Medai Dalavoy Kaliani Anni vs Medai Dalavoy Thirumalayappa Mudaliar

Viswanatha Sastri, J.—Appeal by plaintiff against the decree of the Court of the Additional Subordinate Judge of Tinnevelly, in O.S. No. 39

of 1919. The facts which gave rise to the suit are as follows: One Shanmuga Kumaraswami Mudaliar died on January 15th, 1892, leaving two

widows Parasakti Vadivu Anni,. and Kaliani Anni (plaintiff) as his heirs. The two widows ""to suit their convenience"", divided some of the

properties into equal moities, and the income from other properties was also similarly divided, as also debts due to the family. Parasakti died on

December 10th, 1915, and, on her death, all the properties which she was enjoying accrued to plaintiff by right of survivorship. The properties

which were in the enjoyment of Parasakti yielded an annual income of Rs. 6,000. The 1st defendant who is the next reversioner, fraudulently

induced Parasakti to execute a sale-deed in his favour with respect to the properties specified in some of the schedules ; and he also induced her to

execute another sale-deed with respect to certain other properties in favour of the 7th defendant''s father, benami for himself. A third sale-deed

was executed in respect of certain other properties in favour of one Ramalinga Mudaliar, who is the son of 1st defendant''s maternal uncle.

Subsequent to these transactions, the 1st defendant obtained two other sale-deeds with respect to properties comprised in Schedule III, and he

also obtained a usufructuary deed of mortgage with respect to properties comprised in Schedule XXVI. All these transactions were entered into

without any legal necessity and with a view to defraud plaintiff. The 1st defendant also received monies from the Taluk Board, Shermadevi, which

were legally due to plaintiff. Defendants Nos. 2 to 4 are the undivided sons of the 1st defendant. Defendants Nos. 5 and 6 are the widows of

Renganatha Mudaliar the undivided elder brother of the 1st defendant and the 7th defendant is the son of the 1st defendant''s sister. Hence the suit

for the recovery of the properties that were in the possession of Parasakti Vadivu Anni, together with mesne profits. The 1st, defendant contended

that plaintiff and Parasakti effected an absoulte partition of the properties, that each gave up the right she had to succeed to the properties that fell

to the share of the other by right of survivorship; that the alienations sought to be impeached were for purposes binding on the estate, and that

plaintiff was not. entitled to any relief. Defendants Nos. 2 to 6 adopted the written statement of the 1st defendant. The 7th defendant contended

that the alienations-in his favour were for purposes binding on the estate. The 8th defendant was added as a supplementary defendant on the

ground that the property specified in Sch. XXV was in her possession, but she disclaimed all interest therein. The 9th defendant was also,

subsequent to the suit, added as a party, on the ground that he claimed an interest in Schedules. XXV and LIX. He pleaded that the alienations

were binding on the estate. The learned Subordinate Judge held that the division between the widows was only for the sake of convenience, that

neither of them gave up the right she had to succeed to the properties in the possession of the other, and that the plaintiff was entitled to possession

of the properties comprised in all the Schedules, except Schedules. II, XII, and XIII. The appeal relates to properties with respect to which

possession was not decreed and the 1st defendant filed a memorandum of objections with respect to the items decreed and which were in his

possession. A similar memorandum of objections was filed by the 7th defendant.

In dealing with the memorandum of objections the question to be considered is, the nature of the estate taken up by the widows by reason of the

arrangement said to have been come to between them. The contention of the plaintiff is that they were in enjoyment of separate portions simply for

the sake of convenience, whereas the contention of the defendants is that the partition gave each widow an absolute interest in the properties, and

that the widows parted with their right of survivorship. There is no document to evidence the partition of the properties now in suit, but it was

contended on behalf of the respondents that the partition was on the lines of Ex. L of the date January 30th, 1892. The circumstances which led up

to the execution of Ex. L are these. Shanmuga Kumaraswami died on January 15th, 1892; and, on February 10th 1892, Avudiayammal Anni

widow of his deceased brother, presented for registration a document which purported to be a Will, and which was put forward as having been

executed by Shanmuga Kumaraswami on 14th January 1892. The registration of the Will appears to have been opposed on behalf of the 1st

