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Marudaga Nachiar (Died) and ors. Vs. Savadi Tirumalai Kolundu Pillai - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtChennai
Decided On
Reported in(1911)21MLJ320
AppellantMarudaga Nachiar (Died) and ors.
RespondentSavadi Tirumalai Kolundu Pillai
Cases Referred and Devji v. Sambhu I.L.R.
Excerpt:
- - 2,400. we may at once mention here that it is not suggested that the judgments-debts owing to vythilingam pillai and muthukaruppan chettiar have not been discharged, and it is not shown that those debts were satisfied out of money other than that borrowed from ramalingam mudaliar. 2,000, that the revenue authorities had been pressing for payment and the widow complained of her inability to make collections owing to the obstructions of other persons, and that by the 5th august 1862 she paid the peishcush. 710, and we have therefore no hesitation in agreeing with the lower court in its conclusion -and in fact that conclusion was not seriously challenged before us -that the plaintiff has failed to prove her allegations on this point. but it is not suggested that those creditors have.....1. in a. no. 108 of 1904. the plaintiff, as a hindu reversioner, sues for the recovery of the properties specified in schedules a, b, c and d to the plaint and forming the impartible ancestral polyam of naduvakurichi from the various defendants who claim to be entitled to the lands in their respective possession under sales in execution of decrees passed against one thangama nachiar, widow of the last zemindar kuthala thevar, or by virtue of alienations made by her. the plaintiff is the daughter of kuthala thevar, and though the legitimacy of her descent was questioned in the subordinate judge's court, his finding in her favour or the point has not been contested before us. kuthala thevar died in october 1856 and his widow in 1899. the present suit was instituted in 1901. the subordinate.....
Judgment:

1. In A. No. 108 OF 1904. The plaintiff, as a Hindu reversioner, sues for the recovery of the properties specified in Schedules A, B, C and D to the plaint and forming the impartible ancestral polyam of Naduvakurichi from the various defendants who claim to be entitled to the lands in their respective possession under sales in execution of decrees passed against one Thangama Nachiar, widow of the last Zemindar Kuthala Thevar, or by virtue of alienations made by her. The plaintiff is the daughter of Kuthala Thevar, and though the legitimacy of her descent was questioned in the Subordinate Judge's court, his finding in her favour or the point has not been contested before us. Kuthala Thevar died in October 1856 and his widow in 1899. The present suit was instituted in 1901. The Subordinate Judge has dismissed the suit so far as it relates to properties included in Schedules A, B and D and has given a decree to the plaintiff with respect to lands in Schedule C. The plaintiff has preferred an appeal (No. 108 of 1904) from that portion of the judgment which is against her, and the defendants Nos. 1 and 2, who are in possession of the properties of Schedule C, have appealed (No. 107 of 1904) from so much of the judgment as affects them. We shall first deal with the questions raised with reference to properties comprised in Schedules A and D and B, and the first question in this connection that has to be considered is whether the sales of those properties were due to reasons binding on the estate. In this connection it is necessary to narrate some of the more important facts connected with the history of the Zemindary since the death of Kuthala Thevar. On the death of Kuthala Thevar there was a contest between the plaintiff and the widow as to the right of succession and the matter came under the cognizance of the Revenue authorities. The Collector reported to the Board of Revenue on the 14th January 1857 supporting the plaintiff's claim, but the Board recognised the right of the widow to succeed to the Zemindary. It appears that pending decision of the rival claims the Zemindary was kept under the direct management of the Revenue Department. The widow was put into possession early in 1857. In 1861 the plaintiff joined by her husband instituted a suit (No. 9 of 1861) against the widow seeking to have it declared that certain debts were not binding on the estate and to recover possession of the Zemindary from the widow on the ground of mismanagement and waste. The suit was heard by Mr. Goldie, Civil Judge of Tinnevelly, and he dismissed the suit by judgment pronounced in February 1863. He held that though with proper economy it was not necessary for Thangama Nachiar to contract a particular debt of Rs. 3,000 on the security of the estate, it was not proved that she had been guilty of such waste and mismanagement as to render her liable to forfeit the family estate. He further found it proved by documentary and oral evidence that the other debts, the validity of which was impeached by the plaintiff, had been incurred for purposes binding on the estate. It is necessary to state the details regarding those debts since it is contended that most of the alienations in question in this suit were mainly due to those debts. It was found by Mr. Goldie that Kuthala Thevar, the Zemindar himself, was indebted to one Muthukaruppan Chettiar (3rd defendant in the suit of 1861) in the sum of Rs. 2,100 and the widow borrowed of the same Muthukaruppan Chettiar Rs. 3,400 in 1858 to pay one Sadasiva Tharvadiar from whom she had previously borrowed Rs. 2,900 in order partly to discharge certain debts owed by the Zemindar to several persons and partly to pay the Government revenue. So the widow executed two bonds in favouu of Muthukaruppan, one for Rs. 4,811 and the other for Rs. 700. It appears from the evidence that Muthukaruppaa Chettiar instituted a suit to recover Rs. 5,000 on the bond for Rs. 4,800 and obtained a decree by consent on the 24th December 1858 for Rs. 5,300 to be paid in six instalments. Kuthala Thevar also owed Rs. 1,821-14-10 to one Thanappen Chettiar (4th defendant in the suit of 1861) and this debt was transferred to one Vythilingam Pillai (5th defendant in the suit of 1861) and another debt of Rs. 4,400 embodied in a consent decree and admitted by the plaintiff's pleaders in the suit of 1861 to have been almost entirely contracted by the Zemindar, was transferred to the same Vythilingam Pillai by Sadasiva Tharvadiar who himself was assignee of one Uthaman Chettiar (2nd defendant in that suit). Thus we have it that it was established before Mr. Goldie in 1863 that the debts for which the widow executed bonds in favour of Muthukaruppan Chettiar for Rs. 4,800 and Rs. 700 respectively and the sums of Rs. 1,821 and Rs. 4,200 which the widow owed to Vythilingam Pillai were debts binding on the inheritance, being in the most part incurred by the last Zemindar himself and to a small extent by the widow for the payment of peishcush.

