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Ramaswami Gounder Vs. Ramaswami Gounder and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily;Property
CourtChennai High Court
Decided On
Reported in(1972)1MLJ417
AppellantRamaswami Gounder
RespondentRamaswami Gounder and ors.
Cases ReferredTighe v. Sinnott
Excerpt:
- k.s. venkataraman, j.1. these appeals arise out of a suit (o.s. no. 184 of 1964) filed before the learned subordinate judge of cuddalore for partition of the estate of one koneri goundar, who died on or about 8th july, 1926. the plaintiff claims that on 5th july, 1926, koneri goundar left his last will (registration copy is exhibit a-4). after bequeathing two items to his cousin narayanaswamy (p.w. 2) and the mariamman temple, he bequeathed half of the remaining properties to the plaintiff, his sister's son. he bequeathed the remaining half to three persons: (i) muthuthandava goundar, son of another elder sister of his, poornammal; (ii) natesa goundar, son of another sister of his, yasothammal; and (iii) ramaswamy goundar, son of his wife's sister, balammal. the three were to take.....
Judgment:

K.S. Venkataraman, J.

1. These appeals arise out of a suit (O.S. No. 184 of 1964) filed before the learned Subordinate Judge of Cuddalore for partition of the estate of one Koneri Goundar, who died on or about 8th July, 1926. The plaintiff claims that on 5th July, 1926, Koneri Goundar left his last Will (Registration Copy is Exhibit A-4). After bequeathing two items to his cousin Narayanaswamy (P.W. 2) and the Mariamman Temple, he bequeathed half of the remaining properties to the plaintiff, his sister's son. He bequeathed the remaining half to three persons: (i) Muthuthandava Goundar, son of another elder sister of his, Poornammal; (ii) Natesa Goundar, son of another sister of his, Yasothammal; and (iii) Ramaswamy Goundar, son of his wife's sister, Balammal. The three were to take equally. The Will was to be given effect to after the life-time of the testator and Sowbagyammel, wife of the testator. The plaintiff construes this as a life estate given to Sowbagyammal without powers of alienation. Sowbagyammal died on 4th December, 1962. The suit was laid after her death. The plaintiff claimed a half share given to him directly. Natesa Goundar, was one of the legatees in respect of the remaining he If due after the testator. The plaintiff claims that he and K. Ramaswamy Goundar (first defendant) are the heirs of the said Natesa Goundar, being his Atmabandhus. Natesa Goundar was entitled to 1/3 of the half, that is to say 1 /6 and the plaintiff and the first defendant were therefore entitled to 1/12 and 1/12. Thus the plaintiff claims half as direct legatee and 1/12 as the heir of Natesa Goundar.

2. Muthuthandava Goundar, one of the legatees is dead and his heir is Adikesava Goundar, the second defendant in the suit. He will be entitled to the 1/6 share of his father.

3. The first defendant would be entitled to 1/6 share as a direct legatee and 1/12 share as one of the heirs of Natesa Goundar. Thus, according to the plaintiff he is entitled to 7/12, the first defendant is entitled to 3/12 and the second defendant to 1/6

4. The properties in which the plaintiff claims a share are shown in the 'B' and 'C' Schedules to the plaint, the 'B' Schedule being immovable properties and the 'C' Schedule moveables.

5. Sowbagyammal sold some of the properties in the 'B' Schedule under four sale-deeds : (i) Exhibit B-43 dated 21st October, 1940 to Muthaiya Goundar (third defendant) for Rs. 1,100; (ii) Exhibit B-44 dated 2ist October, ig40 (Registration Copy) to Chinnathu Goundar, represented in the suit by his daughter-in-law, the fifth defendant, and his grandsons, defendants 6 to 12, lor Rs. 735; (iii) Exhibit B-27 dated 16th November, 194O for Rs. 400 in favour of Ranganatha Goundar (fourth defendant); and (iv) Exhibit B-23 dated 2nd February, 1953 for Rs. i,750 in favour of one Manicka Goundar represented by his son Damodara Goundar the 13th detendant in the suit. The plaintiff contends that under the Will, Sowbagyammal had no powers of alienation and that consequently these sales would only hold good for her lifetime and would not be binding on the remainder-men, that is, the plaintiff and the other three legatees or their heirs.

6. The first defendant denies the truth and validity of the Will Exhibit A-4 dated 5th July, 1936. On the other hand, according to the first defendant, the last Will of Koneri Goundar was one dated 28th June, 1926 (Exhibit B-11) in which, after bequeathing the two small items to his cousin (P.W. 2) and the Mariamman Temple, he gave the remaining properties entirely to the first defendant. The Will was to take effect after the life-time of Sowbagyammal. It may be mentioned that Exhibit A-4 itself refers to this earlier Will and says that the testator had revoked it by executing the Will Exhibit A-4 dated 5th July, 1926.

7. The first defendant goes on to contend that, even assuming that the Will of 5th July, 1926, is true and valid the plaintiff is not entitled to the bequest under the Will, because he did not fulfil one of the conditions under the Will, namely, that he should live with Sowbagyammal and protect her. The plaintiff states in this connection that he lived with Sowbagyammal for 12 years, and assisted her, but on account of some misunderstanding he did not continue to live with her. This allegation in the plaint is denied. The first defendant contends that the alienations effected by Sowbagyammal would bind the legatees because Sowbagyammal had to discharge some debts contracted by Koneri Gounder himself and later by Sowbagyammal and the plaintiff himself and also for the maintenance of Sowbagyammal. The first defendant also denies the existence of some of the moveables. He also urges a minor contention that under the Will there was no disposition of a half share in favour of the plaintiff.

8. Defendants 3 and 4 filed a joint written statement stating that the sales to them were necessary, because Sowbagyammal had to discharge some debts contracted by Koneri Goundar and later by Sowbagyammal and the plaintiff and also for the maintenance of Sowbagyammal, that there was not sufficient income from the lands and that these sales would be binding on the plaintiff and the other legatees as well. They also say that, in any event, they are entitled to the value of the improvements effected on the properties purchased by them.

Defendants 5 to 12 filed a similar written statement. So also the 13th defendant.

A reply statement was filed by the plaintiff on 5th February, 1965.

9. Subsequently, after the trial began, the first defendant filed an additional written statement on 8th March, 1966, stating that Sowbagyammal became absolutely entitled to the properties of her husband under Section 14(1) of the Hindu Succession Act (XXX of 1956) and that Sowbagyammal executed a Will on 25th August, 196O (Exhibit B-26) bequeathing some of these properties in favour of the sons of the second defendant and the remaining properties in favour of the first defendant.

10. The plaintiff filed two additional reply statements on 10th March, 1966, and 19th March, 1966 denying the truth and validity of the Will of 25th August, 196O and contending that Section 14(1) of Act XXX of 1960 could not be invoked by Sowbagyammal, because under Exhibit A-4 she was given only a restricted estate, that is. a life-estate. (The reference is to Section 14 (2) of Act XXX of 1956).

11. The learned Subordinate Judge has held that the Will dated 5th July, 1926 (Exhibit A-4) was true and valid, that it superseded the earlier Will, Exhibit B-1 1, dated 28th June, 1926, that under the Will of 5th July, 1926, Sowbagyammal was given only a bare life estate, with a vested remainder to the plaintiff in respect of one half, and to Muthu-thandava Goundar (tether of the second defendant), Natesa Goundar and the first defendant in respect of the remaining half, that consequently Section 14(2) of Act XXX of 1956 applied in respect of her life estate, that, therefore, Section 14 (1) could not be invoked by the first defendant and that consequently the sales effected by Sowbagyammal could not hold good beyond her life-time. He held that the recital in the Will (dated 5th July, 1926) that the plaintiff should reside with Sowbagyammal was only a pious wish and that his living away from her would not disentitle him to the bequest. In respect of the moveables he held that the plaintiff had not adduced any evidence and, therefore, decided that issue against him.

12. In the result he gave a decree in respect of 7/12 share in the 'B' Schedule properties, and other incidental reliefs of accounting. Aggrieved by this Judgment the first defendant has preferred Appeal No. 624 of 1966, and defendants 4, 5 and 9 to 13 have preferred Appeal No. 736 of 1967.

13. The main contention of Mr. Gopalaswami Iyengar, the learned Counsel for the Appellant in Appeal No. 624 of 1966 is that the Will Exhibit A-4 is neither true nor valid. Even assuming that it is true and valid, it did not confer any estate specifically on Sowbagyammal. She, therefore, inherited her husband's properties under law in the ordinary way and got a Hindu widow's estate. That estate became enlarged into that of a full owner under Section 14(1) of the Hindu Succession Act. She having thus become full owner on either view, she was competent to execute the will Exhibit B-26 dated 25th August, 196O, and the first defendant and the sons of the second defendant became entitled to the properties thereunder. Mr. Gopalaswamy Iyengar also urged that even assuming that under Exhibit A-4 Sowbagyammal got only a life estate and not a Hindu widow's estate, the alienations effected by her would be binding on the legatees, to whom the vested remainder was bequeathed. He submits that that is because the alienations were made to discharge the debts binding on the estate of Koneri Goundar as such, or for the maintenance of Sowbagyammal or for effecting repairs and improvements to some of the properties.

14. Mr. T.S. Ramaswamy the learned Counsel appearing for the appellants in A.S. No. 736 of 1967 has adopted the arguments of Mr. Gopalaswami Iyengar.

15. Mr. T.S. Ramaswamy also filed three applications, C.M.P. Nos. 14265 and 14266 of 197O in Appeal No. 624 of 1966, stating that the third defendant, Muthiah Goundar, died on 16th October, 1966 after filing of the appeal (Appeal No. 624 of 1965 - that appeal was filed on 29th August, 1966), that his legal representatives were not brought on record within the prescribed time, that consequently that appeal abated and that it was necessary to set aside the abatement and bring on record his legal representatives. The applications have been filed by four persons claiming to be the son and daughters of the deceased third defendant. In the affidavit filed by the son in support of the applications, it is stated that they were under the bona fide impression that their father had filed an appeal himself and that they discovered late that it was not so. These applications have been opposed by Mr. Vedantachari, the learned Counsel for the plaintiff-respondent (who has, however, not filed any formal counter), the ground of opposition being that even allowing these applications would not be sufficient to give any relief to the third defendant and that the proper remedy of the third defendant was to have filed an independent appeal.

