P. Kokilambal vs P. Sudarammal and Others

Kumaraswami Sastri, J.—This is a suit by the plaintiff for partition, for delivery, to her of her share in the plaint property, for declaration that

the mortgage by the 1st and 2nd defendants in favour of the 4th defendant is not valid and binding on her, for the appointment of a Receiver, for

costs and for further reliefs. The plaintiff and Nos. defendants 1 to 3 are dancing girls. The 1st defendant is the mother of the plaintiff, the 2nd

defendant is the daughter of the plaintiff and the 3rd defendant is the daughter of the 2nd defendant. The 4th defendant is the mortgagee of the

property from the 1st defendant, the 2nd defendant having stood surety for the first defendant in the transaction. The case for the plaintiff is that the

house which is mortgagees the joint family property of the plaintiff, and defendants Nos. 1, 2 and 3 that there was a house, 53, Iyappah Chetty

Street, Madras, which was inherited by the 1st defendant from her mother and grandmother, that the suit property was purchased by the 1st

defendant while it was subject to a mortgage in favour of Annaduraier, that for purposes of paying off that mortgage, house No. 58, Iyappah

Street, was also mortgaged by the plaintiff and the 1st defendant, and that with the monies raised on the mortgage and sale, of their jewels the suit

house was purchased, that subsequently to discharge that mortgage house No. 58 was sold by the plaintiff and the 1st defendant, that in 1913 one

Alwar Chetty was the paramour of the 2nd defendant, that there were quarrels in 1914 between the plaintiff and the 1st defendant and the plaintiff

left the suit house and lived separately, that in order to help this Alwar Chetty defendants Nos. 1 and 2 borrowed Rs. 15,000 from the 4th

defendant, that Alwar Chetty became insolvent, that Sampath Iyya who was the brother-in-law and agent of the 4th defendant, knew Alwar

Chetty and the fact that he was the paramour of the 2nd defendant, that the loan of Rs. 1,5,000 was really borrowed for the purpose of helping

Alwar Chetty who was in difficulties and that the mortgage is not consequently binding on the plaintiff and her share of the properties. The 1st

defendant filed a written statement supporting the allegations of the plaintiff and stating that she entered into this transaction in the belief that Alwar

Chetty would liquidate the debt borrowed on his behalf and he had not done so. The 2nd defendant filed a written statement also admitting the

various allegations of the plaintiff. She says that she was induced to stand surety, that she was the mistress of Alwar Chetty and was under his

influence and that it was represented that money was required for his benefit. The 3rd defendant''s guardian ad litem filed a written statement stating

that she is entitled to one-eighth share in the property, that the mortgage is not binding on her as it was not for any antecedent debt or for family

necessity. The 4th defendant filed a written statement putting the plaintiff to proof of the allegations in the plaint as to the joint nature of the family

and as to the property being joint family property. She says that the property mortgaged is the absolute property of the 1st defendant, that there

were various mortgages and transactions in which the 1st defendant represented to be the absolute owner of the property, that the debt was

borrowed, for necessary purposes and that she is a bona fide lender without notice of the rights of any other party and must be protected.

The following issues have been framed:

Do the plaintiff and defendants Nos. 1 to 3 form members of an undivided family of devadasis possessed of properties ancestrally or jointly

acquired?

Was the house and ground No. 58, Iyappa Chetty Street, Madras, the ancestral family property of the plaintiff and the 1st defendant?

Was the house and ground No. 76, Perumal Mudali Street, George Town, Madras, purchased out of or with the aid of joint family assets or

was it purchased by the 1st defendant out of her self-acquisitions?

Was the mortgage in favour of the 4th defendant created for any legal necessity or for any family benefit and is the same binding on the shares of

the plaintiff and the defendants Nos. 2 to 3?

Is the house No. 76, Perumal Mudali Street, liable to be partitioned among the plaintiff and defendants Nos. 1 to 3 and if so, what are the

shares to which they are entitled respectively?

Is the plaintiff estopped from impeaching the mortgage in favour of the 4th defendant for the reasons set forth in paragraphs Nos. 12 and 14 of

the 4th defendant''s written statement?

Is the 4th defendant a bona fide mortgagee and is she entitled to the protection afforded by Section 41 of the Transfer of Property Act?

What reliefs are the parties entitled to?

