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PETITIONER: GOGULA GURUMURTHY & ORS

       Vs.

RESPONDENT: KURIMETI AYYAPPA

DATE OF JUDGMENT14/03/1974

BENCH: ALAGIRISWAMI, A. BENCH: ALAGIRISWAMI, A. MATHEW, KUTTYIL KURIEN

CITATION:  1974 AIR 1702            1974 SCR  (3) 595  1975 SCC  (4) 458  CITATOR INFO :  RF         1984 SC1683  (9)

ACT: Hindu Law-Limited estate of a widow-Whether income from  the husband’s estate is an accretion to that estate.

HEADNOTE: V,  the  father of the appellants had a brother R  who  died childless leaving behind him his widow, N. After R’s death a series of litigation started between V & N.  V filed a  suit in  1913  against R. for waste committed  by  her  husband’s estate  and was appointed a receiver in that suit.  In  that suit,  he got a decree, V as receiver filed 3 suits  on  the foot  of  3 mortgages in favour of R. In  execution  of  the decrees, 3 valuable properties were purchased.  These  three properties are the subject matter of the present appeal. V  died  in  1947  and N in  1951  after  executing  a  will bequeathing  in favour of her brother S all her  properties. S  filed the suit out of which this appeal arises, for  pos- session  of the properties bequeathed to him under the  will and  for  mesne profits.  The Sub-judge held that  the  said properties  became  accretions to the main estate of  R  and therefore, the plaintiff was entitled only to an account  of the  income  from these properties till the death of  V.  On appeal,  the High Court allowed the appeal in part.   Before this  Court four points were raised by the appellants  :-(I) The High Court committed an err or in not hearing the  whole appeal  but  confining the hearing merely to the  points  on which the finding was called for from  the lower court.  (2) a portion of the properties which was lost to the estate due to N’s negligence of not paying the land revenue, should  be debited against her share in them. (3) the cost incurred  by V  in the suit and in the execution proceedings should  have been taken into account in allocating the properties between the appellants and the respondents and (4) that the widow N, bad  treated  the properties as accretion to  the  husband’s estate  and  therefore, the appellants are entitled  to  the whole of the property. Allowing the appeal, HELD  :  (1) When a finding is called for on  the  basis  of certain issues framed by the Appellate Court, the appeal  is not  disposed of either in whole or in part.  Therefore  the

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parties cannot be barred from arguing the whole appeal after the findings are received from the Court of first  instance. [597 E) Gopi Nath Shukul v. Sal Narain Shukul, A.I.R. 1923 Allahabad 384, referred to. (2)  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.  In her lifetime, 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, there- ,  fore,  impossible  to contend that for any  loss  to  the estate  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 only to the property left on the date of the death of the widow. [599 C; FG] (3)  The income received by V and the amounts spent for  the suit and the execution proceeding were taken into account at the  time of settlement of accounts and it was open to V  to realise  the excess amount from the estate of R. It  is  not now open to the     appellants  to claim that these  amounts should be separated from the amount of the   decree      and should  be  added to the amount of  principal  and  interest accrued during the lifetime of R. [600 A-C] (4)  From  the evidence, it is clear that the widow did  not show  any intention to treat the income from, the  husband’s estate  as  an  accretion to  that  estate.  [601D]  Akkanna v.Venkayya, I.L.R. 1902 25 Mad. 351, referred to. The appeal was sent back to High Court for hearing afresh. 596

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1817 of 1967. From  the judgment and Decree dated the 21st September  1965 of the Andhra Pradesh High Court in A.S. No. 508 of 1959. K.   R. Choudhury and Veena Khanna, for the appellants. M.   K. Ramamurthi and J. Ramamurthi, for the respondent. The Judgment of the Court was delivered by ALAGIRISWAMI, J.-Venkanna, the father of the appellants, had a  brother  Ramamurti who died childless in  the  year  1908 leaving behind him his widow Narasimham.  After  Ramamurti’s death  a series of litigations started between Venkanna  and Narasimham and it is not over yet.  Venkanna filed O.S.  No. 14  of  1913 against the widow in respect of acts  of  waste committed  by her of Ramamurti’s estate and was appointed  a receiver in that suit.  In that suit he got a decree against Narasimham for a sum of Rs.13,539/- as she failed to furnish security  as originally decreed by the court.   Venkanna  as receiver filed three suits on the foot of three mortgages in favour  of  Ramamurti.  One was O. S. No. 34  of  1916.   In execution  of  that  decree  item  1  of  the  ’A’  Schedule properties was purchased in court auction.  O.S. No. 443  of 1918 was filed on the, foot of another mortgage in favour of Ramamurti  executed in 1904 and items 2 and 5 of the  plaint schedule properties were purchased in execution of decree in that suit.  These three items of properties are the  subject matter of this appeal.  It is unnecessary for the purpose of this appeal to refer to the third suit. Venkanna died in 1947 and Narasimham in 1951 after executing a will bequeathing in favour of her brother Venkata Sattayya all her properties.  Venkata Sattayya filed the suit, out of which  this appeal arises, for possession of the  properties bequeathed to him under the will and for mesne profits.  The

