Chandra Reddy, J.
1. These appeals arise out of O. S. No. 80 of 1949 on the file of the Subordinate Judge of Kakinada. A. S. No. 637 of 1952 is brought by defendants 1 to 7, 31 to 33, 39, 49 and 50; A. S. No. 684 of 1952 brought by defendants 74 to 77 and 82, and A. S. No. 144 of 53 by defendants 35 to 38 and 40 to 48. The subject matters of these appeals are items 1 to 7, 20. 21, 22, 24 to 30 of plaint A schedule. The petition of the plaint was presented at the instance of two persons by name Venkamma and Sattiraju as reversioners to the estate of one Amutam Venkataswamy who died in or about the year 1887 and was directed against as many as 84 defendants as being in possession of property belonging to the reversioners. The 1st plaintiff is the daughter of the said Venkataswamy and the 2nd plaintiff her son. It is useful and necessary to give a resume of the facts us briefly as possible.
2. Venkataswamy, aforementioned, had incurred debts both on promissory notes and mortgages. On the foot of one of the mortgages executed by him a decree was obtained in O. S. No. 357 of 1888 against the widow of the mortgagor Venkamma (as by that time the mortgagor was dead) by two persons by name Raja Datla Venkata Suryanarayana Jagapathi Raju and Raja Datta Venkata Appalaraju or Rs. 2293-12-0 and costs Rs. 257-6-8 with subsequent interest. As the decree was not satisfied, execution was levied for Rs. 2641-5-8 and items 1 to 23 of the A schedule all situated in the village of Vetlapalem and involved in the suit were brought to sale.
They were subject to an earlier usufructuary mortgage created in favour of one Madukuri Appayya for Rs. 2300 on 23-4-1884. Items 1 to 3 were purchased by one Modukuru Venkatapathy for Rs. 677, items 4 and 5 by one Noone Subbarayuda for Rs. 261, items 6 and 7 by Malireddy Veerayya for Rs. 301, items 8 to 22 by one Tathayya, and item 23 and some other properties by one Kondapalli Ramanna for Rs. 257. Items 6 and 7 of an extent of ac. 10-20 cents were attached by the Pittapur estate in execution of a decree in a Small Cause Suit No. 276 of 1882.
The claim of Valluri Subbaiah in regard thereto was dismissed and the properties were brought to sale and purchased by one Miriyala Scetharamaiah. Subsequently, they were conveyed by Seetharamayya to Amatam Ramanna and Dorayya under two sale deeds in two equal halves, Exs. B-36(a) and B-36(g) dated 4-4-1899 and 4-5-1900 respectively. As regards the sales in respect of items 1 to 5 and 8 to 23. the subsequent events showed that they were merely name-lenders, the real beneficiaries being V. Subhaiah and his wife's brother Amatam Ramanna, the latter being no other than a first cousin of the last male-holder, Venkataswamy.
These various auction-purchasers executed agreements in favour of one of the beneficiaries, Subbiah to transfer these properties with the contents that the purchases were made for the benefit of the latter, the auction-purchasers being merely name-lenders and that the bid amounts deposited into court were supplied by the beneficiaries.
3. Some time later disputes arose between Subbaiah and Ramanna details of which need not be here mentioned and in order to deprive Ramanna of his interest in these properties Subbaiah taking advantage of the existence of the agreements in his favour made a release of these properties in favour if his brother Dorayya in or about the year 1896 just before the latter's marriage with the 1st plaintiff the daughter of Venkataswamy. On this, Dorayya claimed exclusive title to all these properties while Ramanna asserted his joint interest therein.
In this situation, the widow of Venkataswamy put forward a claim to some of the properties. Ultimately, these disputes were referred to the arbitration of five respectable persons of the village as evidenced by Ex. B-40 dated 5-11-1897. To this reference, Dorayya, the releasee, Ramanna and his three brothers and Venkataswamy's widow Venkamma were parties. The award Ex. B-41 followed upon this, under which Dorayya was allotted ac. 117-1 cents and Ramanna ac. 41-48 cents, in other words, items 4 to 7, 20 to 22 and some others with which we are not now concerned fell to the share of Ramanna and the rest to Dorayya. Within a week thereafter Ramanna obtained items 1 to 3 in exchange for some of the properties belonging to him but not covered by the award as seen from Exs. B-42 and B-43 dated 26-1-1898.
The division was made in proportion to the funds contributed by the two individuals Subbaiah and Ramanna. The lands assigned to the share of Dorayya included properties belonging to Ramanna's branch exclusively and which had nothing to do with the auction sales. This award also confirmed the right of the wife of Dorayya, namely, the present 1st plaintiff in regard to some other properties for which a sale deed was obtained from Ramanna and his brothers and which will be referred to in another context. Under this award, the claim of the widow and her daughter to the properties sold through court was negatived as the documents filed before the arbitrators clearly established that the money for the court-sales was found by Subbaiah and Ramanna and the usufructuary mortgage subject to which the properties were sold was discharged by these two persons.
