chundi Proshad''s death.
2. The first Court, the Additional Subordinate Judge, after Stating in the judgment what the suit was for, stated the points which arose in the suit for determination. One of them was, "when did Kantishuree die, and whether she was in possession within twelve years next before the date of the suit," and the next was, "whether the talooks were sold in public sale for legal purposes, or for the recovery of the personal debts of Kantishuree." The whole of the Judgment shows that the case was treated as if the rent had become due in her time, and not in the time of her husband. It is true that the defendants, in their written statement, say that the rent did become due in the lifetime of Chundi Proshad, but they do not appear, on the hearing either before the first Court or the Appellate Court, to have asked to have that question tried. On the contrary, the whole case has been allowed by the defendants to be tried in both the Courts, as if the rent had become due after the death of the husband. And they cannot now, simply because they made that allegation in their written statement, be allowed to raise the question. Where parties allow a suit to be conducted in the lower Courts as if a certain fact was admitted, they cannot, afterwards in a special appeal, question it, and recede from the tacit admission. I acted upon this principle in the case of Devaji Goyaji v. Godadbhai Godebhai 2 Bom. H.C. Rep., 38, which was appealed to the Judicial Committee of the Privy Council, and the judgment was confirmed. There being an objection that there was no evidence to connect the plaintiffs with the parties to a certain deed, I said.--" This objection was not taken in the grounds of appeal to the Judge, and appears not to have been taken before the Munsif. The suit appears to have been conducted as if this was admitted, and when that is the case, we think an objection of want of evidence of the fact cannot be taken on a special appeal. Stracy v. Blake 1 M. & W., 168 and Doe d. Child v. Roe 1 E. & B., 279 are instances of the application of this principle."
3. I proceed therefore to consider the case, assuming it to be the fact that the rent became due after the death of Chundi Proshad.
4. That distinguishes the present from the case of Ishan Chunder Mitter v. Buksh Ali Soudagur Marsh., 614, and the decision of the Judicial Committee in
5. In the present case, the debt was not due from the husband and, if the estate of the husband is to be charged either for the arrears of rent becoming due after his death, or for the bond which, was given by his widow, it can only be upon the ground that the debts were necessarily contracted by the widow, or under such circumstances as to make the whole estate liable, and not merely the interest in it of the person who contracted them.
6. The suits were against the widow, and the decree made in both were against her, and purported to be against her personally. The question whether the debts were necessarily incurred, so as to charge the estate, was not tried in either of the suits. It was not necessary for the plaintiff in either of them to prove that in order to obtain a decree, he had a right to a decree against the widow upon proving, in the one case that the arrears of rent were due, and in the other that the bond was executed by her. The question, upon which the liability of the estate depends, could not be tried in executing these decrees; for s. 11 of Act XXIII of 1861 only authorizes the Court to try questions arising in execution of the decree between the parties to the suit. But the question here is not between the plaintiffs in those suits and the widow; it is between the purchaser at the sale in execution, and the reversioner, the person entitled to the estate after the death of the widow. He was not a party to either of the suits in which the decrees were made.
7. Nor has the question been tried in the present suit. The Subordinate Judge, as I have already read, states as an issue of fact, "whether the talooks were sold in public sale for legal purposes, or for the recovery of the personal debts of Kantishuree;" but in his judgment be says:--"In the present case the bona fide" of the decree and of the sale not having been impeached, it would cast an insurmountable difficulty upon the defendant to substantiate the prior legal necessity on the part of the widow which has caused the sale of the property. On the other hand, an attempt has been made by the plaintiff to show that the widow had ample means for meeting the demand of the zemindar, but certain tutored witnesses merely stating that she had an income of Rs. 500, or 600, is too vague an evidence to warrant a call upon the opposite party to rebut the evidence by any negative proof." That is, instead of requiring the party whose title depended upon there being a necessity for the widow to contract debts to prove it, he merely says there would be an insurmountable difficulty to his doing so, and throws upon the, other party, the reversioner, the burden of proving the contrary. This is what has occurred: there having been some time since a personal decree against the widow, the whole of the property was taken in execution and sold, and the person purchasing it is held entitled to keep it without proving the fact upon which his title depends, because, as the Subordinate Judge thinks, there would be an insurmountable difficulty in the way of his substantiating it. The question, which ought to have been tried, is thus left untried, and a decree has been made in favor of the defendants without any evidence on their part.
