Chapter 7

Stranger purchaser

Introduction

The nature of joint property of a dwelling house is such that it needs protection from the strangers due not only due to customs and family integrity but also to discourage disintegration of families on unilateral action of a member which is contrary to the spirit of joint family. Therefore sale of an individual member to a stranger by a member is generally looked upon as irregular or often illegal.

Adequate consideration

In order to uphold an alienation of a joint Hindu family property by the father or the manager, it is not only necessary to prove that there was legal necessity but also that the father or the manager acted like a prudent man and did not sacrifice the property for an inadequate consideration. A Hindu father or a Manager of a joint Hindu family is expected to act prudently. However great the necessity may be, if the joint family property is sacrificed for an inadequate consideration it would be highly imprudent transaction and it would be a case where, though for necessity, the father or the guardian has not acted for the benefit of the estate or the members of the joint Hindu family. The father or the manager is not the sole owner of the property.525

Duty of purchaser

When an alienation is made by the Manager of a joint family, the alienee is bound to enquire into the necessity for the sale and the burden lies on the alienee to prove either that there was a legal necessity in fact, or that he made proper enquiry sets the existence of such necessity and he did all that was reasonable to satisfy himself as to the existence of such necessity.526

Duty of lender/purchaser does not go beyond making bonafide inquiry to satisfy himself about the existence of legal necessity and he is not required to oversee the application of the amount borrowed. Where the lender/purchaser admits the borrowing to be for a specific purpose and asserts utilisation for that purpose, it is incumbent upon him to prove the necessity of borrowing for that purpose.527

Right to remain in joint possession

When there is no pleading of any such inter se arrangement between the coparceners nor is the case of the purchasers that the alienating member who placed them into possession, was in exclusive possession and enjoyment of the suit land sold in their favour, it was held that in such a situation the purchasers, therefore, had only a right to remain in joint possession of the coparcenary property and to work out their rights by bringing a suit for general partition and claim in that suit allotment of the alienated property to the share of their vendor. The purchasers can claim no larger right than what their vendor, as member of the coparcenary, possessed.528

Right of refund

A sale being void is not binding on coparcener but the purchaser of property is entitled to refund of amount of consideration of sale.529

Right to protect possession

Though the purchasers of undivided interest of a coparcenary can have no right to retain exclusive possession of a portion of the coparcenary property on the basis of sale in their favour but they can certainly claim a right in equity to insist or compel non-alienating members not to dispossess them without recourse to law. The relief of injunction is essentially an equitable relief which now is also governed by statute such as Specific Relief Act. The relief claimed being essentially an equitable relief, the right in equity existing in a purchaser to protect him possession till filing of a suit for general partition, can be granted to him even in a suit instituted by him of the present nature.530

Right to seek partition

The manager of a Joint Hindu Family is entitled to alienate the joint Family property for joint family necessity or for the benefit of the estate, in certain circumstances. Whether the manager is the father or not, will not make any difference. If such an alienation is made by the manager of the Joint Hindu Family of joint family property, the sale would bind not only his share in the property but the share of the other coparceners as well. No doubt, the other coparceners may be entitled to file a suit for partition and recover their share if the alienation was not for family necessity or for the benefit of the estate. But that right of a coparcener does not affect competency of the manager to alienate the joint family property. When once such alienation is made, the alienee is entitled to be in possession of the property and right of any other coparcener is to sue for partition and recover possession of his share in the joint family properties. The sale being only voidable unless it is avoided by an action, the alienee is entitled to continue in possession. The position may be different if one coparcener alienates his share alone, but once the alienation is made by the manager of the property, it will be effective until it is properly avoided by the non-alienating coparcener by filing a suit for partition.531

The Karta or the Manager of the Hindu Joint Family has a right to alienate undivided interest in the Hindu Joint Family property for valid consideration for family necessity. Karta or coparcener has right to alienate his undivided share in coparcenary property and the purchaser acquires only the equitable right to allotment of his predecessor's share at a partition? The purchaser is entitled to the allotment of the specific property sold and was put in possession, as far as possible, subject to equities.532

