1. This appeal under Section 96 of C. P. Code, is by defendants 2 and 3 and directed against the judgment and decree for possession of suit properties with mesne profits made in 0. S. No. 8 of 1968, by the 1st Additional Civil Judge at Mangalore, South Kanara District.
(Contd. on col. 2)
*(Against judgment and decree of 1st Addl. Civil J., Mangalore in 0. S. No. 8 of 1968).
Vasudeva I Sharnakarnvaana I
2.The material facts giving rise to the appeal, briefly, are as follows:
In order to appreciate the facts, it is necessary to set out the genealogical table showing the relationship of the plaintiff - 1st respondent to the last male owner of the suit properties.
3. The parties are governed by the Hindu Mithakshara Law and the properties in suit were ancestral to Krishna IT, the father of the plaintiff. By virtue of a partition effect-d on 3-3-1909 (Ex. D-1), between Vasudeva IT and this brother, Krishna IT, the properties in respect of which the decree has been passed, fell to the share of Krishna IT. Krishna IT died on 25-2-1919 leaving behind him the plaintiff and a male child posthumously born on 13-9-1919. The properties in suit became vested in the said male child as owner. The child, however, died on 13-1-1920, still as a baby, leaving behind his mother, Rukmini, and a sister, the present plaintiff. Consequently, Rukmini succeeded to the estate of her son as a limited owner.
4. Rukmini, however, executed a deed of settlement, hereafter referred to as 'vyavastha pathra', in respect of such properties relinquishing her interest therein in favour of her husband's brother, Vasudeva IT, who was the nearest reversioner at the time, and his son, Shankaranarayana, IT, on A-8-1920 (Exhibit P-1). On 17-8-1933, after the deaths of Vasudeva IT and Shankaranarayana 11, Babu, the second son of Vasudeva IT, purporting to be sole surviving coparcener, executed a sale deed (Ex. D-3) of all his properties, including those in dispute herein, in favour of Shankaranarayana Hebbar and Subbaraya Hebbar. As a result of a partition between the said Vendees, dated 31-7-1'935, the suit properties along with others fell to the share of Subbaraya Hebbar.
5. Later, on 21-3-1943, Subbaraya Hebbar sold all his properties to one Rama Bhatta, the father of the original 1st defendant herein, that is Thirumalesha Bhatta. The appellants herein are the latter's son and widow. At a partition that took place on 9-2-1954 between Rama Bhatta and his son, the original 1st defendant, the suit properties fell to the share of the latter. Subsequently, at a partition held between the original 1st defendant and his son Ramachandra Bhat (defendant 2) some portion of the properties fell to the share of the latter.
6. While matters stood thus, on 17-6-1967, Rukmini, who had succeeded to the estate of her son as a limited owner, died. The plaintiff, as the sister of the last male-owner of the estate, and therefore the nearest reversioner, who became entitled to succeed to the estate, has filed the present suit for possession and mesne profits. It is her case that the said 'vyavastha pathra' executed by her mother on 4-8-1920 did not operate to confer full and absolute title on the settles mentioned therein. The specific pleas in the plaint in this behalf run thus:
'The alleged document dated 4-&1920 referred to above contains very many false recitals. It is not supported by consideration and virtually a sort of gift is attempted to be made by the said life estate holder. She was not entitled nor competent to do so. There was no necessity to do so either. The said transfer cannot be effective and valid after the lifetime of Rukmini Amma aforesaid nor does it purport to be effective after her lifetime.'
7. The main defences to the suit advanced on behalf of the defendants, briefly summarised, are: (1) among the properties specified in the 'A' schedule to the plaint only a portion of S. No. 143/2 and S. Nos. 142 and 144 fell to the share of Krishna II at the partition effected on 3-3-1909, and, therefore, the plaintiff had no manner of right to the other properties in the said schedule; (2) under the Hindu Law as it stood on the date of death of the last male-holder in 1920, Vasudeva II was the nearest reversioner, and the Hindu Law of Inheritance Amendment Act, 1929, according to which a sister became a nearer reversioner, had no retrospective effect; (3) even assuming that the plaintiff was the nearer reversioner, she must be deemed to have ratified the alienation having not challenged the same for a period of nearly 40 years after the enactment of the said Act; (4) although Rukminiamma was a limited owner at the time of execution of the 'vyavastha pathra', he became absolutely entitled to the properties by virtue of the Hindu Succession Act, 1956, and having ratified the same, the defect, if any, attached to the transaction stood cured and the alienees acquired full and absolute title in regard to them; (5) the alienation under the 'vyavastha pathra' was supported by legal necessity and, therefore, not open to challenge by the plaintiff; (6) the 'vyvastha pathra' operated as a valid surrender by a limited owner in favour of a remote reversioner with the consent of the nearest reversioner; (7) defendants 3 to 6 had perfected their title by adverse possession; (8) the plaintiff was estoppel from denying the validity of the surrender; (9) in the absence of correct description of the properties, the Properties were unidentifiable; and (10) the defendants had effected improvements at considerable cost and, therefore, were entitled in equity to the value of such improvements.
