1. In this appeal, the 10th defendant is the appellant before us. The suit was brought by the reversioner to the estate of one Isakki Adumperumal Pillai, the last admitted male owner who died in 1862. The original plaintiff was the daughter's son; while the suit was pending in the Court below, he died and his son was afterwards added as the 2nd plaintiff. When Isakki Adumperumal Pillai died in 1862, he left surviving him five daughters and a daughter's son by his first wife. This daughter's son afterwards died in 1887, predeceasing the last of the five daughters. The last of the daughters, Subbammal, died in 1921, leaving her son, the original plaintiff as the only reversioner. In the plaint, the plaintiff questions the validity of the depositions made by Pira-muthu Ammal, the widow of Isakki Adumperumal Pillai, under her Will dated 9th January, 1879. She died on the 8th February, 1879. Under this Will, she gave all the properties she was then possessed of, to her five daughters absolutely. The daughters got the properties under the Will and there were further transactions between the daughters and the daughter's sons details of which we are not concerned with. The 10th defendant is concerned with items Nos. 2 and 3 of Schedule 1 to the plaint. In the plaint these items were alleged to be part of the properties left by Isakki Adumperumal Pillai along with all the other properties. In the first written statement filed by the 10th defendant this allegation in the plaint was not questioned but certain other defences were raised which it is not necessary to state now. The suit was filed in January, 1922. It was posted for trial to a date in March, 1926. On the 10th March, 1926, the appellant filed an additional written statement in which he pleaded that the suit items never belonged to Isakki Adumperumal Pillai at all but were acquired by his widow, Piramuthu Ammal, 13 years after his death under certain sale-deeds and the sale-deeds themselves were produced. The case was taken up for trial on the 25th March. The two sale-deeds were exhibited as Exs. II and III. The plaintiff filed Exs. E and F, the plaint and statement in a former Suit No. 78 of 19i6, and the case was closed. The judgment of the Court below was delivered on 26th March, The Subordinate Judge observed in para. 16 of his judgment that Ex. A dated the 9th January, 1879, the Will left by Piramuthu Ammal, places the question whether these items appertain to the estate of the deceased Isakki Adumperumal Pillai beyond the shadow of doubt. He observes that the Will disposes of the properties she had inherited from her husband and further the properties acquired by improving these properties. Then he refers to Ex. IV, a partition deed entered into between the daughters. He then comes to the conclusion that the purchase of items Nos. 2 and 3 under the sale-deeds Exs. II and III becomes immaterial and cannot impress them with the character of stridhanam properties, as contended for on behalf of the 1st defendant. He also relied on Exs. E and F already mentioned, the plaint and the written statement in the earlier litigation, in which the present 10th defendant did not object to the description of these properties as part of the estate of Isakki Adumperumal Pillai. The Subordinate Judge finally says that it is futile that the 10th defendant should now contend that the suit property did not belong to the estate of the said Isakki Adumperumal Pillai and that he haslet in no evidence worth the name to prove the contrary. We are not able to agree with these observations of the Subordinate Judge. Though the written statement of the 10th defendant was filed late, it was allowed to be filed and the 10th defendant has certainly adduced evidence to the contrary. Exhibits II and III now place the matter beyond all doubt that the properties did not form part of the estate of Isakki Adumperumal Pillai at the time of his death but were acquired by his widow 13 years afterwards, the sale-deeds being dated May 1875. If no evidence is available, admissions in written statements and the delay in raising the plea may be circumstances from which the Court can infer that the properties were part of Isakki Adumperumal Pillai's estate but all such speculation and inferences are displaced by the actual production of the sale-deeds, Exs. II and III. We must start the discussion in this case on the footing that the two items were acquired by the widow in 1875, and did not form part of her husband's estate.
2. The question now arises whether these properties should be regarded as part of the husband's estate and for this purpose whether an opportunity should be given to the parties to adduce any fresh evidence. We were at first inclined to call for a fresh finding giving another opportunity to adduce evidence but it turned out that the sale-deeds, Exs. II and III, were in consideration of prior this dated 1872 and 1874 respectively, besides cash payments of Rs. 700 for each. As the important facts are thus known, we think it is unnecessary to call for afresh finding. All that we have now got is that the widow lent money on two othis in 1872 and 1874. In consideration of the amount due on these othis plus cash, she obtained these sale-deeds. There is no evidence in the case to show how the money lent by the widow for these othis was obtained. Similarly there is no evidence as to how the cash paid in favour of the plaintiff came from; it is probable these amounts represented savings from the current income of her husband's estates. This is the most favourable supposition one can make in favour of the plaintiff.