The relationship between the plaintiff, and defendants Nos. 1, 2 and 3 is not disputed The evidence adduced on the plaintiffs side is that the

plaintiff and defendants Nos. 1 to 3 were living as members of a joint family and that the plaintiff and the 2nd defendant were giving their earnings

to their mother the 1st defendant that till 1914 this state of things continued, and that in 1921 the plaintiff and the 1st defendant were living in the

same house No. 14, Veerappan Street. (The mortgage in favour of the 4th defendant shows that plaintiff and 2nd defendant were living in that

house). So far, the evidence is all one way. Coming to the properties, we find that house No. 58, Iyappa Chetty Street, belonged to the mother

and grandmother of the 1st defendant. The certificate of that house stands in the name of Thiyalu Animal ancestor of the 1st defendant. On the 1st

December 1898, there was a release deed executed in favour of the 1st defendant by Doraswami Mudali and others, her nephews. It is recited

therein that the house was the property which the 1st defendant got from her mother and that Doraswami Mudali and others had no right to that

property according to the custom of the dancing girl community. On the same date Sundarammal executed a release deed in favour of Doraswami

Mudali and others releasing her rights in other properties that belonged to Doraswami and others. She was in possession and enjoyment of that

property. The suit house was purchased on the 7th April 1899 by Ex. I by the first defendant and the sale-deed stands in her name. The purchase

was for Rs. 2,850 and at the date of the purchase, the property was mortgaged to Annaduraier and Rs. 2,700 was due to him. Rs. 150 was paid

to the vendor under Ex. I and for the balance the 1st defendant undertook to pay Annaduraier the amount due. On the 25th September 1899, the

1st defendant and the plaintiff mortgaged house No. 58, Iyappa Chetty Street to the Permanent Fund for Rs. 1,500. The recital is that Rs. 1,500

was borrowed to re-pay the loan due to Annaduraier. I have little doubt on the evidence adduced by the plaintiff and the 1st defendant that this

mortgage was to pay off Annaduraier and that Rs. 1,500, was as a matter of fact, paid to him. As regards the balance, the evidence of the plaintiff

and the 1st defendant is that some jewels were sold and the monies paid. The plaintiff says that her jewels kappu, kasumali, golusus, and silver

chains were sold. But this part of the case rests entirely on the evidence of the plaintiff and the 1st defendant. The plaintiff was then about 17 years

old and I do not think I can take it proved that any of the plaintiff''s jewels were sold. There can be no doubt that jewels were sold but it is more

likely that the jewels sold were jewels of the mother who was then a fairly old woman. On the 26th November 1901, the house in Iyappa Chetty

Street was sold under Ex. E for Rs. 3,000 and the 1st defendant and the plaintiff joined in the sale-deed. I think the evidence so far shows clearly

that house No. 58, which the 1st defendant, got from her mother was both in the mortgage and sale treated as joint property of the mother and

daughter and that they jointly sold the property. As regards the suit house the plaintiff and the 1st defendant lived in it ever since its purchase and as

I said before from 1899 to 1914 they were living jointly in that house. The evidence is and I see no reason to disbelieve it--that the plaintiff was a

young girl of 15 or 16 when the suit house was purchased, that she was living with, and giving her earnings to her mother and that she and her

mother were living as members of one family. There is nothing to contradict this evidence which is in accordance with the probabilities. The view I

take is that, so far as the plaintiff and the 1st defend ant are concerned they were members of a joint dancing girl family and that the suit house was

purchased partly out of sale-proceeds of house No. 58 which was treated as joint family property by the mother and daughter. The conduct of the

plaintiff and the 1st defendant shows that they regarded, the suit house as property in which they had joint interest and that so far as the conduct of

the parties goes, they were living together as members of a joint family, putting their earnings together and meeting their expenses in common. As

regards the subsequent dealings of the plaint property after purchase, we find that on the 9th June, 1911, the 1st defendant deposited the title

deeds and borrowed Rs. 1,500 from Namberumal Chetty. There is no document which shows the loan but it appears in Ex. V that this mortgage

was discharged. Exhibit V is a mortgage dated 8th March 1913 by the 1st defendant in favour of Jataram Devay and Balakrishna Devay for Rs.

