1. These two appeals arise out of the suit O. S. No. 13 of 1959, on the file of the Subordinate Judge's Court of Tirunelveli, filed by the reversioners to the estate of a Hindu who died on 31-12-1926. The plaintiffs claimed recovery of possession of the properties specified in Sch. I and IV of the plaint with past and future mesne profits.
(2) It is the common case of the parties that the properties detailed in Sch. I are properties endowed for Annadhana Chatram Charity, and the claim of the plaintiffs is that the Hukdarship of the Charity ahs on the opening of the reversion, devolved on them. The trial court has upheld the plaintiffs' claim in respect of Sch. I, and dismissed the suit in regard to Sch. IV properties. The aggrieved defendants have preferred A. S. No. 245 of 1961 in respect of Sch. I properties, and the plaintiffs have by A. S. 530 of 1961 appealed in regard to Sch. IV properties.
(3) The following pedigrees give the relationship of the principal persons, who had dealt with or have been parties to transactions relating to the properties, or have figured as parties in this litigation.
(Last Maleholder's family)
Vairavanatha Pillai (material uncle of original owner and settlor (Ramalingam Pi llai)
First wife Second Wife
V. Rm. Shanmugham | | | |
Pillai (Last maleholder Vendor Shanmugam Irulammai Shankaralingam Pillai Pirama ni
died 31-12-26)married (Died Novr. 1929) married (D. 17-8-32) married Ammal
| | Subramania Pillai Meenakshi
________|________ ____|_____________ |
| | | | Ganapatia Pillai
First wife Second wife Shanmugam Pillai Vairavanatha Pillai (adoptted)
Palani Achi (Pichai Plaintiff 1 Plaintiff 2 Plaintiff 3
Ammal Ammal) (Major on Major on (Major on
(Died Febr 40) (died 23-11-57) 16-2-29) 16-2-36) 16-10-38)
Family of original owner and settlor
Ramalingam Pillai Kuppar Pillai (died Aug. 1894) married
(original owner and settlor _________________________|_______________
died 1898) married | |
Pichai Ammal I Sister Parvathi Sister Chitravadavammal
| | Subramania Pillai
Palani Achi Ammal Picha Ammal II |
(died Feb. 1940) (died 23-11-57) Pichai Ammal III
(Both were married to the last male-holder V. Rm. Shanmugham Pillai) |
| | | |
K. Shanmuga Pillai K. Palania Pillai Ramaungam Pillai K. Shammugham Pillai
(deft. 1) (deft. 4) (deft. 3) (Deft. 2)
(4) Ramalingam Pillai in the above pedigree II, who died about the close of the year in 1898 had considerable properties, but no issue, and his younger brother Kuppa Pillai had died in August 1894 leaving his two daughters Palani Achi Ammal and Pichai Ammal II (in pedigree I) Ramalingam Pillai and Kuppan Pillai had married sisters and Ramalingam Pillai brought up these two daughters of his younger brother Kuppan Pillai. He got Palani Achi Ammal married to V. Rm. Shanmugham Pillai his maternal uncle Vairavanatha Pillai's con by his first wife; and Pichai Ammal II was also later got married to this V. Rm. Shanmugham Pillai V. Rm. Shanmugham Pillai was associated with Ramalingam Pillai in his business and Ramalingam pillai who had acquired vast properties executed a settlement deed Ex. A 2 dated 29-9-1898 settling his properties principally on Palani Achi Ammal and Pichai Ammal and her husband Shanmigham Pillai. He gave some properties to his deceased wife's sister's son. Subramania Pillai. Under the settlement deed he endowed the plaint. I Sch. properties excepting item 4, for the Anandhana Charities which he was carrying on and made Shanmugham Pillai hukdar the hukdarship to be hereditary in the family of Shanmugham Pillai. He died shortly after the settlement and V. Rm. Shanmugham Pillai further added to the wealth he had inherited, and acquired for the charities item 4 of I Sch. of the plaint also. he had no issue, and we find that on the 19th December 1926 he first executed a Will, by the dispositions under which considerable properties would have gone to this step-brother Shanmugham Pillai, viz, his father's second wife's son, referred to as vendor Shanmugham Pillai he was a stamp vendor. This is a registered will. This will was later, on the 29th December 1926, cancelled by a registered instrument, the Sub-Registrar, attending the registration in the Shanmugham Pillai died on 31-12-1926, presumably, intestate. In January 1927 the two widows, heirs under the Hindu Law of Shanmugham Pillai, impleaded themselves in pending court proceedings as heirs of their husband according to law and the enjoyment of his properties according to Hindu law.
