(1) This appeal under C1. 15 of the Letters Patent is against the judgment and decree of Justice Seshachelapati in S. A. No. 270 of 1959. The short point involved relates to the binding effect of Ex A-1 dated 19-6-1921 on defendant No. 1, Subbamma, who acted upon it and got benefit thereunder not only in her personal capacity but also as guardian of Nagarathnamma, her minor daughter.
(2) A brief statement of facts is necessary to fully appreciate the point raised. The following is the genealogical table which gives the exact relationship of the plaintiff and the defendants.
Ammayamma -- Narayanappa -- Munemma
1st wife -- -- 2nd wife
Mangamma (daughter of 1st wife)
Ankayya -- Subbamma (D-1)
Nagarathnamma Jayamma Munilakshmamma
P-1 and P-2.
The suit property comprising a house situate in Tirupathi originally belonged to one Narayanaiia. He had two wives, Ammayamma and Munemma, and a daughter Mangamma by his first wife. Ammayamma pre-deceased Mangamma. The 1st defendant Subbamma is the daughter of Mangamma Subbamma had three daughters. Nagarathnamma the mother of plaintiffs 1 and 2, Jayamma defendant 2 and Munilakshmamma. After the death of Narayanappa the suit house devolved upon his surviving widow Munemma. On 19-6-1921 Munemma settled the said suit house on Subamma and Nagarathnamma who along with Mangamma were living together in the same house Nagarathanamma was then a child of three or four years and in Ex A-1 she was represented by her mother and guardian Subbamma Mangamma, who was the next reversioner, was ailing for a long time. She eventually died in 1935. Shortly thereafter in 1939 Munemma passed away. Then in the next year Nagarathnamma also died. The house, after Ex A-1 was registered in the municipal records in the joint names of Subbamma and Nagarathnamma and this state of affairs continued until 1941. All of them were living together in the same house.
A few years after the death of Nagarathnamma, however, Subbamma executed an instrument dated 20-4-1944, i.e., Ex. A-2, setting the entirety of the suit house on her second daughter Jayamma and her husband and 3rd defendant Krishnaswami. The said Krishnaswami happened to be the real brother of Subbamma. On the death of Nagarathnamma, which took place in 1940, plaintiffs 1 and 2, her sons, became entitled to her share under Ex. A-1, which was one half of the suit property. The execution of a settlement deed by Subbamma in favour of Jayamma and her husband gave occasion for the plaintiff's to file the suit in the year 1946 for partition of the suit house into two equal shares and for possession of one such share together with profits for six years prior to the suit at the rate of Rs. 82 per year.
(3) Subbamma resisted the claim of the plaintiffs. Her contention was that Munemma had only a life estate in the suit house and could not pass under Ex. A-1, an absolute title in favour of Subbamma (her own self) or her daughter Nagarathnamma. At the time of Ex. A-1 Subbamma could not have been considered as a reversioner as her mother Mangamma was alive Eventually by virtue of Act II of 1929 daughters also entered the group of reversioners. It was ten years later that Munemma died. When succession opened on the death of Mangamma by reason of the said Act Subbamma as reversioner became statutorily entitled to a life estate in the said house. Therefore, her contention is that in that capacity she continued her possession of the said property and a few years later executed settlement deed in favour of her daughter, Jayamma and her husband. Her further contention is that after the death of 1st defendant's husband, she made an equitable settlement of all properties of her husband between the surviving parties including the plaintiffs and therefore, the plaintiffs had no further claim. The 3rd defendant, the husband of Jayamma, claimed that in the event of plaintiffs claim being upheld, he is entitled to re-imbursement in a sum of Rs. 2000 on account of improvements effected.
(4) The trial Court framed as many as ten issues. It found that the gift deed Ex. A-1 was binding on Subbamma as it was executed by a limited owner with the consent of next reversioner and that it was binding also because it was acted upon by Subbamma both as a donee herself and also the guardian of the other donee Nagarathnamma. It further held that the plaintiffs are not estopped from claimed their right in the suit property relying on Ex. A-1 even though it was executed by a limited owner. The further finding is that the 3rd defendant has not proved his case in regard to improvement. In this view, it decreed the suit for partition as brought and granted a further monetary relief to the extent of plaintiff's share in the income for 3 years. This decree for partition was confirmed in appeal by the District Court, Chittor. The matter was brought to this Court in further appeal. It was contended before our learned brother Seshachelapati J, that on the death of Munemma in 1939, the property devolved upon Subbamma under Section 2 of the Hindu Law of Inheritance (Amendment) Act (11 of 1929) as any alienation made by the widow Munemma, a life estate holder was not binding on her.
