1. The plaintiff filed this suit to recover certain properties on the footing that they belong to the estate of Thiruvengadam Chetti, who died leaving a widow, a daughter and a daughter's son and on the death of the widow, and the daughter in 1908 and 1909 respectively the properties descended to the daughter's son and the plaintiff purchased the interest of the daughter's son by a sale-deed in 1920. The defendants Nos. 2, 3 and 4 are purchasers of the three items of property, (which are the subject of the suit) in execution of a decree obtained against the widow and a nephew of Thimvengadam Chetti. The learned trial Judge dismissed the suit and the plaintiff appeals.
2. Thiruvengadam was originally an inhabitant of Wallajapet; afterwards he removed to Madras and carried on business. He died in 1894. At the time of his death he had also a nephew named Ranganatha Chetti and a kararnama was entered into between the widow Anandammal and the daughter Ammakannu on the one side and the nephew Ranganatham on the other. This is Ex. K. Under the kararnama the widow and the daughter got three fifth of the properties of Thiruvengadam and Ranganatham got the other two-fifths and they continued to carry on the business of Thiruvengadam. In 1899 the widow and the nephew executed a promissory-note in favour of one Vasa Balayya Chetti also depositing title deeds as security. A suit was filed on this promissory-note, Order 8. No. 43 of 1903 to recover the money due to Balayya Chetti. In that suit Anandammal raised the question that the mortgage by deposit pf title-deeds was invalid as the widow and the nephew were acting as administratrix and administrator respectively of the estate of Thiruvengadam and did not obtain the permission of the Court for mortgaging the property. The learned Judge who tried the suit said: 'The objection now raised is immaterial in so far as the present suit is concerned.' He decreed the suit. In execution of the decree the three items of property which are now the subject of this suit were sold and were respectively purchased by defendants Nos. 2, 3 and 4. Sometime after, that is, in 1904, the daughter Ammakannu filed a suit O.S. No. 86 of 1901, in respect of the three fifths that fell to the share of the widow questioning the validity, of the mortgage and contending that the sales in execution of the decree were not binding on her. She accepted the validity of the kararnama and did not raise any question as to the title of Ranganatham to the other two-fifths, so that that suit was confined only to three-fifths of the property. In para. 14 of her plaint she again raised the question that, as the widow and the nephew were acting as administratrix and administrator respectively of the said estate, the mortgage of the immoveable property was invalid and not binding. That suit had a prolonged history. It was dismissed on a preliminary point by Mr. Justice Moore. His finding was set aside on appeal to a Division Bench and the suit was remanded for fresh disposal. The suit was then dismissed by Mr. Justice Boddam on the ground that the plaintiff had no interest which would entitle her to the declaration claimed. There was another appeal which was disposed of by White, C.J., and Wallis, J., in which they found that the debt contracted by the widow and nephew was for purposes binding on the estate and on this ground they dismissed the daughter's suit. This last judgment made no reference to the point raised by the daughter in para. 14 of her plaint, namely, that the widow and the nephew were acting as administratrix and administrator and did not obtain the leave of the Court to effect the mortgage.
3. Two points are now argued before us by the learned Vakil for the appellant; first, that the two-fifths of the property allotted to Ranganatham Chetti continued to belong to the estate of Thiruvengadam, that Ex. K, the kararnama amounts to an alienation by the widow and is, therefore, not binding on the reversioner through whom the plaintiff claims. Secondly, so far as the three fifths share allotted to Anandammal and her daughter is concerned, the mortgage is not binding on the plaintiff.
