Biliga Laxminarayana Rao and Another vs A.P. Fernandes and Others

Ramaswami Gounder, J.—A. S. No. 444 of 1951 arises out of a suit O. S. No. 48 of 1950, filed in the Additional Sub Court, South

Kanara, and the other appeal, A. S. No. 144 of 1932, arises out of another suit, O. S. No. 172 of 1947, filed in the same Court. Both the appeals

are preferred by the plaintiffs. The first three of the sis plaintiffs in O. S. No. 172 of 1947 were the plaintiffs in O. S. No. 48 of 1950.

Both the suits were filed to recover possession of the plaint-schedule properties together with mesne profits. The suit properties and other

properties originally belonged to the family of one Somayya Karnika who had two wives. By the first wife, he had four sous, of whom the youngest

was one Bha-vani Rao, and who died, leaving a son by name Somayya. That son Somayya also died in January 1892, leaving a widow, by name

Lakshmi Aroma.

By the second wife, the said Somayya Karnika had three sons, one of whom was Ranga Rao. He died, leaving a son, by name Subba Rao, and

the latter died, leaving five sons, Krishna Rao, Rauga Rao and plaintiffs 1 to 3 in both the suits; and Krishna Rao''s sons are plaintiffs 4, 5 and 6 in

O. S. No. 172 of 1947. When this family remained joint. Bhavani Rao''s son, Somayya, who was then entitled to 1/4th share in the family

properties, conveyed his share under the sale deed, Ex. A-1, in favour of his father-in-law, another Somayya Karnika, for Rs. 9,750/-.

On the basis of that sale deed, the said Somayya Karnika as well as his son-in-law, Somayya, filed a Suit, O. S. No. 1G of 1887, for partition and

separate possession of that share, as against the other members of the family; and that suit resulted in a compromise decree, Ex. A-2, dated 4-10-

1887. In accordance with the final decree passed in that Suit, the 1/4th share was allocated and delivered possession of to Somayya Karnika.

Subsequently, in 1891 and 1893, under two sale-deeds, Exs. A-3 and A-4, Somayya Karnika conveyed in favour of his daughter, Lakshmi

Amma, all the properties which he got under the partition decree. Subsequently, Somayya Karnika died in 1893, leaving a will, by which he

bequeathed all his properties to his daughter, Lakshmi Amma. She was thus in possession of these properties which pertained to the share of her

husband, Somayya, but which he sold in favour of his father-in-law, Somayya Karnika, who obtained possession thereof under the partition decree

in O. S. No. 16 of 1887.

While Lakshmi Amma was thus in possession of the properties pertaining to her husband''s 1/4th share, but which she got from her father under

the sale-deeds, Exs. A-3 and A-4, she alienated the properties comprised in both the present suits. Under Ex. B-6, dated 12-7-1906, she

alienated all the 26 items comprised in O. S. No. 172 of 1947 for Rs. 1,150/- in favour of one Subbayya Shetty as the yajaman of an

aliyasanthana kutumba.

The members of that family, on his death, are now represented by defendants 1 to 9 in that suit, and defendants 10 to 17 are persons said to be in

possession of those properties as the mulgeni tenants of defendants 1 to y. As regards the properties comprised in O. S. No. 48 of 1950, Lakshmi

Amma sold item 1 to one Devappa for Rs. 260/- under the sale deed, Ex. A-5, dated 20-11-1903, and the first defendant in that suit is said to be

the auction-purchaser of that item.

As regards item 2, the said Lakshmi Amma conveyed the mulgeni rights therein under Ex. A-8, dated 15-8-1913, to one Damodata Bhatta, the

father of defendants 6 and 7 in that suit, defendants 2 to 4 being alienees of that item. As regards item 3 of that suit, the mulgeni rights therein were

conveyed by Lakshmi Amma in favour of defendant 5 in that suit. It is common ground that all those alienees are in possession of the various suit

items as purchasers since the date of their respective purchases.

