(1) Defendant is the appellant. The respondent herein filked O. S. No. 230 of 1948 on the file of the District Munsif's Court of Tenali for recovery of possessioin of the suit property on the ground that it belonged to his maternal-grand-father. Bhavanam Venkata Reddy and after the death of his last daughter Bhusamma, he suceeded to the property as the next reversioner.
(2) The defendant contended that the suit property was gifted to Subbamma, one of the daughters of Venkata Reddy by her mother, Konamma, as per the oral directions of her father, Venkata Reddy, lthat there is a family arrangement under which Subbamma's absolute rights in the suit properties were recognised and that, in any even, the plaintiff who brought about the attested the Dakhal deed dated 14-10-1906 Ex. B-7 executed by Konamma in favour of Subbamma was estopped from challenging the validity of the Dakhal deed. The defendant claimed as the donee, under Exhibit B-8 from Bakki Reddy who claimed title from Subbamma under a settlement deed executed by her on 3-4-1930 and makred as Exhibit B-9.
(3) Both the courts below concurently found that the defendant did not establish the family arrangement as well as the oral gift set up by them. On the question of estoppel, the District Munsif held in paragraph 22 of his judgment that it was impossible to hold that the plaintiff was estopped from questioning Subbamma's absolute title to the suit land. He also observed that
'the defendant's learned Pleader too has not gone to the length of contending that the bar of estopel can be raised against the plaintiff based on his connection with the original of Ex. B-7 alone.'
Though no specific ground of appeal was raised by the defnednat in regard to estoppel in the Memorandum of Appeal, filed before the Subordinate Judge of Tenail, the Subordinate Judge raised the question of estoppel as the 4th point for consideration and disposed it of in paragraph 8 in a single sentence that he was not able to see how plaintiff was estopped on account of his being a party attestor in the gift deed Exhibit B-7.
(4) The defendant has filed the Second Appeal and the main post urged by his advocate was that the plea of estoppel ought to have been found in his favour on the strength of the Full Bench decision in -- 'Ramakotayya v. Vira Raghavayya', AIR 1929 Mad 502 (A). For that purpose he relied upon the following facts found in his favour by both the courts below:
'(1) The plaintiff, the daughter's son of Konamma was living with her at the time of execution of the Dakhal Deed Ex. B. 7 (2) The stamp papers for Ex. B. 7 were purcahsed in his name (3) He attested the document Ex. B-7 and was an identifying witness at the time of its registration.
(5) The simple question that arises for consideration is whether these admitted facts are sufficient to found at estoppel and debar the plaintiff from recovering possession of the suit property when succession opened on the death of the last daughter, Bhusamma on 16-10-1945. The Dakhal deed executed by Konamma in favour of her daughter Subbamma, runs as follows:
'Dakhal deed (conveyance deed) in respect of Seri Wet land worth Rs.300/- executed on 14-10-1906. Dakhal deed executed in favour of Appi Reddi's wife Subbamma by Bhavanam Venkatareddi's wife Konamma.'
'As the property, soon after the death of your father, passed into your possession towards (your share and as there was no public document you required me to execute a Dakhal deed (conveyance deed). Therefore, you shall henceforth be paying Government cist etc. from now onward and enjoy the property from son to grandson with powers of sale, gift, mortgage, and exchange. Neither myself nor my successors will question neither you nor your heirs. When you demand, I am prepared to relinquish the Patta in my name and transfer it to your name. If in respect of this Dakhal deed any disputes etc. arise from Gnatis, Samantas and others I shall see that this Dakhal deed is given effect to.'
(6) Though the Courts below described the documents dated 14-10-1906 as a deed of gift, it is styled as a Dakhal deed. It sets out that after the death of her father, Venkata Reddy, it fell to her share and had been in her possession and enjoyment though the Patta stood in the name of her mother Konamma and others.
(7) As Subbamma did not have any public document to evidence her title and wanted a Daknal deed to be executed in her favour, the mother executed Exhibit B. 7. It provided that thereafter Subamma alone should pay Government cist and enjoy the property from son to grandson with powers of sale, gift, mortgages and exchange and that neither she nor her heirs would question the transaction. To this document, the plaintiff who had no immediate right in the property but only a Spes Successionis was an attestor. Does his conduct i purchasing the stamp papers in his own name, being an attestor of the document and an idetifying witness before the Registrar estop him from challenging the validity of the document and recovering possession, when succession opened and use estate vested in him as the earest reversioner?