However Orissa High Court has held that in order to attract the provision of Section 4 of the Partition Act, four conditions should be satisfied, namely (I) the house should be owned by an undivided family; (ii) the share of a co-sharer therein should have been transferred to a person who is stranger to the family; (iii) the transferee should have sued for partition; and (iv) a member of the family being share-holder claims and undertakes to buy the share of the stranger transferee. In the present case, the question of applying Section 4 of the Partition Act cannot arise at all, as no suit for partition has been filed. Of course, it is true that the relief under section 4 of the Partition Act can be granted even where the suit for partition is brought by co-sharer himself and not by the stranger-transferee.533

Eviction in execution of decree

It is no doubt true that the purchaser of the undivided interest of a coparcener in an immovable property cannot claim to be in joint possession of that property with all the other coparceners. However, in case where he is already in possession of the property, unless the rights are appropriately ascertained, he cannot be deprived of the possession thereof for a joint decree-holder can seek for execution of a decree in the whole and not in part of the property. A joint decree can be executed as a whole since it is not divisible and it can be executed in part only where the shares of the decree-holders are defined or those shares can be predicted or the share is not in dispute. Otherwise the executing court cannot find out the shares of the decree-holders and dispute between joint decree-holders is foreign to the provisions of Section 47 CPC. Order XXI Rule 15 CPC enables a joint decree-holder to execute a decree in its entirety but if whole of the decree cannot be executed, this provision cannot be of any avail. In that event also, the decree-holder will have to work out his rights in an appropriate suit for partition and obtain necessary relief thereto.534

Ejectment of stranger

In a case where stranger was sought to be ejected after considerable delay it was held that if at all the plaintiff's predecessor-in-interest was co-sharer in respect of dwelling house in 1939 at the time of alienation, he had a cause of action then to invoke the provisions of Section 44 of the Transfer of Property Act and could have taken steps to injunct the so-called stranger purchaser from entering into possession. But it would be indeed a parody of justice to permit the plaintiff to raise such a question at such a belated stage for the first time in Second Appeal land thereby prevent the defendants from possessing a property which seems to be under their possession for more than a half century by now. Thus neither in law nor in equity such plaintiff can succeed by applying principles of Section 44 of Transfer of Property Act.535

Right of member

If the purchaser has obtained possession, non-alienating coparceners are entitled to sue for and recover possession of the property for the benefit of the joint family including the vendor. The remedy of the purchaser is only to file a suit for general partition. If a suit is brought by the alienating members against the purchaser to reclaim the property to the coparcenary, there is only an equitable right, which can be granted to the purchaser to protect possession, by staying execution of the decree for a specified period to enable the purchaser to bring a suit for general partition.536

If the property sold is less than the share of the vendor or approximately equal to his share then in such a situation the aforesaid equitable relief can be granted to the purchaser to protect his possession pending decision of his suit for general partition.537

Legal necessity for sale

The alienation for benefit of family is binding on the members of the family.538 A sale being void is not binding on coparcener but the purchaser of property is entitled to refund of amount of consideration of sale.539 When an alienation is made by the Manager of a joint family, the alienee is bound to enquire into the necessity for the sale and the burden lies on the alienee to prove either that there was a legal necessity in fact, or that he made proper enquiry sets the existence of such necessity and he did all that was reasonable to satisfy himself as to the existence of such necessity. A Hindu father has some special powers of alienating coparcenary property which no other coparcener has. He can make a gift of ancestral movable or immovable property and he may sell or mortgage ancestral property for payment of his own debt provided the debt was an antecedent debt and was not incurred for immoral or illegal purposes. Apart from this he has no greater power over coparcenary property than any other manager. Thus the power of sale of any coparcenary property by the father for payment of an antecedent debt is the special power of the father of a joint Hindu family and if the father makes a sale of the coparcenary property to discharge a debt contracted by him for his own personal benefit, then such alienation binds the sons, provided the debt was antecedent to the alienation and it was not incurred for an immoral purpose. "Antecedent debt" means antecedent in fact as well as in time that is to say, that the debt must be truly independent of and not part of the transaction impeached. This being the position, an alienation for legal necessity stands on a footing fundamentally distinct from an alienation by a father for the discharge of antecedent debt. Consequently, the different considerations arise if an alienation is sought to be supported on the ground of legal necessity, these considerations cannot be imported in examining an alienation by a father after the discharge of an antecedent debt. Once it is pleaded that the alienation was for the discharge of antecedent debt, then the person who challenges the alienation can assail the same either by establishing that the debt in question was not antecedent at all or by establishing that the debt had been incurred for any immoral or illegal purposes. It is, therefore, imperative that the party must plead the same in the pleading as otherwise the other side will be greatly prejudiced if without any pleadings a party is permitted to lead evidence on that score and finding is arrived at.540