4. Now to go back to the execution proceedings in O. S. 357 of 1888 which resulted in the sale of items 1 to 23, the decree-holders, for the balance of the decree money, (as the sales referred to above fetched a total sum of Rs. 2361 only) attached items 24 to 30 of the present A schedule lying in Pedda-puram and Hayabhupalapuram and half of the present B Schedule as belonging to the mortgagor Ven-kataswamy. Ramanna and his brothers intervened with a claim petition. Being unsuccessful in those proceedings, they instituted a suit impleading the decree-holders as well as the widow.
This was contested by the decree-holders, the widow remaining ex parte. In this litigation, the claim of Ramanna's branch to these items was upheld. A few years later i.e., on 21-12-1896, an extent of ac. 66-14 cents out of these items was purchased by the 1st plaintiff. When possession thereof was claimed by virtue of this sale, the vendor pleaded that it became ineffectual by the failure of the vendee to pay consideration. This was also included in the arbitration muchilika mentioned above and the decision given by the arbitrators went in favour of the vendee to which reference has already been made.
The award was given effect to and the partieswere in enjoyment of their respective shares as determined thereunder. Before and after the award andsubsequent to the court-sales some one or other ofthe creditors of Venkataswamy went on attachingone or other of these items as still forming part orVenkataswamy's estate and the crops thereon and insome cases the claims of the ostensible owners wereallowed while in others disallowed to vacate whichsuits were filed and to all of which the widow wasmade a party.
In two such suits, namely O. S. Nos. 514 and 315 of 1897, the answer of the widow was that the properties were purchased benami for her daughter with the funds furnished by her mother-in-law. While one suit ended in a compromise the other was tried and the defence of the widow was overruled and the title of the auction-purchasers was declared. In another suit. O. S. No. 481 of 1900, the widow adopted a different attitude. In them, she disclaimed the right of her husband to these lands alleging that they were in possession and enjoyment of those who acquired them by virtue of court sales.
Though the claimants succeeded in the trial court they failed in the lower appellate court which decision was confirmed by the High Court as it did not involve any question of law with the result they paid up the decree money. No further reference is necessary to these proceedings as the judgments therein are not invested with a binding character either by way of res judicata or any other provision of law. Curiously enough, the widow contrary to the position taken by her in the previous litigations brought a suit O. S. 11 of 1909 in the Sub Court, Kakinada, impleading only Ramanna and his brothers and purchasers of items 8 to 18 for a declaration of her rights to the properties which were sold in court, for recovery of possession thereof and for mesne profits past and future at a particular rate.
The plaint was founded inter alia on the averments that the plaintiff being a lady with no worldly knowledge placed absolute confidence in her son-in-law late Dorayya, his brother Subbaiah and the 1st defendant (Ramanna) and left all the affairs into their hands to be dealt with as they pleased. Defendants 1 to 3 being her close relations, that until three years prior to suit the plaint lands were in her right and enjoyment alone and that the 1st defendant, Subbaiah and Dorayya were managing those lands on her behalf and that on the death of Subbaiah and Dorayya the 1st defendant adopted a hostile attitude towards her and in collusion with the other defendants refused to deliver possession of the lands to her.
The suit was defended on the ground that title to the properties passed to these defendants under the court sales and that the plaintiff had no right thereto, her claim being a false one. Though the suit was pending for seven years she did not take any steps to prosecute it and ultimately, she withdrew it in 1916.
5. Meanwhile, the present 2nd plaintiff brought a suit for a declaration that the court sales were benami for the widow, that O. S. 262 of 1899 as well as the award was collusive and not binding on the reversion. Accepting the plaint case, the Subordinate Judge gave a decree to the plaintiff, but this was reversed on appeal by the District Judge in the view that the suit was barred by limitation without going into the merits though some observations in the course of the judgment in dealing with the question of costs throw some indirect light on his opinion as to the nature of the plaintiffs' case.
Nothing further was done in this regard till we come to the present suit, though the present 2nd plaintiff attained majority in or about the year 1917. Between these dates, the plaintiff went on alienating the properties that were allotted to his father and mother in favour of his close relations as well as strangers as was done by his father during his lifetime and after his death by his mother and grandmother as his guardian during his minority. On 20-2-1928, the widow surrendered the estate in favour of her daughter the 1st plaintiff under Ex. B-82 and the next day in her turn the 1st plaintiff made a surrender deed in favour of her son the 2nd plaintiff.