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Subordinate  Judge who tried the suit held that items  1,  2 and 5 become accretions to the main estate of Ramamurti  and therefore  the plaintiff was entitled only to an account  of the income from those properties till the death of Venkanna. The appeal against the Subordinate Judge’s judgment came  up for  hearing before Justice Satyanarayana Raju  and  Justice Venkatesam  of the Andhra Pradesh High Court.   The  learned Judges  called for a finding with regard to the interest  on the two mortgages in execution of the decrees in which items 1, 2 and 5 had been purchased, relating to *he period before Ramamurti’s  death and the period after  Ramamurti’s  death. After  that finding was received they allowed the appeal  in part  and  held that the plaintiff would be  entitled  to  a 19/34th share of item 1, and 12/23rd share of items 2 and 5. This  appeal is filed in pursuance of a certificate  granted by the High Court. Mr.   Ramasesneya  Chaudhri  appearing  on  behalf  of   the appellants  raised  four  points which we  shall  deal  with seriatim. 1.   The learned Judges of the High Court committed an error in  confining the appeal after receipt of the  finding  from the  Subordinate Judge’s court only to the question  of  the share,  which  the  appellants  ,and  the  respondent   were entitled to, based on the calculation of the 597 interest due on the mortgages before and after the death  of Ramamurti.  His  contention was that as the High  Court  had merely framed issues          and referred them for trial to the court of first instance under Order      XLI Rule 25  of the Code of Civil Procedure and not remanded the       whole case  under  Order XII Rule 23, they should have  heard  the whole  appeal  and not confined the hearing  merely  to  the points on      which  the finding was called for.  We  think that he is right in this      contention.  Before  the  High Court the learned advocate for the      appellants       had contended that Narasimham owed to the estate of Ramamurti  a sum of Rs.14,639/- and that when the decree was sought    to be executed by Venkanna, Narasimham claimed that the account due to her by way of interest under the three mortgage bonds should         be  set  off  and that  the  execution  could proceed only for the balance,      that the set off  claimed by Narasimham was actually allowed and that  therefore   she would  not  be  entitled  to any  share  in  the  properties purchased  in execution of the decrees obtained on the  foot of the         mortgage  bonds,  in  lieu  of  the  interest claimed. The learned Judges        disallowed    him    from raising that question on the ground that it was        not raised or argued at the time when the finding was called for on        the issues framed by them, and that if it had been raised and accepted      there  would have been no  need  to call for a finding or at any rate the        finding  called for would have been different, and that the argument   of the   learned  counsel  impugned  the  correctness  of   the conclusions         reached  by  the Court on the  basis  of which the findings were called for. We  consider that when a finding is called for on the  basis of  certain issues framed by the Appellate Court the  appeal is  not disposed of either in whole or in part.   Therefore, the  parties cannot be barred from arguing the whole  appeal after  the  findings are received from the  court  of  first instance.   We find the same view taken in Gopi Nath  Shukul v.  Sat Narain Shukul (AIR 1923 Allahabad 384) where it  was held that:               "Where an appellate Court at the first hearing               does  not  decide the case but  merely  remits