2. The decree in execution of which properties in Schedules A and D were sold was obtained by one Ramalinga on a bond (Exhibit III a) for Rs. 20,000 executed in his favour by the widow on the 9th February, 1865. The bond recites that the amount was borrowed to discharge decree-debts due to Vythilingam Pillai and Muthukaruppan Chettiar which in the litigation of 1861 were held to be valid and binding on the estate. On the date of Exhibit III a the judgment-debt of Rs. 4,400 due to Vythilingam Pillai amounted to Rs. 6,493 and the other debts of Rs. 1,821 due to him amounted to Rs. 2,915 and the decree-debt for Rs. 5,300 due to Muthukaruppan Chettiar amounted to Rs. 11,426, in all something over Rs. 20,000. Ramalinga obtained a decree for Rs. 26,574 odd in a suit No. 5 of 1 863 instituted under the provisions of the Registration Act on the bond for Rs 20,000 and in execution thereof properties in Schedules A and D were sold and purchased by Ramalinga Mudaliar himself in August 1870 for Rs. 24,500. Ramalinga sold six villages of Schedule A to the 3rd defendant in 1879 for Rs. 11,500, the remaining one village in that schedule to the 4th defendant in 1885 for Rs. 22,000 and the properties mentioned in schedule D to the grandfather of defendants Nos. 106 to 108 in September 1869 and January 1870 for Rs. 2,400. We may at once mention here that it is not suggested that the judgments-debts owing to Vythilingam Pillai and Muthukaruppan Chettiar have not been discharged, and it is not shown that those debts were satisfied out of money other than that borrowed from Ramalingam Mudaliar.

3. The history of the properties comprised in Schedule B is briefly this; on the 25th October 1873 one Purnalingam Pillai purchased these properties at a court auction in execution of a decree obtained against the widow in a suit (No. 87 of 1870) instituted by the sons of one V. Perumal Pillai on a bond executed by the widow in the latter's favour on the 7th June 1862 for Rs. 2,600. The 5th defendant who is now in possession of these lands derives her title though certain transfers from Perumal Pillai. It is stated in the bond that the sum of Rs. 2,336-1^-8 was wanted for the payment of peishcush, the balance Rs. 263-4-0 being paid to the widow in cash. We may state here that it is abundantly clear from the evidence alluded to in paragraphs 74 and 77 of the Subordinate Judge's judgment that up to June 1862 the arrears of peishcush amounted to generally Rs. 2,000, that the Revenue authorities had been pressing for payment and the widow complained of her inability to make collections owing to the obstructions of other persons, and that by the 5th August 1862 she paid the peishcush.

4. On the question of necessity, one of the points for determination is what was the income of the Zemindary derived by the widow at the time of the transactions which are in question, i.e., broadly speaking, between 1857 and 1862 and whether the widow was in possession of the jewels and cash of the value of Rs. 10,000. On the latter question the Subordinate Judge rightly observes that it is difficult to accept the statement of the plaintiff in this suit, having regard to the fact that in the plaint in the suit of 1861 she had stated that the value of the moveables which came into possession of the widow was only Rs. 710, and we have therefore no hesitation in agreeing with the lower court in its conclusion - and in fact that conclusion was not seriously challenged before us - that the plaintiff has failed to prove her allegations on this point.

5. As regards the income of the Zemindary during the period of the transactions in question the matter is left in obscurity and we feel that with the materials available to us it is not possible to form an accurate estimate of it.

6. The plaintiff, in her plaint in the suit of 1861, stated that the villages and the Zemindary 'yielded' an income of Rs. 5,400 including the peishcush thereon, which is Rs. 3,028-11-8 per annum, and this is understood by the court below to mean that the income of the Zemindary was Rs. 5,400 out of which the peishcush of Rs 3,028 was to be paid. The net income of the Ayan lands is mentioned as Rs. 1,000 a year. Therefore the actual net income of the entire properties which came into the possession of the widow was according to the plaintiff's statement, in 1861 about Rs. 3,000 a year. But Mr. Goldie states in his judgment that according to the statement furnished by the pleaders of Thangama Nachair the income of the Zemindary was Rs. 15,000 and, relying on that statemen, the says that the widow was in enjoyment of a large income and that she was under no necessity to borrow a sum of Rs. 3,000.

7. Exhibit XXVI b, a statement dated the 10th December 1868, showing the proportional share of peishcush fixed for each village in the Zemindary, and Exhibit XXVI c, an account dated the 10th May 1869, showing the division of the Zemindary, give Rs. 14,173-11-9 as the income of the Zemindary. If the above be taken to represent the gross actual income out of which figures the peishcush of Rs. 3,000 odd and the collection charges and road-cess, which according to the defendants' (sic) witness, the Kurnam of Naduvakurichi Kaspa, amounted, in his experience of 15 years previous to the present suit, to Rs. 1,000 and Rs. 400 respectively, altogether to Rs. 1,400 on the average - and the collection charges in 1863 would certainly have been less and not I more - the net income of the Zemindary would be between Rs. 12,500 and Rs. 13,600 a year.

