Mummareddi Nagi Reddi and Others vs Pitti Durairaja Naidu and Others

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Civil Appeal No. 51 of 1950

Decision Date: 8 May 1951

Coram: B.K. Mukherjea, Mehr Chand Mahajan, Vivian Bose

In the matter titled Mummareddi Nagi Reddi and Others versus Pitti Durairaja Naidu and Others, the Supreme Court of India rendered its judgment on 8 May 1951. The opinion was authored by Justice B. K. Mukherjea, who was joined by Justices Mehr Chand Mahajan and Vivian Bose. The case was recorded under the citation 1952 AIR 109 and 1952 SCR 655, and is also referenced in the citator as R 1952 SC 207 (19) and R 1954 SC 61 (8). The principal issue under consideration involved the validity of a deed executed by a Hindu widow in favour of her daughter, who was the next reversioner, and the daughter’s husband, as a release of the widow’s estate. The Court held that, although Hindu law permits a widow to surrender her estate to the next reversioner even when that heir is a female, the widow cannot validly surrender the estate jointly to a female heir and a stranger. Such a transaction cannot be construed as a surrender to the female heir followed by a transfer by the heir to the stranger, and consequently it is not binding upon the ultimate reversioners. The Court referred to the earlier decision in Jagrani v. Gaya (A.I.R. 1933 All. 8561) and noted commentary in Nobo Kishore v. Harinath (I.L.R. 10 Cal. 1102). Additional authorities cited included Vytla Sitanna v. Marivada (L.R. 61 I.A. 200), Rangasami Goundan v. Nachiappa Goundan (41 I.A. 72), and Debi Prosad v. Gola Bhagat (I.L.R. 40 Cal. 721). The Court further observed that in a suit brought by the reversioner to set aside an alienation made by a Hindu widow, mesne profits may be awarded to the reversioner from the date of the widow’s death even though the alienation is not void. Moreover, where a decree for possession in favour of the reversioner is conditional upon the reversioner depositing an amount that has been used for the benefit of the estate, mesne profits may still be awarded if the reversioner is ordered to pay interest on the sum due to the alienee. The judgments in Bhagwat Dayal v. Debi Dayal (L.R. 35 I.A. 48) and Satgur Prasad v. Harinarain Singh (L.R. 59 I.A. 147) were also referred to, while the decision in Banwarilal v. Mahesh (I.L.R. 41 All. 63) was distinguished.

The appeal, identified as Civil Appeal No. 51 of 1950, challenged the judgment and decree dated 12 January 1948 issued by a Division Bench of the Madras High Court, comprising Chief Justice Gentle and Justice Satyanarayana Rao, in Appeal No. 167 of 1945. That judgment had partially reversed the decision of the Subordinate Judge of Nellore rendered in O.S. No. 3 of 1940 on 17 August 1942. Counsel for the appellants appeared as K. Rajah Aiyar, assisted by R. Ganapathi Iyer, while counsel for the respondents was B. Somayya, assisted by M. Krishna Rao. The Supreme Court delivered its judgment on 8 May 1951, with Justice Mukherjea authoring the opinion. This appeal was directed against the earlier appellate judgment of the Madras High Court, with the Court undertaking a review of the material facts and the legal controversy surrounding the validity of the widow’s deed of release.

In this appeal the Court examined a judgment of a Division Bench of the Madras High Court dated 12 January 1948, which had partially reversed a decision of the Subordinate Judge of Nellore issued in Original Suit No 3 of 1940. To enable a clear understanding of the material facts and the controversy now before the parties, the Court set out a concise family lineage. The patriarch of the family was Udatha Narayanappa, whose wife was Chanchamma, who died in 1933. Narayanappa died intestate sometime before 1884 leaving his widow Chanchamma and a daughter named Venkata Narasamma, who died in 1926. Venkata Narasamma was married to Pitti Rangayya, who died in 1914, and they had a son called Venkatadri-Rajakantarama. Venkatadri-Rajakantarama was the father of the present plaintiffs. The family tree also shows as further descendants Durairaja, Rajavathi, Balakrishnqa and Krishnababulu, who appear in the accompanying plans of the suit.

