1. This appeal is preferred against the decree and judgment of the learned Subordinate Judge of Mathurai in A.S. No. 57 of 1952, reversing the decree and judgment of the learned District Munsif, Tirumangalam, in O.S. No. 223 of 949
2. The appellants before me are the reversioners to the estate of one Poovatha Pillai. His widow was Shanmugathammal. Between 1943 and 1948, Shanumuga-thammal made a number of alienations, in regard to which we are concerned in this appeal with four alienations. She died on 17th October, 1948. The suit has been filed by the reversioners to the estate of Poovatha Pillai for possession and other appropriate reliefs.
3. The alienations which are the subject-matter of consideration before us are comprised in Exhibits B-8, B-10, B-20 and B-34.
4. Exhibit B-8 is dated 13th August, 1947 and covers items 1 and 1(a). It is executed in favour of defendants 2 and 3 for As. 500. One of the items of consideration is the discharge of an othi for Rs. 120 executed by Poovatha Pillai in favour of Madakasa Thevan on 2nd February, 1888. The previous proceedings relating to-this were O.S. No. 109 of 1948 (marked as Exhibit B-4). The present defendants connected with this document are defendants 1 to 13.
5. The next document of alienation is Exhibit B-10, dated 21st December, 1945V executed by Shanmugthammal in favour of defendants 18 to 20 for Rs. 1,000 of items 3 to 3(d). The othi for Rs. 572 executed by Poovatha Pillai of this property was partially discharged by the 1st plaintiff and the father of 2nd plaintiff by the payment of Rs. 286 to the heirs of two of the mortgagees and they took possession of items 3, 3(a) and 3 (b). Item 3 (c) is in the possession of defendants '33 to 36 and item 3(d) is with defendants 18 to 20. The redemption was veffected following a surrender by Shanmugathammal of her properties in favour of the 1st plaintiff and the father of the 2nd plaintiff in 1917. Defendants 18 to 20 filed a suit for redemption on the basis of the sale-deed in their favour by Shanmugathammal. The suit was O.S. No. 286 of 1946 on the file of the District Munsif's Court, Tirumangalam, wherein the 1st plaintiff was the 26th defendant and the 2nd plaintiff the 27th defendant. The surrender was found against by the trial Court and the finding was confirmed on appeal in A.S. No. 186 of 1948 on the file of the Sub-Court, Mathurai. The claim of the plaintiffs in respect of items 3 to 3(d) cannot however be barred by reason of res judicata because the decision was given while Shanmugathammal was alive.
6. Exhibit B-20 is the next sale-deed dated 7th August, 1946. Exhibit B-34 is the other sale-deed dated 16th February, 1948. Both are executed by Shanmugathammal in favour of the 21st defendant for Rs. 1,000 and 200 respectively. The saledeeds cover items 4, 5 and 7 to 10. Shanmugathammal had executed an othi for Rs. 133 of item 4 in favour of the brother of the 26th defendant and of items 5 to 5(c) for Rs. 467 in favour of the ancestors of defendants 22 to 25 and 28 to 31, both the othis being executed on 22nd October, 1902. The 1st plaintiff and Porinambalam Pillai redeemed the othi in respect of item 4 in 1921, following the oral surrender and othied the same to the 26th defendant and finally sold the property to him on 6th July, 1944- The 21st defendant filed O.S. No. 308 of 1946 for redemption of the othi in respect of item 4 which was decreed. The appeal against the decree was dismissed. Plaintiffs were not parties to that suit and the decision was given in the lifetime of Shanmugathammal. The decision therefore does not operate as res judicata.'
7. In regard to these alienations the points which fell to be' determined by both the Courts below were: (1) whether the consideration passed as recited under the sale-deeds or whether they were nominal transactions ; (2) whether there was necessity for the limited owner to execute these documents for raising the wherewithal mentioned there and (3) whether these properties had been sold for a gross under valuation?
8. I shall first of all deal with these points one by one as disposed of by the learned District Munsif and then by the learned Subordinate Judge and shall subsequently give my own reasons.
