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Mulugu Kotayya and ors. Vs. Mudigonda Chandramowli Sastri and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily;Property
CourtChennai
Decided On
Reported in36Ind.Cas.407; (1916)31MLJ406
AppellantMulugu Kotayya and ors.
RespondentMudigonda Chandramowli Sastri and ors.
Cases ReferredIn Malick Sahib v. Mallikarjunappa I.L.R.
Excerpt:
- - the learned subordinate judge was not satisfied with the genuineness and bona fides of the document propounded as nayanappa's will and mr. , papamma and syamalamba) on the 9th march 1864 (exhibit xxvi) and that as syamilamba objected to this, papamma and her grandson lingayya agreed that syamalamba should receive 8 acres 37 cents of land of which she was to enjoy 5 acres 4 cents absolutely and the remaining 3 acres 33 cents: the rest was to be enjoyed by lingayya. 3. the alleged will (exhibit xxv) provides that the two widows were to enjoy the entire property during their life-time and afterwards 'to cause it to devolve on our daughter viyyamma or the members of her family without spoiling or breaking it. a compromise was effected (exhibit xxxii by which the vendee was allowed to.....abdur rahim, j.1. this appeal has been preferred by defendants nos. 4 and 5 in the suit and their alienees the defendants nos. 24, 27 and 29 against the judgment of the additional temporary subordinate judge of guntur by which he has held that the plaintiffs (respondents) are entitled as reversionary heirs to a two-third share of the properties which belonged to one nayanappa, the remaining one-third being found to belong to defendants 1, 2 and 3, the other reversionary heirs. the relationship of the parties is set out in the pedigree attached to the plaint. nayanappa was the grand-son of one mudigonda brahmanna ayyavaru, who left a number of sons of whom mallappa ayyavaru was the great grand-father of defendants 1, 2 and 3, visvapathi was the father of nayanappa and chandrayya was the.....
Judgment:

Abdur Rahim, J.

1. This appeal has been preferred by defendants Nos. 4 and 5 in the suit and their alienees the defendants Nos. 24, 27 and 29 against the judgment of the Additional Temporary Subordinate Judge of Guntur by which he has held that the plaintiffs (respondents) are entitled as reversionary heirs to a two-third share of the properties which belonged to one Nayanappa, the remaining one-third being found to belong to defendants 1, 2 and 3, the other reversionary heirs. The relationship of the parties is set out in the pedigree attached to the plaint. Nayanappa was the grand-son of one Mudigonda Brahmanna Ayyavaru, who left a number of sons of whom Mallappa Ayyavaru was the great grand-father of defendants 1, 2 and 3, Visvapathi was the father of Nayanappa and Chandrayya was the grand-father of the 1st plaintiff and great grand-father of the 2nd plaintiff by adoption. Nayanappa at his death which took place some time about 1832 left two widows, Papamma who died in 1880 and Syamalamba who died in 1906. These two widows were sisters. Papamma had a daughter called Viyyamma and Viyyamma had a son called Lingayya, the father of defendants 4, 5 and 6. Viyyamma died on 20th October 1903, that is long after her mother's death, but three years before her step-mother Syamalamba's death. Lingayya died on the 7th February 1903, that is, during the lifetime of his mother Viyyamma, a few months before her death.

2. The contention of the appellants is that the property belonged to Lingayya, the father of defendants 4, 5 and 6, the source of his title being twofold, firstly under a will purported to have been executed by Nayanappa sometime in August 1832 (Exhibit XXV in the case) and secondly under a surrender effected by the two widows of Nayanappa and concurred in or ratified by Viyyamma, the daughter of Nayanappa by Papamma. The learned Subordinate Judge was not satisfied with the genuineness and bona fides of the document propounded as Nayanappa's will and Mr. Venkatarama Aiyar, the learned pleader for the appellants has not convinced us that the finding of the Subordinate Judge on the point is wrong. It may be that not much importance ought to be attached to some of the circumstances which influenced the Subordinate Judge in holding against the genuineness of the will, but the main reasons given by him are sound. It appears that the two widows divided among themselves the estate of their husband Nayanappa. But some time about 1864, the elder widow was anxious that the entire property should be made over to Lingayya, her daughter's son and disputes arose probably in this very connection between her and her cowidow Syamalamba. They however came to an amicable understanding the result of which is shown in Exhibit IV described as a Kararnama or deed of agreement executed on the 1st August 1868 by Papamma and Lingavya. It recites that Papamma had executed on the 1st June 1868 and got registered a dakhal deed (Exhibit XXVII) of the entire property in favour of Lingayya without the knowledge or consent of Syamalamba though in accordance with the terms of a similar document previously executed by both of them (i.e., Papamma and Syamalamba) on the 9th March 1864 (Exhibit XXVI) and that as Syamilamba objected to this, Papamma and her grandson Lingayya agreed that Syamalamba should receive 8 acres 37 cents of land of which she was to enjoy 5 acres 4 cents absolutely and the remaining 3 acres 33 cents: for her life. The rest was to be enjoyed by Lingayya. The total land inherited by the two widows from Nayanappa amounted to about 33 acres. It is a fact of much significance that no mention is made in Exhibit IV of any will by Nayanappa in favour of Lingayya. In the document however of 1864 (Exhibit XXVI) referred to in Exhibit IV, as it now stands there is mention of a will by Nayanappa but the Subordinate Judge finds that the word in the vernacular mentioning the will are a later interpolation. It undoubtedly does look, as he points out, that something had been erased and the words in question substituted in its place. He further observes that the handwriting of the words in question is different from the rest and that it is unlikely that the widows should have referred to their husband without using the usual honorific words. Exhibit XXIX which is an application made by Papamma on 20th November 1875 to the Collector for transfer of registry with respecb to all the lands left by Nayanappa in the name of her grandson undoubtedly does mention the will of Nayanappa. But in this application the other widow Syamalamba did not join and it is also to be noted that it ignores the compromise arrived at between the widows by Exhibit IV. We have thus the fact that in no document to which the younger widow was a party is there any mention of a will by Nayanappa although it was to be expected that if such a will exiated it would have been relied on at the time of the execution of Exhibit IV and recited therein and also in the dakhal deed of 1864. The mention in the latter document is as I have said, open to grave doubts and is apparently a subsequent interpolation.