(5) Then comes the most crucial document in the case, Ex. B 2 a registered document styled "Agreement of peaceful settlement". This agreement is between the two widows of V. Rm. Shanmugham Pillai, Palani Achi Ammal and Pichai Ammal on the one had and his step-brother Vendor Shanmugham Pillai above referred to for himself and as guardian of his then two minor sons, Shanmugham Pillai and Vairavanatha Pillai present plaintiffs 1 and 2, on the other. Subramania Pillai the husband of Irulammai, a step sister of V. Rm. Shanmugham Pillai, and Irulammai herself were also parties to the document along with vendor Shanmugham Pillai. Sankaralingam Pillai, the brother of Vendor Shanmugham Pillai was not a party to this instrument, nor his sister Piramiammal. This deed has all the semblance of a regular family arrangement, and, though all the members of the family that would be affected are not parties to it, it gives full recognition to a will of V. Rm. Shanmugham Pillai dated 30th December 1926. This is an unregistered will. This later will refers to the cancellation of the will dated 19th December 1926, and speaks of the affection the testator had for his step brother Vendor Shanmugham Pillai, and his step sister Irulammai and her husband Subramania Pillai. Excepting the properties bequeathed to the step brother and the step sister and her husband, all the properties immoveable and moveable, of the testator, including the charity properties of which he claimed to be the hukdar are bequeathed to his wives Palani Achi Ammal and Pichai Ammal to be enjoyed by them with absolute rights. he also purports to empower his widows to appoint a hukdar to succeed them for the charity properties. Cash bequests of Rs. 5000 each are also provided for Vendor Shanmugham Pillai and the step sister Irulammai and her husband. The family arrangement deed. Ex. B 2, refers to disputes between the parties thereto and the possession of the last will, to Subramania Pillai, and his raising disputes. Personal claims by the widows to properties in Sch. II of Ex. B 2, de hors the will are also indicated as matters in controversy. It is in these circumstances, it is stated that the parties had amicably entered into the arrangement by which it was agreed that the will dated 30th December 1926 shall be in force and that none of the parties to the agreement shall claim right as against one another contrary to the terms recited therein. Under the arrangement Vendor Shanmugham Pillai gets certain properties transferred to him for himself and for the benefit of his heirs, the present plaintiffs 1 and 2 and others that may follow. The absolute rights of the heirs to the properties thus transferred are assured, and Vendor Shanmugham Pillai and his heirs disclaim all interest and future claims whatsoever in the immoveable and moveable properties, cash and outstandings, and all other properties of the estate taken by Palani Achi Ammal and Pichai Ammal. These are detailed in Sch. VIII to XVIII of the document Sch. VIII specifies the properties set apart for the Annadhana Chatram, i.e., the trust properties the other parties to the document Shanmugham Pillai and Irrulammai similarly accept and acknowledge the receipt of legacies in their favour in terms of the will and disclaim all further and future interest in the properties to be retained and taken by Palani Achi Ammal and Pichai Ammal. In substance, this deed of family arrangement is an affirmation of the will dated 30--12--1926 put forward in the proceedings-affirmation of the absolute rights of the widows in the properties taken by them.
(6) Shortly after taking the properties under the family settlement Ex. B 2, the senior widow Palani Achi Ammal filed a suit O. S. 46 of 1928, on the file of the Subordinate Judge's court. Tirunelveli, for partition and separate possession of the properties the widows had obtained under Ex. B-2. The claim of the widows to the properties, the subject of the suit, was rested wholly on the alleged bequest in their favour by husband under the will dated 30-12-1926, affirmed between the parties under Ex. B-2 dated 16-2-1927. They claimed absolute rights to their respective shares in the properties, and Ex. A. 14 dated 28-8-1930 is a certified copy of the final decree in that suit, partitioning the properties between the widows and allotting them their shares severally. Having secured their respective shares, the senior widow Palani Achi Ammal on 20-7-1931, settled the properties she got in the partition by a registered settlement deed Ex. B 3, on Kanthimathianatha Pillai, his wife, Pichai Ammal III, and their minor daughter. This Pichai Ammal is the daughter of Subramania Pillai, son of the original settlor's wife's sister. The two widows, Palani Achi Ammal and Pichai Ammal had brought up this Pichai Ammal III as their foster daughter and got her married to the aforesaid Kanthimathinatha Pillai. This deed of settlement refers to the history of the properties settled and the properties ultimately devolving on the settlor Palani Achi Ammal under the partition in O. S. 46 of 1928. The settlement proceeds on the basis that Palani Achi Ammal is absolutely entitled to the properties settled. The document gives four schedules of properties. The Ist Sch. properties therein were to be enjoyed by the settlor. Kanthimathinatha Pillai and Pichai Ammal III, without power of alienation, and after the death of the three individuals the male heirs of Kanthimathinatha Pillai and his wife Pichai Ammal III, were to take the properties absolutely. The IInd Schedule properties are the Annadhana Chatram Charity properties. The charity properties had to be managed by the three individuals above referred to in terms of the decree in O. S. 46 of 1928, and thereafter by the male heirs of Kanthimathinatha Pillai and Pichai Ammal III, the hukdarship to be in them hereditarily.
(7) The junior widow Pichai Ammal settled the properties she got under the partition in favour of Palania Pillai, the 4th defendant in the suit, under the registered settlement deed Ex. B-4 dated 20-12-1937. Palania Pillai is the son of Kanthimathinatha Pillai, and is referred to as the second son of the foster daughter Pichai Ammal III and has been taken as the foster son, on the directions of her husband Shanmugham Pillai, and brought up in the family. There are two schedules to the settlement deed, and the 1st Schedule properties were to be enjoyed by the settlor and the settlee for their lifetime, and after their lifetime the male heirs of the settles their lifetime the male heirs of the settlee were to take the properties absolutely. The properties detailed in Sch. II of Ex. B 4 are in the Annadhana charity properties, and provision is made for the conduct of the charities by both jointly during their lifetime, and after the settlor and the settlee the male heirs of the settlees and, if there are no male heirs the female heirs are to be the hukdars of the charity properties, and conduct the charities.
