Venkatasubba Rao, J.
1. The question I have to decide is, whether a daughter of a Hindu succeeding to his property can alienate it for raising money to perform her son's marriage, her husband (i.e., the boy's father) being too poor to meet the expenses.
2. The facts may be shortly stated. One Pattenna died leaving his widow Atchamma and his daughter Saramma. The property first devolved upon Atchamma and on her death on Saramma, On the 19th of March, 1905, she granted a mortgage, Ex. XIV, in favour of one Samaldas. The deed of mortgage was executed not only by Saramma but by her husband Bhadriah and her son Veerachari. Samaldas filed Suit No. 671 of 1906 to enforce his mortgage, impleading to his action as defendants, (1) his mortgagors, (2) Surayya, brother of Veerachari, and (3) the sons of one Kanchiah, the deceased brother of the last mentioned person. A decree was passed against the mortgagors alone (i.e., Saramma, Bhadriah and Veerachari) and the suit was dismissed as against the other defendants. The mortgaged property was brought to sale in execution of the decree and was purchased in 1911 by one Veerabrahmam, who, in his turn, sold it to the 2nd defendant. Saramgia died in 1923 and her sons having pre-deceased her, the 1st defendant, her husband's nephew, became, on her death, the reversioner entitled to the estate, and he, ignoring the Court sale, sold the property to the plaintiff, who has instituted the present suit for the recovery of the item, and his claim is resisted by the appellant, the 2nd defendant.
3. The consideration for the mortgage is the discharge of certain debts due under two promissory notes, which had previously been executed by Saramma in favour of Samaldas, the mortgagee. It is unnecessary to trace back these debts to their origin, for the only question that is material is, do the debts represent, as alleged by the defence, amounts borrowed for the marriage of Veerachari? The Trial Court has answered this question in the affirmative. It has also held that the purpose for which the mortgage was granted was one binding upon the reversioner. On these two points, the learned Subordinate Judge has come to a conclusion different from that of the Trial Court. His decision, in my opinion, cannot be supported.
4. In deciding the question, whether, in fact, monies were borrowed from Samaldas and whether they were required for the marriage of Veerachari, the learned Subordinate Judge has firstly made some incorrect statements and secondly failed to advert to certain important considerations. For these reasons, I cannot accept his finding, though it is one of fact. The learned Judge says:
None connected with these two promissory notes were called for the defendants.
5. This is not correct. The executants were all dead and the only person that could be examined was Samaldas. His evidence was taken and it completely supports the defence. With the money raised from Samaldas on one of the two promissory notes mentioned above, a debt due to one Anharachari, from whom some amount had originally been borrowed for meeting a part of the marriage expenses, was paid off. This Anharachari having died previous to the suit, he could not be examined. The statement made by the Subordinate Judge to which i have referred is therefore incorrect. The learned Judge then goes on to state:
There is no independent evidence for the defendants that any such debts Were really contracted to meet the expenses of Veerachari's marriage.
6. This again is wrong. Both D.W. 2 and D.W. 3 speak to this fact. They are independent witnesses. D.W. 2 is not the present owner of the property and I fail to see why his testimony should not be regarded as that of an independent witness. In any case, the statement of the Subordinate Judge is not correct. Next, the learned Judge seems to forget that the two promissory notes and those which they superseded were as a fact filed in O.S. No. 671 of 1906, the mortgage suit. There is evidence that they were destroyed and no inference should have been drawn against the defence from the fact that they were not produced at this trial. Ex. XII shows that the 2nd defendant applied for copies of the promissory notes but was told that they had been destroyed. The Judge also ignores that there is a finding by the Munsif, that, in fact, Veerachari's marriage was performed by Saramma. The Judge records no finding himself but I am satisfied that the District Munsif's conclusion is correct. Then again, the learned judge fails to advert to the fact, that after the Court sale in 1911, all the three mortgagors made an attempt to get rid of it, for that has a material bearing on the question, whether there was or was not collusion between the mortgagors and the mortgagee. Mr. V. Suryanarayana, for the respondent, has strenuously contended that the finding is one of fact and I should not interfere with it in second appeal. But, for the reasons I have stated, I cannot accept that finding and I agree with the District Munsif, that the mortgage represents a genuine and bona fide transaction and that the monies were raised for meeting the expenses of Veerachari's marriage.
7. The District Munsif records a finding, and in my opinion correctly, that Saramma's husband, Bhadriah, was not possessed of sufficient means to enable him to perform the marriage of his son. The Lower Appellate Court gives no distinct finding on the point. The question of law that arises on these facts is, was the purpose for which the alienation was made, one of legal necessity under the Hindu Law? In Sardar Singh v. Kunj Behari Lal their Lordships of the Judicial Committee observe that the Hindu system recognises two sets of religious acts. One is in connection with the actual obsequies of the deceased and the periodical performance of the obsequial rites prescribed in the Hindu religious law, which are considered as essential for the salvation of the soul of the deceased. The other relates to acts which although not essential or obligatory are still pious and if performed are meritorious and conduce to the spiritual benefit of the deceased. The distinction between these two kinds of acts must be borne in mind; the first, as is pointed out, is essential or obligatory, whereas the second, while not being essential, is simply pious and conduces to the bliss of the deceased's soul. But both these classes of acts are recognised under the Hindu system as religious acts. Trevelyan, while considering what constitute proper objects for the alienation by a restricted female owner, mentions the following purpose.
To provide for the maintenance of dependent. members of her family, whom her husband or the other last full owner (as the case may be) was legally or morally bound to support, and for. their marriages or other necessary religious ceremonies, on a reasonable scale, having regard to the amount of the property and the position of the family.'--Trevelyan's Hindu Law, 3rd Ed., p. 523.