8. The learned Subordinate Judge however assumes - we say, assumes because he does not refer to any evidence on which he relies in this connection - that the plaintiff's statement in 1863 is correct and seeks to explain away the statement filed by the widow's pleaders and the finding of Mr. Goldie based thereon by suggesting that the Rs. 15,000 'apparently include probable income of waste lands, etc.' The latter suggestion is supported to this extent by Exhibit XXVI b that the income as given therein is both of the cultivated and waste lands. But that document does not show either the amount of income from the waste lands or its proportion to the total income or that it is a mere estimate of probable income and not a statement of the actual income. The Subordinate Judge does not rely upon any evidence to support his conclusion on this point. He does not find at least expressly what portion of that income of Rs. 15,000 represents merely possible income of waste lands. The learned Advocate-General who appeared in this appeal for the defendants Nos. 3, 4 and 106 to 108 relies on Exhibit XV which is a cadjan jamabandy account for Fasli 1267 (1856-7) as showing the total jama of Naduvakurichi Zemin for Fasli 1266 to be Rs. 2,505 and that for Fasli 1267 to be Rs. 4,534 and on Exhibit XXVI series which purport to be an abstract of the income of cultivated land and probable income of uncultivated land of each village as showing that in estimating the total income the possible income from waste land which for one Fasli (73) is given as about Rs. 8,000 must have been included. The learned Subordinate Judge found himself unable to place any reliance on these cadjan accounts and we are not prepared to say that he ought to have acted upon them. The defendants' witness No. 4 who produces these papers admits that he is in possession of all the accounts from the very beginning, and his explanation as to why he has selected only the jamabandy account for 1267 is not to our minds altogether satisfactory, though we are not prepared to hold that the other accounts have been wilfully suppressed. And as to Exhibit XXVI series there is no evidence as to why and for what purpose those abstracts came to be prepared and there is no means of verifying whether such abstracts are accurate. There is indeed no guarantee of their correctness from anything that appears in the evidence. We agree with the Subordinate Judge that the defendants ought to have asked the defendants' witness No. 4 to produce all the various kinds of accounts for all the years covered by the transactions so that the question of actual income might not be left in doubt. The defendants' witness No. 4 says that the cadjans produced are the originals in the handwriting of his father who held the office of Kurnam before him, but that the fair copies which were sent to the Zemindar's office would alone contain his father's signatures and the dates of transmission. No proper explanation is forthcoming why such copies transmitted to the Zemindar's office, which would in that ordinary course come into possession of the purchasers of the properties, have not been produced.

9. Now to turn to the evidence of the defendants' witness No. 4 as to the income of the Zemin : he says that for the 15 years of which he had experience the actual income has been Rs. 10,000 out of which, if we deduct the amount to be paid for peishcush Rs. 3,128, for road-cess Rs. 400 and the collection charges Rs. 10000, the net income left would be about Rs. 5,500. In the absence of any proof the defendants, in our opinion, are not entitled to ask us to assume that during these years the clear realisable income of the Zemindary was substantially less than Rs. 5,500.

10. We now proceed to deal with the questions which Arise with respect to the properties in schedules A and D. In our opinion the Subordinate Judge is right in holding that Rs. 20,000 was actually borrowed under Exhibit III a and that the debts for the payment of which the amount purports to have been borrowed were in fact so discharged. The transaction took place as far back as 1865 and all the parties to the transaction and the attestors to the bond are dead and it would not be reasonable under the circumstances to expect any direct evidence on either of the points. But it is not suggested that those creditors have not been satisfied or that they have been paid otherwise than with the money borrowed from Ramalinga as recited in Exhibit III a. It is not proved that the widow inherited cash or valuaable moveabes, and she had been complaining that she was obstructed in making collections and had been borrowing mone) in order to pay peishcush. These circumstances combined witt the fact that she and the plaintiff, the next reversioner, were on very unfriendly terms would make it improbable, quite apart from the question whether the widow was in fact unable to meet the Government's and other lawful demands with the receipts from the Zemindary, that she should have discharged the debts mainly incurred by the late Zemindar out of her own income which she would neither be legally bound nor inclined to do. That a Hindu widow is entitled to the entire net income of the estate after the payment of peishcush and other similar charges and is not bound to pay her husband's debts out of her income is well established see Ramasami Chetty v. Mangaikarasu Nachiar I.L.R. (1894) M. 113 and Debi Dayal Sahoo v. Bhan Pertap Singh I.L.R. (1904) C. 433, and has not been disputed by Mr. Section Srinivasa Iyengar, the learned vakil for the appellant. Now the debts for the payment of which Rs. 20,000 was borrowed from Ramalinga having been traced almost entirely to Kuthala Thevar, the other contention of the appellant which remains to be considered in this connection is whether the provision for payment of compound interest at 12 p.c. in the bond, Exhibit III a, is so unreasonable that we must hold that the widow could have been under no necessity to borrow on such terms. It is even contended that a Hindu widow is not entitled to agree to the payment of compound interest. But there is no authority for such an absolute proposition which of the face of it is untenable. It must depend on the exigencies of the circumstances in which a loan is incurred whether a provision for compound interest should be held to be reasonable or otherwise. This is all that can be gathered from Hurro Nath Rai Chewdhri v. Randhir Singh I.L.R. (1891) C. 311. There is no evidence in this case that Thangama Nachiar could have obtained the money on more favourable terms. We agree, therefore, with the Subordinate Judge that there was necessity for Exhibit III a.