8. The learned trial Judge after framing the relevant issues and trial of the suit, held that the properties were identifiable; the plaintiff was an heir to the last male holder and entitled to succeed to the suit properties on the death of Rukminiamma; there was no ratification of the alienation under the 'vyavastha pathra' by the plaintiff; the defendants had not acquired title by virtue of the provisions of the Hindu Succession Act; the settlement by Rukminiamma by the deed of 4-8-1920 (Vyavastha Pathra) was not binding on the Hindu Law of Inheritance Act applied to the plaintiff in the facts and circumstances of the case; and the suit was not barred by adverse possession. He further held that the 'Vyavastha Pathra' did not operate as a valid surrender of a limited estate in favour of the nearest reversioner, principally relying on a finding in that behalf recorded by this Court in R. A. (M) 77/ 1956, arising from a judgment in 0. S. 29/ 1949.
9. On the basis of the above findings, the trial Court decreed the suit for Possession, but left the questions relating to improvements and mesne profits to be determined in proceedings for final decree. Hence the appeal.
10. On behalf of the appellants before us, the contentions urged may be outlined thus:
(1) The provisions of Section 8 of the Hindu Succession Act, 1956, were inapplicable to the facts of the present case and consequently, the plaintiff could not be considered as the nearest reversioner to the estate of the last male holder;
(2) the 'vyavastha pathra' operated as a valid surrender, notwithstanding the fact that it was executed by Rukminiamma in favour of both Vasudeva II and his son Shankaranarayana II;
(3) the finding of the Court in R. A. (M) 77/1956 regarding the effect of the 'vyavastha-pathra', that it did not operate as a valid surrender in favour of the nearest reversioner, was not binding on the parties to the present proceedings;
(4) the 'vyavastha pathra' evidenced an alienation for legal and valid necessity, by the limited owner and, therefore, the same was binding on the Plaintiff:
(5) there had been a subsequent ratification of the said alienation by the plaintiff;
(6) the finding regarding identification of the property in so far as it concerns S. No. 143/2 was based on a misconception of fact and, therefore, ought to be set aside and determined afresh in proceedings for final decree, with the help of a Commissioner, if need be; and
(7) when a claim for the value of improvements had been left open for adjudication in final decree proceedings, an unconditional decree for possession ought not to have been passed.
11. We shall now proceed to examine the above contentions seriatim.
The first contention raised was the, subject-matter of a decision by a Full Bench of this Court, on a reference having been made by the Division Bench, which heard the appeal in the first instance. The Full Bench answered the question referred against the appellants by holding that the next heir to such last male holder, who died prior to the coming into force of the Hindu Succession Act and was succeeded by his mother as a limited owner, and who herself died subsequent to the coming into force of the said Act, ought to be determined in accordance with the provisions of Section 8 of the aforesaid Act. The opinion rendered in this context reads:
'Our answer to the question referred to the Full Bench is that the provisions of Section 8 of the Hindu Succession Act apply to a case in which a last male holder governed by the Mitakshara Law, died prior to the coming into force of that Act, leaving behind him his mother who succeeded him as a limited owner and who died after the coming into force of the Hindu Succession Act, for the purpose of determining the next reversioner to the estate of the last male holder.'
Viewed in the light of the above enunciation, this contention must fail and is accordingly rejected.
12. Elaborating the next contention, it was urged that the fact that Shankaranarayana 11, who was not the nearest reversioner, had been joined as a settle in the 'vyavastha pathra', would not invalidate the surrender when it was shown that the limited owner, Rukminiamma, had effaced herself completely by virtue of such a settlement, and the same had not been shown to be a device to divide the estate between herself and the surrenderees. We are not persuaded to agree with this submission.