3. The alleged will (Exhibit XXV) provides that the two widows were to enjoy the entire property during their life-time and afterwards ' to cause it to devolve on our daughter Viyyamma or the members of her family without spoiling or breaking it.' The date of execution is given according to two eras Nandana and Salivahana Saka 1753. The two admittedly do not correspond for Sravana Sudha 15 of Nandana (August 1832) was Salivahana Saka 1754 and not 1753. The mistake was not likely to have occurred unless the document was written some time afterwards and the man who got it up not being familiar with the calculation of these eras, inserted the Salivahana Saka merely by consulting an old almanac which used to give the previous Saka as corresponding to the current Nandana. No such mistake is to be found in Exhibit XXVI which was written in 1864. The will was produced for the first time before the revenue authorities in 1906 though mention of a will was made in 1875. Taking all the circumstances into consideration it is not possible to say that the finding of the Subordinate Judge that the will is not shown to be genuine and bona fide is wrong.

4. The facts then upon which the appellants' case as to a valid surrender or alienation in favour of Lingayya has to be founded are these: By Exhibit XXVI, leaving aside the recital in it of the will, the bona fides of which are not established, the two widows after stating that according to the Dharmasastras the daughter's son i.e., Lingayya was entitled to the property and to perform their obsequies purported to give him all the property treating him as their kartha and looking up to him to protect them and give them food and raiment. The younger widow was however not willing to give effect to this document but ultimately a compromise was arrived at, that is, 4 years afterwards, according to the terms of Exhibit IV, by which Syamalamba on receiving 5 and odd acres of land absolutely and 3 acres odd for her life relinquished her right to the rest in favour of Lingayya.'To neither Exhibit XXVI nor Exhibit IV was Viyyamma the mother of Lingayya and the immediate reversionary heir a party. In fact we find that Viyyamma in August 1879 instituted a suit (O.S. No. 526 of 1879) seeking a declaration that the sale by Syamalamba on 1st July 1879 in favour of a third party (the appellants in Appeal No. 228) of the 5 acres 4 cents which she had received in absolute right under the compromise Exhibit IV was not binding on the reversion. This action of her shows that, whatever the motive might have been, she did not sanction the transactions between the widows and Lingayya. A compromise was effected (Exhibit XXXII by which the vendee was allowed to retain 4 acres 36-3/4 cents and the remainder was to be enjoyed by Syamalamba for life. No mention is made in the compromise of Lingayya at all. It may be taken as proved that Lingayya was in fact in possession of the property till his death which took place in the life-time of the younger widow and this was probably in accordance with Exhibit IV. But at that time Viyyarnma had no voice in the matter and she herself died during the life-time of Syamalamba having survived her son Lingayya by a few months. Mr. Venkatarama Aiyar on behalf of the appellants has relied on Exhibit VIII, (dated 15th October 1890) which is a deed of purchase by the 1st plaintiff from Lingayya of a small plot of land 70 cents in area and which the latter had obtained in exchange from the former for some other land belonging to the estate of Nayanappa. But at that time, it must be remembered that the plaintiff's chance of succession must have been of a very remote character and apart from its Segal effect I am unable to infer from this particular transaction that the plaintiff gave his consent to the alleged surrender by the widow in favour of Lingayya. Nor would it be reasonable to draw any such inference from the fact that in the boundaries given in some other documents ranging from 1890 to 1902 referred to on behalf of the appellants such as Exhibit IX, X, XVI, XX, etc., some of the properties in-volved in the suit are described as Lingayya's. To none of these Lingayya was a party, though some of them related to transactions in which the 1st plaintiff or the 2nd plaintiff's father was concerned. There can be no doubt that Lingayya was in possession of the lands in question and that would be sufficient to account for the description and no further inference need be drawn from it. The facts therefore, briefly speaking, to which we have to apply the law are : the two widows relinquished their interests in favour of Lingayya, the younger widow consenting to it on receiving a substantial portion of the property amounting to about 1/6th of the whole estate in lieu of her widow's interest in the half. Lingayya remained in possession and enjoyment under the relinquishment ; but neither at the time of the relinquishment by the widows nor afterwards is Viyyamma, the mother of Lingayya who was the immediate reversioner though a female shown to have consented to the widow's action in favour of her son. On the other hand, the only action which Viyyamma took with respect to the estate was inconsistent with the compromise effected between the two widows, on the basis of which alone the younger widow consented to confirm the relinquishment in favour of Lingayya. She however did not take any further steps to impeach or to confirm the relinquishment by the widows nor did any of the other remoter expectant heirs. Lingayya remained in possession and enjoyment of the property except of the portion reserved in favour of the younger widow, until his death which took place during the latter's and his mother's lifetime.

