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Kishan Lal vs Muhammad Ishaq And Ors.

High Court Of Judicature at Allahabad|10 May, 1938


1. An important question of Hindu law arose in this appeal and as that question was decisive of the appeal, the whole case has been referred by a Division Bench to us. The facts may be summarized. One Sarwan Lal was the owner of certain zamindari property. He died 20 years before the institution of the suit (suit was instituted on 8th May 1931). He left behind him a widow, Mt. Chain Kunwar, who also died 11 years before the institution of the suit and the property possessed by Sarwan Lal was inherited by Mt. Ganga Devi as a Hindu female she being the daughter of Sarwan Lal. Some time in 1927 Mt. Ganga Devi filed a suit for arrears of profits against Mohammad Ishaq in the Court of the Pargana Officer of Tehsil Koil. The defendant to the suit was Mohammad Ishaq who is defendant 1 in the suit out of which this appeal has arisen. Mt. Ganga Devi obtained a decree on 26fch April 1927 for Rs. 101-4-11. On appeal the learned District Judge of Aligarh increased the amount to Rs. 402-14-9. This sum with costs was realized by Mt. Ganga Devi in execution of her decree. An appeal had already been preferred by the defendant Mohammad Ishaq, and on 6th May 1929 the High Court set aside the decree of the learned District Judge and restored that of the Court of first instanoe. The High Court further awarded Rs. 58 as costs to Mohammad Ishaq.
2. Mohammad Ishaq then applied under Section 144, Civil P.C. for the recovery of that sum of money which Mt. Ganga Devi had realized in pursuance of the decree of the District Judge in excess of the decree of the trial Court and for execution of his decree for costs and sought to recover the amounts by attachment and sale of the property left by Sarwan Lal. The plaintiff objected to this attachment in the Court of the Pargana Officer, but his objection was struck off. He therefore filed the present suit for a declaration that the plaintiff was the owner in possession of the property detailed at the foot of the plaint and that the property aforesaid could not be attached or sold in satisfaction of the amount payable to Mohammad Ishaq. He set out a pedigree in the plaint in which he showed Nathu Ram, Kundan Lal, alias Keval Ram and Misri Lal as the heirs of Sarwan Lal and himself as a distant reversioner. He however alleged that by virtue of certain gift deeds executed by the aforesaid three persons, their rights were transferred to the plaintiff and the plaintiff thus became the owner of the property of Sarwan Lal which was sought to be attached and sold by Mohammad Ishaq. He impleaded as defendants to the suit (1) Mohammad Ishaq, (2) Nathu Ram, (3) Kundan Lal alias Kewal Ram and (4) Misri Lal. The trial Court decreed the plaintiff's suit, but the lower Appellate Court dismissed it and that decision was affirmed by a single Judge of this Court. The plaintiff filed an appeal under the Letters Patent and, as stated before, the Letters Patent Appeal has been referred to us.
3. The question that arises for determination is whether the estate of Sarwan Lal is liable to refund the money realized by Mt. Ganga Devi under the decree of the District Judge mentioned before which decree was set aside in appeal by the High Court or whether the personal heirs of Mt. Ganga Devi are liable for such refund. If the estate is liable, then the plaintiff's suit was rightly dismissed, but if the estate is not liable, the plaintiff is entitled to the decree given by the trial Court. It may be mentioned that the learned Munsif and the learned District Judge have found, as a fact, that the plaintiff is entitled to the estate of Sarwan Lal. The lower Appellate Court and the learned single Judge of this Court have, while dismissing the plaintiff's suit, emphasized the fact that a Hindu widow represents the estate for the time being and that when Mt. Ganga Devi brought a suit against Mohammad Ishaq in the Revenue Court she sued as a co-sharer in possession of a daughter's estate, but they have failed to attach due importance to the fact that the suit was not for the protection or augmentation of the estate but in respect of a personal claim of hers.
4. It is true that a widow or other limited heir is not a tenant-for-life but is owner of the property held by her subject to certain restrictions on alienation and subject to its devolving upon the next heir of the last male owner upon her death and the whole estate is for the time being vested in her and she represents it completely, but a widow or other limited heir is not a trustee for the reversioners and she has absolute power of disposal of the income of the property inherited by her. She is not bound to save any portion of the income and she can spend the whole of it upon herself or give it away during her life to whomsoever she likes. The learned District Judge relies upon certain cases in support of the view which he took, but in each one of those cases there was a reservation, and it was said that although a decree fairly and properly obtained against her in regard to the estate was, in the absence of fraud or collusion, binding on the reversionary heirs, a decree was not so binding where it related to a matter personal to her: see the cases in Risal Singh v. Balwant Singh (1915) 2 A.I.R. All. 360, Risal Singh v. Balwant Singh (1918) 5 A.I.R. P.C. 87 and Sarju Prasad v. Mangal Singh (1925) 12 A.I.R. All. 339.
