The learned District Judge is justified in his view on the burden of proof to this extent, namely, that the burden of proving that the alienation by the widow (1st defendant) to the 3rd defendant was nominal or without consideration lay on the plaintiff who attached the plaint property for realizing the amount decreed to him as due by 1st defendants deceased husband. We must accept his finding that the plaintiff has not discharged that burden. But there is the further question whether the alienation by the widow was made for such a necessary purpose as would bind the property after the widows death and whether the plaintiff is not entitled to attach and bring to sale the said reversionary estate in execution of his decree.

The burden of proving, as against a creditor of the husband or as against a reversioner, that an alienation by the widow is binding on the reversion is clearly on the alienee.

The learned District Judge says that the defendants no doubt, have not satisfactorily proved the necessity for the sale but we are loath to accept and act upon that finding as the District Munsif had come to a different conclusion and the learned District Judges above observation appears as a sort of obiter dictum in his judgment.

We shall, therefore, call for a fresh finding on the evidence already on the record on the question whether the alienation by the 1st defendant to 3rd defendant in 1899 was made for purposes binding on the reversionary interest in the plaint property.

The finding should be submitted within six weeks from the date of receipt of records, and ten days are allowed for filing objections to the finding.

***

[The District Judge of Kurnool returned a finding that the alienation was not binding on the reversion and the Second Appeal was finally heard on 30th March 1915].

Mr. T. M. Krishnasawmi Iyer for Mr. P. Venkataramana Rau for the 2nd Respondent:The attachment by the appellant is invalid. The estate of a Hindu widow is not a life estate but is an absolute estate. So long as she is alive, the alienation by her is in fall force and there is nothing to attach. See 2 W.R., 296; 9 B.H.C.R., 116; Sarkars Hindu Law, 438; I.L.R., 22 Bom., 984. The reversioners alone can question the alienation. I.L.R., 34 Cal., 329 and 14 C.W.N., 106.

Mr. V. C. Seshacharriar for the Appellant was not heard.

JUDGMENTS.



1. The facts are as follows. The plaintiff is the decree-holder in Original Suit No. 311 of 1901 on the file of the Nandyal Munsifs Court. The judgment-debtor is the first defendant, a Hindu widow who represented her husbands estate fully, and the decree was passed for a debt due by her husband. The plaint property was attached by the plaintiff (decree-holder) as belonging to her husbands estate. The attachment was made on the 11th November 1908, but the widow (the first defendant) had sold the property in 1899 itself to the third defendant, who sold it in his turn to the second defendant in 190

5. The widows sale was not made for necessity and was invalid beyond her life-time.



2. On these facts the question in second appeal is whether the plaintiff, who is the appellant before us, is or is not entitled to attach and bring to sale in execution of his decree in Original Suit No. 311 of 1901 that portion of the husbands estate which is left unaffected by the sale executed by the widow, that sale-deed, as we said before, not affecting more than that interest in the property which could enure during the widows life-time. There are no doubt observations in several cases deprecating the description of a Hindu widows estate at a life-interest, because she fully represents the estate for most purposes and nobody else represents any interest in the estate during her life-time and she is not a trustee for any body (See paragraphs (524 and 025 of Maynes Hindu Law). My own opinion is that when once it is admitted that she represents the estate fully, some of the Hindu haw texts which direct her not to alienate the estate except for necessary purposes are merely moral admonitions and a sale by her in contravention of those moral precepts does not fail to convey the absolute ownership to the purchaser. Hut authorities which cannot possibly be got over have held that an alienation not for legal necessity is only valid during her life-time, that is, it conveys to the purchaser only a right to enjoy during the widows life-time. See the very recent case of Singaram Chettiar v. Kalyanasundaram Pillai (1914) M.W.N. 73

