1. This Second Appeal arises out of a suit by one of two Hindu widows for partition of her husband's property and possession of a share. The 1st defendant is the co-widow and she sold a part of the property under Ex. IV to the 2nd defendant who married the daughter of a deceased co-wife of plaintiff and 1st defendant, and another part to the 3rd defendant under Ex. VI. The 4th defendant is the undivided brother of the 3rd defendant. The 1st and 2nd defendants lived in the same house. The District Munsif decreed the suit. On appeal, the Subordinate Judge remanded the suit for fresh trial. On remand, the District Munsif again passed a decree in favour of the plaintiff. In the interval the 1st defendant died. There was again an appeal to the Subordinate Judge. The plaintiff prayed for an amendment of the plaint and prayed for possession of the entire estate as the result of the 1st defendant's death. The amendment was allowed. The Subordinate Judge granted a decree to the plaintiff for possession of the entire property. The defendants 2 to 4 appeal.
2. The portion of the case relating to the alienations in favour of defendants 3 and 4 has not been seriously pressed and the other portion relating to the 2nd defendant has been fully argued.
3. The Subordinate Judge found that out of the Rs. 600 for which Ex. IV was executed, Rs. 516 was utilised to discharge a decree obtained by D. W. 6 against the husband (Ex. V). If the sale was effected by both the widows, it would have been for purposes beneficial to the estate and therefore binding on the daughter and other reversioners. The appellant's vakil contended, relying on Kalliyanasundaram Pillai v. Subba Moopanar (1903) 14 MLJ 139. that the sale ought to be upheld against the plaintiff. In Sri Gajapathi Radhamani v. Maharani Sri Pusapati Alakajeswari ILR (1892) M 1 and Vadali Mamidigadu v. Kotipalli Ramayya ILR (1902) M 334 it was held that one of two co-widows cannot alienate the share of the other even for purposes beneficial to the estate without the consent of the other. The decision in Kattiyanasundaram Pillai v. Subba Moopanar (1903) 14 MLJ 139. decided by Benson and Bashyam Aiyangar, JJ. the same Judges who decided Vadali Mamidigadu v. Kotipalli Ramayya ILR (1902) M 334. is apparently inconsistent with this, but, on a careful examination of the judgment, it seems to me that the Judges were of opinion on its facts, that the senior widow was recognised as manager or agent of the other. Such an inference can be made only in a case where there is no known hostility between the widows and is not possible when the widows are hostile to each other as in this case. We therefore agree with the Courts below in holding that Ex. IV is not binding on the plaintiff's half share.
4. The next point that has been argued in the case is that Ex. IV is at least binding on the 1st defendant's half share. The appellants rely on the unreported judgment of this Court in A.S. No. 166 of 1922. The position of two co-widows or two daughters has been the subject of consideration in several decisions of the various High Courts and the Privy Council. In Rindamma v. Venkataramappa (1866) 3 MHCR 268. Bittleston, C.J and Ellis, J. observed: 'Upon the death of the husband the widows became jointly entitled; they might agree to divide the estate and hold separately distinct shares of it during their joint lives. We are not prepared to say they might not enter into such an agreement as would bind each to an absolute surrender of all interest in the other's share, so as to let in the next heirs of the husband immediately upon the death of that other.... One obtained a decree against the other for a division.... It dealt only with the joint estate, and the joint estate ceased on the death of Krishnamma. Then the whole estate of the husband vested in the surviving widow ; and neither Krishnam-ma's claim for division nor the decree for division could touch that.' In another case Jijoyiamba Bayi Saiba v. Kamakshi Bayi Saiba (1868) 3 MHCR 424. Scotland, C.J. and Ellis, J., observe : ' Now, the right as contended for on behalf of the appellants, namely, to the absolute partition of the joint estate, giving to each widow a share in severalty, we are of opinion is not maintainable. In support of it reliance was placed on the language of the foregoing texts .... The division there spoken of must be understood to refer only to the distributive enjoyment of the benefits of the joint property; and no doubt, two or more widows might by an agreement inter se not prejudicial to the rights of the next heir in succession provide for such enjoyment by an apportionment of the property. A partition converting the joint estate into an estate in severalty whenever either of the widows choose to insist upon it, is quite