8. Then upon the appeal, the District Judge, instead of trying the question upon evidence, says:--"The first question which the lower Court should have decided on the merits was, whether there was legal necessity on the part of the widow to incur the debts under which the sales were made;" and as to the legal necessity, he says:--"It was ruled in Bistobehari Sahoy v. Lola Biajnath Prasad 7 B.L.R., 213 that in a suit by a reversioner to set aside a sale in execution of a decree against a Hindu widow, plaintiff''s cause of action depends on whether there was legal necessity for the widow''s incurring the debt which burdened her husband''s estate; if there was, the entire estate would pass; if not, her life-interest only; and the question is, "is the payment of rent to the zemindar by a Hindu widow a legal necessity." And upon the authority of Teluck Chunder Chuckerbutty v. Muddon Mohun Brahmin Joogee Ante, p. 143, the Judge held that the mere fact of the claim against the widow being for arrears of rent made it a case of necessity, and without taking any evidence on the subject, decided the question against the plaintiff.
9. In that case, Mitter, J., does say that "the rent due to the zemindar cannot under any circumstances be treated as a personal debt of the widow; and if the zemindar thought it proper to pot up the properties now in dispute for sale for the realization of that rent, after having obtained a decree for it in due coarse of law, the reversionary heir can have no right to come in after the death of the widow and take back those properties from the hands of the purchaser. If the widow have contracted a debt to meet the zemindar''s demand for rent, and then alienated a part of her husband''s estate for the satisfaction of that debt, the alienation would have been good and valid in law; and we do not see reason why less effect is to be given to a decree passed by a Court of competent jurisdiction, in execution of which decree certain properties belonging to the estate of the widow''s husband were brought to sale and purchased by the special appellant''s vendor."
10. We have only such information of the facts of this case as can be obtained from the judgment of the learned Judge. It does not appear whether the rent which was the subject of the suit became due after the death of the husband. Possibly it did. If it did not, the case would be like Ishan Chunder Mitter v. Buksh Ali Soudagur Marsh., 614 and
11. This passage was relied upon before us, but it is not applicable to a suit like the present. Here, the suits upon which the decrees were obtained against the widow were not suits in which the widow could be said to represent or protect the estate in respect of the reversionary interest.
12. Their Lordships were speaking of suits where the widow might be suing to recover property which she said was part of the estate, or where the widow might be sued for the recovery of property in her possession as part of the estate, and which she would bring or defend as representing the estate, and not only in respect of her own interest. Here the suits were against the widow only, she cannot be said to have been defending them as representing the reversioner, or as protecting his interest. She was defending on her own account; and the suits were not framed in such a way as to seek to have the whole of the estate charged, The reversioner, the person who was interested in preventing that, Was not a party to the suits, and had no opportunity of being heard.
13. The result of the authorities appears to be that where the debt has not accrued in the lifetime of the husband and is not his debt so that the widow is sued as his representative, the decree against her in a suit to which the reversioner is not a party, can only be considered as a personal decree against her, and he enforced by the sale of her interest only, except where the proceeding is one which authorises the sale of the tenure under Beng. Act VIII of 1869. Hero the plaintiff, who sued for arrears of rent, did not take the course which he might have adopted, and ask to have the tenure sold for the arrears due in respect of it. He sought and obtained something different from that, and under his decree he sold other tenures. It is found that what was sold was not merely the tenure in respect of which the rent accrued, but others. In fact, having obtained a personal decree against the widow, he executed it against any property of hers which he thought fit. I think that the Courts were wrong in treating this as a sale in execution of a decree for a necessary debt, and in holding that the plaintiff is not entitled to recover. The second suit was upon a bond for arrears of rent of which a very small part was due in respect of the property which was sold in execution, and in neither case was there any proceeding under Beng. Act VIII of 1869. Then the question is, what is the effect of this upon the plaintiff''s right to recover. It does not appear to be disputed that the plaintiff is the reversioner. The issue was raised in the first Court whether there was a legal necessity. The defendants had an opportunity of offering any evidence upon that which they thought fit to give. It appears from the judgment that they did attempt to prove it. The plaintiff gave some evidence to disprove it, but the burden was not upon him to do this. The issue having been raised in the first Court, and the defendants having had an opportunity of giving evidence upon, it, and not having done so, it would not be right for us now to remand the case in order to have that question tried. Indeed it would appear from the judgment that it would be of no service to the defendants to remand it for that purpose. But whether it would, or not, it is not right that fresh evidence should be now produced, the defendants not having thought fit to give the evidence when the issue was to be tried by the first Court. The consequence is, that the plaintiff shown that he is entitled to the property the widow being dead, and the defendants whose title depends upon the sales in execution have failed to show that they acquired by the sales more than the right which the widow had, and which has now been determined. The result is, that the plaintiff''s claim has not been met by any proof on the part of the defendants, and that he ought to have a decree for the recovery of the property, with costs in all the Courts.