4. Taking the first point, we are inclined to agree with the Trial Judge as to the events that took place at the time of Ex. K. It is true that the evidence is somewhat meagre. All the persons concerned in the transaction are now dead. Exhibit K refers to an oral Will of Thiruvengadam and purports to distribute the properties on the footing of that oral Will. Now an oral Will dealing with the immoveable property situated in the City of Madras is void and of no effect. The parties were being helped by one Mr. M. Krishnamachari, a leading practitioner in the High Court and it looks unlikely that, if there was any oral Will, its invalidity was overlooked. The widow must have put forward a claim to the whole property on the ground that it was the separate property of Thiruvengadam. The nephew Ranganatham must have put forward a claim to the property on the footing that it was joint family property and it had survived to him. The plaintiff's witness Jamal Mohideen with whom Thiruvengadam carried on a partnership business eays. 'I negotiated and made an arrangement between them as regards their shares as stated above.' Unless there is some dispute or some doubt as to the respective interests of Ranganatham and Ananuammal, there is nothing to negotiate and nothing to settle. All the probabilities point to some dispute between the widow and the nephew. Probably there is no oral Will in the sense of an actual disposition by Thiruvengadam of the properties. As the learned Judge puts it, they were merely his wishes. He probably communicated his wishes as to the way in which the widow and the nephew might participate in the properties after his death so as to avoid all disputes. But whether there was some expression of wishes by the deceased or not, it is clear that the parties settled their disputes with the advice of Mr. Krishnamachari and Jamal Mohideen in the way now shown by Ex. K. If so it was a bona fide family arrangement of a dispute or doubtful claim and binds both the parties. Mr. Venkatarama Ayyar arguing for the appellant relied on Himmat Bahadur v. Dhanpat Rai 35 Ind. Cas. 148 and Anup Narain Singh v. Mahabir Prasad Singh 42 Ind. Cas. 95. The learned Judge in those cases found that there was really no bona fide dispute and there was no reasonable basis for the claims put forward in those cases. The facts in this case show that there must have been a dispute by Ranganatham raised at the time of Thiruvengadam's death. The result is, according to the decision of the Privy Council in Khunni Lal v. Gobind Krishna Narain 10 Ind. Cas. 477 the parties to the kararnama take their interests in accordance with the antecedent title put forward by them, that is, Ranganatham gets two-fifths of the property as his own, devolving on him by survivorship and the widow and daughter get an estate of inheritance in the other three-fifths of the property. The result is the plaintiff's claim to two fifths of the property allotted to Ranganatham fails and the first point must be decided against the appellant.
5. The second point relates to the other three-fifths share allotted to the widow and the daughter. The learned Judge held that the decision in Order 8. No. 86 of 1904 (the daughter's suit) that the mortgage was binding on the estate, being made for necessity is res judicata: This ground is not seriously challenged before us. It was raised by the daughter. The daughter certainly represented the estate, because she was suing as the Ye version or and there is nothing peculiar in her contentions which were special to her as a daughter and which were not equally available to a male reversioner finally succeeding to the estate. Therefore, whether the decision is erroneous or correct, that judgment is binding upon the present plaintiff. But a second ground is raised by the learned Vakil for the appellant and it is this. Anandammal and Ranganatham in contracting the mortgage debt were acting as administratrix and administrators respectively and under Section 90 of the Probate and Administration Act, they ought to have obtained the leave of the Court and without such leave the mortgage is void and does not bind the interest of any other person interested in the property. This ground though raised in the daughter's suit in para. 14 of her plaint was never fairly put at the trial of the suit and was never dealt with by the Judges who finally disposed of the case. Explanation 4 to Section 11 of the C.P.C does not apply to a case in which the res judicata does not depend on the application of Section 11 but on a different principle and Mr. Venkatarama Iyer argues that, where a Hindu widow or daughter is litigating on behalf of the estate a reversioner is bound by that decision not by a strict application of Section 11 but by a wide application of the principle of res judicata. He relies on Risal Singh v. Balwant Singh 43 Ind. Cas. 553 : (1919) M.W.N. 155 : 21 Bom. L.E. 511 in which it is said that it is not strictly res judicata falling under Section 11. But it is not necessary to deal with this question. This ground of attack on the validity of the mortgage and the sales that followed the decree in O.S. No. 43 of 1903 was not mentioned in the plaint. The written statements were naturally silent. It is not referred to in the issues nor was the point raised before the learned Judge who tried the suit. The only reference to the character of the widow and Ranganatham of administratrix and administrator before the learned Judge was made for a different purpose, namely that they and those who claim through them were estopped, from setting up the independent title of Ranganatham, having taken Letters of Administration to the whole of the properties on the footing that all the properties belonged to, Thiruvengadam only. The learned Judge disallowed the plea. The present point was taken for the first time in the grounds of appeal to this Court. An effectual decision of this point involves the question when the administration was closed and whether Anandammal and Ranganatham were acting as heirs or as administrator in contracting the debt from Balayya Chetti. This is a question of fast and to decide the question it will be necessary to send the case back. It is said that the undisputed facts of the case show that they must have acted a3 administrator and administratrix. We do not think so. The point was raised by Anandammal in the first suit on the mortgage but it was not decided by the learned Judge who dealt with the suit. Because Anandammal raised the point it does not follow that the fact alleged was true. There is nothing to show in any of the latter proceedings that the debt was contracted in that capacity. The plaint in O.S. No. 43 of 1903 does not show that the defendants in that suit were impleaded in the capacity of administrator and administratrix and it cannot be said that either the decree that followed or the sale proceedings that were held in execution of the decree were taken against the defendants in the capacity of administrator and administratrix. The result is that the appellant cannot be allowed to take this point now and on this ground the second point must be decided against the appellant. The result is the appeal fails and must be dismissed with costs in three separate sets for the respondents proportionate to the value of the property held by them.