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T. Srinivasa Rao and anr. Vs. Annadhanam Seshacharlu and anr. - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtChennai
Decided On
Reported inAIR1942Mad106; (1941)2MLJ406
AppellantT. Srinivasa Rao and anr.
RespondentAnnadhanam Seshacharlu and anr.
Cases ReferredRamaswami Aiyar v. Vengidusami Aiyar
Excerpt:
.....had elapsed, the claim of alangarammal and therefore of her heirs, the plaintiffs, was barred by adverse possession. in the case of a tenancy in common each tenant has the entire possession as well of every part as of the whole. (68 to 73): after this, i shall say about kanyadhanam (gift of a maiden). oh mahadevi, one must give a girl with clean vratams, good conduct, good caste and good looks, either his own girl or another's girl, to a good boy who has an affection for her, after first coming to a decision himself, on the propriety of the boy and then in consultation with the relations, the gift is to be made according to shastras. the couple must be provided with means of livelihood and they both must be settled in a good house. if kanyadhanam is done in this manner, by virtue of..........she had been in absolute possession and enjoyment of the property and acquired title thereto by adverse possession. the 1st defendant also pleaded that the said sale was made for discharging a prior mortgage which was executed for a necessary purpose, namely, for discharging certain debts incurred for repairs to the house, for medical treatment and for obsequial ceremonies of her mother and for the marriage expenses of her daughter's daughter. she also denied that plaintiffs are the reversioners. the learned district munsif found that the plaintiffs are the reversioners of ramarao and also of janaki bai, that the property belonged to janaki bai, that though the property was gifted to the 1st defendant in 1904, she did not acquire title thereto by adverse possession because janaki bai.....
Judgment:

Venkataramana Rao, J.

1. This second appeal arises out of a suit for a declaration that the sale of a house and lands (Ex. X) executed by defendants 1 and 2 in favour of the 3rd defendant is not binding on the plaintiffs beyond the lifetime of the 1st defendant. The 1st defendant is the daughter of one Tirupati Ramarao who died without any male issue leaving him surviving his widow Janaki Bai and his daughter the 1st defendant. The case for the plaintiffs is that the suit properties belonged to Ramarao and devolved on Janaki Bai by right of inheritance and on her death, on the plaintiffs and that the said alienation by the 1st defendant was not for any legal necessity. The case for the defendants is that the property was the absolute property of Janaki Bai, that she gifted it to the 1st defendant in or about 1904, that ever since the said date she had been in absolute possession and enjoyment of the property and acquired title thereto by adverse possession. The 1st defendant also pleaded that the said sale was made for discharging a prior mortgage which was executed for a necessary purpose, namely, for discharging certain debts incurred for repairs to the house, for medical treatment and for obsequial ceremonies of her mother and for the marriage expenses of her daughter's daughter. She also denied that plaintiffs are the reversioners. The learned District Munsif found that the plaintiffs are the reversioners of Ramarao and also of Janaki Bai, that the property belonged to Janaki Bai, that though the property was gifted to the 1st defendant in 1904, she did not acquire title thereto by adverse possession because Janaki Bai died within twelve years before succession opened, that the mortgage for the discharge of which the sale was executed was valid only to the extent of Rs. 600 on the ground that that sum must be deemed to have been spent towards the necessary expenses binding on the estate and that the balance of Rs. 1,200 spent for the marriage expenses of her daughter's daughter was not a legal necessity and that the said sale was therefore binding upon the plaintiffs only to the extent of Rs. 600. On appeal the learned Subordinate Judge confirmed the finding as to the status of the plaintiffs as the reversioners of Janaki Bai and also in regard to the question of adverse possession. He upheld the sale in its entirety on the ground that the amount borrowed for the marriage of the daughter's daughter of the 1st defendant was for a necessary purpose. He took the view that the marriage of the daughter's daughter was a proper religious object which would conduce to the spiritual benefit of the 1st defendant's father Rama Rao and her mother Janaki Bai.

