1. These are appeals against the decree in O.S. No. 63 of 1921 on the file of the Additional Subordinate Judge's Court of Cocanada, by which the plaintiff as reversioncr has been given a decree for recovery of certain properties belonging originally to one Tiruppayya, the last male owner. The facts of the case are somewhat complicated and are as follows:
Tiruppayya was the son of one Dorayya who died a very long time ago, the exact date being unknown. Dorayya had a sister, Venkamma, who was widowed at an early age and went to live with her brother. Subsequently Ammanna, son of another sister, was taken in by Venkamma and was afterwards described as her foster-son. This Ammanna married Dorayya's daughter, Ademma, and lived in his father-in-law's house. Venkamma was apparently managing the family affairs while Tiruppayya was young, and Ammanna was also assisting in the cultivation of lands, etc. After Tiruppayya's death in 1880, there was a mediation between Tiruppayya's widow, Venkata-ramanamma, and Ammanna, and the award of the mediators, Exhibit I, decided that Venkataramanamma and Ammanna should take the moveable and immoveable properties of the family in equal shares. In 1888, Venkataramanamma executed a document Exhibit VIII (a) in favour of Ammanna by which she gave up to him a half of the family properties. On the same day she executed another document, Exhibit VIII, in favour of her daughter Nagayya whereby she transferred the other half of the family properties to her daughter, reserving for herself 6 acres 42 cents of land which should be 'under her so long as she lived.' Nagayya died about 1904. After her death the properties transferred to her seem to have been enjoyed by her minor daughter, her husband Munnayya and Venkataramanamma. On Munnayya's death he left a will bequeathing some of these properties to a relation and there was a Suit between that legatee and Venkataramanamma and Papamma, Munnayya's widow, which was compromised, and in accordance with the compromise the lands were divided between the parties. Venkataramanamma died in August, 1921, and this suit was filed in the following October by the plaintiff as the next reversioner of Tiruppayya.
2. The questions for consideration are:
(1) Whether the settlement of 1880 was valid and binding on the estate.
(2) Whether the gift to Nagayya in 1888 was a surrender of the widow's interest in the estate.
(3) Who succeeded to the property on the death of Nagayya? and
(4) Whether the compromise entered into during the pendency . of this suit between the plaintiff and defendants J, 2 and 3 is binding on the defendants,
3. On the first point it has to be determined whether the compromise of 1880 was in settlement of bona fide family disputes or whether it was a mere alienation by the widow which was not binding on the estate. The case of the first defendant, who is the son of Ammanna, is that his father was the illatom son-in-law of Dorayya and as such was entitled to a share in the family property and that the compromise was arranged in settlement of his claim. The Subordinate Judge has found that Ammanna was not the illatom son-in-law of Dorayya and certainly the evidence adduced to prove the illatom transaction is inadequate. This is not surprising considering the very long time that has elapsed since those events took place. It is certainly true that Ammanna married Dorayya's daughter and came to live in his father-in-law's house. Whether it was before or after the death of his father-in-law is not certain as the evidence on the point is very conflicting. In any event, he seems to have been treated as one of the family, for he gave up his rights in his natural family and looked after the affairs of Dorayya's family helping his aunt and foster-mother Venkamma. It has also been shown by the plaintiff's own witnesses that Dorayya became divided from his brothers and that his estate was considerably augmented by the exertions and care of Venkamma. It is not clear whether she applied any of her own money towards these acquisitions or whether it was merely her care and attention that increased the family properties. On this point it is impossible to secure any definite evidence after the lapse of at least 60 years. We have these facts which support the theory that it was intended to introduce Ammanna into the family as the illatom son-in-law. We also have the fact that Venkamma was in possession and urged her claim to some of the family properties and her claim must be deemed to be the claim of Ammanna, for it was as her foster-son that Ammanna put forward his claim before the mediators. The mediation was quite open and in settlement of disputes, between the parties as, admitted by the plaintiff's own witnesses. It took place more than 40 years before the suit was filed and has not been questioned till now, when it is very difficult to ascertain accurately details of the dispute and the grounds on which Ammanna put forward his claim. In view of the circumstances which we do know, and of the fact that the transaction has been unquestioned for over 40 years, I think it must be held that Ammanna had a bona fide claim and this, settlement, therefore, was a settlement of bona fide family disputes and would, therefore, be binding on the estate which was represented by the widow in that dispute.