defendant, as will appear from Ex. AAAAA. Exhibit L camsinto existence on January 30th, 1892, and it related to houses and house sites which

have no connection with the present claim. To this document plaintiff, Parasakti and Avudaiyammal were parties, and the document recites that

these three persons had acquired under the Will of Shanmuga Kumaraswami the properties absolutely; and that the properties described in the

document were to be enjoyed in the manner stated therein. The concluding words of the document on which reliance was placed are these ""the

properties belonging to the respective persons, be enjoyed by them alone with all rights."" It was urged on behalf of the 1st respondent that the

other properties left by Shanmuga Kumaraswami, including the properties now in suit, were also divided in the same manner in which the

properties comprised in Ex. L were divided; but there is no document to evidence the partition of these properties nor is the date of the division

ascertainable with any degree of certainty. In her evidence, plaintiff stated that ""Ex. L was not brought into force as there were disputes about the

Will"", and this statement of hers receives support from the circumstance that there was admittedly no division of the properties not comprised in

Ex. L into three equal shares, between plaintiff Parasakti and Avudaiyammal, as contentplated in Ex. L. Parasakti gave evidence in the

Ambasamudram District Munsif''s Court is a suit between her, plaintiff and 1st defendant ; and Ex. G is a copy of the deposition then given. This is

what appears at page 28 of the paper-book. ""After the death of my husband, the defendants Nos. 2 and 3 and myself were enjoying his

properties. We were enjoying them, each one share. For Fasli 1301, we paid theerva in three shares"". At page 33 of the paper book she says

Now for the past five or six months the 2nd defendant and myself have been paying in two shares"". She gave her evidence in June 1894, and

consequently, the payment of kist in two shares must have been only from January 1891, Ex. M of the date July 15th 1893, is a lease deed in

favour of plaintiff and Parasakti, and the circumstance that the lease deed was taken in their joint names indicates that on the date of this document

there was no division of the properties between them. There is, therefore, strong ground for coming to the conclusion that the division of the

properties not comprised in Ex. L was not made at or about the time of Ex. L but two years afterwards. The 1st defendant had not examined

himself and we have not been referred to any oral evidence on his side as to the division of the properties in suit in the manner contended for by

him.

Prasakti and plaintiff admittedly enjoyed the properties not comprised in Ex. L, in equal shares; and, it was contended on behalf of the 1st

defendant that this enjoyment was in pursuance of an arrangement between them to the effect that each was to take an absolute interest in the

properties each got; and that there was to be no right of survivorship between them. We are asked to infer such an arrangement from the following

circumstances: (1) The division of the debts due to the estate into two equal shares; (2) the liability undertaken by each widow to pay the debts

due from the estate, in equal shares; (3) their conduct in pleading that they were each liable to pay only a half share in the debt, when creditors

sued them; (4) compromises made by them in such suits under which each agreed to pay a half share in the debts; (5) Succession Certificates got

by each of them with respect to half of some of the debts; (6) each of them executing promissory notes in favour of creditors with respect to a half

share in the debts due by their husband; (7) mortgages and sales effected separately, giving the alienees absolute rights in the shares enjoyed by

each; (8) each contributing half the expenses for the Kattalais that had to be performed; (9) each paying kist separately for the portions enjoyed by

her; and (10) each suing the other for contribution with respect to excess payments made by her. It appears to me that all these circumstances are

consistent with the division having been made for the sake of convenience. The learned Vakil for the 1st respondent contended that this could not

be said with respect to the mortgages and sales effected separately; as also with respect to suits for contribution, although it may be so said with

respect to the other circumstances. So far as suits for contribution go, I fail to see why such suits would not lie in case the arrangement had been

only for the sake of convenience. The claim maybe based not under the Common Law; but under the arrangement between the parties to the effect

that each was to pay a half share in the debts due by her husband, and any violation of this arrangement by reason of which one widow was sued

by a creditor and made to pay the entire debt, would certainly entitle her to recover from the other widow the portion paid in excess of her share.