1Before Mr. Justice Dwarkanath Mitter and Mr. Justice Hobhouse.
The 11th December 1869.
Teluck Chunder Chuckerbutty (Defendant) v. Muddon Mohun Brahmin Joogee And Another (Plaintiffs).*
Hindu Widow - Sale for Arrears of Rent--Widow''s Rights and Interests--Misjoinder--Objection taken for first time on Special Appeal.
Arrears of rent due to a semindar by a Hindu widow in possession of her husband''s property are not a personal debt of the widow; and on a sale of the property taking place in execution of a decree against the widow for such arrears , in a suit under Act X of 1859, the purchaser acquires the property absolutely, and not merely the rights of the widow.
The plaintiffs sued as heirs of one Mohesh Chunder Jogee, their maternal uncle, to recover certain parcels of land, which were in the possession of Ooday Tara, the widow of Mohesh Chunder. The defendants, among other things, stated that 4 annas of the property had been sold by Mohesh Chunder himself to the first defendant, from whom Taranauth Paulit, on of the defendants, had purchased it; farther, that the rest of the property had been sold in execution of decrees, some of which it appears were decrees for debts, and some for arrears of rent, against Ooday Tara, the widow, and Ram Doorga and Nobo Doorga, the sisters of Mohesh Chunder and mothers of the plaintiff, among whom, by an ikrarnama, the property had been divided in certain shares.
The first Court decreed the claim of "the plaintiffs,--except as to a portion of the property which had been purchased by one of the defendants at a sale in execution of a decree for rent, under Act X of 1859,--holding that the sale by Mohesh Chunder to Taranauth Paulit had not been proved; that the widow had no right to part with the property or divide it with the mothers of the plaintiffs; and that the sales in execution of the other decrees could only affect the rights of the widow and the sisters of Mohesh.
From this decision, both patties appealed. The Judge dismissed the appeal of the defendants, Agreeing with the first Court in the reasons given for its decision, and holding that sales under the decrees were invalid, unless necessity was shown for the debts, for which the decrees were passed.
The defendant Teluck, who had bought part of the property from a purchaser at a sale under a decree for rent, appealed from the Judge''s decision on two grounds: first that there was misjoinder of parties; secondly, that the sale being under a decree for rent, the purchaser acquired the property itself, and not merely the rights of the widow.
Baboos Ashootosh Chatterjee, Amerendro Nath Chatterjee and Jadub Chunder Seal for the appellant.
The respondents did not appear.
Mitter, J.--On the first point taken by the pleader for the special appellant, we are of opinion that misjoinder of parties is not an objection which can be allowed to be taken at this late stage of the proceedings.