5. Did the property pass then to Lingayya under the above circuinstances? The power of a Hindu widow to alienate the estate inherited by her has been the subject of repeated discussion for a long time past and I shall content myself with stating the gerneral conclusions which, in my opinion, must be taken to be well established. It is perhaps not possible to reconcile with each other all the various decisions on the subject or the theories on which this part of the Hindu Law is based.

6. It is not necessary in this case to make such an attempt. That a widow may surrender her entire estate in favour of the next reversioners is not open to question. On so surrendering, the law treats her as if she was civilly dead thus accelerating the reversion. This was very clearly expounded by the Judicial Committee of the Privy Council in Behary Lal v. Madho Lal Ahir Gayawal I.L.R. (1891) Cal. 235. Their Lordships state: 'It may be accepted that, according to Hindu Law, the widow can accelerate the estate of the heir by conveying absolutely and destroying her life estate. It was essentially necessary to withdraw her own life estate, so that the whole estate should get vested at once in the grantee. The necessity of the removal of the obstacle of the life estate is a partial check on the frequency of such conveyances.' The limitations of the doctrine of surrender are here set out in clear and unmistakeable terms and a Full Bench decision of this Court reported in Maruthamuthu Nadan v. Srinivasa Pillai I.L.R. (1898) Mah. 126, in accepting the doctrine as being applicable to this presidency did so subject to these conditions and limitations. It is said that a later decision of the Privy Council in the well-known case of Bajrangi Singh v. Manokarnika Baksh Singh I.L.R. (1907) A.I has modified the above statement of the Law. This case has given rise to considerable differences in interpretation; but the case of Behari Lal v. Madho Lal Ahir Gayawal I.L.R. (1891) Cal. 235, is expressly referred to in the extract from the judgment of Subrainania Aiyar, J,; in Maruthamuthu Nadan v. Srinivasa Pillai I.L.R. (1898) M. 128, cited in their Lordships' judgment delivered by Sir Andrew Scoble and I can find nothing in it to support the suggestion that the Judicial Committee intended to introduce any modification of their previous ruling on the subject of surrender. Bajrangi Singh's I.L.R. (1907) A. 1, case was in fact, not one of surrender in favour of the next reversioner, but of an alienation made to strangers with the consent of the reveraioners and I shall presently consider how far the appellants' case can be properly rested on that basis. Judged by the rule relating. to surrender as enunciated by the Privy Council in Behari Lal v. Madho Lal Ahir Gayawal I.L.R. (1891) C. 236 and adopted by a Pull Bench of this Court in Maruthamuthu Nadan v. Srinivasa Pillai I.L.R. (1898) M. 128 the relinquishment in favour of Lingayya did not satisfy the requirements of law. Firstly, because it was not intended to be a surrender of the whole estate, one of the widows, Syamalamba, having, in fact, bargained for and obtained an absolute estate in a portion of the property in lieu of her half share in the whole. Secondly, Viyyamma and not Lingayya was at the time the nearest reversionary heir. Viyyamma is not shown to have consented to the relinquishment in favour of her son. If she had, her act might possibly be construed as having the effect of a joint surrender on her part as well as on the part of the widows. Mr. Venkatrama Aiyar argues that the want of consent of Viyamma made no difference and he relies on a decision of the Bombay High Court in Vinayak Vithal Bhange v. Govind Venkatesh Kulkarni I.L.R. (1900) B. 129, where it was held that the absence of consent of a female reversioner like a daughter makes no difference in the operative effect of the male reversioners' consent. The Bombay case, again, was not one of surrender but of alienation and the leading authority on the subject of surrenders, the decision in Behari Lal v. Madho Lal Ahir Gayawal I.L.R. (1891) C. 236 makes it clear that a surrender to be valid must be in favour of the next heir, otherwise there could be no question of accelerating the succession. If the doctrine were to be so extended as to enable a widow to pass over th.3 next revecsioner if she happened to be a female, it could hardly be called a surrender or withdrawal of the widow's estate; it would, in fact, be vesting the widow with power to alter the rule of succession.