The properties that are the subject of the suit are listed in Schedule A to the plaint. All of these properties had originally belonged to Narayanappa, the father of the paternal grandmother of the plaintiffs. Because Narayanappa died without leaving a will, his estate passed to his widow Chanchamma and his daughter Venkata Narasamma. The plaintiffs assert that, as the heritable heirs of Narayanappa through the line of the daughter’s son’s sons, and in the absence of any nearer heir, they became entitled to the whole of Narayanappa’s property after the death of his widow.

According to the record, on 22 February 1894 Chanchamma executed a document described as a deed of release in favour of her daughter Venkata Narasamma and the daughter’s husband Pitti Rangayya. By that deed the entire estate of Narayanappa was said to have passed into the possession of Pitti Rangayya. After the deed was executed, Venkata Narasamma and her husband dealt with the properties as if they were their own, entering into various transactions on that basis.

Pitti Rangayya died in 1914 and Venkata Narasamma died later in 1926. The six items of property enumerated in Schedule A include, among others, items numbered 1, 4 and 5. Items 4 and 5 were sold by Venkata Narasamma together with her son, Venkatadri-Rajakantarama (the father of the plaintiffs), on 9 July 1922 to the fifth defendant and to the father of defendants 6 to 9 for a total consideration of Rs 6,500. Subsequently, on 26 October 1929, after the deaths of both Venkata Narasamma and the plaintiffs’ father, item 1 of Schedule A was sold by the mother of the plaintiffs, acting as their guardian, to the first defendant for a sum of Rs 33,000. Defendants 2 and 3 are the undivided sons of the first defendant. The suit also mentions other transfers in favour of additional defendants, but those transfers are not the subject of the present appeal.

The plaintiffs’ principal allegation is that the alienations of the properties mentioned above are not binding on them. They contend that the deed of release executed by the widow Chanchamma could not and did not operate as a deed of surrender, and therefore any transfer made on the basis of that deed by Venkata Narasamma, by her son Venkatadri-Rajakantarama, or even by the plaintiffs’ mother as guardian, could not affect the plaintiffs’ rights. In their view, because the deed of release was ineffective, the plaintiffs, as the true reversionary heirs, remain entitled to possession of the properties and seek to recover possession by evicting the transferees. The suit also includes a claim for mesne profits from the date of the widow’s death until the date possession is delivered.

The plaintiffs asserted that the deed of release executed by the widow could not operate after her death, and therefore the transfers made by her as guardian were ineffective. They argued that because these transfers were carried out while Chanchamma was alive and without any legal necessity, the plaintiffs, who were the actual reversionary owners, were not bound by them. Consequently, the plaintiffs claimed they were entitled to reclaim possession of the properties by evicting the transferees. The suit was instituted for the recovery of possession of the said properties, and it also sought mesne profits from the date of the widow’s death until the date when possession would be delivered. The defendants, who held an interest in the properties, advanced three principal contentions. First, they contended that the plaintiffs were not the next reversionary heirs of Narayanappa and therefore could not succeed to his estate upon the widow’s death. Second, they maintained that the deed of release functioned as a surrender of the widow’s estate in favor of her daughter, who, as the next reversioner, could acquire only a limited interest that would vest at the widow’s death; they further argued that because the daughter died in 1926, the present suit, filed more than twelve years after that death, was barred by limitation. Third, the defendants asserted that, even if the alienations were questioned, they could not be set aside because they were justified by legal necessity.

The learned Subordinate Judge, who heard the suit, decided against the plaintiffs. He held that, although the plaintiffs were described as heritable bandhus of Narayanappa, the evidence presented by them failed to establish that there were no agnatic relatives or nearer heirs alive. Regarding the deed of release (Exhibit P. 6) executed by the widow in favor of her daughter and son-in-law, the judge concluded that the deed operated as a surrender of the widow’s estate and, since the daughter had died in 1926, the suit was time-barred. On the question of legal necessity, the judge found that the sale deed (Exhibit D-I) in favor of the first defendant was supported by legal necessity to the extent of Rs 5,061 and odd annas, while the other document on which defendants 5 to 9 based their title was not binding on the estate. Accordingly, the judge dismissed the suit in its entirety. The plaintiffs appealed this decision to the High Court of Madras, where a Division Bench comprising the Chief Justice and Justice Satyanarayana Rao heard the matter. The High Court allowed the appeal with respect to the properties mentioned, reversed the trial judge’s decision, and held that the plaintiffs were the nearest reversionary heirs of Narayanappa.