As to the second point, we think the contention of the special appellant is right. The zemindar obtained a decree for arrears of rent against the maternal aunt of the plaintiff, special respondent, who was then in possession of the estate as the legal heir and representative of her husband Mahesh Chunder, and in execution of that decree the properties which form the subject-matter of this special appeal, namely, a 7-anna share of plot No. 17 and plot No. 25, and a 3 annas and 16 gundas share of plot No. 22, were put up to sale, under the provisions of Act X of 1869, and purchased by the vendor of the special appellant. The lower Appellate Court seems to be of opinion that the effect of this sale was merely to transfer to the special appellant''s vendor, the life-interest which the widow possessed in the tenure. We think that this opinion is erroneous. The rent due to the zemindar cannot under any circumstances be treated as a personal debt of the widow; and if the zemindar thought it proper to put up the properties now in dispute for sale for the realisation of that rent, after having obtained a decree for it in doe course of law, the reversionary heir can have no right to come in after the death of the widow, and take back those properties from the hands of the purchaser. If the widow had contracted a debt to meet the zemindar''s demand for rent, and then alienated a part of her husband''s estate, for the satisfaction of that debt, the alienation would have been good and valid in law, and we do not see any reason why less effect is to be given to a decree paved by a Court of competent jurisdiction in execution of which decree certain properties belonging to the estate of the widow''s husband were brought to sale and purchased by the special appellant''s vendor.
Holding this view of the case, we are of opinion that the decision of the lower Appellate Court, so far us it relates to the properties mentioned above, must be reversed, and that of the first Court restored, with costs of this appeal and the costs of the lower Appellate Court.
*Special Appeal, No. 1812 of 1869, against a decree of the Officiating Additional Judge of Zilla Backergunge, dated the 10th May 1869, reversing a decree of the Sudder Ameen of that district, dated the 19th March 1869.
2Before Mr. Justice Loch and Mr. Justice Ainslie.
The 22nd March 1872.
Brijbhookun Lall Awustee (Plaintiff) v. Mahadeo Doobey and others (defendants).**
Hindu Law--Maintenance of Widow Charge on Estate of Husband--Estoppel.
A Hindu died leaving two sons, 3 and M, who became separate in estate. S died, leaving a son, K, who became a lunatic. M died, leaving a widow, N and two sons, B and C; and on his death, his sons B and C took possession of their father''s estate, and entered into an agreement with their mother N to pay her Rs. 200 per annum for maintenance, and hypothecated some villages as security for due payment. B died, and C remained in exclusive possession of the property. After the death of C, his widows, R and D, and afterwards D alone, took possession of the estate. N sued D for arrears of maintenance accrued since the death of C, and obtained a decree. In execution of that decree, she attached the rights and interests of D in certain properties, but she died before any sale took place. The plaintiff, the son of K, then obtained a certificate under Act XXVII of 1860 as representative of N. He was appointed a guardian of K, who was, in a suit brought by him before his insanity and before the death of N, declared, by a decree made in 1848, entitled to the estate of C as reversioner. The plaintiff executed the decree obtained by N, and caused the properties, which had been before attached, to be sold in 1866. Some time after D died, and the plaintiff then sued the purchaser to recover possession of the property as the representative of his father under the decree of 1848, but was defeated on the ground set up by the defendants, the purchasers, that his father was no longer heir to C, by reason of supervenient insanity when the succession opened out to him on the death of N. The plaintiff then brought this suit to establish his own title to the property as heir of C. It was contended by the defendants, among other things, that K was not disqualified by his insanity, inasmuch as it was not congenital, and also, that by the sale in execution in 1866, under the decree obtained by N against D, the absolute proprietary title passed and not the life-interest of the widow only: Held, that the defendants having in the previous suit set up the defence that K was disqualified, by insanity, and taken the decision of the Court on that ground, were estopped now from setting up the defence that he was not so disqualified, and that he was entitled to succeed.
Held also, that the arrears of maintenance for which the sale in 1866 took place was the personal debt of I), and that nothing but her life-interest passed under the sale,
Mr. Woodroffe (Mr. C. Gregory, and Baboos Mohesh Chunder Chowdhry and Unnoda. Persad Banerjee with him) for the appellant.
Messrs. Allan and B.E. Twidale Baboos Sreenath Data, Chunder Mad, hub Ghose, and Mohini Mohun Roy for the respondents.