2. This appeal is preferred by the plaintiffs and on their behalf their learned Counsel Mr. Bhujanga Rao contended that the view taken by the learned Subordinate Judge in regard to the expenses incurred towards the 1st defendant's daughter's daughter's marriage was wrong and that, in any event, the amount borrowed was excessive. The questions therefore to be decided are, (1) was the amount borrowed for the expenses of the said marriage for a necessary purpose so as to bind the estate, and (2) was the amount of Rs. 1,200 spent in connection therewith proper and justifiable if not, what is the reasonable amount that can be allowed?

3. Before dealing with these questions, I shall deal with the argument of Mr. Venugopalachari on the finding of the lower Court in regard to the question of adverse possession. He contended that the finding was wrong and if it was decided in his favour, the decree of the lower Court could be supported on that ground. He put his argument thus : long before succession opened the property was gifted away by Janaki Bai to the 1st defendant and from the date of the gift the 1st defendant was dealing with the property in her own right and when Janaki Bai died she did not take the property as her heir but continued to hold it adversely to the estate and no suit having been filed within 12 years from the date of the gift, she acquired title thereto by adverse possession after the lapse of the said period. In support of his contention he relied on the decision of the Privy Council in Varada Pillai v. Jeevarathnammal (1919) 38 M.L.J. 313 : L.R. 46 IndAp 285 : I.L.R. 43 Mad. 244 (P.C.) and a decision of this Court reported in Alagiri Chetty v. Muthusami Chetty (1940) 50 L.W. 571. On principle it seems to me that the contention is untenable. On the death of Janaki Bai the property vested in the 1st defendant by right of inheritance. Under the Hindu law, succession cannot remain in abeyance and whether the heir at law wills or not, the property will vest in him. Before the title to the suit property was perfected by adverse possession by the first defendant, the property vested in her. The legal consequence of that vesting is that the adverse possession which was running against the owner came to an end. The first defendant became the owner and adverse possession could not run against herself. In Varada Pillai v. Jeevarathnammal (1919) 38 M.L.J. 313 : L.R. 46 IndAp 285 : I.L.R. 43 Mad. 244 (P.C.) the facts were as follows. Gopalakrishna Pillai and Parthasarathi Pillai owned mitta in equal shares. Gopalakrishna died leaving his widow Rajammal and Parthasarathi Pillai died leaving his widow Alangarammal to whom he bequeathed absolutely his share in the said mitta. The whole mitta was registered in the names of both Rajammal and Alangarammal. On 10th October, 1895 two petitions were presented to the Collector of Chingleput, one by Alangarammal and the other by Rajammal, stating that each had gifted away the share in the mitta to which each was entitled to Duraisani Ammal on the 8th October, 1895 and that therefore the mitta might be transferred in her name. This was accordingly done and ever since that date until the date of her death in 1911, Duraisani Ammal enjoyed the property and was in receipt of rents and profits solely. Rajammal died in 1901 and Alangarammal died in 1912, a year after Duraisani Ammal's death. Duraisani left a daughter Jeevarathnammal who succeeded to her property. The plaintiffs who were the reversioners of Parthasarathi Pillai and his widow Alangarammal sued to recover a half share of the mitta. Among other pleas Jeevarathnammal pleaded that Duraisani Ammal acquired title to that share by adverse possession. This plea was upheld by their Lordships of the Privy Council. They took the view that the gift was invalid on the ground that it was not made in conformity with the provisions of the Transfer of Property Act but Duraisani must be deemed to have enjoyed the property adversely to both Rajammal and Alangarammal from the date of the gift and that as by the date of her death in December, 1911, twelve years had elapsed, the claim of Alangarammal and therefore of her heirs, the plaintiffs, was barred by adverse possession. It was contended before their Lordships that when Rajammal died in 1901 Duraisani succeeded to her moiety by right of inheritance and therefore her possession from that date must be deemed to have been as a co-owner and that the possession of Duraisani as such co-owner could not be adverse to Alangarammal or her heirs. This contention was negatived by their Lordships and they remarked thus:

In the present case it is plain that during the life of Rajammal the possession of Duraisani was adverse as against both co-owners; and this being so, there is no reason for holding that when on the death of Rajammal she became legally entitled to a moiety of the property, the character of her possession of the other moiety as against Alangarammal was changed. There having been an ouster of Alangarammal before the death of Rajammal, this ouster continued after her death, and the possession of Duraisani was adverse to Alangarammal throughout. This contention therefore also fails.

