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Elamarty Bangarayudu and ors. Vs. Mangipoody Perayya Sastry - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtChennai
Decided On
Judge
Reported inAIR1916Mad747; 30Ind.Cas.927a
AppellantElamarty Bangarayudu and ors.
RespondentMangipoody Perayya Sastry
Cases ReferredHari Kishen Bhagat v. Kashi Parshad Singh
Excerpt:
hindu law - widow--compromise of suit, validity of--alienation of husband's estate--reversioner's consent. - - these facts were already before their lordships and are well understood by me. the mother alienates with the son's consent, the motive for the consent clearly being that the compromise was a settlement of doubtful claims......exhibits v and vi was a bona fide compromise by the parties concerned?2. whether it amounted to a valid alienation by the widow garakamma representing the estate with the consent of the nearest reversioner?5. both sides may adduce fresh evidence on these points. the findings should be returned within three months from this date and ten days will be allowed for tiling objections.6. in compliance with the above order the district judge of godavari submitted the followingfindings1. one additional witness has been heard for each side. on the 1st issue there can be no doubt that the compromise was a bona fide one by the parties concerned. it was given effect to and was entered into on the advice of vakils, three of whom have signed including mr. n. subbarao. under it plaintiffs were given.....
Judgment:

1. We agree with the lower Courts in their conclusion that the appellants have not shown any title by virtue of the alleged gift by Antanna in favour of his grandsons Subbarayudu and Venkayya, on the strength of which plaintiff's claim can be resisted. We also think that no question arises of a partial alienation, because the grandsons had no power to alienate the property during the life-time of their mother. The only question that remains relates to the effect of the compromise in Original Suit No. 348 of 1886.

2. Before we can decide this second appeal we must call for a finding from the District Judge upon the questions raised in paragraph 10 of the written statement of defendants Nos. 5 to 9 and paragraph 11 of the 4th defendant's written statement which we think are covered by the 3rd issue but have not been considered by the lower Courts.

3. In Original Suit No. 348 of 1886 there was a compromise of the suit brought by the purchasers under Exhibit I, who are the predecessors-in-title of defendants Nos. 5 and 7, by which Garakamma and her son Venkatachala-pati consented to the plaintiffs in that suit retaining the enjoyment of 5 acres 7 cents of the suit lands; but the lower Courts have not decided whether that compromise was a bona fide settlement of a doubtful claim and. whether any other nearer reversioner than Venkatachalapati who might have been consulted was alive at the time.

4. We must, therefore, remand the appeal for a decision upon the following issues:

1. Whether the compromise evidenced by Exhibits V and VI was a bona fide compromise by the parties concerned?

2. Whether it amounted to a valid alienation by the widow Garakamma representing the estate with the consent of the nearest reversioner?

5. Both sides may adduce fresh evidence on these points. The findings should be returned within three months from this date and ten days will be allowed for tiling objections.

6. In compliance with the above order the District Judge of Godavari submitted the following

Findings

1. One additional witness has been heard for each side. On the 1st issue there can be no doubt that the compromise was a bona fide one by the parties concerned. It was given effect to and was entered into on the advice of Vakils, three of whom have signed including Mr. N. Subbarao. Under it plaintiffs were given possession and enjoyment of 5 acres 7 cents at Lolla and defendants retained 3 acres 49 cents at Vadapalli paying Rs. 150 down in cash, which presumably represented mesne profits and costs foregone. On the evidence and probabilities I find this issue in the affirmative. An attempt is made to argue that the words parties concerned mean something else than the parties concerned in the compromise, and refer to the parties litigant in this appeal. I cannot follow the Pleader into such deep waters.

2. Issue No. 2--It is unnecessary to recapitulate the history of the compromise, and what preceded it. These facts were already before their Lordships and are well understood by me. In my opinion the consent of the next reversioner makes the alienation valid and binding on the actual reversioner. Such consent raises a presumption of due inquiry and legal necessity if the presumption is not rebutted by more cogent proof. This is the language of the Calcutta High Court in Debi Prosad Chowdhry v. Golap Bhagat 40 C.K 721 : 17 C.W.N. 701 : 17 C.L.J. 499. No evidence is brought forward here to rebut that presumption. Respondent's 1st witness, speaking of an event which occurred 29 years ago, does attempt to say something about Garakamma being forced into the compromise by the fear that her son--would go to Jail. But this is a palpable falsehood because there was no such fear and the compromise was made under the advice of eminent Pleaders, of whom one Mr. N. Subbarao is available and might have been called. Such an absurd statement ought not to have been made in a serious Court of Justice.