16. It will be seen that these contentions raise a number of points which will have to be dealt with in detail in due course.

17. The first point which arises to be dealt with is the truth and validity of the Will dated 5th July, 1926 (Exhibit A-4). Before we consider the actual evidence placed before the Court, it will be convenient to give a fresh translation of material portions of the Will:

I am executing this Will with full consciousness cancelling my Will dated 28th June, 1926 (Exhibit B-11). I am not hopeful of living for long on account of my illness. I am therefore making this Will to take effert after my life-time. My junior paterna 1 uncle's son Narayanaswami Goundar (P.W. 2 ) son of Muguva Goundar of Kandamangalam should take the two small extents of 45 cents and 83 cents in Section Nos. 16O/7 and 157/4 of Kandamangalam village. Ramaswami Goundar, son of my eldest sister Parvathi-ammal (plaintiff) should utilise the net income of an extent of 34 cents in Section No. 48/4 for performing theNeivedyam etc., in theMariamman Temple of my village, after meeting the expenses for kist. I have purchased in the name of Singaravelu Naicker (P.W. 2), son of Sanjeevi Goundar. an extent of 39 cents in Section No. 126/6 from one Pachai Goundar for Rs. 60. This property, my house and all my moveable and immoveable properties should be taken as follows:

Half by Ramaswami Goundar son of my elder sister (plaintiff).

The remaining half to be taken by

(i) Muthuthandava Goundar, son of my elder sister Poornammal;

(ii) Natesa Goundar, son of my elder sister Yasodai Ammal'

(iii) Ramaswami Goundar son of my wife's sister Balambal.

These four persons should take the property after my life time and the life time of my wife Sowbagyammal after performing the obsequies of both of us. The said Ramaswami Goundar (plaintiff) should remain in the family and according to the wishes of my wife Sowbagyammal, attend to the cultivation and maintain the family. The said Ramaswami Goundar alone should collect the outstandings due to me and discharge the debts due by me. This Will is to take effect after my life-time and that of my wife Sowbagyammal. I have every right to revoke this Will.'

This Will Exhibit A-4 is attested by

(1) V. Natesa Goundar (D.W. 2)

(2) Ratna Sadasiva Naicker (not examined).

(3) Pachaimuthu Pillai (the karnam, scribe and attestor P.W. 5).

Rathnasadasiva Naicker Is said to be dead (seepage 15 of typed papers P.W. 1's evidence.)

18. The registration endorsement shows that it was presented on 7th October, 1960, in the office ol the sub-Registrar, Valavanur, between 3 and P.M. by Koneri Goundar, that he admitted before the Sub-Registrar the execution of the Will, and that he was identified by R. Pachamuthu Pillai, the karnam (P.W. 5) and Maniagar Muthial Reddiar.

19. The terms of the earlier Will, Exhibit B-11, are substantially similar except that in the place of the four persons the name of the first defendant also figures and the testator described him as his Abimana Kumaran (fourth son).

20. P.W. 1, P.W. 2 and P.W. 4 (the plaintiff) deposed that Koneri Goundar executed the Will while he was in a sound state of mind, and that the attestors were present when the testator signed the Will. P.W. 5, the scribe, however, turned hostile to the plaintiff. D.W. 2, Natesa Goundar was also hostile to the plaintiff. It is unnecessary to discuss the evidence of these witnesses in detail because that has been done by the learned Subordinate Judge and further there are some clinching circumstances to show the genuineness of the Will (paragraphs 13 and 14 of the judgment of the learned Subordinate Judge). The first defendant himself has admitted (page 39 of typed papers) in his evidence that he claimed the suit properties only under the Will Exhibit B-26 dated 25th August, 196O, executed by Sowbagyammal and that Will of Sowbagyammal itself says that she got the property after her husband's death as his heir and under his Will dated 5th July, 1926 (Exhibit A-4). She claims that her estate became enlarged under Act XXX of 1956. As a matter of fact, on prior occasions also the Will dated 5th July, 192S, was affirmed and one such instance was in O.S. No. 152 of 1936 on the file of the District Munsif's Court, Villupuram. The certified copy of the judgment therein has been marked as Exhibit B-4. That judgment shows that Sowbagyammal claimed to be in possession of her husband's properties under the will dated 5th July, 1926, that she had leased some of the properties to one Mahadeva Goundar who has been examined as D.W. 3 in the present suit, that Ramaswami Goundar (the present plaintiff) tried to interfere with her possession and that consequently she sought an injunction against him. The judgment was that under the terms of the will Sowbagyammal alone was entitled to be in enjoyment of the properties and that the defendant (plaintiff in the present action) had no right to interfere with her possession. That was therefore a transaction under Section 13 of the Evidence Act, when the Will dated 5th July, 1926 was affirmed. Mahadeva Goundar, D.W. 3, admits (in his evidence page 4g of the typed papers) these facts relating to the decree in O.S. No. 152 of 1936, and states that he filed a copy of the Will in that suit, that an injunction was granted, that thereafter the plaintiff did not go near the property, that the first defendant was aware of those proceedings and that the first defendant did not assert any title in the properties.

21. Again O.S. No. 66 of 1938 on the file of the District Munsif, Villupuram, was another occasion when the Will dated 5th July, 1925, was asserted, this time by Natesa Goundar (one of the legatees under the Will). The suit was for administration by appointment of a receiver for taking an inventory of the assets of Koneri Goundar. The defendants impleaded were Sowbagyammal, Ramaswami Goundar, son of Ghidambara Goundar (the plaintiff in the present suit), Muthuthandava Goundar, son of Periaswami Goundar (another legatee), Ramaswami Goundar, son of Kumara-swami Goundar (first defendant in the present suit), Natesa Goundar son of Veeraswami Goundar (D.W. 6), Mahadeva Goundar, son of Narayana Goundar (D.W. 3) and Narasyanaswami Goundar, son of Raghava Goundar (P.W. 2). However, when the suit came up for final disposal, the Pleader for the plaintiff was absent. The suit was accordingly dismissed with costs of the contesting defendants.

22. Again Exhibits B-2, B-12, and B-13 on the one hand and Exhibit B-1 on the other also show that the plaintiff was assisting Sowbagyammal in the initial stages in the management of her husband's estate and that could only be on the footing that the Will Exhibit A-4 dated 5th July, 1926, was in existence, because, otherwise, he could not have been in the picture at all. Exhibit B-13 is the certified copy of a promissory note dated 19th March, 1928 (Theyear '1924') mentioned in the certified copy is a mistake for the year 1928) executed by Sowbagyammal and the plaintiff in favour of Natesa Goundar for Rs. 1,389 in all, Rs. 339 received on several occasions for family expenses and Rs. 1,050 an oral loan taken from the promisee Natesa Goundar. Exhibit B-2 is an uncertined copy of the plaint in the Suit O.S. No. 332 of 1931 filed on the basis of the said promissory note. Exhibit B-12 dated 30th March, 1931, is the certified copy of the decree obtained in that suit. It shows that the suit was decreed ex parte for a sum of Rs. 1,764 with interest and costs. D.W. 2 also speaks to these facts.

23. Exhibit B-1 is the sale proclamation issued in execution of the decree in E.P. No. 798 of 1939 in O.S. No. 316 of 1934 on the file of the District Munsif's Court, Villupuram. The evidence of D.W. 2 and the recitals in Exhibits B-43, B-44 and B-27 show that the suit originated on a debt contracted by Koneri Goundar himself from Subbaraya Naicker, the plaintiff in the suit O.S. No. 316 of 1934 for the expenses of the wedding of the plaintiff whom Sowbagyammal described as her mother's sister's son in Exhibits B-43 and B-44. Subbaraya Naicken obtained a decree against Sowbagyammal and the plaintiff in O.S. No. 316 of 1934 and took out proceedings in execution by sale of the properties. D.W 6, states that Sowbagyammal wanted him to get an assignment of the decree and avert bringing the properties to sale. Exhibit B-1 is the copy of the sale proclamation. As we shall see later it was to avert that sale Sowbagyammal claimed to execute the sale deeds, Exhibits B-43, B-44, and B-27. For the present it is sufficient to mention that the decree was obtained against the plaintiff also because of the Will dated 5th July, 1926, otherwise he had nothing to do with the affairs of Sowbagyammal or Koneri Goundar.

24. There is nothing unnatural in the Will dated 5th July, 1926. It follows the earlier Will Exhibit P-11 in respect of the bequests in favour of the testator's cousin P.W. 2 and the Mariamman Temple. The difference is that whereas under the previous Will the first defendant should take the remaining entire property, under the later Will the plaintiff was the beneficiary of half the property and the firs defendant and two others were the beneficiaries in respect of the remaining half. The evidence of D.W. 2 and the above documentary evidence shows that monies were borrowed from Subbaraya Naicken for performing the wedding of the plaintiff who was the testator's Abimana Kumararan (fourth son). Koneri Gounder was therefore very much attached to the plaintiff and there was nothing unnatural in his conferring a substantial benefit on the plaintiff under the Will of 5th July, 1936. It is probable that the earlier Will was executed by Koneri Goundar under the pressure of his wife Sowbagyammal and the first defendant and not executed out of his free will. In the face of these circumstances, we have no hesitation in agreeing with the learned Subordinate Judge in upholding the later Will, Exhibit A-4 dated 5th July, 1926. It is clear that P.W. 5 was bought over by the contesting defendants and that D.W. 2 is unwilling to admit the attestation of the Will.