Subba Rao, the son of Kanga Rao and the father of the present plaintiffs 1 to 3, as one of the reveisioners to the estate of Lakshmi Amma''s

husband, Somayya, filed a suit, O. S. No. 2 of 1911, for a declaration that the Sales under Exs. A-3 and A-4 in favour of Lakshmi Amma by her

father were benami for her husband and that the alienations made by her were not supported by consideration, and therefore, not binding on the

estate.

That suit had a protracted course which it is unnecessary to trace, and ultimately, the trial court granted a declaration on 10-9-1917, as shown by

Exs. A-9 and A-10, that the transactions covered by Exs. A-1, A-3 and A-4 were benami for and for the benefit of Lakshmi Amma''s husband,

Somayya, and that she, as a widow, had only a limited estate and no absolute title, and that the alienations were not binding on the estate.

As against that decree and judgment, there were two appeals preferred to this Court, one by the widow and another by one of the alienees. The

widow''s appeal was dismissed, confirming the find-ings of the trial court; but the other appeal was allowed on the ground that the alienee was a

bona fide purchaser for value u/s 41 of the Transfer of Property Act. Thus, that litigation terminated in this Court in February, 1919. About three

years later, on 29-6-1922, the widow, Lakshmi Amma, executed a deed of surrender, Ex. A-14, in favour of the said Subba Rao, the plaintiff in

that litigation and the father of the present plaintiffs 1 to 3, of all her rights in the properties, together with the right to recover them from the alienees

after her death. Thereafter, in 1937, Subba Rao took a sale deed from one Huchuraya, the sister''s son of the propo-situs Somayya, as he claimed

to be the nearest re-versioner, and that sale deed in Ex. A-17 dated 4-12-1937. There was a partition of the properties as amongst Subba Rao

and his Sons and grandsons under the partition deed, Ex. A-16, in 1934.

Thus, relying on the decree in O. S. No. 2 of 1911 obtained by their father, Subba Hao, against the alienees, the plaintiffs filed the present suits

to recover possession of the properties from them, as having become entitled to the properties by reason of the death of the widow, Lakshmi

Amma, which took place on 27-11-1934. It will be seen that both the suits were filed within 12 years from the date of her death, though one of the

suits, O. S. No. 172 of 1947, was re-prcsentcd in the Court having jurisdiction only on 28-10-1947, for which exemption was, claimed u/s 14 of

the Limitation Act.

The learned Subordinate Judge who tried these suits dismissed them, holding (1) that the original sale under Ex. A-1 in favour of Somayya Kar-

nika was a real transaction and did not afford any suspicion whatsoever and that it was not open to the plaintiffs to contend that it was a benami

transaction and should not be given effect to, (2) that Lakshmi Amma had an absolute right by virtue of the sale-deeds, Exs. A-3_and A-4, (3) that

the purchasers paid consideration without notice of any defect in the tide of the vendor, and (4) that the decree in O. S. No. 2 of 1911 did not

operate as res judicata.

On the question of limitation, following some decisions of our Court, which will be presently referred to, the trial Judge held that it started not from

the date of the surrender but from the date of the death of the widow, even if it were held that Lakshmi Amma had only a widow''s estate in the

Suit property.

We have not considered it necessary to examine the soundness of the conclusions reached by the learned trial Judge on the merits of the

disputes involved in both the suits as well as on the question of res judicata by reason of the decision in O. S. No. 2 of 1911, for, we are quite

clear that on the question of limitation, having regard to the recent decision of the Supreme Court in Natvarlal Punjabhai and Another Vs.

Dadubhai Manubhai and Others, , we must hold that both the suits are barred by limitation, and on that ground, the suits ought to have been

dismissed by the trial Judge, though he did not dismiss the suits on that ground, but on all other grounds.

On the date when the suits were disposed of by the trial Judge, the Supreme Court had not given its decision, and on the state of Jaw as it then

stood according to the decisions of our High Court, the learned trial Judge was right in his view that the point of limitation started not from the date

of the surrender, but from date of the death of the widow.