13. It is a well-established Proposition of Hindu Law that a surrender by a limited owner can only be made in favour of the nearest reversioner or all of such reversioners, if there be more than one, who are related to the last male holder in the same degree of relationship, and not otherwise. This, position has been clearly enunciated by the Privy Council in the case of Rangaswami Gounden v. Nachiappa Gounden, (AIR 1918 PC 196). The relevant enunciation reads
'* * * But in any case it is settled by long practice and confirmed by decision that a Hindu widow can renounce in favour of the nearest reversioner if there be only one or of all the reversioners nearest in degree if more than one at the moment. That is to say, she can, so to speak, by voluntary act operate her own death. * * '
14. In the instant case, Shankaranarayan IT was not related to the last male holder (i. e. deceased male child), in the same degree of relationship as the former's father, Vasudeva IT. If Vasudeva IT is treated as the nearest reversioner, his son, Shankaranarayana IT, can only be regarded as a remote reversioner. For the 'vyavastha pathra' executed by Rukminiamma to be considered as a valid, surrender, it ought to have been executed in favour of Vasudeva IT only, who it is common ground between the parties, wag the only nearest reversioner, being the immediate next heir of the last male holder, as the law stood on the date of death of such last holder. The question then would be whether the joining of Shankaranarayana II as one of the surrenderees, would render such surrender invalid and inoperative in the eye of law. That the answer to this question has to be in the affirmative has been laid down by the Supreme Court in the case of Mummareddy Nagai Reddi v. Pitti Durairaja Naidu : 2SCR655 . The relevant observation runs thus
* It should be clear from the principle underlying the doctrine of surrender that 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 t1h-at 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. The position is not materially altered if, as has happened in the present case, the surrender is made in favour of the next heir with whom a stranger is associated and the widow purports to relinquish the estate in order that it might vest in both of them. So far as the next heir is concerned, there cannot be in such a case a surrender of the totality of interest which the widow had, for she actually directs that a portion of it should be held or enjoyed by somebody else other than the husband's heir. As regards the stranger, there can be no question of renuniciation:
the transaction at the most may be evidence of an intention to confer a bounty on him, though such intention is not clothed in proper legal form.'
(underlining by us)
15. Following the above enunciation, the Supreme Court in the later case of Phool Kuer v. Pern Kuer : 1SCR793 , where it was considering a question of surrender by a limited female owner in favour of two persons, related to each other as uncle and nephew, of whom only the uncle was the nearest reversioner to the last male holder, has observed thus:
'Assuming however for the sake of argument that Mohan Kuer purported to relinquish her estate in favour of Jwala Prasad and Madho Lal, in our opinion, the relinquishment cannot in law operate as an extinction of her title in the estate. The Principle underlying the doctrine of surrender is that it cannot possibly be made in favour of anybody except the next heir of the husband. Vesting of the estate in the next reversioner takes place under operation of law and it is not possible for the widow to say that she is withdrawing herself from the husband's estate in order that it may vest in somebody other than the next heir of the husband.'
(underlining by us)
16. Viewed in the light of the above enunciations, we find it difficult to hold that the purported surrender, as envisaged in the 'vyavastha pathra' executed by Rukminiamma in favour of Vasudeva II and his son Shankaranarayana II, was valid. This conclusion, in our view, would ordinarily have rendered any consideration of the next contention concerning the effect of an earlier judgment of this Court in R. A. (M) 77/ 1956 unnecessary. However, we propose to consider the same, only with a view to deal with certain ancillary contentions raised in its context.
17. We have earlier referred to the fact that subsequent to the purchase of properties by Lakshminarayana Hebbar and Subbaraya Hebbar, there was a -partition on 31-7-1'935, between the two branches and the properties in dispute fell to the share of Subbaraya Hebbar. In this context, a suit for reopening the said partition and a decree for a fresh partition and accounts, came to be filed by the sons of Subbaraya Hebbar, in 0. S. 29/1949 on the file of the then Subordinate Judge, South Kanara. The main ground on which the suit was based, was that the title to the Properties conveyed by the 'vyavastha pathra' executed by Rukminiamma, was doubtful. This was contested on the ground that it operated as a surrender valid in law. The trial Court dismissed the suit. On appeal, in R. A. (M) 77/1956, this Court, by its judgment (Ex. P-7), while dismissing the appeal, however, held that the said 'vyavastha pathra' did not operate as a valid surrender by a limited owner in favour of the nearest reversioner, for more than one reason. The trial Court in the instant case, relied heavily on this judgment in coming to the conclusion that there was no valid surrender.