(8) The title of defendants 1 to 4 to the suit properties is based on Ex. B 3 and B 4. We have already stated that the properties described in Sch. I to the plaint are the Annadhana charity properties, the subject of Sch. I in Ramalingam Pillai's settlement Ex. A 2 and Item 4 an acquisition thereto during Ramalingam Pillai's tenure as hukdar. The properties set out in Sch. II of the plaint are the properties detailed in Sch. II in Ex. A 2, Ramalingam Pillai's settlement. These properties are included in Sch. IV to the plaint. Sch. IV consisting of the properties set out in Schedules II and III of the plaint, and other properties. Under Ramalingam Pillai's settlement, Sch. II properties were settled on Palani Achi Ammal, Pichai Ammal and V. Rm. Shanmugham Pillai, and the document recited that the properties had been made over to them and that they and their heirs shall enjoy the same without absolute rights.
(9) In the present defence, it has been contended that the two widows and Shanmugham Pillai had each one third share in Sch. II properties absolutely and to the extent of the two thirds share of the widows, the plaintiffs as reversioners could make no claim. It was also contended for the defendants that several other items in Sch. IV to the plaint were acquisitions by the widows and did not form part of the reversion. The learned Subordinate Judge has upheld the contention of the defendants in regard to the Sch. II properties included in Sch. IV and also in respect of several other items in Sch. IV properties included in Sch. IV and also in respect of several other items in Sch. IV to the plaint. The plaintiffs themselves have given up their claim to certain items in Sch. IV, and there was no argument before us contesting the findings of the trial court in this regard. We may also state that the last surviving widow, Pichai Ammal, the Hindu Succession Act, (30 of 1956), having come into force meanwhile executed a will Ex. B 40 on 29-11-1956. The defence is rested on this will also. Ex. B 40 is a registered will, and the trial court has upheld the truth and genuineness of the will, rejecting the plaintiff's case that it was vitiated by undue influence. In the view we take of the case it is unnecessary to consider the effect of the will on the suit properties, and whether the defendants could base their defence on the Hindu Succession Act with respect to any of the properties.
(10) While the widows have been attempting to defeat the reversion, and secure the properties to themselves absolutely and to provide for the properties being taken and the hukdarship maintained in the family of their foster daughter with whom they were connected by ties of blood and affection, the reversioners, particularly Sankralingam Pillai, who had been left out from the original family arrangement, did not keep quiet. Vendor Shanmugham Pillai, for himself and his sons, had acquired what properties he could by the family arrangement. Shankaralingam Pillai who later adopted the present filed the suit O. S. 3 of 1930 on the file of the Subordinate Judge's court of Tirunelveli for a declaration that the will dated 30-12-1926, which was affirmed in the family arrangement Ex. B 2, was a forget document brought about fraudulently, and would not affect the plaintiff's rights as reversioners. The two widows alone were made defendants in that suit. For the widows a strenuous defence was put forward, but it was overruled and the will was held a forgery. The two widows brought up the matter in appeal to this court, in A. S. 78 of 1932, and the judgment of the trial courts was upheld by this court on 11-10-1937. In fact, it is after this judgment that Pichai Ammal executed the settlement deed of her share in the properties in favour of the present 4th defendant.
(11) Pending the appeal, A. S. 78 of 1932, in this court, Sankaralingam Pillai died, and the present 3rd plaintiff who was a minor represented by his guardian Meenakshi Ammal, was brought on record. After becoming a major in September 1938, and notwithstanding the decree that has been secured in his favour that the will in favour of the widows was a fabricated document, the 3rd plaintiff entered into an arrangement with the widows evidenced by the registered deed of release Ex. B 5, dated 27th October 1938 whereunder he secured to himself absolutely and immediately substantial properties, while releasing his reversionary rights in the properties. This deed of release is in favour of not only the two widows of V. Rm. Shanmugham Pillai but also the present defendants 1 to 4 who were the settlees of the suit properties of Shanmugham Pillai, inclusive of the charity properties under Ex. B 3 and B 4. The deed of release refers to the partition suit between the two widows, O. S. 46 of 1928, and the subsequent settlement by the widows in favour of the present defendants 1 to 4, namely, Ex. B 3 and B 4, and the releases thus obtaining the entire properties to themselves and being in possession.
