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Judgment
Vithayathil, J.—Both these appeals are from the same decree. Plaintiffs are the appellants in S.A. No. 22 of 1950 and defendants 3 and 4 are the appellants in S.A. No. 63 of 1950. The suit is one in redemption. Plaint A and B schedule properties belonged to the 2nd defendant.
In execution of a decree against the 2nd defendant in O.S. No. 1014 of 1110 on the file of the Nagercoil Munsiff''s Court A schedule properties were sold in court auction and were purchased by the decree-holders in that case. They assigned their right to the plaintiffs. The properties originally belonged to one Arumanayagom the father of the 2nd defendant. The 2nd defendant had a brother by name Arulanandan who died in, 1107. The 2nd defendant and Arulanandan''s widow Pakiyam mortgaged plaint A and B schedule properties to one Yovan under Ext. VII dated 21-4-1108 for 5000 fanams. Yovan assigned the mortgage right to the first defendant under Ext. A dated 19-6-1118.
The suit was filed for redeeming A schedule properties on payment of proportionate mortgage amount of 3600 fanams or in the alternative for redeeming both A and B schedule properties on payment of the whole mortgage amount of 5000 fanams. The first defendant alone was made a party to the suit as it was originally filed. He contended that he had released the mortgage right in favour of the 2nd defendant. Thereupon the 2nd defendant also was impleaded in the suit and an amended plaint was filed. The 2nd defendant contended that after the death of his brother Arulanandan his widow Pakiyam succeeded to one-half right in Arulanandan''s properties, that Pakiyam''s right in the properties was not sold in O.S. 1014/1110, that Pakiyam died after the date of the Court sale and that he has succeeded to her interest in the properties.
He also contended that the mortgage, Ext. VII, was redeemed by himself and his two sons and that they were in joint possession of the properties. On the application of the 2nd defendant his sons were impleaded as defendants 3 and 4. They contended that they were in exclusive possession of A schedule properties, that they had effected improvements in the properties, that their right to these improvements was not affected by the Court sale in O.S. No. 1014 of 1110, that the plaint properties excepting A schedule item No. 1 belonged to their grandfather, that A schedule item No. 1 also was acquired by the joint family at a time when they were governed by the Hindu Mitakshara Law, that by virtue of the Christian Succession Act themselves and the 2nd defendant obtained 1/6 share each in the properties, that Arulanandan had gifted his share in the properties in favour of them and Pakiam and that they were accordingly in possession of the properties. They further contended that the mortgage Ext. VII did not take effect and that no possession passed under it.
The trial Court found that the mortgage took effect, that the mortgage right became vested in the 2nd defendant, that defendants 3 and 4 were not entitled to any value of improvements, that the whole right, in A schedule properties was sold in execution of the decree in O.S. No. 1014 of 1110 and that the gift relied on by defendants 3 and 4 was not true.
The learned Munsiff did not however think it necessary to decide the title to the properties set up by defendants 3 and 4. The plaintiffs were given a decree to redeem A schedule properties on payment of 5/6 of the mortgage amount of 5000 fanams. The plaintiffs were allowed mesne profits at the rate of 500 fanams from the date of deposit of the mortgage amount. They were also allowed 4 per cent. interest on the remaining 1/6 mortgage amount deposited by them in Court. Both the parties were directed to suffer their costs.
Defendants 3 and 4 appealed from this decision in A.S. 129 of 1121 and the 2nd defendant appealed in A.S. 301 of 1121. Both the appeals were heard together by the lower appellate Court.
The lower appellate Court modified the decree of the trial Court in the following manner: The plaintiffs were allowed to redeem 3/4 share in A schedule properties on payment of 3/4 of 5/6 of 5000 fanams. The plaintiffs were not allowed to recover mesne profits but were awarded interest on the mortgage amount at the rate of 6 per cent. per annum from the date of deposit of the amount till the date of delivery of possession of the properties. No interest was allowed on the balance mortgage amount deposited by the plaintiffs. Defendants 3 and 4 were made liable for the costs of the plaintiffs in the trial Court. A.S. N. 129 of 1121 filed by them was dismissed with costs. A.S. No. 301 of 1124 was allowed to the extent mentioned above.
