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Kattamoody Raghupathy Vs. Kattamoody Kannamma and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtChennai
Decided On
Judge
Reported in16Ind.Cas.710; (1912)23MLJ363
AppellantKattamoody Raghupathy
RespondentKattamoody Kannamma and ors.
Cases ReferredMarudamuthu Nadan v. Srinivasa Pillay
Excerpt:
hindu law - relinquishment of property to widow by, reversioner--consideration--reversioner's assent to alienations by widow--right of reversioner to subsequently question widow's alienation--estoppel. - .....receiving consideration and by an instrument, properly worded and executed in favour of the widow, consenting to her acquiring the said absolute estate without all the above circumlocution? i think such distinctions merely give rise to unnecessary litigation, and ingenious, involved argument, and they seam to my mind, not based on really sound principles of law.7. on the above grounds, i would also dismiss the second appeal with costs.sundara aiyar, j.8. with regard to the distinction between an alienation supported by consideration and a gift, i prefer not to decide that point, as the learned vakil for the appellant did not really contend that there would be any difference between the two, except with reference to questions arising under section 41 of the transfer of property.....
Judgment:

Sundara Aiyar, J.

1. The subject-matter of this suit is a house. One Venkatrayudu left a widow, Seethamma. She adopted; one Madhavarayudu, the 1st defendant in this suit, Venkatrayudu's reversioner according to Hindu Law was the plaintiff. He instituted a suit to set aside the adoption of Madhavarayudu That suit succeeded. After the termination of the suit, two documents came in existence. One of them is Exhibit D, and the other is Exhibit E. Exhibit D was executed by the plaintiff in favour of the widow. According to that document, he received Rs. 400 from the widow, and then the document states: 'I have relinquished my reversionary right and claim in the said property (i.e., the property of Venkatrayudu). Therefore, you shall enjoy the said property with power to dispose of the same by means of gift or sale; but neither I nor my heirs shall have anything whatever to do therewith.' This document was executed on the 1st May 1896. On the 19th of the same month, the widow Seethamma executed a deed of settlement in favour of the 1st defendant, Madhavarayudu, whereby she settled on him certain cultivated land and the house in question in the suit. There was subsequent litigation between the parties. The plaintiff had executed mortgages in 1892 of his right in Venkatrayudu's property which was then only a reversionary interest. The mortgagee obtained decrees and purchased the properties mortgaged which, however, did not include the house in dispute. He also attached the house as property belonging to the plaintiff whose right had then ripened into an interest in possession, the widow having died previously. The question arose, whether the relinquishment deed, Exhibit D, would vest the property relinquished by the plaintiff in the widow, so as to make it impossible for the creditor to attach it as the plaintiff's property after the widow's death. This Court in second appeal held that, as regards the creditor, the right to the property was in the reversioner, notwithstanding the relinquishment deed. See Narasimham v. Madhavarayudu 13 M.L.J. 323. In that judgment, any question between the reversioner and the transferee from the widow, that is, Madhavarayudu, was reserved. The learned Judges observed: 'No question arises in this case as between, the reversioners, who purported to make a transfer and the transferee.' The plaintiff in that suit was the transferee and the 1st defendant there was the creditor. The 2nd defendant was the plaintiff. Any question between the plaintiff and the 2nd defendant there was expressly left undisposed of. That is the question which now arises for decision.

