Venkatasubba Rao, J.
1. This case had had an unfortunate history and it is to be regretted that it has again to go back to the lower Court. One of the questions to be decided was, whether the alienations were made for justifiable necessity, and that question has not been gone into by the lower appellate Court. Whether the defendants, the appellants here, appeared in that Court or not, it was the Judge's obvious duty (and this is conceded) to have judicially determined that point. As I have said, he did not apply his mind to it and the case has therefore to go back to him to be heard on its merits.
2. As regards the issue whether the plaintiff is the reversioner, the case stands on a slightly different footing. The finding was against the present appellants, but no objections were filed questioning it, within the time limited. The finding was received on 8th February 1928 and the objections should have been filed by the 16th. The appeal was taken upon the 27th and on that day the present appellant's pleader was not present. But I must remark that it has not been stated that his absence was due to any negligence on his part. He however appeared on the next day, and made a representation that he was unable to file objections in time, a copy of the finding not having been furnished to him. The learned Judge does not say, although he had all the records before him, that the copy was not applied for in time, and I must take it that an application had been properly made but the copy was not furnished. I am not satisfied that there has been such negligence on the appellant's part as to disentitle them from having the appeal heard on the merits. The appeal was heard within less than 20 days after the receipt of the finding, and it appears likely that there was no want of diligence on the appellant's part.
3. In these circumstances, two courses are open to me; either to remand the case to the first appellate Court for its being heard or to call for findings on all the issues and to dispose of the second appeal myself. Both sides very wisely agree that the latter is the preferable course, as by following it much time and expense will be saved. The appellants shall have four weeks from to day to file objections to the finding aforesaid. I call upon the lower appellate Court to hear the appeal and return its findings on all the issues in the case within two months from this date. Objections, if any, shall be filed in ten days from the return of the findings. I direct the appellants to pay in any event the costs of the proposed hearing by the lower appellate Court, which I fix at Rs. 35.
4. In compliance with the above order, the Subordinate Judge of Trichinopoly submitted the following:
Finding: In the order of the High Court, dated 6th January 1933 and passed in S.A. No. 1744 of 1928, on the file of the High Court, I have been asked to submit findings on all the points in issue in the suit. The points in issues are : (1) Whether the plaintiff and defendants 7 to 11 are the nearest reversionary heirs of Arunachala Padayachi entitled to his estate on the death of Perumayee ; (2) Whether the alienations relied on by defendants 1, 2, 4, 5, 6 and 12 are binding on the reversionary heirs; (3) Whether the defendants are barred by res judicata by reason of the decree in O.S. No. 223 of 1906, from raising points 1 and 2 ; (4) Whether any and which of the defendants are entitled to any and what compensation for the improvements ; and. (5) Whether the suit is bad for want of a prayer to set aside the sales.
Point 1.... I therefore find that the plaintiff and defendants 7 to 11 are the reversionary heirs of Arunachala after the death of Perumayee.
Point 2.... I therefore find that the alienations relied on by the defendants are not valid and binding on the reversioners.
Point 3.... I therefore find that so far as the plaintiff and defendant 11's father, who were in the line of reversionary heirs are concerned, the finding in O.S. No. 223 of 1906 will operate as res judicata. As regards alienations it would operate as res judicata only in respect of alienations evidenced by Exs. 3, 8, 10 and 12, but not in respect of subsequent alienations.
Point 4.... 1 therefore find that none of the defendants is entitled to the cost of improvements.
Point 5.... If the alienations are invalid it is not necessary that there should be a prayer for setting aside the sales, as it is open to the reversioners to ignore them and file suit.
