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Nayakammal Vs. S. Munusami Mudaliar - Court Judgment

LegalCrystal Citation
CourtChennai
Decided On
Judge
Reported inAIR1924Mad819; 84Ind.Cas.231
AppellantNayakammal
RespondentS. Munusami Mudaliar
Cases ReferredIn Fateh Singh v. Thakur Rukmini Ramanji Maharaj
Excerpt:
.....cases it has been expressed as an election to hold the deed good; the authorities are all discussed and having regard to the decision in that case i think that the defendant is estopped from disputing the validity of the alienation by gnanasundarammal in favour of samarapuri mjrdaliar in 1910, as i think it is clearly proved that during the lifetime of gnansundrammal the defendant and his father acknowledged the validity of the transaction and after her death the......as follows: 'in the same manner as you protected me by giving food and clothing before i got my father's property, you should continue to supply me even hereafter with the necessary food and clothing so long as i live, and you yourself should perform the obsequies to be done for me and meet the expense thereof. if there be inconvenience for you to perform the aforesaid obsequies, the aforesaid ceremonies should be got performed by my brother-in-law's daughter nayakammal. according to the maintenance decree obtained on the (charge of) house no. 19, in original suit no. 205 of 1905 in the madras city civil court, filed against me by papammal, you yourself should continue to pay rs. 1-8-0 month after month to that lady during her lifetime, the aforesaid lady should be given the western.....
Judgment:

Kumaraswamy Sastri, J.

1. This is a suit by the plaintiff for a declaration that the property mentioned in the plaint belongs to her, for possession of the property from the defendant, for the recovery of arrears of, rent and for mesne profits.

2. The plaint as amended sets out that the property set out in the plaint belonged to one Sandar Ramalinga Mudaliar who died on the 15th of December 1903, leaving a daughter Gnanasundarammal who obtained Letters of Administration on the 14th of March 1905, such letters being granted after contest by the reversioners, that by a registered deed of release dated the 9th of December 1905, the reversioners, to the estate including the defendant's father who also represented the defendant released their interest in the properties left by Ramalinga Mudaliar in favour of his daughter Gnanasundarammal, that Gnanasundarammal transferred, the suit property to one Samarapuri Mudaliar on the 21st of February 1910 by a deed which, though called a deed of gift was for consideration and necessity, that the said deed was attested by the defendant's father in token of his assent to the transaction, that Samarapuri Mudaliar mortgaged the suit property to one S.V. Subramania Aiyar for Rs. 600 on the 26th May 1916, out of which Rs. 250 was given to the defendant for his marriage and the rest for the payment of debts binding on the estate, that the defendant with full knowledge of the contents of the document attested the same, that by a registered deed of mortgage dated the 2nd of February 1920, Samarapuri Mudaliar mortgaged the property with the defendant for Rs. 200, that Samarapuri Mudaliar dealt with and enjoyed the propeity as absolute owner with the knowledge and consent of the defendant, that tie defendant, having with full knowledge of the above facts, accepted the said transaction and received benefits there under, is now ; estopped from denying the title of Samarapuri Mudaliar, that Samarapuri Mudaliar left a Will dated the 19th of March 1920 bequeathing the property to the plaintiff, that the defendant both by reason of his consent and estoppel and also by reason of the fact that he is not the nearest reversioner to the estate is not ntitled to question the plaintiff's title, t at the defendant is occupying a room in the house having agreed to pay a rent of one rupee per mensem, that when a notice to quit was sent to him, the defendant sent a reply denying tenancy and setting up title in himself and hence this suit.

3. The defendant filed a written statement stating that he is entitled to the suit property as the nearest reversioner, that Gnanasundarammal acquired no title to the property by reason of the grant of Letters of Administration to her, that the deed of release, even if executed, is not valid and does not bind him as his father predeceased. Gnanasundarammal and any act he did purporting to bind the defendant would be invalid, that the deed of gift executed by Gnanasundarammal is not valid and binding on the property, that he had no knowledge of the mortgage-deed dated the 2nd of February 1920, and was not a party to that transaction, that Samarapuri Mudaliar, though he borrowed Rs. 200 from the defendant, did not execute any mortgage-deed, that the Will of Samarapuri Mudaliar is not valid and binding and that he never agreed to pay any rent nor was he a tenant under the plaintiff. In his supplemental written statement filed in answer to the amended plaint, the defendant denies that there was any necessity or consideration for the deed of gift dated the 21st of February 1910 and that Rs. 250 was borrowed for the purpose of his marriage and states that the mortgage document of the 26th of May 1916 executed in favour of Subramania Aiyar by Samarapuri Mudaliar is only a nominal document.

