Devihilai Iyengar vs Raghupathi Venkatachariar

Charles Gordon Spencer, J.—Plaintiff is the appellant. He brought this suit for recovery of ancestral property that had came into possession

of his step-mother''s brother''s families through her Will dated 9th December 1903. The plaintiff''s father died on 30th July 1900 while plaintiff was

a minor. The plaintiff''s mother Nachiar Ammal was his father''s junior wife and Chinnapen Janaki was the name of the senior wife. The 1st

defendant and the 3rd defendant''s husband are brothers of Chinnapen Janaki, the plaintiff''s step-mother. The 2nd defendant is the 1st defendant''s

son. On 23rd July 1900 the plaintiff''s father executed a written Will appointing his junior wife Nachiar Ammal, his sister Alagu Janaki and his

aunt''s son Ranga Iyengar as managers of his properties after his death and guardians of the minor plaintiff. In case of difference of opinion among

them the decision of Nachiar Ammal was to be final. There was a bequest of 1 acre (53 cents, in favour of Ranga Ayyanagar and there was also a

provision of 6 kottas of paddy and Rs. 25 each per year for the maintenance of the testator''s first wife, Chinnapen Janaki, with the provision, that

if she did not accept this allotment, she should have Rs. 1,200 down in cash. The plaintiff''s first witness, who is a purohit and also a paternal

relation of the plaintiff, deposed that after the plaintiff''s father died, Chinnapen Janaki and her brother came and obstructed the performance of the

funeral ceremonies and refused to let the corpse be removed from the house until she was given some lands for maintenance in lieu of the paddy

and cash provided in the Will. This evidence as to coercion of the plaintiff''s guardian given by this witness was not rebutted by anything for

defendants. On 4th August 1900 the 3 guardians appointed under the Will entered into an agreement, in which, Chinnapen Janakj, joined, (Ex. II)

which contains a statement that the plaintiff''s father directed that nanja lauds worth Rs. 2,000 and Rs. 1,200 in cash for providing a residence and

other nanja lands specified in the schedule in lieu of the sum of Rs. 1,200 should be given to Chinnapen Janaki for maintenance with all rights of

disposal. After this the senior widow Chinnapen Janaki brought a suit (O.S. No. 150 of 1902) for a declaration of her right and for transfer we the

patta belonging to the properties allotted to her and obtained a decree ex parte as the plaintiff''s guardians did not defend it. The plaintiff''s step-

mother died on 28th December 1903 after willing away the property in favour of her brothers now plaintiff has come of age and sues for recovery

of the joint family property which has been improperly alienated. In the lower Court his suit was dismissed.

The written Will of the plaintiff''s father was clearly invalid in so far as it purported to dispose by Will of joint family property vide Subarammi

Reddi v. Ramamma (1920) M.W.N. 529 and the appointment under it of testamentary guardians to manage the properties of the plaintiff (a minor

co-parcener) was also illegal., wide Chidambaram Pillai v. Rengaswatni Naicker (1918) M.W.N. 265 : 7 L.W. 454. The alleged oral Will, even if

true, was also invalid for the same reason that the plaintiff''s father had no power to dispose of Immovable property belonging to the joint family

after his death.

The learned Subordinate Judge found under Issue No. 6(a) that the properties covered by Ex. II are joint family properties and this finding has

not been challenged. He upheld the alienation under Ex. II both as being a proper provision for maintenance and as being a family settlement of a

disputed claim.

The appellant''s Pleader argues that the plaintiff''s mother acting as his natural guardian, had no power to delegate her authority by taking in two

other persons to act with her. if she acted bona fide in the capacity of the natural guardian of her son, I should not be inclined to hold that any

disposition made by her was invalid for the mere reason that other persons, who were not authorised to deal with the property, joined in the

transaction, but the more important question to be decided is whether the alienation of joint family properties can be justified under the

circumstances of this case. Regarding it as an act of a guardian of a minor, against whom a claim for maintenance had been preferred, was it a

prudent act to buy off an uncertain claim for future maintenance for life by making a gift of ancestral property in perpetuity? Chinnapen Janaki might

have died immediately after receiving the gift; in fast she lived only for three years more, by which time she had parted with her rights in the

property. Prima facie (minder that it was a breach of trust on the part of the plaintiff''s guardian to make permanent alienations of Immovable

property for the purpose of providing for the maintenance of a person who was only entitled to be maintained for her lifetime according to the