(8) The learned Advocate for the apellant invited my attention to the Full Bench decision in --'Ramakotayya v. Veeraraghavayya', (A) as also the passage in Mulla's 'Hindu Law' 11th Edition page 207 and Mayne's 'Hindu Law' at pages 792 and 793 respectively, which are as follows:
'A reversioner, whether a male or female, who consents to an allenation by a widow or other limited heir mde without legal necessity, or to an invalid surrender and transferees from him are precluded from disputing the validity of the alienation, though he may have received no consideration for his consent. It is immaterial that the allenation is by way of gift.
The reversioner, whether male or female, consenting to or joining in an alienation by the widow or other limited owner, even before reversion has fallen into possession must be taken toelect to hold the transaction valid and cannot afterwards challenge it and it is immaterial whether the consenting reversioner receiver consideration or not and whether the alienation is for value or is in form or in substance a gift.'
(9) In -- 'Ramakotayya v. Veeraraghavayya', (A) the widow Seethamma executed a gift deed on 2-10-1913, in respect of some of the properties that came to her from her husband in favour of her own brohter in 19-10-1918. The plaintiff, the presumptive reversioner, executed a document completely relinquishing all his rights as propsecitve reversioner and giving full consent to the transaction of 2-10-1918, Courts-Trotter C. J. in delivering the Judgment of the Full Bench held that the doctrine of estoppel did not apply, as no representation of fact was made by the plaintiff to the widow's brother and the donee did not act on the faither of that representation and was not daminified. The next ground based on the doctrine of election was also repelled as no benefit of any kind was received by the plaintiff.
At page 504, following the Allahabad and Bombay High Courts, he held that a third case exists, namely where although no one has been damnified so as to call into operation the doctrine of estoppel and the reversioner has taken no pecuniary benefit to bring himself within the meaning of the strict doctrine of election, he has nevertheless positively and definitely chosen to announces his intention and in fact agreed to abide by the act of the widow. The Full Benches of the Allahabad and Bombay High Courts have decided that he can do so even while he only occupies the character of presumptive reversioner. We agree with the Allahabad and Bombay Courts in thinking that If he takes such a step he is personally debarred from resiling from it afterwards. Indeed it is so obviously descrable that the Courts in India should speak with one voice on a matter of such constant recurrence as this that we should not disent from those decisions, unless we were conviced that they were contrary to the decision of the Privy Council in -- 'Rangaswamy Goundan v. Nechiappa Goundan', AIr 1918 P.C. 196 (B).
(10) In my opinion, the facts of this case do not warrant the conclusion that the plaintiff positively and definitely announced his intention that the donee Subbamma should take an absolute estate in the suit property or that he agreed to his grand-mother Konamma conveying an absolute estate to her daughter, so as to enure beyond her lifetime and bind the estate. The recitals of Ex. B. 7 clearly show that after the death of Venkata Reddy, Subbamma was in possession of the suit property and the Dakhal deed was executed as she required a public document to evidence her possession. It does not show that Konamma intended to convey a large or higher estate than she possessed, viz., a widow's estate. As the allenation was not afected for legal necessity or benefit to the estate, the allence was not entitled toan absolute estate.
Viewed as a gift, not having been exercuted for purposes sanctioned by Hindu Law it would not impart an absolute title to the donee. There is no indication in the document that the widow Konamma wanted to enlarge the estate of her daughter. The words that Subbamma might enjoy the property from son of grandson with powers of sale, gift, mortgage and exchange do not per ...... establish that she intended to convey an absolute estate to her daughter. A transferee of a widow's estate is certainly entitled to continue in possession udring the lifetime of the widow unless other contingencies like re-marriage, adoption etc., take place. The interest conveyed to the transferee is not only transfmissible to his heirs-at-law, but may also be sold, mortgaged, exchanged or gifted during the lifetime of the widow. Even assuming that the plasintiff by attesting the document was fully aware of all its terms, it does not, in my opinion, amount to an unequivocal announcement of his inention to hold the deed good and that he would not recover the property from the donee, or his successors after the death of the widow.
