1. The appellant sued for recovery of possession of certain properties on the footing that as reversionary heir to the estate of one Surayya who died sometime between 1880 and 1888 he had become entitled to possession on the death of Surayya's widow on 20th September 1929. The plaint schedules specified several items of properties. As regards some of them the lower Court has passed a decree in the plaintiff's favour. As regards other items the suit has been dismissed. The present appeal is concerned with items 1 to 6 of the plaint, Schedule A and items 1 and 2 of the plaint, Schedule B. Alternatively, there is a claim for items 22 to 24 of the plaint, Schedule A if the Court should hold that the plaintiff is not entitled to claim possession of items 1 to 6.
2. The claim to items 1 and 2 of Schedule B may be briefly disposed of. The lower Court found that the plaintiff had not proved that these items belonged to the last male holder. There is only the general assertion of the plaintiff from the witness box that all the plaint properties belonged to the estate of the last male holder; it is perhaps possible to explain the absence of more detailed information as regards items 1 and 2 of the plain Schedule B on the ground that the defendants interested therein were not contesting the suit. But whatever the reason for such absence may be, we do not find that there is sufficient material on record to justify our dissenting from the conclusion of the lower Court on this point. An attempt was made before us by the learned Counsel for the appellant to connect these items with certain items referred to by the widow as her husband's property in Ex. A-9. This attempt merely rested upon a presumed identity of the boundaries in Exs. A-9, X-f and X-g. But even this identity is not clear in the absence of information as to changes in the names of the owners of the neighbouring properties and as no evidence has been given in the Court below as to these neighbouring owners it does not seem to us right to act upon mere speculation and hold that the attempt at identification has succeeded. The decree of the lower, Court must therefore be confirmed so far as items 1 and 2 of Schedule B are concerned.
3. As regards items 22 to 24 of the plaint Schedule A, the lower Court found that their alienation under Ex. III-b was justified and proper. We shall refer to this matter again when dealing with the title to items 1 to 6; but we may at this stage express our concurrence in the finding of the lower Court as to the validity of Ex. III-b. The claim to these items is however only an alternative claim, as already stated; and as we propose to hold that the plaintiff is entitled to recover possession of items 1 to 6, it is unnecessary to say more about items 22 to 24 except that the appeal as regards these items fails. Items 1 to 6, to which the arguments on both sides were mainly directed, have been held by the lower Court not to have formed part of Surayya's estate at his death. It is somewhat difficult to reconcile this conclusion of the learned subordinate Judge with his observations in other portions of his judgment. We start with the fact that items 1 to 8 were purchased by Surayya under Ex. A-5 on 25th May 1880 from his father-in-law for a stated consideration of Rs. 700. Items & to 6 admittedly belonged to Surayya already. These six items wore transferred by Surayya to one Sriramulu under Ex. IV and on 27th May 1880 for a sum of Rs. 400. To complete the narrative, we may add that these six items came back to the widow under Ex. IV-b on 23rd January 1884. The widow's father was no doubt also a transferee under Ex. IV-b but the learned subordinate Judge has found, and we agree with him, that even from the terms of Ex. IV-b it is clear that the father's name was introduced only as a matter of convenience at the widow's request and no beneficial interest belonged to the father. Surayya' having died between the dates of Exs. IV and IV-b, it becomes important to know the exact legal operation of these two documents before determining whether at the date of Surayya's death these items were in any sense part of his estate and were acquired by the widow as part of his estate or they had ceased to belong to the estate and were independently acquired by the widow.
4. The learned subordinate Judge himself has given good reasons in support of his conclusion that though in form Ex. IV purports to be a sale, it must, in reality, have been intended to be only a mortgage. Not merely does the disparity between the consideration stated in Ex. A-5 for only three items, namely items 1 to 3 and the consideration stated in EX. iv for the transfer of the whole property items (1 to 6) lend support to this conclusion but the way in which the property comes back to the widow confirms this view. We are prepared to assume that Sriramulu took possession in pursuance of Ex. IV; but that the widow did continue to assert some kind of claim to the property is shown by the fact that in 1888 he had to sue for registry of title to these properties in his name. The manner in which this suit, O.S. No. 386 of 1883 terminated, is significant. On 23rd January 1884, Sriramulu executed Ex. IV-b in favour of the widow and her father and withdrew the suit on 28th January 1884. The recital in Ex. IV-b as to this suit, O.S. No. 386 of 1883, is not very full, but the suit register extract, Ex. IV-a, shows that the arrangement between the parties was that on payment of Rs. 500 Sriramulu should give up his right in the lands in question. In Exs. III-b and III-d which were executed by the widow in. favour of third parties for raising money to pay part of the amount payable to Sriramulu under Ex. IV-b it is distinctly recited that these moneys were required to pay off debts which had been borrowed by Surayya from Sriramulu.