9. In regard to the passing of consideration, both the Courts below have come to the conclusion that consideration passed as recited. In other words, there was no question of failure of consideration in regard to these alienations. In this Court also nothing was placed before me to show that this concurrent finding of both the Courts below was either perverse or incorrect. On the other hand, the volume of documentary and oral evidence clearly establishes that consideration passed as recited. I am bound by the findings of fact by the Courts below.
10. Point 2 : Coming to the question of necessity, there is a sharp difference of opinion between the views taken by the learned District Munsif and the learned Subordinate Judge. The crux of the controversy is whether, between 1942 and 1948, this old woman Shanmugathammal was under necessity to alienate properties in order to maintain herself. There can be no dispute regarding the facts. Shanmugathammal had been living in another village before 1942. These properties had been subjected to this. It is nobody's case that she was receiving any income from these lands. It would appear that she came back to the village of her husband when she was about 85 years old and it is possible that she was influenced in doing so by D.W. 8. But it is neither here nor there. It is certainly open to a widow to go and spend her last days in the village of her husband. The learned District Munsif has analysed in paragraph 27 of his judgment the circumstances in which Shanmugathammal was placed at that time. He writes:
Having regard to the age of Shanmugathammal herself in 1943, it may be taken that her father had died long before. When Shanmugathammal came to live in the village, there was no property of her husband which she could call her own and consequently no possibility of any income accruing to her. D.W.8 says that she stayed in his house while at Sathangudi and that he did not ask her to pay any rent. She was however cooking her own meals. The evidence shows that Shanmugathammal was living in Mudalikulam also. She must have been in the village till the date of Exhibit B-34, viz., 16th February, 1948. She must have required at least Rs. 20 per month for keeping ner body and soul together. She must have thus required about Rs. 250 per annum.
11. The learned Subordinate Judge writes:
One has to take an overall picture of the State in which this widow was between theyearsig and 1948. It has been found by the learned District Munsif that she must have required at least Rs. 25 a month to keep her body and soul together. We find that she was an old woman of at least 86 when she came to this village, and therefore it is not at all an unreasonable figure taking also into consideration the fact that the cost of living has been rising up from 1943 to 1948. The finding of the learned District Munsif that she must have required at least Rs. 25 a month for keeping her body and soul together, is not even disputed by the plaintiffs. We find that by all these alienations made from 1944 to 1948 she had only realised in all a sum of Rs. 1,690 in cash. At the rate of Rs. 25 a month for 5 years that she was living from 1943 to 1948 when she left the village she must have required at least Rs. 1,500 for her living. When it is admitted that, there was no means of sustenance at all for her as the properties that belonged to her husband had all been in the possession of third parties by reason of the othies which othies are now admitted to be binding on the reversioners, the only method by which the widow could live was by selling portions of the properties as and when she required money for her maintenance.
12. In other words, both the Courts below have come to the conclusion that between 1943 and 1948 Shanmugathammal was in straitened circumstances and was unable to earn herself and had no income from the properties of her husband. The only method by which she could maintain herself was to sell those properties of her husband bit by bit. That she had done so in selling bit by bit as expenditure dictated is also fully borne out by these alienations.