25. Tne next important question to be considered is the construction of the Will. We have already set out the translation of the Will. The operative portion in the Will is this:

Leaving out the property given to P.W. 2 and the Mariamman Temple, this means that after the lifetime of the testator and Sowbagyammal, half of the remaining property should go to the plaintiff absolutely and the other half to Muthuthandava, Natesa and the first defendant absolutely. This means that Sowbagyammal was given a life estate and the vested remainder was given to the plaintiff (half), Muthuthandava (1/6th), Natesa (1/6th) and the first defendant (1/6th). The bequest to the plaintiff, Muthuthandava, Natesa and the first defendant is a vested remainder within the meaning of Section 119 of the Indian Succession Act, 1925. Incidentally we may straightaway dispose of a minor contention that there were no specific terms of bequest in favour of the plaintiff is respect of the half. Reading the Will it is clear that the plaintiff was to get a half because, otherwise there would be intestacy in respect of a half. The word applies both to the half which was given to the plaintiff and the half which was given to Muthuthandava, Natesa and the first defendant.

26. In our opinion, the construction of the Will offers no difficulty and it is unnecessary to cite any decision. However, we may refer to some of the decisions cited before us by Mr. Vendanthachariar Counsel for the plaintiff. In Bharathi Barmanya v. Kali Charan Singh (1911) 38 I.A. 54 :1911 21 M.L.J. 387 the material portion of the Will was this:

My mother Phudan Kumari Barmanya and my wife Bhagobati Barmanya, shall, as long as they shall live hold possession of all my properties, movable and immovable, and enjoy the same They shall not be competent in any way to transfer the immovable property to any one. On the death of my wife, the sons of my sisters, Golap Sundari Barmanya and Annapurna Barmanya, that is to say, their sons who are now in existence, as also those who may be born hereafter, shall, in equal shares, hold the said properties in possession and enjoyment by right of inheritance....

Their Lordships observed that probably the gift to the after-born children of the sisters was confined to children coming into existence between the date of the Will and the testator's death. But they disposed of the case on the assumption that the testator intended that the children born to his sisters after his death should also be included in the Will. They then observed:

Apart from this point the learned Counsel for the appellant argued in the first place that there was no vesting until the death of the survivor of the mother and the widow. Their Lordships, however, think it is clear on the construction of this will that the nephews were intended to take a vested and transmittable interest on the death of the testator, though their possession and enjoyment were postponed. Whether it was the intention of the testator that on the birth of nephews after his death interest vested should be divested so as to let in such after-born nephews is another question.

27. The above decision was followed by I a Bench of the Allahabad High Court 1 Beni Madho v. Bhagwan Prasad I.L.R. (1911) 33 All. 558. The 1 testator gave his property after the death of himself and his wife to his daughter B and his nephew D. D survived the testator but predeceased M, his widow. It was contended that these terms did not confer a vested interest but merely a contingent interest and that D having died before his aunt, his sons were not entitled to succeed to the property. It is observed:

We think, that the Courts below were I right in holding that Duli Chand I took a vested interest in the property I which was transmittable to his heirs.

In Ramakrisknaiah v. Official Receiver, East Godavari : (1948)2MLJ285 a Bench of this Court had to construe a Will where Clauses 5 and 12 ran as follows:

Clause 5: The entire moveable and immoveable properties belonging to me, excluding what I have given herein and what I am going to give in future, the remaining entire property shall pass to my wife P.S.

Clause 12: The house wherein I am residing shall, after the death of my wife, pass to my fourth son, Pyda Satyanarayana Murthi.

It was held that under Clause 12, a life estate was given to the wife in the house and a vested remainder was given to the fourth son.

In Lakshmana Nadar and Ors. v. R. Ramier (1953) 1 M.L.J. 834 : 1963 S.C.J. 420 : 1963 S.C.R. 848 the Will provided as follows:

After my life time, you, the aforesaid Ranganayaki Ammal, my wife, shall till your lifetime, enjoy the aforesaid entire properties, the outstandings due to me, the debts payable by me, and the chit amounts payable by me. After your life time Ramalakshmi Ammal, our daughter and wife of Rama Ayyar Avargal of Melagaram village, and her heirs shall enjoy them with absolute rights and powers of alienation such as gift, exchange, and sale from son to grandson and so on for grandsons. As regards the payment of maintenance to be made to Chinmammal alias Lakshmi Ammal, wife of I my late son Hariharamayyan, my wife Ranganayaki Ammal shall pay the same as she pleases, and obtain a I release deed.

Ranganayaki entered into possession of the property on the death of the testator. In 1928, she settled the maintenance claim of the daughter-in-law Lakshmiammal and that was by executing an agreement Stipulating to pay her a sum of Rs. 240 per annum. The daughter Ramalakshmi died in 1938 during the lifetime of the widow, leaving as her heir her husband. In 1945, the widow of the testator describing herself to be the absolute owner of the properties of her husband sold some items of the properties to the second defendant and executed settlement deeds in respect of other defendants. Ramalakshmi's husband instituted the suit contending that Ramalakshmi had obtained a vested interest. The defendants contended that the widow was entitled under the Will to an absolute estate or at least she was to take an estate analogous to a widow's estate, that the daughter's interest was only in the nature of a contingent remainder and the suit was therefore not maintainable. The learned Subordinate Judge who tried the suit decreed the suit. That was affirmed in appeal by the High Court. That again was affirmed by the Supreme Court. Their Lordships pointed out that the widow got only a life estate and that Ramalakshmi Ammal, the daughter took a vested remainder. We shall have to refer to this decision in detail later.

28. In Ramachandra Skenoy v. Hilda Brita : [1964]2SCR722 the testator Mrs. Mary Magdelena Coelho provided by her Will thus:

All these (properties) my eldest daughter shall after my lifetime enjoy and after her lifetime her male children also shall enjoy permanently and with absolute right....

It was held that the daughter got only a life estate and her male children got the vested remainder.

29. The contention of Mr. Gopalaswamy Iyengar is primarily that under the Will there were no words of disposition at all in favour of the widow, that therefore she got nothing under the Will and she inherited her husband's properties under law in the usual course as if he had died intestate. The further step in the argument is that the Hindu widow's estate became enlarged under Section 14(1) of the Hindu Succession Act of 1956 into a full absolute estate. This contention is based on the fact that no express words of disposition are used conferring a life estate on the widow. But that was clearly implied in the Will. The Will states in two places that the dispositions in favour of the plaintiff, Muthuthandava, Natesa and the first defendant would come into effect after his life time and the life time of his widow. Of course, every Will would come into effect only after the testator's life time and therefore no special significance can be attached to that provision, but significance has to be attached to the provision that the provisions would come into effect after the life time of his widow. It could not be that the testator wanted the estate to hang in the air during the life time of the widow. That is the negative aspect. The positive aspect of it is that he could not have intended to give nothing to his widow which is what the contention of Mr. Gopalaswamy Iyengar really amounts to. It should be noted that the contention of Mr. Gopalaswami Iyengar involves not merely that the widow herself got nothing under the Will but also that there was no immediate gift to the plaintiff and the other three persons, Muthuthandava, Natesa and the first defendant. That would be ignoring the specific bequests made to them. It is clear that the testator intended to give a life estate to the widow by necessary implication and a vested remainder expressly to the plaintiff and the other three persons.

30. An argument, similar to that put forth by Mr. Gopalaswami Iyengar before us was advanced before the Bench which decided Ramakrishniah v. Official Receiver, East Godavari : (1948)2MLJ285 already referred to. The argument put forth by Mr. Raghava Rao for the first defendant (son of the testator) was that Clause 12 of the Will did not expressly give the wife any life interest so that Clause 12 could not operate immediately on the death of the testator and hence under Clause 5, the wife obtained an absolute interest in the property which ultimately devolved upon her sons including the first defendant. The learned Judges repelled this contention thus:

It is conceded that in certain simple cases, such as where a person bequeaths property, to his heir-at-law 'B' on the death of 'A', a Court would hold that by necessary implication there Was a grant to 'A', with the remainder to 'B', because otherwise there would be something in the nature of an intestacy, there being nobody to take the property upon the testator's death.

The learned Judge referred to Theobald on Wills and observed:

Such an example is given in Theobald. Where there is a gift to a residuary devisee after the death of 'A', 'A' should then take a life estate by implication, the reason being that the very wording used indicates that the testator did not intend with regard to that particular gift that the residuary devisee should take the property immediately on the testator's death but only after the life of 'A'.

Then they referred to Halsbury(Hailsham's Edition). Volume 34, page 475 when it is stated:

Thus, life estate has been held to be implicitly conferred on a person When the Will contains a gift after the death of that person, and the Court as from the context of the Will inferred an intention on the part of the testato that that person should enjoy the property in the meantime.

The corresponding passage in Simond Edition is in Volume 39 at page 116 (paragraph 1711).