2,500. Plaintiff was then living in this house and Ex. V is the rental agreement executed by the 1st defendant. Plaintiff, though living in that house,

was not joined in the document and the property is said to be the property of the first defendant. On the 7th April, 1916, Ex. VI was executed by

the 1st defendant in favour of Jataram Devay and Balakrishna Devay for Rs. 1,000 and there it is recited that Rs. 570 was received to purchase

jewels for the 2nd defendant. This document was attested by the plaintiff and the 2nd defendant and by Venugopal Mudali, son of the 1st

defendant and Parthasarathy Chetty who was plaintiff''s paramour. A rental agreement was also executed along with that document. The evidence

of the plaintiff is that she was asked to attest the document by her mother and paramour, that it was stated that her mother was borrowing money

and that her attestation was required by the lender. She states that the deed was not read out and explained to her and that she was not aware of

the recitals in that document. Exhibit IV is a mortgage dated 8th December 1917 in favour of Alwar Chetty, 2nd defendants paramour He was

then well-to-do and the evidence is that he gave a number of jewels of considerable value to 2nd defendant and that he lent Rs. 4,725 on Ex. IV It

was executed by the 1st defendant alone and it recites that Rs. 4,000 was required to discharge Exs. II and III and that the family expenses had to

be met with the balance It also contains the usual recital that nobody except the mortgagee had a right to the property and this document is attested

by the 2nd defendant who was then kept by the mortgagee Alwar Chetty After this mortgage, Ex. IV, Alwar Chetty seems to have fallen on bad

days and he evidently wanted to get back his money The property was then mortgaged under Ex. VI dated 24th February 1920 in favour of the

trustees of P. Rajamannar Chetty s charities; Rs. 5,000 which was borrowed went to re-pay Alwar Chetty The evidence is that Alwar Chetty got

into further difficulties and that to oblige him the 1st defendant mortgaged and sold the jewels which she had given to her granddaughter of the

value of about Rs. 7,000 and, that the money not being sufficient she had to oblige him by mortgaging the suit property. Exhibit F dated 22nd

February 1921 is a mortgage in favour of the 4th defendant for Rs. 15 000 It recites that Rs. 5,000 went to pay off Ex. VI and that Rs. 10,000

was required for effecting necessary repairs and improvements to the house. It is not suggested that any improvements were effected to this house.

It is stated that there were some repairs effected but the exact amount spent for repairs does not appear on the evidence. The case for the plaintiff

and the 1st defendant is that there were no repairs or improvement''s effected to this house and that the sole object of this mortgage was to oblige

Alwar Chetty. Exhibits K and L are the account-books of Alwar Chetty which have been produced from the Official Assignee''s office.

Exhibit J is the promissory note executed by Alwar Chetty for Rs. 10,000. Exhibits K and L contain debits and credits, the net result of which is

that about of Rs. 17,000 were given to Alwar Chetty and about Rs. 5,000 were got back from him. Both the books K and L and the promissory

note J show beyond all possibility of doubt that Rs. 10,000 which formed part of the consideration of Ex. F went to Alwar Chetty''s pocket and

was used by him. If there were repairs or re-building or additions effected in 1921 which involved a large sum of money like Rs. 10,000, it could

easily have been proved by getting the Corporation to produce plans estimates which in these cases have to be sent before improvements of large

value are effected. No attempt is made by the 4th defendant to show that there was any improvements effected and I have no hesitation in holding

on the evidence that the mortgage in favour of the 4th defendant was for purposes of helping Alwar Chetty who was then in difficulties. The

question is how far this mortgage is binding on the plaintiff? There can be little doubt that as regards Rs. 5,000 which was lent by Alwar Chetty

under Ex. IV it was for purposes that it would bind a, joint Hindu family. There was a prior mortgage in favour of Jattaram Devay and other people

and there is no evidence that, so far as prior mortgages up to Ex. V are concerned, that money did not go to meet the expenses necessarily for this

joint family. There was then no motive for any false recital or for anything being done against the interests of the plaintiff. She herself attested Ex. II

which was a further hypothecation and, so far as; mortgages up to Ex. VI are concerned, I think they would clearly bind the plaintiff. So far as Ex

F is concerned, it also follows that Rs. 5,000 out of the money borrowed under Ex. F and the interest thereon would be clearly binding on the

plaintiff. As regards Rs. 10,000 there was no antecedent debt and the purpose was not one which would bind the plaintiff. It is admitted that she

was not consulted in the matter and that she never either then or subsequently consented to this transaction. Fourth defendant and Sampathiah who

attested the mortgage document were aware of the plaintiff''s existence and it is not suggested that she was ever asked or any enquiries were made

of her as to the necessity for the transaction, If the ordinary Hindu Law applied to these properties, it is clear that she would not be liable for

anything more than Rs. 5,000 and the interest thereon.