4. The following issues were settled:

(1) Whether the release deed, dated 9th December 1905, relied on by the plaintiff is true, valid and binding on this defendant?

(2) Whether the deed, dated 21st February 1910, is a deed of gift or an alienation for legal necessity and in any event whether it is legal and binding on this defendant?

(3) Whether the plaintiff acquired any rights under the Will of the late Samarapuri Mudaliar and whether the plaintiff is entitled to setup any right under ii without obtaining Probate?

(4) Whether the defendant is estopped from denying the title of the plaintiff for any of the reasons set out in the plaint?

(5) Whether the defendant agreed at any time to pay rent, and, if so, how much?

(6) Whether the plaintiff is entitled to the declaration and possession prayed for?

(7) To what relief, if any, is plaintiff entitled?

5. The property in dispute belonged to Sundar Ramalinga Mudaliar who died leaving Gnansundarammal his only daughter and legal representative. He died intestate and Gnanasundarammal obtained Letters of Administration to his estate by a decree dated the 28th of February 1905, in I.O.S. No. 14 of 1904 to which the then reversioners were parties. It appears from the evidence that the defendant's father and a brother of his were living in the suit house. After the termination of the testamentary proceedings in favour of Gnanasundarammal, they left the house. On the 9th of December 1905, the defendant's father acting for himself and on behalf of the defendant, who was said to be 16 years at the time and the defendant's elder brother executed a deed of release which has been marked as Ex. F in favour of Gnanasundarammal. The deed recites that, she is according to the Hindu Law entitled to the properties left by her father, and that she obtained Letters of Administration. It then proceeds as follows: 'As we are the divided pangalies of the aforesaid Ramalinga Mudaliar and as we have reversionary right in his properties, we intended to relinquish in your favour alone the rights Avhich we possess and in return therefor Santbar Santhiap-pan, alias Santhilinga Mudaliar and his sons Santhar Muthukalathi Mudaliar and Santhar Munusami Mudaliar out of us have received Rs. 200 and Santhar Karunai Sivaprakasa Mudaliar and his younger brother Santhar Murugesa Mudaliar out of us, who are the sons of Santhar Kumara, swami Mudaliar, have received Rs. 200 from you. Having received in this manner we have relinquished to you yourself the reversionary right which we possess in all the moveable and immoveable properties of the aforesaid Ramalinga Mudaliar, that is, in the house described in detail hereunder and in other moveable properties. So you shall yourself get also with full lights all the rights which we possess in all kinds of properties of the aforesaid Santhar Ramalinga Mudaliar and shall hold and enjoy the aforesaid properties with power of alienation such as by gift and sale so long as the sun and moon endure. To this effect is the release otherwise called the deed of relinquishment of reversionary right written and given out of our free-will.

6. It appears from the evidence that Rama-linga Mudaliar the father of Gnanasundarammal left immoveable properties consisting of lands and the suit house The plaintiff states that the lands had already been sold to meet the expenses of the testamentary proceedings and for paying off other debts and the recital in this document that the only property remaining is the suit house supports the view that, at the date of the release deed, the lands had already been sold. On the same date, viz., 9th December 1905, the defendant's father and his elder brother executed a rental agreement in favour of Gnanasundarammal which has been marked as Ex. G. It recites that they agreed to pay her 8-annas a month for occupying a room in the suit house. The tenancy is a monthly tenancy terminable by a month's notice. The evidence is that, under this rental agreement, the defendant and his father continued in the house and that the defendant's father died in the suit house. On the 21st of February 1910 Gnanasundarammal executed the deed Ex. B in favour of Santhar Samarapuri Mudaliar. It recites that she has become old and infirm and has no other person except Samarapuri Mudaliar to protect her and that she gives the property mentioned in the deed to him subject to the conditions mentioned therein. The material portion of the deed runs as follows: 'In the same manner as you protected me by giving food and clothing before I got my father's property, you should continue to supply me even hereafter with the necessary food and clothing so long as I live, and you yourself should perform the obsequies to be done for me and meet the expense thereof. If there be inconvenience for you to perform the aforesaid obsequies, the aforesaid ceremonies should be got performed by my brother-in-law's daughter Nayakammal. According to the maintenance decree obtained on the (charge of) house No. 19, in Original Suit No. 205 of 1905 in the Madras City Civil Court, filed against me by Papammal, you yourself should continue to pay Rs. 1-8-0 month after month to that lady during her lifetime, The aforesaid lady should be given the western middle room of that house for her residing therein so long ,as she lives. If she does not reside, in that room but brings in any other of her people to reside therein as tenant, accomodation should not be given to them. You should yourself pay Rs. 200 being the amount of small sums borrowed by me from outsiders for repair of the aforesaid, house No. 19 and for paying its taxes and for paying maintenance to the aforesaid Papammal and Rs. 24 being the balance of maintenance now due by me to the aforesaid Papammal and relieve me from debt. You should spend not less than Rs. 5 and conduct the Annaphishekam which is being conducted year after year on the full moon day in the month of Arpisi to Valleswara Swamigal in Thengur Selva Vinayagar Sannadhi in the aforesaid Mylapore.