31. We therefore reject the argument that, under the Will, Sowbagiammal got nothing whatsoever. The next argument of Mr. Gopalaswami Iyengar : that if it is to be held that the Will gave her something, something was Hindu widow's estate. We have already indicated our opinion that what was given to her Was only a life estate with a vested remainder to the plaintiff, Muthuthandava, Natesa and the first defendant. We are clearly of opinion that a Hindu widow's estate was not given to Sowbagiammal under the Will and our reasons are these:

32. Firstly, the bequest to the plaintiff, Muthuthandava, Natesa and the first defendant is a vested interest and is not a contingent remainder, contingent on their surviving the widow. If the intention of the testator was that they should get only if they survived the widow, words to that effect would have been used, but that is not the case. The conferment of a vested interest on the plaintiff and the other three persons is inconsistent with the notion that the Hindu widow's estate was what was given to Sowbagiammal, because a Hindu widow is not a bare life estate holder but a full owner though her powers of alienation are limited and the persons who take after her would only have a mere spes successionis or chance of succession; only those reversionary heirs living at the time of her death would be entitled to take under the Hindu Law. Secondly, a Hindu widow would have powers of alienation binding the reversioners in certain limited circumstances, but a bare life estate holder would not have any such powers, and, in this case no such powers of alienation 'have been conferred on the widow. In particular, there is no provision that the plaintiff and the other three persons ; should take such properties as might ; remain after any alienation by the widow. 1 All the properties of the testator were 1 given to them without any possible r diminution by the widow. These reasons r underlying the distinction between a - bare life estate and a Hindu widow's estate have been forcibly brought out in the decision of the Supreme Court in Lakshmana Nadar and Ors. v. Ramier 1953 S.C.J. 420 : (1953) 1 M.L.J. 834 : (1963) S.C.R. 848 already referred to. It is therefore necessary to quote in full material portions of the judgment:

Considering the Will in the light of these principles, it seems to us that Lakshminarayana Iyer intended by his Will to direct that his entire properties should be enjoyed by his widow during her life time but her interest in these properties should come to an end on her death, that all these properties in their entirety should therefore be enjoyed as absolute owners by his daughter and her heirs with powers of alienation, gift, exchange and sale from generation to generation. He wished to make his daughter a fresh stock of descent so that her issue, male or female, may have the benefit of his property. They were the real persons whom he earmarked with certainty as the ultimate recipients of his bounty. In express terms he conferred on his daughter powers of alienation by Way of gift, exchange, sale, but in sharp contrast to this, on his widow he conferred no such powers. The direction to her was that she should enjoy the entire properties including the outstandings etc., and these shall thereafter pass to her daughters. Though no restraint in express terms was put on her powers of alienation in case of necessity, even that limited power was not given to her in express terms. If the testator had before his mind's eye his daughter and her heirs as the ultimate beneficiaries of his bounty, that intention could only be achieved by giving to the widow a limited estate, because by conferring a full Hindu widow's estate on her daughter will, only leave a mere spes successions under the Hindu Law which may or may not mature and under the Will her interest would only be a contingent one in what was left undisposed of by the widow. It is significant that the testator did not say in the Will that the daughter will enjoy only the properties left undisposed of by the widow. The extent of the grant, so far as the properties mentioned in the schedule are concerned, to the daughter and the widow is the same. Just as the widow was directed to enjoy the entire properties mentioned in the Schedule during her lifetime in like manner the daughter and her heirs were also directed to enjoy the same properties with absolute rights from generation to generation. They could not enjoy the same properties in the manner directed if the widow had a full Hindu widow's estate and had the power for any purpose to dispose of them and did so. If that was the intention, the testator would clearly have said that the daughter would only take the properties remaining after the death of the widow.

The widow cannot be held to have been given a full Hindu widow's estate under the Will unless it can be said that under its terms she was given the power of alienation for necessary purposes, whether in express terms or by necessary implication. As above pointed out, admittedly power of alienation in express terms was not conferred on her. It was argued that such a power was implicit within the acts she was authorised to do, that is to say, when she was directed to pay the debts and settle the maintenance of Ramalakshmi it was implicit within these directions that for these purposes, if necessity arose, she could alienate the properties. This suggestion in the surrounding circumstances attending the execution of this Will cannot be sustained.

* * * *For the purpose of her maintenance, for payment of debts etc. and for settling the claim of the daughter-in-law she does not appear to have felt any necessity to make any alienation of any part of the estate mentioned in the schedule and the testator in all likelihood knew that she could fulfil these obligations without having recourse to alienations and hence he did not give her any power to do so. In this situation the inference that the testator must have of necessity intended to confer on the widow power of alienation for those limited purposes cannot be raised. In our opinion, even if that suggestion is accepted that for the limited purposes mentioned in the Will the widow could alienate, this power would fall far short of the powers that a Hindu widow enjoys under Hindu Law. Under that law she has the power to alienate the estate for the benefit of the soul of the husband, for pilgrimage and for the benefit of the estate and for other authorised purposes. It cannot be said that a Hindu widow can only alienate her husband's estate for payment of debts, to meet maintenance charges and for her own maintenance. She represents the estate in all respects and enjoys very wide power except that she cannot alienate except for necessity and necessities have to be judged on a variety of considerations. We therefore hold that the estate conferred on Ranganayaki Ammal was more like the limited estate in the English sense of the terms than like a full Hindu widow's estate in spite of the directions abovementioned. She had complete control over the income of the property during her lifetime but she had no power to deal with the corpus of the estate and it had to be kept intact for the enjoyment of the daughter. Though the daughter was not entitled to immediate possession of the property it Was indicated with certainty that she should get the entire estate at the proper time and she thus got an interest in it on the testator's death. She was given a present right of future enjoyment in the property. According to Jarman (Jaiman on Wills), the law leans in favour of vesting of estates and the property disposed of belongs to the object of the gift when the Will takes effect and we think that the daughter got under this Will a vested interest in the testator's properties on his death.

33. It is therefore clear that under the Will Sowbagiammal was given only a bare life estate With a vested remainder to the plaintiff, Muthuthandava, Natesa and the first defendant. In such a case, Section 14(2) of the Hindu Succession Act will apply and Sowbagiammal's estate will not be enlarged under Section 14(1) of the Act. It is here necessary to quote the whole of Section 14 of the Hindu Succession Act.

Any property possessed by a female Hindu, whether acquired before or after the commencement of this Act, shall be held by her as full owner thereof and not as a limited owner.

Explanation. - In this sub-section, 'property, includes both movable and immovable property acquired by a female Hindu by inheritance or devise, or at a partition, or in lieu of maintenance or arrears of maintenance, or by gift from any person whether a relative or not, before, at or after her marriage, or by her own skill or exertion, or by purchase or by prescription, or in any other m inner whatsoever, and also any such property held by her as stridhana immediately before the commencement of this Act.

(2) Nothing contained in Sub-section (1) shall apply to any property acquired by way of gift or under a Will or any other instrument or under a decree or order of a civil Court or under an award where the terms of the gift,. will or other instrument or the decree, order or award prescribe a restricted estate in such property .

Mr. Gopalaswami Iyengar contends that in order that Section 14(2) of the Act may apply, the terms of the Will themselves should specifically say that only a restricted estate, that is a life estate, was given to the widow. We do not agree. The word ' prescribe' merely means that there must be something in writing and in order that Section 14(2) should apply it is enough that on a construction of the terms of the Will, the Court finds that what was given to the widow was only a restricted estate, that is a life estate with a vested remainder to others. The intention displayed by the Legislature is that where a vested remainder is given to persons other than the widow, that should not be taken away.

34. It follows that the sales effected by the widow should be judged not on the criteria applicable to a sale by a Hindu widow holding an estate known as the Hindu widow's estate, but on the footing that she was given only a life estate with a vested remainder to the plaintiff and the three others.

35. We would first ascertain the facts relating to these sales, namely, how far they are supported by consideration and for what purpose the particular sale was effected. Here we must notice one circumstance, namely, that though there are four different sales to be considered, viz., (1) Exhibit B-43 in favour of the third defendant; (2) Exhibit B-44 in favour of Chinnathu Goundar, father of defendants 5 to 12; (3) Exhibit B-23 in favour of Manicka Goundar, father of the 13th defendant and the learned Subordinate Judge has held in respect of all of them that they are not binding on the plaintiff and the other remaindermen after the lifetime of the widow, appeals have been preferred only in respect of the last mentioned three alienations and no appeal has been preferred in respect of the sale under Exhibit B-43 in favour of the third defendant. It was obviously necessary for the third defendant or his legal representatives to file an independent appeal, but Mr. T. Section Ramiswamy has filed the petitions, G. M. P. Nos. 14264 to 14266 of 1970 on behalf of the legal representatives of the third defendant claiming that even without filing an independent appeal, the Court could give relief to them under Order 41, Rule 33, Civil Procedure Code, if otherwise the Court was enabled to give relief to them. No doubt Order 41, Rule 33, Civil Procedure Code, is in wide terms, but it has been held authoritatively by a Bench of this Court in Krishna Reddi v. Rami Reddi1, that Order 41, Rule 33 should not be invoked in such a case. That was a case arising out of a suit brought by the plaintiff claiming that he and the defendants 1 and 2 were reversioners of one Rami Reddi and were entitled to recover possession of the properties. It was alleged that the alienations effected by the widow and the daughters were not for necessity and were not binding on the reversioners. One of the defences was that Rami Reddi had no daughter of the name Mahalakshmamma, that consequently the plaintiff and the first defendant who claimed to be the sons of Mahalakshmamma were not the reversioners. Another defence was that the properties did not belong to Rami Reddi. The learned District Munsif who tried the suit decreed the suit. Only some of the alienees preferred an appeal to the Subordinate Judge. He admitted some additional evidence and on the basis of that held that Mahalakshmamma was not proved to be the daughter of Rami Reddi and that therefore the plaintiff was not the reversioner of Rami Reddi. He also held that the suit properties did not belong to Rami Reddi. On these findings, he dismissed the suit not only against the defendants who filed the appeal but also against the other defendants who had not. He did this in exercise of his powers under Order 41, Rule 33, Civil Procedure Code. His decision was upheld in second appeal. In the further Letters Patent Appeal, Rajamannar, C.J. and Venkatarama Ayyar, J. held that there was no reason to interfere in respect of the defendants who had appealed, but set aside the decision in respect of the defendants who had not appealed. It was held that Order 41, Rule 33 should not be invoked in such a case. They observed:

Normally a party who is aggrieved by a decree should if he seeks to escape from its operation, appeal against it within the time allowed after complying with the requirements of law. Where he fails to do so, no relief should ordinarily be given to him under Order 41, Rule 33.

* * * *

But there are well recognised exceptions to this rule. One is where as a result of interference in favour of the appellant it becomes necessary to readjust the rights of other parties.

* * * *

A second class of cases based on the same principle is where the question is one of settling mutual rights and obligations between the same parties.

* * * *

A third class of cases in which this rule has been applied is when the relief prayed for is single and indivisible but is claimed against a number of defendants. In such cases, if the suit is decreed and there is an appeal only by some of the defendants and if the relief is granted only to the appellants there is the possibility that there might come into operation at the same time and with reference to the same subject-matter two decrees which are inconsistent and contradictory.

* * * *

This, however, is not intended to be an exhaustive enumeration of the classes of cases in which Courts could interfere under Order 41, Rule 33.