3. The question of law then arises whether Starting with this supposition, the properties can be, regarded as having become part of the husband's estate. Mr. Varadachariar the learned Advocate for the respondent, relied on the following decisions of the Privy Council, Gonda Kover v. Oodey Singh 14 B.L.R. 159 : 3 Sar. P.C.J. 370, Bhagbutti Debi v. Bhola-nath Thakoor 2 I.A. 256 : 1 C. 104 : 24 W.R. 168 : 3 Sar, P.C.J. 52 : 3 Suth. P.C.J. 186 (P. C), Isri Dutt Koer v. Hans-butti Koerain 10 C. 324 : 10 I.A. 150 : 13 C.L.E. 418 : 7 Ind. Jur. 557 : 4 Sar. P.C.J. 459 (P.C.) and Sheolochun Singh v. Saheb Singh 14 C. 387 : 14 I.A. 63 : 11 Ind. Jur. 231 : 5 Sar. P.C.J. (P.C.). He sought to distinguish the decision in Saodamini Dasi v. Administrator-General of Bengal 20 C.433 : 20 I.A. 12 : 6 Sar. P.C.J. 272 : 17 lnd. Jur. 223 (P.C.) by the circumstances that in that case the widow never got possession of her husband's estate, that the husband's property was bequeathed to his brother, there was an intestacy for 8 years and the amount the widow obtained represented the profits of the estate during those 8 years and by a compromise between the brother and the widow, a certain lump sum was handed over to the widow of the brother. Even if it were so, it is difficult to see what difference these circumstances make. The mere fact that the widow was out of possession of her husband's estate does not matter if ultimately she obtains a large amount of income representing the profits of that property. But, however, that may be, we find all the decisions up to Saodamini Dasi v. Administrator-General of Bengal 20 C.433 : 20 I.A. 12 : 6 Sar. P.C.J. 272 : 17 lnd. Jur. 223 (P.C.) have been considered in various decisions of this Court. The earliest decision is the one in Akkanna v. Venkayya 25 M. 351 : 12 M.L.J. 5. where also we have got a usufructuary mortgage out of small savings. Bhashyam Ayyangar, J., observed:
It was simply an investment, on a usufructuary mortgage, of her small savings over which she had absolute power of disposal, and it is difficult to see on what principle it is to be presumed that she thereby intended to part with her power of disposition, for the benefit of her reversionary heirs. The acquirer of property presumably intends to retain dominion over it, and in the case of a Hindu widow the presumption is none-the-less so when the fund with which the property is acquired is one which, though derived from her husband's property, was at her absolute disposal.
4. The point again arose in Subramania Chetti v. Arunachalam Chetti 28 M.I. In that case the properties were acquired by the widow out of sums allotted to her for maintenance and the case can, therefore, be distinguished on that ground. But the general question was elaborately argued and Sir Subrahmania Iyer, Ofig. C.J., observed:
In the absence of clear provision of Hindu Law, defining the character of her interest in the income, it must, on general grounds, be held that what becomes vested in her in her own right and what she can dispose of at pleasure is ner own property, not limited but absolute, exclusive and separate in every sense and devolving as such.
5. He then refers to the decisions in Isri Dutt Koer v. Hansbutti Koerain 10 C. 324 : 10 I.A. 150 : 13 C.L.E. 418 : 7 Ind. Jur. 557 : 4 Sar. P.C.J. 459 (P.C.), saodamini Dasi v. Administrator-General of Bengal 20 C.433 : 20 I.A. 12 : 6 Sar. P.C.J. 272 : 17 lnd. Jur. 223 (P.C.) and Akkanna v. Venkayya 25 M. 351 : 12 M.L.J. 5. This was a decision of three Judges and ever since, this decision has been regarded in this Court as having set the matter at rest. In Ramakrishna Prabhu v. Rakmavathi Bai 62 Ind. Cas. 215 : 11 L.W. 112 the learned Judges observed:
But the law has long been settled to be the contrary in this Presidency, and it would be enough to refer to a Full Bench decision of this Court, Subramania Chetti v. Arunachalam Chetti 28 M. 1, on this point.
6. The point again came up in this Court in Zemindar of Bhadrachalam and Palavancha v. Venkatadari Appa Rao 70 Ind. Cas. 689; (1922) M.W.N. 532 : 16 L.W. 369 : 43 M.L.J. 486 : A.I.R. 1922 Mad. 457 : 46 M. 190 : 31 M.L.T. 221. Schwabe, C.J., observed:
The law is that a Hindu widow is entitled to the income of the estate and can dispose by Will of accumulation...to from part of her deceased husband's estate.