7. This deed is attested by the defendant's father Santhalinga Mudaliar. Although the deed states that it is a deed of gift there can be little doubt that the gift was an onerous one involving paymant of monies by the donee. It is really a conveyance by Gnanasundarammal in considertion of the payment of Rs. 200 for debts due by her and the maintenance payable by her and of the performances of the charity mentioned in the deed. As I said before, the defendant and his father were living in this house. On the 26th of May 1916 Samarapuri Mudaliar the grantee under Ex. B executed a mortgage-deed (Ex. D) in favour of Subramania Aiyar for Rs. 600. It refers to the deed of gift (Ex. B.) and recites that the property is in his possession and enjoyment and that in consideration of this mortgage he received Rs. 250 for the expenses of the marriage of Santhar Munusami Mudaliar (defendant) Rs. 50 for paying the balance of maintenance due to Papammal who is referred to in Ex.B the gift deed, and Rs. 300 for effecting repairs to the house which is said to be in a dilapidated condition. It appears from the endorsement on Ex. D that Subramania Aiyar received the principal and interest due on this mortgage on the 17th of August 1918. Ex.D is attested by the defendant. On the 19th of July 1918, Samarapuri Mudaliar agreed to sell a portion of the suit house to one Shanmuga Mudaliar and executed an agreement Ex.E. The sale was to be for Rs. 900. This document recites that the property was obtained by a deed of gift executed by Gnanasundarammal in his favour and that the sale was to be for Rs. 900. The evidence adduced on the plaintiff's side is that Rs. 250 borrowed on the mortgage was not enough for the marriage expenses and that more monies were required. This document is attested by the defendant. The defendant admits that Samarapuri Mudaliar got his marriage performed. On the 2nd of February 1920, Samarapuri Mudaliar borrowed Rs. 200 from the defendant and executed in his favour the deed of mortgage Ex, C. The material portion of the deed runs as follows: 'I hypothecated to you the tiled building bearing door No. 19 comprised in old survey No. 1325 new survey No. 3085 and certificate No. 294 and having an extent of 2 grounds 692f square feet which was given to me through a registered deed dated 21st February 1910 by Thandava Gnanasundarammal which is in my possession and enjoyment and which is situated in the eastern row of Thengur Selva Vinayagar Koil Street Tiru Mylapore, South Madras etc.... In respect of this sum of Rs. 200 I shall pay interest at rupee one per cent, per mensem, Within 31st January 1923,I shall pay to you this principal amount and interest, discharge this debt and receive this bond,.... I hypothecated this house to you and have kept it in my possession.