4. It will thus be seen that their Lordships dealt only with the adverse possession regarding the share of Alangarammal. The possession of Duraisani even of the share of Rajammal during her lifetime was not as co-owner and therefore it was prima facie adverse to Alangarammal in respect of her share. Thus on the death of Alangarammal as against her heirs the character of this possession would continue. She was not an heir of Alangarammal and therefore had no interest in her share. But their Lordships did not decide the question that if Rajammal had left a co-heir along with Duraisani Ammal whether Duraisani could plead adverse possession in respect of Rajammal's moiety. In Alagiri Chetty v. Muthuswami Chetty (1940) 50 L.W. 571 this question pointedly arose and my learned brother Patanjali Sastri, J., took the view that the principle of the decision in Varada Pillai v. Jeevarathnammal (1919) 38 M.L.J. 313 : L.R. 46 IndAp 285 : I.L.R. 43 Mad. 244 (P.C.), would apply to it. In that case there were two brothers, Servaraya Chetti and Alagiri Chetti. Servaraya died in 1891 leaving him surviving his widow who also died in the same year. Alagiri was therefore the person who became entitled to the property. But on the date of the death of the widow, one of the sons of Alagiri (Alagiri had five sons) was in possession of the house and continued to be in sole possession thereof until the date of Alagiri's death in 1900. The plaintiffs who were the grandsons of Alagiri by two of his sons Annasami and Kandasami sued to recover the share of their fathers. The first respondent resisted the claim on the ground of limitation and his plea was upheld on the ground that under Article 141 of the Limitation Act the suit should have been filed within twelve years from the date of the widow's death. It would seem to me that prima facie on the death of Alagiri Chetti the property having vested in all the heirs of Alagiri Chetti as tenants in common the adverse possession which was running against Alagiri Chetti must be deemed to have come to an end. In the case of a tenancy in common each tenant has the entire possession as well of every part as of the whole. It cannot be said that one tenant in common who is in possession of the property can be held to be exclusively in possession of that whole because the principle is each has got an undivided moiety of the whole and not the whole of the undivided moiety. Therefore on the death of Alagiri Chetty all the heirs became entitled to the property and there was thus unity of title. The question is whether there was unity of possession. It cannot be denied that so far as possession of the first respondent was concerned, he cannot be said to be holding adversely to himself in respect of any portion of the property because the character of possession must necessarily change in consequence of the vesting in himself as part owner. As the possession of one tenant in common is prima facie possession of the other, the possession therefore of the first respondent must only be held to be adverse after the date of the death of Alagiri. There must be distinct evidence of ouster after that date because it cannot be said that at the moment of vesting there was ouster. In order to constitute ouster, there must be assertion of a hostile title after vesting and notice thereof to the other co-heirs, direct or indirect, inferable from acts and circumstances which would warrant such an inference. It may be possible for the Court to infer that the possession of the first respondent from the date of the death of Alagiri cannot be said to be on behalf of all the heirs of Alagiri having regard to the prior hostile possession of the first respondent. Whether Alagiri Chetty v. Muthuswamy Chetty (1940) 50 L.W. 571 was correctly decided or not, the present case is distinguishable. The property vested solely in the first respondent on the death of Janaki Bai. The person to sue and the person to be sued being one and the same person, the owner must be deemed to have regained possession thus putting an end to any prior hostile title. I am therefore of the opinion that the view taken by the lower appellate Court that the 1st respondent did not acquire title by adverse possession as against reversionary heirs is correct.