Hindu Law In Lewin''s Law of Trusts, XII Edition, page 710, the general 1 principle is stated to be that, if a trustee does without suit what would

have lie en ordered by the Court and what is compel able by suit his act is valid. If the plaintiff''s mother had been appointed guardian by the Court

under the Guardians and Wards Act, she would have had to apply u/s 34 Clause (e) for appropriating such portion of the income of the ward''s

property as the Court might direct towards the maintenance of the persons dependent on him. She would have had no power to transfer any part

of the Immovable property without the previous permission of the Court (vide Section 29), and no Court would have given permission for a

permanent transfer of Immovable property without the strongest reasons being forthcoming. The obligation of the minor to maintain his father''s

senior widow was only coextensive with the widow''s lifetime, and the power of the guardian to alienate the family property must also be regarded

as co-extensive with that obligation.

It is argued that the plaintiff s guardian''s act can be justified as having saved the plaintiff from being sued for maintenance. As a matter of fact it

did not prevent-the senior widow from afterwards suing the plaintiff, and if no provision had been made such as that contained in Ex. 11 and if the

widow had sued for maintenance it is impossible to believe that any Court would have decreed a permanent transfer of ancestral properties to

meet a claim for maintenance for life.

In my judgment, therefore, the permanent alienation made under Ex. II was wholly unjustifiable and must now be set aside. The action of the

plaintiff''s guardians in not defending O.S. No. 150 of 1920 must, in this view of the case, be regarded as grossly negligent.

The appeal is, therefore, allowed and the plaintiff will be given a decree as prayed for in his plaint except as to his claim for mesne profits from

20th December 1903. As regards mesne profits, the alienation by the plaintiff''s guardian being voidable, as explained in Bhirgee Nath Chaube v.

Narsingh Tewari 41 A.L.J. 1161 and Subba Goundan v. Kriahnamaehari (1922) C.W.N. 269 and not having been repudiated before the

institution of this suit, I agree with my learned brother in thinking that the plaintiff is entitled to mesne profits at the rate found by the lower Court to

be fair from the, date of suit only and the decree will provide accordingly. The decision in Saraj Ranjan Chowdhury v. Prem Chand Chowdhury 43

Ind. Cas. 781 : 27 C.L.J. 257 to which our attention was drawn at the eleventh hour is not in point. There is no doubt that a plaintiff could not

under any circumstances recover mesne profits for more than 3 years before suit as that remedy would be barred by Article 109, Limitation Act.

That is all that the case is an authority for. As each side has succeeded in part, each will bear his own costs in the appeal.

Odgers, J.

I agree. My learned brother has dealt with the reasons why the first ground on which the learned Subordinate Judge supported this claim,

namely, that it was a proper provision for maintenance, cannot be supported. I am also of opinion that the second ground, namely, that it was a

family settlement, or, as it was well stated,, as being the price of family peace equally cannot be supported. That the senior widow had a claim for

maintenance is of course not disputed. The only question was as to its quantum and, in my opinion, it cannot be said that it was a bona fide buying

off or a settlement of family dispute when that was the only question.

After our judgment in this appeal had been pronounced, a discussion arose regarding the mesne profits which ought to be allowed to the plaintiff

-who had succeeded in the appeal before us.