Recital of necessity in the deed by itself is not proof of legal necessity. The recital of necessity must be corroborated by circumstances or evidence by person with special knowledge of facts.541

Legal necessity does not mean actual compulsion: it means pressure upon the estate which in law may be regarded as serious and sufficient. The onus of proving legal necessity may be discharged by the alienee by proof of actual necessity or by proof that he made proper and bona fide enquiries about the existence of the necessity and that he did all that was reasonable to satisfy himself as to the existence of the necessity. Recitals in a deed of legal necessity do not by themselves prove legal necessity. The recitals are, however, admissible in evidence, their value varying according to the circumstances in which the transaction was entered into. The recitals may be used to corroborate other evidence of the existence of legal necessity. The weight to be attached to the recitals varies according to the circumstances. Where the evidence which could be brought before the Court and is within the special knowledge of the person who seeks to set aside the sale is withheld, such evidence being normally not available to the alienee, the recitals go to his aid with greater force and the Court may be justified in appropriate cases in raising an inference against the party seeking to set aside the sale on the ground of absence of legal necessity wholly or partially, when he withholds evidence in his possession.542

If an alienee from a Hindu widow succeeds in establishing that there was legal necessity for transfer, he is completely protected and it is immaterial that the necessity was brought, about by the mismanagement of the limited owner herself. Even if there is no necessity in fact, but it is proved that there was representation of necessity and the alienee after making bona fide enquiries satisfied himself as best as he could that such necessity existed, then the actual existence of a legal necessity is not a condition precedent to the validity of the sale.543

When a property in dilapidated condition sold by Karta and the sale proceeds applied for construction of additional accommodation in the joint family dwelling house it was held that the alienation was for a legal necessity and therefore binding on the family.544 Sale of property for migrating to different place for better living is a sale for legal necessity.545

When the property is not proved to be joint family property, sale for want of proof of legal necessity, is not invalid.546

The Child Marriage Restraint Act does not affect the validity of the marriage even though it may be in contravention of the provision of the Act. Inspite of the marriage being valid, it is transparent from the provisions of the Act that the marriage in contravention of the provisions of the Act is a criminal act punishable under law. The Legislature no doubt disapproves all such marriages and makes the performance of such marriage punishable in law. To incur expenses for performing a ceremony which is a criminal act, cannot be taken to be legal necessity for which a Karta of the family is empowered under the Hindu law to effect an alienation.547 However another view was that 'there is no rule of Hindu Law sanctioning early marriage of male children and there is no duty upon parents or guardians to marry their sons or male wards before they attain majority. The practice of early marriage of Hindu minors may be sanctioned by usage; but it has been disapproved by the passing of the Child Marriage Restraint Act of 1929. The alienation could not be supported as being for legal necessity.548

However a marriage under the Hindu law by a minor male is valid even though the marriage was not brought about on his behalf by his natural or lawful guardian. The marriage under the Hindu Law is a sacrament and not a contract. The minority of an individual may operate as a bar to his or her incurring contractual obligations. But it cannot be impediment in the matter of performing a necessary 'samskars'. A minor's marriage without the consent of the guardian can be held to be valid also on the application of the doctrine of factum valet. Consequently the marriage of Hindu minor cannot be held to be invalid for want of proof that his guardian consented to it.549