11. The next important question is what interest passed by the sale in execution of the decree obtained on Exhibit III a. The decree was under the especial provisions of the Registration Act XVI of 1864 and it may be taken to be the settled law that under that Act only a simple money decree and not a mortgage decree could be passed see Boistub Churn Tevaree v. Gobind Parshad Tewaree (1871) 13 W.R. 203, Asma Bibee v. Ram Kant Roy Chowdhry (1873) 19 W.R. 251 and Ankhe Nam v. Nand Kishore I.L.R. (18875) A. 236. In fact the decree, Exhibit III, is a simple money decree and does not create any lien on any property. That being so, the decree-holder, it is contended, would only be entitled although the debt was incurred for legal necessity to sell merely the widow's interest in the estate and not the reversion. The argument is that you cannot go behind the decree and show that the debt was chargeable upon the estate and the widow not having been sued in her representative capacity and the reversioner not having been joined in the suit or the execution proceedings only the widow's interest could be sold. The main contention of the respondents is that the debt on which the decree is founded having been incurred for legal necessity the entire inheritance was liable to be sold in execution of the decree and not merely the widow's interest and the only point for enquiry is what was in fact sold. This question in one shape or other has been the subject of repeated discussion before the Judicial Committee and we proceed to examine those cases with a view to see if they have laid down any principles which would be applicable to the facts of this case.

12. To begin with Nugender Chunder Ghose v. Sreemutty Kaminee Dossee (1867) 11 M.I.A. 241; there the mortgagee from the last male proprietor paid the Government revenue in order to save the estate which was then in the hands of the deceased proprietor's widow and which for no justifiable reason she had failed to pay. The mortgagee, instead of suing on his mortgage for sale of the estate tacking on thereto the amount so paid, sued the widow to recover this amount only and obtained a personal decree against her. It was held that in execution of that decree only the widow's interest could be sold as she, to the knowledge of the decree-holder, had made default in payment of the revenue in order to destroy the estate and therefore the reversioner would be entitled to recoup the same out of the widow's life profits.

13. The case of the General Manager of the Durbhanga Raj v. Maharaj Coomar Ramput Sing (1872) 14 M.I.A. 605 was a suit instituted against the last male owner for arrears of rent, but he having died pending the trial the widow was brought on the record as representative and a decree was passed against her. In execution of that decree the entire estate was sold. Their Lordships approving of the decision in Ishan Chunder Mitter v. Buksh Ali Soudagar, reported in Marshall's Reports page 614, held the son was also bound by the decree and that the whole proceeding, if fairly looked at, showed that the entire estate was sold.

14. In Baijun Doobey v. Brij Bhookun Lall Awusti I.L.R. (1875) C. 133, where the cases Nugender Chunder Ghose v. Sreemuthy Kaminee Dassee (1867) 11 M.I.A. 241 and General Manager of the Durbhanga Raj v. Maharaj Coomar Ramput Singh (1872) 14 M.I.A. 605 and the decisions of the High Courts on the subject are reviewed and discussed, there is a sentence in the judgment of the Judicial Committee delivered by Sir Barnes Peacock that according to Kristomoyee Dassee v. Prosunno Narain Chowdhury (1866) 6 W.R. 304 all that would be sold under a personal decree against the widow would be her interest, but the very next sentence runs thus: 'It was there held that when only the rights and interest of a widow in the property left by her husband were sold in execution of a decree against her on account of a debt contracted by her, and neither the decree nor the sale proceedings declared the property itself liable for the debt the purchaser obtained an interest in the estate only during the widow's life-time.' Then their Lordships consider the terms of the notification of sale which they observe did not say that the decree was to be levied out of the husband's assets but stated that whatever right and interest the judgment-debtor had would be sold and that besides such right and interest the right and interest of no other person would be sold. They go on to observe that in the case before them the decree in execution of which the sale took place was one for recovery of maintenance due to the plaintiff herself who was also the reversioner; it was the right and interest of the judgment-debtor, the widow, which was liable to make good her default in non-payment of the maintenance, and that the plaintiff wanted to sell the widow's estate and not his own interest, and therefore the teal question was what was liable to be sold under the decree and what in fact was sold. They also rely on the statement in the appellant's certificate of purchase that whatever right, title and interest the judgment-debtor had in the property had become vested in the auction-purchaser in arriving at their conclusion that 'what was intended to be sold was the widow's interest only.' If the Judicial Committee had regarded the terms of the decree to be conclusive there would have been no necessity to discuss the question what was in fact sold and what was intended to be sold under the decree, which was merely a personal one. Besides the claim against the widow was, as pointed out in Jugal Kishore v. Jotendro Mohun Tagore I.L.R. (1884) C. 985, for a personal debt due by her, the widow having received the profits and failed to pay the maintenance, and the suit was to enforce her personal liability. In our opinion, therefore, this case of Baijan Doobey I.L.R. (1875) C. 133, far from supporting the appellant's contention, is against its correctness.

