1. This is a suit by the reversioners to the estate of one Arcot Annamalai Chetti who died on 2nd December 1880, for the recovery of the properties left by him, all of which were in the hands of alienees at the date of the institution of the suit. The following geneological tree will help in the appreciation of the facts:
Unnamalai Ammal=ARCOT ANNAMALAI CHETTI=Amirthammal First wife (died 2-12-1880) Second wife(predeceased her husband) (died 2-1-1901) | |--------------------------------------- || | | |Periathayammal Chinnathai Ammal Ratnammal Swarnammal(married to K. (married to K. (married to Nama- (married to KuppuSunder Chetti) Sunder Chetti) sivaya Chetty) Chetti died (died 4-4-'38) (died 1899 or 1900) (died 1937). before 1901)| | || | Loganathan (died in 1915)| |-------------------------------------------------||------------------------------------------------------------- || | | | |Murugesam Elumalai (1st Plff.) Veeraraghavan alias Dhanammal |(died before 1902) (born 10-10-1891) Raghavan (2nd Plff.) || | (born 10-11-1899). |Nallu | || |--------------------- || | |Annamalai Devaraj Daughter |||----------------------------|----------------------------------------------| | |Dhanukoti (died 1932) Kannappa (died 1922) Rajammal|----------------------------| |Pattammal (12th deft.) Apurupammal (13th deft.).
2. The plaintiffs claimed to be entitled to the properties described in Schedules A and B of the plaint. In the trial Court it was held that the plaintiffs had established their claim to the properties described in Schedule B and to one item in Schedule A. The properties described in Schedule A are eight in number. The one property in respect of which the plaintiffs succeeded was Item 8. The plaintiffs have appealed in respect of the other properties mentioned in Schedule A. Items 3, 4 and 5 stand together, as do Items l, 2, 6 and 7. The learned Judge (Chandrasekhara Ayyar J.) held that the plaintiffs were not entitled to the possession of Items 3, 4 and 5 because it had not been proved that they belonged to the estate of Annamalai Chetti at the time of his death. He rejected the plaintiffs' claim in regard to Items 1, 2, 6 and 7 because he considered that they had been lawfully alienated by Ratnammal. We agree with the judgment of the learned Judge so far as it concerns Items 3, 4 and 5, but we are unable to concur in it in so far as it concerns Items 1, 2, 6 and 7.
3. Annamalai Chetti, in conjunction with his mother-in-law Sundarammal, purchased Items 3 and 4 in 1862. The Collector's certificate was issued in their names in 1867. On 20th November 1880, Annamalai Chetti transferred his half share to his mother-in-law, who thereby became the sole owner of these properties. She transferred them to K. Sundaram Chetti, Annamalai Chetti's son-in-law, on 13th February 1884 and caused the Collector's certificate to be issued in his name. Having got the title to these properties Sundaram Chetti (together with his wives and son) mortgaged them under documents dated 29th October 1897 and 16th February 1899. These mortgages were in the English form and each contained a power of sale, which was exercised on 8th June 1914. The purchaser was one Jayaram Chetti and his successors-in-interest are defendants 3 and 4. Item 5 was bought by Annamalai Chetti and his son-in-law, Sundaram Chetti, on 11th March 1876. On 20th November 1880 Annamalai Chetti transferred his half share to his daughter Peria Thayammal. On 2nd July 1896 Peria Thayammal and her husband Sundaram Chetti mortgaged the property to the Hindu Jananukula Saswatha Nidhi. Sundaram Chetti was also married to Peria Thayammal's sister Chinna Thayammal and she joined in the mortgage as did Murugesa, Peria Thayammal's son. This mortgage was also in the English form and contained a power of sale which was exercised on 28th April 1904. The purchaser was one Abbu Chetti, who mortgaged the property to the Nidhi on 30th April 1904. This mortgage likewise contained a power of sale which was eventually exercised and the property was purchased by the predecessor in title of defendant 5 on 20th January 1912.