It is contended for the appellant that mesne profits should be allowed from the date of the alienation by the plaintiff''s guardian which we have

held, in our judgment, to be wholly unjustifiable and have accordingly set aside. On the other hand, the respondent contends that, the alienation

being only voidable and not void, mesne profits can only be awarded from the date when the alienation is set aside, i.e., by reference back, to the

back of the plaint. The question, therefore, arises as to whether the alienation evidenced by Ex. II is void ab initio or only voidable. There is no

doubt on the authorities that the alienation by a Hindu widow of her husband''s estate as against a reversioner is good until the sale is set aside. For

instance, in Rangaswami Govndan v. Nachiappa Goundan 26 M.L.T. 5 : 1 U.P.L.R. 66 it was held that ""when the alienation of the whole or part

of the estate is to be supported on the ground of necessity, the consent of such reversioners as might fairly be expected to be interested to quarrel

with the transaction will be held to afford a presumptive proof which, if not rebutted by contrary proof, will validate the transaction as a right and

proper one""; See also Bijoy Gopal Mukerji v. Krishna Mohishi Debi 11 C.W.N. 424 : 2 M.L.T. 133 : 34 I.A. 87 (P.C.), where their Lordships

say referring to the alienation of the Hindu widow ""Her alienation is not, therefore, absolutely void, but it is prima facie voidable at the election of

the reversionary heir."" That being the state of the law with regard to the alienation of a deceased husband''s estate by a Hindu widow, does it make

any difference if the alienation is not by a Hindu widow as such but by her as guardian for her minor son who takes it as the estate of the deceased

father? Apparently there is no difference in principle and it, has been held by the Calcutta High Court in Krishna Dhone v. Bhagaban Chandra 34

Ind. Cas. 188 that a sale of a minor''s property in fraud of his rights is only voidable and is valid till avoided. After the argument was concluded we

were referred by Mr. Bhashyam to a statement in Saraj Ranjan Chowdkury v. Prern Chand Chowdhury 27 C.L.J. 257. That was a case of

limitation when the question arose whether Article 109 of the Limitation Act was applicable to a suit for mesne profits where possession had been

obtained by the defendant under a sale subsequently set aside. The appeal was originally heard by Doss and Richardson, JJ., who differed in

opinion. Doss, J., at page 267 Page of 22 C.W.N.--[Ed] says: ""It is only when the sale is finally set aside by a suit or the decree is finally reversed

on appeal, that the possession by virtue of the ultimate judicial declaration becomes wrongful, not merely from the time when such declaration is

pronounced but ab initio, i.e., from the time the unsuccessful party or the purchaser was installed into possession,"" and he held that the plaintiff

could recover mesne profits for the whole time during which the defendant had been in possession. Richardson, J., differed holding that the claim

for mesne profits for more than three years before suit was barred. On the hearing of the Letters Patent appeal by three Judges the opinion of

Richardson, J., prevailed. If, therefore, the dictum of Doss, J., is treated as applicable to the facts of the present case, of which I am not convinced

it would appear to have been overruled. In Subbe Goundan v. Krishnamachari 15 L.W. 357 : (1922) C.W.N. 269 there was a suit instituted by

the co-parceners to set aside a sale of ancestral Immovable property by the manager on ground that the sale was not for family necessity. Here

again it was said by the learned Judges (Kumaraswami Sastri and Devadoss, JJ.,) that in the case of sales by a father or managing member of a

joint family for alleged necessity the sale will be good till avoided as it is open to the other co-parceners to affirm the transaction. The learned

Judges there followed the ruling in Bhirgee Nath Chaube v. Narsingh Tewari 35 Ind. Cas. 475 : 41 A.L.J. 1161 and limited the claim for mesne

profits to the period from the date of suit as there was no repudiation before the suit. I do not think that the fact that the plaintiff could not, until he

had attained majority, elect to either affirm or disaffirm the transaction can make any difference in principle. By reasons of his disability the law

gives him no title to assert his legal rights until his disability is at an end. The learned Vakil for the plaintiff referred to a decision of the Privy Council

in Bhagwat Dayal Singh v. Debi Dayal Sahu 3 M.L.T. 344 35 I.A. 48 (P.C.) but nothing can be gained from the judgment of their Lordships of the

Privy Council in that case as to the period for which mesne profits should be allowed. Their Lordships held that as the sale-deeds in question were

invalid as such, the claim for mesne profits was well founded and the amount would be as ascertained in execution proceedings. The decision,

therefore, does not affect the present case. On these considerations and on the state of the authorities, I am of opinion that in this case the mesne

profits should be allowed from the date of suit and I would direct accordingly.