1. The facts in this case are somewhat complicated and it is necessary to state them in order to make plain what the points in dispute are. Defendant 1, the appellant, is the purchaser from one Murripudi Venkatachalam (hereinafter referred to as V) whose title found on two facts, viz. (1) he claims to be the reversioner to the rights of one Masipatla Tarabayi (whom I will call T) by right of the fact that he is the lady's father's younger brother's son; (2) the rights of T were on 4th March 1922, voluntarily surrendered by T to V by a deed of surrender (Ex. 4) duly registered. The reversionary right and the present right being thus combined V had to all appearances the whole right and this right he sold a few days after the surrender for Rs. 8,000 by a deed of sale (Ex. 13) to one Ilapavaluri Chalapathi Rao, defendant 1. The plaintiff claims as the daughter of T who died fifteen months after the deed of surrender and alleges that her mother's estate in that land was an absolute estate left to T's mother Seshamma by Maripudi Lakshmikanta Rao, Seshamma's husband, by a will (Ex. A) dated 17th April 1896, whereby it is said Seshamma was left not a widow's estate but an absolute estate as stridhanam property which Seshamma devised to her daughter T under a will (Ex. B), and which passed on T's death to plaintiff.
2. It is also said (1) the surrender deed was benami, a mere nominal transaction having no effect and (2) whether benami or not it purported to surrender quite a different right from the right in fact possessed by T and did not accordingly operate to transfer the right which T actually had. It is said that the purchaser gave no consideration for the property, the sale was a bogus transaction, the promissory notes alleged to have been paid were all bogus and forged or at any event the endorsements of payment in them are all forged, that the purchaser had no money with which to pay the holders or in any event did not pay them and the whole transaction made up of the surrender and the sale was an elaborate conspiracy to defeat the rights of creditors, and has in law no effect. The suit is filed (plaint dated 2nd December 1926) after a decision given by Devadoss, J., in S. A. No. 1731 of 1925 on 23rd September 1926 wherein that learned Judge decided that the will (Ex. A) gave to Seshamma an absolute estate. Against that decision, and after this plaint was filed, a Letters Patent appeal was filed and Odgers and Jackson, JJ., reversed the decision and held that Seshamma took only a widow's estate. If Seshamma took only a widow's estate then the reversioner to that interest would be P.W. 5,. i.e., V, the vendor, to defendant 1, and unless the sale was fictitious it is hardly denied that defendant 1 would be entitled. If on the other hand the will conferred an absolute estate then V would have no title unless the deed of surrender clothed him with T's title which title she derived from Seshamma and it is said his purchaser would have no title on two-grounds.
(1) The vendor having no title he bought nothing and (2) assuming he would otherwise be entitled to claim on the footing of a bona fide purchaser for value without knowledge of the defect in title and justified in relying on the deed of surrender as vesting in V all T's estate, he was not a bona fide purchaser for value having given nothing. It will be seen that all difficulty disappears if we were able to agree with the conclusion arrived at by Odgers and Jackson, JJ., in L. P. A. No. 425 of 1926. That decision has already been considered in Krishaswamy Ayyar v. Ramchandra Rao 1984 153 IC 1005, by Ramesam and Cornish, JJ. In that case a judgment of the Judicial Committee decided since the above mentioned decision of Odgers and Jackson, JJ. and reported in Shalig Ram v. Charanjit Lal 1930 128 IC 265, is referred to, and the view was expressed that the words used in this will were words of sufficient amplitude to convey an absolute estate being not narrower than the words of the gift referred to in Shalig Ram v. Charanjit Lal 1930 128 IC 265, which the Judicial Committee held were sufficient to confer an. absolute estate. Sir Vepa Ramesam accordingly expressed the opinion that L. P. A. No. 425 of 1926 was wrongly decided. Cornish, J., agreed generally but did not expressly dissent from the decision arrived at by Odgers and Jack-son, JJ. I do not think one should lightly dissent from a conclusion arrived at on the construction of a will by two learned Judges of this High Court when the same will comes before the Court, and upon the view I take in this case it is not necessary to do so. I therefore leave this matter thus. I agree entirely, if I may respectfully say so with the statement of the law and the analysis of the same law contained in the judgment of Ramesam and Cornish, JJ., in Krishaswamy Ayyar v. Ramchandra Rao 1984 153 IC 1005. There the words were:
My senior wife and my younger wife, these two persons, shall be entitled to and take the same.