4. It is contended by Mr. Varadachariar for the respondents (1) that the so-called award, Exhibit I, is merely a division of the properties and not an award in settlement of disputes (2) that Ammanna had no legal title to the properties when he put forward his claim and that, therefore, the compromise is invalid so far as the estate is concerned. The first contention must clearly be negatived for the plaintiff's own witnesses admit that the mediators settled all the disputes between Ammanna and Venkataramanamma, and, if the award were merely a partition of the properties between them which had already been arranged, we should have expected to find a partition of the properties by metes and bounds. It is clearly not such a partition for there is a recital in the document, 'the parties having had disputes in the division of moveable and immoveable property they owned...the mediators decided as follows:' and what follows is consistent with a definite settlement of the claims of the respective parties but not with a mere partition' by metes and bounds.
5. As regards the second contention, Mr. Varadachariar relies, on the decisions of the Privy Council in Kondama Naicker v. Kandasami Gowndar and Gunjeshwur Kunivar v. Durga Prashad Singh (1917) 44 I.A. 229 : I.L.R. 1917 C. 17 : 34 M.L.J. 1 (P.C.) but in these cases the claimant knew that the title he put forward was an untrue one and it was consequently held that the compromise of the claim was not one that would bind the estate. The real question is whether the dispute is a bona fide dispute and these cases are merely authority for holding that if the dispute is not bona fide, it is not binding on the reversion. In the present case I have discussed the circumstances and come to the conclusion that Ammanna did put forward a bona fide claim, believing that he had some right in the family properties. Whether that claim was valid in law or not (and after this long interval it would be very difficult to elicit the facts necessary for deciding such a matter) is not material, for if the claim of Ammanna was put forward in good faith and had some foundation, and the dispute between him and the widow was compromised with the aid of mediators, that compromise is binding on the reversioners.
6. This compromise being valid, the transfer of the remaining properties by the widow to her daughter Nagayya amounted to a transfer of the whole estate remaining to her. The reservation of 6 and odd acres for the widow's enjoyment is a small reservation for her maintenance and does, not affect the validity of the surrender which otherwise included the whole estate. Mr. Varadachariar has sought to draw a subtle distinction between a gift by the widow of the whole estate to her daughter and a surrender of the same, his contention being that Exhibit VIII was only a gift for the daughter's life and that the property would revert to the donor on the daughter's, death. It is possible that such a gift might be made, but it would have to be clearly so expressed. A surrender is tantamount to a gift and may be effected either by gift or by relinquishment of rights. The widow's gift was to the next reversioner and must be deemed to be a surrender of the widow's whole estate. The reservation of some immoveable property for her own enjoyment during her life-time does not invalidate the surrender. For this we have the authority of the Privy Council in Bhagwat Koer v. Dhanukdhari Prashad Singh (1919) L.R. 46 LA. 259 : I.L.R. C. 466 : 37 M.L.J. 513 (P.C.).
7. The next question for consideration is, who became entitled to the properties enjoyed by Nagayya on her death. It is contended for the respondents that when Nagayya died those properties would devolve on the heir of the deceased Tiruppayya and that therefore as his widow was then alive she would again succeed to the properties. It has, however, been held that when a widow surrenders her estate she effaces herself so far as that estate is concerned and the estate of the deceased husband is opened to his next heirs at that date, or to put it in the language of the Privy Council in Rangasami Gaunden v. Nachiappa Gaunden (1918) L.R. 46 LA. 72 : I.L.R. M. 523 : 36 M.L.J. 493 (P.C.).
It is the effacement of the widow--an effacement which in other circumstances is effected by actual death or by civil death--which opens the estate of the deceased husband to his next heirs at that date.