incompatible with the right of survivorship to the whole property arising out of the joint estate for life and the surviving widow or widows being the nearest heir or heirs of the husband. On the other hand, it has been recently decided by this Court in the case of Rindamma v. Venkataramappa (1866) 3 MHCR 268. that a division obtained under a decree was ineffectual against the claims of the survivor of two widows to the divided moiety.' They then consider the question whether the relief of separate possession of a portion of the inheritance may not be granted, when it appears to be the only proper and effectual mode of Securing the enjoyment of her distinct right to an equal share of the benefits of the estate. This case has been approved by the Privy Council in Gajapathi Nilamani v. Gajapathi Radhamani ILR (1877) M 290 their Lordships say: ' It was held there that there was no objection to a transaction which was merely an arrangement for separate possession and enjoyment, leaving the title to each share unaffected ; although the widows nevertheless remained coparceners with a right of survivorship with them, and there could he no alienation by one without the consent of the other ... Their Lordships, guarding themselves against being supposed to affirm by this order that either widow has power to dispose of the one-fourth of the estate allotted to her, or that they have any right to a partition in the proper sense of the term, are not disposed to vary. ' In Kaihaperumal v. Venkabai ILR (1880) M 194 it was observed : ' But by Hindu Law two widows of one and the same husband take a joint interest in, one undivided estate, and it has been held that, although the widows may arrange for the enjoyment of the estate in separate portions, there can be no compulsory partition converting the joint estate into an estate in severalty. ' In Ariyaputri v. Alamelu ILR (1888) M 304. we have : 'It is true that when there are more widows than one, they take together as a class. It is also true that partition is permitted between them not as in the case of male co-parceners for the purpose of converting a joint estate into two or more separate estates to be held in severalty, but for the limited purpose of securing to each widow a distributive enjoyment of the benefit of joint property. In this view partition between them certainly creates no separate property in the portions placed in their separate possession and no disposing power so as to defeat the right of survivorship vesting in the co-widow, but as between them, each widow is entitled to take the income of the portion placed in her possession during her life.' In Sri Gajapathi Radhamani v. Maharani Sri Pusapati Alakajeswari ILR (1892) M 1. which arose out of the facts of Gajapathi Nilamani v. Gajapathi Radhamani ILR (1877) M 290. their Lordships of the Privy Council observed at page 10 : 'It may be assumed for the present judgment, without deciding the point, that there was a sufficient necessity for borrowing money to pay the Government revenue, or even for the payment of Nilamani's debt, but that necessity did not render a mortgage by one widow binding upon the joint estate which had descended from their deceased husband, so as to affect the interest of the surviving widow. ' One may add ' or that of the reversioners ' though this was not necessary for the case see Jijoyiamba Bayi Saiba v. Kamakshi Bayi Saiba (1868) 3 MHCR 424. already quoted. It is well to remember that, in that case, part of the money borrowed by the alienating widow was applied for paying Government revenue, and still no decree even for this amount was given. The case in Kailash Chandra Chuckcr-butty v. Kashi Chandra Chuckerbutty ILR (1897) C 339. is a case of daughters but, as observed in Ramakkal v. Ramaszvami Naicken ILR (1899) M 522 to be next referred to, the case is analogous to that of widows. Nor does the fact that the Calcutta case was under the Dayabhaga Law make any difference as observed in Ammani Animal v. Periaswami Udayan : AIR1924Mad75 by Oldfield, J. It was there observed: 'That being so, the estate that devolved on the daughters of Radhakrishna would not determine until after the death of Gaganeswari and until that event happens, the arrangement come to between the daughters, which was assented to by all the daughters, should in our opinion remain in operation. This would not in any way interfere with the rights of the reversionary heirs for the simple reason that those rights do not come into existence until after the death of Gaganeswari.... As we have already indicated, its effect was to make the properties allotted to each daughter remain her property capable of being alienated by her, and if not alienated, capable of passing on her death to the heirs of her separate property as