* * * *

But however extensive this power may be one principle can be taken to be well established; it is that when a party having right to appeal fails to do so relief should ordinarily be refused to him under Order 41, Rule 33.

* * * * . the Court will exercise a sound discretion in refusing to grant relief under that rule to one who has submitted to the decree.

Then they went on to point out that in a suit by a reversioner to recover several items of properties alienated under different sales, some of them might be valid and others not, that there was no community of interest between the defendants, that indeed the plaintiff could have filed a separate suit in respect of each item and impleaded as defendant therein only the alienee interested in that item ;and that merely because, for purpose of convenience, the plaintiff combined several suits into one, it would not follow that the reversal by the appellate Court of the decree granted to the reversioner should automatically result in relief being granted to the other alienees who had not appealed.

They observe:

Considering the question on principle, when a decree is in substance a combination of several decrees against several defendants, there is no reason why an appeal presented by one of the defendants in respect of his interest should enure for the benefit of the other defendants with reference to their interest.

36. That is precisely the position in the present case. It is true that relief could be granted under Order 41, Rule 4, even though the particular party has not appealed. That rule runs thus:

Where there are more plaintiffs or more defendants than one in a suit, and the decree appealed from proceeds on any ground common to all the plaintiffs, or to all the defendants, any one of the plaintiffs or of the defendants may appeal from the whole decree and thereupon the appellate Court may reverse or vary the decree in favour of all the plaintiffs or defendants, as the case may be.

But this rule, has not been satisfied by the third defendant or his legal representatives either in Appeal No. 624 of 1966 preferred by the first defendant or in the other appeal A.S. No. 736 of 1967 preferred by defendants 4, 5 and 9 to 13. Taking up Appeal No. 624 of 1966, the only question common to the first defendant and the third defendant would be the contention of the first defendant that the widow Sowbagiammal got a Hindu widow's estate under the Will Exhibit A-4 and that it became enlarged into full ownership under Section 14(1) of Act XXX of 1956, but that could not compel the Court to uphold the sale Exhibit B-43, because the third defendant and his legal representatives would still have to justify the sale as being within the powers of a Hindu widow. This last question is not one which can validly be raised by the first defendant, though that is one of the contentions in the grounds of appeal by the first defendant. This question whether the particular sale, Exhibit B-43 can tie justified on the footing that Sowbagiammal had a Hindu widow's estate is not a question common to the first defendant and the third defendant and therefore even if relief were to be given to the first defendant in the appeal A.S. No. 624 of 1966, that would not help the third defendant.

37. Similarly, taking up the other appeal A.S. No. 736 of 1967, only some of the questions would be common between these appellants and the third defendant. The common question would be the contention that Sowbagiammal got a Hindu widow's estate either by inheritance or on the terms of the Will, but the question as to whether the particular sale was justified by necessity or supported by consideration would not be a common question and would have to be answered with, reference to each sale separately. Similarly another common question between the appellants in Appeal No. 736 of 1967 and the third defendant would be the contention that even if Sowbagiammal acquired only a bare life estate under the terms of the Will, the law might permit relief being granted to the alienees under certain circumtances, but there again, whether in the particular sale, those circumstances existed would be a question relating to that particular sale and would not be a common question relating to all the sales. Thus it is clear that neither under Order 41, Rule 33 nor under Order 41, Rule 4 could any relief be given to the third defendant or his legal representative. Since we are making these clear, there is no harm in allowing C.M.P. Nos. 14264 to 14266 of 1970, because allowing these applications is not going to result in any relief to the legal representatives of the third defendant.

38. Learned Counsel, Sri T.S. Ramaswamy cited the decision of the Supreme Court in Giani Ram v. Ramji Lal : [1969]3SCR944 where Order 41, Rule 33 is invoked, but that case is distinguishable. He also cited the decision in Parvathi v. Manna Lal : AIR1956Pat414 . It may be noted that in that case, only a principle was laid down that Order 41, Rule 33 and Order 41, Rule 4 could be invoked even in favour of a defendant who has not been impleaded in the appeal, but whether the discretion should be exercised was left for decision by the first Appeal Bench. The case is therefore not helpful.

39. Sri Vedantachariar for the plaintiff-respondent had cited Nirmala Bala v. Balai Chand : [1965]3SCR550 as another instance where the majority of their Lordships of the Supreme Court held that Order 41, Rule 33, Civil Procedure Code, should not be invoked.

40. Since we have held that the third defendant and his legal representatives should file an independent appeal, we do not think it right to discuss the evidence relating to the sale Exhibit B-43, except in so far as it would be incidentally necessary for a decision in respect of the other sales, Exhibits B-44, B-27 an B-23. We shall first consider Exhibit B-44 (it is a registration copy). The sale was executed on 21st October, 1940, the same day as Exhibit 43. It was in respect of item 20 of the plaint, B schedule, namely an extent of 2 acres 80 cents in Survey No. 156/1. It was executed in favour of Chinnathu Goundar who is now dead and is represented by his heirs defendants 5 to 12. The price is Rs. 735. The recitals of consideration of the executant Sowbagiammal are these:

My husband has borrowed on a promissory note from one Subbaraya Naicken of France Daskathittti for the expenditure of the wedding of my. mother's younger sister's son, C. Ramaswami Goundar (Plaintiff). On the basis of that, the said Subbaraya Goundar obtained a decree against me and the said C. Ramaswami Goundar in O.S. No. 216 of 1934 on the file of the District Munsif's Court, Villupuram. Natesan Goundar, son of Veeraswami Goundar, obtained an assignment of the said decree. In execution he had attached and is bringing the entire property to sale. The auction sale is proposed to take place on 7th November, 1940 for a sum of Rs. 1895.0.6. You, the vendee have agreed to avert the auction sale by paying a sum of Rs. 735 and I have thereby received the said sum.

There is the oral evidence of D.Ws. 2, 6 and 7 also in support of these recitals of consideration and we have incidentally to consider the recitals in Exhibits B-43, and Exhibit B-27 as well. D.W. 2 is the person who obtained the assignment of the decree in O.S. No. 216 of 1934. He states that Subbaraya Naicker obtiained a decree and took execution proceedings, that he questioned Sowbagiammal about it and she wanted him to get an assignment of the decree and that he accordingly got an assignment of the decree and brought the properties to sale. Exhibit B-1 is the sale proclamation relating to the proposed auction sale of 18th December, 1939. He. states that he sent a letter to his lawyer through Subbaiyan, namely Exhibit B-20, requesting him to consent for adjournment of the sale. Sowbagiammal arranged for the sale of the properties to the third defendant and the predecessor-in-title of defendants 5 to 12 and to the fourth defendant and the vendees under the three sale deeds paid the amounts to him. He hid affirmed it again in the cross-examination by Sri Raja Chidambaram, Counsel for the defendants 3 toi3, that the alienees showed the sale deeds in their favour after registration and paid him the amounts as directed in them.

41. At this stage it is necessary to refer to the recitals in Exhibits B-43 and B-27 as well. Exhibit B-43 is the sale deed dated 21st October, 1940 by Sowbagiammal in favour of Muthia Goundar, the third defendant for Rs. 1,100 made up of Rs. 1,000 and 100. The vendee is alleged to have undertaken to pay the sum of Rs. 1,000 in discharge of the decree in O.S. No. 216 of 1934 and avert the Court auction sale. The recitals on this part of the consideration are similar to those in Exhibit B-44. The balance of consideration of Rs. 100 for Exhibit B-43 was for discharging one earlier usufructuary mortgage deed dated 21st April, 1938 (Exhibit B-42) in respect of item 18 of the B schedule. Exhibit B-27 is the sale deed dated 16th November, 1940 executed by Sowbagiaammal in favour of Ranganatha Goundar, the fourth defendant of an extent of 1 acre 11 cents of dry lands being items 15 and 30 of the plaint B schedule. The consideration is Rs. 400. Tne recitals of consideration mention three sums: (1) Rs. 100. (2) Rs. 140 and (3) Rs. 160. The sum of Rs. 100 was an undertaking by the vendee to discharge an earlier usufructuary mortgage on the property executed in favour of Srinivasa Goundar (D.W. 9) by Sowbagiaramil and the earlier usufructuary mortgage is marked as Exhibit B-25 dated nth October, 1940. The recital for the second item of consideration is the undertaking by tne vendee to discharge a debt due on a promissory note dated 27th November, 1937 by Sowbagiammal in favour of Mahadeva Goundar which was made over to V. Natesa Goundar for proper consideration. Mahadeva Goundar has been examined as D.W. 3, V. Natesa Goundar is none other than D.W. 2. Txae promissory note has been marked as Exhibit B-18. The recitals in respect of the third item of consideration, namely Rs. 100 is the undertaking by the vendee to discharge the decree debt in O.S. No. 216 of 1934. The recitals relating to this item of consideration are similar to those in Exhibit B-43 and B-44 but the date of auction sale is mentioned as 5th December, 1940 and the balance due out of the decretal amount of Rs. 1895.0.6 is stated to be Rs. 160 taking into account earlier payments. The reference is evidently to the payment of Rs. 1,000 by the third defendant, the vendee under Exhibit B-43 and the payment of Rs. 735 by Srinivasa Goundar, the vendee under Exhibit B-44. The three sums of Rs. 1,000 Rs. 735 and Rs. 160 add up to Rs. 1,895.

