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G. Paparayudu Vs. G. Rattamma and Two ors. - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtChennai
Decided On
Judge
Reported in(1914)ILR37Mad275
AppellantG. Paparayudu
RespondentG. Rattamma and Two ors.
Cases ReferredSingam Setti Sanjivi Kondayya v. Draupadi Bayamma I.L.R.
Excerpt:
.....of sale, on payment of binding portion of the consideration--absence of offer to pay, if fatal to suit--conditional declaration--form of decree. - - 420 is authority for the position that the suit should not fail on the mere ground of the absence of an offer in the plaint and that a conditional decree might be passed. on principle i do not see why a declaration that a sale is wholly void should be treated on a better footing than a declaration that the sale is void as a sale and can only be treated as a charge for a certain amount on the property alienated. the very object of allowing a suit by a contingent reversioner has been unfortunately (if i may be permitted to say so) defeated to a very large extent by the decisions which are binding on us to the effect that a decree passed in..........suit, to the second and third defendants respectively are not valid beyond the life-time of the widow. the sales were admittedly made for the, discharge of the widow's husband's debts. the attack against them was based on the ground that the prices settled for the sales were very inadequate. both the lower courts have dismissed the suit on the ground that the plaintiff not having offered to pay to the purchasers the consideration money which was used for the discharge of the husband's debts the suit is not maintainable. the decision is rested on the authority of singam setti sanjivi kondayya v. draupadi boyamma (1908) 31 mad. 153. that case no doubt supports the proposition that such an offer should be made by the party seeking to set aside a sale. but the decision of the privy.....
Judgment:

Sundara Ayyar, J.