7. As for the next contention that the transaction under Exhibits XXVI and IV should be upheld as an alienation made with the consent of the reversioners there are two ways in which alienations so made have been viewed. The fact of such consent or approval being given is in the first place regarded as a proof of the propriety of the transaction, raising a presumption that the alienation was made under circumstances which rendered it a proper and valid act. In Raja Lukhee Dabea v. Gokool Chunder Chowdhry (1869) 13 M.I.A. 209 , the Judicial Committee observe: ' Their Lordships do not wish to impugn the authorities which lay down that a transaction of this kind may become valid by the consent of the husband's kindred, but the kindred as such must generally be understood to be all those who are likely to be interested in supporting the transaction. At all events there should be such a concurrence of the members of the family as suffices to raise a presumption that the transaction was a fair one and one justified by Hindu Law. That it can be as Mr. Field seemed to put it a presumption of law in the sense of ' presumptio Juri et de Jure ' their Lordships do not think. It is no doubt an element to be taken into consideration and deserving of considerable weight in the estimation of all the evidence of the transaction.' In another and a recent decision of theirs Bijoy Gopal Mukerji v. Grindra Nath Mukerjee (1914) 14 M.L.J. 123, Lord Moulton remarks, 'It has always been a feature of Hindu law as administered by this Board to attach great weight to the sanction by expectant reversioners of an alienation of property by a/Hindu woman as affording evidence that the alienation was under circumstances which rendered it lawful and valid. ' These cases clearly establish that the consent of the heirs may be treated as raising a presumption in favour of the propriety of an alienation. So far there is no difficutly. The question which arises is, does not Bajrangi Singh's I.L.R. (1907) A. 1 case go further and treat the consent of the reversioners as imparting by itself legal effect to the widow's alienations apart from its affording evidence of legal necessity.

8. In that case their Lordships of the Judicial Committee laid down that the consent of the reversionary heirs was sufficient and that it was immaterial when it was given, whether at the time of, or after, the transaction and not that they held such consent to be evidence of the propriety of the transaction. In fact it was found that there was no legal necessity and further that the reversioners consented to or ratified the alienations on receiving consideration. They also expressed their agreement with the view of the High Court of Calcutta in Radhashyam Sircar v. Joy Ram Senapati I.L.R. (1890) C. 896 that ordinarily, the consent of the whole body of persons constituting the next reversion should be obtained though there might be cases in which special circumstances may render the strict enforcement of this rule impossible. The reversioners whose consent was in fact treated as sufficient in Bajrangi Singh's I.L.R. (1907) A. 1 case were not merely the immediate reversioners but included those next in degree, if not the entire body of presumptive heirs of all degrees. To the same trend was a previous pronouncement of the Judicial Committee in the Collector of Masulipatam v. Kavaly Venkata Narayanappa (1861) 8 M.I.A. 529 where it is stated: 'On the other hand it may be taken as established that an alienation by her which would not otherwise be legitimate may become so if made with the consent of her husband's kindred.,' The legal effect of the reversioners' consent has been based on different theories in various Judgments of the High Courts namely {a) that the widow along with the reversioners represent the whole estate (b) that according to the theory of Hindu law the reversioners occupy the position of guardians forming a sort of family council and an act done with their consent should be presumed to be valid (c) since the law allows surrender to the next reversioners it logically follows that they and the widow can conjointly deal with the estate any way they like and (d) that; it affords a legal and absolute presumption that the alienation was a proper one. In applying any of these theories wholesale difficulties may arise. The Judicial Committee however seem to place their ruling in Bajrangi Singh's I.L.R. (1907) A. 1 case on a well established course of Judicial decisions in India and not on any particular theory. The proposition laid down by them amounts to this, the consent of substantially the whole body of expectant reversioners is in itself, sufficient apart from legal necessity to validate an alienation even though such consent was given after the transaction and on receipt of consideration. But beyond this we should not be justified in going, for the Judicial Committee itself points out in that ease that the widow's power of alienation should not be extended beyond the limits indicated there. Bajrangi Singh's I.L.R. (1907) A. 1 was also a case in which practically the whole of the estate was alienated, though I do not think that that fact was considered to affect in any way the application of the rule. The relinquishment in the present case in favour of Lingayya could not be treated as an alienation made with the consent of the whole body of the reversioners; for Viyyamma did not give her consent to the relinquishment, nor is there any proof of consent on the part of the other expectant reversioners either given at the time or afterwards.

