1. The plaintiffs are reversioners and seek to recover property belonging to the husband of one Seshamma. While Seshamma was in possession of her husband's properties as a widow, she made certain alienations. The question in the second appeal relates to those alienations evidenced by Exhibits VIII and X respectively. Exhibit VIII is a deed of gift made to the widow's brother's daughter. The gift is made for pasupukunhuma. The document states:
As I am growing old and have no sons or daughters, and as you are my niece and have been taking are of me up to date and have agreed to take care of me during the whole of my life-time from this date, therefore, I or my heirs and others shall never raise any objection if you take possession of the said land and enjoy it from generation to generation.
2. It is contended by the learned Pleader for the appellant that, allthough Seshamma purports to make a gift, the document is, in effect, an alienation for consideration, the consideration being, partly, the alienee having taken care of Seshamma in the past, and partly, an undertaking to take care of her during the rest of her life. As we read the document, the alienee does not undertake any legal obligation to take care of Seshamma. The motive of the gift, or what influenced Seshamma to make the gift, is stated, no doubt, to be that the donee was kind to her in the past and agreed to be kiod to her in the future. We cannot regard the alienation as one made for any legal consideration. With regard to Exhibit X, which was a sale, there is no question for, our consideration in second appeal with respect to the finding of the Appellate Court that it is not proved that the alienation was made for discharging any debt binding on the estate.
3. It is then argued that the alienations were acquiesced in by the reversioners. But there is really no evidence of any consent to, or ratification of, the alienation by all the immediate reversioners. Exhibit VII, a letter from one of the then reversioners, no doubt, expresses approbation of the way in which Seshamma treated the donee under Exhibit VIII, but it does not amount to an undertaking not to question the alienation after the life-time of the widow. We do not think that there was any act on the part of any of the other reversioners which would estop them. In Exhibit XIX, executed by one of the reversioners, the land included in Exhibit VIII is referred to as belonging to the alienee in the statement of boundaries. But this is not sufficient to estop them, as in fact there was an alienation valid at the time in favour of the 1st defendant.
4. On the whole, we see no reason to uphold either of the alienations. The appeal must, therefore, fail on the merits.
5. We agree, however, with the contention that there was no reason for making the 2nd defendant, the son of the 1st defendant, liable for the costs of the suit and mesne profits. The 2nd defendant alleged that he was not in possession and that he ought not to have been made a party. No reason is shown in the judgment of the lower Appellate Court for making him liable.
6. We must, therefore, modify the decree of the Appellate Court by exonerating the 2nd defendant from liability for costs and mesne profits. With this slight modification, we dismiss the second appeal with costs payable by the 1st and 2nd defendants.
7. Second Appeals Nos. 860 and 861 follow.