8. It is not said that the effacement amounts to civil death and that the widow is, therefore, incapable of holding any property at all, for that would be inconsistent with the reservation of any property for her maintenance or with her ability to hold moveable property after surrendering immoveable property, which has been held to be possible under another system of Hindu Law. If the widow is effaced so far as the estate is concerned, there is no ground for holding that her right is revived by the death of her daughter during her life-time. The effacement is made in order to accelerate succession to her husband's estate. On the surrender, therefore, the next heir takes the property and when that heir dies, the devolution must continue in favour of the next reversioner and the succession cannot be interrupted by the mere fact that the widow is still alive. After the daughter, the deceased's estate must go to the next reversioner and it cannot be contended that the widow is in any sense a reversioner. To allow her, therefore, to revive the rights which she 'has deliberately surrendered would be to retard succession rather than to accelerate it. There is only one direct authority on this point and that is Sartaji v. Ramjas I.L.R.(1923) A. 59 where it was held that upon the death of the daughter the rights to the property vested in the next reversioner to her father and not in her mother. On Nagayya's death, therefore, the right to succeed to the property devolved on the plaintiff as the next reversioner and his suit in respect of that property is barred by limitation as being brought more than 12 years after the daughter's death.
9. A further contention is raised that in respect of the 6 and odd acres left in the widow's possession, the plaintiff's right to sue for possession did not accrue until after the widow's death. Undoubtedly he could not sue for physical possession, for this provision for maintenance was binding on the estate and, there-fore, was binding upon the plaintiff when he became entitled to that estate; but, although he could not get physical possession, yet he could ask for symbolical possession, namely, such possession as was capable of being given, but this is in effect really a declaration that he is entitled to the property. He is not bound to bring such a suit, but can wait until the widow's death and then bring a suit for actual possession to which he would then be entitled. Plaintiff's claim in respect of the acres 6, cents 42 is not barred by limitation.
10. The next point relates to the compromise entered into between the plaintiff through his guardian and the 1st defendant for himself and as guardian of defendants 2 and 3. Under Order 32, Rule 7, a guardian cannot enter into a compromise of a suit on behalf of a minor except with the permission of the Court. In this case leave to compromise was not granted. The compromise, therefore, is certainly not binding on defendants 2 and 3 and must be set aside so far as they are concerned.
11. The more difficult question is whether that compromise is binding on the 1st defendant so far as his share of the family property of himself and defendants 2 and 3 is concerned. The same question was under consideration by the Privy Council in Venkata Row v. Tuljaram Row . I am unable to distinguish this case from that. In that case a father entered into a compromise on behalf of his minor son whereby he gave up his, right under certain decrees in favour of the other party and it was held that not only was the compromise not binding on the minor son but that it was not binding on the share of the father. The reason given for this decision is at page 306:
Rajaram Row, unless he was attempting to divide the joint family, could only deal with this property with the consent of his son or in his capacity as manager of the estate. In his capacity as manager of the estate he was only able to deal with it for certain limited purposes, and none of those purposes arc, or can be, suggested as the consideration why these considerable sums were released. It follows, therefore, that the attempt to alienate, or to release, from the estate these substantial portions of the joint family property failed, and that there was no efficacy given to the arrangement that was then contemplated.
12. The only difference between that case and the present is that there the property was money due under decrees and here it is immoveable property. It has not been shown that the alienation of this immoveable property was for necessity or for any other purpose binding upon the sons. The compromise did not purport to alienate the father's share alone but the whole of the family interest in the property. It would, therefore, not be binding on the family. Although in somewhat similar circumstances, when such an alienation has been effected, the Court will enforce an equity in favour of the alienee to the extent of the alienor's share, it does not follow that the Court will enforce such a compromise before the equity has in fact arisen. It is only when the decree is passed that such an equity can arise and, therefore, the Court should refuse to validate a transaction which would necessitate a further equitable relief to one of the parties. The compromise is, therefore, not binding on any of the defendants 1 to 3 and the decree passed in accordance therewith must be set aside. The compromise relates, to the properties obtained by the 1st defendant's father in 1880 or 1888 and the plaintiff's, right to recover them has been held above not to exist.
13. In the result both the appeals must be allowed and the plaintiff's suit dismissed so far as these appeals are concerned except in respect of acres 6, cents 42, in Appeal No. 309. Each party will pay and receive proportionate costs.