Plaintiffs and the 2nd defendant were ordered to pay and receive proportionate costs of that appeal. The learned District Judge took the view that the court sale in O.S. No. 1014 of 1110 did not affect Pakiam''s 1/4 share in the properties which she got on her husband''s death and that since the 2nd defendant succeeded to that share after Pakiam''s death he was entitled to 1/4 share in the A schedule properties. It was on this ground that the learned District Judge held that the plaintiffs were not entitled to redeem 1/4 share in the properties.
The first defendant did not execute an assignment deed in respect of the mortgage right in favour of the 2nd defendant; neither was a registered release deed taken by him. The 2nd defendant relied on the endorsement Ext. VII-A on the mortgage deed to the effect that the mortgage money has been paid by him. It was contended on behalf of the plaintiffs that Ext. VIIA was not admissible in evidence to prove that the 2nd defendant acquired the rights under the mortgage. The learned District Judge held that Ext. VII-A was admissible in evidence to prove the discharge of the mortgage debt by the 2nd defendant. The 2nd defendant was treated as a mortgagee in possession and on that basis it was held that there was a merger of the mortgage right so far as the 1/4 share in the property was concerned and that he was entitled to resist redemption in respect of that share. Both these findings are attacked by the appellants in S.A. No. 23 of 1950.
So far as the first point is concerned, I find myself unable to agree with the view taken by the learned District Judge. The question depends upon the interpretation of Sections 17 and 24 of the Christian Succession Act. Section 17 provides thus:
If the intestate has left no lineal descendants, but has left his father or mother, or paternal grandfather or any lineal descendants of his father or such grandfather, one-half of the intestate''s property shall be allotted to his widow.
Section 24 reads thus:
Over any immovable property to which a widow or mother becomes entitled under Ss. 16, 17, 21 and 22, she will have only a life-interest terminable at death or re-marriage.
On the determination of the limited estate of the widow or the mother, the property over which she had such limited interest shall be distributed among the heirs of the original in testate, as if the holder of the life-estate had not survived the intestate.
According to the learned District Judge under S. 17 the widow succeeds as one of the heirs of the intestate and S. 24 only provides for divesting of the estate on her death or re-marriage.
Relience was also placed on S. 15 which reads thus:
Such property devolves upon the wife or husband or upon those who are of the kindred of the deceased in the order and according to the rules herein prescribed.
The view taken by the learned Judge is that the wording of Ss. 15 and 17 shows that the Act contemplates a devolution of property on the widow subject to divestment on her death or re-marriage.
According to the learned Judge until the death or re-marriage of the widow no other person can be said to have any interest in the share inherited by her. The right of the heirs of the original owner to claim that share on the death or remarriage of the widow is, according to the learn ed Judge, only a ''spes successionis'' and not a vested right which can be attached and sold in execution of a decree obtained against those heirs.
It was accordingly held that one-half share in Arulanandam''s estate vested in Pakiam on his death and that the 2nd defendant had no vested interest in that share during Pakiam''s life-time. It was only on Pakiam''s death that this 1/4 share devolved on him. Till that time he had only a ''spes successionis'' in respect of that share. The attachment and court sale in O.S. No. 1014 of 1110 could not therefore affect that share.
The question for consideration is whether the 2nd defendant had only a ''spes successionis'' in respect of the half share in Arulanandam''s estate which was enjoyed by Pakiam till her death or whether he had a vested interest in that share even during the life-time of Pakiam. If the estate taken by Pakiam on the death of her husband was of the nature of a widow''s estate under the Hindu Law it cannot be disputed that the 2nd defendant could have only a ''spes successionis'' in respect of that estate.