9. In appeal No. 228 of 1914 it is sought to support the sale of 5 acres ,4 cents under Exhibit I made by Syamalamba on the ground of necessity. It is said that 1877--1878 was a famine year and Syamalamba was under necessity for selling the property in 1879 in order to discharge the debts incurred during the famine times. There is really no evidence in support of this. She apparently sold the property because she thought, though erroneously, that she had an absolute title to it under Exhibit IV.

10. The result will be that both the Appeals Nos. 192 and 228 of 1914 will be dismissed with costs.

11. The costs in Appeal 192 will be payable by all the appellants other than the 2nd appellant.

Srinivasa Aiyangar, J.

12. The facts which gave rise to these appeals may be shortly stated. One Nayanappa died in or about the year 1832 leaving him surviving his two widows Papamma and Syamalamba and daughter Viyyamma by his first wife. Viyyamma had an only son Lingayya who predeceased her by a few months in 1903. Defendants 4, 5 and 6 or his sons and they are the principal appellants in Appeal No. 192. Papamma died in or about the year 1879 and Syamalamba the last widow in 1906. Plaintiffs are the reversionary heirs of Nayanappa and as such they claim the suit properties. It is said that Nayanappa, made a will before his death by which he bequeathed his properties to his widows for life and after their death to his daughter absolutely. The genuineness of the will is disputed by the plaintiffs and it is one of the questions, for determination in this appeal.

13. To proceed with the narrative, the two widows who succeeded to the property of their husband, divided the properties equally (when exactly does not appear) and were in possession for a considerable time, till at least 1864, each enjoying her share separately. In that year the two widows purported to give up the properties which they obtained from their husband to Lingayya. (Exhibit XXVI dated 9bh March 1864). The document however was not registered and it appears that Syamalamba the junior widow was unwilling to carry it into effect. In consequence of that, Papamma the senior widow, in June 1868, purported to transfer the whole of the property including the share of Syamalamba to her grandson Lingayya. (Exhibit XXVII, dated 1st June 1868). This evidently led to further quarrels and disputes between the two widows which were finally adjusted by a registered Kararnama executed by Papamma and Lingayya in favour of Syamalamba in October of the same year, by which about 8 acres of land were given to Syamalamba, of which 5 acres 4 cents were given absolutely; the rest of it was to revert to Lingayya after her death. To these transactions the daughter Viyyamma was not a party and there is no satisfactory evidence that she even consented to them. The sons of Lingayya plead that the transaction of 1864 was a surrender by the widows of Nayanappa and Lingayya their father, the male reversioner, obtained an absolute estate. The transaction of October 1868 is sought to be supported as an alienation by the widows with the consent of the next male reversioner though the alienation was only of a portion, (though a large portion) of the husband's estate. That is the second question for determination in appeal No. 192.

14. Syamalamba in 1879 sold under Exhibit I the 5 acres 4 cents allotted to her absolutely, to one Seshayya for the benefit of the father of defendants 19, 21 and 22. Viyyamma, the daughter soon after brought an action for a declaration that this alienation by Syamalamba was not binding on her, the next reversionary heir after the death of Syamalamba. To that suit she made the alienee and Syamalamba a party. The suit was compromised on the terms that 4 acres and odd out of the lands sold under Exhibit I should be held absolutely by the vendee and about 70 cents should revert to Viyyamma after the death of Syamalamba. These 4 acres and odd are in the possession of defendants 19, 21 and 22.

15. In these proceedings Viyyamma entirely ignored the transactions of 1864 and 1868 and her father's alleged will. Defendants 19, 21 and 22 contend that they have obtained an absolute title to the property by virtue of the consent of Viyyamma the next immediate reversioner to the alienation of Syamalambi as proved by the compromise and that no other heir can question their title. That is the only question for determination in their appeal.

16. As I agree in the judgment of Mr, Justice Abdur Rahim, it is scarcely necessary to deal with the questions of fact which arise in these appeals. 1 desire to consider the questions of law which have been raised in this case, especially as the precise points now raised are not covered by any authority binding on us. The power of a Hindu widow to alienate her husband's properties absolutely with the consent of the reversioners, has been the subject of discussion and decision for nearly a century by Judges of the highest Courts in India and by the Judicial Committee of the Privy Council; but even now it appears to be difficult to extract any particular principle, or even to know what exactly the doctrine is, or its scope. If anything is certain it is only this ; that the doctrine, whatever it is, is incapable of logical expansion or even of logical application. In this state of things I am not confident of throwing any light on the question; all that I propose to do is to state exactly what has been established by the decisions binding on us.