18. On behalf of the appellants, it was urged that the said finding was not conclusive and binding for two reasons, namely,- (1) that it was not a judgment rendered in proceedings between the parties to the present suit; and (2) that in arriving at such a finding the Court was not called upon to consider an argument that the surrender evidenced by the 'vyavastha pathra' was in favour of the 'Kartha' of the joint family of Vasudeva II, which would be permissible as per the decision of the Privy Council in the case of Sm. Radharani Dassya v. Sm. Brindarani .
19. We are not persuaded to agree with either of these contentions. On the first contention, it has to be noticed that the appellants herein claim title to the suit Properties by virtue of a purchase from Subbaraya Hebbar on 21-3-1943, and Thirumalesha Bhatta, the father and husband respectively of the appellants herein, was a party in the aforesaid earlier proceedings. In these circumstances, we are of opinion, that the finding recorded by this Court in appeal relative to the nature' and effect of the 'vyavastha pathra' would operate as a judicial precedent. That this is the true legal position can be gathered from an enunciation of the Supreme Court in the ease of Sahu Madho Das v. Mukand Ram : AIR1955SC481 . Although the said enunciation relates to a will, we think it is equally applicable to the facts of the instant case. The relevant observation occurs in para. 24 of the aforementioned report and reads:
'* * * Mukand Ram was not a party to that litigation and the decision does not bind him but it operates as a judicial precedent about the construction of that document, a precedent with which we respectfully agree.***'
This observation no doubt does not lay down that such previous finding would operate as a binding decision in respect of a Party who had no opportunity to contest it. But the present appellants' predecessor on interest, Thirumalesha Bhatta, was a party to those proceedings, Such being the case, it seems to us, even if only as a judicial Precedent, the findin2 in Point would be entitled to great weight. We have also no hesitation in respectfully agreeing with it. We are, therefore, clearly of the view that the Court below had not erred in placing reliance on the said finding. We may here observe that even without the aid of the said earlier finding, we have reached the same conclusion as can be seen from the discussion in the context of the last preceding intention. Viewed from any angle, this contention can be of little avail to the appellants.
20.Turning to the other facet of this contention, we are clearly of the view that the decision of the Privy Council in Radharani's case , relied on, is distinguishable on facts and even otherwise it does not lend support to a proposition that surrender by a limited owner like Rukminiamma could be in favour of a joint Hindu family as a whole, consisting of father and sons, thus involving both the nearer and remote reversioners, which is plainly opposed to the law as laid down in the decisions already adverted to. In the said cage the Privy Council was concerned with a case of surrender by a limited owner, having succeeded to her son's separate estate in a joint Hindu family governed by the DaVabhaga school of Hindu Law. By virtue of a will executed by the father in favour of his sons, the properties had to be shared equally by the sons arona other matters. The testator had further specifically directed that the properties should be managed and enjoyed jointly. As a result of the said direction, the eldest son, Mohini Mohan Das, continued in management of all the Properties -bequeathed in favour of himself and his brothers. One of the brothers died after succeeding to the estate in accordance with the terms of the said will, thus enabling his mother, Sham peary, to succeed to his share as a limited owner. The nearest reversioners, it may be presumed, were the other brothers, who were all related to the deceased in equal degree. The limited owner, Sham Peary, then executed certain document styled as 'Nadabinama' in favour of the eldest son, Mobini Mohan Das, relinquishing her interest as such limited owner. In return the -said Mohini Mohan Das executed an 'ekrarnama' agreement). In this state of facts, only the most essential of which have been get out, a question arose v4lether Sham Peary's limited estate, held as a Hindu mother, became extinguished and the estate vested in the surviving brothers. While answering these question in the affirmative, the Privy Council made the observation in question, on which reliance has been placed for the appellants, before us. The observation is:
* * * The mere circumstances that of these two documents the one executed by Shyam Peary was addressed to Mohini Mohan and vice versa is explained by the fact that he was karta of the family.' (underlining ours)
21. It is, therefore, clear from the foregoing that the principle underlying the above observation would be in applicable to the facts of the case on hand. Hence this contention too must fail.
22.The next contention is that the 'vyavastha pathra' constituted a valid alienation for legal necessity. In this context, beyond inviting reference to the several debts enumerated in the document, most of them having been contracted during the lifetime of Krishna 11, and the helpless situation Rukmini had found herself in soon after the death of her husband and the 'male child' no other circumstances were either elaborated upon or brought to our notice from the evidence on record. The trial Court after examining all the circumstances came to the conclusion that thei-4 was not any pressure on the estate by the creditors warranting such alienation, if it were really one such. Further, it has been observed that there was no evidence on record to show as to why within a space of a few months from the date of the death of her male child, who was the last full owner, she could not have 2ot any income from the Property to Pay off the antecedent debts. The learned trial Judge has examined all the circumstances bearing on this aspect in some detail in reaching the conclusion that there was no necessity at all for the alienation. In the course of the arguments before us, no serious attempt was made to find fault with the reasoning of the learned trial Judge on this aspect of the case. We have not also been able to find anything in the tenor of the contents of the 'vyavastha pathra' showing that it was ever intended to operate as an alienation, as contended. This contention, therefore, has to be rejected.
