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Rangappa Naik Vs. Kamti Naik and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtChennai
Decided On
Reported in(1908)18MLJ309
AppellantRangappa Naik
RespondentKamti Naik and ors.
Cases ReferredChiruvolu Punnamma v. Chiruvolu Perrazu I.L.R.
Excerpt:
- - 236 would be satisfied if the widow, with the consent of the reversioners, surrendered absolutely her entire interest in a particular part of the inheritance, but this contention was urged before the full bench in marudamuthu nadan v. 74. it seems to me the estoppel must be held to be good in a case where the consent is given bona fide and for good consideration with respect to future alienations. 354. (see also mayne's note on this case). in this last case the court treated two deeds by one of which the widow transferred her entire interest in the estate to the reversioner, while by the other the reversioner in turn conveyed a portion of the estate to her in full ownership as a mere 'contrivance' i to convert the qualified estate of the widow into an absolute i estate to be.....1. after citing the order of reference the chief justice went on as follows:the document is not altogether easy to construe, but i read it as a release to the widow by the reversioners of their reversionary interest in consideration of the widow conveying to them her interest in a portion of the property. i do not think the document can be construed as extinguishing the whole of the widow's estate and unless the whole of the estate is extinguished, the surrender in my view of the law is not effective. this was expressly decided by the privy council in behari lal v. madho lal ahir gayaval i.l.r. (1891) c. 236 and i do not think this decision is affected by the judgment of the privy council in bajrangi singh v. manokarnika bakhsh singh 12 c.w.n. 74. in marudamuthu nadan v. srinivasa pillai.....
Judgment:

1. After citing the Order of Reference the Chief Justice went on as follows:

The document is not altogether easy to construe, but I read it as a release to the widow by the reversioners of their reversionary interest in consideration of the widow conveying to them her interest in a portion of the property. I do not think the document can be construed as extinguishing the whole of the widow's estate and unless the whole of the estate is extinguished, the surrender in my view of the law is not effective. This was expressly decided by the Privy Council in Behari Lal v. Madho Lal Ahir Gayaval I.L.R. (1891) C. 236 and I do not think this decision is affected by the judgment of the Privy Council in Bajrangi Singh v. Manokarnika Bakhsh Singh 12 C.W.N. 74. In Marudamuthu Nadan v. Srinivasa Pillai I.L.R. (1897) M. 128 the principle of the decision of the Privy Council in Behari Lal v. Madho Lal Ahir Gayawal I.L.R. (1891) C. 236 was applied by a Full Bench of this Court in a case where the widow had alienated a portion of her estate to a third party with the consent of the nearest reversioner for the time being. The decision of this Court in Marudamuthu Nadan v. Srinivasa Pillai I.L.R. (1897) M. 128 was recently considered by the Privy Council in Bajrangi Singh v. Manokarnika Bakhsh Singh 12 C.W.N. 74 and was cited with approval, and although the question before their lordships of the Privy Council was the general question of the right of a Hindu widow in the absence of legal necessity to alienate property with the consent of the next reversioners, I can find nothing in their judgment to indicate that they were of opinion that the right was free from the qualifications or restrictions that the whole limited estate must be withdrawn. Although in the Privy Council case, to which I have referred, the facts are not quite clear, and although the alienations were no doubt made piece-meal, I think it must be taken that at the time it was sought to impeach the alienations by the widow the whole of the widow's estate had been alienated with the consent of the reversioners. Both in the case of an alienation to a third party with the consent of the reversioners and in the case of surrender to the reversioners, it seems to me as the law now stands - in this Presidency at any rate - the surrender or the alienation to be effective must comprise the whole of the limited estate. It might, no doubt, be reasonably contended that the rule laid down by the Privy Council in Behari Lal v. Madho Lal Ahir Gayawal I.L.R. (1891) C. 236 would be satisfied if the widow, with the consent of the reversioners, surrendered absolutely her entire interest in a particular part of the inheritance, but this contention was urged before the Full Bench in Marudamuthu Nadan v. Srinivasa Pillai I.L.R. (1897) M. 128 and the Court declined to accede to it - see the judgment of Shephard J. on page 132.