15. In Kistomoyee Dassee v. Prosunno Narain Chowdry (1866) 6 W.R. 304, referred to by their Lordships with approval, the principle governing the decision is thus stated : 'Here she was a Hindu widow in possession and the debt contracted was by her and her rights and interests in the property were sold. To that extent and no further did the appellant purchase, and that purchase conveyed the interest in the estate only during the life of the widow. The decree might have declared the property itself liable for the debt, but in the absence of any such statement in the decree or in the sale proceedings, we think under the circumstances, we must restrict the auction purchaser to the terms of his purchase.' In Suraj Bunsi Koer v. Sheo Pershad Sing I.L.R. (1878) Cal. 148, it was held that by a sale under a decree obtained against the father the son's interest did not pass inasmuch as the father's debt was one for which the sons were not liable.

16. In Deendayal's case I.L.R. (1877) C. 198 the decree was against a Hindu father for debt incurred by hire for ' legal necessity.' The son was not a party to the suit and in execution of the decree the right, title and interest of the father was seized and sold. On those facts the Judicial Committee held that the father's interest alone passed by the sale, referring for authority to the cases of Nugender Chunder Ghose (1867) 11 M.I.A. 241 and of Baijan Doobey I.L.R. (1875) C. 133. But they do not lay down in Deendayal's case I.L.R. (1877) C. 198, as explained by them afterwards, that the son's interest could under no circumstances be sold if the son was not joined in the suit.

17. In Jugul Kishore's case I.L.R. (1884) C. 985 it was held that the absolute interest was sold and not merely the widow's interest, though the sale certificate in conformity to the provisions of the Civil Procedure Code stated that the right, title and interest of the judgment-debtor was sold. Here the decree in execution of which the sale took place was for costs for which the widow was liable as one of the defendants in a suit instituted against her and other members of the joint family by a person claming a share therein. Their Lordships point out that, as held in the Sivaganga case (1863) 9 M.I.A. 539, although a widow has for some purposes only a partial interest, she has for other purposes the whole estate vested in her and that in a suit against the widow in respect of the estate the decision is binding upon the reversioner. There they quote the passage 'Assuming her' - that is the widow - 'to be entitled to the Zemindari at all, the whole estate would for the time be vested in her absolutely for some purposes, though in some respects for a qualified interest.' In the present case the decree on Exhibit III a was not in respect of the estate, but that would only make this difference : the reversioners would not be bound by the decision in that suit and it would be open to them to show that the debt was for a purpose for which the entire inheritance could not be sold.

18. In the case of Nanomi Babuasin v. Madhun Mohun I.L.R. (1885) C 21 the sale took place under a decree obtained against a Hindu father for debt incurred by him which was found not to have been incurred for immoral purposes. The Judicial Committee held that the only question for consideration was 'whether anything more than the father's coparcenary interest was bargained for, paid for and taken possession of by the purchaser' and, agreeing with the. courts in India that it was clear from the execution and sale-proceedings that the purchaser must have thought he was buying the entirety, and indeed all parties thought the same, held that the entire family property was sold.

19. With reference to the arguments of Mr. Doyne, the learned Counsel for the appellants, who relied on Deendyal's case I.L.R. (1877) C. 198 they explain that case as we have already mentioned, and observe that the question was really governed by Girdhari Lal's case (1874) L.R. 11 A. 321 and Suraj Bunsi's case I.L.R. (1879) C. 148 They say that if the debt was of a nature to support the sale of the entirety he (the father) might have legally sold it without suit or the creditor might legally procure a sale of it without suit and all the sons can claim is that, not being parties to the sale and execution proceedings, they ought not to be barred from trying the fact or the nature of the debt in a suit of their own. There it is pointed out : 'If the expressions by which the estate is conveyed to the purchaser are susceptible of application either to the entirety or to the father's coparcenary estate alone (and in Deendyal's case I.L.R. (1877) C. 198 there certainly was an ambiguity of that kind) the absence of the sons from the proceedings may be a material consideration. But if the fact be that the purchaser has bargained and paid for the entirety he may clearly defend his title to it upon any ground which would have justified a sale if the sons had been brought in to oppose the execution proceedings. Nothing can be clearer than this language to show that the real question for decision in these cases is what was intended to be sold and what was bought by the purchaser, and not whether the persons whose interests are affected by the sale were parties to the proceedings, provided of course the debt was of a nature for which the judgment-debtor could have legally sold the entirety. If the son or the reversioner, as the case may be, was not a party to the proceedings, that is only a circumstance to be considered in determining the question what was sold, and it would be open to the son or the reversioner to show that the debt was not for a proper purpose.

20. In Simbunath Pande v. Golap Singh I.L.R. (1887) C. 572 where the question was whether the son's share was sold under a decree obtained against the father, their Lordships observe : 'Each case must depend on its own circumstances. It appears to their Lordships that in all the cases, at least in recent cases, the enquiry has been what the parties contracted about, if there was a conveyance, or what the purchaser had reason to think he was buying if there was no conveyance but only a sale in execution of a money decree.' Upon the evidence in that case they came to the conclusion that only the father's interest was sold. Their Lordships laid stress on the language of the sale certificate as the instrument which conferred title, remarking that, although that language which stated that the right, title and interest of the judgment-debtor was sold was influenced by the provisions of the Civil Procedure Code, it afforded a prima facie conclusion which required to be rebutted. The facts that the creditor did not take steps to bind the other members of the family and that the price paid was nearer the value of the father's share alone than the entirety were relied upon to strengthen the prima facie conclusion that the father's interest alone was sold. Again, neither the non-inclusion of the sons in the suit or the execution proceedings nor the nature of the decree was deemed to be conclusive of the enquiry.