Hindu marriage is a religious ceremony. According to all the tests it is a samskaram or sacrament, the only one prescribed for a woman and one of the principal religious rites prescribed for purification of the soul. It is binding for life because the marriage rite completed by saptapadi or the waling of seven steps before the consecrated fire creates a religious tie, and a religious tie when once created, cannot be united. It is not a mere contract in which a consenting mind is indispensable. The person marriage may be a minor or even of unsound mind, and yet, if the marriage rite is duly solemnised, there is a valid marriage.550

The doctrine of factum valet was quite well known to Hindu Law test writers and the relevant Sanskrit quotation is — 'a fact cannot be altered by a hundred texts'. The doctrine in the case of the marriage of a minor was that the factum of marriage, which was solemnised, could not be undone by reason of a large number of legal prohibitions to the contrary. Under Section 4 of the Hindu Marriage Act, it is only when there is a clear provision in the Hindu Marriage Act that any text, rule or interpretation of Hindu Law or any custom or usage as part of that law in force immediately before the commencement of the Hindu Marriage Act shall cease to have effect in so far as it is inconsistent with any of the provisions of the Act.551

A marriage solemnised after the commencement of the Act ws voidable inter alia on the ground that the marriage contravened condition specified in clause (iii) of Section 5. Such a provision, however, does not find place in the Act and the irresistible conclusion is that the legislature did not intend that a marriage solemnised in contravention of clause (iii) of Section 5 could be avoided. That conclusion is re-strengthened by a reference to Section 18 of the Act which provides for punishment to a person who procures a marriage of himself or herself to be solemnised under this Act in contravention of the conditions specified in clauses (iii), (iv), (v) and (vi) of Section 5 and it could not be said that the legislature was unmindful of the provision of law contained in Section 18 of the Act when it put Sections 11 and 12 on the legislative anvil. Therefore minority of the wife or absence of consent of her guardian in marriage was by itself not a ground for getting it declared null and void under Section 11 or its annulment under Section 12 of Hindu Marriage Act, 1955.552

Mental disorder merely disabling 'procreation of children' may not be, in a given case, a good ground for nullifying the marriage. We can envisage a spouse marrying at late age or a mental disorder of such a type where he or she is unable to complete a sexual act or a man or woman having no sexual organ for procreation of children but he or she may be otherwise completely fit as a marriage partner irrespective of a mental disorder disabling her/him from procreating children. In such a case permitting dissolution or nullification of marriage would break the marriage tie on an unsubstantial ground. In a given situation where the parties are young and the mental disorder is of such a type that sexual act and procreation of children is not possible it may furnish a good ground for nullifying the marriage because to beget children from a wedlock is one of the principal aims of Hindu marriage where Sanskar of marriage is advised for progeny and off-springs. The word 'and', therefore should be read as 'and/or' permitting the matrimonial Court in a given situation and given case of mental disorder to nullify a marriage if either of them or both the conditions exist making living of the parties together highly unhappy if not impossible. In my considered view, therefore, the word 'and' should not only be read as 'or' but should be read as 'and/or' meaning 'either or both'.553

Undivided share

It is not permissible for coparcener to transfer his undivided share in the joint property and such transfer would be void. Such sale deed executed in favour of transferee creates no right, title or interest in respect of property.554 A Full Bench of Madras High Court has however held that an undivided Hindu father has no right to bequeath coparcenary property.555

The disability of a coparcener in disposing of his undivided interest in the property by Will or other testamentary document under the old Hindu Law is removed by Section 30 of Hindu Succession Act, 1956 According to Section 4 any custom inconsistent with any provision of this enactment is abrogated. In the expression "any other law for the time being in force", the 'law' will include any statutory law or textual law or customary law. It would, therefore, follow that if there was any prohibition under the old Hindu Law the same stands removed after coming into force of Section 30 of the Hindu Succession Act.556