8. The defendant admits in his written statement that he lent Rs. 200 to Samarapuri Mudaliar but he wants to make out that he never got a mortgage-deed. Execution of this mortgage is proved by the attesting witnesses and this document is registered. I have no hesitation in disbelieving the evidence of the defendant that he did not get any mortgage document for the money he lent. It is difficult to believe that the deceased would have fraudulently created a mortgage for the loan he received, especially as he was treating the defendant with affection and had gone to the extent of getting him married. The defendant states that he was giving earnings to the deceased but his earnings would have been hardly sufficient to meet, the expenses of himself, his wife and family. Samarapuri Mudaliar died on the 10th of Juno 1920 having left his Will dated the 19th of, March 1920, whereby he appointed the plaintiff as executor and bequeathed to her the suit property. Probate of the Will has been marked as Ex. A. so that if the property belonged to Samarapuri Mudaliar, she has acquired full title. There can be little doubt on the evidence that the defendant and his father were fully aware of the deed executed by Gnanasundarammal in favour of Samarapuri Mudaliar, that Samarapuri Mudaliar was in possession and enjoyment of the property as absolute owner from 1910, the date of Ex. B in his favour, that he executed mortgages as the absolute owner of the property, which mortgages were attested by the defendant, and that the defendant himself, afterthe death of Gnanasundarammal, when he would have been the reversioner if his case is true, accepted Samarapuri Mudaliar as the absolute owner and got a mortgage-deed from him. I have little doubt that both the defendant and his father were fully aware of the nature and contents of the documents which they attested. It has, no doubt, been held that attestation does not prima facie import knowledge. In Lakhpati v. Ram bodh Singh 29 Ind. Cas. 218 : 37 A. 350 : 13 A.L.J. 616,it has been held that the question whether attestation should be held to imply assent is a question of fact and must be determined with reference to the cricumstances of each case. As pointed out in Gurudayaldas v. Nathu 50 Ind. Cas. 274, where a person having tangible interest in the property affected by the deed attests that deed, his attestation should be taken as proof of his consent to and knowledge of the correctness of the recitals in the deed. Having regard to the circumstances that the reversioners in this case contested the right of Gnanasundarammal when she applied for Letters of Administration and, subsequently, executed a release in her favour, there can be little doubt that they must have enquired into and known the contents and seen the deeds which they attested. It is the commonest thing in this country for attestations to be obtained from persons having a possible interest in the property, with the object of binding them later on and I have rarely come across a case where a person having an interest present or contingent in the property has attested the deed without enquiring into its contents. The facts proved show that the defendant's father acting for himself and as guardian of the defendant and the defendant's elder brother obtained Rs. 200 from Gnanasundarammal as consideration for the release deed. Having regard to the value of the property as mentioned in the release deed the reversioners got Rs. 400 in respect of a property which was worth Rs. 600 at the time. It has also been proved beyond all doubt that Samarapuri Mudaliar acting as the owner and with the knowledge and consent of the defendant mortgaged the house for the purpose of meeting the expenses of the defendant's marriage and the defendant got the benefit of a substantial portion of the mortgage-money. The transactions were before the death of Gnanasundarammal. After her death the defendant lent Rs. 200 and got a mortgage in his favour. Even assuming that the alienation by Gnanasundarammal in favour of Samarapuri Mudaliar is invalid beyond her lifetime, it is clear that an alienation by a widow beyond her powers is voidable and net void. I need only refer to Modhu Sudan Singh v. Rooke 24 I.A. 164 : 25 C. 1 : 1 C.W.N. 433 : 7 M.L.J. 127 : 7 Sar. P.O.J. 194 : 13 Ind. Dec. 1 and Rangasami Goundan v. Nachiappa Goundan 24 I.A. 164 : 25 C. 1 : 1 C.W.N. 433 : 7 M.L.J. 127 : 7 Sar. P.O.J. 194 : 13 Ind. Dec. 1 50 ind. Cas. 498 : 42 M. 523 : 36 M.L.J. 493 : 17 A.L.J. 536 : 29 C.L.J. 539 : 21 Bom. L.R. 640 : 23 C.W.N. 777 : (1919) M.W.N. 262 : 26 M.L.T. 5 : 10 L.W. 105 : 46 I.A. 72 (P.C.), where their Lordships of the Privy Council observe as follows:--'No doubt there is another view which is not estoppel, but is expressed by one learned Judge as ratification. It is scarcely that though it might be hyper-criticism to object to the use of the word. What it is Ibased on is this. An alienation by a widow is not a void contract, it is only voidable--Bijoy Gopal Mukerji v. Krishna Mahishi Debi 34 I.A. 87 : 34 C. 329 : 11 C.W.N. 424 : 5 C.L.J. 334 : 9 Bom. L.R. 602 : 2 M.L.T. 133 : 17 M.L.J. 154 : 4 A.L.J. 329 . Now in all cases of voidable contracts there is a general equitable doctrine common to all systems that he who has the right to complain must do so when the right of action is properly open to him and he knows the facts. If, therefore, a reversioner, after he became in titulo to reduce the estate to possession and knew of the alienation, did something which showed that he treated the alienation as good he would lose his right of complaint. This may be spoken of, though scarcely accurately, as ratification. In some cases it has been expressed as an election to hold the deed good; Modhu Sudan Singh v. Rooke 24 I.A. 164 : 25 C. 1 : 1 C.W,N. 433 : 7 M.L.J. 127 : 7 Sar. P.C.J. 194 : 13 Ind. Dec. 1 .' In Fateh Singh v. Thakur Rukmini Ramanji Maharaj 72 Ind. Cas. 8 : 45 A. 339 : 21 A.L.J. 235 : A.1.R. (1923) (A.) 387, it was held by a Pull Bench of the Allahabad High Court that a reversioner, who expressly assents to an alientation of property forming part of an estate, cannot on succeeding to the estate after the widow's death repudiate his action and sue for possession of the pro perty alienated by the widow. The authorities are all discussed and having regard to the decision in that case I think that the defendant is estopped from disputing the validity of the alienation by Gnanasundarammal in favour of Samarapuri Mjrdaliar in 1910, as I think it is clearly proved that during the lifetime of Gnansundrammal the defendant and his father acknowledged the validity of the transaction and after her death the. defendant dealt with Samarapuri Mudaliar as the absolute power of the property and took a mortgage. There can be little doubt from the evidence that Samarapuri Mudaliar altered his position for the worse. He borrowed monies on the mortgage of this house for performing the defendant's marriage, for effecting repairs to this house and for paying the maintenance due to Papammal. It is hardly likely that he would have executed the mortgages and borne the expenses of the defendant's marriage if the defendant had at any time asserted his right to set aside the transaction on the death of Gnanasundarammal. In fact Gnanasundarammal was at that time old and she died a few months prior to Samarapuri Mudaliar and it cannot be said that this is a case of an alienation by a young widow where the alienee expects a long term of possession and enjoyment before he is compelled to relinquish the property. The defendant and his father, having obtained considerable benefit, cannot now turn round and repudiate the transaction. It is also in evidence that the plaintiff relying upon the fact that she was provided for did not press her rights against her husband's relations for maintenance. Under these circumstances, I am of opinion that the alienation by Gnanasundarammal is binding on the defendant and that the plaintiff is entitled to possession of the property.