14. Appeal No. 310 of 1924. Reilly.--In this case the appellants are defendants 1--3, the successors-in-title of Ammanna, to whom Venkataramanamma gave up half the property standing in the name of her deceased husband Tiruppayya. In my opinion we should certainly not be justified in differing from the finding of the learned Subordinate Judge that the story that Ammanna was adopted as illatom son-in-law of Dorayya is, untrue. Six witnesses for the plaintiff have given evidence that it was only after Dorayya's death that his daughter Ademma was married to Ammanna. On the other side we have the evidence of D.Ws. 3, 4 and 9. D.W. 3 says that the marriage was before the death of Dorayya, and his evidence implies that he was present at it, though he does not say so explicitly. In examination-in-chief he states that Ammanna was taken as Dorayya's illatom son-in-law; but in cross-examination it appears that he was only told of this by his father-in-law. He is under obligations to defendant I, and the Subordinate Judge does not regard his evidence as of any value. D.W. 4 says that Dorayya brought Ammanna from his native village and that Ammanna lived with Dorayya both before and after his marriage; but he gives no evidence that there was any illatom adoption. D.W. 9 speaks of Ammanna as illatom son-in-law of Dorayya but admits that he knows nothing personally about the adoption. When this is the state of the oral evidence, the facts that in Exs. I, I-B and VIII-A. there is no mention of Ammanna being illatom son-in-law of Dorayya and that on the contrary in Ex. I he is described as the adopted son of Venkamma and in Ex. I-B as her foster-son are ample basis for the finding that the story of an illatom adoption is an after-thought. No reasonable explanation why Ammanna was not described as illatom son-in-law of Dorayya in those documents, if he was so, has been suggested. If that were the basis of his claim, it would almost certainly have been put in the forefront instead of being altogether forgotten. And, if the Subordinate Judge was right, as in my opinion he was, in rejecting the story of an illatom adoption, he was clearly wrong in finding that Venkataramanamma gave half of Tiruppayya's property to Ammanna because Tiruppayya had directed her orally to do so. That Tiruppayya gave such a direction in respect of his property is recited in Ex. VIII-A, which was executed 8 years after Exs. I and I-B; but it was not put forward by defendants 1--3 in their written statements as a basis for their claim. Indeed they could not put it forward, as, if the story of an illatom adoption was true, then Ammanna was entitled to half of the family property and that half was not Tiruppayya's to dispose of. I agree with Mr. Varadachariar that it was not open to the Subordinate Judge to set up a case for defendants 1--3, not only not set up by them, but contradictory to and destructive of the case with which they came to Court.
15. But it was pleaded by defendants 1--3 that after Tiruppayya's death there were disputes between his, widow Venkata-ramanamma and Ammanna and that those disputes were settled by mediators, in accordance with whose award the property in question in this appeal was allotted to Ammanna. I am not prepared to dissent from my learned brother's view that this can be regarded as a settlement of a bona fide family dispute, which should not now be upset. I do not agree with the suggestion made at one stage of the arguments that because there was this dispute so long ago there is a presumption that it was a bona fide dispute. In such a case the circumstances must be examined so far as evidence regarding them is available. When we find on the one side Tiruppayya's elderly aunt, Venkamma, who had been managing the household for years, and Ammanna, then a middle-aged man, whom this aunt had brought up and who had been attending to the cultivation of the family land, and on the other side Venkataramanamma, a young widow, whose husband had died 2 years after their marriage, there is certainly no presumption that any claim to the family property put forward by Venkamma and Ammanna, who were in such a dominating position, was made in good faith. It was an occasion on which a young widow might easily have been overborne and have been unable to assert her rights effectively. In such a case it is the duty of the Court to investigate the circumstances as carefully as possible and to beware lest an unrighteous claim is accepted as having been made in good faith merely because it is ancient history. But in his reply the learned Advocate-General has drawn our attention to evidence which makes it probable that Ammanna had an honest basis, for his claim. P.W. 8 says that, when Ammanna joined Dorayya's family, with whom it is not now disputed he lived for many years, he left his own family property to his brothers. P.W. 2, Dorayya's niece, says that when Dorayya was divided from his brothers, he got 8 acres of land; but, when Tiruppayya died, the extent of the family property had increased to about 44 acres. P.W. 2 also says that her aunt Venkamma managed the household and after Tiruppayya's death asserted that she had acquired most of the family property and insisted that some of it should be given to Ammanna, which was the origin of the dispute between Venkataramanamma and Ammanna. P.W. 4 also says that Venkamma objected to Venkataramanamma conveying Tiruppayya's property to her daughter because Venkamma had acquired some of the property, and so half was allotted to Venkamma and enjoyed by Ammanna. This is evidence given by the plaintiff's witnesses. It appears probable that the large increase in the family property was due to the good management of Venkamma assisted by Ammanna. When we remember that Ammanna had left his own family and abandoned his claim to a share in their property and that the division recorded in Exhibit I, by which Ammanna got half the property standing in Tiruppayya's name, was settled by mediators of other families, I think there is as much evidence as can reasonably be required at this distance of time to show that Ammanna had a moral claim, which he and Venkamma urged in good faith, and that the settlement of the dispute so caused was a proper and honest family settlement which should not now be disturbed.