Locus standi to challenge sale

A coparcener adopted into a family acquires the same right as other coparceners therefore challenge to sale by a son subsequently adopted in the family is permissible.557

If a presumptive reversioner is a party to an arrangement which may properly be called a family arrangement and takes benefit under it, he would be precluded from disputing the validity of the said arrangement when reversion falls open and he becomes the actual reversioner. The doctrine of ratification may also be invoked against a presumptive reversioner who, though not a party to the transaction, subsequently ratifies it with full knowledge of his rights by assessing to it and taking benefit under it. It is, however, clear that mere receipt of benefit under an arrangement by which a Hindu widow alienates the property of her deceased husband would not preclude a presumptive reversioner from disputing the validity of the said alienation when he becomes the actual reversioner. It must always be a question of fact as to whether the conduct of the said reversioner on which the plea of ratification properly so-called.558

Limited estate

Limited owner commonly means a person with restricted rights as opposed to full owner with absolute rights. In relation to property absolute, complete or full ownership comprises various constituents such as the right to possess, actual or constructive, power to enjoy, that is to determine manner of use extending even to destroying, right to alienate, transfer or dispose of etc. Any restriction or limitation on exercise of these rights may result in limited or qualified ownership. For instance restriction on enjoyment of property or its alienation. Such restriction or limitation may arise by operation of law or by deed or instrument. The limited ownership of female Hindu in Hindu law arose as a matter of law. A Hindu widow, according to different schools, Banaras, Bengal or Mithila and even in Bombay inherited or succeeded to property whether of male or female as a limited owner and held a limited estate only.559

Under the law prior to the Hindu Women's Rights to Property Act, 1937, the widow of a person governed by the Mitakshara had only a right of maintenance in respect of a coparcenary property in which the husband had interest. In respect of separate property left by her husband, she had only the right of maintenance when the husband had left a son, grandson or a great-grandson. She could inherit his separate property only in the absence of these immediate heirs.560 After the Act of 1937 a widow of a deceased coparcener was entitled to succeed to the share of the deceased coparcener instead of conventional devolution of interest by survivorship under the then prevailing Hindu Law. The benefit of this Act is also available to a widow of last surviving male coparcener as the property does not cease to be joint so as to become separate property of such coparcener.561 However Hindu widow succeeding or inheriting any property from her husband or as widow of predeceased son, held limited interest known as Hindu women's estate, prior to coming into force of 1956 Act, under the Hindu Women's Right to Property Act, 1937. Since such an estate could not be alienated under Hindu Law except in certain circumstances and for specific purpose the holder of the estate was known as limited owner. The expression 'limited owner' thus could not be understood, except as it was interpreted and understood in Hindu Law.

The interest of a Hindu widow in the properties inherited by her bears no analogy or resemblance to what may be described as an equitable estate in English law and which cannot be followed in the hands of a bona fide purchaser for value without notice. From very early times the Hindu widow's estate has been described as qualified proprietorship with powers of alienation only when there is justifying necessity, and the restrictions on the powers of alienation are inseparable from her estate. If there is no legal necessity, the transferee gets only the widow's estate which is not even an indefeasible life estate for it can come to an end not merely on her death but on the happening of other contingencies like re-marriage, adoption, etc.562

When a widow succeeds as heir to her husband, the ownership in the properties both legal and beneficial vests in her. She fully represents the estate, the interest of the reversioners therein being only spes successionis. The widow is entitled to the full beneficial enjoyment of the estate and is not accountable to any one. It is true that she cannot alienate the properties unless it be for necessity or for benefit to the estate, but this restriction on her powers is not one imposed for the benefit of reversioners but is an incident of the estate as known to Hindu law. Where, however, there is necessity for a transfer, the restriction imposed by Hindu law on her power to alienate ceases to operate, and the widow as owner has got the fullest discretion to decide what form the alienation should assume. When there is a mortgage subsisting on the property, the question whether the widow could sell it in discharge of it is a question which must be determined on the facts of each case, there being no absolute prohibition against her effecting a sale in a proper case. What has to be determined is whether the act is one which can be justified as that of a prudent owner managing his or her own properties. If the income from the property has increased in value it would be a reasonable step to take to dispose of some of the properties in discharge of the debt and redeem the rest so that the estate can have the benefit of the income.563