(12) Plaintiffs 1 and 2, who were minors when their father entered into the arrangement, Ex. B 2 filed the suit O. S. 33 of 1943, on the file of the Subordinate Judge of Tirunelveli. This suit was very limited in its scope and was confined to the Annadhana Chatram charity. The relief prayed for was the removal of Pichai Ammal, the junior widow, and Kanthimathinatha Pillai, his wife Pichai Ammal III, and the present fourth defendant Palania Pillai from the trusteeship of the Anandhana Chatram, and for a declaration that the two plaintiffs and the 5th defendant in that suit, who is the present 3rd plaintiff, were the trustees of the charities, and for possession of the charity properties to the plaintiffs and the 5th defendant therein. This suit was ultimately dismissed as not pressed in view of the endorsement made by Kanthimathinatha Pillai, his wife Pichai Ammal III and Palani Pillai, to the effect that they had not till then claimed right to the trusteeship of the Anandhana Chatram or the properties endowed therefor, and would not claim any such right under the settlement deeds in their favour, namely Exs. B 3 and B 4, so long as the junior widow Pichai Ammal was alive, and that she would be the sole trustee and in possession of the trust properties during her lifetime.
(13) The learned Subordinate Judge finds that there were absolutely no bona fides in the family arrangement Ex. B 2, which excluded Sankaralingam Pillai. he is of the view that the main purpose of Ex. B 2, was to exclude Sankaralingam Pillai from taking any property as a reversioner, and that the will dated 30-12-1926 purported to have been executed by V. Rm. Shanmugham Pillai, should have been fabricated to give an air of reality to the family arrangement Ex. B 2. He discusses in extenso the unreality of the so-called disputes that were sought to be resolved under the family arrangement and concluded that Ex. B 2 is an invalid document. Coming to the two deeds of settlement Exs. B 3 and B 4 in favour of defendants 1 to 4 by the two widows, the trial court is of the view that they are voidable transactions; they are alienations by the widows in excess of their powers and were voidable at the instance of the reversioners. Coming to Ex. B 5, the deed of release executed by the 3rd plaintiff, while rejecting the case of the plaintiffs, while rejecting the case of the plaintiffs that it was brought about by undue influence and pressure from the mother of the 3rd plaintiff, as a document releasing a spes successionis or a mere chance of succession, it was held to be void.
(14) The learned Subordinate Judge is of the view that the endowment in favour of the Annadhana Chatram Charity is a dedication complete in character, overruling the contention of the defendants that there was merely a charge. He holds that the widows had no right to convey the dharmam properties and the office of hukdarship either by transfer inter alia vivos or by will. In that view the learned Subordinate Judge has upheld the rights of the plaintiff's to the properties set out in Sch. I to the plaint so hukdars, and decreed the suit for possession if the said properties with mesne profits.
(15) As regards the other properties--what are referred to as secular properties described in Sch. IV to the plaint--of which possession was sought by the plaintiffs, the learned Subordinate Judge has taken the view that notwithstanding that Ex. B 3 and B 4 are voidable, and Ex. B 5 was void, the plaintiffs were precluded by their conduct from questioning the alienation of these properties by the widows in favour of the defendants 1 to 4. The learned Subordinate Judge is of the view that by their conduct and by their taking benefits, the plaintiffs have ratified the transactions of the widows under Ex. B 3 and B. 4, and cannot go back on that ratification and question the alienations. In that view the suit has been dismissed in regard to schedule IV.
(16) In the appeals now before us, Shree Ramamurthi Aiyar, learned counsel appearing for the defendants, questions the view of the trial court that the principle of estoppel by election or ratification would not apply to the hukdarship and the properties that go with it. It is contended that the dedication in the case for the Anandhana Chatram Charity is not of the completest character and that the properties indicated for the charities are only charged with the expenses of the charities. The argument is that the dedication is partial, the properties indicated for the charity retaining their original private and secular character, while being charged with the expenses. In the view we are taking of the facts of the case, it is unnecessary to examine the question whether there is an out-and-out dedication for the charity, or whether the heirs take the property subject to a charge for the upkeep and expenses of the trust. The findings of the trial court as to the true character of the transactions evidenced by Ex. B 2 to B 5, and the genuineses of the will, Ex. B 40, of the last surviving widow, have not been canvassed before us by the aggrieved parties. The entire discussion turned on the question whether the plaintiffs are precluded from asserting their rights in the properties after the reversioners opened and they became the actual reversioners to the estate of V. Rm. Shanmugham.
(17) The doctrine of election on which the defence is substantially rested is the principle that the exercise of a choice by a person left to himself of his own free will to do one thing or another binds him to the choice which he has voluntarily made, and is founded on the equitable doctrine that he who accepts benefit under instrument or transaction of his choice must adopt the whole of it and renounce everything inconsistent with it. The court exercising jurisdiction in equity will bind him to his election and preclude him from going behind the same. We see nothing inherently inappropriate in applying this principle to the properties specified in Sch. I to the plaint, that is, the charity properties. Whatever may be said, when what is involved is a bare office of trusteeship carrying no beneficial interest whatsoever with it, in our view, the doctrine of election would certainly apply to a case of hukdarship as in the instant case, which carries with it not only an office, but also some beneficial interest. The hukdarship in this case is heritable, and the original founder Ramalingam Pillai has under the instrument Ex. A 2, provided that if after the conduct of the charities properly there was left any surplus, the same shall be utilised by Shanmugham Pillai, viz, the last male holder, and his heirs for family expenses. May be, the surplus may not always be substantial, the evidence regarding the income and the demands of the charity thereon is meagre, but the beneficial interest is there.
