Case: Mummareddi Nagi Reddi And Others Vs. Pitti Durairaja Naidu And Others

1. This appeal is directed against an appellate judgment of a Division Bench of the Madras High Court dated 12-1-1948, reversing in part, a decision of the Subordinate Judge of Nellore passed in O. S. No. 3 of 1940.To appreciate the material facts of the case and the controversy that now centres between the parties, it would be convenient to refer to a short genealogy which is givenThe properties in dispute which are described in Sch A to the plaint admittedly belonged to one Narayanappa who was the father of the paternal grandmother of the plaintiffs. Narayanappa died intestate sometime before 1884 leaving him surviving his wife Chanchamma and a daughter named Venkata Narasamma. Narasamma was married to one Pitti Rangayya and they had a son named Venkatadri, who was the father of the plaintiffs. Chanchamma died in March, 1938 and the plaintiffs aver that they being the heritable bandhus of Narayanappa as the daughters sons sons of the latter and there being no nearer heir in existence, they became entitled to all the properties left by Narayanappa on the death of his widow. It appears that on 22-2-1894 Chanchamma executed, what has been described as a deed of release, in favour of her daughter Narasamma and her son-in-law Pitti Rangayya, under which the entire estate of Narayanappa came into the possession of the latter. After the execution of this document, the daughter and son-in-law of Chanchamma began to deal with the properties left by Narayanappa as their own and entered into various transactions on that footing:Pitti Rangayya died in 1914 and Narasamma followed him in 1926. There are six items of property comprised in Sch. A to the plaint. Of these items, 4 and 5 were sold by Venkata Narasamma along with her son, the father of the plaintiffs, on 9-7-1922 to defendant 5 and the father of defendants 6 to 9 for a sum of Rs. 6,500 Again, on 26-10-1929, when both Narasamma and the plaintiffs father were dead, item I of Sch. A was sold by the mother of the plaintiffs as their guardian to defendant 1 for a consideration of Rs. 33,000. Defendants 2 and 3 are the undivided sons ofThere are other transfers in favour of other defendants in the suit but they are not the subject matter of the appeal before us.The plaintiffs allegations in substance are that these alienations are not binding of them as the so-called deed of release executed by the widow could not and did not operate as a deed of surrender and any transfer effected on the strength of this deed by Venkata Narasamma or her son, Venkatadri or even on behalf of the plaintiffs by their mother as guardian, could not be operative after the death of the widow. As these transfers were made during the life-time of Chanchamma and without any legal necessity, the plaintiffs as actual reversioners were not bound by them and they are entitled to recover possession of the properties by evicting the transferees. It was for the recovery of possession of these properties that the present suit was brought and there was a claim for mesne profits as well from the date of the widows death to the date of delivery of possession.The defence of the defendants who are interested in the properties mentioned above, were really of a three-hold character. It was contended in the first place that the plaintiffs were not the next reversionary heirs of Narayanappa and consequently were not entitled to succeed to the estate of the latter on the death of the widow. The second contention was that the deed of release operated as a surrender of the widows estate in favour of the daughter who was the next reversioner and although by such a surrender the daughter could get only a limited estate which she would have been entitled to on the death of the widow, yet as the daughter died in1926, the present suit which was instituted more than 12 years after the date of death, was barred by limitation. The third plea was that in any event, these alienations could not stand as they were not justified by any legal necessity.6. The learned Subordinate Judge who heard the suit decided it adversely to the plaintiffs. It was held first of all that though the plaintiffs were the heritable bandhus of Narayanappa, the evidence adduced by them fell short of establishing that there were no agnatic relations or nearer heir in existence. As regards the document of release (Ex. P-6), executed by the widow in favour of her daughter and son-in-law, the subordinate Judge came to the conclusion that the deed operated as a surrender of the widows estate and as the daughter died in 1926, the plaintiffs suit was barred by limitation. On the question of legal necessity, the finding recorded by the sub-ordinate Judge was that, the sale-deed (Ex. D-1) executed in favour of defendant 1 was supported by legal necessity to the extent of Rs. 5,061 and odd annas and that the other document under which defendants 5 to 9 claimed title was not binding on the estate at all. In the result, the plaintiffs suit was dismissed in its entirety.Against this decision, the plaintiffs took an appeal to the High Court of Madras and the appeal was heard by a Division Bench consisting of Gentle C. J. and Satyanarayana Rao. J. The learned Judges allowed the appeal in regard to the items of property mentioned above and reversed the decision of the trial Judge to that extent. It was held that the plaintiffs were the nearest reversionary heirs of Narayanappa and that the deed of release did not operate as a surrender of the widows estate. The plaintiffs were given a decree for possession in respect of item 1 of the schedule properties as against defendants 2 and 3 on condition of their depositing into Court the sum of Rs. 5,061, and odd annas, that being the amount of debt legally binding on the estate which was discharged out of the sale proceeds of the transfer, and there was a further direction to pay interest upon this amount at the rate of six per cent per annum from certain specified dates up to the date of making the deposit.It may be noted here that defendant 1 died after the trial Courts decree and his interest passed by survivorship to defendants 2 and 3, who are his undivided sons. As against defendants 5 to 9, there was an unconditional decree for recovery of possession in respect of items 4 and 5 of Sch. A. The plaintiffs were further given a decree for mesne profits both past and future, commencing from the date of the widows death down to the date of delivery of possession, and the amount of mesne profits was directed to be ascertained in a separate proceeding under O. 20, R. 12 Civil P. C. It is against this decision that the present appeal has been preferred by defendants 2, 3 and 5 to 9.