Apart from the attestation, there is no document in the present case, as in -- 'Ramakotayya v. Veera Raghavayya', (A) under which the plaintiff relinquished his interest in the suit property and consented to the widow conveyeing an absolute estate to the transferee. In the decision of the Allahabad High Court reported in -- 'Fateh Single v. Tahakur Rakmini Rawanji', AIr 1923 All 387 (FB) (C) the presumptive reversioner executed a deed of relinquishment in the properties gifted by the widow in favour in favour of tutelary deity of the family on 19-4-1905. It was held that by reason of the execution of that document, dated 12-5-1905, Fateh Singh was bound
'Whether his action be spoken of as a ratification of the transfer or as an election to hold good the deed of 19-4-1905.'
In -- 'Akkawa Ramachandrappa v. Sayed Khan Mithekhan', AIR 1927 Bom 260 (D) the presumptive reversioner joined the widow in the execution of the deed & it was held that it amounted to a clear election to hold the transaction as valid. In the present case, as already pointed out by me, the plaintiff did not executive any document in favour of the donee.
(11) The decision in -- 'Veerayya v. Bapayya', AIR 1945 Mad 492 (E) is more akin to the facts of the present case.
(12) The terms of the Dakhal deed which were construed in that case are similar to the terms of Ex. B 7. The words that the transferee should enjoy the property with rights of gift, exchange and sale from son to grandson and so on in succession, are also to be found in that document. The only difference is that in that document, Butchayya made arrangements to the effect that the widow should enjoy during her life time and a vested remainder was created in a half in favour of his daughter Subbamma and in the other half to his grand-daughter Venkatasubbamma. Patanjali Sastri J. in delivering the Judgment of the Bench held at page 494 that the Dakhal deed did not puport, proprio vegore, to the donees and that the Full Bench decisions of the Madras, Bombay and Allahabad High Courts did not govern the case. I adopt the reasoning of that decision and hold that the plaintiff is entitled to recover the suit property. In this connectioin, I may also refer to the decision in -- 'Bindeswari Singh v. Har Narain Singh', AIR 1929 Oudh 185 (FB) (F) which closely resembles this case.
(13) I have carefully perused the Full Bench decisions of allahabad, Bombay and Madras High Courts, but I am still unable to understand on what legal basis the presumptive reversioner who assented to the allenation of the widow without receiving any consideration, is bound by the alienation, apart from the doctrine of estoppel or election. All the Full Bench Judgments rest on the interpretation of a passage in Lord Dunedin's Judgment in AIR 1918 PC 196 (B). The question that arose for consideration in the Privy Council case was whether a prospective reversioner who took a mortgage of a portion of a property from an alienee, in whose favour the property was transferred by a widow, was estopped from disputing the validity of the alienation on the death of the widow. Lord Dunedin summarised the result of the consideration of the decided cases in the following terms:
'(1) An allenation by a widow of her deceased husband's estate held by her may be validated if it can be shown to be a surrender of her whole interest in the whole estate in favour of the nearest reversioner or reversioners at the time of the allenation. In such circumstances, the question of necessarily does not fall to be considered. But the surrender must be a bona fide surrender, not device to deivide the estate with the reversioner.
(2) When the allenation of the whole or part of the use estate is to be supported on the ground of necessity, then, if such necessity is not proved allunde and the alienee does not prove inquiry on his part and honest belief in the necessity the consent of such reversioners as might fairly be expected to be interested to quarrel with the transaction will be held to afford a presumpttive proof which if not rebutted by contrary proof will validate the transaction as a rights and proper one.'
(14) At pp. 201-202, in discussing the character of the deed executed by Marakammalin favour of Ramaswamy Goundan, he held:
'Being a deed of gift, it cannot possibly be held to be evidence of alienation for value; or purposes of necessity. It follows, therefore, that the deed taken by itself cannot stand.'
(15) Dealings with the questionof estoppel, at page 202 he observed:
'How can it be said that the plaintiff by any act of his, led the respondents to think that something was true and then to act on that belief?............... Here the plaintiff never consented to the deed nor is his claim traced through Ramaswamy even in the matter of 'descent''.