distinguished from the property inherited by her from her father. ' In Ramakkal v. Ramaswami Naicken ILR (1899) M 522 it was held that one of two widows can alienate any estate which came to her as such for her life and can therefore enter into such a deed as will preclude her from recovering during her life property which she has alienated, to the full extent of such alienation, provided it does not extend beyond her life interest. In Kanni Ammal v. Ammakannu Ammal ILR (1899) M 504 it was held that, while one of two daughters cannot by any alienation alter the character of the daughter's estate so far as concerns the right of survivorship or the rights of reversioners, she may alienate her interest in the property. The parties in that case were ably represented as two of the vakils for the appellant and two vakils for the respondent have since become Judges of this Court and a full report of the argument is available and is instructive. It shows that there may be two kinds of partition between two widows or other co-heiresses : (1) so as to last during their joint lives only and if one dies the other gets it by survivorship; and (2) so as to last until the death of all. If one dies first, the other does not get her share by survivorship and the share will continue to be enjoyed by the alienee, if alienated, or will go to the heirs of her stridhanam property, if unalienated. In either case the partition is an arrangement for their own convenience and cannot affect reversioners.
5. In Chengappa v. Buradagunta ILR (1920) M 855. and Ammani Ammal v. Periaswami Udayan : AIR1924Mad75 . (in which one of us, Venkatasubba, Rao, J., took a part) the remark in Rindamma v. Venkataramappa (1866) 3 MHCR 268. quoted by me that the arrangement may be such that, after partition by the co-widows, the death of one may let in the reversioner's right, was disapproved, i.e., the reversioner's interest does not begin until all the widows die (unless there is a surrender by all).
6. The decisions establish that (1) the estate of co-widows or other co-heiresses in Hindu Law is a joint estate but it is unlike other joint estates. It is indivisible see Kathaperumal v. Venkabai ILR (1880) M 194.. Strictly it can never be divided so as to create separate estates such that each sharer is the owner of her share and at her death the reversioner's estate falls in. Such a division is impossible in law. (2) Such partition as is permissible is merely for the convenience of their enjoyment by the sharers ; and may be of two kinds : (i) so as to last during the lifetime of both the widows; and (ii) so as to bind them until the death of all of them. In the latter case if one of the widows dies before the other without alienating the property, it passes to the heirs of her private property and not to the other co-widow or their reversioners, the dictum to the contrary in Rindamma v. Venkataramappa (1866) 3 MHCR 268. not being good law Ammani Ammal v. Periyaswami Udayan : AIR1924Mad75 and Chengappa v. Buradagunta ILR (1920) M 855. (3) By the very nature of the arrangement, there can be no survivorship if the partition is of the second kind. But if it is of the first kind, it cannot affect the right of survivorship of the other. (4) One of the co-widows can alienate her share which may be defined or undefined according as there is a partition or not. If the alienor dies before the co-widow, the alienation ceases to be operative if there is no partition, or, if the partition is of the first kind, the property goes to the co-widow by survivorship. But if the partition is of the second kind, the property continues to be enjoyed by the alienee Ramakkal v. Ramaswami Naicken ILR (1899) M 522 . Kanni Ammal v. Ammakannu Ammal ILR (1899) M 504 and Ammani Ammal v. Penaswami Udayan : AIR1924Mad75 . until the other co-widow dies. The obiter dictum to the contrary in Durga Dal v. Gita ILR (1911) A 443. has not been followed here. (5) Except for the limited purposes mentioned above, i.e., during the lifetime of the alienee in a partition of the first kind or during the lifetime of/all the co-widows in a partition of the second kind, there can be no alienation by a widow of her interest Gajapathi Nilamani v. Gajapathi Radhamani ILR (1877) M 390 and Sri Gajapathi Radhamani v. Maharani Sri Pusapati Alakajeswari ILR (1892) M 1 and whether there is necessity or not, an alienation by one co-widow cannot bind the reversioner Jijoyiamba Bayi Saiba v. Kamakshi Bayi Saiba (1868) 3 MHCR 424. Kailash Chandra Chuckerbutty v. Kashi Chandra Chuckerbutty ILR (1897) C 339. Ramakkal v. Ramaswami Naicken Kanni Ammal v. Ammakannu Ammal ILR (1899) M 504 and Durga Dat v. Gita ILR (1911) A 443. (6) If an alienation for necessity is to bind the reversioners, all the co-widows must join in it.
