John Wallis, C.J.
1. These are appeals from a decision of the Temporary Subordinate Judge of Tanjore in a suit brought by the plaintiff Mahalakshmi, who is the daugher of Parvathi, who was one of the daughters of Ramaswami, against the first defendant, who is the adopted son of Valliammai, another daughter of Ramaswami. Ramaswami made a Will in favour of one of his widows Swarnam, the grandmother of the first defendant, Swarnam made a Will giving her co-widow, Thailammai, a life-estate, and the first defendent is a donee, and the third defendant an alienee for value, from Thailammai who only had a right to dispose of her life-estate. It will be convenient to deal first with the case of the first defendant who claims under a gift made by Thailammai in excess of her powers. He contends, in the first place, that the plaintiff, who took under Thailammai's Will, cannot dispute the gift made by Thailammai long before the Will. This is quite an unjustifiable extension of the doctrine of election as embodied in Section 35 of the Transfer of Property Act and as regards Wills in Section 167 of the Indian Succession Act. Section 35 in express terms limits the doctrine of election to cases where a person professes, to transfer property which he has no right to transfer and as part of the same transaction confers any benefit on the owner of the property. Section 167 of the Indian Succession Act, which in terms applies to the facts of this case, though the section itself does not in law apply, expresses the doctrine thus : 'Where a man, by his Will, professes to dispose of something which he has no right to dispose of, the person to whom the thing belongs shall elect...to confirm such disposition or to dissent from it, and in the latter case, he shall give up any benefits which may have been provided for him by the Will,' This doctrine, which is known in England as the doctrine of 'election' and in Scotland as the doctrine of 'approbate and reprobate,' as explained in Codrington v. Codrington (1875) 7 H.L. 854, comes to this--that a man is not at liberty to take under a deed or Will and at the same time to dispute the operation of that deed or Will in other respects, but there is no authority whatever for saying that a person who accepts the benefit under a Will is precluded from disputing some transaction in which the testator was engaged long before his death which is not the subject of the Will at all. All that the testator says here is excluding the properties which I have already given away (a term which includes the gift to the first defendant), I will make the following dispositions.' Therefore, the appellant has altogether failed to bring this case within the doctrine of election as expressed in Section 167 of the Indian Succession Act, which is a satisfactory expression of the doctrine as based on juctice, equity and good conscience.
2. Then the appellant has contended that the question is res judicata because in a previous suit in which the first defendant's mother was the plaintiff and the present plaintiff was the defendant, it was held that the properties, covered by Exhibit N10 in this case and Exhibit XIII in the other case, were the self acquisitions of the widow Thailammai. A sufficient answer to that contention is that the gift in dispute was a gift to the first defendant's father, who was then alive and not a party to the suit, and the properties given to the first defendant's father were not the subject of the suit. In these circumstances, it is impossible, in my opinion, to say that the question as to whether they were the self-acquisitions or not arose and was decided between the same parties in the previous suit. Therefore, that contention fails.
3. Putting aside the defences of election and res judicata, it is admitted for the first defendant that his claim cannot be supported in respect of 3/64 of certain properties and that they must be treated as forming part of the estate of Swarnam and that the plaintiff as co heir with the first defendant to Swarnam's estate is entitled to 1/2 of 3/64 and the first defendant is entitled to the other half. Therefore the first defendant's appeal fails as regards the question as to 3/64.