2. Further I do not think that the Privy Council in their recent judgment to which I have referred Bajrangi Singh v. Manokarnika Bukhsh Singh 12 C.W.N. 74 intended to hold that the reversioners could, with a view to enable the widow to give an absolute title to property inherited from her husband, give the widow a general release of their reversionary right. I do not think the decision of this Court in Manickam Pillai v. Ramalinga Pillai (1905) I.L.R. 29 M. 120 which followed the Privy Council decision in Bahadur Singh v. Mohar Singh I.L.R. (1901) A. 94 and in Narasimham v. Madhavarayudu : (1903)13MLJ323 which was decided in accordance with the view taken by the Calcutta High Court in Hem Chunder Sanyal v. Sarnamoyi Debi I.L.R. (1894) C. 354 is affected by the judgment of the Privy Council in Bajrangi Singh v. Manokarnika Bakhsh Singh 12 C.W.N. 74.

3. This being my view with regard to the effect of a general release by reversioners of the reversionary rights with a view to prospective alienations by the widow, and with regard to a surrender by a widow to reversioners, or an alienation to third parties with the consent of the reversioners which does not comprise the whole of the widow's limited estate, my answer to the question which has been referred to us would, apart from any question of estoppel, be in the affirmative. But as regards this question of estoppel we are, I think, bound by the judgment of the Privy Council in Bajrangi Singh v. Manokarnika Bakhsh Singh 12 C.W.N. 74. In the last sentence of this judgment their Lordships observe that the I appellants (i.e., the reversioners who sought to have the widow's alienations set aside) who claimed through the reversioners who consented must be held bound by the consent of their fathers. There may be a difficulty in reconciling this statement of the law by the Privy Council on the question of estoppel with the judgment of the Privy Council in Bahadur Singh v. Mohar Singh see Bhagwanta v. Sukhi I.L.R. 22 A. 33; Govinda Pillai v. Thayammal I.L.R. (1904) M. 57; but as the last pronouncement of the Privy Council upon the question I think it is our duty to follow it. As regards this question of estoppel, I do not think the present case can be distinguished on the facts from Bajrangi Singh v. Manokarnika Bakhsh Singh 12 C.W.N. 74. It seems to me the estoppel must be held to be good in a case where the consent is given bona fide and for good consideration with respect to future alienations.

4. I would, therefore, answer the question which has been referred to us in the negative.

Wallis J.,

5. Two questions appear to me to be involved in this reference, first whether if the next reversioners execute a deed such, as Ex. IV by which in consideration of a grant of a certain portion of the estate to them, they renounce all interest in the remainder of the estate and consent that the widow may dispose of it in any manner she pleases after her death, this transaction has the effect of validating alienations of such estate subsequently made by her to third parties, and secondly if it has not, whether the heirs of the reversioners who were parties to the deed and received consideration for executing it are estopped from questioning it.