4. The case for the plaintiffs with regard to Items 3, 4 and 5 is that in C. S. No. 164 of 1906 of this Court it was held that the property belonged to the estate of Annamalai Chetti. That suit was instituted by Ratnammal to recover possession of her share in her father's properties. The defendants were her sister Peria Thayammal, Abbu Chetti (Peria Thayammal's son-in-law), who was in possession of two items of property, Kuppu Chetti (the husband of Swarnammal, Annamalai Chetti's daughter by his second wife) who was in possession of one item of property, and 11 other persons who were in possession of the properties described in Schedule B to the plaint. The action resulted in Ratnammal being placed in possession of certain properties belonging to her father and Peria Thayammal in possession of other of his properties. It is said that the decision in this suit that Items 3, 4 and 5 belonged to Annamalai Chetti operates as res judicata; but this contention was rejected by the learned trial Judge and we consider rightly rejected. Ratnammal was merely asking for the possession of her share of the properties and the plaintiffs in the present suit can only recover what belonged to Annamalai Chetti at the time of his death. As we have shown Annamalai Chetti had parted with his interest in these three items before his death. The validity of the transfers has not been questioned before us and the Court is entitled to draw the presumption allowed by Section 90, Evidence Act. The transfers made by Annamalai Chetti conferred complete titles on the transferees and the mortgages which eventually led to the sale of the properties to the predecessors of defendants 3, 4 and 5 were valid. In these circumstances the plaintiffs have no claim whatsoever to these properties.
5. The learned Judge decided against the plaintiffs in respect of items 1, 2, 6 and 7 because he considered that Ratnammal had power to mortgage the properties without the consent of her sister Peria Thyammal and that it had been shown that the mortgages were created for legal necessities of the family. We shall presently deal with the question whether these mortgages were created for a family purpose and the effect of the deeds, but before doing so we must indicate our reasons for dissenting from the learned Judge's opinion that Ratnammal acting alone could bind the reversioners.
6. Peria Thayammal and Ratnammal were joint tenants of their father's estate and as such were exactly in the same position as if the estate had devolved on co-widows. In Gajapathi Radbamani v. Pusapathi Alakarajeswari (1993) 16 Mad. 1 the Privy Council held that where a widow without the consent of her co-widow mortgages a part of the estate to which they are jointly entitled by inheritance from their deceased husband, the mortgage does not affect the interest of the other widow in the property and consequently when the other widow becomes entitled to the whole estate by reason of survivorship, she is unaffected by the mortgage. The fact that the mortgage was entered into to meet a family necessity did not alter the position. In Appalasuri v. Kannamma Nayuralu A.I.R. 1926 Mad. 6, a Bench of this Court (Ramesam and Venkatasubba Rao JJ.) held that when the estate is in the hands of co-widows an alienation made for a family necessity does not bind the reversioner unless both the widows have joined in. This opinion was dissented from by the Allahabad High Court in Jai Narain Singh v. Munnalal : AIR1928All92 . In that case co-widows divided their husband's estate between them and one of them alienated a considerable part of her share. The alienation was for a legal necessity. The Allahabad High Court held that the widow was competent to alienate without the consent of her coparcener and that the alienation bound the reversioner. The other widow was in fact a consenting party but even if she had not consented the Court considered that the reversion would have been bound.
7. The Privy Council considered both Appalasuri v. Kannamma Nayuralu A.I.R. 1926 Mad. 6 and Jai Narain Singh v. Munnalal : AIR1928All92 in Gauri Nath v. Mt. Gaya Kuar A.I.R. 1928 P.C. 251 and expressed disapproval of the Allahabad decision. In delivering the judgment of the Board Lord Salvesen observed that each widow can deal as she pleases with her own life interest, but she cannot alienate any part of the corpus of the estate by gift or will so as to prejudice the rights of the survivor or a future reversioner. Their Lordships left open the question whether the reversion would be bound where it was necessary to raise money for a family purpose and one widow, having been asked to concur, unreasonably refused. That question does not arise in the present case. Ratnammal neither sought nor got the consent of Peria Thayammal to the mortgages which she created. Chandrasekhara Ayyar J. considered that Gajapathi Radbamani v. Pusapathi Alakarajeswari (1993) 16 Mad. 1 and Appalasuri v. Kannamma Nayuralu A.I.R. 1926 Mad. 6 did not apply in a case like the present because the judgment in Gauri Nath v. Mt. Gaya Kuar A.I.R. 1928 P.C. 251 contains this statement.
It may be noted that the case arose not between the survivor of the widows and the mortgagee but between the mortgagee and the reversioner after the death of both widows.