13. The first alienation with which we are concerned is pf the, year 1945 Exhibit B-10. By that time she Had received a sum of Rs. 200 under the alienation marked Exhibit B-44. By the time the second alienation was made she had to spend that amount for maintaining herself in the village for a year. The consideration for the alienation of 1945 was Rs. 1,000 jnade up of four items. The first item of consideration is the discharge of the othi for Rs. 572 executed by Poovatha Pillai and othersExhibit B-9 is that othi dated 13th February, 1889 to be discharged. Exhibit B-10 provided for Rs. 143 being taken by the 18th defendant himself and Rs. 429 being paid by him to the heirs of the other three mortgagees. The second item of consideration was a debt due by Shanmugathammal to the 18th defendant for the sundry amounts borrowed and the expenses of the litigation in the Munsiff's Court in 1924 to the extent of Rs. 128. The third item of consideration is Rs. 225 borrowed from the 18th defendant in connection with her going on a pilgrimage. The fourth item of consideration is a sum of Rs. 75 paid before the Sub-Registrar. The learned District Munsiff found that there could be no dispute in regard to the first item. In regard to the second item of consideration it appeared to him that the recital must be incorrect and unrelated and that the amount went towards the maintenance expenses of Shanmugathammal. He found that this item of Rs. 128 was in discharge of a debt binding on the reversioners. In regard to Rs. 225 in connection with pilgrimage expenses the learned District Munsiff found that the question to be considered was whether the alienee bonafide believed the representation made by Shanmugathammal that Rs. 225 was required for the pilgrimage to Rameswaram. His finding was that the alienee did believe so. In regard to the fourth item of consideration about the payment of Rs. 75, the learned District Munsiff came to the conclusion that this item of consideration must have also been paid and should be upheld. The finding of the learned Subordinate Judge in regard to these four items of consideration in Exhibit B-10 was that Shanmugathammal must have received all cash payments, whatever might be the recitals, making in all Rs. 428.;
14. Exhibit B-20, dated 7th August, 1946, deals with another alienation for Rs. 1,000. Its consideration was made up of: (1) Rs. 50 for discharging an othi, dated 18th August, 1889, executed by Alamelu Ammal and Shanmugathammal in favour of one Anaiyan Ambalagaran of item 6 for Rs. 50 ; (2) Rs. 467 being the I amount due under an othi executed by Alamelu Ammal and Shanmugathammal t m favour of one Periyakaruppan and his brother of item 5 ; (3) Rs. 133 i-j for discharging an othi dated 22nd October, 1902, executed by Alamelu EC Ammal and Shanmugathammal in favour of one Vellai Ambalagaran and (4) Rs. fe '350 paid before the Sub-Registrar. The learned District Munsiff found that with gregard to the first item P.W. 1 affirmed the validity of the othi. This was discharged by the father of P.W. 1 on 17th October, 1917. The othi deed is Exhibit A-25 and the endorsement of discharge is Exhibit A-26. He held therefore that the consideration to the extent of Rs. 50 had been made out. With regard to the next item of consideration viz., Rs. 467 for the discharge of othi under Exhibit B-1, that othi was held by the learned District Munsiff to have been affirmed by P.W. 1. This Exhibit B-1 is in renewal of an earlier othi executed by Alamelu Ammal and Shanmugathammal in favour of Adiyam Ambalam under Exhibit B-23 dated 12th December, 1894. This Exhibit B-23 was found to be in renewal of Exhibit B-24, an othi by Poovatha Pillai himself in favour of Adiyam Ambalam. Therefore the I learned District Munsiff held that this item of consideration must be held to be for a I valid purpose. In regard to the payment of Rs. 350 which was stated to be paid I before the Sub-Registrar the money was required for discharging sundry debts and family expenses. We have got the evidence of D.W. 3 that Shanmugathammal had borrowed Rs. 100 from one Parama Thevan and another Rs. 100 from one Karuppa Thevan and that Rs. 200 out of Rs. 350 was paid to her for discharging these debts and that Rs. 150 was paid to her for her maintenance expenses. The learned District Munsiff found that as Shanmugathammal had no property of her husband in her possession and by the date of Exhibit B-20 she had sold items 1,1(a), 2 and 3(d), the representation of Shanmugathammal to D.W. 3 that she required Rs. 350 must be true and that D.W. 3 honestly thought that that representation was true. The learned Subordinate Judge in regard to Exhibit B-20 came to the conclusion that the recitals of consideration were true, namely, that Rs. 650 went towards the discharge of the prior othis and that the rest must have gone towards the maintenance expenses of this widow.