(16) On the question of ratification, the following observatins were made:
'No doubt there is another view which is not estoppel, but is expressed by one learned Judge as ratification. It is scarcely that, though it might be hypercriticism to object to the use of the word. What it is based on is this. An alienation by a widow is not a void contract; it is only voidable, -- 'Bijoy Gopal Mukerji v. Krishna Mahishi Debi', 34 Cal 329 (G). Now in all cases of voidable contracts, there is a general equitable doctrine cotton to all systerms that he who has the right to complain must do so when the right of action is properly open to him and he knows the fact. If, therefore, a reversioner after he became in titulo to reduce the estate to possession and knew of the alienation, did something which showed that he treated the alienation as good, he would lose his right of complaint. This may be spoken of though scarecely, accurately as ratification. In some cases it has been expressed as an election to hold the deed good. -- 'Modhu Sudan Singh v. Rooke', 24 Ind App. 164 (PC) (H).
But it is well settled that though he who may be termed a presumptive reversionary heir has a title to challenge an alination at its inception, he need not do so, but is entitled towait till the death of the widow has affirmed his character, a character which up to that date might be defeated by birth or by adoption. The present plaintiff raised these proceedings immediately after his title was confirmed.
Of course something might be done before that time which amounted to an actual election to hold the deed good. In that view what was done here? The learned Appeal Judge dismiss as inadequate the fact of the purcahse of the two small pieces of ground. But they attach great weight to the taking of the mortgage. Here they have made a slip as to the facts. The mortgage did not cosnist, as they think of only theshare of the mitta which had come through the deed of gift. It consisted also of two-fourteenths of the mitta which had come to the mortgagors in right of their own succession. The value of this ahre was more than the sum secured by it. Now at the time of the mortgage, the plaintiff did not know whether he would ever be such a reversioner in fact as he would give him a practical interest to quarrel with the deed of gift. Why should he not take all that the mortgagors could give or proposed to give? To hold tht by so doing he barred himself from asserting his own title to part of what was mortgaged, seems to their Lordships a quite unwarranted proposition.'
(17) Before proceeding to discuss the Full Bench decisions, I wish to observe that in the present case, there is no act on the part of the plaintiff which would amount to an actual election to hold the deed good. The observations of Lord Dunedin, in the last paragraph quoted above, are equally applicable to this, case, as the
'plaintiff herein who attested the gift deed did not know whether he would ever be such a reversioiner in fact as would give him a practical interest to quarrel with the deed of gift'.
To hold that by mere attestation he debarred himself from asserting his own title to the suit property would be, in my opinion, 'a quite unwarrantable proposition' adopting the language of Lord Deunedin.
(18) To construe the passage at p. 202
'Of course something might be done even before that time which amounted to an actual election to hold the deed good',
As a Vedic text or a statutory provision and to hold to that reversioner who has only a Spes Successionis and no present or immediate interest in the property alienated is bound by his consent, even though it may not amount to estoppel or election is, in my opinion, nor legally justifiable. To sustain the alenation, no principles of public morality, justice, equaity or good conscience, is only to add toor misinterpret and strain the observations of Lord Dunedin. In AIR 1923 All 387 (FB) (C),. the majority opinion was based on ratification or election. But according to Lord Dunedin in AIR 1918 PC 196 (B), those principles would mainly apply to a reversioner who
'after he became in titutlo to reduce the estate to possession and in view of the alienation did something which showed that he treated the alienation as good'.
Waslsh J. based his judgment on still wider grounds and observed:
'It does not matter whether it is called an estoppel, an election or an equitable bar; we have to give effect to the acts and intentions of parties as evidence by their conduct, unless prevented by some statute, or by some rule of law or equity'.
(19) In AIR 1927 Bom 269 (D), the Full Bench held that the conduct of the reversioner in joining the widow in executing the deed of alienation amounted to a clear election to hold the transaction as valid. In AIR 1929 Mad 503 (A), Courts-Trotter. Chief Justice, found it difficult to rest his opinion either on the doctrine of estoppel or on the doctrine of election. For the sake of uniformity, however, he preferred to follow the Full Bench decisions of Allahabad , and Bombay High Courts and evolved a third doctrine or formulae on grounds of equity and expressed himself as follows:
'Where although no one has been damnified, so as to call into operation the doctrine of estoppel and the reversioner has taken no pecuniary benefit tobring itself within the meaning of the strict doctrine of election, he has nevertheless positively and definitely chosen to accounce his intention and in fact agreed to abide by the act of the widow'.