As stated above, both the suits were filed in 1946 within 12 years from the death of the widow, which was in November, 1934. But the deed of

surrender, Ex. A-14, was executed by her in June, 1922, and if the limitation started from that date either under Article 141 or 144, both the suits

would be hopelessly barred by limitation.

Till the decision of the Supreme Court was given, the view that prevailed in this Court as a result of a long catena of cases was that the alienation

made by a widow without necessity and therefore not binding on the estate would enure till the full lifetime of the widow and was not affected by

her surrender of the estate in favour of the nearest reversioners. In fact, the original view of our High Court was, as will be found in ''Sreeramulu v.

Krishn-amma, ILR 26 Mad 143 that such alienation was not affected even by an adoption made by the widow. Bashyam Ayyangar J., observed

at page 149:

But if a portion of the inheritance has been lawfully severed therefrom and transferred to a stranger, whether absolutely, as would be the case if

the alienation was for a necessary purpose, or only during the term of her widowhood, as would be the case if the alienation was not for a

necessary purpose the adopted son could on principle, succeed only to the remaining inheritance which was vested in the widow at the time of the

adoption.

But the learned Judge was not prepared to extend that principle to cases where the widowhood terminated by re-marriage. That decision was

followed by a Bench of this Court in Subbamma v. Subrahmanyam, ILR 39 Mad 1035: AIR 1917 Mad 473 , holding that a surrender by a Hindu

widow in favour of the reversioner cannot affect alienations made by her prior to the surrender, and which, though not binding on the reversioners,

were hind-ing on her for her life.

In that case, Sadasiva Ayyar J., reserved his opinion even on the question whether her marriage though it put an end to her widowhood, would

affect the right of the alienee to enjoy the alienated interest during her lifetime. But the earlier decision in ILR 2 Mad 143 was overruled by a Full

Bench in Vaidyanatha Sastri Vs. Savithri Ammal and Others, .

In that case, a Hindu widow alienated certain properties for purposes not binding on the estate, and thereafter, she adopted a son; and it was held

by the Full Bench that the alienation was not binding on the adopted son and that he could sue during the lifetime of the widow to set aside the

alienation and recover the properly so alienated, his cause of action arising from the time of his adoption. But in regard to surrender, this is what

Kumara-swami Sastriar J., observed at page 100 (of ILR Mad): (at p. 480 of AIR):

''''As between the widow, the prior alienee, and the reversioners claiming title under a subsequent surrender, the alienee has a clear equity to retain

possession and the fruits of his purchase till at least the widow dies. But what equity is there in favour of a person who purchases property from a

Hindu widow, knowing that there is absolutely no necessity for the sale and that she has authority to adopt which she could exercise at any time?

Thus, the position was that while the alienee''s rights would be affected by remarriage of the widow or by her making an adoption, such rights

would remain unaffected by surrender. That position has since held the field, and has been only reiterated by subsequent decisions of our court

(vide (Nelakanti) Sundarasiva Row and Others Vs. Ivatury Viyamma and Others, and Vijiaraghava Pillai Vs. Ponnammal and Others, .

In the latter case, it was held that where a Hindu widow made an alienation of her husband''s estate for a purpose not binding on the reversioner,

and subsequently gets remarried, the estate of the alienee terminated on Such remarriage and does not enure for the lifetime of the remarrying

widow; and at page 133 (of Mad LJ); (at p. 121 of AIR), it was observed:

There is no question that, so far as this Court is concerned, it is well settled that a widow cannot alienate her interest in her husband''s estate and

then defeat that alienation by surrendering her interest in the estate to the next reversioner -- ILR 39 Mad 1035: AIR 1917 Mad 473 ILR 48 Mad

933: AIR 1925 Mad 3267 and Singaram Chettiar v. Kalyanasundararn Pillai, `: AIR 1915 Mad 656 (C).

This exception, in cases of surrender, was not confined only to purchasers for consideration, but was extended in favour of transferees under a

gift or gratuitous conveyance executed by the widow (vide Sonai Karuppa Pillai and Another Vs. Irulayee, and a Bench decision of this Court

reported in Arunachala Mooppanar Vs. Arumugha Mooppanar and Others, , to which one of us was a party.