42. We are immediately concerned with Exhibit B-44, 'be evidence of D.W. 2 whose evidence has been considered already, and the evidence on behalf of those vendees who paid the consideration in discharge of the decree debt inO. Section No. 216 of 1934. Besides, we have also the evidence of D.W. 10, the karnam of Kandamangalam village. He says that he was the scribe of Exhibit B-44, that he was an attestor of Exhibit B-43 and that both of them were executed to avert the Court auction sale. The fourth defendant examined as D.W. 6 also says that on the date of the registration of Exhibit B-27 namely i6th November, 1970, the sale deed in favour of the third defendant, Exhibit B-43 and Chinnamuthu Goundar, Exhibit B-44, were also executed. Those sales also were executed to avert the Court auction sale in execution of the decree in O.S. No. 216 of 1934. For reasons which would appear later, when we discuss Exhibit B-27, we do not propose to accept the evidence of D.W. 6, but we do not see sufficient reasons to reject the evidence of D.Ws. 2 and 10 so far as Exhibit B-44 is concerned. Though there is evidence of relationship and interestedness about the third and fourth defendants, the vendees under Exhibits B-43 an(l B-27, no such evidence is fortneoming in respect of Chinnamuthu G Jundar, the vendee under Exhibit B-44. He seems to be a stranger and unless he had paid the money for consideration it is unlikely that possession of the property would have been handed over to him. We therefore confirm the finding of the teamed Subordinate Judge on the discussion in paragraph 17 of his judgment that this sale in favour of Ghinnamuthu Goundar is a genuine transaction fully supported by consideration and that this sale was effected to avert the Court auction sale of the property on the decree in O.S. No. 216 of 1934, on the file of the District Munsif's Court, Villupuram, for debts contracted by the testator Koneri Goundar for the marriage expenses of the plaintiff. We shall take up the question of the binding nature of the sale afcer discussing the facts relating to Exhibits B-27 and B-23.

43. We shall now take up Exhibit B-27,dated 16th November, 1940 executed by iSowbagiammal in favour of Ranganatha Goundar, the fourth defendant for a sum of Rs. 400. We have already extracted the recitals of consideration, namely:

(1) Rs. 100 for discharging the usufructuary mortgage, Exhibit B-25 dated nth October, 1940 in favour of D.W. 9

(2) Rs. 140, to discharge the debt due on the promissory note, Exhibit B-18, dated 27th November, 1937 executed by Sowbagiammd in favour of Mahadeva Goundar (D.W. 3) and alleged to have been obtained for proper consideration for family expenses; and

(3) Rs. 160, the balance of the decretal debt in O.S. No. 216 of 1934.

The evidence of D.Ws. 2, 3, 6 and 9, is relevant in this connection. D.W. 6, is the fourth defendant himself. In chief-examination, this witness has given evidence concerning the recitals in Exhibit B-27, but if the evidence is carefully analysed, the impression left in our minds is that Exaibits B-18, B-25 an

44. The fourth defendant himself would say as D.W. 6, that he paid the sum of Rs. 140 (due under Exhibit B-18), two or three months after the sale deed Exhibit B-27 to D.W. 2, and that there is an endorsement of discharge to that effect and that he got back the discharged promissory note. But he had to admit i mmediately that it was D.W. 2, who produced the discharged promissory note in Court and that D.W. 2, himself was keeping it. He had also to admit on looking into Exhibit B-18, that there is no endorsement of discharge. It is clear that the promissory note was not a genuine document and was fabricated for the purpose of making it appear that Exhibit B-27, is supported by consideration.

45. The evidence relating to the usufructuary mortgage, Exhibit B-25, is no better. D.W. 6, would say that he paid the sum of Rs. 100 to the mortgagee Srinivasa Goundar (D.W. 9), on 30th November, 1940 and that an endorsement of discharge was made on that date. He does not remember as to who wrote the endorsement and who attested it. The endorsement is actually, dated 27th February, 1952. The evidence of D.W. 9, is that his younger brothers Krishnaswami Goundar, Singara Goundar and Dhanapal Goundar, advanced the consideration under Exhibit B-25, that the fourth defendant paid Rs. 100 to him saying that he had purchased the land, that for 4 or 5 months after his sale D.W. 9's brother was having the document and that therefore he did not hand over the document to the fourth defendant. There was a partition in his family in 1942 and one year later he got the document but still the endorsement on the document bears the signature of his younger brother Dhanapal Goundar and it was written by another brother Singara Goundar. In cross-examination he admits that no endorsement of discharge was made on the date of payment by fourth defendant, that he does not know when the endorsement was made and he did not know about the endorsement of discharge at all till the date of his deposition and that his brother Dhanapal told him that he handed over the document to the fourth defendant. He is ignorant of the date when he received the amount due under Exhibit B-25. He does not know if there was any record for payment by the fourth defendant for the discharge of Exhibit B-25. This is not the sort of evidence which We would expect if really the usufructuary mortgage is true and it was discharged by the fourth defendant. It is clear that the usufructuary mortgage itself is not true and that there was no discharge of it by the fourth defendant. D.W. 9, has married the first I idefendaat's elder sister (P. 56). He is I also the elder brother's son of D.W. 2, (page 43 of typed papers--evidence of ' D.W. 2). We have also seen that D.W. 3, is the sister's husband of D.W. 2 and that D.W. 2, and the first defendant are related (P.W. 43). Thus the first defendant D.W. 2, D.W. 3, the fourth defendant and D.W. 9, are all closely related and the documents Exhibits B-18, B-25 and the sale deed Exhibit B-27, have been got up by them just to deprive the plaintiff 6f his share of the property.

46. In respect of the last item of consideration Rs. 6o paid for the decree debt in O.S. No. 216 of 1964, no receipt was obtained from D.W. 2 (page 53 of typed papers - evidence of D.W. 6) - Another circumstance is that the stamp papers for Exhibit B-27, sale deed in favour of the fourth defendant have been purchased in the name of Sowbagiammal herself, when normally they should have been purchased in the name of the buyer., This confirms the conclusion to be drawn from the other evidence that the fourth defendant was not a genuine buyer. He did not send reply to the suit notice, Exhibit A-1, dated 12th December, i960 issued by the plaintiff. It was D.W. 2, who gave instructions to his lawyer for drafting the written statement. We therefore hold differing from the learned Subordinate Judge that Exhibit B-27, was not supported by consideration and was only got up to defraud the plaintiff of his half share and it would not be binding on the plaintiff or the other remaindermen.

47. The last sale deed to be considered is Exhibit B-23, dated 2nd March, 1953, executed in favour of Manicka Goundar, whose son is the 13th defendant. It is in respect of 1 acre 68 cents of plaint B Schedule, items 12 and 13 for a consideration of Rs. 1,750. The recital in the deed is that Sowbagimmal had already received Rs. 650 for her maintenance and that the vendee had undertaken to pay Rs. 1,200 before the Sub-Registrar at the time of the registration of the document (the payment of Rs. 1,200 by Manicka Goundar to Sowbagiammal at the time of the registration has been endorsed by the Sub-Registrar). The document does not recite the purpose for which she was receiving the said sum of Rs. 1,200, but the evidence in that, behalf is given by the first defendant as D.W1, and to some extent by the 13th defendant as D.W. 8, and also to some extent by D.W. 2. The karnam D.W. 10, merely states that he was the scribe of Exhibit B-23. D.W. 8, states in chief-examination that he knows the execution of Exhibit B-23 and that Sowbagiammal sold the property to him to meet the expenses for digging the well in her land known as Pannaikattu Kollai and that she actually deepened the well. In cross-examination, however, he had to admit that he does not know what was written in the sale deed and that it was his father who told him that he had purchased the property and that Sowbagiammal received the amount for digging a Well. He states that she dug a well a year after the purchase, but he does not know with what amount, she dug the well. It seems to us that D.W. 8, does not really know anything. D.W. 8, was aged 30 at the time of his deposition and at the time of the sale deed he would have been only about 17 years and we do not think that he really knows anything. His evidence should be rejected. D.W. 1, states in chief-examination (page 33 of the typed papers) that he identified Sowbagiammal before the Sub-Registrar at the time of registration of Exhibit B-23, that the sale was brought about for effecting repairs to the house and reconstruction of the well in survey number 43/11 and that it had been widened and deepened now. In cross-examination however (at page 36 of the typed papers) he admits that the document does not recite the purpose, of digging a new well and he added that the said well was not in existence in 1956 (when he deposed in Court). It is clear therefore that there was no well. D.W. 2, states in cross-examination (page 43 of the typed papers) that there is a well in the field known as Pannaikattu Kollai that a Well had been newlydug, and that it is a big well with two inner walls. This evidence cannot be accepted in view of the admission by D.W. 1. We have also seen earlier that D.W. 2, is an unreliable witness evidently interested in the first defendant. He would not even admit obvious facts. We therefore confirm the finding of the learned Subordinate Judge in paragraphs 19 and 20 that consideration passed for Exhibit B-38j sale deed, but it has not been proved that the sum of Rs. 1,300 was utilised for any improvement.

48. Even with regard to the sum of Rs. 550 received at the time of the execution for maintenance expenses we are not at all satisfied that it was necessary for Sowbagiammal. We have already discussed this matter to some extent with reference to Exhibit B-25. Koneri Goundan owned an extent of 30 acres and even the evidence of D.W. 2, shows that there must have been an income of Rs. 3,000per year and D.W. 2, had to say that Sowbagiammal would have required Rs. 20 per mensem for her maintenance (page 44 and 45 of the typed papers). Further we have seen that Exhibits B-r8, B-25 and even Exhibit B-27, were got up with a view to defraud the plaintiff. It is in that background that we must consider the recital in Exhibit B-23, that a sum of Rs. 550 was received for maintenance expenses. We are not at all satisfied that that amount was necessary for maintenance.

49. The question will be whether these three sales Exhibits B-43, B-27 and B-23, by Sowbagiammal are binding on the remaindermen. We have held that Sowbagiammal was only a bare life-estate holder with a vested remainder to the plaintiff, Muthuthandava, Natesa and the first defendant. Mr. Gopalaswami Iyengar referred to the following statement in Mayne's Hindu Law, nth edition at page 894:

A life estate can be given with a power of alienation by will or gift inter vivos subject to the proviso that to the extent to which the power is not exercised, there is to be a gift over.

The authority cited in Hari Kutnari Dasi v. Mohim Chandra Sarkar (1908) 12 CW.N. 412 : 7 Cal. L.J. 540. In that case, the testator left his widow and daughter a Will which runs as follows:.I have given my daughter in marriage You are my legally married wife, and entitled to the property to be left by me. Should I, on a sudden, die at Banaras, you shall under this Will, become possessor of my properties etc... You will have the right and power to alienate by gift or sale all the, aforesaid movable and immovable properties... My daughter, Srimathi Hara Kumari Dasi, shall become entitled to, and possessor of whatever properties will remain after your death, and she shall enjoy the same keeping up and maintaining the aforesaid shebas.