5. In the profits suit filed by Mt. Ganga Devi she represented the estate so far as ownership of the estate was concerned, but she was asserting a personal claim of hers in respect to income over which she had absolute control. In Saodamini Dasi v. Administrator-General of Bengal (1893) 20 Cal. 433, their Lordships of the Privy Council held that where the executor of the will of a Hindu testator made over to the widow of the latter an aggregate sum consisting of accumulations of income accrued during eight years from her husband's death, undisposed of by his will, and the money was not received by her as a capitalized part of the. inheritance, but as income that had been accumulated during her tenure of her widow's estate and the widow did no act showing an intention on her part to make-this sum of money part of the family inheritance for the benefit of the heirs, the money so received by the widow belonged to her as income derived from a widow's estate and was subject to her disposition. In the course of their judgment their Lordships said : "The right she claimed" was to receive payment as the income-came in," and if this income had reached the widow's hand as it accrued, there could, have been no question as to the character in which she took it, meaning thereby that it would have been her personal property. In Subramanian Chetti v. Arunachelam Chetti (1905) 28 Mad. 1 (F.B.), an eminent Hindu. Judge at page 5 observed as follows:
Nor could it be supposed that, as a matter of abstract reasoning, there is any necessary connexion between the limited nature of the estate which a widow takes in her husband's property and the interest accruing to her in the income derived by her as such limited owner. In the absence of any clear provision of Hindu law, defining the character of her interest in the income, it must, on general grounds, be held that what becomes vested in her, in her own right and what she can dispose of at pleasure is her own property not limited but absolute, exclusive and separate in. every sense and devolving as such.
6. We might give an illustration to show that Mt. Ganga Devi's ownership of the property had no connexion with her claim for profits. She could have, if she had so chosen, given a theka of the property to a thekadar or she could have transferred the profits to an assignee and a suit for profits could have been filed either by the thekadar or by the assignee, and if similar events had happened in connexion with the suit filed either by the thekadar or by the assignee, the person responsible for refund would have been the thekadar or the, assignee and not the estate. There can be, no doubt on the question that a widow has an absolute control over the income of the ancestral property which she inherits from her husband and can dispose of it as she pleases. Difficult questions have however arisen when the income is accumulated, but this case is fortunately free from any such, difficulty. There was no accumulation of income so far as this particular case is concerned. All that happened was that Mt. Ganga Devi obtained a decree for profits from the Court of the District Judge and she realized the money and she died a year or so afterwards. She had full control over the amount realized by her and she never made it a part of the estate which she inherited; at any rate there is nothing on the record from which such an intention can be gathered.
7. There is yet another way in which this case may be looked at. The amount which Mohammad Ishaq seeks to recover, inasmuch as the decree of the District Judge was set aside in appeal by the High Court, never became an income in the true sense of the word; the decretal amount fixed by the District Judge was realized by Mt. Ganga Devi, subject to the result of the appeal pending in the High Court. She realized it in her personal capacity and she had to refund it in her personal capacity. For the reasons given above, we hold the view that the estate inherited by the heirs of her father cannot be made responsible for the refund of the money claimed by Mohammad Ishaq. We therefore allow this appeal, set aside the decree of the learned single Judge of this Court and of the lower Appellate Court and restore that of the Court of first instance. The plaintiff is entitled to his costs in all Courts from defendant 1.
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Kishan Lal vs Muhammad Ishaq And Ors.


High Court Of Judicature at Allahabad

10 May, 1938