The facts of the case are stated in the judgment of the Court, which was delivered by
Ainslie J.--This is a suit to establish the plaintiff''s right to certain villages, included in Lot Moranwan, as heir of his cousin Chintamun Awustee. The property in suit, with other properties, formerly belonged to Deokishen Awustee in the report of Braja "Bhutan Lal Ahusti v. Bichan Dobi, 9 B.L.R., 204, note, will be found a genealogical table of the family., who died leaving two sons, Shew Churn and Muddon Mohun, who became separate in estate. Shew Churn died leaving a son, Kanyealall, who is still living, but is a lunatic. The plaintiff Brijbhookun is the son of Kanyealall. Muddon Mohun died leaving a widow Net Koowur and two sons, Balgobind and Chintamun,--these two lived in commensality, but have both died childless. On the death of Balgobind, his brother took the whole of their father''s estate, and died; leaving two widow, Radhe Koownr and Doorga Koowur, Radher Koowur died in 1267 (1859-60), and Doorga in 1277 (1869-70).
By an agreement between Net Koowur and her sons, the sum of Rs. 200 per annum was fixed for her maintenance, and the same agreement (which is not in the record) apparently contained a hypothecation of three villages, Bheekunpore Kaur, Gobindpore Kaur, and Sewa, as security for the due payment of this allowance; this is gathered from the plaint filed by Net Koowar in the suit to be noticed hereafter and from the fifth paragraph of the written statements of Huree Singh and Bechun Doobey, defendants in this suit.
During the lifetime of Chintamun, Net Koowur''s allowance fell into arrears, and she had occasion to sue him for those arrears, and caused several house properties to be sold in execution of decrees obtained by her; it also appears that on one occasion Chintamun sold one of his villages, Mauza Birnee, and paid Net Koowar some arrears, then due to her, out of the proceeds; but it is admitted that at his death he was not in debt to his mother on account of this allowance. After his death, and when the ancestral estates where in the hands of the widows, arrears again accrued, and finally after the death of Radhe Koowur, when Doorga Koowur was in sole enjoyment of the estate, Net Koowar instituted a suit against her, and obtained a decree for something between Rs. 1,300 and 1,400. In execution of this decree Net Koowar attached Lot Moranwan, and applied for the sale of the rights and interests of Mussamut Doorga Koowur therein, but at this stage of the proceedings she died and the execution suit dropped. After a contest, Brijbhookun was declared to be entitled to a certificate under Act XXVII of 1860 as representative of Net Koowur.
Before following that suit any farther, it is necessary to revert to a suit instituted by Kanyealall, father of the plaintiff, in 1847. In this suit Kanyealall on the 13th April 1848 succeeded so far that he obtained a decree declaring him entitled to the estate of Chintamun, as reversioner, after the decease of both the widows. Subsequently, but before the death of Net Koowur, Kanyealall became insane, and his son, the plaintiff, was duly appointed guardian and manager of his estate.
The decree obtained by Net Koowar against Doorga Koowur having, as related above, come into the hands of the plaintiff, he in 1866 applied to renew the execution thereof by proceeding against the properties previously attached by Net Koowur, and accordingly a sale was effected on the 19th June 1866, at which Bechun Doobey was recorded as the purchaser for a sum of Rs. 5,535. About three and a half years after this, Doorga Koowur died, and the reversion opened out. Brijbhookhun then a attempted to obtain possession of Chintamun''s estate under the decree of 1848 as representative of his father. He was met by the auction-purchaser by the plea that although Kaneyalall was the next heir to Chintamun in 1848 when the decree was made, he not having at that time became insane, yet when the succession opened out he was no longer an heir at all under Hindu law, in consequence of supervenient insanity, and that the plaintiff as representing one who had ceased to have any right, could not execute the decree. This Court in Braja Bhukan Lal Ahusti v. Bichan Dobi 9 B.L.R., 204, note, held that the contention was good, and affirmed the order of the Court below which refused to allow Brijbhookun to enter on Chintamun''s estate by executing his father''s decree. The plaintiff was thus thrown back on a regular suit to establish his own title as heir to Chintamun on the death of Doorga Koowur the last surviving widow. Hence this suit.
In his plaint, the plaintiff alleges that the decree obtained by Net Koowur was a decree against Mussamut Doorga Koowur personally, and that in execution thereof, he sold the life-interest of that lady; and he further alleges that she herself bought in the property in the name of her servant Bechun Doobey.