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             certain  specific  issues, it is open  to  the               Court  before which the case ultimately  comes               to disregard the findings on those issues  and               equally  to form its own opinion on the  whole               case irrespective of anything that is said  in               the remand order."               It was also held that:               "An  order remanding issues under Rule  25  is               not a final order.  No appeal lies against it.               The  responsibility for the decree  ultimately               passed  is entirely that of the  Court  before               which the case comes after remand.               It is quite otherwise with an order of  remand               passed under   order 41, Rule 23, for this  is               an order which does finally determine, subject               to  any right of appeal, the issues  which  it               decides.  A  similar  view was  taken  by  the               Nagpur High Court in Sultan               598               Beg  Al. chunilal (AIR 1918 Nagpur  193).   In               Abinash  Chandra Bidyanidhi  Bhattacharjee  v.               Dasarath   Malo  (XXXII   (1927-28)   Calcutta               ’Weekly Notes 1233) it was sail:               An  order of remand made under Or. 41,  r.  25               decides  nothing.  The Court, either the  same               or    as    differently    constituted,    has               jurisdiction,   while  finally   hearing   the               appeal,  to  go back on the reasons  given  or               views  expressed  in the order of  remand  and               must do so when those appear erroneous.  " We  are,  therefore, of opinion that the High  Court  should have gone into this question and decided the matter, for  if it  turns  out that the interest due on  the  two  mortgages subsequent  to  the  death of Ramamurti  had  been  set  off against the amount due to Venkanna in the decree obtained by him  against Narasimham in O.S. 14 of 1913 there can  be  no question  of Narasimham being entitled to any share  in  the properties  purchased in court auction in execution  of  the decree  in the two mortgages and her brother  getting  those properties  by  virtue of the will executed by  her  in  his favour. In the Trial Court the plaintiff’s contention was that these properties were purchased out of the accumulated interest on the  mortgages  and the defendants asserted that  they  were purchased  out of the principal.  That Court  dismissed  the plaintiff’s  claim on the ground that there was no proof  of his  allegations.  It was before the High  Court  apparently that the attempt to split the interest due on the  mortgages into  two  portions, one before Ramamurti’s  death  and  the other  after, was made and accepted by the High  Court.   It was  on that basis that the High Court called for  findings. After  the findings were received the appellants raised  the question  about  the  set-off.  They  raised  the  ,question before  the Trial Court when it was considering  the  appor- tionment of the interest but that Court felt it had no power to  go into that question in view of the terms of  the  High Court’s  order calling for the finding.  And the High  Court refused  to  allow the appellants to  raise  that  question, which as we have just held was not correct. The  decree  in  Venkanna’s suit appears  to  have  directed payment  of  interest  to Narasimham [Para III  (c)  of  the plaint and judgment of the High Court, page 102 of the paper book].  We find that Venkanna had submitted accounts to  the court  in his capacity as receiver till 1940.  We have  also evidence in this case that even When Venkanna died a sum  of

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Rs.4,486/-  was  due.to  him on the foot of  the  decree  he obtained  against  Narasimham.   It  is,  therefore,  highly unlikely  that  any amount due to Narasimham was  not  given credit to.  We find from the finding submitted by the  Trial Court  (Page 86 of the paper book) Narasimham  claimed  that the  amounts  due  to her should be set  off  and  execution should  proceed  only for the balance and from Ex.   A-7  it would appear that the claim was allowed.  It seems therefore unlikely,  taking the direction in the decree and the  order evidenced by Ex. A-7 into account, that the interest due  to Narasimham, was not 599 one  of  the items set off.  We do not want to  express  any final  opinion on the point but are of opinion that  in  the circumstances the High Court should consider this aspect  of the matter and dispose of the appeal afresh. 2.   Out of about 16 acres comprised in item 1, 5 acres  had been lost in revenue sale because of Narasimham’s failure to pay  the land revenue on those lands.  It was  urged  before the High Court and it has been urged again before us that in allotting  to  the appellants a share of items 1,  2  and  5 these 5 acre-, which were lost to the estate as a result  of Narasimham’s negligence should be debited against her  share in them.  We find ourselves unable to accept this contention just as the High Court, though they gave no reason for their conclusion.  Neither on principle nor on authority could the contention  on  behalf of the appellants  be  supported.   A Hindu widow is entitled to the full beneficial enjoyment  of the estate.  So long as she is not guilty of willful  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 reversions.   Within  the  limits imposed  upon her, the female holder has the  most  absolute power of enjoyment and is accountable to no one.  She  fully represents the estate, and, so long as she is alive, no  one has any vested interests in the succession.  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 in- heritance  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 sues successions.  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 clue 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 willful waste if would  have been a different matter.  It would still have been necessary for  the nevermore to have instituted a suit on that  basis.

