1. This case raises questions of some difficulty, but, having given the matter my best consideration, I have come to the conclusion, though not without hesitation, that there is no sufficient reason for my interfering with the concurrent decisions of the Courts below.
2. The suit property formed part of the estate of one Venkatramanayya who died in 1904, leaving a will-Ex. A. At his death he left surviving his widow Savitramma and two grandchildren, namely, a daughter's son (the second defendant) and a son's daughter (the plaintiff). The will accordingly provided that the widow should enjoy the properties and after her lifetime they would be taken in the ratio of 3 to 5 by the son's daughter and the daughter's son respectively. The present suit was instituted by the son's daughter for recovery of possession of her share in one item of property forming part of Venkatramanayya's estate which had been sold by Savitramma to the first defendant in 1917.
3. The plaintiff's husband, who has been examined as P.W. 1, admits that since Venkatramanayya's death, he has been living with Savitramma and looking after her affairs. It also appears from his evidence that many of the transactions entered into by Savitramma were entered into by her with his knowledge and the knowledge of the second defendant and that the documents executed by her were attested by these two people. The Court may therefore fairly presume that there was very little likelihood of Savitramma doing any acts prejudicial to those who are to take the property after her. The sale in favour of the first defendant was effected for discharging debts which arose mainly out of a suit instituted by the Government against Savitramma and her co-sharer under the Madras Railway Protection Act. A tank, which it was their duty to repair, was in disrepair and as a notice given to the co-sharers under the provisions of the Act to make the necessary repairs was not complied with, the Government executed the repairs and instituted a suit in 1912 for recovery of the money spent. It is unnecessary to refer to the steps taken in execution of the decree obtained in that suit and to the steps taken by the widow to meet that liability. It is sufficient to say that both the courts have concurrently found that the suit sale became necessary for the purpose of meeting the liability resulting from that suit.
4. Two questions have to be considered in deciding whether the sale thus effected will be binding upon the plaintiff, namely, (1) whether Savitramma was at all entitled to sell anything more than her life interest even for purposes of meeting a necessity binding upon the estate, and secondly, whether the liability under the Railway Protection Act, was only a personal liability of Savitramma or was one for which not merely her life interest but the property itself including the interest of the reversioners, if any, could be sold. The answer to the first question depends upon the true construction of the will Ex. A.
5. Mr. Somayya, who appeared for the alienee, went so far as to contend that Ex. A confers a stridhanam or an absolute estate upon Savitramma. He relied in support of that argument, upon the use of the word 'Hakdar' and upon the statement that Savitramma should enjoy the property in the way that the testator himself had been doing. But as against this, it has to be pointed out that the will contains a gift over in favour of his grandchildren at his death and the gift over is said to be of the entire properties. It will be very doubtful, if the first gift in favour of Savitramma is to be held to be an absolute estate, whether a gift over in these terms would be valid at all. To avoid such a possibility, the proper rule of construction has been held to be to take the will as a whole; and the presence of a gift over, which is not a mere gift by way of defeasance, has generally been held to be an indication that the prior gift was only of a limited interest. There is another circumstance in the present case which points strongly in favour of interpreting the gift to Savitramma as a limited gift, namely, the express provision made at the end of the will that the grandchildren shall have powers of gift, sale, etc. This clause undoubtedly indicates that the testator intended to draw a distinction between the powers of the widow and the powers of the grandchildren. In A.S. No. 232 of 1929 [67 M. L. J. (Short notes) p. 69] a Division Bench, dealing with a similar will, held, in favour of the limited construction of the prior gift. The language there was stronger in favour of an absolute estate to the widow because the dispositive clause contained words conferring wide powers of disposition on her, but in view of the gift over and the reference in the context to the discharge of debts, the learned Judges thought it right to limit the power of disposition to circumstances of necessity or the discharge of debts. I am accordingly of opinion that the courts below were right in holding that Savitramma took only a limited and not an absolute interest.
6. The further question arises whether the limited interest was one similar to the estate of a Hindu widow or only a strict life interest. The lower appellate court had not felt any difficulty in holding that, even if Savitramma's estate was only a life interest she would have had powers of alienating the full interest in the estate for necessary purposes. I am not by any means satisfied that the proposition can be so easily assumed. It is one thing to say that the purpose is a necessary or proper purpose but another thing to hold that an alienation will convey the full proprietary interest, regardless of the nature of the alienor's interest, for ordinarily, the alienor can convey only the interest to which he or she is entitled. It is true that under the Hindu Law a female, holding what is known as the woman's estate, can alienate the estate for proper purposes but that has been held to be possible because her interest is not exactly the same as a life interest under the English Law.
