S. Appaswami Pillai (deaceased) and Others vs Thayammal alias Thaiyamuthu Achi and Another

Krishnaswami Aiyangar, J.—This is an appeal by a reversioner whose suit has been dismissed by the Subordinate Judge of Tanjore. He

sued to recover possession of certain lands in Panayur village, Mannargudi Taluk, which admittedly formed part of the estate of one Appa Pillai

who died in January, 1879, leaving considerable properties movable and immovable. At his death, Appa Pillai left two widows Thayyamuthu and

Karoalathachi, a daughter Neelambal by his pre-deceased first wife, and another daughter Palanivelu by Thayyamuthu, the second of his three

wives. Thayyamuthu and Kamalathachi the two widows who survived Appa Pillai died in 1887 and 1907 r espectively. Palanivelu died in 1908

and Neelambal the last of the intermediate limited owners died on 28th May, 1923. Neither of them has left any issue and the estate would devolve

on the reversioners unless it had been validly disposed of in the meanwhile.

The nearest reversioners according to the finding of the Subordinate Judge were Appasami Pillai the plaintiff-appellant and his brother

Thiagaraja. They were the sons of Swami Pillai related to the deceased Appa Pillai as his nephews through their father Thiagaraja, a natural brother

of Appa Pillai but adopted to his separated uncle Kathaperumal. The members of the family and their relationship to each other are accurately

shown in the Genealogical table set out in paragraph 6 of the judgment of the Subordinate Judge. The particulars contained in that table have not

been disputed before us.

By a deed of release evidenced by the original of Ex. H dated 14th June, 1923, Thiagaraja released his interest in the reversion to the plaintiff

who thus became entitled to claim the whole of the estate for himself exclusively.

The lands in suit form only a fraction of the original estate. There were a number of litigations relating to it, some during Appa Pillai''s life and

some after. The earliest was a suit O.S. No. 2 of 1871 in the Civil Court of Tranquebar, instituted by Durayappa, a natural brother of the plaintiff''s

father Swami Pillai, but adopted to his uncle Appasami. In that suit Durayappa claimed partition of the family estates, on the footing that he was an

undivided member of a joint family along with his uncle Thiagaraja, his natural brother Swami Pillai, a cousin Panchanada the son of his uncle

Muthusami, and his juniormost uncle Appa Pillai, who were all joined as defendants 1 to 4 in the order of enumeration. Though in form the suit was

against all the four defendants it was in fact directed against Appa Pillai and for obtaining a share in his separate and self-acquired properties.

Defendants 1 to 3 seem to have really colluded with Durayappa whose success would enure to their benefit also. The acting Civil Judge who tried

the case found that Durayappa''s natural father Thiagaraja had been adopted away to Kathaperumal his divided uncle and ceased thenceforth to

belong to the branch of Appa Pillai''s father Ramu Thevar. This finding cannot be regarded as irrelevant or unnecessary for the decision of the suit.

For it will be seen that though the suit was ultimately dismissed on the ground of limitation, that conclusion was arrived at on a consideration of the

question whether the lands in Appa Pillai''s exclusive possession belonged solely to him and was enjoyed absolutely by him without reference to the

other members of the family. The fact that by his adoption Thiagaraja ceased to belong to the family of his birth was undoubtedly a circumstance

and a material one for negativing the joint status set up by Durayappa. The learned Civil Judge expressed his conclusion in the following terms:

I decide generally that the plaintiff''s case is false and the fourth defendant (Appa Pillai''s) case substantially true and particularly that the plaintiff

and defendants have not dwelt together in unity but on the contrary the first and second and fourth defendants have dwelt apart and separate from

the plaintiff and from other members of the family for a very long space of time largely exceeding twelve years before suit brought.

That conclusion was among others based on two documents produced and marked Exs. I and II in that case, which made it abundantly clear

that Thiagaraja had been adopted away from the family to a divided uncle, a fact which was not seriously disputed in that case and has not been

disputed in the present appeal. An appeal, Regular Appeal No. 31 of 1873 was preferred to this Court against the decision of the Civil Judge, and

was disposed of by Innes and Kindersley, JJ., on 17th June, 1873. The opening words of the judgment fully express the view they took. They said:

That this is in part at least a dishonest and collusive suit is apparent from the admission which plaintiff was compelled to make in the course of it

and which he must have been well aware of all along that first defendant (Thiagaraja), his natural father, having many years ago, been adopted into

the family of Kathaperumal a divided branch, had no title whatever to be included as a coparcener entitled to take advantage of the partition as

against the fourth defendant (Appa Pillai) except on the ground of reunion with him which is not asserted. Had the suit succeeded upon its original

footing plaintiff''s natural father and his issue the plaintiff and the second defendant would have fallen into half of the property which plaintiff alleges

to be family estate.