(20) With great respect, I am unable to persuade myself that there is any legal basis for this third doctrine or formulae based on equity. It is established beyond doubt that during the lifetime of the widow, the reversioner has no interest in praesenti in the suit property. Her right is only Spes Successionis or a mere chance of succession, within the meaning of section 6 of the Transfer of Property Act. It is not a vested interest, but only an interest expectant on the death of a limit heir. It cannot, therefore, be sold, mortgaged or assigned, nor can it be relinquished. That a transfer of a Spes successionis is a nullity, and has no effect in law, has been repeatedly laid down by their Lordships of the Privy Council -- vide Mulla's 'Hindu Lw' 11th edition page 169. If so, how can his conduct before succession opens debar him from suing for recovery of possession, unless it be on the basis of election or estoppel?
In -- 'Ram Gowda Anna Gowda v. Bhau Saheb', AIr 1927 PC 227 (I), Lord Sinha discussed this question and the observations at page 229 explain the basis of the rule as follows:
'The three deeds appear thus to be inseparably connected together and in that view, Anna Gowda not only consented to the sale to Shiv Gowda and the gift to Bassappa, but these dispositions formed parts of the same transaction by which he himself acquired a part of the estate.
It was argued that Anna Gowda's contingent interest as a remote reversioner could not be validly sold by him, as it was a here Spes Successionis and an agreement to sell such an initerest would also be void in law. It is not necessary to consider that question, because he did not in fact either sell or agree to sell his reversionary right. It is settled law that an alienation by a widow in excess of her powers is not altogether void, but only voidable by the reversiners, who may either singly or as a body be precluded from exercising their right to avoid it either by express ratification or by acts which treat it as valid or binding. If some persons other than Anna Gowda had been at the death of Tayava the nearest heir of her husband, it might have been open to him to question all or any of the three deads, but Anna Gowda himself being a party to and benefiting by the transaction evidenced thereby was precluded from questioning any part of it. Nor is it other than a most notable circumstances that he did not, after Tayava's death essay to do so'.
(21) It was by the application of the doctrine of election that Lord Sinha held that Anna Gowda was bound. This decision was followed by the Supreme Court in -- 'Dhiyan Singh v. Jugar Kishore'. : 1SCR478 (J). In this connection I may refer to the decision in AIr 1929 Oudh 185 (F), which in my opinion correctly sets out the law and the effect of the Privy Council in AIr 1918 PC 196 (B), (vide also 'Debi Dayal v. Radhakrishna', AIr 1939 Oudh 145 (K).) The consent of the reversioner does not validate the alienation and does not operate proprio vigore, but is only of evidentiary value.
Even in the passasge at page 202 in AIR 1918 PC 196 (B), the actual expression used by Lord Dunedin is, whether the conduct of the presumptive reversioner amounted to an actual election to hold the deed good. What amounts to election is clearly laid down by Coiurts-Trotter C. J. in AIR 1929 Mad 502 (A), by referring to the leading case of -- 'Streatfield v. Streatfield', (1735) White and Tudoe, 9th Edn., page 373 (L). Lord Sinha also reiterates the same principle in AIr 1927 PC 227 (I). So I think there is no warrant or justification in placing a wider construction on the passage of Lord Dunedin and importing equitable principles and enunciating a third doctrine as is sought to be done by the Full Bench decisions of the Allahabad, Bombay and Madras High courts already referred to.
The observations in the recent decision of the Supreme Court in --'Kali Shanker Das v. Dhevendranath', : 1SCR467 (M), throw great light on this question. At page 509, Mukerjee J. held that
'consent of the reversioner may raise a presumption that the transaction was for legal necessity or that the mortgagee had acted therein after proper and bona fide enquiry and has satisfied himself as to the existence of such necessity -- vide 'Debi Prasad v. Golap Bhagat', 40 Cal 721 at p. 782 (FB) (N). But this presumption is rebuttable and it is open to the actual reversoner to establish that there was in fact no legal necessity and there has been no proper and bona fide enquiry by the mortgagee'.