17. First of all there is the general proposition which is well established that females (except certain gotraja sapindahs in Bombay such as a daughter, sister or niece) are not entitled to alienate absolutely the property inherited from males. The first exception to this general rule, which is again well established, is that they are competent to alienate for purposes which are compendiously denoted by the words legal necessity. What those purposes are, it is unnecessary to consider. A second exception, if it is at all an exception, is that the female heir can at her choice surrender or withdraw her interest so as to allow the next heir or heirs to succeed to the property, as if the female heir in possession had died. What exactly are the limits of this doctrine is not quite settled. Whether there is a third exception in favour of alienation by a widow with the consent of the next reversioner male or female or the husband's kindred, (see Narada's text, Ch. XIII, verse 28), is a question on which there has been the greatest diversity of opinion in India.

18. Taking the question of surrender and assuming that Exhibit XXVI was operative, the peculiarity in this case is that the surrender, if there was a surrender, was not to the next heir the daughter, but to her son the next male reversioner. If the theory of surrender is, as I think it is, based on the withdrawal of the interest of the female as if she had died a natural or civil death, it is clear that the so-called surrender in this case could not operate to confer an absolute estate on Lingayya. In a real case of surrender, there is not a transfer or even a release of property by one to another, but only an extinction of the proprietary right of the female heir, the next heir after her succeeding to the property under the law of succession. If the interest in a particular property is divided between two persons as a lifetenant and a remainderman, it is possible by the relinquishment of the life estate to enlarge the preexisting estate of the other. So also if there is a transfer by the one, to the other, the whole absolute estate may vest in one by merger. As in legal theory the whole estate of a deceased Hindu is vested in the widow, though her powers of alienation may be limited, there cannot be in the very nature of things, any other person in whom there is a remainder, whether vested or contingent. The socalled surrender in this case is therefore ineffectual to confer an absolute estate on Lingayya. This is the view taken by the Allahabad High Court in Raja Dei v. Umad Singh I.L.R. (1912) A. 207. Whether the widows and the daughter jointly could surrender to the next male reversioner, Lingayya, is a question which does not arise for decision here (sea however Protab Chunder Roy Chowdhry v. Sreemutty Joy Monee Dabee Chowdrain (1864) 1 W.R. 98. Whether a surrender so as to immediately vest the estate in the next female her is possible, is again a question which it is unnecessary to consider, though in Bepi,n Behari Kundu v. Durga Charan Banerji I.L.R. (1908) C. 1086, Doss, J., assumed that it was possible. If the theory of surrender is as I have stated there does not seem to be anything to prevent the widows surrendering their estates and the daughter succeeding and in the daughter surrendering her estate after it had vested in her in consequence of a previous surrender by the widows and her son succeeding to the estate as absolute owner.

19. Before I leave this question I shall consider how far an alienation by the widow along with, or with the consent of the immediate male reversioner, of the whole of the estate, can be sustained on the application of the doctrine of surrender. A moment's consideration will show, that it is not the alienation by the widow which passes the absolute title but it is the surrender by the widow and the vesting of the pro perty in the next male reversioner and finally an alienation by him, that passes the absolute estate. The transaction, unless viewed as an alienation by an absolute owner who has become such by a surrender by a female, which surrender may precede or be simultaneous with the alienation, cannot be justified on the doctrine of surrender. Unless the transaction is of such a character, that no benefit at all is derived or reserved by the widow except possibly a provision for maintenance, it cannot pass anything more than the widow's interest. This is the effect of the decision of the Privy Council in Behari Lal v. Madho Lal Ahir Gayaval I.L.R. (1891) C. 236 and the Full Bench decision of this Court Maruthamuthu Nadan v. Srinivasa Pillai I.L.R. (1898) M. 128 : 8 M.L.J. 69, which in spite of the later decision of the Privy Council in Bajrangi Singh v. Manokarnika Baksh Singh I.L.R. (1907) A. 1, I think, still good law. (See Muthuveera Mudaliar v. Vythialinga, Mudaliar I.L.R. (1908) M. 206. I entirely agree with Wallis, J. as he then was, in his observation in Rangappa Naick v. Kamti Naick I.L.R. (1908) M. 866 s. c. 18 M.L.J. 809 on this question and I am unable to agree with Sankaran Nair, J. in the same case in his exposition of the doctrine of alienation with the consent of reversioners. If his reasoning is right, the alienation need not be of the whole estate, as he himself points out. The distinction which he draws between an alienation by a widow which enables her to keep portions of the property, as absolute owner by a national regrant by a person to whom she had surrendered the whole and one where she alienates a portion keeping the rest to be inherited by the actual heirs after her death, pushes the doctrine to the verge of absurdity, The analogy of the sapindah's consent to an adoption is with all respect, fallacious. That depends upon the authority of particular texts which have authority only in the southern Presidency. Further according to the decision of this Court in Danakoti Ammal v. Balasundara Mudaliar I.L.R. (1911) M. 49, which is based on the observations of the Judicial Committee in the Ramnad case (The Collector of Madura v. Moothu Ramalinga Sethupathy (1868) 12 M.I.A. 397 getting the consent of the reversioner by paying for it is illegal and vitiates the adoption; while apparently the payment to the next reversioner will have no such effect; and indeed the giving of the whole to him and taking back a part appears to be the best mode of getting an absolute estate for the widow. No doubt if there is an absolute surrender first and if the next male reversioner, by an independent transaction, makes a gift of a portion of the property, there may be no objection ; or if he sells and requires the alienee to pay the whole or a portion of the price to the widow, the alienation may be good; but if the widow at the time of the so called surrender stipulates for a price for herself, or if a surrender and a regrant, or an alienation in favour of a third party by the widow and the raversioner is resorted to merely as a device to convert the widow's interest in the whole into an absolute interest in a part, that transaction cannot be upheld on any theory of surrender. Further if the heiress alienates the whole of the property inherited by her to a stranger and if the consent of the next immediate male reversioner is not obtained at the time of the transfer and as a part of the transaction, it is impossible to uphold the transfer as a surrender by any subsequent independent consent of the next male reversioner, whether he be the next in succession at the date of his consent or at the date of the transfer. For if the widow had alienated the property without at the time obtaining the consent of the next reversioner, the transaction can only operate as an alienation of her interest. If afterwards the next male reversioner consents, it can at the best operate only as a transfer or release of his spes successionis which is void. It is not possible to justify the transaction as a new surrender by the widow, at the time of the consent, for, she having parted with her interest (which took effect at the time of the alienation) had nothing more to surrender. Unless therefore we introduce an absolute fiction and say that the alienee at the time of the consent by the reversioner retransfers the property to the widow so as to revest in her, her original widow's estate to enable her to surrender it, the transaction cannot be upheld. Exhibit XXVI therefore even if operative is ineffective to transfer anything more than the limited interest of the two widows.