21. In Pettachi v. Chinnatambiar I.L.R. (1887) 10 M. 241, in execution of a decree, against the holder of an impartible Zemindary, the right, title and interest of the Zemindar was sold. The Judicial Committee agreed with the conclusion of the learned Judges of this Court (Turner C.J. and Muthusami Iyer J.) that only the personal interest of the judgment-debtor was sold and not that of his son and successor. Sir Barnes Peacock, referring to the arguments advanced at the bar on behalf of the appellants, observes : 'It is not a question of what the court could have done or what they ought to have done, but what they did, what was put up for sale, and what was purchased.' There also the terms of the sale certificate, the proceedings in execution and the inadequacy of price were taken into consideration. The next decision of the Board is that of Daulat Ram v. Mehr Chand I.L.R. (1887) C. 70. That was a case of a sale in execution of a mortgage decree against the managing members of a Hindu trading family who had executed a mortgage for debt due by the firm; the plea by the members of the family that the sale did not affect their interests inasmuch as they were not parties to the suit was disallowed on the authority of Nanomi Babuasin's case I.L.R. (1885) C. 21.

22. In Mahabir Pershad v. Moheswar Nath Sahai I.L.R. (1889) C. 584 the question was what was sold under a decree against the plaintiff's father founded on debts which were not shown to have been incurred for illegal or immoral purposes, whether the entire family property or the father's interest, and their Lordships held, on consideration of the evidence that the entire family property was sold. In coming to that conclusion they rely on certain proceedings in execution which showed that all parties - judgment-creditors, judgment-debtor, the plaintiff and his advisers - considered that the thing put up for sale was the entirety of the estate, and, holding that the question was one of fact, gave an extended meaning to the condition in the sale certificate 'that in future the certificate shall be considered as a good evidence of transfer of the right and interest of the judgment-debtor.' Their Lordships rely upon their own previous rulings in Nanomi Babuasin v. Madhan Mohun I.L.R. (1885) C. 21 and Bhagbut Pershad Singh v. Girja Koer I.L.R. (1888) C. 717. In Abdul Aziz Khan v. Appayasami Naicker I.L.R. (1903) M. 131 referred to by the appellant's vakil, the decrees were On debts incurred by the holder of an impartible Zemindary and in execution of those decrees the right, title and interest of the judgment-debtor purported to be sold as evidenced by the sale certificate. The Zemindar, according to the rulings of the Indian courts at the time of sale, had only a life interest in the Zemindary, but, when the suit was instituted, the Privy Council had held that the holder of an impartible Zemindary had an absolute interest in it. The debts were not incurred for purposes which would justify alienation by the Zemindar of the absolute interest in the property, according to the law as then understood, his own interest being of a limited character. The Judicial Committee held that the law, as interpreted at the time of sale, must be applied to the construction of the contracts as contained in the sale certificates, and held, following their own decisions in Mahabir Pershad v. Moheswar Nath Sahai I.L.R. (1889) 17 C. 584 and Simbhunath Pande v. Golap Singh I.L.R. (1887) C. 572 that in all cases, at least the recent cases, the proper enquiry has been what the parties contracted about, if there was a conveyance, or what, the purchaser had reason to think he was buying, if there was no conveyance but only a sale in execution of a decree or as put by Lord Watson in the course of the argument in Pettachi Chettiar v. Sangili Vexra Pandia Chinnathambiar I.L.R. (1887) M. 241 : 'The questions are what did the court intend to sell and what did the purchaser understand that he bought.' Then they say, 'these are questions of fact or rather of mixed law and fact and must be determined according to the evidence in the particular case.' It is to be observed here that the judgment of the Judicial Committee assumes that, if the debt were incurred for justifiable causes the creditor, though he obtained only a money-decree thereon, could sell in execution thereof, the absolute interest, and they lay down the proposition that in all cases of sales under a money-decree the question for determination is what was actually sold and bought by the purchaser, whether the limited estate of the judgment-debtor or the absolute interest. If the judgment-debtor had in fact an absolute interest, but only a limited interest was sold and purchased by the auction-purchaser under a misconception of the law, the purchaser cannot claim a larger interest and must be held to his bargain. On the other hand, if the debt on which the decree is founded was one for which the judgment-debtor was empowered to bind the absolute estate, although be himself was beneficially entitled to only a limited estate in the property and the absolute interest was put up for sale, the purchaser would acquire title to the absolute interest.

23. In Jiban Krishna Roy v. Broj'o Lal Sen I.L.R. (1903) C. 550 their Lordships of the Privy Council, in confirming the judgment of the Calcutta High Court - Brojo Lal Sen v. Jiban Krishna Roy I.L.R. (1899) C. 285 - take as the basis of their decision the passage in the judgment of the learned Judges of the High Court, in which it is pointed out that the liability for arrears of rent for which decree was obtained was the widow's personal liability inasmuch as she ought to have paid the rent out of the income of the property, and did not therefore attach to the reversion, and that the landlord did not in fact proceed to bring the tenure itself to sale under the especial provisions of the Rent Law. That case, therefore, is distinguishable from the present case.

