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Malla Suriah and ors. Vs. Choudhri Suran Naidu and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtChennai
Decided On
Judge
Reported in32Ind.Cas.993a
AppellantMalla Suriah and ors.
RespondentChoudhri Suran Naidu and ors.
Cases ReferredHari Kishen Bhagat v. Kashi Pershad Singh
Excerpt:
hindu law - partial alienation by widow--consent of reversioners, value of--alienation, whether binding upon estate--surrender of life-estate, when operative. - - the widow purported to adopt yerranna, and the courts below have found as a fact that the adoption was bad. we think his consent is a question of fact which must be proved by evidence like any other fact, and the subordinate judge in this case weighed such evidence as there was to substantiate the contention that janakanna consented to the alienation to yerranna and decided against the contention. 605 has unsettled what i think is a clearly established doctrine of hindu law in this presidency, that where a widow alienates part only of the estate of her deceased husband the consent of the next reversioner is not anything more..........has argued three questions. his first proposition is this, that a transfer of the whole estate by a widow to one only of the immediate reversioners, provided the other reversioners do not dispute the transfer, is binding upon the reversioners who may live after the widow. the theory of surrender is that the widow retires from the management of the property and lets in the persons who are entitled, to succeed her after her death. this theory becomes inoperative if the transfer is made to only one of the persons who are entitled to enjoy the property. moreover, as pointed out by my learned brother, the finding of the subordinate judge is that the other reversioner is not shown to have consented to the surrender in favour of the other reversioner. therefore that proposition.....
Judgment:

Coutts Trotter, J.

1. In this case a certain Ammanna had a widow's estate in the properties of her deceased husband Sanyasi Naidu. After her husband's death the next reversioners were her two grandsons both in the same degree, one called Janakanna and the other Yerranna. The widow purported to adopt Yerranna, and the Courts below have found as a fact that the adoption was bad. She also by Exhibit VII during Yerranna's life-time purported to convey to him the whole of her deceased husband's property. Subsequently Yerranna died and thereupon Ammanna, the widow, alienated with the consent of Janakanna certain properties in favour of various persons. This time the alienations were not of the whole property but only of parts of it. The first point taken for the appellants was that as by Exhibit VII, there was an alienation of the whole estate by the widow, that would be binding if there was proved consent of the next reversioners. Yerranna, of course, consented, because, the surrender was in favour of him. But there is no document in existence whereby any consent by Janakanna was obtained. It is argued that, because he did not object, his consent must be presumed. We cannot accept that argument. We think his consent is a question of fact which must be proved by evidence like any other fact, and the Subordinate Judge in this case weighed such evidence as there was to substantiate the contention that Janakanna consented to the alienation to Yerranna and decided against the contention. He says: It is nowhere stated nor proved that Janakanna assented to that surrender and waived all his rights to the property. The fact that subsequent to Exhibit VII Janakanna chose to join Ammanna in dealing with those very properties after Yerranna's death lends support to the contention that Janakanna regarded Ammanna herself as the owner of the property and joined her in dealing with the property.' That is the conclusion arrived at by him, after a consideration of the probabilities in the light of what happened later, that in fact Janakanna never consented to the alienation by Exhibit VII. That being so that alienation is clearly bad. But after Yerranna's death, alienations, as I have already stated, were made by the widow Ammanna at the time when Janakanna was undoubtedly the next reversioner, alienations of parts of the property, and we are asked to say that the consent of the nearest reversioner will conclusively validate the alienations by the widow not merely of the whole estate but of part of it. It is argued that the decision in Bajrangi Singh v. Manokarnika Bakhsh Singh 30 A.S 1; 12 C.W.N. 74; 9 Bom. L.R. 1348 has upset the express decisions of this Court and other Courts to the effect that the doctrine that the consent of the nearest reversioner validates alienations is confined to cases where the alienation is of the whole estate. It is said that Bajrangi Singh v. Manokarnika Bakhsh Singh 12 C.W.N. 74; 9 Bom. L.R. 1348, when properly examined, is a case of a partial alienation. That is true in one sense and not true in another. It is an aggregate of partial alienations which in their totality comprehended the whole estate and the effect of the transactions as a body was to divest the widow of any interest at all in the estate of her deceased husband. It is quite true that there are observations of the learned Judges in this Court which purport to speculate as to what the effect of the decision of the Privy Council in Bajrangi Singh v. Manokarnika Bakhsh Singh 12 C.W.N. 74; 9 Bom. L.R. 1348; 17 M.L.J. 605 may be upon other decisions of this Court rather than treat it as a definite expression of opinion one way or the other. But speaking for myself I do not think that anything in Bajrangi Singh v. Manokarnika Bakhsh Singh 12 C.W.N. 74 17 M.L.J. 605 has unsettled what I think is a clearly established doctrine of Hindu Law in this Presidency, that where a widow alienates part only of the estate of her deceased husband the consent of the next reversioner is not anything more than evidence--it may be in some cases evidence of great weight and great conclusiveness,--but is never more than evidence that the alienations were justified by necessity and were proper alienations in law. I think there is nothing either in the decision of the Privy Council or any of the observations of this Court to overrule or to make no longer good law the decision of this Court in Marudamuthu Nadan v. Srinivasa Pillai 8 M.L.J. 69 and the exact decision on this point in Muthuveera Mudaliar v. Vythilinga Mudaliar 3 Ind. Cas. 476; 5 M.L.T. 122. For my part I do not regard this question as open to this Court and I do consider it as settled law in this Court that a partial alienation by a widow is not conclusively validated by the consent of the nearest reversioner.