(18) The learned Subordinate Judge, while holding that the endowment is a complete dedication does find also that the settlor intended that the major portion of the income should be utilised for the charities, and the surplus income if any, should be utilised for household expenses of V. Rm. Shanmugham Pillai and his heirs. A beneficial interest in the properties is certainly recognised in favour of the hukdar. Whether the charity is itself a true beneficiary subject to the right of the heirs of the testator to appropriate the surplus to themselves for their private expenses, or the heirs are the true beneficiaries, subject to a charge for the charity, the hukdarship in this case, like shebaiti right, is property. The hukdar has certainly some sort of right or interest in the endowed property apart from a bare right of management. In Kalipada v. Palani bala Devi, , speaking for the court, Makherjea J. (as he then was) observed.
"As the shebaiti interest is heritable and follows the line of inheritance from the founder, obviously when the heir is a female she must be deemed to have, what is known as, widow's estate in the shebaiti interest. Ordinarily there are two limitations upon a widow's estate. In the first place, here rights of alienation are restricted and in the first place, after her death the property goes not to her heirs but to the heirs of the last male owner. It is admitted that the second element is present in the case of succession to the rights if a female shebaiti. As regards the first, it is quite true that regarding the powers of alienation, a female shebaiti is restricted in the same manner as the male shebait, but that is because there are certain limitations and restrictions attached to and inherent in the shebaiti right itself which exist irrespective of the fact whether the shebaitiship vests in a male or a female heir."
(19) A Shebaiti right cannot be alienated or transferred like ordinary property, but it has been held that it is capable of being acquired by adverse possession and a Shebaiti may, if he chooses, relinquish or resign his office voluntarily and give up the trust. The contesting defendants are not asserting any private rights in themselves or denying the trust. They claim to hold Sch. I properties only as hukdars. The plaintiffs are suing for a declaration of their right to the hukdarship and for possession of the charity properties. The defence is a personal estoppel against the plaintiffs, and that they by their conduct are precluded from asserting their right to possession of the properties against the defendant--they had elected to abide by the transactions evidenced by Ex. B. 2, B. 3 and B. 4 and had benefited themselves by the election. In Ex. B 2 it is specifically stated that vendor Shanmugham Pillai and his heirs including the present plaintiffs 1 and 2, shall have no rights whatsoever in the properties set out in Sch. VIII therein, which corresponds to the plaint I schedule. Ex. B 5 similarly specifies the charity properties, and all interest therein, even in future, are disclaimed. In our view, in such circumstances, to distinguish schedule I properties from schedule IV properties would be making a distinction without difference on principle, if the doctrine of election could be availed of on the facts of the case.
(20) The learned Subordinate Judge has given no reasons for denying the applicability of the doctrine of election to Sch. I properties. He has simply observed that the widows had no right to convey the dharman properties and the office of hukdarship either by transfer inter vivos or by will. Here we may point out that if the plaintiffs have elected to adopt the provisions of Ex. B. 2 and the family arrangement evidenced by it, affirming the provisions of the alleged last will and testament of the last male holder, the will does empower the widows to appoint their successors to the hukdarship. No doubt, it will be wholly invalid as the original founder has himself indicated the line of succession to the hukdarship--the hukdarship was vested by Ramalingam in V. Rm. Shanmugham Pillai and his heirs. But the hukdarship and the properties annexed to it go together, and it is pointed out for the defendants that the charity properties are the subject of specific mention in the transaction evidenced by Ex. B 2 to B 6, relied upon for raising the plea of election. It may be that there can be no ratification of a void transaction, but the principle of election does not require any ratification. It imposes a personal bar on the person benefited by the invalid transaction. We have not examined the position whether the dedication is only partial as contended for the defendants, that would be an a fortiori case. There was, also an argument that there was a direct gift of the hukdarship to the heirs of Shanmugham Pillai after Shanmugham Pillai. We are unable to read the settlement deed Ex. A 2 like that. The settlor Ramalingam Pillai has provided only that the hukdarship was heritable and would follow the line of inheritance of Shanmugham Pillai his first nominee for the Hukdarship.
(21) The fact that the alienation as such is void is no bar to the applicability of the doctrine of election which is rested on equitable principles. In Spencer Bower "Estoppel by Representation", 2nd Edn. by Turner at page 296, referring to the doctrine of election as applied to instrument, it is stated--
"It may happen that none of two parties to an instrument, in the course of his dealings with the other in pursuance of or in relation to, that instrument, finds, or thinks he has found, that it is voidable at his option as against such other party. Thereupon it is open to him to take up one of two inconsistent as void and not binding on him, or he may think it to his advantage, instead of exercising his right in this respect, to treat it as valid and subsisting; but if, by words or (as is usually the case), by conduct, he leads the other party to believe that he is definitely choosing the one course in preference to the other, and, in the belief, to alter his position for the worse, he is estopped, as against the other party, from afterwards approbating what he has thus reprobated, and reprobating what he has thus approbated".
(22) The following illustration given at page 297, drawn from Re Does: Exp. Alsoop, 39 LJ Rey. 7, is apposite:
"A creditor who has elected to deal with a deed of composition or arrangement as valid, instead of exercising his right to treat it as an act of bankruptcy, or as void for non-compliance with the bankruptcy law, is precluded from afterwards supporting a bankruptcy petition against the debtor by setting up that the execution of the deed constituted an act of bankruptcy, or from claiming, as against the debtor, that such deed is void".