24. We may thus summarise the law as established by these cases. A Hindu father or manager of the family or a widow may, in certain circumstances, bind the entire estate by his or her dealings. The father can sell or mortgage not only his own share but that of his coparcener sons for debts which are not shown to be immoral or illegal; the manager of the family can deal with the family property including the shares of the other members of the family for proper family purposes, and a Hindu widow is entitled to sell or charge the entire interest in the family property - her own as well as that of the reversioners - for legal necessity In any of these cases the title of the alienee cannot be impeached nor in a case where the purchaser or mortgagee made bona-fide enquiries and satisfied himself as to the necessity for which the alienation was made. In the case of a sale it makes no difference whether it was effected by a conveyance or took place at a court auction in execution of a decree. When the sale is in execution of a decree, and the coparceners or reversioners intervened in the proceedings in execution, and the question was raised and decided in their presence that their interests were also liable to be sold, they would not afterwards be allowed to reopen the question as to the character of the debts. A fortiori they would be precluded from raising such questions if they were parties to the suit.

25. In the case of a widow, if the suit for recovery of debt incurred by her husband was instituted in the life-time of her husband and revived on his death against the widow in her representative capacity, or the decree in respect of such a debt was obtained against her husband and executed on his death against the widow as representing the estate, or the decree itself was in respect of the estate and there was nothing fraudulent in the conduct of the widow, the reversioners would be concluded by the proceedings so far as the liability of their interests being sold under the decree is concerned. But it may be that even in such cases the interests of the coparceners or the reversioner, though liable to be sold, were not in fact brought to sale, however strong the presumption might be to the contrary. If the coparceners or reversioners were not parties to the suit, and the head of the family or the widow was not sued as representing the estate and the decree was not against the estate but a personal decree, and the coparceners or reversioners were not joined in the execution proceedings, it would be open to them to contend that the judgment-debt was not such that their shares or interest could be sold in execution thereof. It also seems to us that the effect of the Privy Council ruling is - though it is not necessary to decide that point in the present case - that, even if the debt be, found to be in fact immoral or illegal or not incurred for legal necessity a bona-fide purchaser of the entire interest at a sale in execution of a decree founded on that debt will be protected, if he can show that he made proper inquiries and satisfied himself as to the character of the debt, though in fact he might have been deceived. However that may be, if the foundation of the decree be a debt of the proper character, for which the widow could have bound the entire interest, it is sufficiently clear, as the result of Privy Council decisions, that even if the decree is based on the widow's contract, and does not give a charge on the husband's estate, and the reversioners had not been made parties to the suit or execution proceedings, the decree-holder would be entitled to have the entire estate sold, and if in fact the entire estate was sold and bought by the purchaser, the reversioners could not defeat the purchaser. And this seems to be perfectly in consonance with the principles governing such questions. The real question, therefore, in these cases is, what in fact was put up for sale and sold or, putting it most in favour of the reversioner, what was liable to be sold and what in fact was actually sold. In investigating this question the court is not confined to any one fact. The sale certificate is no doubt the most important document as the instrument conferring title but is not conculsive. The frame of the suit, the judgment, the decree, the execution proceedings, the advertisements for sale, the adequacy or inadequacy of the purchase-money and the conduct of the parties are all circumstances which may legitimately be considered in an enquiry of this nature.

26. That, in our opinion, being the rule governing the subject as laid down by the Judicial Committee, we shall now very briefly notice some of the more recent High Court decisions. The cases in Narana Maiya v. Vasteva Karanta I.L.R. (1893) M. 208, a decision of Muthusawmy Iyer and Best JJ., and in Giribala Dassi v. Srinath Chandra Singh 12 C.W.N. 769 Rampini and Sharfuddin JJ.) undoubtedly support the contention of Mr. Section Srinivasa Iyengar. In the former, the facts of which are imperfectly reported, the learned Judges relying on Baijan Doobey's case I.L.R. (1875) C. 133 held that, the decree in execution of which the sale took place being a personal decree against the widow and not as the representative of the husband's estate, only the widow's interest was sold, not that nothing more could in any circumstances be sold under such a decree. They further held, the case being one of a court sale and not of a voluntary sale by the widow in discharge of her husband's debt, the question whether the debt was due from the husband was immaterial. This distinction, we venture to think, is unwarranted by principle and negatived by what is laid down in Nanomi Babuasin's case I.L.R. (1886) C. 21 and Daulat Ram's case I.L.R. (1887) C. 70, which cases do not appear to have been brought to the notice of the learned Judges. And in the Calcutta case, where also reliance is placed on Baijan Doobey's case I.L.R. (1875) C. 133, it was ruled that the decree being a personal one against the widow based on a simple money bond executed by the widow, and the reversioner not being a party to the suit, the latter's interest could not be affected by a sale in execution of that decree. This goes even further than Naran Maiya v. Vasteva Karanta I.L.R. (1893) M. 208. With the utmost respect, however, to the learned Judges who decided these two cases, we are constrained to hold that both these decisions are not in accord with the law as enunciated by the Privy Council in at least the later rulings. On the other hand the cases reported in Veera Soorappa Nayani v. Errappa Naidu I.L.R. (1906) M. 484, Srinath Dass v. Hari Pada Mitter 3 C.W.N. 637 and Devji v. Sambhu I.L.R. (1899) B. 135 support the view which we are inclined to take.