The exception was further extended to cases of persons who had by adverse possession prescribed ior a title against the widow (vide (Venka)

Ramayya Vs. (Venka) Narayya and Others, and in Kora Bala Thripurasundara Rao Vs. Ratala Kotayya, , it was thus observed:

''''There is no difference in principle, in our opinion, between the case of an alienation, and a case where the title of the limited owner became

extinguished by operation of the statute of limitation. By reason of that adverse possession for more than 12 years, the title of the limited owner

became extinguished by virtue of Section 28 of the Limitation Act and the adverse possessor acquires a title good against the limited owner.

By virtue of the surrender, if the surrenderee is not allowed to displace the title of an alienee holding the property under an alienation which was not

for a necessary binding purpose, it stands to reason that on the same analogy, a person who had acquired title by adverse possession must also be

protected.

Thus, on the date when the trial Judge rendered his judgment, the result of the authorities, so far as our Court was concerned, was this. The

rights of a transferee from a widow, the transfer not being one binding on the estate, terminated on the widow remarrying or making an adoption,

but not on her effecting a surrender in favour of the nearest reversioner.

The surrender did not affect the transferee''s interests not only where the transferee was one who had paid consideration but also a transferee

under a gratuitous conveyance or one who had acquired title by adverse possession against the widow. As we seated above, these questions came

up for consideration before the Supreme Court in Natvarlal Punjabhai and Another Vs. Dadubhai Manubhai and Others, , cited above.

In that case, their Lordships were called upon to examine the rights of the reversioners in whose favour a deed oi surrender had been executed by

a Hindu widow to recover possession of the properties belonging to the last mate owner during the lifetime of the widow from persons who

acquired title to the same by adverse possession against the widow.

In the first place, it was contended for the transferees that as the widow''s estate was completely extinguished by adverse possession exercised by

the defendants, she had in fact no interest left in her, which she could make a surrender of in favour of the reversioners. That contention was

overruled with this observation at page 40 (of SCJ): (at p. 66 of AIR):

But the learned counsel for the appellants is not right when he says that as adverse possession extinguished the rights of the widow, no fresh

extinction by an act of surrender was possible. As the rights acquired by adverse possession are available only against the widow and not against

the husband''s heirs, the husband''s estate still remains undestroyed and the widow may withdraw herself from that estate, leaving it open to the re-

versioners to take possession of it at once as heirs of the last male-holder unless there is any other rule of law or equity which prevents them from

doing so. The first branch of the appellants'' contention cannot, therefore, succeed.

The second contention was that in the case of a surrender by a Hindu widow, a person who had, prior to the date of the surrender, acquired

by adverse possession an interest in the widow''s estate, could not he ousted from the possession of the property, so long as the widow remained

alive; and in support of that contention, their learned counsel cited the Madras decisions to which we have already adverted.

Their Lordships analysed the Madras decisions and pointed out that they rested on three grounds. The first was that, an alienation of property by a

Hindu widow in excess of her powers, though not binding on the inheritance, created in the alienee an interest commensurate with the period of her

natural life.

Their Lordships pointed out that there was no warrant in Hindu Law for the proposition that in the case of an alienation by-a Hindu widow of her

husband''s property without any justifying necessity, or in the case of a stranger acquiring title by adverse possession against her, the interest

created is to be deemed to be severed from the inheritance, and if the surrender is made subsequently by the widow, the surrenderee must take it

subject to such prior interest, and held that the first ground was of no substance.

The second ground upon which the Madras decisions were based, as their Lordships pointed out, was that as the widow herself was incapable of

disputing the title of the alienee or of the person who had acquired interest by adverse possession against her, a like disability attached to the

reversioner who could not have obtained the properties by for the surrender.