(23) We do not think that the endorsement made by defendants 2 to 4 in the suit O. S. 35 of 1943, stating that as long as the junior widow Pichai Ammal was alive she would be the sole trustee and in possession of the properties, and that the settlees under Ex. B 3 and B. 4 would not claim any rights in respect of the trust properties during her lifetime, will preclude the settlees thereunder from asserting their claims under the instruments and holding against the plaintiffs, their acts and conduct as precluding them from claiming the properties after the lifetime of the junior widow. The undertaking is statedly for a specified period.
(24) We shall therefore have to examine whether, on the facts of the case, it can be said that the plaintiffs are precluded from asserting their rights as reversioners to the estate of Shanmugham Pillai either in respect of Sch. I properties or Sch. II properties.
(25) We shall first take up for consideration the acts and conduct of plaintiffs 1 and 2. No, doubt, plaintiffs 1 and 2 were minors when their father Vendor Shanmugham Pillai entered into the arrangement Ex. B. 2 for himself and on their behalf. The father of plaintiffs 1 and 2 had secured for himself and his sons properties under Ex. B. 2 from the two widows. Properties had been set apart under Ex. B. 2 not only to their father Vendor Shanmugham Pillai and themselves, but also to Irulammai, the sister of Vendor Shanmugham Pillai and her husband. Under Ex. B. 3, dated 23-6-1927, there was an exchange of properties between the two widows on the one hand, and Vendor Shanmugham Pillai and his sons, plaintiffs 1 and 2, and Irulammai and her husband Subramani on the other. This transaction affirmed the arrangement Ex. B. 2. No doubt, plaintiffs 1 and 2 were minors even on the date of Ex. B. 8, but after the death of their father, the first plaintiff who had by then become a major, on 10-1-1931, entered into a partition for himself and as guardian of his brother the second plaintiff, with Irulammai and others. This partition is evidenced by Ex. B. 9, the registration copy of the deed of partition. By this partition, the arrangement evidenced by Ex. B. 2, is affirmed. Rights are claimed to the properties dealt with under Ex. B. 2. Ex. B. 10 dated 11-10-1931 is a settlement deed by the first plaintiff for himself and as guardian of his younger brother, the 2nd plaintiff, in favour of their sister of one of the properties secured by their father, Vendor Shanmugham Pillai under Ex. B. 2. The 2nd plaintiff, after becoming a major, joins with the first plaintiff in conveying an item of property secured under Ex. B. 2 in favour of one Subbiah Konar under a registered sale deed Ex. B. 11 dated 2-4-1942. Ex. B. 12 is a similar sale by plaintiffs 1 and 2 on 2-4-1942. Under Ex. B. 15, again plaintiffs 1 and 2 convey property in favour of one Essaki Konar, claiming that the property had been obtained by them in ancestral rights, that is, inheritted from their father. There are similar sale deeds, where properties are described as ancestral (See Exs. B. 16 to B. 42). These conveyances and dealings with properties, obtained under Ex. B. 2 by their father by plaintiffs 1 and 2, are through the years 1942 to 1957. Plaintiffs 1 and 2 assert absolute rights in the properties in themselves and purport to convey and grant their vendees absolute rights in the properties. This they can do only if they are resting their title under Ex. B 2. They are not dealing with the properties as if they were holding under alienations by the widows, which would enure for the lifetime of the widows only. They purport to deal with the properties as belonging to them absolutely with no outstanding reversion and receive consideration assuring absolute title to the vendees. This can only be on the hypothesis that they accepted and adopted the rights conferred by Ex. B. 2, which vested the properties they dealt with in their father for himself and on their behalf absolutely. That is the only absolute title they could have asserted in the properties then, but Ex. B. 2, at the same time recognised the absolute rights of the widows in the properties they retained for themselves. Plaintiffs 1 and 2, having had the benefit of the deal, cannot repudiate the assurances under which the benefit was secured and enjoyed at a time when they had no rights in the properties.
(26) Coming to the third plaintiff, his father, as pointed out already was not a party to the arrangement Ex. B. 2. He was not bound by it, and the arrangement is void as against him. He had filed a suit and got a declaration that the will was invalid and not binding on the reversioners. The third plaintiff had every right to ignore the transaction of the other reversioners plaintiffs 1 and 2, and their father. But, after becoming a major, the third plaintiff himself preferred to enter into the arrangement evidenced by Ex. B. 5. He was himself a party to the litigation wherein the will was declared invalid. No doubt, he was represented in the litigaiton by his mother as guardian. It cannot be, and it is not, contended that he was not aware of the true position or the character of the properties which were held by the widows and the settlees from them. With full knowledge of the circumstances, he preferred to bargain with the widows and the settlees from them, namely, the present defendants 1 to 4 and accept an immediate benefit rather than take the risk of his not being the actual reversioner. Es. B. 5 refers to a settlement earlier entered into on his behalf by his mother, with a view to avoid disputes in respect of the estate of V.Rm. Shanmuga Pillai. At the time he accepted the settlement and entered into the transaction he was a presumptive reversioner. Evidently the 3rd plaintiff thought that securing immediate and absolute rights in substantial properties was more profitable to him than taking the risk of his not turning out to be the actual reversioner. In this connection a reference may be made to an admission made in para 20 of the plaint, that realising the precarious nature of the title to the estate of V. Rm. Shanmugham Pillai as derived from the settlement deed made by the widows, especially after the final decision in O. S. 3 of 1930 and O. S. 35 of 1942, a desperate attempt was made by the surviving widow Pichai Ammal to take the 4th defendant's upon son in adoption and thereby bring into being a superior claimant who would be able to recover possession of the entire estate, free of all intermediate titles derived through the limited owners, that consent of the plaintiffs as presumptive reversioners was applied for by her on 4-1-1950, but that the consent was not given because the proposal was patently absurd and mala fide.