The right of the plaintiff as heir to Chintamun is disputed on the ground that his father is not disqualified by insanity which was not congenital. It is also contended that what was purchased at the execution-sale was the absolute proprietary title in Lot Moranwnr, and not the widow''s life-interest, and that Bechun Doobey was not a nominal purchaser account of Doorga Koowur; that the 260th section of Act VIII of 1859 bars the plaintiff opening up the question whether Bechun''s purchase was real for his own benefit or nominal for the benefit of Doorga Koowur, and that the plaintiff cannot impugn the dealings of the defendant Jinnee with Bechun, such dealings having boon carried on bond fide with the ostensible owner of the estate.
The judgment of the Court below was in favor of the plaintiff on the first point, and against him on the others. The respondents have objected under s. 848 to that part of the judgment which is against them, so that the whole case is before us.
The first point to be disposed of is the right of the plaintiff to bring this suit. It is admitted that either the plaintiff himself or his father is the heir of Chintamun, now that the reversion has opened out. The plaintiff is the legal representative of his father. Should his father recover the use of his reason, a question might arise whether he or his son was entitled to take the inheritance on the death of Chintamun, but in the meantime there can be no doubt that the plaintiff and the plaintiff only is the person who is entitled to the occupation of the estate. It is not contended that the form of the suit has in any way prejudiced the defendants and I should find it very difficult to hold that the suit ought to fail even if plaintiff is not the heir under the Hindu law. But independently of this, it is clear that the defendants are estopped from raising the plea by their own acts. Rightly or wrongly, they insisted in the former proceedings that Kanyealall''s right was barred by insanity, and they obtained a decision) of this Court in their favor (a decision which it is not my intention to question in any way), and they are bound by that decision. They cannot be allowed to come into Court and plead one defence, and then, as soon as they have succeeded in that and forced the plaintiff to take up the position which they then assigned to him, turn round and say he ought to go back to his former place: they took a decision of the Court on the point and for all purposes, connected with this litigation they must be bound thereby.
The next question is what passed by the Bale of the 19th June 1866, the limited interest of the widow, or the absolute interest as it existed in the hands of Chintamun. This question is sub-divided into two branches: 1st, whether in fact the sale was intended to be a sale of more than the life-interest; and 2nd, whether in law irrespectively of the intentions of the decree-holder it did operate to convey the absolute estate.
It seems to me that there is no room for doubt as to the intentions of the person at whose instance the sale was held. He was the personal representative of Net Koowur, and as such had an interest in recovering from Doorga Koowur, who held the estate of Chintamun for her life, the money for which she bad become liable as such life-tenant, but he was also the reversionary heir to whom the property was to come immediately on Doorga Koowur''s death.
It has been contended that he took the place of Net Koowur, and most be held to have executed the decree precisely in the same manner as she would have executed it in, and the fact that he asked to proceed on her application is pointed to. But that application, though, by reading it in connexion with matters not included within the paper itself, it may possibly be construed as containing a prayer for the sale of something more than the personal interest of Doorga Koowur, certainly does not on its face show that there was such a prayer in it. It asks for the sale of the rights and interest of Doorga Koowur: if, when presented by Net Koowur, we are to suppose that under this expression, she wanted to attach the reversion, surely we cannot hold that, when presented by the reversioner himself, it was intended to do so. Unless we take Brijbhookun to be of as weak intellect as his father, we cannot suppose him to have intended to sell his own interest to pay himself. That he knew what he was doing is manifest from his conduct on the day of sale, when in his application to be allowed to bid and to set off his claim against the purchase-money should the property be knocked down to him, he distinctly speaks of the subject of the sale as the life-interest of Doorga Koowur.
The petition itself is not forthcoming, but evidence has been given to show that it has been destroyed in the ordinary course of business, and the purport of the petition is proved by the vakalatnama of the 18th June 1866 appointing the vakeel by whom it was presented, and by the examination of the plaintiff himself. It is objected that if the petition was destroyed, the vakalatnama would also have been destroyed / and the uncertain nature of the first few answers of the vakil Mohabeer Pershad are pointed to as indication of the want of genuineness of this paper. It is true that the vakil does not speak very positively about the sale, but when the vakalatnama bearing his signature was put into his hands, he identified it at once. This paper came from the records of the Court, and contains a memorandum of the date on which it was filed (viz., 18th June 1866), signed apparently by some officer of the Court, and if the defendants intended to charge the officers of the Court with substituting the paper produced for another paper not originally on the record, or with allowing a fabricated record to be placed with the genuine records, they should have pursued their enquiry further. On the evidence now before us, we can, I think, come to one conclusion only, namely, that there is nothing to warrant the rejection of the vakalatnama as spurious. Even without this evidence and looking merely to the position of the party executing the decree, I could not persuade myself that he intended to sell anything more than the personal interest of the debtor.