The learned Judges then proceeded to consider the merits, and concurred with the finding of fact and of law by the trial Judge, and dismissed

the appeal so far as Appa Pillai was concerned. But as regards the lands in the possession of the other defendants, they directed a division on the

ground of reunion which appeared to them to have been established as between themselves. It is noteworthy that in this division Appa Pillai neither

shared nor claimed to share.

Swami Pillai, the father of the present appellant, was the second defendant in O.S. No. 2 of 1871 and must have known that by reason of his

father Thiagaraja Pillai''s adoption to Kathaperumal he ceased to possess any interest in the property belonging to Ramu Thevar''s branch, and

could not therefore advance any claim to the properties of Appa Pillai on the footing of a joint status. He must have also known that Appa Pillai''s

properties were his own separate properties so found either on the footing of self-acquisition or by limitation. These two cardinal facts were clearly

established by the above litigation and would In our opinion be res judicata if the same questions should be re-agitated between the parties. The

reasons adduced by the Subordinate Judge for the contrary view do not convince us as they proceed on an incorrect appreciation of the facts and

an erroneous view of the law.

We have already adverted to the circumstances that the interests of Durayappa and those of Thiagaraja and Swami in the suit of 1871 were

identical, in that the success of the former would enure to the benefit of the latter as well, and further that all the defendants except Appa Pillai were

colluding with the plaintiff in the attempt to establish the joint and therefore the divisible character of Appa Pillai''s properties. That Swami Pillai and

Appa Pillai were ranged as co-defendants is a matter of no consequence in view of the obvious conflict of interest between the two. To say that

''they were not allowed to be heard'' or that ''they were refused to be heard'' is to say something which is not borne out by the facts as disclosed in

the judgment of the Civil Judge. From it it appears that they were placed ex parte on account of their non-appearance at the framing of the issues,

an order which they themselves did not choose to question, being apparently content to leave the plaintiff to fight the common battle. They never

appeared later nor did they take any step to approach the Court with a view to their being heard. Even otherwise a decision by a competent Court

cannot cease to be binding on the parties in a later suit for this or any similar mere irregularity. We are again unable to agree with the Subordinate

Judge''s view that the only question decided was a preliminary question of limitation. According to our reading of the original as well as the

appellate judgment, the findings as to the adoption of Thiagaraja and the separate enjoyment and hence the exclusive title of Appa Pillai formed the

true basis on which the binding of limitation was rested, and were in this sense necessary for the decision of the suit. Nor can we find any support

for the view that the defendant, who sailed with the plaintiff, could not have appealed against the decision in a suit of this kind. We are again unable

to discover why the decisions of the Privy Council in Maung Sein Done v. Ma Pan Nyun (1932) 63 M.L.J. 64 : L.R. 59 IndAp 247 : ILR 10

Rang. 322 (P.C.) following art earlier decision of the same Tribunal in (1931) ILR 53 103 (Privy Council) have, not been acted upon by the

Subordinate Judge. From them it is clear that neither the fact that a defendant did not contest but supported the plaintiff''s claim, nor the fact that he

was merely joined as a pro forma defendant nor again the fact that the suit finally ended in a dismissal is a good reason for negativing a plea of res

judicata between co-defendants if they occupied as they in fact occupied a position of conflict. We are therefore of opinion that the decision in the

suit bound Swami Pillai, and precluded him from re-agitating questions settled by it. It is unnecessary, however, to stress the point further for the

purpose of the present appeal. For even if that decision does not constitute res judicata the materials referred to in it are sufficient to incline us to

the identical conclusions on an independent consideration. The result then, of this discussion is that it is impossible for Swami Pillai to have believed

that he was still a member of a joint family with Appa Pillai, or that on the latter''s death his properties could survive to him as the surviving member

of that family. Yet this was the position he boldly took up in the suit O.S. No. 1 of 1880 filed by him in the Sub-Court of Kumbakonam to which

we shall immediately refer.