The statement was made in connexion with their Lordships' criticism in Jai Narain Singh v. Munnalal : AIR1928All92 and they were merely pointing out that what the Allahabad High Court said was obiter. They added, however, that the opinion was not consistent with the judgment of the Board in Gajapathi Radbamani v. Pusapathi Alakarajeswari (1993) 16 Mad. 1. We are asked to ignore Gajapathi Radbamani v. Pusapathi Alakarajeswari (1993) 16 Mad. 1 because there the suit was one between widows and this suit is between reversioners and alienees and to ignore Appalasuri v. Kannamma Nayuralu A.I.R. 1926 Mad. 6 because it was not necessary in that case to decide whether both widows had to join in a mortgage in order to bind the reversion. We consider that the logical conclusion to be drawn from Gajapathi Radbamani v. Pusapathi Alakarajeswari (1993) 16 Mad. 1 is that co-widows must join in order to bind the reversion. It may be pointed out that the appellant widow died during the pendency of the appeal before the Privy Council and the reversioner was substituted as the appellant. While it may be that the opinion expressed in Appalasuri v. Kannamma Nayuralu A.I.R. 1926 Mad. 6, that in order to bind the reversion the co-widows must join in the transaction was obiter it was expressed after a careful consideration of the authorities and we agree with it. Inasmuch as Peria Thayammal did not join in or give her consent we must hold that the mortgages created by Ratnammal, even if they were necessary from the point of view of the family, do not bind the reversion.
8. We will now examine the facts. The mortgages created by Ratnammal were five in number and they were all in favour of one Swami Chetti. Ratnammal joined as a mortgagor Dhanakoti, the elder son of her deceased sister Chinna Thayammal. Dhanakoti was one of several presumptive reversioners. His execution of these deeds did not, however, add anything to the title of the mortgagee. The first mortgage was on 11th April 1906 and was entered into as security for a sum of Rs. 1600 which Ratnammal had borrowed from Swami Chetti. It contains this recital:
Whereas the mortgagors aforesaid are in need of moneys for the discharge of their debts which have been all incurred for their family purposes and for the carrying on of a suit or suits for the recovery of possession of their share in all the properties moveabla and immovable belonging to the late Annamalai Chetti and whereas the mortgagors have applied to the mortgagee for a loan of Rs. 1600 repayable with interest at 18 per cent. per annum on the security of their right, title and interest in all the properties aforesaid and the mortgagee has agreed to grant the said loan now this indenture witnesseth.. . . .
In accordance with this recital the operative part merely charged the right, title and interest of the mortgagors. All that Ratnammal possessed was a life estate, joint with her sister. Dhanakoti had no right in the properties at all. The other mortgages were created on 24th August 1906, 29th January 1908, 1st August 1908 and 6th April 1909 respectively. The amounts raised were two sums of Rs. 300, one of Rs. 200 and another of Rs. 800. According to the recitals in the deeds, these sums were borrowed for the purpose of Ratnammal's suit. In every case the security offered and accepted was the right, title and interest of the mortgagors. We cannot regard these documents as showing that the moneys were required for family necessity; but even if they were, all that the mortgagee got was Ratnammal's interest in the property, and that interest ceased on her death in 1937.
9. Swami Chetti brought a suit to enforce these mortgages and on 16th January 1930 he obtained a decree. This was never executed, but items 1, 2, 6 and 7 were sold by Ratnammal on various dates for the purpose of discharging the mortgage decree. The successors-in-interest of the purchasers are defendants 1, 2, 5 and 6. In the circumstances detailed they cannot be allowed to remain in possession of the properties. The properties belonged to the estate of Annamalai Chetti and the plaintiffs are entitled to them. The result is that the decree of the trial Court will be amended by the insertion of a declaration that the plaintiffs are entitled to items 1, 2, 6 and 7 and a direction that possession be given to them with mesne profits from the date of the death of Peria Thayammal, that is from 4th April 1938.
10. The alienees have claimed that they have effected improvements to the properties and an issue (issue 2) was framed on this question. In the Court below it was decided that this issue should be determined by the Official Referee. The inquiry before him will, of course, include the claim of defendants 1, 2, 5 and 6 to improvements in respect of items 1, 2, 6 and 7. The plaintiffs are entitled to their costs in this Court and below in respect of items 1, 2, 6 and 7 as against defendants 1, 2, 5 and 6. They will pay the costs here of defendants 3, 4 and 5 in respect of items 3, 4 and 5.