6. The suit which gave rise to these appeals was filed on 21-4-1949 for declaring the right of the two plaintiffs (mother and son) to the plaint A and B scheduled properties; B schedule consisting of only a house, and for profits past and future etc. The suit is not confined to properties which were the subject of court-sales i. e., items 1 to 23 but brings within its scope items 24 to 30 in respect of which the title of Ramanna's branch was recognised in O. S. No. 357 of 1888.
It was defended on various grounds that items 1 to 23 were purchased for the benefit of Ramanna and Subbaiah with their funds and not for the widow, that other items did not belong to the last male-holder but pertained to Ramanna's branch, that the award by and under which the disputes between the parties were settled and to which the widow, her son-in-law and other interested persons were parties was binding on the plaintiffs also, that it was not collusive and much less an alienation, that the suit was barred by limitation and also by the principles of estoppel, election and ratification and that Section 66 C.P.C. operated against the plaintiffs.
7. The trial court found in favour of the plaintiffs on all the issues and decreed the suit.
8. The aggrieved defendants have come in appeal against that judgment. Though several points have been debated before us, the main controversy centred round questions bearing on the tide to the various bits of property.
9. We will therefore first deal with the issue as to the benami nature of the sales held in 1889 in regard to item 3 1 to 23 and the original title to the rest of the property described in the A schedule. (Their Lordships discussed the evidence and held that the plaintiffs have not established their claim to items 1 to 23 and consequently it has to be rejected.)
10. Another obstacle that is sought to be put by the appellants in the way of the plaintiffs is the maxim in pari delicto potior est conditio defendant's. The point made by the appellants in this behalf is since the object of the widow was said to be to commit fraud on the creditors by resorting to benami (assuming that the transactions in question are of that character) and this was fulfilled in that the creditors were compelled to accept very low dividends as seen from Ex. B-26, B-26 (a) and B-26(b) and B-26(c), the plaintiffs could not seek the aid of the court in recovering properties that were saved to the estate as a result of the fraud.
This argument is prima facie tenable. The documents referred to above disclose that the fraud was carried out and a court will refuse to interfere on either side since where the fault is mutual the law will leave the case as it finds it. The assistance of the court could be invoked only it the contemplated fraud was not carried out. This distinction is pointed out by their Lordships in Pether Perumal Chetty v. Muniandi Servai, I.L.R. 35 Cal 551 (PC). However, we do not propose to give etiect to this contention as this was not the subject of an issue in the lower court and as it requires full investigation.
11. We shall now turn our attention to items 24 to 30 of A schedule and the house described in the B schedule. Those properties also were brought into Suit on the footing that they formed part of Venkataswamy's estate. As pointed out above, the decree-bolder in O. S. No. 357 of 1888 attached these properties in execution of the decree to the extent it was not satisfied as though they belonged to the judgment-debtor's family. Ramanna and his brother filed a suit to establish their right thereto and obtained a declaration that the properties were not liable for attachment as the title thereto resided in them.
The suit was decreed only after contest and there is no material to suggest that there was any kind of collusion between the widow and the decree-holders on the one hand and the plaintiff therein on the other. The trial court was led into the belief that that suit was not fairly and honestly conducted by an error in Ex. B-22 which showed that the sales in question fetched a sum of Rs. 2891. The figure '2891' was obviously a mistake for Rs. 2391 as could be seen from the award Ex. B-41 and Ex. B-47-f.
No doubt, if the assumption that the whole decree in O. S. No. 357 of 1888 was satisfied is correct, the inference might be legitimate that the attachment of these properties in the further execution of the decree was merely a make-believe affair. But. that was not the case and the decree-holder had yet to realise a sum of about Rs. 300. There does not also appear to be any ostensible reason why the decree-holder should have lent himself to such unreal executions. Ordinarily, a decree obtained against the widow as representing the estate is binding on the reversion and the reversioner could not ignore it.
We were invited to conclude that the widow did not make any effort to protect the interest of the reversion but allowed the suit to proceed ex parte and thus jeopardised the interests of the estate though there were documents to substantiate the title of Venkataswamy to these properties. It is curious that no one entered the witness box to depose that the decree in question was the result of collusion. The foundation for the contention that the decree was collusive is a recital in Ex. B-22(b) dated 23-4-1884, a usufructuary mortgage by Venkataswamy in favour of Mudukuru Appayya which included these properties.
The property in Peddapuram which was registered in accounts in the name of my junior paternal uncle's sons, which fell to my share and which has been in my enjoyment, namely, jeroyiti wet land bearing No. 846, measuring ..... which passed to me from Tadikonda Subbarayudu under a registered sale deed and which has been in my enjoyment' etc.