5. It is thus clear that the widow was claiming and acting on the footing that Ex. IV though in form a sale deed really represented a mortgage transaction. It is also noteworthy that Ex. IV-b contains a provision that one would scarcely expect to find in the ordinary course in a normal sale deed; in respect of disputes relating to title, the vendor exonerates himself from liability and throws it on the transferee to get any such disputes cleared. This is consistent with the hypothesis that though to keep up consistency with the form of Ex. IV the transfer EX. IV-b was also put in the form of a sale deed, it was really in the nature of a redemption and therefore the apparent vendor was not prepared to give any covenant as to title. If this is the correct view of the effect of Exs. IV and IV-B, the learned subordinate Judge ought to have held that items 1 to 6 continued to be part of the estate of Surayya at his death and all that the widow did was to redeem them. The learned Counsel for the respondent contended that such an interpretation of Exs. IV and IV-b would contravene the provisions of Section 92, Evidence Act. There is no force in this contention. Section 92 applies only as between the parties to a transaction and those claiming under them respectively. The real question here is, in what character the widow acted when she obtained a reconveyance of the properties under Ex. IV-b. Her own assertion and conduct in this connexion is certainly evidence. against the present defendants who claim under her.
6. We may deal with the case even in the alternative footing that Ex. IV represented a sale and Ex. IV-b represented a purchase by the widow. Even in this view, we are of opinion that by reason of the purchase under Ex. IV-b items 1 to 6 must be held to have become part of the estate of Surayya. The sum of Rs. 500 paid as consideration for Ex. IV-b is stated to have been paid as follows : Rs. 150 in cash and Rs. 350 caused to be paid by one K. Venkatasubba Naidu. This sum of Rs. 350 was raised partly by sale under Ex. III-b of certain items admittedly belonging to the husband's estate and partly by the usufructuary mortgage under Ex. III-d of another portion of the husband's estate. It is no doubt well established that where a widow purchases property with savings horn her own income, such property is prima facie her absolute property. But where the purchase is made with the aid of the husband's estate, whether it be by sale of a portion thereof or it be by money raised on the security thereof, the reversioners are entitled to claim that the property thus purchased must be held to form part of the husband's estate. To the extent to which nothing is known as to the source of the purchase money the Court can only act upon inferences suggested by surrounding circumstances. Where the widow blends funds of several kinds, i.e., funds known to have come from the husband's estate and funds whose source is not known, and the blended fund is invested in re-acquiring what till recently was undoubtedly part of the husband's estate, we think it is a fair inference that the acquired property must be taken to be part of the husband's estate. Mr. Somasundaram relied on the fact that the usufructuary mortgage, Ex. III-d was allowed to be worked out by the mortgagee's enjoyment of the usufruct for a period of six years and he contended that in this sense the case is analogous to the investment by a widow of income from her husband's property. We are inclined to think that the proper way of viewing the transaction is that it is money borrowed on the security of the husband's estate; but even if any importance should be attached to the way that this debt has been discharged ultimately, the consideration that we have already adverted to, namely that these varieties of funds were blended together and invested in purchasing what till recently was a portion of the husband's estate justifies the inference that items 1 to 6 were intended to form part of the husband's estate.
