1961 (4) TMI 79 - SC - Indian Laws

Whether a sale by a widow of properties which are the subject matter of a usufructuary mortgage is beyond her powers when the mortgagee cannot sue to recover the amount due on the mortgage? Held that - Appeal allowed. 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. Thus a sale by a widow of a property which is subject to a usufructuary mortgage is not binding on the reversioners must be held to be wrong.

Issues Involved:
1. Whether the sale by a widow of properties subject to a usufructuary mortgage is beyond her powers.
2. Whether the sale deed in favor of the appellant was bona fide.
3. The practice to be followed when there is a conflict among decisions of Benches of the same High Court.

Issue-wise Detailed Analysis:

1. Sale by a Widow of Properties Subject to a Usufructuary Mortgage:
The primary issue was whether a widow could sell properties that were subject to a usufructuary mortgage. The High Court, relying on the decision in *Dasrath Singh v. Damri Singh*, held that such a sale was not binding on the reversioners as it jeopardized their right to redeem the mortgage. However, the Supreme Court disagreed, stating that a widow's powers to alienate property are not limited by the existence of a usufructuary mortgage if the alienation is for necessity or benefit to the estate. The widow, as the owner, has the discretion to decide the form of alienation, akin to the powers of a manager of an infant's estate or a joint Hindu family. The Supreme Court emphasized that the widow's actions should be judged by whether they are prudent and beneficial to the estate, not by rigid rules. The decision in *Dasrath Singh's case* was thus overruled, and the Court endorsed the view in *Lala Ram Asre Singh's case* that a widow could sell property subject to a mortgage if there was necessity.

2. Bona Fides of the Sale Deed:
The respondents contended that the sale deed was not bona fide, arguing that the Subordinate Judge had failed to record a finding on this issue. However, the Supreme Court found this contention without substance. The District Munsif had observed that the appellant acted in good faith, having paid Rs. 500 and deposited Rs. 1,100 in court for redemption of the Zerpeshgi. This finding was not challenged before the Subordinate Judge, and thus, the point was not open to the respondents. The Court concluded that the sale was bona fide and binding on the reversioners.

3. Conflict Among Decisions of Benches of the Same High Court:
The Supreme Court addressed the procedural issue of conflicting decisions within the same High Court. The Court held that when a Bench of the High Court differs from the opinion of a previous Bench, the proper course is to refer the matter to a Full Bench for authoritative resolution. This ensures consistency and certainty in the law. The practice in the Patna High Court of following the earlier decision in case of conflict was noted, but the Supreme Court suggested that referring the matter to a Full Bench is the better approach. The Court cited several precedents, including decisions from the Privy Council and other High Courts, supporting this view.

Conclusion:
The appeals were allowed, and the decrees of the trial court were restored with costs throughout. The Supreme Court clarified the widow's powers to alienate property subject to a usufructuary mortgage and provided guidance on handling conflicting decisions within High Courts. The decision ensures that the widow's actions are judged by principles of prudence and benefit to the estate, rather than rigid legal constraints, and emphasizes the importance of procedural consistency in judicial decisions.

← Previous Next →