3. Here is a case of a mother and her only son. The mother alienates with the son's consent, the motive for the consent clearly being that the compromise was a settlement of doubtful claims. At the date of the compromise Chalapari was aged 20. After his mother's death he would be heir. No one contemplated the possibility of this young man predeceasing his mother and the succession passing at some problematic future date to the other reversioners of Antanna. The dictum of the Full Bench in the Calcutta cafe has been accepted by all Courts and on the facts of the present case, common sense seems to me to make it clear that the compromise was a bona fide settlement of a doubtful claim and that the consent of the nearest reversioner Chalapati was sufficient to render it valid and binding. He was a young man with every prospect of issue. The compromise was on the basis of half and half arid each party gained something, the widow retaining the more valuable lands. I can only regard the transaction as a perfectly bona fide one and one rendered valid and binding by the consent of the next reversioner, there being no rebuttal by more cogent proof of the presumption of legal necessity or of reasonable inquiry and honest belief. Chalapati, the person most affected, was a consenting party to 5 acres of his mother's land going out of their possession. If there was any fraud he stood to lose, being the heir to his mother and he certainly did not see the contingency of his dying before her The latest decision is Nachiappa Gounden v. Rangasami Gounden 26 Ind. Cas. 757 : 28 M.L.J. 1 : (1915) M.W.N. 53 : 17 M.L.T. 87. There the Chief Justice goes so far as to say that the consent of the next reversioner to an alienation, though partial, is conclusive of its propriety. Looking to the special circumstance of the present case, this is a sound principle and applies with greater force here where the facts are so clear. No evidence has been adduced whether any other nearer reversioner than Chalapati, who might have been consulted, was alive at the time. Chalapati was the next reversioner with the possibility of heirs of his body and surely it cannot have been expected that the reversioners next after him, whoever and wherever they might be, should be called in and consulted before this alienation can be treated as valid. I answer the 2nd issue in the affirmative.

4. We accept the findings. It is now contended as a point of law that a widow being a limited owner can in no circumstances make a valid compromise or be a party to a consent decree so as to bind the inheritance of the reversionary heirs. There is no doubt that while in some instances compromises by a limited owner may amount to family settlements, as in Musammat Hiran Bibi v. Musammat Sohan Bibi 24 Ind. Cas. 309 and in Khunni Lal v. Kunwar Gobind Krishna Narain 10 Ind. Cas. 477 : 15 C.W.N. 545 : 13 Bom. L.R. 427 : 13 C.L.J. 575 : (1911) 1 M.W.N. 432 in other cases they cannot be placed on a higher footing than they would have as contracts or alienations. Vide Musammat Indro Kooer v. Shaikh Abool Burkat 14 W.R. 146; Rambinayani Javvaji Timmaji v. Kambinayani Javvaji Subbaraju 5 Ind. Cas. 640; Imrit Konwur v. Roop Narain Singh 6 C.L.R. 76; Rajlakshmi Dasee v. Katyayany Dasee 12 Ind. Cas. 464 and Bhogaraju Venkatarama Jogiraju v. Adapalli Seshayya 12 Ind. Cas. 123. In the present ease, assuming that the compromise of Original, Suit No. 348 of 1886 by Garakamma could not be treated as more binding on the reversioners than an alienation, we asked the District Judge to find whether it amounted to a valid alienation. This question he has answered in the affirmative and he gives as a reason for his opinion that the nearest reversioner consented to it and that it was made under the advice of the legal advisers engaged in the suit. Then he says there is no rebuttal by more cogent proof of the presumption of legal necessity or of reasonable enquiry and honest belief. Under these circumstances we consider that it is not open to the respondent's Pleader now to raise the contention that the District Judge should have discussed whether the alienation was not for justifiable necessity on account of the purpose for which Exhibits III and IV were executed, as it was open to the respondent to have urged at the hearing in the lower Appellate Court that the effect of these documents was to rebut the presumption arising from the circumstances under which the suit was compromised. In the memorandum of objections to the finding the ground has not been taken that the Judge improperly excluded these documents from his consideration.

5. We think that the learned District Judge was in error in relying on the expression of opinion of a single Judge in Nachiappa Gounden v. Rangasami Gounden 26 Ind. Cas. 757 : 28 M.L.J. 1 : (1915) M.W.N. 53 as to the conclusive effect of the consent of the nearest reversioner upon an alienation by a widow, as the decision of the Court in that case did not go so far and the opinion of the majority of the Full Bench has since found support in the recent Privy Council decision in Hari Kishen Bhagat v. Kashi Parshad Singh 27 Ind. Cas. 674.

6. But in other parts of his finding the District Judge bases his conclusion on a sound footing and, therefore, as a whole we can accept it.

7. In allowing the appeal we reverse the decrees of the Courts below and dismiss the suit as regards items Nos. 1 and 2 of the plaint schedule. Defendants Nos. 5 to 9 and 14 will get their costs throughout from the plaintiff.


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