15. Exhibit B-8, dated 13th August, 1947, is a sale for Rs. 500 in favour of defendants 2 and 3 The defendants connected with the document are defendants 1 to 13. The connected documents are Exhibit B-7 dated 2nd February, 1888 othi for Rs. 120. It was Exhibit B-14 in O.S. No. 109 of 1948. The learned District Munsiff who has fully analysed this Exhibit B-8 transaction in paragraph 15 of the judgment has found that it is supported by consideration to the extent of Rs. 500. This Rs. 500 went towards the discharge of the admitted prior othi Exhibit B-7 to the extent of Rs. 180 and a sum of Rs. 280 paid to Shanmugathammal and a sum of Rs. 100 paid before the Sub-Registrar who had to meet the debts contracted by the old woman and towards her maintenance. This was one finding of the Subordinate Judge in paragraph 13 of this judgment.
16. Exhibit B-34, dated 16th February, 1948, is for Rs. 200 executed by Shanmugathammal in favour of the 21st defendant. The properties comprised in Exhibit B-34 are items 5(a) and 5(c). The finding of the learned District Munsiff is as follows:
The consideration is made up of Rs. 100 already paid to the vendor for meeting the medical expenses in connection with her eye disease and Rs. 100 paid to her for maintenance expenses on the date of the document. I find nothing improbable in Rs. 100 being got by Shanmugathammal for treatment of her eye in view of the fact that as early as the date of Exhibit A-13 she had stated that she was having some trouble with her eye. The evidence of the witnesses on the side of the plaintiffs is that Shanmugathammal could not recognise people except by hearing their voices.
17. The learned District Munsiff further found that as practically all the items of property belonging to her husband had been alienated before the date of Exhibit B-34, was not a matter for surprise that Shanmugathammal required money for her expenses also. Therefore he found that the entire consideration under Exhibit B-34 was paid by the 21st defendant to Shanmugathammal. The learned Subordinate Judge concurred with this finding that Shanmugathammal must have incurred expenses for eye-treatment as well as for meeting her maintenance expenses.
18. In other words, both the Courts below came to the conclusion that so far as the documents were concerned whatever might be the inaccuracies in the rescitals here and there, consideration passed as recited and that that consideration went towards discharging binding debts or for meeting the maintenance and medical expenses of Shanmugathammal.
19. As I have said, the Subordinate Judge and the District Munsiff differed in their points of view. The learned District Munsiff was of the opinion that the properties should not have been sold but further othis could have been created. On the other hand, the learned Subordinate Judge held that no such obligation lay upon this Shanmugathammal and that it was open to her to alienate the properties.
20. There can be no doubt that the point of view taken by the learned Subordinate Judge is the settled law of this Court. The learned Subordinate Judge has rightly pointed out that the reversioners cannot dictate to a widow as to how she should raise money necessary and that it should be done only by a mortgage and not by sale. Courts have got to see only whether there was a necessity to raise money by alienating the properties and if this necessity is found, it is for the widow to raise the money either by selling or by encumbering the properties. In Mulla's Hindu Law, 11th edition, page 192, it is pointed out:
when necessity exists the widow is not bound to raise on her personal security. She may sell or mortgage. She is not bound to mortgage if a mortgage would be more prejudicial than a sale. Even if a mortgage would have been more beneficial than a sale, and still if she and the alienees are both acting honestly the sale cannot be set aside on the ground solely that she ought to have mortgaged and not sold.
21. This point of view has been appositely set out in the judgment of this Court in Kuthalinga Mudaliar v. Shanmugha Mudaliar (1925) 50 M.L.J. 234 : A.I.R. 1926 Mad. 464. There was an alienation made by a widow for Rs. 600. The Subordinate Judge found that Rs. 300 went in discharge of a debt binding on the reversioners and the other Rs. 300 for the maintenance of the widow. It has also found that the widow was unable to maintain herself out of the income from her husband's property which consisted only of the plaint house and therefore she was obliged to borrow. The Subordinate Judge set aside this with regard to half and upheld with regard to the other half. In appeal it is observed by Devadoss, J. :
The Subordinate Judge seems to think that a widow cannot alienate property for future maintenance. The question is whether she can do so for future maintenance? There is no hard and fast rule that a widow cannot alienate property for future maintenance. Each case would depend upon its circumstances. In this case, there is no other property and the only property is not capable of yielding any appreciable income. I do not see why the widow should starve herself in order to benefit the reversioners.