1. This is a suit by a Hindu reversioner for a declaration that two sales made by the widow of the last owner, the first defendant in the suit, to the second and third defendants respectively are not valid beyond the life-time of the widow. The sales were admittedly made for the, discharge of the widow's husband's debts. The attack against them was based on the ground that the prices settled for the sales were very inadequate. Both the Lower Courts have dismissed the suit on the ground that the plaintiff not having offered to pay to the purchasers the consideration money which was used for the discharge of the husband's debts the suit is not maintainable. The decision is rested on the authority of Singam Setti Sanjivi Kondayya v. Draupadi Boyamma (1908) 31 Mad. 153. That case no doubt supports the proposition that such an offer should be made by the party seeking to set aside a sale. But the decision of the Privy Council in Bhagwat Dayal Singh v. Debi Dayal Sahu (1908) 35 Calc. 420 is authority for the position that the suit should not fail on the mere ground of the absence of an offer in the plaint and that a conditional decree might be passed. The case before the Privy Council was one in which the suit was instituted after the death of the alien or and plaintiff was entitled to possession at the time of| the suit. There can be no doubt that a reversioner suing for possession after the death of the widow can only get a decree on condition of paying whatever portion of consideration for the sale by the widow is held to be binding on the estate. In Singam Setti Sanjivi Kondayya v. Draupadi Bayamma (1908) 31 Mad. 153, two decisions of the Bengal High Court are relied on. In one of them Mutteeram Kowar v. Gopaul Sahu (1873) 11 Ben. L.R. 416, the suit was instituted after the reversioner had become entitled to possession and there can be no doubt that he could not claim a decree except on condition of paying the amount. The case probably went too far in laying down that there should be an offer in the plaint to make payment of any amount that was binding on the reversioners. The other case is Phool Chund Lall v. Rughoobuns Suhaye (1868) 9 W.R. 108. It was decided in 1867 before the enactment of the Specific Relief Act, Section 42 of which lays down the conditions under which declaratory decrees might be granted. One of the illustrations to that section shows that a Hindu reversioner might institute a suit for a declaration that a transaction entered into by a Hindu widow is not binding on the reversioner. According to the view of the Privy Council in Isri Dut Koer v. Mussumat Hansbutti Koerain (1883) 10 I.A. 150, a decision in a suit instituted by one reversioner may not be binding on another person who may happen to be the actual reversioner when the widow dies. See also Mussummat Chand Koer v. Partab Singh (1888) 15 I.A 156. But there can be no doubt that notwithstanding this inconvenience a suit by a presumptive reversioner at the time of the alienation for a declaration of its invalidity is maintainable. In Phool, Chund Lall v. Rughoobuns Suhaye (1868) 9 W.R. 108, the judgment was partly rested on the ground that the plaintiff did not ask that the Court should put the vendee (alienee) in the same position as if he had obtained a mortgage for the amount Which was binding on the reversioner. This suggests that the Court might declare the sale invalid but at the same time declare that the vendee has a charge for the portion of the consideration paid by him which is binding on the reversioner. Sir BARNES PEACOCK no doubt points out that a declaration that a reversioner may obtain possession on the death of the widow on condition of paying a certain sum of money ought not to be made because the plaintiff who institutes a suit for declaring an alienation invalid may not survive the widow and it would be optional with the actual reversioner who becomes entitled to the estate on the widow's death to recover possession or not, but as already observed this inconvenience arising from the fact that the plaintiff may not be the actual reversioner who succeeds the widow exists equally whether the decree is one altogether setting aside or upholding a sale or one pronouncing it invalid as a sale but declaring a charge in favour of the alienee. The law as to declaratory suits was not the same when Phool Chund Lall v. Rughoobuns Suhaye (1868) 9 W.R. 108 was decided as it has been after the enactment of the Specific Belief Act. And the decision in that case therefore, cannot safely be relied on in cases arising under the present Act. In Mahomed Shumsool v. Sheu ukram (1874) 2 I.A. 7, where a person having a reversion sued to set aside a sale made by a life-owner, their Lordships of the Privy Council felt no difficulty in passing a decree that on the death of the life-owner the plaintiff would be entitled to possession on payment of portion of consideration for the sale which was binding on him. Their Lordships did not decide whether the estate would on the death of the life-owner pass to any one as the owner of a vested reversion or to the person entitled to succeed under Hindu Law as reversioner on the termination of the life estate. That decision therefore would be authority for the position that even if the reversioner has no vested interest, a decree might be passed that the reversioner would be entitled to possession of the property after the death of the life-owner on his complying with certain conditions. Whatever that may be, it is difficult having regards to the ruling of the Privy Council in Isri Dut Koer v. Mussumat Hansbutti Koerain (1883) 10 I.A 150, that the uncertainty regarding the person who would be entitled to succeed the widow is a ground for refusing a declaration regarding the character of the alienation; and if an alienation may he declared to be altogether valid or altogether invalid notwithstanding the uncertainty about the reversion there seems to be no apparent reason why a declaration should not be made that the alienation is invalid as a whole but that on equitable grounds the alienee should have a charge declared in his favour. In Gobind Singh v. Baldeo Singh (1903) 25 All. 330, a decree was given declaring that the reversioner would be entitled to possession on payment of a certain sum of money which was binding on the reversioner. The proper form of the decree however would appear to be to make merely a declaration that the alienee has a charge for a certain sum of money. The question whether a decree in such a form could not be passed was not considered in Singam Setti Sanjivi Kondayya v. Draupadi Bayamma I.L.R. (1908) Mad. 153. The decrees of the Lower Courts must be reversed and the suit remanded to the Court of first instance for fresh disposal according to law. Costs up to date will abide the result.

Sadasiva Ayyar, J.

2. It is now settled law that a widow inheriting to the husband's estate obtains only a qualified interest in her husband's properties. It is further settled law that the nearest contingent reversioners can bring suits attacking the widow's alienations in her lifetime. To say under these circumstances that the suit of an honest reversioner who admits that the alienation was partially justified should be at once dismissed as a suit for a conditional declaration while a suit by a dishonest reversioner who seeks to have the alienation wholly declared void as against the reversioner should be tried to the end seems to be anomalous. On principle I do not see why a declaration that a sale is wholly void should be treated on a better footing than a declaration that the sale is void as a sale and can only be treated as a charge for a certain amount on the property alienated. The very object of allowing a suit by a contingent reversioner has been unfortunately (if I may be permitted to say so) defeated to a very large extent by the decisions which are binding on us to the effect that a decree passed in favour of or against such a reversioner is not binding on a remoter reversioner. I may be permitted to hope that the legislature should see fit to enact that the decree in a suit bond fide brought and litigated by the then nearest reversioner is binding ou the remoter reversioners. In the result I concur in the decree proposed by my learned brother.


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