1. The suit lands in this case were part of the estate of one Yegnasamy, who died in 1863, His estate passed to the hands of his mother Subbalu, and in August 1863, she executed an agreement (Exhibit A) by which she gave 3/8ths of the estate to her mother- in-law Chellathammal, reserving 5/8ths for herself. In 1864 Chellathammal purported: to sell 1/8th to plaintiff's father (Exhibit VII), 1/8th to Ramanatha Dikshitar (Exhibit VIII), and 1/8th to Subramania Sastri, but it has been found that the transfer was really a gift to the grandsons of her three daughters, i.e., plaintiff, Ramanatha Dikshitar and Subramania Sastri. On 5th June 1871, plaintiff and his father sold 1/8th share to Kuppusawmy Dikshitar (Exhibit I), and on the same day Ramanatha Dikshitar sold his share to the same man (Exhibit II). Subramania Sastri subsequently sold his share in 1909 under Exhibit V. Subbalu did not die until 1911 and now plaintiff sues as reversioner to Yegnasamy to recover his estate. Plaintiff does not claim the share sold by him under Exhibit I, and the only property in dispute in this appeal-is the share given by Chellathammal to Ramanatha Dikshitar. Appellants (defendants Nos. 3 to 5 and the legal representatives of the fifth defendant) are the representatives in interest of Kuppusamy Dikshitar, the vendee of the share under Exhibit II.
2. Plaintiff's claim has been allowed on the ground that the alienation by Subbalu to Chellathammal is not binding on him, as she could only convey her life-interest in the property.
In appeal, it is argued on three main grounds that the alienation is binding on plaintiff, i.e., (1) that plaintiff validated the alienation by giving his consent to it and is thus estopped from disputing it now, (2) that the question is res judicata, and (3) that the alienation was merely a family arrangement., Respondent's Vakil wished to argue that the alienation by Subbalu under Exhibit A purported to be an alienation of her woman's estate alone, but as the case had proceeded in both the lower Courts on the assumption that it was an alienation of the absolute interest and as the point was not raised in the pleadings, this question was not allowed to be raised in second appeal.
3. In arguing the appeal, Mr. L.A. Govindaraghava Aiyar who appeared for the first and second appellants, devoted his attention chiefly to the first ground mentioned above. In a recent case before a Pull Bench of this Court, Nachiappa Gounden v. Rangasami Gounden 26 Ind. Cas. 757 : (1915) M.W.N. 53, the question of alienations by a widow and the consent of reversioners thereto was fully considered. After a consideration of the authorities referred to in his judgment, to which we have also been referred, Kumaraswami Sastri, J., deduced the following propositions: (a) when the alienation is only of a part of the estate, the consent of the next presumptive reversioner is evidence of the necessity or propriety of the alienation, and in the absence of any evidence to the contrary, the Court shall presume that the alienation was proper, (b) the consent of a reversioner will, if given bona fide and for consideration, estop and bind the reversioner so consenting, and (c) the assent has a double aspect, not merely raising a presumption, but also raising an estoppel against the person consenting even though he might not have received any consideration or benefit.
These propositions are not seriously disputed by Mr. T.R. Venkatarama Sastri for respondent, and we see no reason why they should not be accepted as correct. The real question, therefore, for consideration is whether plaintiff did give his consent to the alienation by Bubbalu, for if he did, he cannot now go behind it and claim the suit property for himself. An objection is taken by respondent that this is a question of fact and cannot be gone into by us in second appeal. Apart from the facts that there is no very definite finding by the Subordinate Judge on this point, that he, relying on Arthanari Goundan v. Ramaswami Goundan 20 Ind. Cas. 304 : (1913) M.W.N. 448, has held that a partial disposition in favour of the next reversioner is invalid and has not considered the effect of the ruling of the Privy Council in Bajrangi Singh v. Manokarnika Bakhsh Singh 9 Bom. L.R. 1348 : 12 C.W.N. 74, that partial alienations are valid, we do not think that the question is one of pure fact. It is a question of what legal inference is to be drawn from certain facts vide Beni Ram v. Kundan Lal 21 A.S 496: 3 C.W.N. 502 and this is certainly a point with which we can deal in second appeal.
4. In this case, the facts from which we have to draw an inference are as follows:
In 1864, plaintiff's father accepted the absolute ownership of part of the widow's estate from Chellathammal under Exhibit VII, and plaintiff acquiesced in that by joining in the sale thereof to Kuppusawmy Dikshitar under Exhibit I, and says as plaintiff's witness No. 1 that he was personally aware of the alienation under Exhibit A, and must have known that the alienation was invalid unless made for proper causes. He was also present when Exhibit II, under which the property in dispute was sold, was executed. Then again in 1873, Kuppusamy Dikshitar brought two suits, Original Suits Nos. 60 and 61 of 1873 on the file of the Court of the District Munsif of Shiyali, to recover the properties sold under Exhibits I and II. Plaintiff was a party to both suits and in both admitted that the suit property belonged to the respective vendors, i.e., himself and Ramanatha Dikshitar although in the suit against the latter, there was no reason why he should have made any such admission, so far as his interests in that suit were concerned. Prom these facts, it is clear that plaintiff all along treated the alienation under Exhibit A as valid, but it is contended that, even if so much be conceded, plaintiff did not intend thereby to bind his own interests as reversioner. Plaintiff has been examined as a witness, but gives us no help in arriving at a conclusion as to his intentions, beyond a false statement that he did not know whether Ramanath Dikshitar sold the suit property to Kuppusamy Dikshitar. This statement is falsified by the judgments in the suits of 1873 (Exhibits III and IV). It must, therefore, be presumed that the plaintiff was not unaware that he was a presumptive reversioner, and must have intended the legal consequences of his acts. We must, therefore, hold, to adopt the language of their Lordships of the Privy Council in Hari Kishen Bhagat v. Kashi Parshad Singh 27 Ind. Cas. 674 : 17 M.L.T. 115 : 17 Bom. L.R. 426, that the evidence is such as to 'establish that upon an intelligent understanding of the nature of his dealings plaintiff, concurred in binding his interests as reversioner'.
We hold that the consent is proved and the plaintiff is thus estopped from disputing the, validity of the alienation under Exhibit A.
5. In this view, we think it unnecessary to deal with the other two points raised in appeal. The appeal is allowed with costs both here and in the lower Appellate Court the District Munsif's decree restored.
6. I agree.