6. The first question must, in my opinion, be answered in the negative. Ex. TV appears to me to be a conveyance byway of release to the widow of the reversion by the next reversioners. It has been held by Benson and Bhashyam Aiyangar JJ. in Narasimham v. Madhavarayudu : (1903)13MLJ323 that reversioners cannot surrender their reversionary interest to the widow so as to vest the estate and there is a decision to the same effect in Hem Chunder Sanyal v. Sornomoyi Debi I.L.R. (1894) C. 354. If Ex. IV is something less than a conveyance by way of release to the widow the case appears to me to be even stronger. I know of no authority at all in favour of the view that the next reversioners can confer an unrestricted prospective power of alienation on the widow. Even the observation of Garth C.J. in Nobokishore Sarma Roy v. Hari Nath Sarma Roy I.L.R. (1894) C. 354 that 'if it is once established in law that a widow may relinquish her husband's estate in favour of her husband's heir for the time being it seems impossible to prevent any alienation which the widow and the next heir may agree to make ' does not go so far as to authorise alienations made without the consent or knowledge of the next reversioners pursuant to a general consent given previously. Nor does Miller J. go any further when he says that 'if a widow is competent to relinquish her estate to the next male heir of her husband it follows as a logical consequence that she can alienate merely with his consent without a legal necessity.' The objections to the view of these learned Judges by which the reversioner's power to validate alienations by the widow is derived from the widow's power to accelerate the reversioner's succession by extinguishing her own estate in his favour have been forcibly pointed out in Hem Chunder Sanyal v. Sornomoyi Debi I.L.R. (1894) C. 354. (See also Mayne's note on this case). In this last case the Court treated two deeds by one of which the widow transferred her entire interest in the estate to the reversioner, while by the other the reversioner in turn conveyed a portion of the estate to her in full ownership as a mere 'contrivance' I to convert the qualified estate of the widow into an absolute I estate to be enjoyed by her free from all restraint on alienation. I and held the contrivance void. To allow a widow to use the power of accelerating the reversioner's estate as a means of enlarging her own estate or effecting alienations to third parties I would in my opinion be opposed to well-known equitable principles which seem to me to be as applicable in India as in England. It is well established that the donee of a limited power ' must exercise it bona fide for the end designed, otherwise the execution is corrupt and void'. Aleyn v. Belchier W. & T.L.C. p. 312 (7th Ed.); Farwell on Powers, p. 403, (II Edition). Consequently the exercise of a power for the purpose of obtaining a personal advantage for the donee of the power or effecting any other indirect object has always been held bad. The decision of this Court in Narasimham v. Madhavarayadu : (1903)13MLJ323 and of the Calcutta High Court in Hem Chunder Sanyal v. Sornomoyi Debi I.L.R. (1894) c. 354 may, I think, be regarded as applications of this doctrine, as may also it seems to me, the decision of their Lordships of the Privy Council in Behari Lal v. Madho Lal Ahir Gayawal I.L.R. (1891) C. 236 that the widows' power of acceleration to be validly exercised must relate to the whole estate without any reservation in her own favour. Whatever difficulty there may sometimes be in preventing the improper exercise of the power of acceleration it surely cannot be satisfactory to make the possibility of the improper exercise of this power by the widow the foundation on which the power of the reversioner to validate the widow's alienations to third parties must rest. The Bombay High Court has constantly refused to treat the reversioner's power to validate as derived from the widow's power to accelerate; the former has the authority of Hindu texts and is analogous to the power of sapindas to consent to an adoption, the latter would appear to be based upon an application of the English doctrine of merger. The Full Bench decision of this Court in Marudamuthu Nadan v. Srinivasa Pillay I.L.R. (1897) M. 128 does not I think support the view that the widow's power of acceleration is sufficient to cover any contrivance which the widow and the next reversioner may enter into to the prejudice of remoter reversioners, as it was held that they could not validate the 'alienation by the widow of a portion only of her estate. Further in so far as, following Nobokishore Sarma Roy v. Hari Nath Sarma Roy I.L.R. (1884) C. 1102 the Full Bench derive the reversioner's power to validate from the widow's power to accelerate, this view is not, in my opinion, supported by the decisions of the Privy Council, while the actual decision of the Full Bench that a reversioner cannot validate the alienation by the widow of a part of the estate appears to be opposed to the recent decision of their Lordships in Bajrangi Singh v. Manokarnika Bakhsh Singh (1907) 17 M.L.J. 605. So far as I can see, their Lordships appear to treat the widow's power of acceleration and the reversioner's power of validating the widow's alienation as distinct and independent powers.