A question has been raised in this case as to the law applicable to dancing girls. In the present case, the mother, daughter and -grand-daughter

all lived together, put their earnings together and behaved in all respects as if they were members of a joint family. The contention of Mr.

Guruswami Chetty for the plaintiff is that in such cases the entire law of the joint family including right by birth has to be applied, the only difference

being that daughters took the place of sons and are entitled to such rights as the sons would have in a joint family. If this view is correct, the

position will be that the plaintiff would have all the rights and liabilities of sons in a joint family. If you concede the right by birth, and apply the law

of the ordinary Mithakshara joint family, you must also concede the pious obligation of the daughter to discharge her mother''s debts. The recent

Privy Council decision is to the effect that the debt should be antecedent in the real sense of the term and that money advanced on mortgage would

not be antecedent debt so far as the loan contemporaneous with the mortgage is concerned. Mr. Radhakrishnayya contends that, so far as these

dancing girls are concerned there can be no question of a joint family in the Mitakshara sense of the term where persons acquire right by birth. So

far as the authorities go, it seems to me clear from the cases reported as Chalakonda Alasani: v. Chalakonda Ratnachalam 2.M.H.C.R. 56

Kamakshi v. Nagamthnam, 5 M.H.C.R. 161 Official Assignee of Madras V. Swornam 4 M.P 330 : 1 Ind. Dec. (N.S.) 1066 Venku v.

Mahalinga, 11 M.P 393 : 12 Ind. Jur.421 : 4 Ind. Dec. (N.S.) 274 and Muthu Kannu v. Pramasami 12 M.P 214 : 4 Ind. Dec, (N.S.);499 that

there can be a co-parcenary of dancing girls with rights of survivorship. There is, however, no case which goes to the length of saying that

daughters of dancing girls acquire by birth an interest in the ancestral property but Mr. Guruswamy Chetty contends that once you grant a

coparcenary, right by birth is a necessary corollary and that there can be no co-parcenary without right by birth acquired by co-parceners. Mr.

Radhakrishnayya relies upon Niras Purbe v. Tetri Pasin 32 Ind. Cas. 82 : 20 C.W.N. 103 and Sant Singh v. Lachhmi 46 Ind. Cas. 102 : P.W.R.

1918 to show that in such cases you have to apply the law of usage and that the daughters inherit the property absolutely as stridhanam. These

cases unfortunately were not cases where there was any question of joint living or title acquired by dancing girls who lived as members of a joint

family. In this state of the authorities, the question as to the acquisition of a right by birth is one of very considerable difficulties but in the present

case, I do not think it is necessary to decide that question as the view I take is that the daughter and grand-daughter were living with the 1st

defendant in the house as members of a joint family, and giving their earnings to her and they were living together meeting their expenses out of the

joint earnings and the house must be treated as joint property, especially as it was acquired at least in part out of the monies raised on a mortgage

executed by both the mother and daughter. I treat this case entirely as a case where the property has been treated as co-parcenary property by

conduct and becoming co-parcenary property by such conduct. In the view I take the loan of Rs. 5000 and the interest thereon would certainly be

binding on the plaintiff. So far as she is concerned, she will have only 1/4|th share in the property, her daughter, the 2nd defendant getting the

remaining 3/4th share. Her daughter, the 2nd defendant, has stood surety in the mortgage document itself and she is certainly bound. I do not

believe her statement that she knew nothing of the transaction and that she was forced to sign the document. There can be no doubt that she

wanted to help her paramour at the time and that she willingly consented to help him, especially as she was very generous to her and had given her

a lot of jewels.

As regards the question of estoppel, I do not see how the plaintiff can be estopped. Assuming that she consented to her mother receiving Rs.