27. As we agree with the court of first instance that there was necessity for the bond, Exhibit III-a, we hold that the absolute estate in the properties in Schedules A and D was liable to be sold What then is the evidence as to the interest actually put up for sale and bought by Ramalinga? The sale certificate which ought to be in the possession of the respondents (see Exhibit XX) has not been produced and no proper explanation has been given to us as to its non-production. The decree (Exhibit III) was a money decree, and except the order confirming the sale (Exhibit III-b) which no doubt shows that the 7 villages were sold and not only the widow's interest therein, the other proceedings in execution that are available to us--Exhibits III-b, III-c, III-d, and III-e-- do not, in our opinion, throw much light on the question. That being so, supposing the case rested here, we might have felt some difficulty in holding that anything more than the widow's estate was sold, and that is apparently the view of the Subordinate Judge. The learned Subordinate Judge, however, appears to think that the fact that Thangama Nachiar was described in the suit of 1865 as the Zamindarini of Nadavakurichi was something in support of the defendants' case, and the learned Advocate General has laid emphasis on this description as if it showed that Ramalinga intended to proceed against the entire estate as represented by the widow. But we do not think the mere description of Thangama Nachiar as the Zamindarini lends colour to any such inference. But the evidence, which is greatly relied on by the court of first instance in connection with the present inquiry, is Exhibit i. It is called an agreement and was executed on the 26th April 1875 by the plaintiff and her husband in favour of Ramalinga. That document recites that the amount mentioned in Exhibit III-a was advanced by Ramalinga for the discharge or debts due by the Zamindar, Kuthala Thevar, and therefore the debt was binding upon the Zemin and that in execution of the decree obtained by Ramalinga on the said debt the mitta comprising the seven villages in question was sold and purchased by Ramalinga. Then it states that Ramalinga gave away, out of favour to the executants of Exhibit I, 2 cottas odd of certain land belonging to him and a sum of Rs. 100, the amount of a Small Cause Court decree obtained by Ramalinga against the plaintiff's husband. Apart from the question of its legal effect the plaintiff sought to impeach the document on the ground that it was executed under undue influence and that the plaintiff, who was alleged to be a gosha lady, executed it without understanding the purport and contents of the document. The Subordinate Judge, after a full discussion of the evidence, has found against both these pleas and it has not been shown that that finding is wrong. In fact the learned pleader for the appellants has not even printed the plain -tiff's evidence and has made 110 serious attempt to satisfy us that the judgment of the first court is wrong on this point.

28. We are, however, asked to say that on the very face of the document it is void as being a transfer of a spes successionis, or to treat it as a catching and unconscionable bargain with an expectant heir. As regards the first contention it is no doubt a pure question of law, but the document does not purport to create a transfer of the plaintiff's right to succeed as a reversioner. This fact is also a sufficient answer to the argument that it is to be regarded as a catching and unconscionable bargain. Further, the question whether Exhibit I, supposing it can be treated as constituting a bargain at all, is a catching and unconscionable bargain, would be one of fact and was not expressly raised by the issues. Neither the plaintiff nor her husband, at the time of its execution, were very young persons and fully understood what they were about. But it is urged that, since the properties were of considerable value and were given away in exchange for 2 cottas of land and Rs. 100, that in itself is sufficient evidence to cast upon the defendants the onus of shewing that the bargain was a fair one. But the argument presupposes that the properties had not passed to Ramalinga by the sale and that the plaintiff's reversionary interest still subsisted. The truth is that Exhibit I can only be regarded as containing a statement in the nature of admission by the plaintiff that the debt on which the decree in the Registration suit was founded was one properly chargeable on the estate and that the entire estate was sold in execution of the decree. We have already shown it on the evidence which is still available that the debt was for legal necessity, and Exhibit I is of considerable value as strengthening that conclusion. On the other question also, the nature of the interest which passed by t he sale, a question which is mainly one of fact, the Subordinate Judge has in our opinion, rightly placed reliance, on the admissions contained in Exhibit I. These admissions were made about 5 years after the date of the sale, when much of the evidence which has since been lost was still available, and all the facts in connection with the sale must have been fresh in the minds of the plaintiff and her husband. On the whole, therefore, we are of opinion that the finding of the Subordinate Judge that the entire estate in the properties A and D passed to Ramalinga is correct.

29. As regards the properties comprised in Schedule B, we agree in the conclusion of the court of first instance, that, except a small sum of Rs. 263, the bulk of the money, namely, Rs. 2,336 was borrowed from Perumal Pillai in order to pay the peishcush. Assuming that the income capable of being derived from the Zemindary was nearer Rs. 5,000 than Rs. 2,000, still the letters and orders of the Collector passed at the time of this transaction show that there were constant and pressing demands from the Collectorate which the widow was unable to meet, and it is also in evidence that she was complaining that she was unable to make collections. She had been involved in litigation mainly with the plaintiff, and also with other persons ever since the death of the Zemindar. The Subordinate Judge is right in relying on those facts as showing that Thangama Nachiar was in embarrassed circumstances and in need of money. And in a case like this where the question is raised after the lapse of nearly 40 years it would be unreasonable to insist on more definite evidence of necessity. Further, if under the above circumstances a person bona fide lent money on the security of the estate in order to enable the widow to meet the Government dues, it is not the law that the leader must lose his money unless he can show that the widow's difficulties had not been brought, about by gross mismanagement.

30. In the suit on the mortgage bond for Rs. 2,600 Thangama Nachiar was the 1st defendant and Ramalinga Mudaliar, who had purchased the properties in execution of a money-decree passed since the date of this mortgage, was the 2nd defendant. Ramalinga raised the question that the bond was not executed for necessity. But his plea failed and a mortgage-decree was passed.

31. The next question is what was sold under the decree. In the sale certificate what is entered as sold is Ramalinga's interest, but taking all the facts into consideration, the nature of the suit, the issues raised and the judgment and the decree, there can be no doubt that the entire estate in the properties was intended to be sold, and was actually sold, however it might have been described in the sale certificate.

32. The result is that appeal No. 108 fails and is dismissed with costs.


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