It is argued this statement read in the light of the deposition of Appaiah who was examined in prior proceedings and who said that Ramanna took a lease of all the properties from him after the death of the mortgagee proves affirmatively the title of Venkataswamy to these items. The statement of Appayya can have little value in this discussion since the properties involved in that litigation were only items 4 and 5 of A-1 schedule which were attached by one of the decree-holders and had no bearing on these items.
It should also be remembered that this Appayya was brought to court under arrest and as an unwilling witness he would have been anxious to do much harm to the persons who coerced him to give evidence, It transpires from the material placed on record that these items represented only a moiety of what was purchased by the Amatam family when it was joint and before the division between Venkataswamys branch and Ramanna's branch. Venkataswamy who was a spend-thritt and addicted to immoral ways sold away his share therein and lands now in suit had fallen to the share of Ramanna's branch. The statement of Venkataswami in Ex. B-24(b) which is self-serving cannot be attached great value in view of the abundant and overwhelming documentary evidence bearing on this enquiry.
12. The assertion in the mortgage is sought to be supporfell by an entry in Ex. B-4 dated 20-12-1888 to the effect that one instalment of cist was paid by Venkataswamy. The Subordinate Judge gave undue weight to these two factors ignoring the relevant considerations that will be adverted to presently. He thought that the entries in the survey and settlement registers and the cist receipts which bear out the case of the defendants could have no significance for the reason that the registry would have continued in the name of Dorayya the father of Ramanna etc., having originally stood in his name.
This is a mere surmise and is not related to real facts. There is no evidence that these properties were purchased in the name of Dorayya ana registered in his name and that despite the allotment of these lands to the share of Venkataswamy no effort was made to have them mutated in favour of real owner. Exs. B-1 and B-11 the survey and settlement register for 1866 contained the name of Dorayya as the owner of these lands. In the patta (Ex. B-2) granted to Dorayya in 1867 these lands were included. The tax receipts, Exs. B-12 for 1861-62, B-13 and B-3 the tax receipts for 1864-65 show that the real owner of the properties was Dorayya.
In the absence of other cogent and unimpeachable evidence to the contrary, the person in whose name the properties stood in these registers should be taken to be the real owner thereof. Much stress is laid upon Ex. B-4 which says that one of the instalments of cist in December 1886 was paid by Venkataswamy. But the same document shows that the next instalment was paid by Amatam Kondayya the brother of Ramanna. We cannot also lose sight of the other contents of the document that these sums of money were paid on account of cist to respect of land held by Amatam Kondayya, Ramanna, Venkata-chalam etc.
So, the mere fact that tax was paid on one occasion by one individual in respect of lands standing in the name of somebody does not denote that he is either the pattadar or is in enjoyment of the land, Might be that he paid it on behalf of the person in possession thereof. Again the sum paid was a very small one and we have no idea as to the extent of land for which this was paid. In our opinion, even this document far from lending any support to the respondents probabilises the case of the appellants as to the ownership of these properties.
The recital in Ex. B-22 (b) that these properties were registered in the village accounts in the name of Ramanna's branch is also not without significance. It is not explained as to why they were registered in the village accounts in the name of the mortgagor's junior paternal uncle's son if possession and enjoyment were with him, To demolish the argument of the Subordinate Judge, that the registry would not have been changed even subsequent to the division in the family of Amatams and despite the items of these properties falling to the share of Venkataswamy the appellants filed a petition to admit additional documents consisting of survey and settlement register for the year 1866.
This register demonstrates that even by 1866 the lands in Yetlapalem and Paddapuram were entered in the names of the respective owners, i.e., the two branches. No counter opposing this application was filed by the respondent. We are satisfied that this application comes within the purview of Order 41 Rule 27 C.P.C. This additional document was necessitated by the reasoning of the Subordinate Judge in support of his conclusion. It is alleged in paragraphs 7 and 8 that they came to know on enquiry about the existence of the old survey and settlement register of 1866 relating to suit items which indicate that the partition had taken place at some time anterior to 1866, and it was the observations of the Judge that led to the enquiry. This is not denied on the other side. That apart, it is also helpful for a proper decision on this question. For these reasons we feel that it comes within the purview of Order 41 Rule 27 C.P.C. and the documents sought to be filed should be admitted as additional evidence.
13. In the discussion of the subject there Is one circumstance that plays a leading role. After the decision in the claim suit in regard to these properties, the 1st plaintiff purchased ac. 66-14 cents under Ex. B-15 from Ramanna and his brothers on 21-12-1896. By this conduct, the vendee under Ex. B-15 accepted the title of Ramanna. If really these properties appertain to the estate of Venkataswamy one would not expect his daughter to take a conveyance from Ramanna and his brothers. Later on, when these properties were alienated by the 1st and 2nd plaintiffs, they proceeded on the footing that they derived title thereto under Ex. B-15.