The Court held that the deed of release did not function as a surrender of the widow’s estate. Accordingly, the plaintiffs were awarded a decree for possession of the first listed property against defendants 2 and 3, subject to the condition that the defendants deposit into the court the sum of Rs 5,061 and odd annas. That amount represented the debt legally attached to the estate, which had been discharged from the proceeds of the sale of the transferred property. In addition, the Court directed that interest be paid on that sum at the rate of six per cent per annum from the dates specified in the order until the date the deposit was actually made. The Court noted that the first defendant had died after the trial Court’s decree; consequently, his interest in the decree passed by survivorship to defendants 2 and 3, who were his undivided sons. Against defendants 5 through 9, the Court issued an unconditional decree for the recovery of possession of the fourth and fifth items listed in Schedule A. The plaintiffs also received a decree for mesne profits, both past and future, starting from the date of the widow’s death and continuing up to the date possession was delivered. The amount of those mesne profits was to be determined in a separate proceeding conducted under Order XX, rule 12 of the Code of Civil Procedure.

The present appeal was filed by defendants 2, 3 and 5-9 against the aforementioned decision. Counsel appearing for the appellants did not dispute the High Court’s finding that the plaintiffs were the nearest reversionary heirs at the time of Chanchamma’s death. Instead, the counsel challenged the propriety of the High Court’s decision on two principal grounds. First, he argued that the deed of release (Exhibit P-6) executed by Chanchamma operated as a surrender of the widow’s estate in favour of her daughter and son-in-law; since the daughter had died in 1926, the counsel contended that the plaintiffs’ suit was barred by limitation. Second, he maintained that the High Court should not have granted the plaintiffs a decree for mesne profits commencing from the date of the widow’s death. He asserted that mesne profits could at most be awarded from the date the suit was instituted, and that, for defendants 2 and 3—against whom a conditional decree was issued—mesne profits should be payable only after the plaintiffs fulfilled the condition by depositing the specified amount in court. The counsel further observed that the document in question was more than fifty years old and its language was not clear or definite, raising doubts about its legal effect.

In the document that was executed, the named beneficiaries were the son-in-law and the daughter of the woman who executed the deed. The woman placed the daughter in possession of all of her properties, both movable and immovable, and then listed those properties. The deed continued with several substantive provisions. First, it required the beneficiaries themselves to pay the annual quit rent and any other taxes that were payable to the Government, and it granted them the right to enjoy the property permanently in a hereditary manner from son to grandson and so on. Second, it imposed an obligation for the beneficiaries to pay the maintenance expenses of the executant at a sum of Rs 360 per year, to be paid before the month of Palguna of each respective year, for the duration of the executant’s lifetime. The remaining clauses directed the beneficiaries to collect all debts owed to the executant by other persons and also to settle all just debts that the executant herself owed. Finally, the deed noted that the lands were held under an izara lease that the widow had granted to a person named Narasimha Naidu, a lease that was scheduled to expire at the end of the year 1346 Fasli, and it stated that it would be for the daughter and the son-in-law to decide what to do with that lease. The deed did not contain any expressions of transfer, although the widow appeared to intend to endow her son-in-law and her daughter with hereditary rights of enjoyment over the property. The document was described and stamped as a release. It seemed to encompass all of the widow’s property and, in effect, indicated her intention to relinquish any further involvement in business matters. On the face of it, these facts supported the claim that a surrender had taken place. It could not be denied that a surrender could occur even when the next reversioner was a female heir who would receive only a limited interest, because such a surrender could not confer a larger interest than that which the heir would obtain under the law of inheritance. The difficulty in the present dispute arose because the widow claimed to exercise her right of relinquishment of her husband’s estate in favour of two persons: one who was the next heir and another, her son-in-law, who, as a stranger to the rights of inheritance, had no claim under the normal succession rules. There was no doubt that the widow’s intention was to allow the husband’s estate to pass jointly to her son-in-law and to her own daughter. The doctrine of surrender or relinquishment by a widow of her interest in the husband’s estate, which accelerates the inheritance to the next heir, is a well-established principle of Hindu law, having been affirmed through a long series of judicial decisions. Although the case law on the doctrine is not entirely uniform, the fundamental principle remains that the doctrine rests on the widow’s self-effacement of her estate, thereby allowing the next heir to step into the succession in her place.