7. In Collector of Masulipatam v. Cavaly Vencata Narrainapah (1860) 8 M.I.A. 500 it is said to be established that 'an alienation not otherwise legitimate may become so if made with the consent of her husband's kindered.' Neither here nor 'in the similar observations in Raj Lukhee Dabea v. Gokool Chunder Chowdhary (1869) 13 M.I.A. 209 do their Lordships make any reference to the widow's power of accelerating the reversion as having any bearing on the reversioner's power of validating an alienation. On the other hand, when dealing with the widow's power of accelerating the reversion, in Behari Lal v. Madho Lal Ahir Gayawal I.L.R. (1891) C. 236 their Lordships make no reference to the reversioner's power of validating alienations and their Lordships' decision does not appear to affect the latter power except in so far as it shows that the widow's power of acceleration must be exercised bona fide and for the end designed. In the Full Bench case in Marudamuthu Nadan v. Srinivasa Pillai I.L.R. (1897) M. 128 Shephard J. who delivered the judgment of the Court on this part of the case when holding that the reversioner's power of validation must be derived from the widow's power of acceleration and must be regarded as subject to the same condition as the widow's power of acceleration had been subjected to in Behari Lal v. Madho Lal Ahir Gayawal I.L.R. (1891) C. 236 was obliged to put aside as mere dicta the observations referred to above of their Lordships in Collector of Masulipatam v. Cavaly Vencata Narrainapah (1860) 8 M.I.A. 500 and Raj Lukhee Dabeu v. Gokool Chunder Chowdhry (1869) 13 M.I.A. 209 which there is no suggestion that the power of validation is derived from the power of acceleration and no suggestion that the power of validation can only be exercised by the reversioner in cases where the whole estate has been alienated. These observations which, in my opinion, clearly contemplate the validation by the reversioner of partial alienations are again taken by their Lordships in the recent case in Bajrangi Singh v. Manokarnika Baksh Singh (1907) 17 M.L.J. 605 as their starting point in dealing with the reversioner's power to validate alienations, and on the other hand the decision of their Lordships in Behari Lal v. Madho Lal Akir Gayawal I.L.R. (1891) C. 236 as to acceleration is Dot referred to as having any bearing on the validation of alienation by the reversioner. The point to which their Lordships attention appears to have been mainly directed is whether the consent of the remote as well as of the next reversioners is necessary to validate an alienation, and as throwing light on this question they consider whether the consent of the remote reversioners is necessary to support an acceleration in favour of the next reversioners as held in Allahabad, or is unnecessary as held in Calcutta and Madras. When citing the observations of Subramania Aiyar J. in Marudamuthu Nadan v. Srinivasa Pillai I.L.R. (1897) M. 128 to show that in Madras the consent of the remote reversioners is unnecessary to support an acceleration in favour of the next reversioners and that all that is necessary is that the whole estate should be surrendered by the widow, their Lordships omit the concluding words of the passage in which the learned Judge laid down that in case of an alienation with the consent of the next reversioners it was equally necessary that the whole estate should be alienated by the widow and that a partial alienation would be invalid. In the case before their Lordships the widow had made five successive alienations of portions of her husband's estate and had afterwards procured the consent of the next reversioners to those alienations. These five alienations comprised the whole of the estate, but their Lordships nowhere refer to this fact as having any bearing on the question of the validity of these alienationsOn the contrary, their Lordships appear to hold that these live successive deeds of partial alienation were respectively validated by the subsequent ratification of the next reversioners.

8. If, therefore, it were necessary to decide the point, I should, be disposed to hold that the effect of the recent decision is to overrule the Full Bench decision in Marudamuthu Nadan v. Srinivasa Pillai I.L.R. (1897) M. 128 and to lay down that even partial alienations by a widow are valid when made with the consent of the next reversioners. It is, however, enough for me to say that this and the previous decisions of the Privy Council appear to be opposed to the view that the reversionev's power to validate any alienation is derived from the widow's power to accelerate succession in his favour, and also opposed to the view that because the widow can accelerate the estate of the next reversioner by extinguishing her own, therefore any contrivance which the widow and the next reversioners may enter into to defeat remoter reversioners will be supported. Unless the latter proposition can be supported, there is, in my opinion, no ground for holding-that a renunciation such as to be found in Ex. IV by the next reversioners of their interest in the reversion coupled with a statement that the widow can leave the estate to any one she likes after her death, can have the effect of validating alienations of the estate subsequently made by the widow to third parties without the express consent and even apparently without the knowledge of the next reversioners. I would, therefore, answer the first of the two questions referred to at the beginning of this judgment in the negative. The remaining question appears to me to be concluded by the recent ruling of their Lordships. It had there been found that the next reversioners had received consideration for ratifying the alienations previously made by the widow, and had in fact been paid to execute the deeds of ratification. Under these circumstances, their Lordships held that the appellants who claimed through two of the next reversioners who executed the deeds of ratification must be held bound by the consent of their fathers. The fact that the fathers in that case gave their assent for consideration to alienations already effected while in the pre sent case the fathers gave their consent for consideration to future alienations does not appear to make any difference so fat-as the present point is concerned.