From these various circumstances, the conclusion is inescapable that the title thereto never vested in Venkataswamy and that it always belonged to Dorayya and his sons, that is, Ramanna, Kondayya etc. This is not a mere ease of failure of the plaintiffs to prove the case set up by them. Nay more. The defendants have by cogent and consistent evidence disproved the case disclosed in the plaint. This is sufficient to dismiss the respondents' suit.
14. Another ground urged in bar of the plaintiffs suit is one of limitation. As elaborate arguments were addressed at the Bar on the issue of limitation, we will take up that point also for consideration' The ground urged in bar of the suit is that as it was not filed within 12 years from the date of surrender in favour of the 2nd plaintiff his right to recover the property is extinguished. The widow executed a surrender deed in favour of her daughter (1st plaintiff) on 20-12-1928. The latter in her turn made a surrender in favour of her son the 2nd plaintiff the next day.
These two surrenders have given rise to the plea of limitation. The trial court overruled this objection, in the view that a surrender by the widow did not furnish a cause of action to the surrenderee to recover the properties belonging to the last male-holder. No exception could be taken to it having regard to the law as it prevailed in the State of Madras at the time when the judgment was rendered. There was preponderating authority in favour of this view.
There were a number of decisions of the Madras High Court to the effect that where a widow alienated the property or allowed a third party to prescribe title by adverse possession during her life-time and then surrendered her estate to the next reversioner, the reversioner had to wait till the death of the widow for filing of the suit and recovery of the properties. The last of the series was one in Tripurasundara Rao v. Kotayya, : AIR1951Mad753 to which one of us was a party. It was there observed:
'It has been, settled law so far as this court is concerned that if a widow alienates a portion of her husband's estate for purposes not binding on the estate and then surrenders the estate, the surrenderee would not be entitled to question the alienation and recover possession of the property until the death of the surrendering widow or the other limited owner ..... There is no difference in principle in our opinion between the case of an alienation and a case where the title of the limited owner became extinguished by operation of the statute of limitation. ..... By virtue of the surrender, if the surrenderee is not allowed to displace the title of an alienee holding the property under an alienation which was not for a necessary binding purpose it stands to reason that on the same analogy a person who had acquired title by adverse possession must also be protected.'
15. But the Calcutta High Court took the opposite view which was shared by the Bombay High Court. The rulings of the Patna High Court and the earlier decisions of the Allahabad High Court were in line with those of Madras though in some later cases the Allahabad High Court expressly approved of the view of the Calcutta High Court.
16. This divergence of judicial opinion was recently set at rest by the Supreme Court in Natvarlal v. Dadubhai, : 1SCR339 giving its approval to the line of reasoning adopted by the Calcutta High Court and disapproving of the Madras view which, in the opinion of their Lordships, proceeded upon a misconception regarding the true nature of a Hindu, widows estate and the rights and duties vested in the widow under the Hindu law.
The ratio of : 1SCR339 (supra) is that the moment a surrender was effected there was an extinction of the widow's rights in her husband's estate and the surrenderee becomes immediately entitled to the estate as the interposition of the widow's estate that had impeded the course of succession in favour of the reversioner has been removed thereby. The surrender conveys nothing in law and the surrenderee does not derive his title from the widow but only the succession is accelerated.
'It is the self-effacement by the widow that forms the basis of surrender and not the ex facie transfer by which such effacement is brought about.'
17. It is no doubt true that : 1SCR339 did not rake any question as to limitation. The only point which Supreme Court was concerned was whether the reversioner in whose favour a surrender deed was executed could recover possession of the properties belonging to the last male-holder during the life-time of the widow from persons who acquired title thereto by adverse possession against her and it was so answered in the affirmative. But, it follows as a logical corollory that if a suit is not instituted within 12 years from the date of surrender this is barred by limitation for the surrender furnishes a cause of action to the reversioner either to impugn the alienations effected by her or to recover properties of the last male-holder though the widow might not have been in a position to do so.
A legal claim has to be enforced within the period prescribed by the statute from the date of accrual of the cause of action and it it is not so done the remedy is lost. This principle is well established and is illustrated in a number of cases and it is not necessary to refer to them.
18. The judgment of the Supreme Court was considered by a Bench of the Madras High Court in Laxminarayana Rao v. A. P. Fernandes, : AIR1957Mad90 ; Venkateswara Rao v. Venkata Sivarao, 1956 Andh. W.R. 1056; (AIR 1957 Andh Pra 945). In both the cases, the principle of : 1SCR339 was applied and in the first of the cases the suit was dismissed as barred. There can be little doubt that the present case falls within the ambit of these rulings since the surrender deeds had clothed the surrenderee with an immediate right to recover possession of the properties and the plaintiffs had not to wait till the death of the widow.