(27) Under Ex. B. 5 the 3rd plaintiff secured to himself properties of considerable value. The release deed Ex. B. 5 values the properties at Rs. 14,225. He also receives in cash a sum of Rs. 1001-0-9 for the costs awarded to him in A. S. 78 of 1932, High Court, relating to the will and for past, mesne profits from the properties. No doubt, at the time of the transaction Ex. B. 5 he had just come of age, but he holds on to it and stands by it in later years derving considerable profits therefrom. on 16-10-1939 out of the properties under Ex. B. 34 for a consideration of Rs. 4000. Again, under Ex. B. 36 dated 13-7-1953 he disposed of properties for a consideration of Rs. 26,000. The releases had parted with some of the properties taken by them under Ex. B. 3 and B. 4 in favour of the third plaintiff for the release evidenced by Ex. B. 5. The conveyances by the 3rd plaintiff, Ex. B. 34 and B. 36, more particularly Ex. B. 36, refer to the origin of the vendor's title and through the decree in the partition suit O. S. No. 46 of 1928 the title is clearly traceable to the arrangement evidenced by Ex. B. 2 recognising the will under which the widows claimed absolute title to the properties. We may also refer to Ex. B. 35, executed between the third plaintiff, his wife and Kanthimathinatha Pillai. This deed for exchange specifically confirms the settlement deed, Ex. B. 3 dated 20-7-1931.
(28) The principle enunciated by the Supreme Court in Sahu Madho Das v. Mukund Ram, would directly apply to the facts of the case particularly in respect of plaintiffs 1 and 2. There, on the death of one Nank Chand, leaving vast properties, and his widow (Smt. Pato) and three daughters, the widow claimed an absolute right, and there was a family arrangement under which the daughters acknowledged the right put forward by the widow. In return they and their sons were given separate and absolute estates in portion of the property left by the deceased immediately. The suit was instituted by one of the grandsons. Mukund Ram, who was a minor when property was gifted to him under the arrangement. He was not a party to the arrangement and in law the widow and the daughters could not by any arrangement enlarge their limited estate so as to bind the grandsons. With reference to the minors, their Lordships pointed out that the minor grandsons of the widow of the last male holder were not represented by guardians when the arrangement was entered into and that so far as the grandsons were concerned, the mere fact that each received a separate gift from the widow at a time when they were not competent to assent or dissent would not in itself bind them. They, observing that to achieve that result there would have to be something more, the principle is set out thus (at p. 12 of Mad LJ (SC) ; (at p. 492 of AIR)).
" 'Estoppel is rule of evidence which prevents a party from alleging and proving the truth. Here the plaintiff is not shut out from asserting anything. We are assuming in his favour that Pato had only a life estate and we are examining at length his assertion that he did not assent to the family arrangement. The principle we are applying is therefore not estoppel. It is a rule underlying many branches of the law which precludes a person who, with full knowledge of his rights has once elected to assent to a transaction voidable at his instance and has thus elected not to exercise his right to avoid it, from going back on that and avoiding at a later stage. Having made his election he is bound by it....... For the reasons we have given and which we shall now further examine, we hold that the plaintiff, who is in titule now that the succession has opened out, unequivocally assented to the arrangement with full knowledge of the facts and accepted benefit under it, therefore, he is now precluded from avoiding it, and any attempts he made to go behind that assent when it suited his purpose cannot render the assent given nugatory even though it was given when he was not in titule and even though the assent was to a series of gifts". Of course, their Lordships emphasise that when the actual revesioner is not a party to the arrangement his assent to the arrangement itself and not to something else must be clearly established and also his knowledge of the facts.