Our learned brother in agreement with the Courts below did not accept this contention. He did not, however, agree with both the Courts that Ex. A-1 can be sustained as a surrender by a widow in favour of the next reversioners and by them to a third party. On facts he held that Ex. A-1 cannot be sustained as a surrender by a widow to the next reversioner and a gift by the reversioner eoinstanti to a third party, for there were no words in the deed to indicate that Munemma was surrendering her estate to Mangamma. Nevertheless he held that Subbamma was bound by Ex. A-1. He observed that since allenation by a widow is not void in law but only voidable, a reversioner may disentitle himself from avoiding the alienation by a widow in certain circumstances. After the succession has opened he may by a declaration or conduct affirm the act of the widow. He may as well do the same even earlier by some positive act. Subbamma was no doubt a stranger as at the time of Ex. A-1 she was not yet included in the category of reversioners to the last maleholder, but she had accepted the gift not only for herself but as guardian of her minor daughter Nagarathnamma and derived benefit thereunder. This conduct is indeed fatal to her plea. She cannot now legitimately say that the alienation was good only so far as she was concerned and bad in respect of Nagarathnamma or that the deed was not binding on her also even though she has acted upon it and got benefits under the terms thereof both in her personal capacity and as guardian of her minor daughter. Indeed it is not open to her to repudiate the deed. In this view of the matter, the learned Judge confirmed the decrees and judgments of the Courts below.
(5) Mr. Narasinga Rao, vehemently argued that having regard to the facts and circumstances of the case neither the doctrine of estoppel nor the doctrine of election nor even the doctrine of ratification is attracted. Even otherwise these doctrines being doctrines of equity cannot prevail over the clear statutory provisions. According to him therefore, Munemma being a mere life estate holder her arrangement under Ex. A-1 could continue only till her death and when succession to the last male-holder opened on her death Subbamma could claim the property as the nearest reversioner. In fact her possession must be referable only to this statutory capacity. So then the plaintiffs cannot claim any right under Ex. A-1 through their mother after the death of Munemma. It is difficult to accept this contention Subbamma as a donee herself and also as guardian of Nagarathanamma who was also a donee having equal share with her took possession of the property, enjoyed the same not as life estate holder; but as the absolute donees in equal moieties of the said property and further Subbamma even after the death of Munemma considered herself as absolute owner which was possible only if she considered herself in possession as a donee. As against this conduct which recognised the right of Nagarathnamma it is not permissible for her to contend that she is entitled to ignore Ex. A-1 or deny the right of the minor daughter which in fact gave occasion to her possession or claim adverse title as against the minor on whose behalf she accepted the gift.
Besides the very fact that she was a consenting party to Ex. A-1 and took benefit thereunder must preclude her from avoiding that transaction. Of course Ex. A-1 not being a transfer for legal necessity or even for value may not bind a reversioner, but it is a voidable transaction and not a void one. It is left to the reversioner to take steps for its avoidance or abide by it. He can accept it whether at the time the succession opens or even earlier by his declaration, positive act or conduct. For either positions our learned brother has referred to the authorities. For the first position, we may refer to Bijoy Gopal Mukherji v. Krishna Mahishi Debi, (1907) 34 Ind App 87 (PC) ; Rangasami Gounden v. Nachiappa Gounden, ILR 42 Mad 523: (AIR 1918 PC 196) and Ram Gowda Annagowda v. Bhausaheb, ILR 52 Bom 1 (AIR 1927 PC 227). In the last mentioned case, it was clearly held that a party benefited by the transaction was precluded from questioning it further. In Ramakotayya v. Viraraghavayya, ILR 52 Mad 556 (AIR 1929 Mad 502) (FB) a Full Bench of the Madras High Court while dealing with the observations of Lord Dunedin in ILR 42 Mad 523 : (AIR 1918 PC 196) clearly said that the alienation by a widow being a voidable contract it could be affirmed expressly or impliedly by conduct of those whose interest it is to have it avoided and that the Privy Council by observing so did not intend to confine the class of persons who can validate a voidable contract to a reversioner, who had not merely a spes successionis but has become in titule to reduce the estate into possession. The learned Judges observed that the passage of Lord Denedin is by way of illustration and should not be treated as exhaustive of the possibilities of a reversioner validating a prima facie voidable contract Discussing the problem further the learned Judges agreed with the decisions of the Full Beneches of the Allahabad and the Bombay High Courts that it would be sufficient if the person or party is a presumptive reversioner. If he by declaration or by conduct agrees to abide by the act of the widow he is personally debarred from resilin from it afterwards.
Subbamma at the time when the succession opened was not indeed a reversioner. She was included in the list of reversioners subsequently. She was thus a reversioner when Munemma died, but even so she did not consider herself as a mere life estate holder. That was possible only if she had accepted the position created by Ex. A-1. That apart, as already noticed she had taken the benefit under Ex. A-1 and that not only in her personal capacity but also as the guardian of her minor daughter, Nagarathnamma. She cannot therefore, repudiate the transaction nor can she say that so far as Nagarathnamma is concerned the document is void in law. The principle of approbate and reprobate precludes her from taking such a stand. Having taken possession of the property on the footing that Ex. A-1 is valid, she cannot turn round and say that it is not binding on her and she can avoid the advantage that Nagarathnamma would necessarily get. In short, it is difficult to agree with the learned counsel in the circumstances of the case that Subbamma is not precluded from challenging the validity of Ex. A-1 or from denying title of her minor daughter and her heirs in relation to an equal moiety of the property gifted to them. In that case no exception can be taken to the decision reached by our learned brother. The appeal therefore, fails and is dismissed with costs.
(6) Appeal dismissed.