19. This difficulty is sought to be got over by the respondents by contending that this plea was not specifically raised in the written statement; on the other hand it was stated in paragraph 11 of the written statement of some of the defendants that the surrender deed was obtained 'with false recitals from Venkamma just prior to the surrender deed executed by the 1st plaintiff in favour of the 2nd plaintiff with similar recitals' and that the latter surrender deed did not create in the 2nd plaintiff any rights in the properties said to have been surrendered.
20. We cannot accede to this contention of the respondents. Nothing turns on the allegation that the surrender deeds contain false recitals. It cannot support any suggestion that the surrender was not meant to be operative. Obviously the falsity relates to the nature of the contents of the surrender deeds, namely, that all the property which was sold away in court auction still continued to remain the estate of the last male-holder and was in possession and enjoyment of the widow.
The respondents are correct to the extent that it was not pleaded that the limitation arose by reason of the suit not having been filed within twelve years of surrender. But the parties proceeded on that footing in the trial court and far from raising any objection on the ground of lack of definite pleading in that behalf both sides invited the court to go into that matter and to give a decision on that issue.
(21) There cannot also be much substance in the complaint that there was no separate issue about it because a comprehensive issue was framed. Issue 17 is in these words:
'Whether the plaintiffs' suit in respect of all or any of the items is barred by principle of estoppel, election, ratification or limitation?'
In these circumstances it will not do for the respondents now to turn round and say that this matter should not be decided, now that there is a pronouncement of the highest tribunal of the land which is against them.
22. Further, it is to remedy the defect in that regard that an application was taken out for amendment of the written statement by inserting the following paragraph. Paragraph XV(a):
'Late Venkamma, the widow of the last male-holder executed a registered deed of surrender dated 20-2-1928 of her husband's estate in favour of her daughter Valluri Venkayya alias Venkamma, the 1st plaintiff. The 1st plaintiff in her turn executed another registered deed of surrender dated 21-2-1928 in favour of her son. Valluri Sattiraju the 2nd plaintiff. By virtue of the said deed of surrender, the 2nd plaintiff's right to sue for the recovery of the last male-holder, Amatam Venkataswamy's properties, accrued immediately and hence this suit filed more than twelve years thereafter is barred by limitation.'
This application was filed on 19-2-1957. Yet opposition to it by way of a counter had not come up till 21-8-1957 the day on which the hearing of this appeal began. It is alleged in the counter-affidavit that this plea of limitation is an after-thought and a very belated attempt 'to press into service certain decisions given subsequent to the judgment of the Sub Court in the suit etc.
These allegations have no force in view of what is stated above. It is futile to contend that it is an after-thought when arguments were addressed in the trial court on the subject and the matter was gone into at some length. We do not think that this amendment would in any way take the plaintiffs by surprise especially when the plaint itself refers to the surrender deed. The averments in paragraph 12 are:
'The 1st plaintiff executed a deed of surrender in favour of her son the second plaintiff. Even otherwise she is willing to a decree being passed in favour of the 2nd plaintiff.'
There can be little doubt that this suit for possession, is chiefly founded on the surrender. During the lifetime of the 1st plaintiff, the 2nd plaintiff could not maintain the suit for recovering possession of the properties. It is true that there is no reference to the surrender deed executed by the widow in favour of the 1st plaintilt, But, surrender by the 1st plaintiff in favour of 2nd plaintiff implies a surrender by the widow in favour of 1st plaintiff. Otherwise, there can be no question of the 1st plaintiff surrendering the estate to the last male-holder as nothing devolves on her during the lifetime of the widow.
Since the plaintiffs had not filed the first surrender deed the defendants filed it. Our attention was called to the recitals in paragraph 3 of the plaint that Venkataswamy's properties devolved on Venkamma his widow for life and she remained in possession and enjoyment till her death in or about May 1947, and the 1st plaintiff as the daughter became entitled to the properties of his father, and it was argued on the strength thereof that the surrender deeds were ineffectual as otherwise there was no question of the widow remaining in possession thereof.
This does not present any difficulty if it is re-membered that properties referred to here are those involved in the suit and what is aimed at by this is to show that they continued to belong to the estate of Venkataswamy, no title having passed to other persons by virtue of the court-sales and that the widow's possession and enjoyment of the properties continued undisturbed despite the court-sales. The object of this statement is to lend colour to the theory of benami and not to suggest that the surrenders were not meant to be effective. If that were so, there was no necessity to rely upon the surrender in the plaint.