7. If matters had stood on Ex. IV-b, there should have been little complication, but shortly afterwards, the widow unfortunately yielded to the temptation to make her interest in her husband's estate absolute by a so-called family arrangement between the widow and the presumptive reversioner. On a frivolous pretext, she entered into an, arrangement by way of settlement and a dispute with her brother-in-law on 2lst September 1885 (Ex. A-9). The pretext for the alleged dispute is that the widow allowed her father to remain in possession and management of a portion of her husband's estate. This certainly would not give rise to any claim on the part of the reversioner and the learned subordinate Judge was perfectly right in holding that this was merely a pretext and a device for bringing about the arrangement Ex. A-9, whereby the estate was divided between the widow and the presumptive reversioner. We do not pursue this matter further because no; arguments were advanced before us on the strength of Ex. A-9. Some time after Ex. A-9 an equally frivolous occasion seems to have been found for an alleged settlement evidenced by Ex. IV-c between the widow and her brother. We do not have on record the papers relating to the litigation, arising out of this dispute, O.S. No. 412 of 1891. It is said to have been compromised in April 1892 under Ex. IV-c. As a result of the compromise the brother was recognized as entitled to a part of items 1 to 3 and the widow retained the rest. The onus lies upon the brother and those claiming under him to support Ex. IV-c, on the ground of a bona fide settlement of disputes and no such attempt has been made. We must therefore hold that neither the widow's brother nor the widow derived any kind of title under this arrangement which can prevail as against the claim of the reversioner after the widow's death.
8. By a series of transactions to which it is now unnecessary to refer items 1 to 3 have passed into the hands of defendant 1, items 4 and 5 into the hands of defendants 2 and 3, and item 6 into the hands of defendants 5 to 8, partly by transfers by the widow and partly by transfers by her brother. In the view already stated, these transfers could not be treated as transfers by a person having an absolute right. Regarded as transfers by a Hindu widow holding a limited interest they have not been shown to be binding upon the reversioner. As regards one set of these transactions, reliance has been placed upon Exs. V, V-a and V-b. Exhibit V-b is a sale in favour of defendant 1. But the validity of the transfer has to be determined with reference to Exs. V and V-a. Exhibit V is a mortgage by the widow dated 14th July 1897 and Ex. V-a is a sale by her to the mortgagee on 25th August 1899 in satisfaction of the debt due under the mortgage deed Ex. V. The consideration for Ex. V is stated to be a sum of Rs. 300 borrowed for repayment of debts due to others and for the purchase of paddy. Beyond these recitals there is no other evidence in the case of necessity or existence of debts. Mr. Somasundaram relied upon the presumptions which a Court will be justified in drawing in respect of ancient transactions; but the way in which the widow has acted in utter disregard of the law and with a view to benefit herself by Ex. A-9 and Ex. IV-c makes it impossible for us to presume that the widow must, in the ordinary course, have acted within the limits of the law in entering into Ex. V. Further, before Ex. A-9 she was in possession of a considerable extent of property and the circumstances so far as we can now judge of them were not such as to suggest a necessity for borrowing for purposes of her maintenance. We are therefore unable to hold that Ex. V was a proper transaction binding on the reversioners merely on the strength of the recitals contained in Ex. V. It follows that the alienations of items 1 to 6 are not binding on the reversioner and that he is entitled to recover possession.
9. The principal reason assigned by the learned subordinate Judge for dismissing the plaintiff's claim to items 1 to 6 is based upon the decisions in Rammayyar v. Mahalakshmi 1922 A.I. 9 Mad. 357 and Mahna Singh v. Thaman Singh A.I.R. 1930 Lah. 1010. Here again, it is difficult to reconcile this conclusion of the learned Judge with the finding that the sale of items 22 to 24 under Ex. III-b was justified. All that the decisions above referred to lay down is that if a widow improperly alienates certain property of the husband for the purpose of raising money to purchase new properties for her own benefit, the remedy of the reversioners is to sue for recovery of the properties improperly alienated under the earlier sale and not to proceed against the alienees of the newly acquired properties. In the present case, the alienation under Ex. III-b was not an improper alienation even according to the learned Judge. There was accordingly no occasion for the reversioner to proceed against the alienees under Ex. III-b. The very basis of the finding in favour of Ex. III-b is that the money raised under it was required for a legitimate purpose of the estate, namely the acquisition of items 1 to 6 under Ex. IV-b. On this footing, there is no scope for the application of the principle laid down in Rammayyar v. Mahalakshmi A.I.R. 1922 Mad. 357 and Mahna Singh v. Thaman Singh A.I.R. 1930 Lah. 1010. We do not however wish to be understood as concurring in the view laid down in these cases. For the reasons already stated, it is not necessary to canvass that question, but we are with all respect obliged to say that these decisions do not seem to give due effect to the well-established principle that a widow's alienation even in excess of her powers is only voidable at the option of the reversioner and that the reversioner is entitled to affirm any of her transactions and claim the benefit thereof for the estate, if it should be to his benefit to affirm her transactions.