This brings me to the second branch of the question, on which in fact the whole case of the defendants rests. It is contended that the maintenance of Net Koowur was a charge on the whole, and every part of the estate of her husband Muddon Mohan; that the non-payment of the maintenance by Doorga Koowur, the tenant for the time, rendered the estate itself, and not her interest therein, liable to sale; that the suit and decree against her were not in her personal but in her representative capacity; and that under that decree, whatever were the intentions of the person executing it, what was sold, not having been expressly limited to the life-interest of Doorga Koowur, was the absolute estate, and that the purchaser is entitled to take everything that the decree can be made to cover.
It has been contended that the widow of Muddon Mohan was entitled to a share of his estate on partition; but as there was no partition, this is immaterial. As matters stood, she was entitled only to maintenance.
The point was considered in Sheo Dyal Tewaree v. Judoonath Tewaree 9 W.R., 61, and the observations of Mitter, J., thereon are conclusive. It is not denied that the person, whoever he or she may be, who holds it estate for the time being, holds the subject to a charge for maintenance; but, on the other hand, no authority is shown which goes the length of laying down that each and every part of the estate is so hypothecated for this charge that the holder, if as was the case with Chintamun, he bad an absolute interest uncontrolled by co-existing rights of sons could not alienate any portion, free from the charge, however ample the remainder might be to provide for the widow''s dues. I am not prepared to say that the widow could not under any circumstances have followed the property into the hands of the alienee, for it is unnecessary to discuss that question but I have no doubt that if she wished to do so, she must do it by a suit expressly framed for the purpose. It is said that this was a suit against Doorga Koowur as representing the estate of Chintamun; but it seems to me that if she is to be treated as representative of Chintamun, and not as personally liable, it must be made out that there was a debt by Chintamun. But it is admitted that at his death Chintamun did not owe any portion of the money, for which Net Koowur obtained the decree under consideration. Apparently he did not owe Net Koowur anything for her maintenance at that time. The debt, it is said, was of the nature of installments falling due on a bond executed by Chintamun; but the analogy is incomplete, for the claim did not arise out of any act of Chintamun, but altogether independently of him, and would have existed equally though her had attempted to ignore it: the agreement of 1234 (1826-27) between Net Koowur and her sons originated no right, it merely defined and limited one that already existed.
By the Hindu law, the claim was one to be satisfied by the holder of the property at the time when each successive annual payment became due. It is impossible to say that Chintamun, who died in 1262 (1844-45), was then in debt for allowances that actually did not become due for from ten to sixteen years later, and that possibly might never have become due at all, I must hold that the debt was debt incurred by Doorga Koowur herself (or more correctly by Doorga and Radhe Koowur, but the introduction of Radhe''s name in no way affects the case).
