Alfred Henry Lionel Leach, C.J.
1. This appeal arises out of a suit filed in the Court of the Subordinate Judge of Rajahmundry by the appellant for the partition of the estate of his uncle Subbarayudu. He claimed that he and the first and second respondents (the first and second defendants) were entitled to the estate as reversioners. There were 65 defendants, the other defendants being sued as alienees.
2. Subbarayudu died about 60 years ago leaving a widow, Suramma, but no children. Suramma died on the 3rd July, 1928. The judgment of the lower Court contains a geneological tree showing the relationship between the appellant, the first and second respondents and Subbarayudu, and it will be convenient to reproduce it here.
Chembrolu Venkatabrahmam|________________________________________________| |Subbarayadu Ramaswami| |Subbarayaduj |(Wife) Suramma. ____________________| |Annappa Sastri Sitaramayya| || || Ramamurthy | (Plaintiff).___________|_____| |Bhimasankara Rao Venkataratnam(1st Defendant). (2nd Defendant).
3. On the 6th April, 1904, Annappa Sastri and Sitaramayya entered into an arrangement with Suramma under which they were to divide between them the estate as it then existed, the widow taking one half and Annappa Sastri and Sitaramayya taking the other half absolutely. The arrangement was embodied in two deeds which were duly executed and registered. At the same time Annappa Sastri and Sitaramayya agreed to divide equally the properties which fell to their share under this arrangement. Before her death the widow disposed of the properties which she had obtained as the result of the settlement of the dispute and Annappa Sastri and Sitaramayya did the same. The appellant seeks to set aside all the alienations. The learned Subordinate Judge considered that the sons of Annappa Sastri and Sitaramayya were estopped from attacking the validity of the deeds under which their fathers had acquired property from which they had also benefited. He accordingly dismissed the suit without going into the merits.
4. We do not share the opinion of the learned Subordinate Judge that the doctrine of estoppel applies in this case. In holding that it did apply the learned Subordinate Judge relied on the decision of the Privy Council in Bajrangi Singh v. Manokarnika Bakhsh Singh (1907) 17 M.L.J. 605 : L.R. 35 IndAp 1 : I.L.R. 30 All. 1 (P.C.) and on the decision of a Full Bench of this Court in Rangappa Naik v. Kamti Naik : (1908)18MLJ309 which was based on the judgment in the former case. But these cases require to be read in the light of later cases and this was not appreciated by the lower Court. In Bajrangi Singh v. Manokarnika Bakhsh Singh (1907) 17 M.L.J. 605 : L.R. 35 IndAp 1 : I.L.R. 30 All. 1 (P.C.), the Judicial Committee had to consider the conflicting opinions expressed by the Allahabad and the Calcutta High Courts on the question of the effect of the consent of presumptive reversioners to an alienation by a Hindu widow. The Allahabad opinion was that even if all the presumptive reversioners had consented to the widow alienating the property the actual reversioners could, when the succession opened, sue to set aside the alienation and have it set aside unless it were shown that the alienation had taken place as the result of necessity. Whatever consent was given it would not obviate the requirement imposed by Hindu Law of proving that there was need for the alienation. The opinion of the Calcutta High Court was that where the presumptive reversioners had consented to an alienation a presumption arose that the alienation was the result of necessity. The presumption could be rebutted, but unless it were rebutted the alienation would bind the actual reversioners. Their Lordships decided that the better opinion was that of the Calcutta High Court, but as they concluded their judgment with the words:
The appellants who claim through Matadin Singh and Baijnath Singh must be held bound by the consent of their fathers.
5. It was also thought that their Lordships intended to hold that a father as a presumptive reversioner could bind his son. This was the reading of the judgment by White, C.J., and Wallis and Sankaran Nair, JJ., who composed the Full Bench which decided Rangappa Naik v. Kamti Naik : (1908)18MLJ309 . The learned Chief Justice in the course of his judgment did point out that there might be a difficulty in reconciling this decision of the Privy Council with the decision of their Lordships in Bahadur Singh v. Mohar Singh (1901) 12 M.L.J. 56 : L.R. 29 IndAp 1 : I.L.R. 24 All. 94 (P.C.) but in view of the words used in the concluding portion of the judgment in Bajrangi Singh v. Manokarnika Bakhsh Singh (1907) 17 M.L.J. 605 : L.R. 35 IndAp 1 : I.L.R. 30 All. 1 (P.C.) the Full Bench felt constrained to hold that where a widow and her nearest reversioners had executed a document by which such reversioners, bona fide, and, in consideration of the widow conveying to them a portion of the property inherited by her from her husband, gave up all their rights to the remaining properties and consented to the widow dealing with such properties as she chose, the actual reversioners after the widow's death were bound by such consent and were estopped from questioning the alienations made by the widow after the agreement had been entered into.
6. The same difficulty presented itself to the Calcutta High Court in Debt Prosad Chowdhury v. Golap Bhagat I.L.R. (1913) Cal. 721 but as the Privy Council had said in Bajrangi Singh v. Manokarnika Bakhsh Singh (1907) 17 M.L.J. 605 : L.R. 35 IndAp 1 : I.L.R. 30 All. 1 (P.C.) that they would be unwilling to extend the widow's power of alienation beyond its present limit it was thought that their Lordships had not intended to lay down any new doctrine. After a discussion of all the authorities, Jenkins, C.J., observed:
The result then of the authorities binding on us appears to me to be this : To uphold an alienation by a widow of her deceased husband's estate, where she is his heir, it should be shown (1) that there was legal necessity, or (2) that the alienee, after reasonable inquiry as to the necessity, acted honestly in the belief that it existed, or (3) that there was such consent of the next heirs as would raise a presumption either of the existence of necessity or of reasonable inquiry and honest belief as to its existence, or (4) that there was a consent of the next heirs to an alienation capable of being supported by reference to the theory of the relinquishment of the widow's entire interest and the consequent acceleration of the interest of the consenting heirs. Where any one of the first three positions is established, the alienation may be of the whole or any part of the husband's estate, but where the fourth alone is proved, then the alienation must be of the whole.