8. In the case where the limited' owner is a daughter, does her son, when his father has not the means to perform his marriage, answer this description or not? Surely, he is a dependent member of her family. Again, can there be a doubt that a Hindu, according to accepted notions is morally bound to support, or perform the marriage of, his indigent daughter's son? I stress the word 'morally' as the law as stated in the passage quoted above does not insist that the obligation of the last full owner should be purely legal. The reasoning, which prefers in this connection, a daughter's daughter to a daughter's son, seems, with all respect, faulty. A daughter's son occupies in the Hindu system and under the Hindu Law a special and privileged position. Though a binnagotra sapinda, he takes a place as heir even before parents and other gotraja sapindas. In Karuppai Nachiar v. Sankaranarayana Chetty I.L.R. (1903) M. 300 : 13 M.L.J. 398 (F.B.) ancient texts are quoted to show the peculiar place a daughter's son occupies in the older Hindu law. According to Vishnu:
If a man have neither son, nor son's son, nor (wife nor female) issue, the daughter's son shall take his wealth. For in regard to the obsequies of ancestors, daughter's sons are considered as son's sons.
9. Manu declares, that by a male child whom a daughter produces, the maternal grandfather becomes the grandsire of a son's son. The learned Judges in the case just mentioned, after referring to the very high rank accorded to a daughter's son in the old Hindu Law, go on to observe, that even under the present law, his position practically remains unchanged. The statement found in the cases to which I have been referred, that the marriage of a daughter's daughter may, if at all, be considered a proper object and not that of a daughter's son, involves, with great deference, a confusion of thought. Whether from the point of view of a joint Hindu family, the marriage of a boy as distinguished from a girl, is a family necessity or not, was a question on which there was some difference of opinion till it was decided in the affirmative by Gopalakrishnam v. Venkatanarasa I.L.R. (1912) M. 273 : 23 M.L.J. 288 (F.B.) While dealing with the power of a limited female owner, we are concerned not with any question of family benefit but with what conduces to the spiritual benefit of the deceased male holder. While a daughter's daughter has undoubtedly a special claim, a daughter's son, by reason of the privileged position, assigned to him in the Hindu system, stands even on a better footing. In Rustam Singh v. Moti Singh I.L.R. (1896) A. 474, whare the father not being possessed of sufficient means, the mother, in order to raise money to meet the expenses of her daughter's marriage, mortgaged property of her own, which had come to her from her father, it was held, that the mortgage was made for legal necessity and was a valid mortgage. This decision was followed by a Bench of our Court in Chudammal v. Nadamuni Naidu (1909) 3 I.C. 77. I am not in the least disposed to question the correctness of these cases; on the contrary, they lay down, in my opinion, a rule entirely in harmony with the Hindu Law. Rajagopalachariar v. Sami Reddi a case decided by Devadoss, J., has been relied on by the appellant. I must express, for the reasons I have already given, my most respectful dissent from that ruling. The actual decision in the case I may state has been set aside on appeal though on a different ground. I may further point out that the learned Judge rests his conclusion, even granting that it is otherwise correct, on an older view, which has been declared to be wrong by a Full Bench in Gopalakrishnam v. Venkatanarasa I.L.R. (1912) M. 273 : 23 M.L.J. 288 (F.B.), a case evidently not brought to his notice. Mr. Suryanarayana also relies upon a case decided by Anantakrishna Aiyar, J., Lakkaraju Ananda Rao v. Yellamaraju Venkatasubba Rao (1929) 58 M.L.J. 127. The alienor there was the widow, and not the daughter, of the last male holder, but that makes no difference. Further, there was a finding, that the boy's father was possessed of sufficient means, and although the case may be distinguished on that ground, I feel bound to express my most respectful dissent from the principle underlying that judgment. Firstly, can it reasonably be said, that the maintenance of a daughter's son is not a proper object? His father being needy and poor, is the rich mother to allow her son to starve? Suppose again, that the boy is attacked by a serious disease which calls for expensive medical aid, is the mother, though possessed of wealth, to allow him to succumb to that disease? Is the preserving of his life of no concern to the deceased's soul, he being the person who is to offer him funeral oblation? According to Anantakrishna Aiyar, J., no part of the estate can be sold even for maintaining the boy. It seems to me, on the contrary, that not only in the extreme cases to which I have referred, but even in respect of the boy's education and advancement in life, his mother can legally incur expenses and, if necessary, for meeting them, alienate the estate in her hands. Nor must one forget, that the daughter's son, if he happens to survive his mother, is the very person that would eventually become entitled to that estate. I therefore hold that the alienation in question is valid and binding on the plaintiff.
10. The next point to decide relates to the interest that passed at the Court sale. No doubt, to the suit on the mortgage, Surayya and Kanchiah's sons were impleaded as defendants, and as against them the claim was dismissed. But what appears from the judgment is, that it was so dismissed on the ground that they were unnecessary parties, the alternative case, that the property belonged to Bhadriah and not to Saramma, having been found against. Beyond the judgment and the sale certificate, there is no other record in that suit now available, which can throw light on the question, whether the daughter in those proceedings represented the inheritance or not In such a case, one must necessarily turn to the nature of the debt to decide what passed at the sale. Akula Sanyasi v. Gundala Ramachandra Rao : AIR1926Mad692 . See also Veerabadra Aiyar v. Matudaga Nachar I.L.R. (1910) M. 188 : 21 M.L.J. 320. On my finding, that the debt was of a binding character, I must hold, differing from the Lower Courts, that what passed was the whole property and not merely the interest of Saramma. There is nothing in the judgment in that suit to indicate the contrary and indeed the description in the sale proclamation confirms the view I have taken.
11. In the result, the plaintiff fails and his suit is dismissed. In the circumstances, I direct each party to bear his costs throughout.