With respect to mortgages and sales, each widowdid no doubt, sell her half share, but this circumstance could not be taken to indicate that each

widow gave up the right of survivorship to the portion enjoyed by the other widow, in case she survived her. Even in case the division had been

only for the sake of convenience, the same thing would have been done. The whole question is one of intention, and there is clear documentary

evidence in the case which, in my opinion, conclusively proves that such an intention was not present in the minds of the widows at the time'' they

came to enjoy the properties separately. Exhibit C of the date December 10th, 1909, is a sale-deed executed by Parasakti in favour of the 1st

defendant, and therein the following appears ""What belonged to my husband and what he was enjoying and for what an arrangement was made to

the effect that afterwards I and Kaliani Anni (plaintiff) should enjoy in equal half shares for convenience, etc"". A similar recital appears in Ex. D

which is a document executed by plaintiff in favour of 1st defendant on June 8th 1910. There was thus a clear statement on the part of both the

widows as early as 1909 to the effect that their enjoyment separately was only for the sake of convenience. That the 1st defendant was also under

the same impression will appear from Ex. A which is a copy of the plaint presented by him in the Subordinate Judge''s Court, Tinnevelly, to which

plaint plaintiff and Parasakti were parties. In para. 6 there is a clear statement to the effect that the widows were ""for the sake of convenience

enjoying the properties by halves. In para. 7 there is a statement to the effect thatplaintiff (present defendant) was to get the properties after the

lifetime of defendants Nos. 1 and 2 (plaintiff and Parasakti), and such a statement would not have been made in case the division was absolute. In

para. 9 it was stated that the sale effected by the 1st defendant without the consent of the 2nd defendant would not be valid beyond the lifetime of

the 1st defendant. If the division was complete and the right of survivorship was given up, the consent of one widow to the alienation effected by

the other widow would not have been necessary. Exhibit J is the plaint in another suit instituted by 1st defendant in the District Munsif''s Court,

Ambasamudram in the year 1902, to which suit Parasakti and plaintiff were parties. Although the name of the plaintiff is given as Medai Dalavoi

Thitharappa Mudaliar, he is said to be the son of Medai Dalavoi Kumarasami Mudaliar, and the signature to the body of the plaint, as also to the

verification, are of Tirumalappa Mudaliar, there can beno doubt that the plaintiff in that suit was the present 1st defendant. In para. 6 of this plaint,

the 1st defendant claims to be entitled to all the properties left by Shanmuga Kumaraswami after the death of the two widows, and such a demand

would not have been made in case there had been a complete division in status, and the right of survivorship lost to each of. the widows. There is,

therefore, strong documentary evidence to indicate that the widows intended the division to be only for the sake of convenience, and that the 1st

defendant was also under the same impression. Reference was made to Exs. XV and XV (a) which are sale-deeds executed by Parasakti in

favour of the 1st defendant on the 19th of November 1915. These documents were admittedly executed a few days before her death, and she was

aged 70 then. It is stated in these documents that Kaliani had no subsequent interest in the properties. It was suggested on behalf of the plaintiff that

the 1st defendant acquired influence over Parasakti during her later days, and got from her documents in his favour. The 1st defendant has not

gone into the witness-box, and the circumstances under which Exs. XV and XV (a) were obtained have not been explained. The documents

relating to the ten circumstances above referred to, have been dealt with in detail by the learned Subordinate Judge and it will serve no useful

purpose to deal with them here.

The right of Hindu widows to effect a partition of their husbands estate in such a way as to release the right of survivorship each. possessed, was

first recognised in Ramakkal v. Ramasami Naicken 22 M. 522 : 9 M.L.J. 101 : 8 Ind. Dec. 373. It was there held that there was no legal obstacle

to prevent one of two co-widows from so far releasing her right of survivorship as to preclude her from recovering from an alienee after the other

co-widow''s death, property given by way of partition to the latter and alienated by her. In this case there was a formal registered partition deed

and, upon a construction of its terms it was held that the right of survivorship was given up. In Gomathi Ammal v. Kupputhayi Ammal 14 M.L.J.