23. In these circumstances, we think there can be no real objection to the granting of the prayer for the amendment of the written statement. This would not cause any real prejudice as this only leads to the clarification of the matter and even without this the plea of limitation can he sustained. This court sitting in appeal has ample power to make an amendment of the pleadings which are necessary for effective adjudication of the questions in issue. An appellate court would normally decline to allow an amendment it a fresh suit is barred by limitation on the date of the application on the amended claim. But, that is only a circumstance to be regarded in exercise of the discretion and does not take away the power of the court to do so if the interests of justice require it. An illustration of this principle is Charan Das v. Amir Khan, 47 Ind App 255: (AIR 1921 PC 50) where it was observed:
'That there was full power to make the amendment cannot be disputed and though such a power should not as a rule be exercised where the effect is to take away from a defendant a legal right which has accrued to him by lapse of time, yet there are cases where such considerations are out-weighed by the special circumstances of the case.'
This was referred to with approval by the Supreme Court in Leach and Co. v. Jardine Skinner and Co., (S) : 1SCR438 . It is thus manifest that a court can allow an amendment even where its effect is to take away a right if the interests of justice require it. The only thing is that it should exercise circumspection in that regard. Here, this amendment does not deprive the plaintiff of any such right nor is he taken by surprise. This was agitated in the lower court, the defendants urging in spite of the rulings of the Madras High Court that the suit was barred by limitation by reason of the surrenders and the plaintiff contending that the surrender deeds could not have that effect.
There is nothing else to be investigated in this case, It does not appear that there was any other property left over and all the properties forming subject of the surrenders are those involved in this litigation to give rise to the argument that the surrender was partial. Having regard to the historical background, we can reasonably inter that the surrenders were real and were meant to be effective and not intended to be inoperative. By February 1928, most of the properties that were obtained under the award were alienated both by Dorayya during his life time and on his death by the widow and the 1st plaintiff on behalf of the 2nd plaintiff during his minority and by the 2nd plaintiff after he had attained majority, and the last of the sales took place on 26-2-1928 five days after surrender in favour of the 2nd plaintiffs mother-in-law for Rs. 23,750.
After this, the parties must have been contemplating institution of the present suit and to facilitate this the widow and the 1st plaintiff thought of these surrenders. There is no ostensible reason as to why they should have resorted to ineffectual surrenders, as such a court would not have in any way helped the parties. Further more, his is inconsistent with the attitude adopted by the plaintiffs as disclosed in the plaint. Even apart from the amendment, there is ample material to sustain the defence of limitation, When once it comes to the notice of the court that a suit is barred by limitation it is its duty to give effect to it although the parties do not raise it. On this ground, also, the plaintiff has to be non-suited.
24. A further contention in support of the appeal was that the plaintiffs' suit should be dismissed on the principle of either ratification or election or estoppel. This is how it is put in regard to ratification or election. After the award, the parties took possession of the properties that were allotted to them and enjoyed them without any demur and alienated all the properties they obtained thereunder by stages thereby affirming the award. In support of this plea, our attention was drawn to Exs. B-43(a) and B-43(b) dated 4-6-1900 and 1-6-1904 under which Dorayya mortgaged some of the properties that were allotted to him under the award in 1900 and 1904 for Rs. 3500 and Rs. 4878-2-0 respectively.
Subsequent to the death of Dorayya, his mother-in-law, and his wife the 1st plaintiff sold item 23 of the present A schedule as the guardian of the 2nd plaintiff under Ex. B-66 dated 10-7-1906 for Rs. 1000. In 1915, two mortgages were created by the same persons on behalf of the minor for Rs. 11, 000 and Rs. 4,000 which included the properties got under the award. After the 2nd plaintiff attained majority, he effected alienations of the rest of the properties between 1920 and 1928 the last of which, as already mentioned above, was in favour of his mother-in-law and realised large sums of money.
These dealings of his appear from Ex. B-511 dated 9-1-1920, B-52 dated 18-1-1921, B-53 dated 18-1-1921, B-17 dated 24-2-1924 and B-18 dated 24-2-1924 and lastly B-43(c) dated 26-2-1928. It may be mentioned in passing that after having disposed of all the properties he filed an insolvency petition with which we are not now concerned because that was annulled and thereafter he filed the present suit.
25. What is urged is that apart from the actings of Dorayya when it was open to the plaintiff to repudiate the award and to disown any title derived therefrom, he chose to abide by it by effecting transfer of the properties as kill owner, which could not have been the case but for the award, during the life-time of the widow and also by recognising the validity of the award. Alter he attained majority he had two titles to choose (1) an absolute title referable to the award and (2) title as reversioner to the estate of his maternal grand-father.