This ground also was characterised as manifestly untenable, because, though the widow herself may be incapable of derogating from her own

grant, the surrender was not an alienation and the rever-sioner does not derive title from her. The third ground was that the law of surrender being

a Judge-made law, the Courts, in recognising the right of surrender by a Hindu widow, can and ought to impose conditions on the exercise of her

power based on considerations of justice, equity and good conscience, and surrender being purely a voluntary act on the part of the widow, she

could not be allowed by her own act to prejudice the interests which she had already created. Their Lordships answered the third ground thus at

page 45 (of SCJ) : (at p. 69 of AIR.)

Coming now to the third ground, it is certainly true that a surrender is a voluntary act on the part of the widow and she is under no legal or moral

obligation to surrender her estate. Instances do arise where an alienee has paid valuable and substantial consideration for a property on the

expectation of enjoying it so long as the widow would remain alive and his expectations have been cut short by a surrender on the part of the

widow, which no doubt benefits the reversioner in the sense that he gets the inheritance even during the widow''s lifetime.

On the other hand, a person, ""who takes transfer from a Hindu widow, acts with his eyes open. If the transfer is without any legal necessity, there

is a risk always attached to the transaction, and there is no law, as we have already explained, which secures to him necessarily an estate for life. A

man making a purchase of this character is not expected to pay the same value which he would pay if the purchase were made from a full owner.

It is clear from the above observation that their Lordships expressed a definite opinion that the third ground was equally untenable. Having said

so, they further observed:

Be that as it may, even assuming that the Court is not incompetent to impose conditions on the reversioner''s rights of recovering possession of the

property during the widow''s lifetime on grounds of equity, justice and good conscience in proper cases, it is clear that in the case before us, no

equitable considerations at all arise.

This they stated only as an additional ground. It is not, therefore, correct to contend, as the appellants'' learned counsel did, that, the Supreme

Court did not express any final opinion on the third ground, but left that question open.

It seems to us clear from the decision of the Supreme Court that as there was acceleration of inheritance in favour of the plaintiffs by reason of

the surrender of 1922, they became competent to recover possession of the properties even then, by evicting the defendants and were not bound

to wait till the widow actually died; that is to say, the starting point of limitation was the date of the surrender, and not the death of the widow,

whether Article 141, if surrender can be regarded as civil death for the purpose of that article, or Article 144 applies. We are therefore of the

opinion that both the suits were clearly barred by limitation and ought to be dismissed on that ground.

But the learned Counsel for the appellants drew our attention to the fact that in paragraph 38 of the judgment, Ex. A-9, in O. S. No. 2 of

1911, it was held that the alienations to defendants were not valid and binding on the plaintiff ""beyond the first defendant''s lifetime,"" the first

defendant being the widow, Lakshmi Amma. It was contended that in the face of that declaration, it was not open to the plaintiffs to have instituted

the present suits, so long as she was alive.

But it will be seen that on the state of the law as declared by this court at that time, it must have been supposed that the alienation without necessity

or other binding purposes would enure at least during the lifetime of the widow, But, as we state above, that has ceased to be good law since the

decision of the Supreme Court. In the light of that decision, the declaration must be interpreted to mean ""till the widow''s estate subsisted.

If the contention were right, the declaration must take effect even in the event of remarriage or adoption on the part of Lakshmi Amma. That clearly

was not the intention of the declaration. It will be seen that in the decree, Ex. 1A-10, the declaration in the terms granted in paragraph 38 of the

judgment was not incorporated. That can only mean that the widow''s life-time was then maximum period unless terminated earlier:

We therefore-overrule this contention. The learned counsel also advanced a further argument in regard to the validity of the surrender on the

ground that the then nearest reversioner was the sister''s son, Huchurya, from whom the plaintiff''s father, Subba Rao, took a sale deed. But it will

be seen that in the plaint, the plaintiffs have rested their title on this very surrender as well as on the sale by the sister''s son. That being so, they

cannot now be allowed to impeach the validity of the surrender. That would involve questions of fact which are not in pleadings.

We therefore dismiss both the appeals; but, taking into account the fact that they were filed prior to the decision of the Supreme Court, we

make no order as to the costs of these appeals.