7. kumaraswami Sastri, J., observes at page 544.
It has now been settled that a Hindu widow has absolute control over the income of the property which she inherits from her husband, subject of course, to the payment of the debts left by him, and that, unless it can be shown that she intended to make the savings part of the estate of her husband, she would have full power of disposal over it.
8. He then refers to the decision in Saoda-mini Dasi v. Administrator General of Bengal 20 C.433 : 20 I.A. 12 : 6 Sar. P.C.J. 272 : 17 lnd. Jur. 223 (P.C.). It is true that in that case the Meaur Rani was out of possession of her estate and she actually filed a suit for it and sought to recover it and, as already observed, we do not see how that circumstance can make a difference. The matter went up on appeal to the Privy Council whose decision is reported as Venkatadari Appa Rao v. Parthasarathi Appa Rao Sir John Edge observes:
To that income she remained entitled until her death on the 9th March, 1899. That income or any part of it she could, while she remained entitled to it, have added as an accretion to the Medur estate if she had wished to do so. There is no evidence to suggest that she ever added any part of that income as an accretion to the Medur estate. She was consequently entitled to dispose of it by Will or otherwise.
9. The last sentence clearly shows that their Lordships approve of the rule of law laid down in Akkanna v. Venkayya 25 M. 351 : 12 M.L.J. 5 and Subramania Chetti v. Arunachalam Chetti 28 M. 1, Mr. Varadachariar called our attention to a case in Nabakishore Mandal v, Upendra Kishore Mandal 65 lad. Cas. 305; (1922) M.W.N. 95 : 42 M.L.J. 253 : 20 A.L.J. 22 : 26 C.W.N. 322 : 35 C.L.J. 116 : 24 Bom. L.R. 346 : 15 L.W. 417 : 30 M.L.T. 234 : 3 P.L.T. 311 : A.I.R. 1922 (P.C.) 39. In that case she made an adoption--a fact not appearing from that report but in the decision of the High Court. Most of the properties she purchased were tenant-rights purchased from tenants of the estate. The document by which she alienated the property also shows that she regarded the property as accretions to her husband's estate for the deed contains recitals which upon the hypothesis that the property was the widow's own,, would have been quite unnecessary. It is in the light of these circumstances one should understand the earlier observation of their Lordships, namely: 'Though it is true that when that property had been received it would be possible for her so to deal with it that it would remain her own, yet it must be traced and shown to have been so dealt with, and in this case there is no sufficient evidence of this having been done.'
10. Anyhow we cannot regard this case as laying down a different rule from the one in Venkatadari Appa Rao v. Parthasarathi Appa Rao . Mr. Varadachariar referred to two cases Panani Subbamma v. Mungamur Venkata Krishna Row : AIR1925Mad151 and Srinivasa Aiyangar v. Almdu Ammal : AIR1927Mad715 . Both these decisions are of Single Judges and were before the decision in Venkatadari Appa Rao v. Parthasarathi Appa Rao . In Narayanan Chetty v. Supiah Chetty 58 Ind. Cas. 639; (1920) M.W.N. 248 : 11 L.W. 418 : 38 M.L.J. 437 : 43 M. 629 the finding was that the widow acquiesced in treating the interest on the investments as her husband's estate. This decision is a pure decision on the facts. The decision in Sarat Chandra Mitra v. Charusila Dasi : AIR1928Cal794 is the decision of a Single Judge, Page, J., and it can probably be distinguished on the ground that decisions in Calcutta still bear the impress of notions derived from Dayabhaga Law. We cannot depart from the course of decisions in this Court.
11. The result is that the plaintiff has failed to show that items Nos. 2 and 3 either formed part of the original estate of Isakki Adumperumal Pillai or have been subsequently treated by the widow as accretions to that estate and his suit must, therefore, fail so far as these items are concerned. The decision in this case will not prejudice any right which the plaintiff may get by reason of his compromise with the 8th defendant and the result of the litigation between the 8th defendant and the 10th defendant in another litigation Second Appeal No. 815 of 1925 and the connected Letters Patent Appeal. The appeal must be allowed with costs throughout. In the lower Court, the plaintiff will pay costs proportionate to the extent of items Nos. 2 and 3. The suit is dismissed as against the 10th defendant in respect of items Nos. 2 and 3.