A Hindu widow is entitled to the full beneficial enjoyment of the estate. So long as she is not guilty of wilful waste, she is answerable to no one. Her estate is not a life-estate, because in certain circumstances she can give an absolute and complete title. Nor is it in any sense an estate held in trust for reversioners. Within the limits imposed upon her, the female holder has the most absolute power of enjoyment and is accountable to one. She fully represents the estate, and, so long as she is alive, no one has any vested interests in the succession.564 In enjoyment of estate she is even entitled to induct or evict tenants.565

The limitations upon her estate are the very substance of its nature and not merely imposed upon her for the benefit of reversioners. She is in no sense a trustee for those who may come after her. She is not bound to save the income, nor to invest the principal. If she makes savings, she can give them away as she likes. During her lifetime she represents the whole inheritance and a decision in a suit by or against the widow as representing the estate is binding on the reversionary heirs. It is the death of the female owner that opens the inheritance to the reversioners, and the one most nearly related at the time to the last full owner becomes entitled to possession. In her lifetime however, the reversionary right is a mere possibility or spes successionis. It cannot be predicted who would be the nearest reversioner at the time of her death. It is, therefore, impossible for a reversioner to contend that for any loss which the estate might have sustained due to the negligence on the part of the widow he should be compensated from out of the widow's separate properties. He is entitled to get only the property left on the date of the death of the widow. The widow could have, during her lifetime, for necessity, including her maintenance alienated the whole estate. The reversioner's right to institute a suit to prevent waste is a different matter. If it could have been established that in having allowed some part of the properties to be sold in revenue sale she was guilty of wilful waste it would have been a different matter. It would still have been necessary for the reversioner to have instituted a suit on that basis.566

But where no date of death of husband could be ascertained and it was not clear that the husband died before or after commencement of the said Act of 1937 it was held that mere reliance on presumption under section 108 of Evidence Act, 1872 was not sufficient, In the absence of proof of date of death the widow was not entitled to any benefit under the Act.567

However the widow became full owner of the property in her possession on enforcement of Hindu Succession Act, 1956.568 But a widow not in possession on enforcement of Hindu Succession Act, 1956, does not become full owner of the property.569 The question as to how the widow came into possession of property is not material.570 Even if a female Hindu be, in fact, out of actual possession, the property must be held to be possessed by her, if her ownership rights in that property still exist and, in exercise of those ownership rights, she is capable of obtaining actual possession of it. When widow may not be in actual possession but her ownership right in the property of her husband became absolute and it still exist and in exercise of ownership rights she would be capable of obtaining actual possession of it, it cannot be said that by not being in actual possession, she had lost her rights to the property of her husband.571

The very right to receive maintenance is sufficient title to enable the ripening of possession into full ownership if she is in possession of the property in lieu of maintenance. Sub-section (2) of Section 14 of Hindu Succession Act, 1956 is in the nature of an exception to Section 14(1) thereof and provides for a situation where property is acquired by a female Hindu under a written instrument or a decree of Court and not where such acquisition is traceable to any antecedent right. The right of a wife for maintenance from her husband or from out of the joint family properties is a right which inheres in her by the very fact of she being the wife of a Hindu male and when such right is secured by means of a document, it could not be said on that fact alone that she has no pre-existing rights but for the document executed by her husband.572

Where property was acquired by a Hindu Woman under an instrument by virtue of a pre-existing right to maintenance and, under the law as it stood prior to the enactment of the Act, she would have had no more than a limited interest in the property, a provision in the instrument giving her limited interest in the property was merely by way of recognition of the legal position as it existed and the restriction on her interest, being a disability imposed by law, was wiped out and her limited interest enlarged under sub-section (1) of section 14 of Hindu Succession Act, 1956.573