(29) Reference may also be made to the decision in Seetharamayya v. Chandrayya, of Subba Rao C. J. (then of the Andhra High Court) where the case of a presumptive reversioner, who was a minor at the time he had taken a benefit under the widow's transaction came up for consideration. The learned Chief Justice postulates the legal position in such a case thus:
"In such a case the principle of estoppel will be controlled by another rule governing the law of minors. A minor obviously cannot be compelled to take the benefit of a transaction, which will have the affect of depriving him of his legal rights when succession opens. But a minor can certainly, after attaining majority, ratify a transaction entered into on his behalf by the guardian. If he so ratifies the transaction entered into by his guardian and accepts the benefit thereunder, there cannot be any difference in the application of the principle of election. The effect would be the same. It is as if he was a major at the time the transaction was effected and the benefit was conferred on him. What he could not do at the time of the transaction must be deemed to have been done by him by his act of ratification. It may be that on attaining majority, he has the option to disown the transaction and discharge the benefit or to accept it and adopt it as his own. Whether, after attaining majority, the quondam minor accepted the benefit or disowned it, is a question to be decided on the facts of each case. To illustrate, the father of minor affirms a sale by a widow and takes a benefit under the transaction. The father dies before the widow. The minor attains majority. He has no doubt the option to affirm the transaction or to disown it. But is it necessary that he should, in exercising his option, return the property to the widow at the risk of otherwise losing inheritance to the last male holder? After his father's death, he succeeds, to his interest in the property, for the widow cannot question the transaction entered into by the father during her lifetime. The mere act of succession to the father may not amount to ratification as the son's enjoyment is consistent with his right of inheritance to the father. But he can either expressly or by necessary implication ratify the transaction entered into by the father. But if the original transaction conferring the benefit was in favour of the minor different considerations would arise. His enjoyment of the benefit after attaining majority may in itself be a sufficient act of ratification."
(30) In the present case so far as plaintiffs 1 and 2 are concerned, they were made parties to the arrangement evidenced by Ed. B. 2 represented by their father as the guardian. The father accepted benefits under the transaction for himself and plaintiffs 1 and 2. After becoming majors the plaintiff's 1 and 2 with full knowledge of the facts have enjoyed the benefit of the transaction. They divided the properties got for them by their father and effected alienations of the same. Clearly the case of plaintiffs 1 and 2 is directly covered by the observations of the learned Chief Justice above cited. Those plaintiffs have ratified the transaction entered into by their father on their behalf after they became majors.
(31) As regards the third plaintiff, the position of the alienees from the widows defendants 1 to 4 is much stronger. The third plaintiff having been a party to a litigation, where the will relied on by the widows had been found against, subsequently definitely bargained for and secured an immediate benefit, conceding to the alienees from the widows, absolute rights in the properties retained by the. By his conduct, he has barred himself from asserting his title on the succession opening. His case falls under the principle which is summed up in Subu Chetti's Family Charities v. Raghav Mudaliar, 1961-2 Mad LJ (SC) 1 : (AIR 1961 SC 797) thus:
"................ if a person having full knowledge of his rights as a possible reversioner enter into a transaction which settles his claim as well as the claim of his co-tenants at the relevant time, he cannot be permitted to go back on that arrangement when reversion actually falls open".
(32) On behalf of the plaintiffs reference was made to the decision of this court in Virayya v. Bapayya, ILR 1946 Mad 276 at p. 283 = (AIR 1945 Mad 492 at p. 494). But in that case, under the impugned alienation of the widow she had conveyed only her life interest, though she purported to derive it under her husband's alleged oral will. It is pointed out by Patanjali Sastri J. (as he then was):
"'The dakhal deed did not purport, proprio vigore, to transfer any absolute interest in the properties to the donees. It postulated an arrangement by the husband under which they already had an absolute interest in remainder to take effect after the widow's death. The deed was therefore neither void nor voidable at the instance of the actual reversioner, but was valid and operative to vest in the donees the widow's right to possession and enjoyment during her lifetime and it ceased by its own terms to have any operation after her death. It was an alienation which, so far as the interest it purported to convey was concerned, was within her competence to make".
It was in these circumstances, that it was held that there was no room for the application of the principles of election. It is pointed out (at page 288 of ILR Mad):(at p. 496 of AIR) that on the facts of that case there could be no question of election in the strict sense of the doctrine, for at the time when the plaintiff was supposed to had made his election he could not have given up the property which he claimed as he became entitled to it only long after, and that, moreover, for the purpose of the doctrine the person sought to be precluded from setting up his right must have taken some benefit directly under the instrument. It was found that the plaintiff did not take any benefit directly under the document but only as the heir of his mother after she died in 1906.
(33) The decision in Gur Narayan v. Sheo Lal Singh, 36 Mad LJ 68 : (AIR 1918 PC 140) has equally no application. No estoppel was available against the reversioner, Hanuman in that case. He did not acquire the property as a contingent reversioner. He had made independent purchase of the property from the rightful heirs.
(34) The presumptive reversioner may bring himself within the doctrine of estoppel or within the doctrine of election a doctrine of equity. Clearly the three plaintiffs in this case have manifested their intention for immediate benefit to abide by the absolute title put forward by the widows, and by their action and conduct have precluded themselves from putting forward their claims to the estate as reversioners of the last male-holder.
(35) In the result, A. S. 245 of 1961, the appeal filed by defendants 1 to 4 with reference to the plaint I schedule properties, succeeds, and is therefore allowed with costs. The suit O. S. 13 of 1959 shall therefore, stand dismissed in its entirety with costs of defendants 1 to 4 one set. The costs awarded by the trial court in favour of the fifth and sixth defendants who are not parties to the appeal in this court will stand.
(36) The appeal A. S. 530 of 1961 filed by the plaintiff in respect of plaint IV schedule properties fails and is dismissed but with no costs.
(37) Appeal No. 530 of 1961 dismissed.
(38) Appeal No. 245 of 1961 allowed.