5. The lower Courts's view on the question of law is clearly wrong. The previous suit was dismissed on the ground that the plaintiffs being remote reversioners had no locus standi, although on the issue as to alienations, the finding was against the defendants, i. e. the alienees. The latter having thus succeeded in the suit, the adverse finding cannot operate as res judicata so as to bind them in a subsequent suit, for they could not have appealed against that finding, the decree having been in their favour : Kumarappa Chettiar v. Adikalam Chetty (1932) Mad. 207 . It is however contended on the authority of Veeraswamy Mudali v. Palaniyappan 1924 Mad. 626 that the defendants not having been awarded costs in the previous suit, the finding would operate as res judicata. That decision, whether right or wrong, is easily distinguishable, as there the adverse finding 'was made explicitly the ground' for directing the defendants to bear their costs. Both the learned Judges emphasize that the award of costs against the defendants was made expressly on the ground that the finding as to the title was against them |see pp. 527 and 528). In the present case the facts are different, the order made in the previous suit being the parties should bear their own costs in the circumstances of the case.
6. The adverse finding was not made the ground for depriving the defendants of their costs. The distinction is important, for the principle of the decision in Veeraswamy Mudali v. Palaniyappan 1924 Mad. 626 is, that the defendants could have attacked, the adverse finding by filing an appeal against the order as to the costs. But in this case that requisite is wanting, the adverse finding and the order regarding the costs not being related to each other as cause and effect. Let us suppose that the defendants had appealed; the propriety of the alienations would not nesessarily be gone into in the appeal so preferred, for the appellate Court might well refuse to deal with the question on the ground that even should the defendants succeed in getting the lower Court's finding reversed still, 'in the circumstances of the case' the order as to the costs should not be disturbed. I therefore hold that the finding in the previous suit does not operate as res judicata in the present action.
7. Then as regards the question of fact there are such errors vitiating the lower Court's finding as to furnish grounds for interference in second appeal. First, the evidence shows beyond doubt that the property consisted of a few unproductive acres and that the widow could not have subsisted on the uncertain and precarious yield. To this evidence the learned Judge makes no reference. For instance D.W. 1 (he pays Rs. 100 by way of kist) says that the widow cultivated only half or 3/4 cawnie, that the yield was 10 kalams per cawnie and that for getting that yield, Rs. 9 to 15 per cawnie would have to be spent. In cross-examination he deposes '20 years ago the price was 3/4 per kalam ground, nut, and Rs. 3 or 4 per kalam for paddy,' Granting that the entire yield consisted of paddy, the annual income would not exceed Rs. 20. D.W. 3, who is worth Rs. 40,000 and pays Rs. 120 for kist, corroborates the evidence of D.W. 1. He says:
Perumayee got only 10 kalams from all her lands, and the income did not suffice. She had no surplus. She had to borrow.
8. It is worthy of mention that the evidence adduced by the alienees remains, uncontradicted, no witnesses as regards the binding nature of the alienations having been examined by the reversioners. Secondly, there is no rule of. Hindu law which requires that a widow should be content with a bare or what is termed starving maintenance; on the contrary, under the decisions she has a right to alienate the corpus, if without doing so she cannot maintain herself properly, by which is meant live in decent comfort : Ramalinga Iyer v. Parvathammal 1926 Mad. 1122 and Kuthalinga Mudaliar v. Shanmuga Mudaliar 1926 Mad. 1926. Thirdly, the well-settled rules as to the evidence required in respect of ancient alienations have not been borne in mind : see Bangachandra Dhur v. Jagat Kishore 1916 P.c. 110; Venkata Reddi v. Rani Saheba of Wadhwan 1920 P.C. 64; Somayya v. Venkayya 1925 Mad. 673; Anukula Sanyasi v. Ramachandra Rao 1626 Mad. 692 and Kumaraswami Mudaliar v. narayanaswami 1932 Mad. 762. Fourthly, the Judge has been too much swayed by, and attaches too great importance to, the adverse finding in the previous suit against which the defendants had no right to file an appeal. Fifthly, in some cases the decisive or important evidence, as I shall show, has not been referred, to or considered. (His Lordship then. examined the binding nature of the various alienations and held that the alienations were binding on the reversioners. This portion is omitted as it is not necessary for purposes of the report).