22. In S.A. No. 795 of 1951 in Neelambal v. Rajarathnam (1955) 2 M.L.J. 73 Fully reported in : AIR1956Mad336 a Division Bench of this Court has held that
the principle of law is well-established that a Hindu widow can alienate her husband's property for necessity of the estate, that no hard and fast rule can be laid down as to whether a Hindu widow in possession of very little property left by her husband can or cannot sell the same for her future maintenance and that each case has to be decided on its own facts. Generally speaking there is no obligation upon a Hindu widow to starve herself and keep a small estate for the benefit of the reversioners living on a meagre income. If the circumstances of the case warrant, it will be perfectly legitimate for her to sell her husband's property, if it is very small and does not yield sufficient income, even for her future maintenance. Ramalinga Iyer v. Panathammal : AIR1926Mad1122 approved. Kuthalinga Mudaliar v. Skanmuga Mudaliar (1925) 50 M.L.J. 234 : A.I.R. 1926 Mad. 1926 Mad. 464; Khani Kashiba v. Sarubai Biru : AIR1943Bom266 ; Ratnam Pilled v. G. Subrahmaniya Aiyar : AIR1953Mad238 , differed.
23. In Gnanamma v. Kanniammal (1956) 69 L.W. 809 another Division Bench of this Court to which I was a party held
Where a case of necessity exists, she is not bound to borrow money with the hope of paying off before her death, nor is she bound to mortgage the estate and thereby reduce her income for life ; she is at liberty, if she thinks fit, absolutely to sell off a part of the estate.
24. Therefore, as I have said the learned Subordinate Judge has taken a correct view namely that it was not incumbent upon the widow to further mortgage the properties. On that conclusion it follows that these alienations are binding upon the reversioners.
25. Point 3. - In regard to the under-valuation that question has been examined at great length both by the trial Judge as well as by the Subordinate Judge. The learned trial judge has examined this alleged under-valuation put forward by the reversioners in paragraph 27 of his judgment. The learned distrist Munsiff was not able to find that these properties had been sold for for gross under-valuation. On the other hand, there was no reason why the window should do so. The properties were encumbered. The widow was under necessity to sell and had no choice. These reversioner were giving trouble to her in prior litigations and sales had taken place after the depreciation in agricultural lands had set in. There is no reason for our holding that the values realized were gross under-values. The learned District Munsiff says with regard to one alienation that the price for which the property was sold was not unreasonable. In regard to another alienation he says:
'I do not think that the price in the sale-deed Exhibit B-10 is so low as to raise an inference that the purchaser did not act honestly
26. In regard to the third alienation he says that:
'While the estimate of Rs. 400 given by the plaintiffs as the value of the properties may be and exaggeration, it seems to me that Rs. 1000 is not proper price for the property
27. But he does not give any reason why he considers this Rs. 1,000 as not a proper-price. On the other hand, the experienced Subordinate Judge has examined the valuations of these properties in paragraph 19 of his judgment. He points out the various circumstances alluded to above and concludes:
Under these circumstances, it seems to me that the prices that these lands could fetch, could not be anywhere near the market value but could only be much lower than the market value. In fact it is seen that before 194.8 when this suit was filed, each of the alienees had to face 2 or 3 litigations the records in which have been exhibited in this case.
28. The reversioners cannot have it both ways. They cannot start giving trouble to her and frighten all buyers and also accuse her that she is not able to fetch proper price. I entirely agree with the finding of the learned Subordinate Judge1 that no case has been made out that these properties have been sold for gross under-valuation. On this conclusion namely that consideration passed as recited, that the sales were all made either towards discharging antecedent debts or for meeting maintenance expenses of the widow, that the properties have not been sold for any gross under-valuation and that there were good reasons for the alienees to act upon the representations made by the widow and that they also made enquires before purchasing these properties, the claim of the plaintiffs is bound to fail.
29. The lower appellate Court therefore came to the correct conclusion and its decree and judgment have got to be affirmed and are hereby affirmed.
30. The second appeal is dismissed but in the circumstances without costs. Noleave.