When Appa Pillai died in 1879, there was at the time pending in the Sub-Court, Negapatam, O.S. No. 27 of 1878, a suit instituted by him

against his nephew Panchanadam, and certain others for the recovery of about 31 velis of land in the village of Thiruvalanchuli on the ground that

Panchanadam had unlawfully trespassed on the property. Panchanadam had filed a written statement setting up a gift of the land in his favour by

Appa Pillai himself. After the latter''s death his senior widow Thayyamuthu alone was brought on the record in his place. The suit was finally settled

by a compromise Ex. E, dated 1st March, 1880, made a rule of Court by the judgment Ex. E, on 2nd March, 1880. By this compromise

Thayyamuthu accepted the truth of the defendant''s case subject only to his paying a sum of Rs. 700 for her costs of the suit. About the end of

1879, while this suit was yet pending, Swami Pillai, the father of the present plaintiff, instituted O.S. No. 1 of 1880 on the file of the Sub-Court,

Kumbakonam, laying claim to the entire estate of Appa Pillai, on the allegation that while he, his father Thiagaraja and Appa Pillai were living

togetheras undivided members of a joint family, Appa Pillai had died, and that consequently all the properties in the possession of Appa Pillai had

survived to him as a surviving member of the family. According to plaint his two widows Thayyamuthu and Kamalathachi who had in the

meanwhile obtained a succession certificate for the collection of the outstandings left by Appa Pillai, had no right whatever to the estate and were

merely entitled to maintenance. Neither Panchanadam nor Durayappa was recognised as having any right to the property the former on the ground

that he had received for his share the lands, which formed subject-matter of his claim O.S. No. 27 of 1878, and the latter on the ground that his

suit O.S. No. 2 of 1871 had been dismissed, and he thereby lost all right to a share. About himself he added the somewhat singular remark that the

decree did not stand in his way:

As he was on the same side as a defendant with Appa Pillai, and as he was unable to prefer an appeal for himself inasmuch as he also contested

that the family was undivided.

We have not the faintest doubt that this suit was but a knowingly dishonest and disingenuous attempt on the part of Swami Pillai to secure

Appa Pillai''s estate from his two helpless and probably ignorant widows. The importance and the serious nature of the obstacles in the way of his

success in such a bare-faced attempt must have been fully present to the mind of Swami Pillai himself and very likely also of his legal advisers who

must have had access to the records of the suit of 1871. It is scarcely possible that they could have thought that there was the remotest chance of

getting away with a claim so unsubstantial. What subsequently happened is certainly as mysterious as it is surprising. On 16th March, 1880, each

of the two widows filed a separate written statement urging what appears to us a cogent defence, but it is remarkable that within three days,

namely, on 19th March, 1880, a razinama, Ex. G, was filed and on 23rd March, 1880, made a decree of Court in Ex. VII. The very brief interval

between the written statements and the razinama raises a natural doubt as to whether the defence was meant seriously or whether it was put in

merely to invest the compromise with a colour of genuineness. If up till three days prior the widows were bent on fighting the suit, it is scarcely

likely that a suit of these dimensions involving rights of substantial value could have been so quickly settled. With our knowledge of prevalent

conditions, we are inclined to think that there is force in the appellant''s argument that the so-called defence was nothing but a pretension devised

by Swami Pillai with the willing concurrence of the widows, who were perhaps for their own reasons agreeable to lend themselves to the scheme.

We shall presently examine this compromise more closely, but we may at once say that on the validity of its terms that the Subordinate Judge has

rested his judgment, and the respondent has almost entirely relied in the present appeal.

By the razinama decree Swami Pillai secured for himself almost three-fourths of the estate straightaway. Thayyamuthu got 27 velis absolutely

out of which she gave up 10 velis to Neelambal, retaining about 17 velis equivalent to about 102 acres for herself. She also got a sum of Rs. 4,000

in cash. Kamalathachi was given absolutely lands of the extent of 111 velis equal to 70 acres, besides a sum of Rs. 3,000 in cash. The extent of the

land and the amount of the cash received dispel the idea that they were reserved to them by way of maintenance, which indeed was not seriously

asserted before us. Looking to the cash alone which was very considerable if we remember its value at the time, it seems to us that the widows

were in the main prompted by self-interest rather than by any consideration for the estate. It is not unlikely in the then state of the knowledge of the

law, that the parties did not realise the legal incidents of a widow''s estate under Hindu law, or the true nature of the restrictions which bound such

an estate for the benefit of the ultimate reversioners. It was not till the decision of the Privy Council in 23 CWN 777 (Privy Council) was

pronounced that the correct principles became clarified. Very likely Swami Pillai, the widows and their adviser,s thought, wrongly thought, that if

the then nearest reversioner was himself a party, the compromise was incapable of being challenged at any time by the remoter actual reversioner.

