1. The first point urged for the appellant is that under Exhibit I only a widow's life-interest was conveyed. This point was not raised in the Courts below and considering the way in which it was dealt with by the Subordinate Judge, who heard the appeal in the first instance, it is quite clear that this contention was never thought of. The second issue remitted to the first Court, by the S.J. is
Are the alienations, sale and mortgage of items 2 and 1 of the plaint schedule respectively, made for necessary purposes, or are otherwise binding on plaintiffs?
2. It is quite clear from this that the parties went to trial on the footing that the alienation was an alienation of the property itself and not that of the life-interest of the widow. I do not think, considering the way in which the case was fought out in the Courts below that I should allow this point to be raised in Second Appeal.
3. The second point urged by Mr. Suryanarayana is that Exhibit I does not amount to a surrender. It is in evidence that there is some other property belonging to the widow, as is evidenced by Exhibit III. The widow did not make a surrender of all her property; and in the absence of evidence of the surrender of her whole interest, it cannot be a valid surrender, when it only affects partially the property she got from her husband; in other words she must thoroughly efface herself, in order that her act might amount to a surrender. This point, no doubt, is in favour of the appellant. But the Subordinate Judge has disposed of the appeal, on the finding that the alienation was for purposes binding on the reversioners. As has been contended by Mr. Somasundaram, there is no finding that the consideration for the sale, as resited in Exhibit I, did pass. But what the Subordinate Judge has found is that the plaintiff was the writer of the document Exhibit I and the sale was in favour of his two brothers. From that, he infers the consent of the nearest reversionors. It is admitted that the plaintiff and his two brothers were the only nearest reversioners, at the time Exhibit I was executed. From that the learned Subordinate Judge infers that their consent must raise the presumption that the transaction was for a purpose which would bind the reversioners. I am not satisfied with his reasoning that a person, who takes a sale-deed from a widow, gives such consent as to make the sale valid. In order that his consent may be of any value he should not either directly or indirectly be the vendee. Where the vendees are some of the reversioners, it cannot be said that they give their consent to the sale by taking a sale deed from the widow. But the matter does not stop there. Mr. Somasundaram, for the respondent, has drawn my attention to the statement of the plaintiff, in his evidence, that at the time of Exhibit I, he and his brothers were undivided. Evidently, the property was taken for the benefit of the whole family. If that is so, the plaintiff should not be allowed to impeach the transaction, under which he himself got the benefit. But it is unnecessary for me to discuss the evidence as the S.J. has found on the evidence that the transaction was one which was binding upon the reversioners. This being a question a fact, though I am not quite satisfied with the reasoning of the learned S.J. I do not think I should interfere with it, in S.A.