In the case before the Court, the doctrine that the widow may relinquish her life estate, thereby opening the deceased husband’s estate to his next heirs, was examined. The Judicial Committee, in Vytla Sitanna v. Mariwada(1), observed that the essence of the doctrine lies in the effacement of the widow’s estate rather than in any apparent transfer that brings about such effacement; the practical result is that the husband’s next heir steps into the succession in place of the widow. The Court stressed that this effacement can be accomplished by any lawful means and that no specific form is required, provided that there is a genuine and complete renunciation of the widow’s right to hold the property and that the surrender is not a mere stratagem to divide the estate among the reversioners, as affirmed in Rangasami Goundan v. Nachiappa Goundan(2). From the underlying principle of the surrender doctrine, it follows that a surrender and the consequent acceleration of the estate can be made only in favour of the husband’s next heir. While it is true that the acceptance or consent of the reversioner is not a prerequisite for the estate to vest in him—vest­ing occurs by operation of law—it is impermissible for the widow to withdraw from her husband’s estate with the intention that it vest in anyone other than the husband’s next heir. In other words, a transfer to a stranger may be effected, but a renunciation of that nature cannot be directed toward a stranger. The present case involved a surrender purportedly made in favour of the next heir, who was associated with a stranger, with the widow seeking to relinquish the estate so that it might vest in both parties. Regarding the next heir, such a surrender could not be total because the widow expressly directed that part of her interest be held or enjoyed by another person who is not the husband’s heir. Concerning the stranger, no renunciation could be established; at most, the transaction might indicate an intention to confer a gift, but such intention lacks proper legal form. The Court also noted that Mr. Rajah Aiyar had vigorously urged the view that the document represented a composite of two separate transactions—first, a surrender by the widow of the entire estate to her daughter, and second, a transfer of a portion of that vested interest from the daughter to her husband. However, the Court found that the document neither in form nor in substance could be interpreted as a complete relinquishment of the widow’s estate to the daughter alone, nor did it show that the son-in-law received any interest by transfer from the daughter, rendering that line of argument untenable.

In the matter before the Court, the learned counsel for the appellants argued that the deed could be read as a composite instrument that combined two separate transactions: first, a surrender by the widow of her entire estate in favour of her daughter, and second, a transfer of a portion of that estate from the daughter to her husband, the son-in-law. The Court, however, found that such an interpretation encountered serious and, in the Court’s view, insurmountable difficulties. The deed, both in its form and in its substantive content, does not present itself as a relinquishment of the whole of the widow’s estate solely in favour of the daughter, nor does it contain any indication that the portion intended for the son-in-law was to be received by him through a transfer from the daughter. Moreover, the document is not a joint instrument executed by the widow and her daughter for the benefit of the son-in-law that includes a recital of the widow’s surrender of her estate to the daughter and a subsequent conveyance of part of that estate to the son-in-law. The daughter’s role in the deed is further limited: she does not appear as an executant of the deed, nor is she listed as an attesting witness. Instead, she is named only as a recipient of the deed together with her husband, and the language of the deed cannot be construed to show that she received the entire estate as a result of her mother’s renunciation, nor that she transferred or even consented to a transfer of any part of that estate to her husband.

In support of his position, counsel for the appellants placed great reliance on a principle articulated in a Full Bench decision of the Calcutta High Court in Nobokishore v. Narinath (I.L.R. 10 Cal. 1102), a principle that was later taken to be implicitly accepted by the Judicial Committee in Rangasami Goundan v. Nachiappa Goundan (L.R. 46 I.A. 72). The Calcutta High Court, in a series of cases later reviewed and affirmed in Nobokishore v. Harinath, held that a widow is entitled to sell or transfer the entire estate of her husband without any necessity, provided she obtains the consent of the next reversioner, thereby barring the rights of the actual reversioner at the time of her death. The Judicial Committee explained this rule as an extension of the doctrine of surrender established in Rangasami Goundan v. Nachiappa Goundan, stating that once a surrender is effected in favour of the nearest reversioner or reversioners, the estate becomes theirs, and it is a logical extension of the doctrine to hold that, since the reversioner(s) have title to convey the estate to a third party, a conveyance made by the widow with the reversioner’s consent amounts to the same result. The Committee further noted that this principle was deemed possible by the decision in Nobokishore. While the judgment in Nobokishore was premised on a surrender of the whole estate, the Court observed that the reference order indicated the alienation was ostensibly justified on the ground of necessity, a ground that could be supported under the second head of reasons set forth earlier. Consequently, it would be consistent with established legal principles for a widow to relinquish her interest in her husband’s estate and for the reversioner, in whose favour the estate vests, to transfer the estate, either wholly or partially, to another person.