10. It only remains to deal with another objection raised by Mr. Somasundaram to the plaintiff's right to maintain this suit. This objection is founded on the terms of Section 28(4), Provincial Insolvency Act. The plaintiff was adjudicated insolvent in 1919, and had not obtained his discharge by 1929 when Surayya's estate devolved on him on the widow's death. Before instituting the present suit he filed his application for discharge. The Insolvency Court granted him a conditional discharge but on appeal the appellate Court, by order dated 15th August 1931, granted an absolute discharge and this suit was instituted in September 1931. On these facts, it has been contended that as the plaintiff was an undischarged insolvent at the time of the devolution of the estate on him in 1929, the title 'forthwith' vested in the official receiver and that the plaintiff was not entitled to maintain the suit. The construction of Clause 4 of Section 28 is not free from difficulty. But in view of the circumstances of this case, we see no sufficient reason to dissent, from the decision of a Division Bench of this Court in Ramanadha Iyer v. Nagendra Iyer A.I.R. 1921 Mad. 223. As has been pointed out in the order of discharge and in the finding of the lower Court on issue 2 in this suit, no creditors came forward to prove their debts or take any steps between 1910 and 1929, nor did the official receiver take any steps either prior to 1929 or between 1929 and 1931. It has been suggested that the order of discharge must have been fraudulently obtained by keeping back from the knowledge of the official receiver and of the Court the right of the plaintiff to the suit estate. We have no materials before us either to support or to contradict this hypothesis. Nothing that we say in this judgment will prejudice the right, if any, of the official receiver or of the creditors of the plaintiff to assert such rights and remedies as they may have in law in respect of the suit properties. But, in the circumstances above stated, we see no justification for I holding that the plaintiff is not entitled to maintain this suit for. recovery of possession of the property from strangers. We see nothing in the policy of the Insolvency Law to suggest that it was intended to benefit strangers. The observations in Kalaehand Banerjee v. Japannath Marwari , do not directly bear upon the decision in Ramanadha Iyer v. Nagendra Iyer A.I.R. 1921 Mad. 223. In Abdul Kahman v. Nibal Chand : AIR1935All675 , the learned Judges no doubt expressed their disapproval of the distinction drawn in the Madras case between property which belonged to the insolvent at the date of adjudication and property which subsequently devolved upon him. But even in that case, the Court did not go the length of suggesting that the insolvent's suit ought to be dismissed. They only regarded the suit by the insolvent as 'defective' and suggested that notice might be given to the official receiver to join in conducting the suit if he thought fit. We therefore agree with the finding of the lower Court on issue 2.
11. An argument was next advanced in support of the claim that defendant 1 had effected some improvements in item 1. All that the evidence shows is that one Venkatasubbiah spent about Rs. 300 in filling up pits formed by the action of water flowing from a neighbouring Stream. We have no details or reliable evidence as to the sum spent in this connection. But apart from that circumstance, defendant 1 himself admits that Venkatasubbiah, who is said to have spent that sum, was managing the estate of the widow. We cannot therefore hold it to be proved that the claim is one that will fall under Section 51, T.P. Act.
12. The decree of the lower Court so far as it dismissed the suit in respect of items 1 and 6 must therefore be set aside and the plaintiff given a decree for possession of these items. Though evidence was recorded on the question of mesne profits, the lower Court has not recorded any finding as regards the mesne profits payable in respect of this item. The case will therefore be sent down to the lower Court to pass a supplemental decree for mesne profits. The finding so far as mesne profits prior to the date of the institution are concerned, will be based on the evidence already on record. As regards mesne profits subsequent to the institution of the suit and prior to delivery of possession, the lower Court will direct the necessary inquiry unless the parties are able to agree upon the amount payable. The appellant will be entitled to recover from defendants 1 to 8 his costs both here and in the Court below proportionate to the value of items 1 to 6 to the subject-matter of the appeal and the suit. The appellant will pay to defendant IS costs of the appeal proportionate to the value of items 22 to 24 to the subject-matter of the appeal. The appellants will pay to respondent 10, Rs. 50 for his costs in this appeal.