7. Arguments have accordingly been advanced before me as to whether taking Savitramma's interest under Ex. A to be a 'limited' interest, it is only a life interest in the English law sense or it resembles a woman's estate under the Hindu Law. In favour of the theory of the 'limited' estate of a female heir, there is the consideration that a Hindu testator may reasonably be presumed to create an estate known to the Hindu Law rather than a strict life interest as understood in the English law, but the former view would make the gift over in favour of the grandchildren a contingent one.
8. There are two decisions of the Privy Council in Mahomed Shamsul v. Shewukram and Mussumat Bhagbutti Daee v. Chowdry Bholanath Thakoor and I am free to confess that it is not easy to reconcile their Lordships' observations in these two judgments. Mr. Somayya relied on a judgment of this Court in Ratna Chetti v. Narayanaswami Chettiar : (1914)26MLJ616 . I have always had some difficulty in understanding this judgment because the learned Judges assume the possibility of a vested remainder subsisting side by side with a limited interest analogous to a Hindu woman's estate. In Maharaja of Kolhapur v. Sundaram Aiyar I.L.R.(1924) 48 Mad. 1 the two decisions in Mahomed Shamsul v. Shewukram and Mussumat Bhagbutti Daee v. Chowdry Bholanath Thakoor as well as a Full Bench judgment of the Patna High Court have been referred to at some length by Kumarasami Sastriar, J. and the learned Judge holds that it is possible to create by a document an interest analogous to a Hindu woman's estate and tack on to it a remainder, though he does not go the length of stating that such a remainder will be a 'vested' remainder. In deference to the view of the learned Judges who have considered that it is possible to create an interest analogous to a woman's estate notwithstanding the addition of a gift over like that in Ex. A. I am not prepared to say that the estate taken by Savitramma under Ex. A must necessarily be taken to be only a life estate.
9. On the assumption, then, that Savitramma took an estate analogous to a woman's estate under the Hindu Law, the next question for decision is whether the alienation in favour of the 1st defendant was one justified by legal necessity. I am not very much impressed by the argument that there is a concurrent finding by the courts below on this point because some of the aspects placed before me by Mr. Patanjali Sastri on behalf of the appellant have not been adverted to in those judgments. But so far as inferences of fact have been drawn by the lower appellate court, I see no reason to differ from them. As I understand it, the position taken by Mr. Patanjali Sastri is that the liability to make the repairs or to pay the cost thereof in cases arising under the Railway Protection Act was the personal liability of Savitramma and that therefore only her interest could have been sold even in execution of that decree and accordingly there is no reason for holding that any larger interest passed under the sale by her to the first defendant. Even assuming that contention to be correct in cases where the disrepair had been due to the default of Savitramma, it will be scarcely correct to postulate the same position of the disrepair had arisen even during her husband's lifetime. Unfortunately, there is no definite information on this point, though Mr. Somayya relied with some justification on the fact that the notice by the Government was issued in December, 1906, that is, within a couple of years after Venkatramanayya's death; and he argued that having regard to the amount that was actually spent by the Government on the repairs, it could hardly have been the case that such repairs became necessary merely by reason of any neglect on the part of Savitramma after Venkatramanayya's death. It is true that to a great extent the onus in a case of this kind will lie upon the alienee but, as I have already stated, the management of the lady's affairs has been mainly in the hands of P.W. 1 and the lady has entered into most of her transactions only with the knowledge and consent of P.W. 1 and the second defendant. The suit itself was instituted only after the lapse of 10 years after the lady's death. The evidence of P.W. 1 also shows that the estate of Venkatramanayya was heavily encumbered even during his lifetime and that further encumbrances had to be made by Savitramma. The lower appellate Court definitely states that it was scarcely likely that the income available to her would have made it possible for her to make the repairs out of her current income. In the light of these facts, I do not feel justified in differing from the conclusion of the Courts below merely on the ground that prima facie the onus lay upon the alienee. I accordingly confirm the decree of the Courts below and dismiss the second appeal with costs.
10. Leave to appeal is granted.