In the latter case, he would have no present interest during the life-time of the widow and his, mother in any of the properties. By dealing with the properties in question as absolute owner and by tracing his title to the award, he should be deemed to have ratified or elected to abide by it. Having so done, it is not open to him to reopen the award and to agitate this matter once more. In order to constitute election or ratification it is not essential that a reversioner should assent to the transaction impeached only when he is in titulo. The ratification can be effected even during the life-time of the widow and before the reversion falls as pointed out by Lord Dunedin in the famous case of Rangaswami Gounden v. Nachiappa Gounden, 46 Ind App 72: (AIR 1918 PC 196):
'of course something might be done even before that time which amount to an actual election to hold the deed good.'
26. In answer to this, it was urged by the Advocate-General that the principle of election or ratification holds good only in the case of alienations by the widow and cannot be extended to awards similar to those here. We do not think we can agree to this. There is no justification for limiting this doctrine to cases of alienation by Hindu widows. Though the Hindu widow's estate is unknown to English law, still the principle is given effect to in several decisions of English Courts. In Ramakotayya v. Veeraraghavayya, ILR 52 Mad 556: (AIR 1929 Mad 502), Coutts Trotter, C.J. who delivered the opinion of the Bench referred to the leading case of Streatfield v. Streatfield reported in (1735) 1 White and Tudor, 9th Edn. 373 and extracted the following passage therefrom:
'Election is the obligation imposed upon a party by Courts of Equity to choose between two inconsistent or alternative rights or claims in cases where there is a clear intention of the person from whom he derives one that he should not enjoy both. Every case of election, therefore, presupposes a plurality of gifts or rights, with an intention, express or implied, of the party who has a right to control one or both that one should be a substitute for the other. The party who is to take has a choice, but he cannot enjoy the benefit of both.'
Thus, this is not peculiar to Hindu Law or alienations by the widow. Sahu Madho Das v. Mukand Ram, 1955-2 Mad. L.J. (S.C.) 1: ((S) AIR 1955 SC 481) and Dhiyan Singh v. Jugal Kishore, : 1SCR478 are not instances of leversioners assenting to the alienations by the widow. But, we need not pursue this any further as we do not propose to base our judgment on these principles.
27. It was next contended by Mr. Ramachan-drarao for the appellants that the plaintiffs are also estopped from questioning the validity of the arrangement for this reason. Dorayya who was a party to the reference represented to the other parties to these proceedings that he would not dispute their title to the properties allotted to them and obtained 13 acres of land in 'Shrotrium Rayavaram which exclusively belonged to Ramanna's branch and did not form the subject-matter of court-sales. Having obtained benefit by this representation, Dorayya was estopped from contesting the validity of the award and this estoppel has descended to the 2nd plaintiff who after inheriting the properties disposed them of, continued the learned counsel.
Whether this plea of estoppel holds good or not in regard to the other items of property which we do not propose to finally decide, we feel that it is unanswerable in regard to items 1 to 3. It should be remembered that these three items were assigned to the share of Dorayya under the award. Shortly thereafter, he gave them to Ramanna in exchange for some of the latter's properties which were not included in the award and which did not belong to the estate of Venkataswamy, as seen from Exs. B-42 and B-43.
Thus, Dorayya had obtained a benefit from the other party by this transaction and he would have been prevented from disowning this transaction. This very property was sold away by the plaintiff under Ex. B-43(c) to his mother-in-law for a sum of Rs. 23,750. But for the arrangement resulting in the conveyance of the items or Ramanna, neither Dorayya nor the 2nd plaintiff had any right to the properties which were ultimately alienated by the 2nd plaintiff. By his retention of this property after inheriting it from his father and dealing with it as the owner thereof, he must be taken to nave admitted the validity of the exchange of these items, and thus giving the transferee absolute tide.
There is therefore an independent estoppel in him apart from the one that descended to him from his father by reason of his stepping into his shoes. See : 1SCR478 . He cannot retain the property he got in exchange and at the same time seek to recover what he gave in return. He has disabled himself from even offering to return what had been obtained in exchange for these three items having sold them away as far back as 1928.
28. In view of our findings on other issues, it is unnecessary to go into the question whether Section 66 of the Code of Civil Procedure has any bearing to the maintainability of the suit. Viewed from any angle and in any light, the plaintiffs cannot succeed. There are absolutely no merits in the suit. By this action, they succeeded in extracting some money bom some of the alienees and that is how items 8 to 18 are not involved in these appeals. To borrow the words of the Privy Council in Venkata Seetharamachandra Rao v. Kanchumarti Raju, 53 Mad. L.J. 858: AIR 925 PC 201)--
'Were it not that the plaintiff has obtained the support of the Subordinate Judge, the case might be justly characterised as not only unfounded but audacious.'
For all these reasons, we allow these appeals with costs throughout and dismiss the suit.
29. The Advocate General wants us to observe that this decision would not in any way affect the compromise that has already been effected between his clients and any of the defendants. It is not necessary for us to mention it as this decision would not in any way govern matters which are not before us and which have already been settled as between the parties.