This then being a debt incurred by Doorga Koowur, can she be said properly to represent all persons interested in the estate in the suit brought against her, or must the suit be held to have been against her personally. Assuming for the moment that Doorga Koowur''s income, from the properties of which she was tenant for life with the rights of a Hindu widow, was ample to provide for Net Koowur''s allowance, as well as her own necessary expenses, it could not be asserted that there was any legal necessity sufficient to render valid an alienation by her. A refusal to pay the allowance out of the income, and an alienation of the corpus to raise money for satisfaction of the claim, would be a wholly indefensible act, and an invasion of the rights of the reversionary heirs. Can it then be said that the person who had so invaded their right was a proper person to represent them in a suit brought to establish such a sale as valid against the estate? In the Shivagunga case 9 Moore''s I.A., 539, at p. 604, which has been quoted, their Lordships of the Judicial Committee no doubt do say, that "it is obvious that there would be the greatest possible inconvenience in holding the succeeding heirs were not bound by a decree fairly and properly obtained against the widow," but this leaves it an open question in each case whether a decree binding the estate was fairly and properly obtained against her. The particular decree there referred to was one in a suit brought by the widow, which, if successful, would have resulted in benefit to the reversioners as well as to herself; but when the circumstances are reversed, when the conduct of the widow is prejudicial to the interests of the reversioners, I do not think we can say that a decree in a suit against the widow in temporary possession is necessarily a decree binding on all persons who take the estate in succession to her. I think it is clear that a suit against her to establish a sale made without legal necessity would not in any way bind the reversioners, and that she could not be said to represent them in such a suit. And I fail to see how she becomes their proper representative in a suit brought to recover a demand accruing entirely through her fault, especially as there was no prayer in the plaint that the estate or any particular portion of it should be declared liable to sale in satisfaction of the claim. It is said that the rights of Net Koowur are secured on the estate, and that her rights are not abridged, because Doorga Koowur held something less than the absolute interest. I am fully prepared to admit it. But the only result, as far as I can see, is that if Net Koowur desired to push her remedy beyond the life-interest of her debtor, she ought to have made the heir expectant a party. Had she done so, I think such heir would have been entitled to ask the Court to make the decree with a proviso that execution should issue against the defaulter in the first instance, and against him (the reversionary heir) only after the interest of the defaulter had been exhausted.
Numerous cases have been cited in which decrees against a widow have been held to be binding on the reversioners, and in which sales of the widow''s interests have been held to convey the entire estate; but it is admitted that it in all these cases the debt to be recovered was one existing before the widow entered into possession, and not one arising out of her neglect to do her duty.
In the case of
The respondents rely on a passage at the conclusion of their Lordships'' judgment in the following terms:--"Their Lordships wish it to be understood that they leave unimpaired the general rule that in a suit brought by a third person, the object of which is to recover or to charge an estate of which a Hindu widow is the proprietress, she will, as defendant, represent and protect the estate as well in respect of her own as of the reversionary interest;" but for their purpose they must expunge the words "and protect." Their Lordships say not merely "represent," but "represent and protect," and I think we are bound to hold that where protection is evidently absent, representation of the reversionary interest is also wanting and moreover their Lorships refer to suits of which the object is (either expressly or by necessary implication from the facts) to recover or charge the estate.
I have assumed that Doorga Koowur was in a position to meet the demands upon her: looking to the form of Net Koowur''s suit, it seems hardly necessary to go further and enquire whether this was so in fact, but, as there is evidence on the point before us, it may be as well to refer to it briefly.
In the outset, I think, we may fairly presume that the allowance for maintenance was a reasonable charge, which the estate could bear, without unduly curtailing the profits derivable by the two sons of Muddon Mohun, which subsequently accumulated id the hands of Chintamun. With the exception of the sale of mauzas Birnee, Sower, and some house property in Chintamun''s lifetime, (sic) does not appear that the estate of Muddon Mohun had been materially reduced at the time when it came into the hands of his son''s widows, nor is it shown that there were incumbrances created by Chintamun, which the widows were obliged to clear off. The plaintiff has given evidence to show that the property which is the subject of this litigation was of considerable value and yielded a sufficient income to meet all reasonable expenditure, and the transactions of, or in the name of, Bechun Doobey since the auction-sale also indicate that the property was a valuable one: then there were other properties which the widows held, but which have since passed away from them by sales in execution of earlier decrees for Net Koowur''s maintenance:
There is nothing to show how the incumbrances grew up, which ended in the widows having no sufficient income to meet Met Koowur''s claim, or that they were of such a nature as to constitute proper charges on the estate.
Holding that nothing passed by the execution-sale of 19th June 1866 but the personal interest of Doorga Koowur, I need not go on to determine the further questions raised by the defence.
I would allow the appeal, and reverse the decision of the Court below, and make a decree in favor of the plaintiff for possession of the properties set out in the plaint, with costs in both Courts and interest on the same from the dates of the decrees in this Court and the Courts below respectively at 6 per cent. per annum.
**Regular Appeal No. 180 of 1871, against a decree of the Subordinate Judge of Zillah Gya, dated the 13th June 1871.