16. In this appeal the only remaining question is, whether the compromise between the plaintiff and defendants 1--3, on which the Subordinate Judge based his decree, can be upheld to any extent. As it was not sanctioned by the Court it is ineffective against the minors, defendants 2 and 3. It is urged for the plaintiff that the compromise is binding on the defendant 1's share of the property in the possession of defendants 1--3, which share would not fall far short of the 8 acres to be given to the plaintiff under the compromise. But I agree that even in respect of the share of defendant 1 the compromise cannot be enforced by the plaintiff. If the compromise fails in part, then the whole contract falls through. Defendant I did not bargain to transfer the whole of his share of the property in dispute in order that the shares of defendants 2 and 3 should be saved. As my learned brother has pointed out, this transaction is not similar to one in which an alienee from a manager of joint family property for valuable consideration not binding on the family is allowed to enforce his claim against the manager's share. That is done because the manager has received consideration and must make good his alienation so far as it is within his individual power. But here defendant 1 did not get the consideration for which he bargained. Indeed the compromise being invalid against the plaintiff, who, like defendants 2 and 3, was a minor, cannot be regarded as any consideration at all. And the decision of the Privy Council in Venkata Row v. Tuljaram Row is against the contention of the plaintiff.
17. I agree that the appeal must be allowed with costs in both Courts.
18. Appeal No. 309 of 1924.--This appeal relates to the other half of Tiruppayya's property, which Venkataramanamma gave up to her daughter, Nagayya, by Ex. VIII. I agree that that transaction must be regarded as a surrender of the widow's interest to her daughter. That the document is in the form of a deed of gift is of no importance. Nor does the reservation of 6.42 acres for her life appear to me to be more than a reservation for maintenance--and not an excessive reservation--though maintenance is not mentioned in the document. When we are examining what purports to be a surrender by a Hindu widow to the next male reversioner, we have to assure ourselves that it is a real surrender and not a devise either to divide the property with him explicitly or by means of some undisclosed consideration or to insure the succession of a particular reversioner for reasons of partiality. But, when the surrender is to the widow's daughter, who in the great majority of cases, is likely to outlive the widow and whose immediate succession is not likely to affect the ultimate devolution of the property to one male reversioner rather than another, it is unnecessary to scrutinize the surrender with suspicion so long as in effect the widow's estate is wiped out but for a reasonable provision for her maintenance. That appears to have been the effect of Exhibit VIII. Its language, which is that of an absolute gift, is not strictly suitable to a surrender. Nor it is suitable to a transfer of the widow's interest for the life of the daughter with a reversion to the widow if she survived the daughter. The only reasonable construction of its absolute terms, considering the person in whose favour it was executed, is in my opinion that the widow surrendered her widow's interest and stepping aside let in her daughter. That being so, when, as it happened, the daughter died before the widow, I cannot accept either of Mr. Varadachariar's suggestions for bringing the property back again to widow--that she succeeded her daughter as heir or that she again came in as the widow of Tiruppayya, the last male owner. Either suggestion is inconsistent with the theory of a widow's effacement. When once a widow has effaced herself, has stepped aside and has surrendered her widow's estate in favour of a male or female reversioner, I do not see how that widow's estate can ever be revived. See Sartaji v. Ramjas I.L.R.(1923) A. 59.
19. The right of the plaintiff's predecessor to possession began when Nagayya died, and for the property which went to her under Ex. VIII, except the 6.42 acres reserved for Venkata-ramanamma, his claim is clearly time-barred. But for possession of the 6.42 acres reserved for Venkataramanamma time did not begin to run against the plaintiff or his predecessor from Nagayya's death. Certainly, so long as Venkataramanamma was in possession, no reversioner had a right to possession, and so time could not begin to run against him. In respect of the 6.42 acres the plaintiff's suit is in time.
20. I agree, therefore, that this appeal must be allowed except in respect of the 6.42 acres and that the parties should pay and receive proportionate costs in both Courts.