It was held that the widow took a life estate with powers of alienation, and the daughter similarly took the properties, to the extent to which such powers were not exercised by the widow. It was observed:

There is not, in so many words, any clear, and absolute gift to the widow, and we can give effect to all the words in the Will by holding that the widow took for life, with a power of alienation, but to the extent to which such power was not exercised, the daughter similarly took the property.

The decision thus turned on the particular recitals in the Will. In Exhibit A-4, however, there are no such recitals empowering the widow to alienate the properties.

50. Similarly the decision of Kaul, J., in Rani Madho v. Harihar Prasad A.I.R. 1946 Oudh 30 which was confirmed in Rani Madho v. Harihar Prasad also turned on the particular terms of the Will conferring such powers of alienation on the life estate holder. Mr. Gopalaswami Iyengar, further urged that though there were no specific words in Exhibit A-4. empowering the widow, still we could legitimately hold that the testator, intended to clothe her with a power to sell property to the extent necessary to maintain herself. Mr. Gopalaswami Iyengar, argues that the testator indicated that the plaintiff should maintain and protect the widow by living with her and therefore he did not intend his wife to starve. We have held on the facts that we are not convinced that there was any necessity to sell any portion of the land for the maintenance of the widow. Apart from this we are not satisfied that the Will can be construed as implying such a power of sale for the maintenance of the widow.

51. Apart from the argument that on a construction of this Will we should hold that Sowbagiammal, had power to sell the property in order to maintain herself, Mr. Gopalaswami Iyengar and Mr. T.S. Ramaswamy did not urge that in law a bare life estate holder would have power to alienate any portion of the property so as to bind the remaindermen. Indeed it does not appear to be tenable that a bare life estate holder could, even for his or her maintenance sell the property so as to bind the remaindermen; that is because, the testator by giving the life estate to A with a vested remainder to B intended that the property should go intact to B and on no account it should be sold for the maintenance of A. So far as A is concerned he has intended that A, the life estate holder could only look to the income of the property for maintaining himself or herself. Unless therefore it could be urged that such a power of sale to bind the remainder-men could be implied on the terms of a particular will, a life estate holder cannot effect a sale which would enure beyond his or her lifetime. We have, however looked up the law in England to ascertain whether relief could be given to any extent in respect of the sales, Exhibits B-44, B-23 and B-27 which have been held to be supported by consideration.

52. The law is found stated in pages 73 to 77 of Cheshire's Modern Law of Real Property, 10th Edition (5th Edition 389) thus:

The person who under this system has every appearance of being owner is the life tenant in possession, but since his beneficial interest must necessarily determine with his death it follows that any interest granted by him must also determine at that moment.

Cheshire goes on to point out that since this limited power of alienation reduced the value of property in the hands of life tenants, statutes were passed enlarging the powers of the life tenant.

53. In Halsbury's Laws of England (Volume 32 - Simonds' Edition) page 296 also, the law is thus stated:

Save under statutory powers, the tenant for life can dispose of the land only to the extent of his own interest. Hence, on a sale or gift of the land, whether expressed to be for the life of the tenant for life or any greater interest, the purchaser or donee takes an interest only for the rest of the life of the tenant for life, that is, an estate pur autre vie and, on a lease of the land, the lessee takes a term which is liable to be determined by the death of the lessor. Under statutory powers, the tenant for life can dispose of the land by sale, exchange or lease, but any capital sum received on the transaction is paid to trustees or into Court, and follows the limitations of the land.

Since no such statutes have been passed in India enlarging the powers of a life tenant, we have to ascertain the law in England apart from the statutory law enlarging the powers of a life tenant.

54. In Jarman on Wills, Eighth Edition, Volume 2, page 1188, the law is stated thus:

A tenant for life cannot charge the expenses of improvements upon the property Nairn v. Marjoribanks 3 Bussa. 1582 : 38 E.R. 582, Re Laigh's Estate L.R. 6 Ch. 837, Bostack v. Blakeneji 2 B.C.C. 633 : 29 E.R. 362, except under the Settled Land Acts, but the Court has jurisdiction to permit him to charge monies expended for salvage Hibbert v. Cooke 1 S & St. 552, Dint v. Dent 30 Bevan 363, Dixon v. Pencock 3 Dr. 236, or in some cases for the benefit of the trust estate.

In Tneobald on Wills, Eighth Edition, the law is thus stated at page 607:

Apart from the Settled Land Acts, a tenant for life who makes permanent improvements which increase the value of the inheritance, such as repairs necessitated by drought, building farm buildings and cottages, draining marshes and the like, does so at his own risk and is not entitled to a charge for his expenditure. Hibbert v. Gooke 1 S & St. 552, Bostack v. Blakeney 2 B.C.C. 633 : 29 E.R. 362, Nairn v. Marjoribanks 3 Bussa. 1582 : 38 E.R. 582, Dixon v. Pencock 3 Dr. 236, Caldecott v. Brown 2 Ha. 144, Dunne v. Dunne 7 D.M. & G. 307, Dent v. Dent 30 Bevan 363, In re Barrington's Settlement 1 J. & H. 143, In re Orard's Settled Estate (1892) 2 Ch. 318, See In re Montage Darbishire v. Montagu (1807) 2 Ch. 318.

But he will be allowed expenditure (including the costs of legal proceedings) made to preserve the property of which he is a tenant for life from injury, destruction or forfeiture. Dent v. Dent 30 Bevan 363, the Aroa Mine; in Re Earl De. La Warr's Estate 16 Ch. D. 587, in Re Orwarod's Settled Estate (1892) 2 Ch. 318, Hamilton v. Tighu (1898) 1 Ir. 123.

On this principle he may complete a mansion-house upon the estate left unfinished by the testator, and charge the inheritance with the cost. Hibbert v. Cooke 1 S. & St. 553, Dent v. Dent 30 Bevan 363.

And if he completes houses commenced by a testator on a building estate he may be entitled to the expenditure, if but for the outlay the buildings would have been lost to the estate. Ferguson v. Ferguson 17 L.R. I. 552, Gelliland v. Crawford L.R. 4 Eq. 35.

In Halsbury's Laws of England, Third Edition (Simonds' Edition) Volume 34, at page 638 under the heading ' Capital outgoings' it is stated:

The corpus of a trust estate must be resorted to for all costs, charges and expenses properly incurred for the benefit of the whole estate, such as the costs of carrying into execution the trusts of a will... the cost of legal proceedings for the administration and protection of the whole estate.

In, 20, Halsbury's Laws of England (Hailsham Edition) at pages 575 and 576, the law is thus stated:

Where trustees and incumbrancers, and even in some cases creditors, though their debts be disputed, and limited owners have made payment for the redemption of property, or for fines on renewal of leases or other payments to save property from destruction, fo the benefit of all persons interested in its preservation, a lien will arise in their' favour for the amount of the expenditure against the property in priority to all other claims.

55. Thus the law in England, apart from the Settled Land Act is that a tenant for life is entitled to what is called a salvage lien right, that is a lien for the money. that he expended in saving the property for himself and the remaindermen but he is not entitled to the value of any improvements effected on the estate. Beyond this lien, he does not have any power of sale as such and the purchaser from him would only have a lien against the remaindermen. In fact the principle of salvage being that the property is to be saved it will be inconsistent with that position to uphold a sale of that property or even a portion thereof as binding on the remaindermen; to do justice, it would be quite sufficient to hold that there will be a lien for the amount spent for salvage.

56. In our opinion, these are principles of justice, equity and good conscience and can be adopted in India also. Thus it is obviously just and reasonable that if a tenant for life spent some money to save the property from forfeiture by a creditor of the estate, he should have a lien for the money spent in saving the estate for himself and for the remaindermen, but no such corresponding equity can be invoked by the tenant for life if he spends for improvement of the property. This rests on the principle that he cannot saddle the remaindermen with the expenses of improvement which the remaindermen may not be inclined to incur. If the tenant wants to derive an increased income by improving the property, it is open to him to do so, but he cannot pass the burden of the cost of improvement on the remaindermen. The principles themselves are clear though it may be difficult in particular cases to determine whether what has been expended has been spent only to preserve the estate or to improve the estate. We would also observe that, where money is spent by a tenant for life for saving the property from forfeiture by a creditor, it is enough to give the tenant for life a lien for the money expended. That woul give him all the relief that he is entitled to injustice and equity. He cannot be {permitted to sell a portion of the property 'and contend that the same is binding on the remaindermen. As pointed out I earlier, the very principle of salvage being I that the property has to be saved, the, tenant for life cannot be permitted to sell that property or even a portion thereof so as to bind the remaindermen, except, 1 of course, with the consent of the remaindermen. In some cases it may be impracticable to sell just the extent of the property which is requiste to save the property. Further, the question would also arise whether the sale was for a proper price. On account of all these considerations, a sale of the property or even a portion thereof by a life tenant cannot be upheld.

57. We shall now examine some of the cases cited in the passages extracted above in the chronological order.

In Dent v. Dent (1962) 30 BR. 363, the head-note gives a succinct idea of the case:

A tenant for life had expended on the estate large sums - I, in completing a mansion left unfinished by the testatrix. II. In erecting a conservatory and vinery. III. In rebuilding a farmhouse and buildings. IV. In erecting cottage. V. In erecting permanent furnaces, works, buildings and cottages at some copper works. VI. In draining marshy ground; and VII. In making payments to keep a foreign mine working, so as to prevent its forfeiture. Held: that he was entitled to no allowance for these sums out of the personal estate of the testatrix held upon similar trusts, or to any inquiry respecting them, except those laid out in completing the mansion and for the foreign mine, as to which an inquiry was directed whether the outlay was for the benefit of the inheritance.