20. The next question is as to the effect of an alienation whether of the whole or a part by a female heir with the consent of the next male reversioner, or rather of the kindred. The most important decisions on this question is that of the Privy Council in Bajrangi Singh v. Manokarnika Baksh Singh I.L.R. (1907) A. 1. In the first place it is clear that their Lordships made no difference between an alienation of the whole and of a part. It is also, I think, clear that the alienation in that case was held effective to pass the absolute interest, though it was not in fact made for any purpose for which the widow was entitled to alienate. One of the cases cited in that judgment as laying down the principle is Vinayak Vithal Bhange v. Govind Venkatesh Kulkarni I.L.R. (1900) B. 129 where the alienations, which were held good, were of portions of the estate; and it was also found that in fact they were not made for any purpose binding the inheritance. The decision then, I think, certainly established a third exception to the general rule in some cases at least. But it by no means follows that their Lordships intended to lay down generally that given the requisite consent of the kindred an alienation by a female--or is it confined only to a widow--, is everywhere valid to convey the absolute property. They find a common principle in the cases cited in the judgment, though the actual conclusion reached in them were diametrically opposite, for example compare Maruthamuthu Nadan v. Srinivasa Pillai (1897) I.L.R. 21 M. 128 and Vinayak Vithal Bhange v. Govind Venkatesh Kulkarni I.L.R. (1900) B. 129. The principle therefore cannot be that an alienation with the consent of the kindred is always valid, the principle is that set out in the extract from their previous judgment in Collector of Masulipatam v. Cavali Venkata Narayanappa (1861) 8 M.I.A. 529 which only lays down that there may be cases where such an alienation is valid. In what cases it is valid is left to be settled by the doctrines of each of the High Courts. So far as the Madras Court is concerned down to the time of the above decision, the position was, as laid down by the Full Bench in Maruthamuthu Nadan v. Srinivasa Pillai I.L.R. (1897) M. 128 viz., unless the transaction was supportable on the doctrine of surrender, the consent had no effect. In Calcutta on the ground of stare decisis alienations in cases other than what can be covered on the strict doctrine of surrender were held valid. In Bombay apparently in all cases where the requisite consent was obtained the transaction was good. The rule apart from the doctrine of surrender, appears to be based sometimes on the notion that the widow and the male reversioners (the kindred) represented the inheritance, so as to enable them to deal with it as they chose and sometimes on the notion that the consent of persons interested in disputing the transaction is evidence of its propriety, a rule of common sense and not in particular a rule of Hindu Law. The former view finds support from the Dayabaga texts citing Narada, while no trace of any such principle is discernible in the Mitakshara. In an early case decided by the Supreme Court of Calcutta, which was affirmed by the Privy Council the various texts bearing on the nature of a widow's estate were examined and the conclusion reached that she, with the consent of the kindred can dispose of the absolute interest in the property (See 2 Morley's Digest, p. 198). The decisions of the Judicial Committee both before and after Bajrangi Singh's I.L.R. (1907) A. 1 case appear to treat the consent of kindred merely as evidence, ('it is expressly so stated in Raj Lukhee Debia v. Gokool Chander Chowdry (1869) 18 M.I.A. 209 and I do not think that the decision in Bajrangi Singh's case compels us to give any larger effect to such consent. (See Bijoy Gopal Mukerjee v. Girindra Nath Mukerjee I.L.R. (1914) C. 793 : 27 M.L.J. 123 and Hari Kishen Bhagat v. Kashi Pershad Singh I.L.R. (1915) C. 876 : 28 M.L.J. 365). The question was examined by a Full Bench of this Court in Nachiappa Gounden v. Rangasawmi Gounden (1914) 28 M.I.A. 1. The learned Chief Justice was of opinion that the decision of the Privy Council in Bajrangi Singh v. Manokarnika Baksh Singh I.L.R. (1907) SOA. 1 established that an alienation made with the consent of the next male reversioner was valid to pass the absolute interest in all cases ; while Kumaraswamy Sastriar J. thought that such a consent obliged the Court to presume as a matter of law that the alienation was proper ; while the third learned Judge Seshagiri Aiyer, J. appears to be doubtful whether such a consent was anything more than a fact to be taken into consideration in deciding whether the alienation was proper. I think the proper view to take is that consent of the kindred is only a piece of evidence and where evidence of the actual necessity is lost by lapse of time, it may be very valuable evidence; also when the question is whether the alienee is a person who purchased bona fide after making reasonable inquiries, the consent of the reversioner to the transfer if it purported to be a transfer for legal necessity may unless rebutted be sufficient proof. However the weight to be attached to the consent of the kindred would obviously depend on the facts of each case and if it is found that the consenting kindred were paid for their consent, I for one would attach no weight to that consent. If the text of Narada which constitutes the kindred of the husband, the guardians of the widow and other texts which indicate the general dependence of women are to be taken as the basis, for enabling the widow with the consent of the guardians--or do they forma sort of family council acting as a quasi judicial tribunal--to alienate her husband's property, it is to be observed that in Narada's line of succession there is no place for a widow as pointed out by the author of the Mitakshara. Further such consent, unless given bona fide and without being purchased, can be of no avail; for it will be a strange doctrine indeed which allows a guardian to profit by his position or enables a widow to purchase a judgment from the family council.