9. I am, therefore, of opinion for this reason that the question referred to us must be answered in the negative.

Sankaran Nair J.,

After citing the Order of Reference proceeded as follows:

10. Their Lordships of the Privy Council observe in Collector of Masulipatam v. Cavaly Vencata Narrainappa (1860) 8 M.I.A. 529: 'For religious or charitable proposes or those which are supposed to conduce to the spiritual welfare of her husband she has a larger power of disposition than that which she possesses for purely worldly purposes. To support an alienation for the last, she must show necessity. On the other hand it may be taken as established that an alienation by her which would not otherwise be legitimate, may become so if made with the consent of her husband's kindred.'

11. Thus a widow may dispose of her inheritance for necessity. The consent of the reversioners may be evidence in such cases of the necessity of the alienation. But the alienation itself does not derive its validity from such consent. Except as evidence the consent of the kindred is immaterial. Where the alienation is for a religious or charitable purpose, the alienee might rely upon the consent of the kindred to show that the alienation was fair and justified by Hindu law.

12. On the other hand, 'an alienation which would not otherwise be legitimate may become so, if made with the consent of the husband's kindred.' Or in other words, an alienation not for necessity or for religious or charitable purposes may be valid in certain cases if made with the consent of the husband's kindred. The consent by itself makes the alienation not otherwise legitimate valid. Is it sufficient then to secure the assent of the presumptive reversioner? The validity of an alienation by a widow with the consent of the next reversioner was considered by the Calcutta High Court in Nobo Kishore Sarma Roy v. Hari Nath Sarma Roy I.L.R. (1884) C. 1102.

13. The learned Chief Justice was of opinion that as a widow might, if she had so pleased, disclaim her estate when her husband died, there would seem nothing wrong or objectionable in her relinquishing her estate at any time in favour of her husband's heir after she had once accepted it. He also pointed out that if she died a natural death or if she were to become a byragi or otherwise die a civil death then they would succeed. And he further held: 'If it is once established as a matter of law that a widow may relinquish her estate in favour of her husband's heir for the time being, it seems impossible to prevent any alienation which the widow and the next heir may agree to make,' though it not unfrequently happened, according to the Chief Justice, that the widow arranged with the next heir of her husband for the time being, to alienate the estate to some third person for their mutual benefit. In the same case Mitter J. observed: 'If the widow is competent to relinquish her estate to the next male heir of her husband, it follows, as a logical consequence, that she can alienate it merely with his consent without any legal necessity.'

14. In the case in Behari Lal v. Madho Lal Ahir Gayawal I.L.R. (1891) C. 236 the Judicial Committee considered that 'it maybe accepted that according to Hindu Law, the widow can accelerate the estate of the heir by conveying absolutely and destroying her life estate.' They added, however, 'it was essentially necessary to withdraw her own life estate, so that the whole' estate should get vested at once in the grantee.'

15. This decision was by this, Court considered to have settled that a widow may effect a valid surrender of her entire estate to the next presumptive reversioner, Subrahmanya Aiyar, J. observing that, though there has been no course of decisions on the point in this Presidency as in Bengal, there is nothing in the doctrine itself to make it less suited to the community in Madras and that the Calcutta rulings have been in practice followed.