This head-note brings out the distinction between a case of salvage on the one hand and improvement on the other. So far as the mansion house is concerned, the facts are these as stated at page 360:

A house had been begun by the testatrix and which was unfinished at her death; what was to be done with it? It is clear that she thought that the estate required a mansion, for she had begun to build one; it is also perfectly clear, that it could not be permitted to remain in the state it was in at her death, in which case the money already laid out would have been lost; and the building itself would fall into ruin and become an unsightly incumbrance on the estate. It ought therefore to be completed and considering that there is a distinct authority for this in the case of Hibbert v. Goake 1 Sim. & Stu. 553, I think it will be proper for me to direct a reference to ascertain whether anything and what was properly expended, by which I mean for the benefit of the inheritance, in the completion of the house left unfinished by the testatrix upon the flass estate; when that is ascertained I shall deal with it.

With respect to the Aroa mine it is stated to be the law of Columbia that if a mine is not worked for a certain time, it is 'denounced', and thereupon the owner forfeits the whole of the property and the government takes possession of it. In consequence of this, a considerable sum of money has been laid out every year in supporting the mine and making such works as were necessary to prevent a 'denouncement' of the property, and those sums seem to have been very considerable amounting in some years to as such as 900. But a most beneficial arrangement seems to have been made now, by which this mine which has only been a burthen hitherto has been contracted to be sold for a sum of 50,000. It is obvious that this is a most extremly beneficial arrangement, and, as it cannot be now carried into effect without the sanction of the Court, I shall direct a general reference with respect to the Aroa mine, to ascertain what has been done with respect to it since the death of the testatrix, and whether any contract has been entered into for its sale, which it would be proper for this Court to confirm, or generally what steps should be taken with respect to that property. I shall direct this inquiry in the next general term, and when this case comes back, I will consider whether it was not for the benefit of the inheritance that this sum of money was laid out, when probably I shall not consider it in the mere light of a burthen that falls upon a tenant for life, like a rent charge or an annuity charged upon it, to be kept down by him, but rather in the light of acts done to preserve the property from destruction, involving an outlay in respect of which whether the whole outlay itself, or a considerable portion of it, ought to be allowed to him. I will therefore direct a reference upon those two subjects alone.

In In re Earl De La Warr's Estates (1881) 18 Ch. D. 587, the tenant for life incurred certain expenses for the prosecution undertaken for the preservation of the settled estates and for defending som other action. It was held that the Court could permit the trustee to reimburse the tenant for life.

58. In Ferguson v. Ferguson (1886) 17 L.R. 552, the testator had commenced to build upon part of his real estate, a terrace of thirteen houses, and expended upon them a large sum of money. Those houses were unfinished at the testator's death, and the executors, at the request of the tenants for life, laid out the sum of 2914 on their completion, and the houses were then let at good rent. It was held by the Court of Appeal (reversing the decision of the Master of the Rolls) that the expenditure came within the principle of salvage, and that the tenants for life of the real estate were entitled to a lien upon the houses so completed for such expenditure incurred in their completion; but, having regard to the perishable nature of the house property, that such lien should be repaid within fifty years. In other words it was estimated that the house would last for fifty years and since the tenant for life himself would be having some benefit from the same, the total expenditure was divided into fifty parts and the charge on the remainder-men was diminished by one-fiftieth of the original outlay and interest for each year during which the tenants for life received the profits. In the case of Exhibit B-44, however, such a deduction may not be necessary, as we shall explain later. In the Court of Appeal, Naish, L. J., observed:

I am satisfied that, having regard to the unfinished state in which the houses were left, the expenditure which took place was absolutely necessray, in order to prevent the houses from becoming a total loss, not only to the tenants for life, but to the remaindermen. There does not appear to have been any possible mode of making these houses productive in their unfinished state; and, unless this expenditure had been incurred, all the previous expenditure would have become valueless. The very site itself would have become valueless. Therefore, it was, in my opinion, essentially a case of salvage.

Lower down it is observed:

This is not a case of improvements on a property, neither is it one of repairs.

Palles, C.B., observed at page 573:

Upon those facts, I think the principle of salvage applies, and that the authorities not only authorise, but coerce us to hold that the appellants are entitled to this lien.

Again at page 577, he observed:

In my opinion, the case has been brought within the well-known rule of enquiry, that where a tenant for life expends money in the preservation of property, which otherwise would be lost, he is entitled to a lien for his expenditure on the property so preserved.

Fitz-Gibbon, L.J., after observing that the tenants for life would be entitled to a charge over the estate goes on to state at page 578:

Expenditure on buildings of this class is however not of perpetual advantage. The profits arising from the completion of the houses last so long only as buildings of that class continue to return appreciable profit over the cost of repairs and maintenance; but such property is liable to repair depreciation, the 'life' of such houses would seem to be approximately fixed by the analogy of the periods allowed for the repayment of building loans by the Board of Public works; and subject to any observation or inquiry which the parties may suggest, I think it would be about right to limit the charge to fifty annual instalments, the credit against the inheritance to be determined by one-fiftieth, of the original outlay and interest for each year during which the tenant for life receives the profits. As the expenditure was, in the first instance, beneficial to themselves, I think it not unjust to allow the tenants for life interest at the Court rate only; and of course they must keep down de anno in annum the interest on the principal due for the time being.

Barry, L.J. gave the same opinion.

59. In re Orarod's Settled Estates (1892) 2 Ch. D. 318, an estate was settled by the will of a testator his widow being the first, and his nephew the second tenant for life. The widow, prior to the commencement of the Settled Land Act, 1682, paid out of her own moneys the costs of the successful opposition of the trustees to some bills in Parliament promoted by a water-company and by the Corporation of Manchester, and which contained provisions injuriously affecting the estate. The opposition resulted in the insertion of Clauses for the protection, of the estate. It was held that independently of Section 36 of the Settled Land Act, 1882, the Court, under its general jurisdiction, had power to direct the payment of the costs of the Parliamentary opposition out of the capital money, and payment was directed accordingly. North, J., observed:

As regards the Parliamentary expenditure, it is obvious that it was incurred by the tenant for life, or forced upon the tenant for life, for the purpose of defending the estate.

He however disallowed cost of improvement.

60. In Hamilton v. Tighe (1898) 1 Ir. R. 123, an action was brought by the tenant for life and the trustees of a settled estate to establish their right to a fishery which formed part of the settled estate, against certain fishermen who had been in the habit of cod-fishing in the River Nore, within the limits of the said fishery. The tenant for life and the others had obtained a decree I and perpetual injunction with costs but I they were unable to recover the costs from the defendants. They accordingly instituted a separate action to have the costs made a charge on the ground that the original action had been brought for preservation of the fishery, and was in the nature of a salvage suit and made defendants the next tenant for life, and the first tenant in tail in remainder. The: latter consented to a judgment. The Court gave a decree observing;

In the present case it was absolutely necessary for the protection of the Tighe estate that the action of Tight v. Sinnott (1887) 1 Ir. R. 140, should have been brought

* * * *

If the action had not been brought, or had not been successful, this valuable fishery would have been lost to the estate.

* * * *

Therefore, on the ground of pure salvage, which principle was extended afterwards to cases of protecting the settled estate I have jurisdiction to declare the costs of the action of Tighe v. Sinnott (1887) 1 Ir. R. 140, a charge on the inheritance.

61. On the principles deducible from the above discussion We hold that defendants 6 to 12 who are the heirs of Chinathu Goundan, the vendee under Exhibit B-44, are entitled to a salvage lien for Rs. 735. which was expended in partial discharge of the decree in O.S. No. 216 of 1934. The properties of Koneri Goundan had been brought to sale in execution of the decree and the payment was made to avert that sale. By such payment, the property was preserved not only for the benefit of Sowbagiammal the tenant for life but also the remainder men, namely the plaintiff, Muthuthandava, Natesa and the first defendant. In the normal case where such expenditure would benefit both the tenant for life and the remainder-men, an apportionment should be made between the tenant for life on the one hand and the remainder-men on the other, but that is not necessary for practical purposes in this case, because the property which was salvaged in this case was not house property which could be expected to remain only for fifty years. Here the property is land which could go on yielding income indefinitely. In relation to the indefinite length of time for which the remainder-men and their heirs and successors-in-interest could enjoy the profits of the land, the period during which the tenant for life was benefited would be negligible. In this view, we think that, no reduction need be made out of the sum of Rs. 735 and that it is proper to ask the plaintiff and the other remainder men to pay the sum of Rs. 735 in proportion to their shares before they could recover the property, to the defendants 5 to 12. This would mean that the plaintiff would have to pay 7/12 of this amount, the first defendant would have to pay 3/12 and the second defendant 2/12.

62. The question arises whether the defendants 5 to 12 will be entitled to any interest on the sum of Rs. 735. It may be noted that in paragraph 35 of the judgment, the learned Subordinate Judge has held that the defendants 5 to 12 should render an amount of the mesne profits from 4th December, 1962, the date of the death of Sowbagiammal. If so, it seems to us just and equitable that-the defendants 5 to 12 would be entitled to set off the interest on the sum of Rs. 735 at 6 per cent from 4th December, 1962, from the above mesne profits. But if it should happen that the interest exceeds the amount of mesne profits, they will not be entitled to get Anything more; they should be allowed $et off to the extent of the mesne profits and they cannot claim anything further.

63. With regard to Exhibit B-27 we have teld that it is not supported by consideration. Accordingly no question of any salvage lien arises. With regard to Exhibit B-23, though it is supported by Consideration, the alienee is not entitled to any salvage lien.

64. In other words, A.S. No. 736 of 1967 is partially allowed in respect of defendants 5 to 12 and is otherwise 4ismissed. It may be noted that so far as defendants 6 and 8 are concerned, though they have not appealed, relief would have to be given to them in the same way as to defendants 5 and 9 to 12 who have appealed on the principles of Order 41,Rules 4 and 33,divil Procedure Code, as already explained.

65. In the result, A.S. No. 604 of 1966 is dismissed. A.S. No. 736 of 1967 is allowed in part. The parties will bear their own costs in these two appeals.


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