21. One may also venture to doubt, whether the doctrine of estoppel adumbrated in Rangappa Naick v. Kamti Naick I.L.R. (1907) M. 366 : 18 M.L.J. 309--it may be noted that all the three learned Judges agreed on this point and only on this point--is really supported by the sentence at the end of the judgment in Bajrangi Singh's I.L.R. (1907) A. 1 : 17 M.L.J. 605case. It is difficult to believe that their Lordships without any previous discussion or argument, at the end of a paragraph dealing with the effect of the consent of the kindred as a body, formulated an entirely new ground of decision at variance with their deliberate opinion previously expressed in Bahadur Singh v. Mohar Singh L.R. (1901) A.P 291 : I.L.R. 24 A. 94, depending solely on the consent of a single individual of that body. This novel proposition to use the language of Lord Davey in the above case, seems to require 'bona fides' and 'consideration' in order that the consent of the expectant heir may bind others. An expectant heir may promise to ratify or by representation be prevented from questioning, an alienation if and when he succeeded to the property. In the former case there must be consideration; in the latter it would be unnecessary. In neither would the bona fides of the expectant heir be material. In either case it is difficult to see why the son who does not claim, through the father, should be bound, any more than any other relation. May it not be that their Lordships were merely stating the result of their previous discussion, namely, that if the consent of the then living kindred validated the alienation, the persons who actually succeed on the death of the widow cannot impeach it and that the reference to the consent of the fathers was merely a statement of fact and not the enunciation of a principle.

22. In the view which I have taken neither the transfer of 1864 nor that of October 1868 can be supported. Even if I am wrong, as the transfers were admittedly gifts and as the daughter the next immediate heir did not consent, the alienations are not valid. Besides the alienation under Exhibit IV was of a portion of the estate and according to the decisions of this Court it was invalid. In Vinayak Vithal Bangha v. Govind Venkatesh Kulkarni I.L.R. (1900) B. 129, it was held that the want of consent of the next female heir made no difference. In Malick Sahib v. Mallikarjunappa I.L.R. (1913) B. 244, another Bench of the same Court held that that consent was conclusive. Anyhow the Bombay decisions are not binding on us and they are in conflict with the decisions of our Court. There is no decision binding on us which holds that the consent of the next female heir has any legal effect and there can be no estoppel in this case as the reversioners who now sue are not related to the female reversioner who consented to the alienation. We would of course be bound by the decision in Rangappa Naick's 3 case and by the interpretation put therein on the decision of the Privy Council in Bajrangi Singh's I.L.R. (1907) A. 1 case but that does not apply to the present case,

23. For the same reasons the contention of the appellants in Appeal No. 228 of 1911 should also be disallowed.


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