In this case the Court explained that a transfer of an estate could be made either of the whole estate or of only a portion of it to another person. When the transfer concerned the entire estate, the two steps of surrender and conveyance could be combined in a single instrument, allowing the widow together with the reversioner to jointly convey the whole estate to a stranger; nevertheless the Court emphasized that the legal implication of such a joint conveyance must always be that the stranger, or alienee, obtained his title from the reversioner and not from the widow. The Court observed that extending this doctrine to the class of cases typified by Nobokishore v. Harinath (2) appeared to be rather far-fetched and somewhat anomalous. In those cases the courts had held that the immediate reversioner’s consent to the widow’s alienation of the whole estate to a stranger created a “double fiction.” The first fiction was that the widow was deemed to have surrendered her interest in favour of the consenting reversioner; the second fiction was that the reversioner was then deemed to have transferred the estate to the alienee, even though both fictions were contrary to the actual facts. The Court found it difficult to understand why a surrender should be presumed at all when the widow transferred the property directly to the stranger and not to the reversioner. Even assuming such a presumption, the Court noted a further problem: consent by a party cannot replace the conveyance that is required to vest title in a transferee. Consent merely binds the consenting party and anyone who derives title from that party. If, at the time of the widow’s death, the actual reversioner was the same person who had given consent, that person could clearly be precluded from challenging the transfer. However, if the actual reversioner was a different individual, there was no justification for holding that the latter was bound by the consent of a person who only had a prospective right of succession that never materialised. The Court referred to the observations of Mahajan J. in Ali Mohammad v. Mst. Nughlani (1) and noted that Sir Richard Garth C.J., in his judgment in Nobokishore v. Harinath (2), expressed considerable doubt about the propriety of treating a widow’s sale with the reversioner’s consent as equivalent to an actual renunciation. Yet, because of a series of earlier decisions, Sir Richard Garth C.J. felt compelled to accept that view as correct. The Court suggested that it might at some future stage be necessary to reconsider the whole law on this point. It appeared probable that the Privy Council had not critically examined the Nobokishore decision from the perspective of the doctrine of surrender, since that decision had been upheld on the ground of legal necessity. For the purposes of the present case, the Court proceeded on the assumption that the law laid down in Nobokishore v. Harinath (2) was correct, while cautioning that the doctrine should not be extended further.

The Court proceeded on the premise that the legal principle articulated in Nobokishore’s case was correct, but it emphasized that the doctrine should not be extended beyond its established limits. The Court quoted Sir Lawrence Jenkins, noting that “The road to the decision in Nobokishore’s case was not without its difficulties but the learned Judges felt it had to be travelled that titles might be quieted. But it is settled that there should be no extension of this Bengal doctrine,” a statement recorded in the judgment of Jenkins C.J. in Debipro-sad v. Gola Bhagat (1). The Court observed that the present matter did not fall within the scope of the doctrine set out in Nobokishore v. Harinath (2), which presupposed the alienation of the entire property to a stranger with the consent of the immediate reversioner. In the present case, it could not be said that the whole interest had been transferred to the widow’s son-in-law with the consent of her daughter. The transfer concerned only a fraction of the widow’s interest, and strictly speaking, the daughter had not expressed any consent. She acted more like a co-assignee together with her husband.

Mr. Aiyar argued that the daughter’s consent could be implied from her acceptance of the deed and her participation in several subsequent transactions based on that deed. He maintained that, if such consent were established, the fiction of surrender could be imported in her favour of the entire estate, and that this fiction would logically extend the principle in Nobokishore’s case to validate a partial transfer to a stranger on the theory of surrender. The Court found this line of reasoning unsound. It reiterated that extending the doctrine from Nobokishore’s case—an already questionable legal principle—was improper. The Court concluded that it could not invoke the fiction of surrender where any renunciation, if it existed, concerned only a part of the estate. Moreover, attempting to validate a partial alienation by the widow in favour of a stranger on the basis of surrender, merely because the reversioner had impliedly assented, was in the Court’s view completely unwarranted.