The benefit of the provisions of this Act have also been extended to a Mistress and where the mistress of deceased was granted property in acknowledgement of pre-existing right for maintenance as permanent mistress it was held that the limited estate became full estate of the mistress as well.574

Under Mitakshara Law, there is no substantial difference in property acquired by inheritance or by partition qua Hindu widow. In either case she has no absolute right and interest in the property.575 Where, however, property is acquired by a Hindu female at a partition or in lieu of right of maintenance, it is in virtue of a pre-existing right and such an acquisition would not be within the scope and ambit of sub-section (2), even if the instrument, decree, order or award allotting the property prescribes a restricted estate in the property.576

The Hindu system recognises two sets of religious acts: those which are considered as essential for the salvation of the soul of the deceased and others which, though not essential or obligatory, are still pious observances which conduce to the bliss of the deceased's soul. The powers of a Hindu female to alienate property are wider in respect of acts which conduce to the spiritual benefit of her deceased husband. The widow is entitled to sell the property, even the whole of it, if the income of the property is not sufficient to cover the expenses for such acts. In regard to alienations for pious observances, which are not essential or obligatory, her powers are limited to alienating only a small portion of the property.577

A surrender is a voluntary act on the part of the widow and she is under no legal or moral obligation to surrender her estate. Instances do arise where an alienee has paid valuable and substantial consideration for a property on the expectation of enjoying it so long as the widow would remain alive and his expectations have been cut short by a surrender on the part of the widow, which no doubt benefits the reversioner in the sense that he gets the inheritance even during the widow's life-time. On the other hand, a person, who takes transfer from a Hindu widow, acts with his eyes open. If the transfer is without any legal necessity, there is a risk always attached to the transaction, and there is no law, as we have already explained, which secures to him necessarily an estate for life. A man making a purchase of this character is not expected to pay the same value which he would pay if the purchase were made from a full owner. The court is not incompetent to impose conditions on the reversioner's rights of recovering possession of the property during the widow's life-time on grounds of equity, justice and good conscience in proper cases.578

The doctrine of surrender or relinquishment by the widow of her interest in the husband's estate which has the effect of accelerating the inheritance in favour of the next heir of her husband is now a well-settled doctrine of Hindu Law. The basis of the doctrine is the effacement of the widow's estate and not the ex facie transfer by which such effacement is brought about. The result merely is that the next heir of the husband steps into the succession in the widow's place. No surrender and consequent acceleration of estate can possibly be made in favour of anybody except the next heir of the husband. It is true that no acceptance or act of consent on the part of the reversioner is necessary in order that the estate might vest in him; vesting takes place under operation of law. But it is not possible for the widow to say that she is withdrawing herself from her husband's estate in order that it might vest in somebody other than the next heir of the husband. In favour of a stranger there can be an act of transfer but not one of renunciation.579

Whether any equitable principle can be invoked in favour of a third party who has acquired rights over the property by any act or omission of the widow may be a matter for consideration. But it is not right to say that as adverse possession extinguished the rights of the widow, no fresh extinction by an act of surrender was possible. As the rights acquired by adverse possession are available only against the widow and not against the husband's heirs, the husband's estate still remains undestroyed and the widow may withdraw herself from the estate leaving it open to the reversioners to take possession of it at once as heirs of the last male holder unless there is any other rule of law or equity which prevents them from doing so.580

In a case of an alienation by a Hindu widow without legal necessity, the reversioners are re not bound to institute a declaratory suit during the life-time of the widow. They can wait until her death and then sue the alienee for possession of the alienated property treating the alienation as a nullity without the intervention of any Court. To such a suit by the reversioners for possession of the property after the death of the widow, the heirs of the widow were not necessary parties. The reversioners could claim no relief against the heirs of the widow and could effectively obtain the relief claimed against the alienee in their absence. Instead of waiting until her death, the next reversioner as representing all the reversioners of the last full owner could institute a suit against the alienee for a declaration that the alienation was without legal necessity and was void beyond her life-time.581