4. It remains then to consider whether it should be supported as to the remaining properties which were conveyed by Exhibit N10, and that is the same question which arises as to the appeal of the third defendant, who is an alience for value from the widow Thailammai. The learned Subordinate Judge has disposed of this question by throwing the onus upon the first and third defendants of showing that these properties were not acquired with funds belonging to Swarnam's estate of which Thailammai was a life-tenant. Even putting Thailammai in the position of an ordinary Hindu widow-- which is not her position, seeing that she was merely a life tenant under the Will--still it is well-settled in this Court that the presumption is the other way [see Subramanian Chetti v. Arunachelam Chetti 28 M. 1] and what may be treated as a recognition of the rule or at least as a refusal to dissent from it by the Privy Council in Rajah of Ramnad v. Sundara Pandiyasami Tevar 49 Ind. Cas. 704 . Now putting the onus on to the plaintiff of showing that these properties covered by Exhibit N10, were acquired with the proceeds of Swarnam's estate, I think that this is not proved except as to the extent of Rs. 800. That was the finding of another Bench of this Court consisting of Sankaran Nair and Tyabji, JJ., in the previous suit by Valliammai and apart from any question of res judicata, there is not any sufficient evidence in this case to enable us to say that excepting 3/64, these properties are shown to have been acquired out of Swarnam's estate. As to the Rs. 800, Mr. Narasimha Aiyangar has sited to us the recitals in the sale deeds of what is admittedly Swarnam's property, which show that only to the extent of Rs. 800 these properties were fold for the purpose of purchasing properties under Exhibit N10, and 1 think that these recitals may be taken to be under the circumstances recitals against the pecuniary interest of Thailammai, because they tend to evidence the pecuniary liability in case the alienation should afterwards be attacked and that, therefore, they must be said to be against her pecuniary interest, but further than that I am not satisfied that it has been shown that any other estate moneys were used in purchasing the properties covered by Exhibit N10.
5. Then it only remains to consider what we should do in respect of the Rs. 800 out of Swarnam's estate which was expended in this way. The property which was wrongfully alienated under Exhibit D in the previous suit and Exhibit E in this suit has been divided between the plaintiff and the first defendant already as heirs of Swarnam and, therefore, they have not sustained any loss by the alienation and the plaintiff has no claim to any relief in respect of it. This may be treated as disposing of Rs. 400 of the Rs. 800 used to purchase the lands covered by Exhibit N10.
6. As regards the remaining Rs. 400 the plaintiff's suit here was to recover the properties covered by Exhibit N.10 in the hands of alienees from Thailammai. She has failed to establish that case and has also, in my opinion, failed to establish the claim for a charge which was not even expressly claimed in the plaint or in the Court below. The properties covered by Exhibit N10 have been found, in my opinion, to form part of Thailammai's and not of Swarnam's estate, and no authority has been sited to show that in the hands of alienees from Thailammai they are subject to a charge to the extent to which they were acquired by Thailammai with funds belonging to Swarnam's estate.
7. The appeal of the first defendant must be allowed except as regards half of 3/64 under the gift deed, Exhibit 12, and the parties will receive and pay proportionate costs. The appeal of the third defendant must be allowed with costs.
8. As regards the memorandum of objections, the question relates to the office of trustee. It was held in the previous case that as between the two daughters there was survivorship, That finding negatives any right of the daughter or the representatives of the daughter, who died first, to some in if the office had been held by the two sisters as tenants-in-commor. Then the son of one would have been entitled to succeed on his mother's death to the office as tenant in-common with the daughter of the other sister, but it was held in the previous suit that there was no such right. That being so, the plaintiff has failed to show any legal basis upon which I can now hold that she is entitled to succeed in place of Parvati, who died first.
9. Therefore the memorandum of objections is dismissed with costs.
10. I agree and only add a few words with regard to the plaintiff's claim to a charge for Rs. 800 or any part thereof. The course of events was that Thailammai, as qualified owner, alienated part of her husband's estate under Exhibits E and F and afterwards used the money she so obtained in order to buy the property, which is now in the possession of the first and third defendants. The plaintiff is no doubt entitled to review Thailammai's dealing with the estate and has undoubtedly an equity in respect of the original sales, by which Thailammai encroached on what was in her possession as a woman's estate. That equity is clear ; but we have not been shown any authority and there would be grave disadvantage in extending it to enable persons in the plaintiff's position to follow the proceeds of an alienation, whatever form they might afterwards assume in the shape of property in the possession of third parties. It is true that in the present case those third parties might, by the use of a little diligence, have discovered the origin of the titles to the properties they acquired in the limited estate in Thailammai's hands. But, in the absence of authority, it would be very dangerous to lay down the general principle that such subsequent transactions can be interfered with by Courts, when the plaintiff and other persons in her position have ample protection in their right to get the, original alienation set aside.
11. In fact the plaintiff had the alienation covered by Exhibit E set aside and could have protested herself in respect of the other alienation, if she had not delayed to do so beyond the period of limitation.
12. In these circumstances there is no reason for allowing the equitable remedy against 1 and 2 defendants, which plaintiff claims.