7. It follows that I cannot agree with the decision in A.S. No. 166 of 1922. In that case the last male owner left a widow Gangalakshmi and two daughters Rattamma and Narasamma. Rattamma effected an alienation of the property along with her sons. The suit was brought by four plaintiffs-plaintiffs 1 to 3 being parties to the alienation, but the 4th plaintiff was not a party to it. Their Lordships found that there was necessity and held that the alienation was binding on the reversioners. So far as plaintiffs 1 to 3 were concerned, the decision might well have rested on the ground that they were parties to the alienation and could not question it. Fateh Singh v. Thakur Rukmini Ramanji Maharaj ILR (1923) A 339 and Basappa v. Fakirappa ILR (1921) B 292. But as to the 4th plaintiff, we are constrained to differ from the judgment and to dissent from its reasoning. The decisions in Sri Gajapathi Radhamani v. Maharani Pusapati Alakajeswari ILR (1892) M 1 Ramakkal v. Ramaswami Naicken ILR (1899) M 522 and Durga Dat v. Gita ILR (1911) A 443. were referred to and then it was observed : ' The facts in this case are different from those in the cases quoted. Gangalakshmi gave away or surrendered her life-interest in some property in favour of Rattamma and it is stated that by another deed she surrendered her right to some other property in favour of Narasamma. After that both Narasamma and Rattamma began to deal with their properties as their own. ' We are not able to see how the surrender of the mother in favour of her daughters and the conduct of the daughters can have any effect on the rights of the reversioners. It was conceded in the judgment that the alienation cannot affect the rights of Narasamma by survivorship; but it was observed that this has nothing to do with the reversioners who do not claim through Narasamma. Here again, I am compelled to dissent with all deference. When the surviving co-widow gets the property by survivorship after the death of the alienating widow, she represents the estate and the reversioner though he cannot be said to claim through her so as to be bound by her acts still claims through her in respect of matters where she represents the estate. But, apart from this, the cases cited by me also show that a single widow has no power of alienation except for her own convenience, i.e., so as to affect the other widows (except in the partition of the second kind) or the reversioners. It seems to me that the learned Judges who decided A.S. No. 166 of 1922 did not give due weight, while referring to Ramakkal v. Ramaswami Naicken ILR (1899) M 522 to the qualification referred to at page 524, i.e., the words ' provided it does not extend beyond her life interest' nor to the words ' which will prejudice the right of survivorship of her co-widow or the rights of the reversioners after the death of the survivor of the widows ' in Durga Dat v. Gita ILR (1911) A 443. which was actually quoted by them. The cases in Gajapathi Nilamani v. Gajapathi Rahamani (1877) ILR 1 M 290 (PC). Jejoyiamba Bayi Saiba v. Kamakshi Bayi Saiba (1868) 3 MHCR 424. Kailash Chandra Chuckerbutty v. Kashi Chandra Chuckerbutty ILR (1897) C 339 and Kanni Ammal v. Ammakannu Ammal ILR (1899) M 504. were not cited at all. All the authorities show that, strictly there is no separate estate of any kind in any one of the widows, a right of partition for the convenient enjoyment being all that is permitted. This contention of the appellants must therefore be disallowed.