7. The Calcutta High Court accordingly answered the reference rnade to it in this sense.
8. Their Lordships of the Privy Council were called upon to reconsider the question in Rangaswami Gounden v. Nachiappa Gounden (1918) 36 M.L.J. 493 : L.R. 46 IndAp 72 : I.L.R. 42 Mad. 523 (P.C.) and explained their decision in Bajrangi Singh v. Manokarnika Bakhsh Singh (1907) 17 M.L.J. 605 : L.R. 35 IndAp 1 : I.L.R. 30 All. 1 (P.C.). They observed that while it was true that the concluding words of the judgment in Bajrangi Singh v. Manokarnika Bakhsh Singh (1907) 17 M.L.J. 605 : L.R. 35 IndAp 1 : I.L.R. 30 All. 1 (P.C.) as to the sons being bound by the consent of the fathers could be read as indicating that consent operated proprio vigore, two remarks fell to be made. First the idea of an eventual reversioner claiming through any one who went before him was opposed both to principle and authority. It was opposed to principle because there is no vested right until death. It was opposed to the authority of Bahadur Singh v. Mohar Singh (1901) 12 M.L.J. 56 : L.R. 29 IndAp 1 : I.L.R. 24 All. 94 (P.C.). Secondly, there was no hint in the judgment in Bajrangi Singh v. Manokarnika Bakhsh Singh (1907) 17 M.L.J. 605 : L.R. 35 IndAp 1 : I.L.R. 30 All. 1 (P.C.) that their Lordships proposed to lay down a new doctrine which would render quite immaterial most of the cases quoted. They here added:
It seems therefore much safer to conclude that the judgment was only meant to settle the point at issue, namely, the comparative merits of the Allahabad and the Calcutta Rules, leaving the operation of consent to stand on the perfectly logical grounds of the authorities quoted, than to hold that a new and illogical extension of the law was introduced, and to find consolation in the fact as stated by Sadasiva Aiyar, J., that Lord Halsbury once said that law was not a logical science.
9. Having made these observations their Lordships proceeded to state the law in the following terms:
The result of the consideration of the decided cases may be summarised thus : (1) an alienation by a widow of her deceased husband's estate held by her may be validated if it can be shown to be a surrender of her whole interest in the whole estate in favour of the nearest reversioner or reversioners at the time of the alienation. In such circumstances the question of necessity does not fall to be considered. But the surrender must be a bona fide surrender, not a device to divide the estate with the reversioner. (2) When the alienation of the whole or part of the estate is to be supported on the ground of necessity, then if such necessity is not proved aliundi and the alienee does not prove inquiry on his part and honest belief in the necessity, the consent of such reversioners as might fairly be expected to be interested to dispute the transaction will be held to afford a presumptive proof which, if not rebutted by contrary proof, will validate the transaction as a right and proper one. These propositions are substantially the same as those laid down by Jenkins, C.J. and Mookerjee, J., in the case of Debi Prosad Chowdhury v. Golap Bhagat I.L.R. (1913) Cal. 721. It follows that their Lordships cannot agree with a good deal of what was said in the case of Rangappa Naik v. Kamti Naik : (1908)18MLJ309 .
10. There is a further decision of the Judicial Committee which has a bearing on the question of law under consideration. It is the case of Musammat Binda Kuer v. Lalita Prasad Choudhary (1936) 44 L.W. 546 (P.C.) where it was pointed out that the presumptive reversioner although the paternal ancestor of the actual reversioners is not a person from whom the actual reversioner takes his title to the estate. He takes his title direct from the last full owner. In this case their Lordships also held that even if the presumptive reversioner were the guardian of the actual reversioner he could not bind the latter under transactions entered into by the widow in respect of the estate properties. They consequently rejected the plea that the actual reversioner was estopped from disputing alienations made by the widow.
11. These decisions make it quite clear that actual reversioners are not. bound absolutely by the action of the presumptive reversioners. The consent of the presumptive reversioners to an alienation merely gives rise to a presumption that the transaction was one which was occasioned by necessity; but it is open to the actual reversioners to rebut the presumption if they can. To adopt the wording in the headnote of Rames Chandra Chakrabarti v. Sasi Bhusan Upadhay (1919) 30 C.L.J. 56 a conveyance o f a portion of an estate by a Hindu widow jointly with the nearest reversioner does not in itself create an indefeasible title. The decision was followed by a Bench of this Court (Curgenven and Sundaram Chetty, JJ.) in Velichetti Satyanarayana v. Sajja Venkanna : AIR1933Mad637 .
12. In the present case no opportunity was given to the appellant to prove that the transactions in question were contrary to Hindu Law. The learned Judge held that the appellant was governed by the actions of his father Sitaramayya and therefore he was not in law entitled to institute the present suit. This decision is clearly wrong on the authorities. The appeal will be allowed and the case will be remitted to the Subordinate Judge to try and decide according to law. The appellant is entitled to costs which will be paid by the opposing respondents in proportion to the value of their interests in the estate properties.
13. The appellant has appealed as a pauper. As there is a remand for retrial he would have been entitled to a refund of the court-fee had he paid it. In the circumstances there is no necessity to make any order for payment by the appellant to Government of the court-fee on the Memorandum of Appeal.