5. I shall now deal with the question regarding the validity of the mortgage in so far as it was executed for borrowing moneys for the expenses of the daughter's daughter's marriage of the 1st defendant. Under the Hindu law the daughter as heiress of her father or mother takes a restricted interest similar to that taken by a widow with a similar power of disposal. The power of disposal of a Hindu widow inheriting her husband's property is thus defined by the Privy Council in The Collector of Masulipatam v. Cavaly Vencata Narrainapah (1861) 8 M.I.A. 529 :

For religious or charitable purposes or those which are supposed to conduce to the spiritual welfare of her husband, she (the widow) has a larger power of disposition than that which she possesses for purely worldly purposes.

6. Dealing with this passage Benson and Krishnaswami Aiyar, JJ., in Tatayya v. Ramakrishnamtna : (1910)20MLJ798 , remarked thus:

Their Lordships did not attempt to further define the spiritual purpose. We have endeavoured to suggest the further limitation that the spiritual purpose should be such as is regarded by the Hindu community as reasonable and proper though not absolutely necessary.

7. The learned Judges further pointed out that:

If the expenditure by the daughter is for the spiritual needs of the father's soul, it stands on the same footing as the expenditure by the widow for the spiritual needs of her husband.

8. I would add that in the case of an alienation by a daughter of her mother's stridhanam, if the expenditure by the daughter was for the spiritual needs of the soul of her parents, it stands on the same footing as the expenditure by the widow for the spiritual needs of her husband. The views expressed in Tatayya v. Ramakrishnamma : (1910)20MLJ798 , have received the approval of the Privy Council in Sardar Singh v. Kunj Bihari Lal . Their Lordships of the Judicial Committee also cited with approval the observations of Mukherjee, J., in Khub Lal Singh v. Ajodhya Misser I.L.R. (1915) Cal. 574 namely that

it was absolutely impossible to define the extent and limit of the power of the widow to dispose of her husband's property for religious purposes, 'because it must depend upon the circumstances of the disposition whenever such disposition shall be made, and must be consistent with the law regulating such disposition.

9. Their Lordships further pointed out in that case that the necessity for the alienation need not be of the same character as in the case of alienations for secular purposes, that the Hindu system recognises two sets of religious acts, one obligatory and the other optional, and that the alienation for both the sets of acts would be binding on the reversionary heir but only in regard to acts which are optional, the alienation must relate only to a reasonable portion of the property. Their Lordships upheld the gift of a small portion of the property for the offerings to the deity and for the maintenance of the priest charged with the performance of that duty on the ground that it was a pious act in the Hindu system.

10. The question in the present case is whether the marriage of a daughter's grand-daughter could be said to be a pious and meritorious act which would conduce to the spiritual benefit of the deceased parents of the 1st defendant. Judicial decisions have upheld alienations made for the marriage of a daughter's daughter or a daughter's son of a prepositus. If in this case the marriage expenses had been incurred for the expenses of the daughter of the 1st respondent and the mother of the girl whose marriage is the subject of consideration, there could be no doubt as to the validity of the mortgage. (Vide Chudammal v. Nadamuni Naidu (1909) 3 I.C. 77 following Rustam Singh v. Moti Singh I.L.R.(1896) All. 474 and Venkatasubba Rao v. Ananda Rao (1934) 67 M.L.J. 204 : I.L.R. Mad. 772 and Mallayya v. Bapi Reddi (1931) 62 M.L.J. 39. In the case of the daughter's daughter's marriage of the prepositus the alienation was upheld on the ground that the husband of the daughter and the father of the girl was indigent and the prepositus, if he had been alive, would be under a moral duty to perform her marriage. In the case of a daughter's son, Venkatasubba Rao, J., in Mallayya v. Bapi Reddi (1931) 62 M.L.J. 39 took the view that a Hindu would be morally bound to give support to the marriage of his daughter's son. In that same case he observed that so far as the marriage of a daughter's daughter is concerned, there could be no question that the costs incurred for her marriage would be a proper legal necessity to justify an alienation. In Venkatasubba Rao v. Ananda Rao (1934) 67 M.L.J. 204 : I.L.R. Mad. 772 the learned Judges upheld an alienation made by a Hindu widow for debts contracted for the thread marriage ceremonies of one of her daughter's sons even in a case where the father was not indigent. The learned Judges took the view that the expenditure incurred must be said to be for purposes connected with the husband's spiritual welfare. In disapproving the contrary view taken by the lower Court, the learned Judges remarked thus:

The pious endeavour of this widow to promote her husband's spiritual bliss by honouring his daughter's son may for ought we know in its result fall short of her intention; but so long as she acted with piety and in consonance with prevalent notions we do not think it incumbent upon us to interfere any more than the Judicial Committee interfered with the gift to the idol.