(22) In column 2 of page 509, referring to AIR 1918 PC 196 (B), he further observed:
'It was held that the words referred to above should not be construed to lay down the proposition that such consent on the part of the father would operate proprio vigore and would be binding on the sons. This proposition, their Lordships observed was opposed both to pricniple and authority it being a settled doctrine of Hindu Law that nobody has a vested rifht so long as the widow is alive and the eventual reversioner does not claim through any one who went before him. As the sons of Ramnarain claim as heirs of Haripada and not of their father, the admissions, if any, made by the latter could not in any way bind them.'
(23) At pp. 509-510, the nature of the widow's estate & the effects of transfer made by the widow is discussed. It was ultimately held that as the mortgage did not establish legal necessity, or that he made any bona fide enquiries the mortgage was valid and bindig. I must, however, point out that the question as to whether the consenting presumptive reversioner would have been bound or not, did not arise and was not discussed by the Supreme Court.
(24) To sum up, my conclusions are as follows:
(1) The observations of Lord Dunedin in AIR 1918 PC 196 (B) do not warrant the construction based upon it by the Full Benches of Allahabad Bombay and Madras High Courts and no third doctrine based on equity can be spelt out of those observations.
(2) If the observations of Lord Dunedin are susceptible of that construction as laid down by theFull Benches, I wish to respectfully differ from them. In -- 'Shrinivas Krishan Rao Kango v. Narain Deviji Kango', : 1SCR1 ; Venkatarama Iyer J. discussing the Privy council decisioin in -- 'Anant Bhikappa v, Shankar Ramchandra', AIR 1943 PC 196 (P) observed as follows:
'As it was an authority binding on the Indian Courts, they could not refuse tofollow it and were obliged to discover a distinction. This court, however, is not hampered by any such limitation, and is free to consider the question on its own merits'.
(25) Adopting those observations, I hold that after India was constituted into a Soverign Democratic Republic, the Courts in India are not bound by the decisions of the Privy Council and are free to consider the question on its own merits. The Andhra HighCourt which was inaugurated in July 1954 is not bound by the Full Bench of the Madras High Court or other High Coiurts and is at liberty to examine the question in the light of well-established legal principles and arrive at a proper conclusion. So, in my opinion, a presumtive reversioner who gave his consent to a gift made by a widow without receiving any consideration whatsoever is entitled to recover the property so gifter when he succeeds to the estate on the death of the widow. The appellant in this case is only a donee from a donee from Subbamma who claims title under Ex B. 7. there are, therefore, no equitable considerations applicable to the facts of the present case which compel me to uphold the title of the appellant.
(26) Before concluding the Judgment, I wish to make the following observations.
(27) This case has caused me a great deal of vacillaton in view of the large body of authority referred to supra. I am really surprised that the Courts below summarily dealth with the question of estoppel and regarded the matter so simple that they did not even refer to the decision of the Privy Council or the full Benches of the Allahabad, Bombay and Madras High Court or even the passages from the leading Text books. I wish to condemn the practice of the Subordinate Judiciary in not referring to the decisions which are bidning upon them. By a casual reference to the leading text books, the courts below should have disclovered that the Full Bench case in AIR 1929 Mad 502 (A) has at least an important bearing in deciding the question of estoppel. It is the bounden duty of the members of the bar and the Judges who administer the law to keep themselves informed of the march and progress of law, i.e., statutory and case law. If every illeterate man is presumed to know law and ignorance of law is no excuse, it is all the more important those who are concerned in the administration of law, namely the members of the Bar and the Judges should read the Law Reports regularly and be aware not only ;of the latest reports, but also decisions of the Supreme Court and the High Courts.
I strongly feel that the courts below erred in overlooking or not referring to the Full Bench decisions of the Madras High Court. Feeling doubtful as to whether the members of the bar did not discharge their duty property, I asked the counsel for the appellant as to whether the notes made by the lawyers who appeared in the courts below made reference to the Full Bench decisions. I felt happy to note that the notes did contain references to those decisioins of the Full Benches. If those decisions were referred to during the course of the arguments in the coiurts below, it was incumbent upon them to have referred to those decisions and distinguished or followed therm. Not to refer to those decisions or not to meet the arguments addressed before them is not an honest or proper way of disposal of cases.
(28) In the result, the Second Appeal fails and is dismissed with costs. Leave granted.
(29) Appeal dismissed.