Reasoning:
If the document could be read and interpreted that way, obviously the decision should be in favour of the appellants: but, in our opinion, there seem to be difficulties and those of an insuperable character in the way of construing the document being interpreted as such. Neither in form nor in substance does the document purport to be a relinquishment of the entire widows estate in favour of the daughter alone, nor is there any indication that the interest intended to be given to the son-in-law was being received by him by way of transfer from the daughter. The document is not one executed by the widow and her daughter jointly in favour of the son-in-law containing a recital of relinquishment of the estate by the widow in favour of the daughter and transferring a portion of the same to the son in law. The daughter does not figure as an executant of the deed nor even as an attesting witness. She is the recipient of the deed along with her husband and it is impossible to spell out of the document either that she received the entire estate on renunciation by her mother or transferred or even consented to transfer a portion of it to her husband.The present case obviously does not come within the purview of the doctrine laid down in Nobokishore v. Harinath, 10 Cal. 1102   (F. B.), which presupposes an alienation of the entire property in favour of a stranger to which the immediate reversioner was a consenting party. Here it cannot be said that the entire interest was transferred to the son in law of the widow with the consent either daughter. The interest transferred was a fraction of the interest held by the widow and strictly speaking, there was no consent expressed by the daughter. She was a sort of a co-assignee with her husband. Mr. Aiyar contends that her consent was implied by her accepting the deed and joining in several subsequent transactions on the basis of the same, and once this consent is established, we can import the fiction of surrender in her favour of the entire estate, and if that fiction could be invoked it would be only a logical extension of the principle in Nobikishores case, to hold that a part transfer in favour of a stranger could also be validated on the theory of surrender. We are unable to accept this chain of reasoning as sound. As stated above, it would be most improper to extend the doctrine in Nobokishore case, which is not itself based on sound legal principles to what Mr. Aiyar calls, its logical consequence. We cannot invoke the fiction of surrender in a case like this when the renunciation, if any, was of a part of the estate; and the attempt to validate a part alienation by the widow in favour of a stranger on the basis of the doctrine of surrender, simply because the reversioner has impliedly assented to it is, in our opinion, absolutelydo not know what the contents of the document in the case actually were, nor whether the husbands brother joined in the execution of the document. Be that what it may, we cannot for the reasons already discussed accept the view that a transfer made by a widow of her entire estate in favour of the nearest reversioner and an outsider jointly would operate as a surrender of the whole estate to the immediate reversioner and a transfer of a half share in it to the stranger. This, of course, is subject to any rule of estoppel that may on proper materials be urged against the presumptive reversioner.Of the other case which is to be found reported inBala Dhondi v. Baya Bhagwant, 60 Bom. 211  , the facts are somewhat similar to those in the present case, but the actual decision does not assist the appellants. There a Hindu widow made a gift of the entire estate of her husband in favour of her daughter and her husband jointly, the daughter being the next heir at that time. The lower appellate Court held that the gift was a valid surrender, but this decision was reversed by the High Court on appeal and it was held that the transaction was not valid in law inasmuch as it was not a gift in favour of the daughter alone but in favour of her son-in-law as well who was to take jointly with the daughter. It was further held that the daughter being a minor, was not competent to consent to the gift in favour of her husband. It is true that there is no question of minority in the present case, but the decision certainly is no authority on the point which we are called upon to decide. In our opinion, the view taken by the High Court in regard to the legal effect of the document (Ex. P-6) is the correct one and the first contention raised by Mr. Rajah Aiyar should thereforereversioners suit for recovery of possession of the property alienated by a widow, it is well settled, is governed by Art. 141 Limitation Act, and as it is not necessary that the transfer should be set aside before any decree for possession is made, all that is necessary is that the reversioner should file a suit for possession within 12 years from the death of the widow and a decree passed in such a suit must be on the basis that the possession of the transferee was unlawful ever since the widow died. This being the position we think that it is quite proper to allow the reversioner mesne profits against the alience from the date of the widows death. There is no rule of law that no mesne profits can be allowed in a case where the alienation cannot be described as absolutely void. The decisions of the Judicial Committee in Bhagwat Dayal v. Debi Dayal,35 Ind App 48, P. C. and Satgur Prasad v. Harnarain Singh,59 Ind App. 147 P. C. may be cited as illustrations where mesne profits were allowed in transactions which were onlythink further that there is a difference between the alienee of a widow and the transferee of joint property from a Mitakshara father. A son of a Mitakshara father is bound to set aside an alienation made by the father within the period laid down in Art. 125, Indian Limitation Act, and it is only on the alienation being set aside that he is entitled to recover possession of the property. The High Court, in our opinion, was perfectly right in holding that the decision in Banwarilal v. Mahesh,41 ALL, 63 which related to a suit instituted by a son against an alienee of the father under the Mitakshara law does not apply to the facts of the present case. It is true that as regards defendants 2 and 3 the decree is a conditional decree and the plaintiff cannot recover possession unless he pays a certain amount of money to the extent of which the widows estate has been held to be benefited, but the High Court has very properly allowed interest upon this amount to the alienee while making the latter liable for the mesne profits.