3. In this will the correct translation reads:
[My fourth wife Seshamma is the only person entitled and no one else is entitled.
4. The only difference that I can see is that in the other case there are the words 'and take.' I find it a little difficult to determine whether Jackson, J., intended to hold that there was really no bequest at all, merely a statement of fact, a declaration that the fourth wife would have the whole widow's estate because the will took from the discarded third wife for unchastity the third wife's widow's estate. From the passage reading:
Therefore I find nothing in this document to lead one to suppose that the husband did more than declare his fourth wife's right to inheritance, after negativing the possible claims of his brother and of his third wife.
5. It might be inferred that one of the grounds for his decision was that there were no words of bequest. If that be the ratio decidendi (it is not the reason referred to by Odgers, J.) then it means that the testator did not purport by his will to give either the absolute or the widow's estate because he used no words of bequest and the rights of Seshamma are derived apart from the will; on this view the decision of the question whether the words employed were words of sufficient amplitude did not arise. If on the other hand those learned Judges were deciding as they did because the words 'is the only person entitled and no one else is entitled' were not words sufficient to give an absolute estate in view of the later Privy Council decision above referred to, I prefer the view expressed in Krishaswamy Ayyar v. Ramchandra Rao 1984 153 IC 1005. But assuming that Seshamma got an absolute estate that estate admittedly passed to T and T voluntarily by deed of surrender effected such change as results from the following words 'used in such a document.' 'I have hereby surrendered now alone all rights that I possess in the immoveable properties mentioned in the schedule hereunder, without expecting any consideration therefor from you and gave them to you and delivered them to your possession now alone.' There is no dispute about the delivery. She is purporting to give all she has. The dispute is that if she thinks she has limited rights A when in fact she has absolute rights X. does the gift operate to pass rights X or only rights A If it only passes limited rights A, V does not get absolute right because he has no right as reversioner assuming T had absolute right. Consequently as T only parted with rights A, V could not transfer more than the rights A which ended with T's death.
6. Now in my opinion whatever weight there may be in that argument while the contest was between donor and donee or donor's representative and donee an entirely different position arises when the donee, the ostensible owner, transfers to a bona fide purchaser for value. It is to neutralize this fact the plaintiff has. sought to show he is not a bona fide purchaser for value. It is of course a lamentable common place in this country for Hindu widows to resort to all kinds of manoeuvres to defeat the rights of reversioners or creditors and it may well be that the so called deed of voluntary surrender was embarked upon with the intention of getting this property sold, the widow taking part of the price secretly and V taking part for his trouble in becoming a party to a scheme whereby T was thus enabled to dispose of the property, not qua widow but by purporting to surrender to the person she regarded as the reversioner. But that it should be necessary in order to screen this property from creditors for her to arrange for a bogus sale is difficult to believe. And if a bogus sale was decided upon, it is hardly possible that the conspirators would have adopted the kind of false consideration alleged in this case. The purchaser paid according to the sale deed nearly the whole of the consideration by meeting and getting cancelled various promissory notes outstanding against the vendor. It is said the pro-notes are bogus, alternatively the endorsements are bogus. Including the receipt this means that no fewer than nineteen persons have been parties to the concoction of fraudulent pro-notes and endorsements. Even if the endorsements alone are regarded as bogus, a large number of persons must have lent their names and committed forgery.
7. These sort of suggestions are often made and sometimes the evidence shows they are made with reason, but here the only evidence that in any way supports such a conclusion is the evidence of V himself, a pauper who filed a suit against defendant 1, to set aside the sale deed which suit he compromised for Rs. 125, and who now seeks to achieve the same object at the suit of the plaintiff. The evidence of such a person must be valueless. I have therefore arrived at the conclusion that the purchase by defendant 1 was a bona fide purchase for value. He bad notice of the deed of surrender but all that that informed him of was that whereas the title was once in T and V now it is in V, his vendor. In truth it may be the title all along was in T. But 'whatever rights she had she parted with to V. Whether benami or not, as against a bona fide purchaser for value those claiming through her cannot get back the property. I am accordingly of the opinion that the appeal succeeds and the claims should have been dismissed. Appeal is allowed and the suit dismissed, with costs here and below to be paid by plaintiff.
8. I agree.