So they set about getting rid of all possible chance of the widows themselves challenging it on one ground or another, by surrounding it with those

indicia which would tend to show that the parties dealt with each other at arms length with a full knowledge of their respective rights, so as to avoid

any suspicion of over-reaching or fraud. The result was a division of the estate satisfactory enough to the actual parties to the compromise but

entirely destructive of the rights of the ultimate reversioner if he should happen to be a person other than Swami Pillai. The learned Judge in the

Court below has accepted the respondent''s contention that the actual reversioner was bound by the compromise, and could not claim any portion

of the properties which the widow took absolutely under it. We are clearly of opinion that the Subordinate Judge''s conclusion cannot be

supported.

It cannot be disputed that Swami Pillai was at best only a remote reversioner with a bare expectancy. Nor can it be said that the transaction

approximated to a surrender by the widows, a case neither suggested nor considered in the Courts below. We are again not concerned in this

appeal with a claim to that portion of the estate which was cut out and carried away by Swami Pillai under the compromise. If that were indeed the

case, some of the considerations adverted to by the learned Subordinate Judge may perhaps have a bearing. If the claimant were a stranger, and

not the son of Swami Pillai and were not himself in possession of the properties which went to Swami Pillai under the compromise, he would

perhaps be in a position to claim it back with a prospect of success. This appeal is however not concerned with that portion but with the other

portion of the estate which was retained by the widows and to be more exact, with that part of it which was taken by Thayyamuthu under the

compromise with absolute rights.

The Hindu Law does not permit a widow or any other limited owner, to convert her limited estate into an absolute one. A surrender by the

widow genuinely intended and validly effected in favour of the next reversioner is no doubt recognised as valid in spite of the reservation of a

reasonable portion of the estate for her maintenance. The particular mode by which such a surrender is to be effected may differ, but it must in

substance amount to an effacement of her estate. A compromise is no doubt one of the modes recognised, if in other respects it satisfies the

conditions of a valid surrender (1921) ILR 48 100 (Privy Council) . In the present case, however, the compromise cannot be justified by an

appeal to the doctrine of surrender in so far as it conveys an absolute interest to the widows in the properties allowed to be retained by them. No

such case has, as we have said, been advanced, but apart from it, it is definitely ruled out by reason of the fact that Swami Pillai was not the

nearest reversioner at the time. In fact both Durayappa and Panchanadam who were both alive then, were nearer reversioners, belonging as they

did to the same branch as Appa Pillai, whereas Swami Pillai belonged to the branch of Kathaperumal to whom his father Thiagaraja had been

adopted.

The ground upon which the Subordinate Judge has rested his judgment is that the compromise should be regarded as a bona fide settlement of

doubtful claims, amounting in fact to a family arrangement brought about in the interests of all parties and with a view to bring peace to the whole

family. As we have already indicated, if the claim is made by the actual reversioner to recover properties conveyed away to a stranger under a

compromise by the widow, the considerations adverted to by the learned Subordinate Judge may have a material bearing. But the question we

have to consider is different, for we are concerned with that portion which had been left with the widows with rights of full ownership. It was urged

that the compromise must be regarded as having been bona fide entered into in the circumstances in which it was brought about and must therefore

be held binding on the actual reversioner. It is impossible for us to accept this argument in the face of the fact that Swami Pillai was putting forward

what was to his knowledge a thoroughly unfounded and dishonest claim. When the reversioner acted with such knowledge, the compromise

cannot be supported as it is devoid of the essential element of bona fides AIR 1924 56 (Privy Council) (1918) ILR 45 17 (Privy Council) and

Baijnath Rai v. Mangla Prasad Narayan Sahi I.L.R.(1925) 5 Pat. 350. The compromise also fails for another and an equally potent reason. The

rule of law governing a compromise can be stated in this way. A compromise made bona fide for the benefit of the estate and not for the personal

advantage of the limited owner will bind the reversioner quite as much as a decree on contest 27 CWN 269 (Privy Council) and Raoji v. Kunjalal

(1930) 58 M.L.J. 720 : 1930 L.R. 57 IndAp 177 : ILR 54 Bom. 455 (P.C.). Bona fides in this connection has reference to the state of mind of

the parties not in relation to their personal claim in the dispute, but in relation to the estate, that is, to the rights of the prospective reversioner to

whom it is to descend unimpeded and undiminished except to the extent to which the intermediate holder is permitted to deal with it bylaw. In other

words the protection of the estate, that is, of the interests of the ultimate reversioner, appears to be in part at least the policy underlying the rules of

Hindu Law in this behalf, and the restrictions which that law places on a limited owner''s powers of disposal are in part at least referable to this end

in view. So it is that a transaction which ignores the rights of the reversioner and aims at securing a personal benefit to the limited owner is not

allowed to prejudice the rights of the former. A compromise may in some cases also amount to a family arrangement, and from that point of view,

justified if it is prudent and reasonable, and bona fide effected to secure family peace. But an arrangement made in violation of the law, and in

conscious disregard of the right of the reversioner will not be upheld even though it is made to assume the cloak of a family arrangement. It is not

the form but the substance that the Court will consider in judging of its validity.