A Hindu widow cannot enlarge her estate by entering into a compromise with third parties to the prejudice of the ultimate reversioners but a compromise with the persons who had ultimately become the reversioners is valid.582

The following principles583 emerge for alienation by a widow inheriting a limited estate:

(1) It is the imperative religious duty and a moral obligation of a father, mother or other guardian to give a girl in marriage to a suitable husband; it is a duty which must be fulfilled to prevent degradation, and direct spiritual benefit is conferred upon the father by such a marriage.

(2) A Hindu widow in possession of the estate of her deceased husband can make an alienation for religious acts which are not essential or obligatory but are still pious observances which conduce to the bliss of the deceased husband's soul.

(3) In the case of essential or obligatory acts, if the income of the property or the property itself is not sufficient to cover the expenses, she is entitled to sell the whole of it; but for acts which are pious and which conduce to the bliss of the deceased husband's soul, she can alienate a reasonable portion of the property.

(4) Gifts by a widow of landed property to her daughter or son-in-law on the occasion of the marriage or any ceremonies connected with the marriage, are well recognised in Hindu law.

(5) If a promise is made of such a gift for or at the time of the marriage, that promise may be fulfilled afterwards and it is not essential to make a gift at the time of the marriage but it may be made afterwards in fulfilment of the promise.

(6) Some decisions go to the length of holding that there is a moral or religious obligation of giving a portion of the joint family property for the benefit of the daughter and the son-in-law, and a gift made long after the marriage may be supported upon the ground that the gift when made fulfils that moral or religious obligation.584

(7) Widow not in possession of property on enforcement of Hindu Succession Act, 1956, does not become full owner of property.585

The alienation by a Hindu widow does not become ipso facto void as soon as the widow dies; for, if that were so, it could not have been ratified by the reversioner at all. The alienation, though not absolutely void, is prima facie voidable at the election of the reversionary heir. He may, if he thinks fit, affirm it or he may at his pleasure 'treat it as a nullity without the intervention of any Court and he can show his election to do the latter by commencing an action to recover possession of the property. There is in fact nothing for the Court either to set aside or cancel as a condition precedent to the right of action of the reversionary heir.586

If a gift is accepted by the donee without obtaining consent of the next reversioner in actual possession of the gifted property no suit for cancellation of the gift deed may be necessary. The gift would ensure for the lifetime of the donor whereafter it will become void or at least ineffective.587

Where co-widows inherited the property of deceased husband with right of survivorship it was held that mere partition of the estate between the two widows does not destroy the right of survivorship of each to the properties allotted to the other in terms of partition.588

Where a property was set apart for maintenance of widow mother is in recognition of her right to maintenance and the widow becomes full owner on enforcement of Hindu Succession Act, 1956, it was held that this position remained unaffected by partition among her sons.589

Where a widow is in possession of a specific property for the purpose of her maintenance a purchaser buying with notice of her claim is not entitled to possession of that property without first securing proper maintenance for her. Even father-in-law of widow can not dispossess the widow from such property.590

Consent of co-owner

If a Hindu dies leaving behind two widows they succeed as joint tenants with a right of survivorship. They are entitled to obtain partition of the separate portions of property so that each may enjoy her equal share of the income accruing therefrom. Each can deal as she pleases with her own life interest but she cannot alienate any part of the corpus of the estate by gift or will so as to prejudice the right of survivorship or a future reversioner. If they act together they can burden the reversion with any debts owing to legal necessity but one of them acting without the authority of the other cannot prejudice the right of survivorship by alienating any part of the estate. The mere fact of partition between the two while it gives each a right to fruits of separate estate assigned to her, it does not imply a right to prejudice the claim of the survivor to enjoy full fruits of the property during her lifetime. The transfer made by one daughter without the consent of the other is only voidable at the instance of the other co-limited owners or at the instance of the reversioners.591