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It  is doubtful whether such a suit can be instituted  after her  death.   In any case the necessary  averments  are  not available in this suit.  We are, therefore, unable to accept this contention 3.   Another  point urged before the High Court as  well  as before us was  that  the  cost incurred by Venkanna  in  the suit and in the execution     proceedings  should have  been taken into account in allocating 600 items 1, 2 and 5 between the appellants and the  respondent. The High Court took the view that as the income received  by Venkanna and the amounts spent by him including the  amounts spent  for the suit and the execution proceeding were  taken into  account at the time of the settlement of the  accounts and there was an executable decree in favour of Venkanna for a  sum  of Rs. 4,486/- as the amount due  on  settlement  of account,  and it was peon to Venkanna to realise the  amount against the estate of Ramamurti in execution of the  decree, it  is  not now open to the appellants to claim  that  these should be separated from the amount of the decree and should be added on to the amount of principal and interest  accrued during the lifetime of Ramamurti.  We agree with this  view. Incidentally it should be noticed that the conclusion of the High  Court  on this point would seem to point to  the  same conclusion in respect of the first point. 4.   Lastly,  it was argued that Narasimham, the widow,  had treated  this property as accretion to the husband’s  estate and  therefore the appellants are entitled to the  whole  of the  property.   The  facts  on  the  basis  of  which  this contention is urged are :               (a)   When  Narasimham’s life interest in  the               estate  was sold in E.P. No. 93 of 1927  filed               by Venkanna she did not question the  legality               of the sale on the ground that her interest in               the property was not a life interest but was a               full interest.               (b)   In the order in E.A. 624 of 1935  passed               by  the Subordinate Judge,  Visakhapatnam  the               widow treated items 1, 2 and 5 as part of  the               estate  of  her  husband  and  she  had   also               asserted therein that she had a right to enjoy               the same as representative of his estate.               (c)   Life   interest   in   the    A-Schedule               properties  was  &old in E.P. 28  of  1940  in               execution of the decree in O.S. 14 of 1913 and               the  widow did not object to the sale  on  the               ground  that what was being sought to be  sold               was a life interest but that she was  entitled               to full interest. We  do  not  think  anyone  or  all  of  these  grounds  are sufficient  to  establish that the widow  had  treated  this property as accretion to the husband’s estate.  As  observed by  the  Madras High Court in Akkanna  v.  Venkayya  (I.L.R. (1902)  25  Mad. 351) "the acquirer of  property  presumably intends  to  retain dominion over it and in the  case  of  a Hindu  widow  the presumption is none the less so  when  the fund  with  which  the property is acquired  is  one  which, though  derived  from  her husband’s property,  was  at  her absolute  disposal.  In the case of property inherited  from the  husband,  it is not by reason of her intention  but  by reason  of the limited nature of a widow’s estate under  the Hindu Law, that she has only a limited power of disposition. But  her  absolute  power of  disposition  over  the  income derived from such limited estate being now fully recognised, it is only reasonable that, in the absence of an  indication

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of  her intention to the contrary, she must be  presumed  to retain the same control over the investment of such  income. The  mere  fact  that properties thus acquired  by  her  are managed and en- 601 joyed by her without any distinction, along with  properties inherited  from  her  husband, can in  no  way  effect  this presumption.  She is the sole and separate owner of the  two sets  of properties so long as she enjoys the same,  and  is absolutely entitled to the income derived from both sets  of properties."  The fact that she wanted possession  of  those properties or that when in execution of his decree  Venkanna bought  what  he  alleged  was  her  life  interest  in  the properties she did not object to it and assert that she  had full interest does not affect this question.  It was to  her advantage to keep quiet.  She was not there by estopped from contending  that  she  had  an’  absolute  interest  in  the properties.   It should, more over, be remembered  that  the question  that the items 2 and 5 may have to be  divided  as between the reversioners and the widow in proportion to  the respective  shares of the husband’s estate and the widow  in that  property was really a later development.   Before  the Trial  Court both parties proceeded on a  different  footing altogether  as mentioned earlier.  The widow was  all  along doing  everything  to  prevent  her  husband’s  reversioners getting anything from the estate.  She had transferred quite a good part of it to her brother, which was what enabled the reversioner to file the suit against her for acts of  waste. She  exhibited  a  very clear intention  that  whatever  she possessed should go to her brother.  There is absolutely  no room  on the facts of this case to hold that  she  exhibited the  least intention to treat the income from the  husband’s estate as an accretion to that estate. In the result the appeal is allowed and the judgment of  the High  Court set aside.  The High Court will dispose  of  the appeal  afresh.  The costs of this appeal will abide and  be provided in the fresh decree to be passed by the High Court. C.M.P. No. 2016 of 1969 is dismissed. S.C. Appeal allowed. 602