8. The third point argued by the appellant is that he is entitled to the amount of Rs. 516 which was utilised for discharging the husband's decree-debt. Apart from the difficulty that the documents (Exs. IV-(a) and V) show that the debt was discharged by the 1st defendant and not by the 2nd defendant and assuming it is open to us to construe them as if the payment to the creditor was made by the 2nd defendant, we do not think he is entitled to any relief. The decree was not a mortgage decree. If the debt discharged was a charged debt, the plaintiff may be entitled to the relief he claims by subrogation. But when there is no charge and seeing that any right by contribution against the plaintiff's half share can be operative during the lifetime of the 1st defendant and not after the death of the 1st defendant so as to affect plaintiff's right by survivorship, there can be no subrogation (vide Sheldon on Subrogation, page 4, Section 3). Section 69 of the Contract Act cannot help the 2nd defendant for he was not interested in the payment but his vendor, nor can Section 70, as he did not make the payment for or on behalf of the plaintiff. This contention must also be negatived. The plaintiff is entitled to mesne profits in respect of 1st defendant's half share only from the death of the 1st defendant. The decree requires no modification as no mesne profits have been awarded for the additional half share.
9. The fourth point argued by the appellant is that the amendment of the plaint so as to enable the plaintiff to claim the whole of the property including the 1st defendant's share ought not to be allowed. He relies on Lakshmi Ammal v. Alamelu Ammal : AIR1924Mad309 . If the decision is regarded merely as one on the question of discretion on the particular facts of the case and the stage at which the amendment was asked, we have nothing to say against it. But if it meant to lay down that a cause of action that arose after the filing of the suit ought never to be taken notice of, we are constrained to dissent from it. The events that happened even after the filing of the suit--including those that add to the title of the plaintiff-may be taken notice of has been established by several cases (vide Ram Ratart Sahu v. Mohunt Sahu (1907) 6 CLJ 74. Rai Charan v. Biswa Nath (1914) 20 CLJ 107. Sri Rajah Setrucharlu Ramachandra Raju v. Maharajah of Jeypore (1916) MWN 355. reversed by the Privy Council on another point, Subbaraya Chetty v. Nachiar Ammal (1917) 7 LW 403. Doraiswami Pillai v. Chinnia Goundan (1917) 34 MLJ 258 and Pendekkallu Thimmayya v. Pendekkallu Siddappa : AIR1925Mad63 . Specially in partition suits it will be very inconvenient if the general principle of confining the suit to the cause of action in the plaint is rigidly adhered to as can be seen from a simple case where A filed a suit against his two brothers for partition and seeks to recover a third share, and during the pendency one of the brothers dies, to say that the plaintiff cannot be awarded half instead of a third and that the decree should be limited to a one-third, he being compelled to file another suit for one-sixth is to be technical with a vengeance vide Jenkins, C. J., in Rustomji v. Sheth Purshotamdas ILR (1901) B 606. No doubt the discretion ought not to be exercised when there is a change of jurisdiction, when there is a great delay in making the application and may not be exercised if a fresh enquiry on other facts is necessary. But when these features do not exist, in our opinion, the amendment ought, as a general rule, to he allowed to avoid multiplicity of proceedings. In all such cases, the only question of consequence is one of Court fees, a matter with which the parties are not concerned and the opposite party is not deprived of any defence which is obviously open to him (see also Pendekkallu Thimmayya v. Pendekkallu Siddappa : AIR1925Mad63 . This contention must be disallowed. The appeal fails on the merits. The defendants 2 to 4 say that they are not in possession of propertes other than those alienated to them and in respect of which a full decree is not passed against them.
10. In the Lower Court the decree in respect of all the properties was passed against all the defendants including defendants 2 to 4. The plaintiff is entitled to be put in possession of all the properties but the decree, in respect of the properties other than those alienated to defendants 2 to 4, should not have been passed against the defendants 2, 3 and 4. For this reason the parties will bear their own costs in Second Appeal.