The Court then noted several decisions of the Calcutta and Bombay High Courts that Mr. Rajah Aiyar cited in support of his contention. It referred to the case of Abhay (1) I.L.R. 40 Cal. 721 at 781 and to Padha v. Ramkinkar (1), decided by a Division Bench of the Calcutta High Court, which appeared factually similar to the present case and, at first glance, seemed to favour the appellants. In that case, a Hindu widow executed a ‘nadabi patra’—a deed of release—in favour of her husband’s brother, who was the nearest reversioner, and also in favour of three sons of a pre-deceased brother of her husband. After the

After the widow’s death, the husband’s brother instituted a suit seeking possession of the entire property, denying the rights of his nephews under the deed executed by the widow. Both the trial courts dismissed the suit, and the High Court affirmed that dismissal on second appeal. The critical issue raised before the High Court was whether the transaction could be sustained on the basis of surrender, given that it involved a partial surrender to the next heir and a partial alienation to more remote heirs. Justice Cumming, delivering the judgment, observed that this contention possessed little substantive merit and was primarily a question of form rather than substance. He explained that if the widow had surrendered the whole estate to the reversioner and, at the same moment, the reversioner had transferred his estate to his nephews, nothing could be said against the transaction, and that is essentially what the present document appeared to accomplish. The Court noted that it did not possess the actual contents of the document in the case, nor could it determine whether the husband’s brother had joined in executing the document; nevertheless, for the reasons previously discussed, it could not accept the view that a widow’s transfer of her entire estate to the nearest reversioner and an outsider jointly would operate as a surrender of the whole estate to the immediate reversioner and a transfer of a half share to the stranger. Such a view remained subject to any rule of estoppel that might be properly invoked against the presumptive reversioner. This reasoning aligned with the Allahabad High Court’s decision in Mr Jagrani v Gaya (1 A.I.R. 1926 Cal. 228), which the Court considered the correct approach. Counsel for the appellants then referred to two authorities of the Bombay High Court. The first, Yeshwanta v Antu (2), involved a widow and her daughter, the immediate heir, executing a deed of gift of the entire estate in favour of a stranger who was the husband of a pre-deceased daughter; that court held the transaction valid on the doctrine of surrender, noting that the reversioner had joined the widow in making the transfer and the conveyance covered the entire estate, thereby constituting a valid surrender under the principle articulated in Nobokishore’s case. The second authority, Bala Dhondi v Baya (3), presented facts somewhat similar to the present case but did not assist the appellants because the Bombay High Court reversed a lower appellate decision that had held a gift to the daughter and her husband as a valid surrender, ruling instead that the transaction was invalid since it was not a gift solely to the daughter and the daughter, being a minor, could not consent to a gift in favour of her husband; although minority was not an issue here, that decision was not persuasive for the point presently under consideration.

The Court examined the decision reported in Dhondi v. Baya (3), noting that while the factual circumstances bore some resemblance to those in the present matter, the ruling did not provide assistance to the appellants. In that case a Hindu widow had transferred the whole estate of her deceased husband to her daughter and the daughter’s husband together, the daughter being the immediate heir at the time of the transfer. The lower appellate tribunal had concluded that the transfer amounted to a valid surrender. However, on appeal the High Court set aside that conclusion and held that the transaction could not be upheld because it was not a gift made solely to the daughter; instead it was a gift to the daughter and her son-in-law jointly. The High Court further observed that the daughter, who was a minor, lacked the capacity to consent to a gift that would benefit her husband. The Court pointed out that, although the present case does not involve any issue of minority, the decision in Dhondi v. Baya cannot be regarded as authoritative on the point presently before it (1) A.I.R. 1933 All. 856. (3) I.L.R. 60 Bom. 211. (2) I.L.R. 58 Bom. 521. Accordingly, the Court affirmed its view that the interpretation adopted by the High Court regarding the legal effect of the document identified as Exhibit P-6 was correct, and consequently the first contention advanced by Mr. Rajah Aiyar must fail. The discussion then proceeded to the separate issue of mesne profits. Mr. Aiyar contended that, because an alienation by a Hindu widow is not void ab initio but merely voidable, the reversioner could avoid the alienation only by instituting a suit; therefore the possession of the transferee could not be characterised as unlawful before the suit was filed, and no mesne profits should be awarded for the period preceding the suit. He further argued that, regarding property No. 1 in the schedule, only a conditional decree had been entered against defendants 2 and a, and that the plaintiffs’ right to possession would not arise until they satisfied the condition by depositing the stipulated amount in court; consequently mesne profits should not be payable to them. To support this line of argument, Mr. Aiyar relied upon the decision of the Allahabad High Court in Banwarilal v. Mahesh (1). With respect to his first argument, the Court observed that before the Judicial Committee’s decision in Bijoya Gopal v. Krishna Mahishi (2) there existed a misconception concerning the legal position of a transferee of property from a Hindu widow in relation to the reversioner after the widow’s death. An earlier Judicial Committee ruling had held that an alienation by a widow was not void but voidable, and that the reversionary heir could elect to accept the alienation and treat it as valid. The Court noted that the misconception did not persist beyond that earlier authority.