2. Shortly put, the question is whether the plaintiff is estopped, by reason of Exhibit D, from disputing the alienation in favour of the defendant, Madhavarayudu, made by the widow. The District Munsif held he was not; the District Judge held that he was. Now it is settled law that if a reversioner for consideration assents to an alienation made by a widow or ratifies it subsequently, he would be estopped from disputing the alienation. In this case it is quite clear that there was no specific assent to this particular alienation. The question is, was there an assent in such shape as would furnish the 1st defendant with a plea of estoppel? It is to my mind, quite clear that if a reversioner for consideration gives general consent to a widow to alienate and says that she might make any alienation that she pleases, it would estop him with respect to any alienation made by her, The language here in Exhibit D, does not specifically refer to any alienations contemplated by the widow. The provision is, 'therefore, you shall enjoy the said property with power to dispose of the same by means of gift or sale.' In other words, an absolute estate with powers of alienation was to vest in the widow. The words themselves cannot be said to refer to any contemplated alienation at all, but only describe the estate which was to vest in the widow. But, in the circumstances of this case, I can entertain no doubt that the object of the deed of relinquishment and of the settlement was to enable the widow to deal with the property in favour of the defendant whose adoption made by her had not been upheld by the Courts. It is quite true, as stated by Mr. Narayana Rao, that in the lower Courts, it was not contended that Exhibits D and E were parts of the same transaction, and that Exhibit D was executed with a view to enable the widow to Settle her property on the defendant. But it is impossible for me to entertain any doubt that it must have been so. The circumstances put it beyond any doubt. It is doubtful whether it would not be sufficient, for purposes of estoppel, for a reversioner to empower the widow to enjoy the property as her absolute property with powers of alienation. I am by no means clear that it should not be held that in such a case he practically gives consent to any alienation that she may make, although the terms of the document may not show that any alienations are actually contemplated. I do not, however, rest my judgment on this ground, and I would prefar to reserve myself the right to consider the question again when it should arise for decision. I rest my judgment on the ground that Exhibit D must have been executed with a view to enable the widow to make provision for Madhavarayudu, and that the plaintiff did assent to any alienation which the widow might make in his favour. In the Pull Bench case Rangappa Naik v. Kamti Naik 31 M.K 366 : 18 M.L.J. 309 : 3 M.L.T. 355 the assent by the reversioner has to any alienations that the widow might make and not to the particular alienation which was contemplated. All the learned Judges who took part in that judgment were of opinion that for purposes of estoppel that was sufficient. I think the principle of that case applies and the plaintiff must be held to be estopped.

3. I should refer to an argument of the learned Vakil for the appellant, that it should not be assumed in this case that the plaintiff received consideration for executing the relinquishment. The document says he did receive it; a note made by the Sub-Registrar, shows that it was paid before him. Plaintiff, no doubt, denied it in his plaint. An issue was framed, on the question, but plaintiff did not adduce any evidence to support his allegation. It does not appear that the parties had not an opportunity of adducing any oral evidence that they might choose. The Munsif says that the matters in dispute were put so clearly in the course of previous litigations that neither party adduced oral evidence. I am not able to say that any-thing said or done by the District Munsif induced the plaintiff to abstain from adducing any evidence that he could. I must, there fore, proceed on the footing that he did receive consideration. The Munsif, in fact, says in his judgment that he did receive ifc and no objection has been raised in the memo, of second appeal to the assumption that the plaintiff did receive the sum of Rs. 400 in consideration of executing Exhibit D. I am, therefore, of opinion that the second appeal must be dismissed with costs.

Sapasiva Aiyar, J.

