(1) The appellant is the 7th defendant in the court below in a suit by the plaintiff for declaration of his title to certain properties after setting aside certain alienations, for recovery of those properties with mesne profits and allied reliefs. We are not now concerned with most of the matters in controversy decided in this suit as between the parties. We are concerned exclusively with a mortgage executed by a life estate holder Saradambal (Ex. XIV-Ex B) in favour of the 7th defendant (appellant) for Rs. 1000 on 32-12-1124. M. E.
(2) There are two simple questions for determination in this appeal. The first is this whether this life estate holder (Saradambal) had the power to make this disposal of property inter vivos during her period of enjoyment. The second is whether mortgage itself was supported by consideration, with reference to its constituent items and if so to what extent.
(3) The facts are that one Sundararaja Iyer was the father of three daughters of whom Saradambal was one and defendants 2 and 3 were the others. The first defendant in this suit is the husband of Saradambal but that is not a matter that is strictly pertinent to the aspect that arises for decision now. Admittedly, there was a partition deed in the family (EX. A), under which Saradambal took a life estate in the properties of the suit. The learned Additional District Judge has throughout misconceived her status as that of a Hindu woman owning properties in a limited estate under the Hindu law. This led him to launch in to an enquiry concerning the necessity for the mortgage in favour of the seventh defendant (appellant),which really does not arise. The learned Judge stated that:
'It is a well settled that the alienation effected by a limited female owner like a daughter can be upheld only if it is for legal necessity, or for the benefit of the estate or with the consent of the next reversioner. Therefore, the alienee of a limited female owner has to prove that the impugned alienation is supported by consideration and legal necessity, or that the alienee after reasonable enquiry as to the necessity acted honestly in the belief that the necessity existed.'
I am citing this passage from the judgment of the Court below in order to show that the lower court really missed the point in issue upon this aspect of the suit. It is now conceded before me, upon the facts, that Sundararaja Iyer was in possession of these properties as his self acquired properties, as far as we can judge, and that we have no right whatever to assume that Saradambal would have inherited these properties as the holder of a Hindu woman's estate, otherwise than under Ex. A. In fact, if Ex. A had not come into existence, nothing whatever could be said of Saradambal's right to the property. Consequently, one cardinal fact that has to be affirmed before we go further is that upon the evidence, it is irrefutably established that Saradambal held the properties, not as a Hindu woman owning a limited estate under the Hindu law, but as the holder of a life estate under the family settlement. This life estate necessarily partakes of the character of what are termed 'life interest' under the English law of Real Property, since it really derives from that law.
(4) The question is whether the owner of such a life estate would have powers of disposition inter vivos, so long as she held the estate as distinguished from powers of devising the properties after her by means of a will or otherwise providing for inheritance. Before turning to the decisions of this Court I may refer to In re Thomson's Estate Herring v. Barrow (1880) 14 Ch D 263 James L J observed:
'The vice-chancellor was of opinion that the widow took no further interest that a life estate and that at most she had no further power of disposition than by act, inter vivos. At her decease should there by anything remaining the testator gives it over.'
This view of the Vice Chancellor was affirmed. A similar case came up for decision before this court in S. Venkata Chandikamba v. Venkataro, 53 ML J 557: AIR 1928 Mad 39, Krishnan and Odgers, JJ. (interpreting that words of disposition in the document in that case, and following (1880) 14 Ch D 263, cited by me earlier that there could be a life estate with powers of disposition inter vivos, and that such an interest must be spelt out of the terms of the particular disposition or document. I may add that, under the English law as it stands at present, the tenant holding a life interest undoubtedly possess an absolute power of alienation during his life, under the clauses of the Settled land Act, (See Cheshire's Modern Real Property 8th Edn. Page 194)
(5) In the present case, it is not actually necessary to go so far as to hold that Saradambal possessed a life estate with unfettered powers of alienation inter vivos during her lifetime. Actually she has not diminished the corpus of the estate by any such sale or gift but has merely created a charge upon certain property in favour of the 7th defendant (appellant) for monies raised by her for her own expenses. But if the matter had to be decided upon the terms of the document, Ex. A I would certainly hold that Saradambal appears to have possessed a life estate with powers of disposition, inter vivos. There is no restriction upon alienation and the language used is such as to imply that she could enjoy without restriction, and that, presumably the person taking subsequently would take what she died possessed of. It is only in respect of a device of the property by will after her lifetime, or of providing for further inheritance, that she was restrained by virtue of the effect of the document, like all other holders of a life interest. Certainly, the document clothed her with powers far wider than those of a Hindu woman owning a woman's estate under the Hindu law.
(6) The only question, therefore, that remains for consideration is whether the mortgagee (appellant) could plead that he actually parted with the amounts specified in the document for obtaining this mortgage and, if so, what the rights are of the remainder-man who has succeeded to the estate.
(7) Here, the discussion of the facts by the learned Additional District Judge is considerably affected by the confusion he has made which I have referred to earlier, between the existence of legal necessity, and the payment of monies under the transaction. Further, since he case the burden of proof entirely upon the mortgagee to affirmatively establish both facts, he has paid very little regard to the fact that the bona fides of the mortgagee in this case appear to be beyond dispute. There is absolutely no connection established between Saradamabal and this mortgageee, and there are no reasons at all alleged why Sardambal should have proceeded to create a usufructuary mortgage in favour of this appellant's without consideration. Several of the items relate to discharge of antecedent debts of the life estate holder and, had the principles been appreciated in proper perspective, the evidence upon this aspect would have been accepted at the face value as it deserved to be. In brief, upon going through the evidence in the record, I see no grounds whatever to assume that the several items of consideration in the document have not been established. The presumption of law would also be that the document was fully supported by consideration, being a registered instrument of mortgage. It is only with reference to one item, namely, 800 fanams paid to Chempakakannu Pillai Nagaru Pillai under the second recital, that proof is lacking except the ipse dixit of the appellant. I hence would exclude this item from the consideration proved, and hold that the document is supported by consideration to the extent of Rs. 1000 minus this 800 fanams or nearly Rs. 900 in the aggregate. I may add that even the lower court has not held that the document was unsupported by consideration, or that it was spurious. On the contrary, the lower court has upheld the consideration to a partial extent; it has negatived other items because of the confusion between consideration and the existence of legal necessity which I have referred to earlier.
(8) It follows that the appellant is entitled to succeed to the extent of nearly Rs. 900 as the consideration under a valid and subsisting mortgage, which would certainly bind the remainder-man (plaintiff-respondent).
(9) Upon these facts, it is clear, that the plaintiff-respondent is entitled to redeem the mortgage in favour of the appellant, after depositing the necessary amount. There is a further complication in that the life estate holder has also made her own personal properties as additional security, for the enforcement of this charge. Admittedly, those personal properties would be liable under the mortgage, and this is not in controversy. Hence, I further find that if the remedies are to be worked out with regard to the claim of plaintiff-respondent for redemption of the mortgage, and the rights of the appellant to the sum secured, in any appropriate proceeding, the properties charged as additional security shall be liable in the first instance and that only failing this enforcement need the properties of the estate to which the plaintiff-respondent has succeeded be made liable.
(10) The appeal is accordingly allowed with costs on these directions. The parties will bear their own costs throughout. The plaintiff respondent is held entitled to redeem the mortgage in this suit itself, without being driven to the necessity of filing a separate suit.
(11) Appeal allowed.