16. The Judges of the Allahabad High Court are of opinion that the rights of all the reversioners are upon the same legal footing inter se and no distinction can therefore be drawn between the rights of the nearer and more remote reversioners, and the decisions of the Calcutta High Court that a grant by a Hindu widow with the concurrence of the next reversioner creates a title which cannot be impeached on the death of the widow by the actual reversioner is opposed to the Hindu law and the decisions of the Privy Council - see Ramphal Rai v. Tula Kuari I.L.R. (1883) A. 116. In the case of Bajrangi Singh v. Manokarnika Baksh Singh 12 C.W.N. 74 their Lordships of the Privy Council, after referring to and apparently approving the opinions of Garth C.J., Mitter J. and Subrakmanya A iyar J., and referring also to a decision in Vinayak v. Govtnd I.L.R. (1900) B. 129 and Ramphal Rai v. Tala Kuari I.L.R. (1883) A. 116, observe: 'The High Court of Allahabad indeed does not recognise the validity of the surrenders in favour of alienations with the consent of presumptive reversioners so as to defeat the title of the actual reversioner at the time of the widow's death. But this restriction is at variance with the principle itself and is not in accordance with the practice in other parts of India in which the Mitakshara law prevails.

17. It must now be taken, therefore, to be settled law that surrender by a widow in favour of presumptive reversioners of her whole life estate and alienations with their consent are valid. Their Lordships also decide that when a number of persons constitute the next reversion, the consent of all of them must ordinarily be obtained.

18. This was scarcely disputed before us, but it was argued that the widow cannot make a partial alienation and that the alienation in question is therefore invalid. With reference to the validity of an alienation of a portion of the widow's estate, there is a conflict of opinion in Calcutta. Such an alienation was held to be invalid in Radha Shyam Sircar v, Joy Ram Senapati I.L.R. (1890) C. 896, while in a later case in Hem Chunder Sanyal v. Sarnamoyi Debi I.L.R. (1894) C. 355 it was decided that a widow may alienate with the consent of the next reversioner the whole or any portion of the estate. This Court, differing from the later Calcutta decision, held that the widow must surrender or alienate the whole inheritance Marudamuthu Nadan v. Srinivasa Pillai I.L.R. (1897) M. 128. Looking to the reason of the rule, this appears to me to be the sounder view. The consent of the next presumptive reversioner is effective to validate an alienation by the widow, because, if the widow relinquishes her estate to him, it would be open to him to transfer the estate to the alienee. And as the question is, therefore, one of conveyance only, there is no reason why a transfer by the widow herself to the alienee with such reversioner's consent should not be held valid instead of driving the parties to adopt a circuitous method.