The Court noted that the death of the Hindu widow did not automatically render her alienation of property void, and it examined the earlier view expressed by the Calcutta High Court in Bijoya Gopal v. Krishna Mahishi (2) (supra). That view required a reversioner to have the alienation set aside before recovering possession of the widow’s property and prescribed the limitation period for a suit to set aside the alienation as that laid down by article 91 of the Indian Limitation Act, citing (1) I.L.R. 41 All. 63 and (2) I.L.R. 34 Cal. 329. On appeal to the Privy Council, the Law Lords observed that this position was founded on a misconception and clarified that a transfer made by a Hindu widow is not void ipso facto upon her death; rather, it is voidable at the election of the reversionary heir. The reversioner may, if he chooses, affirm the alienation or may, at his discretion, treat it as a nullity without any court intervention, and he may demonstrate this election by commencing an action to recover possession of the property. Consequently, there is nothing for the court to set aside or cancel as a condition precedent to the reversioner’s right of action. The Court explained that a reversioner’s suit for recovery of possession of property alienated by a widow is governed by article 141 of the Limitation Act and does not require the alienation to be set aside before a decree for possession is granted; the only requirement is that the suit be filed within twelve years from the widow’s death, and the decree must be based on the premise that the transferee’s possession was unlawful from the moment of the widow’s death. In light of this position, the Court held that it is proper to allow the reversioner mesne profits against the alienee from the date of the widow’s death. There is no rule of law precluding mesne profits where the alienation is not absolutely void. The Court referred to the Judicial Committee decisions in Bhagwat Dayat v. Debi Dayal (1) and Satgur Prasad v. Harnarain Singh (2) as illustrations where mesne profits were awarded in transactions that were merely voidable. Finally, the Court distinguished the alienee of a widow’s property from the transferee of joint property of a Mitakshara father, observing that a son of a Mitakshara father is required to set aside an alienation made by the father within the period prescribed by article 125 of the Indian Limitation Act, as indicated by the citations (1) L.R. 35 I.A. 48 and (2) L.R. 59 I.A. 147.

The Indian Limitation Act provides that the plaintiff may recover possession of the property only if the alienation of that property is set aside by a competent court. The High Court, as this Court observes, correctly held that the earlier decision in Banwarilal v. Mahesh(1) concerned a suit by a son against his father’s alienee under Mitakshara law. It further held that that precedent did not apply to the factual circumstances of the case before the Court. Concerning defendants two and three, the decree issued by the trial court was conditional, requiring the plaintiff to pay a specified amount before he could be granted possession of the disputed property. That amount represented the benefit that had accrued to the widow’s estate during the period in which the property was held by the alienee. Nevertheless, the High Court properly ordered that interest be paid on that amount to the alienee and also made the alienee liable for the mesne profits that accrued while the plaintiff was dispossessed. The Court therefore concluded that there was no ground on which to challenge the High Court’s rulings either on the conditional character of the decree or on the liability for mesne profits. Accordingly, the appeal was dismissed, and the costs of the proceedings were awarded against the appellant. Counsel for the appellants was M.S.K. Aiyangar, while counsel for the respondents was M.S.K. Sastri.