1,000 under Ex, II and attested that document, that would not bind her for ever from disputing the subsequent transactions without her consent. All

that can be said is that she allowed the first defendant to state in one document that the property was her mother''s property. As regards Section

41 of the Transfer of Property Act, the question is whether the 4th defendant was led to believe bona fide that the 1st defendant was the absolute

owner of the property. So far as the documents go, the Collector''s certificate is in the name of the 1st defendant the sale deed is in her name and

she has executed Exs. II to V stating that the property was hers. In cashes where members of a family live together as co-parceners, it has been

held that the fact that the property stands in the name of the eldest member does not by itself create any title in him to the exclusion of the others

and that persons who are dealing with such family have to make enquiries and satisfy themselves that the person who deals with the property has

absolute power to do so. In the present case, I have little doubt on the evidence that Sampathiah who in this transaction'' was admittedly the agent

of the 4th defendant and conducted all the affairs knew Alwar Chetty very well. It is admitted, by both Sampathiah and Odyavarliah that they

made no enquiries of the plaintiff. According to the evidence, the plaintiff at the date of the mortgage was living in 14, Veerappan Street] along with

the 1st defendant and 2nd defendant. Curiously enough, the deed of mortgage, Ex. VI, does not mention the name of the 2nd defendant''s mother

but only her grand-daughter and the 1st defendant and her mother''s name seems to have been ascertained and inserted in the Registrar''s office.

Where in such cases the lender makes no enquiries of the members of a family and there is nothing to suggest that representation was made that no

other member was in existence, I do not think Section 41 would apply so as to deprive a co-parcener of his rights to the property. In the present

case, there was no reason given why the plaintiff was not asked whether she would consent and her existence was known to the 4th defendant''s

agent. It seems also probable on the evidence that the 4th defendant''s agent knew Alwar Chetty was really in need of money at the time and that

this transaction was really to help Alwar Chetty. I doubt very much whether the 4th defendant would have advanced Rs. 10,000 on the mere

statement that money was needed for repairs and improvements. This statement was put in to give some colour to the transaction. I do not think

that the 4th defendant is a bona fide mortgagee for value because, if she or her agent had made enquiries they should have known of the existence

of the 2nd defendant or the plaintiff and her right.

So far as the 3rd defendant is concerned, she is now a girl, 7 or 8 years old and it is not suggested that she contributed to the earnings of the

family or that any property was purchased out of her contributions.

My findings on the issues are:

Issue No. 1: Plaintiff and defendants Nos. 1 and 2 are members of an undivided family of davedasis and the plaint house was their joint property.

Issues Nos. 2 and 3.--House No. 58 was got by the 1st defendant from her ancestors and it was mortgaged by the first defendant and plaintiff

together as joint property and sold as such, the mortgage being for the purpose of paying off part of the consideration of the suit house. I think it is

proved that Rs. 1,500 out of this mortgage money went to pay off the consideration of house No. 7G.

Issue No. 4.--I find that the mortgage in favour of the 4th defendant was binding on the plaintiff to the extent of Rs. 5,000 and the interest thereon

up-to-date, aggregating to Rs. 7,373-7-0 and also further interest till payment and that it is also binding in its entirety on the 2nd defendant who has

stood surety and that only plaintiff''s 1/4th share would be exonerated for the balance after paying Rs. 5,000 and interest due till date of payment.

Issue No. 5.--I find house No. 76 is liable to be partitioned subject to the payment of the principal and interest on Rs. 5,000 to the 4 th defendant

as I have stated above, and that plaintiff is entitled to 1/4 share of the balance.

Issue No. 6.--I find there is no estoppel.

Issue No. 7.--I find that the 4th defendant was not a bone fide mortgagee.

As the evidence shows, this is the only property available for partition. This mortgage in favour of the 4th defendant has to be met and the only

way to meet it is to direct the property to be sold. The amount due to the 4th defendant up-to-date is Rs. 20,875-3-3 and the 4th defendant will

be entitled to this sum together with interest at 12 1/2 per cent, per annum from this date to date of payment. Out of this mortgage debt, the

amount which I found binding on the plaintiff is Rs. 5,000 with interest up-to-date and future interest at 12 3/4 per cent, per annum on Rs. 5,000

up-to-date of payment.

Out of the sale-proceeds of the house, this sum which is binding on all parties will be paid to the 4th defendant. Out of the balance 1/4th will be

paid to the plaintiff, and 3/4th to the 4th defendant in respect of the amount due on the mortgage, if there is any surplus, it will be divided between

plaintiff and defendants Nos. 1 and 2. If there is no surplus, there will be a personal decree against the 2nd defendant for the balance. The conduct

of the sale will be given to the 4th defendant. In the circumstances each party will bear her own costs.