19. But for this purpose it is necessary the widow's estate must be entirely extinguished as a reversioner cannot succeed to a portion of the husband's estate only. Where the facts do not raise that presumption of extinguishment the rule does not apply. I do think the Privy Council intended to decide otherwise in Bajranigi Singh v. Manokarnika Bakhsh Singh 12 C.W.N. 74. They cite apparently with approval the decision in Marudamuthu v. Srinivasa Pillai I.L.R. 21 M. 128 and they do not refer to their own earlier decision in Behari Lal v. Madho Lal Ahir Gayawal I.L.R. (1891) C. 236 in which they held 'it was essentially necessary to withdraw her own life estate so that the whole estate should get vested at once in the grantee.' Though in the casein Bajrangi Singh v. Manokarnika Baksh Singh 12 C.W.N. 74 the alienations were of portions of the estate, the consent was only given after all the alienations, and the validity was rested not only on the consent of the immediate reversioner but also on other grounds to be presently referred to. But in the case before us an arrangement appears to have been tome to in 1850 between the two widows and the whole body of persons constituting the next reversion, the effect of which was that the reversioners should obtain a portion of the estate while the widows should take the rest absolutely. I think Exhibit IV must be treated as having the same effect as a transfer by the widow to the reversioners of her entire estate and a second transfer by the reversioners of a portion of the property so conveyed to the widows. It is not, therefore, an alienation of a portion of the widow's estate, leaving the rest in the possession of the widow to be inherited by the actual reversioner at the time of the widow's death. There was, on the other hand, an entire destruction of the widow's estate. The property taken by the reversioners was to be enjoyed by them as if they had inherited it on the widow's death. What passed by the agreement to the widows was to be enjoyed by them not as widows' estate, subject to all its restrictions, but as their own absolutely with power to alienate or devise. The widow's estate was completely extinguished, nor do I see anything unreasonable or opposed to any rule of Hindu law in this arrangement. The reason for restraining a widow from absolutely disposing of the estate is that the estate should be kept in the family from which it came to her. And if they are willing to accept in lieu of what would ultimately come to them, another estate in presenti which with its profits might in the case of a young widow equal or exceed in value at the time of her death, the property they might then get - for it must be remembered that she has absolute power over the income and a discretion to alienate the property for certain purposes - there seems to be nothing in principle to prevent them from doing so. When the principle is admitted it is not for the Courts to determine whether the reversioners acted wisely or not in consenting to any particular transaction; and if the result of such a transaction is to give a woman the absolute estate as opposed to a widow's estate, I see no reason for setting it aside. Further, it must be remembered that the rule is applicable not only to a widow, but to other females who inherit property from males. Yet those female heirs of a different Gotra, or who upon their marriage become of a different Gotra from the last male owner as a daughter, sister, or niece, take absolutely in the Bombay Presidency. In this Presidency also property inherited by a maiden daughter is her absolute estate. It is, therefore, difficult to say that it is against Hindu law to allow a woman inheriting property from a male to possess anything other than what is called a woman's estate therein. In Nobo Kishore Sarma Roy v. Hari Nath Sarma Roy I.L.R. (1884) C. 1102 the learned Chief Justice in recognising their validity referred to the practice of alienations by the widows in collusion with the next reversioneis for their mutual benefit and as pointed out by Mr. Justice Shepard in Marudatnuthu Nadan v. Srinivasa Pillai I.L.R. (1897) C. 236.

20. The Privy Council had probably this case Behari Lal v. Madho Lal Ahir Gayawal I.L.R. (1891) C. 236, in view in upholding the surrender of a widow's estate. Any other conclusion would only compel the widow to enter into collusive transactions with the next reversioner for their mutual benefit. For this reason, I am of opinion that the alienations made by the widows are valid in the case before us, and the plaintiffs cannot maintain the suit. If the alienation cannot be supported on this ground the consent of the kindred will justify it only 'if there should be such a concurrence of the members of the family as suffices to raise a presumption that the transaction was a fair one and one justified by Hindu law' - Raj Lukhee Dabea v. Gokool Chunder Chozvdhry (1867) 13 M.I.A. 209. 'In order to raise such a presumption the consent of the deceased's kindred to his widow's or daughter's alienation must be shown to be given with a knowledge of the effect of what they were doing and an intelligent intention to consent to such effect' - Sham Sunder Lal v. Achhan Kumvar I.L.R. (1898) A. 71. The Bombay High Court uphold the validity of the widow's alienations on this ground. They were not inclined to accept the theory of the extinction of the widow's interest, possibly for the reason that in Bombay the doctrine that the estate of a woman succeeding to a male is only an interposition between the estates of two males is not accepted in its entirety as in Bengal and Madras. In considering the nature of the consent necessary to validate an adoption by a widow to her deceased husband, the Privy Council observed in Bajrangi Singh v. Manokarnika Baksh Singh 12 C.W.N. 74 'that ordinarily the consent of the whole body of persons constituting the next reversion should be obtained, though there may be cases in which special circumstances may render the strict enforcement of this rule impossible.' This is more fully explained by Bhashyam Aiyangar J. who observed: 'The presumptive reversionary heir or heirs are the nearest of kin to the deceased husband and as such the natural advisers of the widow, and if his or their assent be obtained and the same be given bona fide and not from any corrupt motive, that would be sufficient authority on which she could act, and it would not be necessary that she should seek the assent of remoter reversionary heirs. The two cases reported in Parasara Bhattar v. Ranga Raju Bhattar I.L.R. (1880) M. 202 and Venkatakrishnamma v. Annapurnamma I.L.R. (1900) M. 416, proceed on that view though it does not appear from the report whether or not there were remoter reversionary heirs in existence. If the presumptive reversionary heir or heirs withhold his or their assent from improper motives, the widow may validly act upon the assent given bona fide by remoter reversionary heirs.' - Subramanyam v. Venkamma I.L.R. (1909) M. 635. I think this is the correct view. If, therefore, such consent is efficacious for the purpose of adoption which would entirely defeat the claim, there is no reason why it should not be held to be valid to validate alienations as well. In the case of Vinayak v. Govind I.L.R. (1900) B. 129 the consent of the immediate reversioner was not obtained, but the transaction there was of a nature that her assent could not be regarded as raising any presumption that the alienation was a justifiable one, and therefore the assent of the next and the only other reversioner was considered sufficient. In the case before us, the presumptive reversioners have consented. But there has been no assent to the particular alienations under which the defendants claim which were made by the widows only years after. Judged by the test in Sham Shundar Lal v. Achhan Kunwar I.L.R. (1898) A. 71 80, the assent is not, therefore, sufficient to validate the alienations.