Under the Hindu Law a reversioner cannot be said to have a vested right in the property taken by the widow of the last owner. It is true that it is the heir of the last owner that succeeds to the estate on the death of the widow. But it is the person who will be the heir of the last owner at the time of the death of the widow that succeeds to the estate. He need not necessarily be the person who was the heir of the last owner at the time of his death. For this reason under the Hindu Law a person who is the heir of the last owner at the time of his death cannot be said to have a vested interest in the property during the life-time of the widow.
It has been held in various cases that the right of a reversionary heir expectant on the death of a Hindu widow is a ''spes successionis'' and is not transferable property. In - ''Amrit Narayan v. Gaya Singh'', AIR, 1917 PC 95 (A), the Privy Council said:
A Hindu reversioner has no right or interest ''in praesenti'' in the property which the female owner holds for the life. Until it vests in him on her death, should he survive her, he has nothing to assign or relinquish or even to transmit to his heirs. His right becomes concrete only on her demise. Until then it is mere ''spes successionis''.
A widow''s estate under the Hindu Law is not a. mere life-estate. The widow is the owner of the property inherited by her subject to certain restrictions on alienation and subject to its devolving upon the next heir of the last full owner upon her death. The whole estate is for the time vested in her, and she represents it completely. (Vide Mulla - Principles of Hindu Law, 11th Edn. P. 171).
In ''Janaki Ammal v. Narayanasami'', AIR 1916 PC 117 (B), the Privy Council said:
Her (widow''s) right is of the nature of a right of property, her position is that of owner, her powers in that character are, however, limited; but................ so long as she is alive no one has any vested interest in the succession.
But the position of a widow under the Travancore Christian Succession Act is entirely different. Under S. 24 of the Act what the widow gets is only a life interest terminable at death or re-marriage. She can only enjoy the property till her death or re-marriage. She has absolutely no power to alienate the property. In no sense can she be said to be the owner of the property. The persons who take the property on the termination of the life interest of the widow are those heirs of the original owner who are entitled to succeed to the estate on his death and not those who will be entitled to succeed to the estate at the time of the termination of the widow''s life interest.
Section 24 provides that the property shall he distributed among the heirs of the original intestate as if the holder of the life estate had not survived the intestate. This means that those who are the heirs of the original owner at the time of his death get a vested interest in the property subject to the life estate taken by the widow. If one of such heirs dies before the termination of the widow''s life estate his right will devolve on his heirs. This is clear from S. 26 which provides:
If a son, or a daughter, or a brother, or a sister, or a nephew, or a niece, or an uncle, or an aunt or a first cousin, of an intestate who, if alive at the time of the intestate''s death, would have been an heir, shall have died in his life-time, the lineal descendant or descendants of such heir, shall solely or jointly take the share which they would have taken if living at the intestate''s death and in such manner as if such deceased heir had died immediately after the intestate''s death.
It will thus be seen that the position of a person who under the Christian Succession Act succeeds to an estate in respect of which a life interest is created in favour of the widow of the intestate is entirely different from that of a reversioner under the Hindu Law in respect of property subject to a widow''s estate. Under the Christian Succession Act the heir of the original owner gets a vested interest in the property on the death of the owner whereas under the Hindu Law no vested interest in the property is created in favour of the reversioner.
Although it would appear from the wording of Ss. 15 and 17 of the Christian Succession Act that the widow succeeds to the estate of the intestate as one of his heirs Ss. 17 and 24 read together make it clear that what the widow gets is only a life interest terminable at death or re-marriage and that the other heirs of the intestate succeed to the estate subject to the limited interest created in favour of the widow. S. 24 expressly says that the widow will have only a life interest terminable at death or re-marriage. That interest is further described as "limited estate", "limited interest" and "life estate". The right of a person who succeeds to an estate subject to a life interest created in favour of another is clearly not a mere ''spes successionis''. It is a vested interest and is transferable property. It is property which is capable of being attached and sold in execution of a decree.