2. The appeal fails and is dismissed with costs.

Seshagiri Aiyar, J.

3. My learned colleague has stated the facts and it is not necessary for me to refer to them now. Mr. Srirangachari has argued three questions. His first proposition is this, that a transfer of the whole estate by a widow to one only of the immediate reversioners, provided the other reversioners do not dispute the transfer, is binding upon the reversioners who may live after the widow. The theory of surrender is that the widow retires from the management of the property and lets in the persons who are entitled, to succeed her after her death. This theory becomes inoperative if the transfer is made to only one of the persons who are entitled to enjoy the property. Moreover, as pointed out by my learned brother, the finding of the Subordinate Judge is that the other reversioner is not shown to have consented to the surrender in favour of the other reversioner. Therefore that proposition fails.

4. The second proposition for which the learned Vakil contended is that a partial surrender is valid if it is made with the consent of the immediate reversioner. This would affect the alienations under Exhibits II, V and VI. It was held in this Court in Marudamuthu Nadan v. Srinivasa Pillai 21 M.K 128 by a Full Bench of four Judges that qua surrender, it would not be valid unless the whole of the properties in the possession of the widow was surrendered. In Bajrangi Singh v. Manokarnika Bakhsh Singh (1), which has been very much relied upon in the arguments before us, this case of Marudamuthu Nadan v. Srinivasa Pillai 8 M.L.J. 69 is quoted with approval; and in other Courts also the position that a partial surrender in favour of the immediate reversioner will not be binding upon the estate has been regarded as good law. Therefore the second proposition also fails.

5. Mr. Srirangachariar fell back upon a proposition which has been debated too long in this Court without reaching a final decision. His proposition is this, that although the partial surrenders under Exhibits II, V and VI may not be valid, they should be regarded as valid, as partial alienations made with the consent of the immediate reversioner. The well-known case of Bajrangi Singh v. Manokarnika Bakhsh Singh 30 A. P 1; 6 C.L.J. 766 is relied upon in this connection. As pointed out by my learned colleague, in that case the entire property in the possession of the widow had been alienated, although the alienations were by a number of documents. This case was examined by Kumaraswami Sastri, J., and myself in the Full Bench case in Nachiappa Gounden v. Rangasami Gounden 26 Ind. Cas. 757; 2 L.W. 69 and we came to the conclusion that the consent of the reversioner is only evidence of necessity and that it is not conclusive evidence: as such the alienation is not binding upon the estate by reason only of the consent. There are observations in Rangappa Naik v. Kamti Naik 31 M.K 366 and in Kattamudy Raghupathy v. Kattamudy Kannamma 16 Ind. Cas. 710, in the one case by the learned Chief Justice and in the other by Sadasiva Aiyar, J., throwing some doubt upon the correctness of the proposition laid down in Marudamuthu Nadan v. Srinivasa Pillai 8 M.L.J. 69. With all deference I am unable to share these doubts, especially as the decision in Muthuveera Mudaliar v. Vythilinga Mudaliar 3 Ind. Cas. 476 which is directly in point, has never been overruled. The decision in Hari Kishen Bhagat v. Kashi Pershad Singh 27 Ind. Cas. 674; 17 Bom. L.R. 426; (1915) M.W.N. 511, to which our attention was drawn and in which it is said that the consent of a reversioner is a very stringent equity, has also been considered in a number of cases in this Court and so far as I am concerned, I find no reason to depart from the position I took up in the Full Bench case. I do not consider that Hari Kishen Bhagat v. Kashi Pershad Singh 27 Ind. Cas. 674; 17 M.L.T. 116; 2 L.W. 219; 17 Bom. L.R. 426 in any way enunciates a different proposition; I am glad to find that my learned brother, sitting with Srinivasa Aiyangar, J., in Appeal No. 108 of 1914 was of opinion that in cases of partial alienation the consent of a reversioner was only evidence of the bona fides of the transaction. Therefore the preponderance of judicial opinion in this Court is that if there is a partial alienation made with the consent of a reversioner, the consent should be taken only as evidence of the necessity for the alienation, but it is not conclusive evidence of necessity. In this case the Judge has come to the conclusion that notwithstanding the consent given by the immediate reversioner the alienations were not made for justifiable purposes and are, therefore, not binding on the estate. In the view I have expressed the decision of the lower Court is correct. I, therefore, agree in the conclusion of my learned brother that the second appeal should be dismissed with costs.


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