175 the above mentioned case was referred to, and it was held that it was open to daughters while effecting a partition, by apt language to

renounce their right of survivorship. In that case the daughters proceeded on the erroneous view that they had not a qualified but had an absolute

estate which carried with it no right of survivorship, and it was held that the parties could not have possibly intended to renounce and did not

renounce the rights of each to take as the father''s heir. The learned Judges observe that it was a question of intention in each case, to be gathered

from the deed of partition, if any, and the surrounding circumstances, whether the daughters retained or renounced their rights of survivorship. In

Subbammal v. Krishna Aiyar 22 Ind. Cas. 399 : 26 M.L.J. 479 there was a deed of partition between the widows; and, on the basis of the deed it

was held that the female heirs holding lifnited estates can so divide as to preclude the right of survivorship inter se. That this could also be done by

means of an oral partition was held in Alamelu Ammal and Another Vs. Balu Ammal and Another, . The oral partition was proved; and the learned

Judge (Sadasiva Iyer, J.), observes as follows: ""In this view, the plaintiffs having effected an oral partition with Sub-bammal, giving her under the

oral partition agreement an absolute right in plaint properties, which gift involves the relinquishment by themselves of their right to claim possession

of the property if they survived Subbammal, the said partition arrangement is binding upon them"". The Vakil for the 1st respondent referred to the

case of Hardei. v. Bhagwan Singh 50 Ind. Cas. 812 : 13 L.W. 436 : 24 C.W.N. 105 but it will appear from the observations at page 440 Page of

13 L.W-- [Ed.] that the arrangement was supported, on the gronnd that it was a family settlement, and that the rights of the parties were in doubt

when the partition was made.

The Vakil for the 1st respondent, also referred to the judgment in an unreported case (Nelakanti) Sundarasiva Row and Others Vs. Ivatury

Viyamma and Others, but in that case this Court held that there was an arrangement between the parties to the effect that the division was absolute:

although the Trial Judge held that such an inference should be drawn from the conduct of the parties. The trend of the decisions above referred to

indicates to my mind that it has to be proved by clear evidence that the widows were conscious of the right of survivorship possessed by them; and

that they intended to give up such right. Exhibit L is of no value because the division under it was made on the clear supposition that the widows

got an absolute interest under the Will left by their husband. This document cannot, therefore, indicate the intention with which the properties in suit

were divided; and there being no other evidence to indicate what the intention of the parties was when the properties were divided; and the

circumstances referred to by the 1st defendant''s Vakil being not conclusive for the purpose of proving division in status; coupled with the fact that

Exs. A,C,D and J prove in unmistakable terms that the division was only for the sake of convenience; the only conclusion that can be come to is

the one come to by the learned Subordinate Judge, i.e., that there was no giving up by the widows of the right of survivorship, and that separate

enjoyment in equal moieties was resolved upon only for the sake of convenience.

The memorandum of objections filed by the 1st respondent relates also to alienations with respect to properties in the possession of the 1st

defendant, which have not been upheld. Mr. Krishnaswami Iyer who appeared for the respondent did not urge any arguments impeaching the

finding of the lower Court with respect to these alienations.

The 7th defendant also filed a memorandum of objections with respect to the sales in his favour made under Exs. LXI, LXII, LXIII. He is

closely related to the 1st defendant, and did not examine himself. Exhibit LXI of the date 4th October 1909 is for a sum of Rs. 700, and it recites

that this amount was paid in cash, to meet the pilgrimage expenses of Parasakti Vadivu. There is no evidence to show that Parasakti Vadivu went

on a pilgrimage at or about the time of Ex. LXI, and the circumstance that the plaintiff admitted that she went twice to Benares could not be availed

of because, she has not stated that Parasakti Vadivu went to Benares at or about the time of Ex. LXI. Moreover, the properties which were in the

possession of Parasakti Vadivu were yielding an income of Rs. 5,000 to Rs. 6,000 a year; and it cannot be said that she could not have gone on a

pilgrimage without effecting a sale of Immovable properties.

Exhibit LXII dated November 29th 1910, appears to be a rectification deed and is connected with and goes with Ex. LXI.