4. In this second appeal, I am inclined to base my judgment on the conclusion that I have arrived at purely on the questions of law which have been argued before us. The law as to the validity of alienations made by a widow of property, which she inherits from her husband with the consent of the reversioners, has given rise to much difference of judicial opinion for a long time past. In Rangappa Naik v. Kamti Naik 31 M.K 366 : 18 M.L.J. 309 : 3 M.L.T. 355 the learned Chief Justice says, at page 371, that there may be a difficulty in reconciling the statement of the law by the Privy Council in several earlier cases with their statement of the law in Bajrangi Singh v. Manokarnika Bakhsh Singh 30 A.P 1 : 17 M.L.J. 605 : 12 C.W.N. 74 : 9 Bom. L.R. 1348 : 6 C.L.J. 766 : 5 A.L.J. 1 : 3 M.L.T. 1 : 35 I.A. 1. But, as he says, we are bound by the last pronouncement of the Privy Council upon this question. Now, after having considered the last pronouncement of the Privy Council and having considered also the decisions in Rangappa Naik v. Kamti Naik 31 M.K 366 : 18 M.L.J. 309 : 3 M.L.T. 355 and Kuppier alias Venkatasubbier v. Kotta Chinnaramier (1912) 1 M.W.N. 758 : 16 Ind. Cas. 493 I have come to the following clear conclusions on the questions of law which have been argued in this case. I agree with the learned Judges who decided the case of Kuppier alias Venkatasubbier v. Kotta Chinnaramaier (1912) 1 M.W.N. 758 : 16 Ind. Cas. 493 that the Privy Council never intended to make any distinction between alienations made by the widow for consideration and alienations made by the widow without consideration. I agree with these learned Judges (Abdur Rahim and Ayling, JJ.) that such a distinction is not warranted by the decision of the above Privy Council case of Bajrangi Singh v. Manokarnika Bakhsh Singh 30 A.P 1 : 17 M.L.J. 605 : 12 C.W.N. 74 : 9 Bom. L.R. 1348 : 6 C.L.J. 766 : 5 A.L.J. 1 : 3 M.L.T. 1 : 35 I.A. 1 and I, therefore, respectfully dissent, like them, from the case of Pilu v. Babaji 34 B.K 165 : 11 Bom. L.R. 1291 : 4 Ind. Cas. 584 which draws such a distinction and from some of the observations in the judgments in Rangappa Naik v. Kamti Naik 31 M.K 366 : 18 M.L.J. 309 : 3 M.L.T. 355 to a similar effect.

5. I am also clear that the distinction sought to be made between the consent given by the reversioner to the alienation of part, of the estate and the consent given by him to the alienation of the whole estate, is also not warranted by the Privy Council decision.

6. I agree with Wallis, J.(page 376) in Rangappa Naik v. Kamti Naik 31 M.P 366 : 18 M.L.J. 309 : 3 M.L.T. 355 that the effect of the decision of the Privy Council in Bajrangi Singh v. Manokarnika Bakhsh Singh 30 A.K 1 : 17 M.L.J. 605 : 12 C.W.N. 74 : 9 Bom. L.R. 1348 : 6 C.L.J. 766 : 5 A.L.J. 1 : 3 M.L.T. 1 : 35 I.A. 1 is to overrule the Full Bench decision in Marudamuthu Nadan v. Srinivasa Pillay 21 M.K 128 : 8 M.L.J. 69 and to lay down that even partial alienations by a widow ate valid when made with the consent of the next reversioners. I agree further with the learned Chief Justice and Wallis, J., in the same case, that consent to future alienations must stand on the same footing as consent to, or ratification of, past alienations. Again, the distinction sought to be made between a consent given by the next reversioner to alienations made by the widow to third persons and a giving by the reversioner to the widow herself an absolute estate in the property, is a distinction which does not appeal to my mind as a sound distinction which can be supported on a proper legal basis. If the reversioner can consent to an alienation by the widow to a third person so as to give an absolute estate in the alienated property to that third person,. I do not see any principle of law which could be invoked for holding that the widow herself could not be given the same absolute estate by the reversioner's consent. Supposing the widow relinquishes the property to the reversioner by a proper instrument, and he On the same day by the same instrument or by another contemporaneous instrument sells back the property to the widow for consideration, conveying to her the absolute estate, which he himself got by her relinquishment, she could, of course, so surrender the property to the reversioner as to invest him with an absolute estate though she herself had only a widow's estate. If she could do so and if he could; at the same time give her an absolute estate by an instrument of the same date, what is there, in common sense, to prevent the same effect being produced by the reversioner receiving consideration and by an instrument, properly worded and executed in favour of the widow, consenting to her acquiring the said absolute estate without all the above circumlocution? I think such distinctions merely give rise to unnecessary litigation, and ingenious, involved argument, and they seam to my mind, not based on really sound principles of law.

7. On the above grounds, I would also dismiss the second appeal with costs.

Sundara Aiyar, J.

8. With regard to the distinction between an alienation supported by consideration and a gift, I prefer not to decide that point, as the learned Vakil for the appellant did not really contend that there would be any difference between the two, except with reference to questions arising under Section 41 of the Transfer of Property Act. I may state, however, that my present inclination is to adopt the same view as my learned brother and Abdur Rahim and Ayling, JJ., have taken.


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