Looking at the facts of the present case, we are unable to find any circumstance which can warrant our holding that the widows obtained in

fact an absolute interest as against the actual reversioner, namely, the plaintiff. It may be that if Swami Pillai himself had ultimately turned out to be

the actual reversioner, he might be held bound by the compromise in every detail Ram Gowda Anna Gowda v. Bhausaheb (1927) 53 M.L.J. 350 :

ILR 52 Bom. 1 (P.C.) and Kanhai Lal v. Brij Lal . But the appellant, though a son of Swami Pillai, does not claim through him, but in his own

independent right, and hence is not bound by an invalid compromise to which he was not himself a party and from which he did not directly derive

any benefit. That one reversioner does not trace his title through another even if they are related to each other as son and father is too well settled

to require any citation of authority. It will also be observed that the widows did not put forward any personal rights in the subject-matter of the

litigation, and indeed it is clear they had none. They merely claimed a widow''s estate in the properties which in the written statement they asserted

were the separate and selfacquired properties of the husband. It is consequently inadmis sible to view the compromise as an acknowledgment of

an antecedent title in them on the basis of the principle enunciated in (1911) L.R. 38 I.A. 87 (Privy Council) . The decision of the Privy Council in

(1935) L.R. 63 I.A. 155 (Privy Council) relied on by both sides before us, does not afford any support to the respondent''s contention in the

appeal. The award which was the bone of contention in that case was passed in a dispute between Mussamat Jamma the widow of Ji Sukh on the

one side and Ram Sahai his undivided brother who had taken the estate by survivorship on the other. The award was held to have conferred an

absolute right to a portion of the estate on the widow though before the arbitrators she had claimed only a widow''s estate as the heir of her

husband. At page 168, their Lordships explain the principle on which the decision was based. They observe:

No doubt, had the facts been that Ji Sukh at the time of his death was separated from his brother, this award could have availed the plaintiffs

nothing against a claim by Ji Sukh''s reversioners. On the face of the transaction it is not such a compromise by a Hindu widow as could be held

binding upon her husband''s reversioners. In the present case, however, as it has been established that Ji Sukh at the date of his death left no

heritable interest in the property in suit, the sole question decisive of the rights of the parties is the true construction of the bargain made by

Musammat Jamma with Ram Sahai. Their Lordships consider that the absolute title of Musammat Jamma is established and that the learned Judges

of the High Court were wrong in thinking that, because her claim before the arbitrators was originally a claim by a Hindu woman to take her

husband''s estate by inheritance, the estate which she in fact obtained under the award was confined to a limited estate. By the bargain which she

drove the reversioners of her husband were not damnified. She did not bind them or represent them, and she was not their agent or trustee to

acquire property for her husband''s estate. She is not estopped as against them from setting up the title wjiich she took from Ram Sahai: nor have

they any claim to share in what she gained.

It will thus be seen that the absolute estate which the widow got under the award was in fact sustained on the footing of a grant by Ram Sahai

who was the full owner according to the finding of their Lordships. What is specially worthy of note for the present purpose is the opinion of the

Privy Council expressed in the first two sentences of the above extract, which leaves no room for doubt on the principle to be applied to the

determination of this appeal. If Ji Sukh had been divided from Ram Sahai, Musammat Jamma would have held only the limited estate of a widow in

the properties of her husband. Ram Sahai would have then occupied the position of a presumptive reversioner. If in such circumstances a conflict

arose between the widow on the one hand and the presumptive reversioner on the other, could it be properly resolved by an award or a

compromise giving to the widow or recognising in her an absolute right to a portion of the estate, so as to bind the actual reversioner? The answer

is a definite No. In the words of their Lordships, ""on the face of the transaction it is not such a compromise by a Hindu widow as could be held

binding upon her husband''s reversioners"", and could not therefore prevail against the actual reversioner when the estate falls in. If their Lordships''

decision recognised the absolute character of the estate obtained by the widow in this case, it was because Ram Sahai was not a reversioner in any

sense of the term, but had actually become the owner of the property by survivorship on the death of his brother Ji Sukh. He was consequently in a

position to dispose of it in any way he liked, by parting with it in favour of any person he pleased. The conclusion of their Lordships was that Ram

