Poochammal vs Sundarammal and Others

Spencer, O.C.J.

This is a suit by a reversioner to obtain a declaration that the Court sale in favour of the 2nd defendant of certain properties which belonged to

the reversioner''s father and the subsequent sale by the 2nd defendant to the 3rd defendant are not for purposes binding on the estate and are not

valid after the death of the 1st defendant her'' stepmother who is alleged in the plaint to have got a suit instituted by the 2nd defendant her maternal

uncle who is also husband of her sister. The District Munsi dismissed the suit; on the issue as to limitation without trying the, other issues, and the

District Judge confirmed his decree. The grounds given by the District Judge for holding that the suit is barred by limitation under Article 125 is that

the decree and sale sought to be declared invalid were preceded in 1905 by a mortgage and that the sale in execution cannot be taken as the

starting point for limitation when there is a previous mortgage upon which the decree was obtained. There are observations to this effect in

Rustomjee''s commentary on the Law of Limitation in which reference is made to Jaggi v. Prithi Lal (1894) A.W.N. 134. The learned Judges in

that suit held that reversioners could not maintain a suit under Article 125 to declare that a Court sale was not valid against the reversion unless

they were entitled to a declaration that the antecedent mortgage also was void except for the life of the mortgagor, There is no discussion in that

decision of the questions whether the mortgage itself was binding or not on the reversion and whether the decree obtained on that mortgage was a

fresh act of alienation or whether it bound the reversioners as being a decree obtained by the widow representing the estate of her late husband.

The present case however is distinguishable. In the plaint it is alleged that the mortgage of 1305 was a sham hypothecation executed in order to

defeat the reversionary rights of the plaintiff and without any justifying necessity. The Courts below have not investigated the nature of that

transaction. No relief is asked for in respect of it. If the mortgage was binding upon the reversion it would be open to the reversioners on the

widow''s death to redeem it if they applied in time for redemption. If it was an act of the widow not binding upon the reversion it would operate

only for the lifetime of the widow. If it was a sham transaction the reversioners could ignore it and were not bound to sue to set it aside. A sham

transaction means a transaction which has no legal effect either upon the parties who enter into it or upon the estate which they represent. As

regards the subsequent decree and sale the allegation in the plaint is that the 1st defendant got her uncle to institute the suit O.S. No. 379 of 1909,

and got up a decree in collusion with him and had the properties purchased for a price much below their value. Whether the action of the 1st

defendant in colluding with her relative to defraud the estate by a collusive decree and sale amounted to an alienation has not been decided by the

Courts below. It is undisputable that in some cases decrees of Court to which a limited owner is a party may amount to alienations. This appears

from the Privy Council decision in Khunni Lal v. Gobind Krishna Narain (1911) 33 All. 356, and has been followed in Kanhaiya Lal v. Kishori Lal

(1916) 38 All. 679, and considered by this Court in Gadiraju Somaraju v. Dandu Venkiah (1917) 26 M.L.T. 180, and N. Ranga Rao Vs.

Ranganayaki Ammal and Others, . The test applied by the Privy Council to decide whether the widow''s action amounted to an alienation was to

see whether she materially contributed by her action to the transfer and a similar principle has been applied in the other decisions which followed

the Privy Council judgment. If the plaint allegation is true that the first defendant was a party to a collusive suit followed by a decree and a sale and

if she materially contributed to the property belonging to the estate being alienated by that means, the plaintiffs are within time in this suit of 1919 in

bringing an action under Article 125 to have that alienation declared to be void and the suit should not have been dismissed on the issue as to

limitation without deciding the other issues which arise out of the plaint allegations. I am not aware of any other authority for holding that a

reversioner who complains of a greater invasion of his reversionary rights, as did an outright sale, should be compelled to first sue to have a lesser

infringement of his rights, such as a redeemable mortgage declared invalid before he can obtain relief in respect of the greater injury.

In the result, the appeal is allowed, the lower Courts'' decrees are set aside and the suit is remanded for disposal upon its merits. Costs in the

lower Courts will abide and be provided for in the final decree. Third respondent will pay the appellant''s costs in this Court and bear his own. The

appellant is entitled to have the Court-fee on the second appeal refunded.