9. It has been argued that the transaction evidenced by the deed of Ex. B amounts in law to a surrender of the estate by Gnanasundarammal in favour of the reversioners and a re-grant by them to Gnanasundarammal and that therefore, Gnanasundarammal had an absolute estate. If this contention were sound, it will be unnecessary to go into the question of estoppel but I do not think that, having regard to the terms of the document and the evidence adduced in the case, the transaction can be viewed as a surrender to the reversioners and a re-grant by them. It is, no doubt, true that the persons who executed the release were the whole body of reversioners and the property released was the only property existing at that date which belonged to Gnanasundarammal's father and was in her hands as his heir with the limitations imposed by Hindu Law and that there is no form required to effect a surrender. But the terms of the document suggest that what took place was merely a release by the reversioners and not a surrender and a re-grant. I am, therefore, unable to accept the contention that Ex. B can be taken to have conferred an absolute estate on Gnana-sundarammal.

10. As regards the tenancy set up in the plaint I do not think there is any proof of any tenancy. It is, no doubt, true that the defendant's father executed a rental agreement in favour of Gnanasundarammal but there is nothing to show that the defendant continued to live in the house or paid any rent. During her lifetime it was open to Gnanasundarammal to let the property to the reversioners as tenants, but it cannot be said that the tenancy continues when the reversioners on her death acquired title to the property. If, therefore, the deed of gift Ex. B is invalid as not binding on the reversioners and if there is no estoppel, it seems to me that the defendant at least as one of the reversioners would be entitled to remain in possession as against the plaintiff. I may also state that there is no evidence adduced at the trial to show that the defendant is not one of the next reversioners though it is clear that he is not the sole reversioner.

11. It follows from my findings that the plaintiff is entitled to a declaration that she has an absolute right to the suit property. The defendant will quit and deliver possession of the property to the plaintiff and pay her the costs of this suit. Time two months for possession.


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