11. The ratio decidendi of these cases appears to be that if the acts for which alienations were made can be considered to be pious and meritorious according to the prevalent Hindu notions, the alienations, provided the quantum is reasonable, should be upheld.

12. The question in this case is whether the marriage of a daughter's grand-daughter would satisfy this test. It is recognised by Hindu Shastras that the gift of a virgin in marriage is a very pious and meritorious act that will confer spiritual benefit. (c. f. Ramaswami Aiyar v. Vengidusami Aiyar : (1898)8MLJ170 In Danachandrika Anukramanika by Divakara Bhatta we find the following:

gseknzkS&

lgL=eso /ksuwuka 'kra okuMqgka lee~A

n'kkuMqRlea ;kua n'k;kuleks g;%AA

n'kokftlek dU;k Hkwfenkua p rRlee~A

rLekRlosZ'kq nkus'kq dU;knkua fof'k';rsAA bfr

vfXuiqjk.ks&

JqRok dU;kiznkua p firj'p firkegk%A

foeqDrk% loZikisH;ks czyksda oztfUr rs AAbfr

Then the gift of a Kanya-in Hemadri (it is said) :The gift of a thousand cows or that of a hundred is equal to that of a bull. The gift of a vehicle (vahanam) is equal to that of ten bulls. The gift of a horse is equal to that of ten vehicles. The gift of a Kanya is equal to that of ten horses or to that of land. Hence gift of Kanya is highly praiseworthy. In Agni Purana (it is said):Hearing about the gift of a Kanya (by a descendant) one's parents and grandparents are liberated from all sins and attain heaven (the abode of Brahman).

13. In Samskara Ratnamala of Bhatta Gopinatha (1st canto of Grihya Sutras edited by V.S.R. Kasinatha Sastri Bahu Sastri Padke, 1899 Edition) it is stated thus : Page 499:

vukFkk;k% dU;k;k /kekZFkZfookgdj.ka rRQya pksDra iqjk.kkUrjs&

vkRehd`R; lqo.ksZu ijdh;ka rq dU;dke~A

/kE;sZ.k fof/kuk nkrqelxks=ksfi ;qT;rsAA

vukFkka dU;dka n`'V~ok ;ks n|kRln`'ks ojsA

f}xq.ka QyekIuksfr dU;knkus ;nhjZre~AA

lkyadkjdU;knkus Qyfo'ks'kekg laorZ%&

dwdqnkes/kh p izk.knkrk Hk;s'kq p

lea ;kfUr jFkk ,'kka =;ks oS uk la'k;%AA

[Note: lRd`R;kayd`rka dU;ka ;ks nnkfr l dwdqn%]

The benefits accruing from the Shastraic gifting of a destitute Kanya are told thus in Puranas. It is advisable to make one's own, another's daughter (Kanya) in exchange for gold, even though the Kanya does not belong to one's own Gotra and gift her away according to Shastraic injunctions--he who on perceiving a destitute girl makes a gift of her to a proper bridegroom obtains twofold the benefits accruing from the gift of a Kanya.

The benefits accruing from the gifting of a Kanya--bejewelled and with ornaments, Kookuda i.e., a person making such a gift mentioned above, a man performing Asvameda sacrifice, a man who protects another in peril, all three are invited to Indra's abode in his car.