21. There is also another ground on which the widow's alienations are supported when made with the reversioners' consent. In the case before the Privy Council the actual reversioners at the time of the widow's death were the descendants of those who gave their consent for consideration to the alienations impeached, and their Lordships held that 'the appellants who claim through Matadin, Singh and Rajnath Singh must be held bound by the consent of their fathers.' As observed by their Lordships in Bahadur Singh v. Mohar Singh I.L.R. (1901) A. 107 those who gave their consent were but expectant heirs with a spes successionis. The actual reversioner who contested the alienation claimed in his own right as the heir of the last male owner and he was not bound by a contract made by every person through whom he traced his descent. The contract referred to by their Lordships is not one of which the actual reversioner or his family had the benefit. If he or his family enjoyed the benefit, he could not repudiate the transaction. In Nobo Kishsre Sarma Roy v. Hari Nath Sarma Roy I.L.R. (1884) C. 1109, the learned Chief Justice stated that the consent of the reversioner 'would, of course, bind the person so consenting to it and all persons so claiming under him.' It is not clear whether the consent was given for consideration, but that was probably the case In Subrahmanyam v. Venkamma I.L.R. (1903) M. 634 Bhashyam Aiyangar J. observed with reference to the reversioner's assent to an adoption by a widow that 'in an undivided family, no doubt, the senior in age having the status of managing member of the family, it may be that his assent alone, if given bona fide, will be sufficient and equivalent to the assent of the family.' The question was fully discussed by Mr. Justice Remade in Vinayak v. Govind I.L.R. (1900) B. 141, and he took the view that the reversioner was bound by his father's assent if given for consideration. If the actual claimant has enjoyed the benefit of the possession by his family of the property which was given to his father by the widow as the price of his assent to the alienation by her, I fail to see how he can participate in that benefit and at the same time impeach the transaction. Where there was an agreement without any consideration, the actual reversioner may not be bound as held in Bahadur Singh v. Mehar Singh I.L.R. (1901) A. 107. Mr. Seshagiri Aiyar indeed broadly contended, in a case raising the same question which was argued after this case, that so far as Madras is concerned, it must now be taken that the immediate reversioner represents the others - Chiruvolu Punnamma v. Chiruvolu Perrazu I.L.R. (1905) M. 390 - but, however that may be, I entertain no doubt that the father represents the family in a transaction which he entered into for the benefit of the family, and that that transaction cannot be impeached by any member of the family when the members had the benefit of the transaction. In the case before us the plaintiff's father had received a portion of the property as a consideration - see Ex. IV.

22. For the reasons above given, I am of opinion that the suit cannot be maintained. I would, therefore, answer the question referred to us in the negative.


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