The 2nd defendant had therefore a vested interest in the half share of Arulanandam''s properties that was enjoyed by Pakiam till her death. All his interests in the properties including this vested interest in the half share were sold in court auction in O.S. No. 1014 of 1110 and purchased by the decree-holders. When Pakiam died in 1115 her life interest in the properties was terminated and the auction purchasers became the full owners of the properties. The 2nd defendant could not, therefore acquire any fresh right in the properties on the death of Pakiam. It follows from this that the 2nd defendant has no right to any share in the equity of redemption of the plaint properties. The learned District Judge has gone wrong in holding that the 2nd defendant is entitled to resist redemption in respect of 1/4 share in A schedule properties and that the plaintiffs are entitled to redeem only the remaining 3/4 share. I hold that the plaintiffs are entitled to redeem the whole of A schedule properties.
Another argument advanced on behalf of the appellants in S.A. No. 22 of 1950 was that Ex. VII (A) endorsement relating to the payment of the mortgage amount by the 2nd defendant is not admissible in evidence to prove either the transfer of the mortgage right in favour of the 2nd defendant or the extinguishment of the mortgage. It was conceded by learned counsel for the appellants that Ex. VII (a) is admissible in evidence for proving that as between defendants 1 and 2 it is the 2nd defendant who is entitled to the mortgage money.
But he contended that Ex. VII (a) cannot be admitted in evidence for proving that the 2nd defendant has acquired the mortgage right. The 2nd defendant can resist redemption in respect of 1/4 share in the properties only in case he is a mortgagee and the owner of the equity of redemption in respect of that 1/4 share in which case the mortgage in respect of that share will be deemed to have merged in him. In view of my finding that he has no subsisting interest in any portion of the equity of redemption of the properties the question of merger of the mortgage right and the equity of redemption does not arise in this case. In the circumstances, it is not necessary to consider the question whether Ex. VII (a) is admissible in evidence for the purpose of proving that the 2nd defendant has acquired the mortgage right. No other point was argued in S. A. 28 of 1950.
In S.A. No. 63 of 1950 filed by defendants 3 and 4 it was argued that they are entitled to 1/3 share in plaint A schedule properties and that they being in possession of the properties are entitled to resist redemption in respect of their 1/3 share.
The Courts below have concurrently found that defendants 3 and 4 are in possession of the properties under the 2nd defendant and not in their own right. Their case is that the mortgage, Ex. VII did not take effect, that no possession passed under it and that they were in possession of the properties as co-owners even before the date of the mortgage. But the Courts below have concurrently found that possession passed under the mortgage.
Ex. VII is a usufructuary mortgage and there is no reason to hold that possession was not transferred to the mortgagee. It is of the year 1108. Ex, A is the assignment of the mortgage executed by the original mortgagee in favour of the first defendant on 19-6-1118. It is stated in Ex. A that the mortgagee was in possession of the properties and that possession was transferred to the first defendant under the document. In the circumstances, I find no reason to disagree with the concurrent finding of the Courts below that possession was transferred under Ex. VII. Defendants 3 and 4 have no case that they got possession of the properties from the first defendant: neither have they a case that they paid any portion of the mortgage money to the 1st defendant. The 1st defendant''s case is that the 2nd defendant paid the mortgage money and that the property was in the possession of the 2nd defendant.
The Courts below therefore rightly held that the possession of defendants 3 and 4 is only under the 2nd defendant. They cannot, therefore, be regarded as mortgagees of the properties. Even if they have any title to the properties they cannot resist the plaintiff''s suit for redemption. It is only a mortgagee who has acquired title to any portion of the equity of redemption that can resist a suit for redemption in respect of that portion.
It is therefore unnecessary to decide in this suit whether defendants 3 and 4 have any title to the suit properties. The Courts below have left open that question. There is, therefore, no merit in the second appeal filed by them.
In the result, I set aside the judgment and decree of the lower appellate Court in so far as they are against the plaintiffs and restore those of the trial Court. The 2nd defendant will be allowed to draw from Court that portion of the mortgage amount which the mortgagee is allowed to draw as per the decree of the first Court. Subject to this direction S.A. No. 22 of 1950 is allowed with costs and S.A. No. 63 of 1950 is dismissed with costs.