5. When the full estate is vested in her and yet owing to the restrictions, which from being moral restrictions have become legal restrictions, she can convey only an inteiyst to last during her life-time by a conveyance not for legal necessity, it seems to me to follow that the absolute estate vested in her becomes by her alienation for her own purposes (valid during her life-time) divided into two estates, (1) a life estate enjoyable by the purchaser during her life-time and (2) a reversionary estate to be enjoyed after her life-time, both of which estates or rather the total of which belonged to her husband at his death. So far as her life-interest is, concerned, it became by her alienation not available to the creditors of her husband, but the ownership of the remaining reversionary estate continues in her as part of the estate which she inherited from her husband. That seems to me to be available to her husbands creditors. Mr. T.M. Krishnaswami Aiyar relied upon the cases which have held that a presumptive reversioner has no interest in the property during the widows life-time which can be attached by his creditor. See the latest case of this Court Kakaralapudi Lakshmi v. Rajah Kandukuri Veera Sarahha 29 Ind. Cas. 241 [LQ/MadHC/1915/159] : 17 M.L.T. 419 : 28 M.L.J. 650. In my opinion, these decisions are irrelevant in the consideration of the question whether the widow as heir of Tier husband has still left in her some property-belonging to her husbands estate which could be attached by her husbands creditor after she had made an alienation binding on her during her life-time. No person can claim during the widows life-time, after the alienation of the widows life-estate, to be the owner of that reversionary interest, but it does not follow therefrom that no reversionary interest, in property forming part of the husbands estate, is left after her alienation of her life-estate. If an interest belonging to the husbands estate is left, some legal person must be its owner. If a presumptive and contingent reversioner is not the legal person in whom the reversionary right exists, it must be the widow in whom the whole legal estate vested at her husbands death. If so, the decree-holder, who Obtained a decree against her as fully representing her husband, must he entitled to attach that reversionary interest remaining in her as part of her husbands estate.



3. Section 60, Clause (m) of the Civil Procedure Code and Section 6, Clause (a) of the Transfer of Property Act, are also relied on by Mr. T.M. Krishnaswami Aiyar. Section 60(m) of the Civil Procedure Code prohibits the attachment of a judgment-debtors ex pectancy of succession. Section 6(a) of the Transfer of Property Act prohibits the transfer of the chance of on heir-apparents succession by such heir-apparent. These statutory provisions again are, in my opinion, irrelevant to the consideration of the question before its, because the judgment-debtor here is not the presumptive or contingent reversioner but the widow representing her husbands estate fully, and the transfer which would be made by the attachment and Court sale of the reversionary interest is not made by any contingent reversioner or of the rights of the contingent reversioner in execution of a decree against him, but by the Court acting upon the judgment-debtors rights and upon the husbands estate vested in the judgment-debtor (widow).

4. I would, therefore, answer the question which I put to myself in the beginning of the judgment in the affirmative, and setting aside the judgments pi the lower Courts give a declaration to the plaintiff that the attachment made by him in execution of the decree in Original Suit No. 311 of 1901 is valid in respect of the reversionary interest in the properties subject to the life-interest of the widow. The parties will bear their respective costs throughout.

Tyabji, J.



5. I agree. It seems to me that the widow was a party to the proceedings in two capacities, (1) as to a life-interest in her own absolute right and (2) as to the reversion as the representative of her deceased husbands estate which is to devolve on his reversioner. She had no doubt purported to convey the property in both capacities, but it has been found that in so far as she purported to alienate the property in her latter capacity she had stepped beyond her legal powers and was not competent to bind the reversioner. She was on that account brought on the record so that the reversionary interest of her husbands estate may also be bound The authorities to the effect that the presumptive reversioners interest is such a mere expectancy as is referred to in the Transfer of Property Act, Section 6(a), support this view. For, if the reversionary interest in the widows husbands estate is a mere expectancy so far as the reversioner is concerned, the only person in whom the legal estate (I use that expression for brevity perhaps at the sacrifice of accuracy) can be said to be vested must be the widow.