Exhibit LXIII of the date December 6th 1915 purports to be for a sum of Rs. 2,000 and this amount is said to have been borrowed by

Parasakti Vadivu ""for the purpose of establishing a fund for the expenses of her funeral obsequies"". This document was executed four days before

her death, and there is absolutely no evidence to show that the amount was entrusted with any person to perform her funeral obsequies. The case

in Sadashiv Bhaskar Joshi v. Dhakubai 5 B. 450 : 3 Ind. Dec. 297 was relied on, but the facts of that case are that the amount was spent on

funeral obsequies; and it was consequently held that the amount spent was a charge upon the husband''s estate. The conclusion of the learned

Subordinate Judge with respect to these documents has to be upheld.

The appeal preferred by plaintiff relates to properties comprised in Schedules. II, XII and XIII. The sale-deeds are Exs. III, IV and IX, and all

that was urged was that the properties were sold for very inadequate sums. It was said that the plaintiff sold her share under Exs. XI and XII for

Rs. 5,300 and odd, that Ex. IX was only for Rs. 4,000, that Exs. XI and XII had been executed 10 months prior to Ex. IX and that the sale under

Ex. IX should also have been for at least Rs. 5,300. It was also said that the 1st defendant purchased under Ex. XIII the properties conveyed

tinder Exs. IX, XI and XII for a sum of Rs. 6,500, and that this circumstance also indicated that the sale for Rs. 4,000 under Ex. IX was for a

grossly inadequate sum. Beyond the inference to be drawn from the considerations recited in Exs. XI and XII no evidence worth the name has

been let in to prove that the sale under Ex. IX was for a grossly inadequate sum. Exhibit Q was relied upon, but the person who prepared the

statement was not examined, and the value of the property as given in it is, therefore, of no evidentiary value. The finding of the learned

Subordinate Judge with respect to these schedules has, therefore, to be upheld.

Another objection urged by the Vakil for the appellant with respect to alienations evidenced by Exs. III, IV and IX was, that the registration of

these documents was invalid. It was stated that certain items of property not intended to be conveyed, were conveyed under them, that this was

done with a view to give jurisdiction to the Sub-Registrar within whose jurisdiction the vendors resided, and that as a fraud on the Registration Law

was practised, the registration was invalid. It was conceded that the items said to have been included with this view belonged to the vendors and

neither the writer nor the attestors to these documents have been examined for the purpose of proving that the items were never intended to be

conveyed. It was said that these items did not pass into the possession of the vendees but this circumstance even if true cannot be taken to imply

that they were included in the documents for the purpose of practising fraud upon the Registration Law. This contention cannot, therefore, prevail.

Another objection urged by the appellant''s Vakil was with respect to the interest allowed on mesne profits. The lower Court allowed interest

at six per cent. and it was contended that interest should have been allowed at the rate of 12 per cent. I am not prepared to interfere with the

discretion exercised by the lower Court.

The last ground of appeal relates to, mesne profits subsequent to suit and upto the date of the delivery of possession. It was mentioned by the

1st respondent''s Vakil that a suit had been filed by the plaintiff for the recovery of mesne profits for a period of three years subsequent to suit; but

the plaintiff''s Vakil stated that he was prepared to withdraw that suit which was still pending and which was stayed pending this appeal, in case this

Court gave a direction for the recovery of mesne profits due from the date of plaint to the date of the delivery of possession. The Vakil for the 1st

respondent stated that he had no objection to this course.

The decree of the lower Court will, therefore, be modified by adding a direction to the effect that the plaintiff will be entitled to mesne profits

from the date of plaint to the date of the delivery of possession, the amount to be ascertained by the lower Court.

The printing in this case appears to me to have been recklessly done. There are two paper-books containing 624 pages. Schedules have been

printed which have no bearing with the matters in issue between the parties and our attention was not drawn to more than 30 Exhibits. Excepting

the evidence of plaintiff, the remaining oral evidence was not referred to. It appears to me that the costs of printing the two paper-books containing

oral and documentary evidence in the case should not be allowed in taxation.

In the result the decree of the lower Court will be modified as indicated above. Appellant will pay the costs of the contesting respondents, the

costs not to include the costs of printing the oral and documentary evidence in the case.

The memorandum of objections filed by respondents Nos. 1 and 7 will stand dismissed with costs, costs not to include cost of printing paper-

books.

Charles Gordon Spencer, J.

I agree.