23. The next contention relates to ratification, if any, of the transaction, by the plaintiff. On this aspect, reliance was Placed solely on the evidence of P. W. 1, the husband of the plaintiff. He has deposed that Ext. P-1 (vyavastha pathra) did not contain false recitals, that Rukmini had been collecting rice and coconut due to her under it -and that he and the plaintiff were fully aware of the said fact. He has further stated that some of Exts. D-13 to D-42, receipts passed by Rukmini in regard to receipt of rice and coconuts, by her, were either written or attested by himself. He has also stated that the said rice and coconuts were utilised for the benefit of Rukmini and the family of himself. We are unable to see how these facts would constitute ratification by the plaintiff of the transaction concerned with Ex. P-1. The small indirect benefit, if any at all, that has accrued to the plaintiff by the use of such coconut and rice, is too remote and thin a circumstance to infer that she had elected to ratify the transaction on her part. Nothing has been shown that subsequent to the death of the limited owner, Rukmini, the plaintiff accepted the transaction evidenced by Ex. P-1 in any manner. If, in the meanwhile, she had not chosen to question the same, it is only because there was no Compulsion under law for her to do go. Hence, this contention too must fail.
24.The next contention relates to identification of properties in suit, particularly the land bearing S. No. 143/2. It was contended that the trial Court was in error in thinking that the portion of S. No. 143/2 of an extent of 5 acres 40 cents, was identifiable. It is common ground that the total extent of the said survey number is 10 acres 80 cents and only a portion thereof, of an extent of 5 acres 40 cents had fallen to the share of Krishna Il at the partition between himself and Vasudeva II. The conclusion of the Court below on this aspect seems to have been based on an assumption that the entire extent of S. No. 1.43/2 was only 5 acres 40 cents, On behalf of the plaintiff, it is submitted this question might be settled in the final decree proceedings by the appointment of a Commissioner. In view of this submission, the finding relative to identification of this property is hereby set aside. This question, therefore, is left open for determination in the proceedings for final decree.
25. The next contention relates to the unconditional decree for possession. The argument is that if the decree were to be executed in the absence of a proper identification of the property and determination of the value of improvements, it would put the appellants to great hardship and inconvenience besides driving them to a separate proceeding for the recovery of the value of improvements, if any. There is force in this contention. In the decree under appeal, the question of the value of improvements has been left for determination in the Proceedings for final decree. If ultimately the appellants were to succeed in making out their claim for the value of improvements, likely they would be driven to another proceeding for the recovery of the amount that may be so found due. Such an anomalous consequence has to be avoided. But on this account the decree of possession need not be set aside, as an equitable order directing that the execution of that Dart of the decree shall be subject to payment of such value of improvements, would meet the ends of justice. Further, in view of the last preceding conclusion as to the identification of property, it is necessary to make provision that such execution of the decree shall be permitted only after a proper determination of that question also. We, therefore, direct that the decree for possession shall be executed only after a determination of the aforesaid two questions and subject to the payment of such value of improvements, if any, by the decree-holder to the judgment-debtor. The decree in appeal stands modified accordingly.
26. In the result, this appeal partly succeeds and is accordingly allowed to the extent indicated above. Consequently, the decree in appeal is affirmed except as regards the finding relative to identification of the property bearing S. No. 143/2, and the execution of the decree for possession being made subject to determination of the questions of identification of property and value of improvements.
27. It may be mentioned that if no amount is found due towards the value of improvements, and the identification of the property established, it will he open to the decree-holder to execute the decree for possession without waiting for the determination of mesne profits due. It will also be open to her to execute the decree, in the event of any amount being found due towards the value of improvements, but only on payment of such amount to the judgment-debtor concerned.
28. Considering the element of time involved so far in this litigation, we think it proper to direct the trial Court to determine the questions left open herein as far as possible within a year from this day. It is ordered accordingly.
29. In the circumstances, the Parties will bear their own costs in the appeal,
30. Appeal partly allowed.