14. In Mahabharatham Anusasana Parvam XIII, Chap. 235, stanzas 67 to 73 the spiritual benefit of Kanyadhanam is thus described:

meksokp&

Hkxou~ dkfuns;kfu /keZeqf; ekuoS%A

rkU;ga JksrqfePNkfe rUes'kaflrqegZflAA S1.1

bZ'oj% mokp&

vr%ija izo{;kfe dU;knkua ;Fkkfof/kA

dU;kns;k egknsfo ijs'kkekReuksfi okAA S1.68

dU;ka 'kq)ozrkpkjka dqy:ilefUorke~A

;LeS fnRlfr ik=k; rsukfi Hkqtdferke~AA S1.69

izFkea rRlekdYI;k cU/kqfHk% d`rfu'p;%A

dkjf;Rok x`ga iwoZ nklZknklifjPNnS%AA S1.70

x`gksidj.kS'pSo i'kq/kkU;su la;qrke~A

rnfFkZus rngkZ; dU;ka ok leyad`rke~AA S1.71

lfookga ;FkkU;k;a iz;PnsnfXulkf{kde~A

o`R;k;rka ;Fkkd`Rok ln~x`gs rkS fuos'k;sr~AA S1.72

,oa d`Rok o/kwnkua rL; nkuL; xkSjokr~A

izsR;Hkkos egh;sr LoxZyksds ;Fkklq[ke~AA

iqutkZrL; lkSHkkX;a dqyo`f)a lekIuq;kr~AA S1.73

Goddess Uma said to Iswara, 'Oh Lord, what are the things that can be given as gifts with a view to Dharma. Please explain them to me. I wish to hear the same.

15. The Lord said:

* * * *

(68 to 73):

After this, I shall say about Kanyadhanam (gift of a maiden). Oh Mahadevi, one must give a girl with clean vratams, good conduct, good caste and good looks, either his own girl or another's girl, to a good boy who has an affection for her, after first coming to a decision himself, on the propriety of the boy and then in consultation with the relations, the gift is to be made according to Shastras. That girl is to be gifted with house, with all jewels, maid servants, man servants, gifts, household articles, cattle, grains etc., to one who is fit for her and who loves her, before Agni (fire) and the marriage celebrated according to Shastras. The couple must be provided with means of livelihood and they both must be settled in a good house. If Kanyadhanam is done in this manner, by virtue of that dhanam, the giver after death will reach Swarga, be praised there and be happy. Even in the next birth, he will acquire wealth and progeny.

16. Thus the gift of a destitute virgin in marriage is a pious and meritorious act from a religious point of view. Much more so, it must be in the case of a daughter's grand-daughter whose parents are indigent. According to prevalent Hindu notions the prepositus would be morally bound to perform her marriage. It is clear from the evidence in this case that the mother of the girl was dead and the father was poor and not possessed of any means to perform the marriage. The girl and her parents lived with the first defendant and she was being brought up by her. I would therefore hold that the marriage of this girl is a pious and meritorious act according to the Hindu system and the expenses incurred therefor must be deemed to be expenses incurred for charitable or religious purposes within the meaning of the rule laid down by the Privy Council and that it was open to the 1st defendant to mortgage the property for the expenses in connection therewith.

17. The question is whether the sum of Rs. 1,200 spent towards the expenses of the marriage was justifiable; if not, what is the reasonable amount to be allowed? The property was sold for Rs. 2,700. It appears to me that a sum of Rs. 1,200 towards marriage is a little excessive. Having regard to the fact that the girl was given away to a well educated bridegroom, I would hold that the widow would be justified in this case to alienate a third of her property and I would ' therefore uphold the mortgage to the extent of Rs. 900.

18. The result of my finding is that the sale in favour of the 3rd defendant must be upheld subject to the obligation of refunding a sum of Rs. 300 to the next reversioner. I accordingly hold that the sale is valid and binding on the reversioners but I direct the 3rd defendant to refund after the death of the 1st defendant a sum of Rs. 300 with interest at 6 per cent. per annum to the plaintiffs from that date if they happen to be the next reversioners or to the persons who happen to be the next reversioners on the date of her death. Parties will bear their own costs in this appeal.


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