Sahai, competent as he was to deal with the property as full owner, should be held to have parted with it in favour of Musammat Jamma. This is

clearly implied in the last sentence in the above extract. We think that this decision of the highest tribunal is of much assistance in disposing of the

respondents'' contention in this case. It follows that in a suit in which the presumptive reversioner or for the matter of that even a stranger is ranged

on one side and a widow or widows claiming as heir or heirs of the husband on the other, it is not permissible for either or both of the parties to

enter into an arrangement calculated to enlarge the limited estate of the widow into one of an absolute character. The presumption in a transaction

of this kind is that the estate taken is merely the limited interest of a widow, though special circumstances may outweigh it. AIR 1927 101 (Privy

Council) . Not only has the presumption not been rebutted, but on the contrary there is reason to think that the widows were prompted by a desire

to take advantage of the situation for securing a substantial benefit for themselves in the shape of considerable amounts in cash, besides the

immovable properties taken by them absolutely. It is true that in the result the widows were deprived of about three-fourths of the estate which

they could have enjoyed for their lives on what was but a flimsy and unsubstantial claim. It is unnecessary however to enquire why they acceded to

such a preposterous claim. It might have been due to their ignorance and helplessness, or to the fear that they might lose the whole of the estate

and be left only with a bare right of maintenance or it might have been the result of undue influence or even coercion. It is equally possible that the

compromise presented an attractive proposition in that it would enable them to obtain a substantial amount of liquid cash for themselves, and for

their immediate purposes, and would also leave in their hands considerable immovable properties which they could divert at pleasure in favour of

any person or persons on whom they might choose to confer a bounty. This appears to us, to be the more likely alternative. But no materials are

now available to enable us to probe into the question and arrive at a definite finding; and further as we have said this enquiry is rendered

unnecessary in the view we have taken of the nature and effect of the compromise. We must therefore hold that the terms of the compromise

notwithstanding, the widows had no more than a limited interest in the properties allotted to them though in absolute terms by that compromise.

Although the validity of the compromise is the main question to be considered, certain other contentions were also advanced by the

respondents and had been accepted by the lower Court. Before we examine them ourselves it is necessary to refer to a few more facts.

The claim in the suit relates to a portion of the properties allotted to Thayyamuthu under the compromise. As we have already mentioned

Thayyamuthu got about 27 velis of land besides a sum of Rs. 4,000 in cash, while Kamalathachi got only about 111 velis and Rs. 3,000. The

discrepancy in the shares is due to the fact that out of Thayyamuthu''s share, Neelambal the daughter had to be given the lands promised to her by

her father Appa Pillai and included in the deed of gift, Ex. B dowry deed, which was later executed by Thayyamuthu but to the registration of

which she withheld her consent for the reasons contained in Exs. D and D-1. It would appear that a portion of the land comprised in Ex. B was

allotted to Kamalathachi under the compromise, and a house which was to have been taken by Neelambal was under the same compromise

conveyed to Swami Pillai. The balance alone of the property covered by Ex. B was taken by Neelambal, and formed after her death, the subject-

matter of the litigation evidenced by Ex. IX series to which we shall presently refer. Thayyamuthu bequeathed the properties she got under the

compromise to her daughter Palanivelu by a will dated 12th Tune, 1887, who in her turn bequeathed it to one Kandasami by her will of 11th

January, 1908. Kandasami took possession of the property and enjoyed it till his death in 1914, when the defendant his widow succeeded to it.

She is the first respondent in the appeal, the second respondent being one Ramu Thevar added as a party on his application in order to enable him

to watch his reversionary interest in view of a compromise sought to be effected between the legal representatives of the plaintiff-appellant, and

Kandasami''s widow, the first respondent. She did not take part in resisting the appeal which was in fact contested by the second respondent only.

No new or special case has, we may observe, been put forward by him in the arguments presented to us. Among the other contentions advanced

by the first respondent in the Court below and accepted by the learned Subordinate Judge, one was, we think rightly, abandoned, namely, that the

plaintiff was debarred from contending that the compromise in O.S. No. 1 of 1880 was not binding on him by reason of the decision of the

Tanjore Sub-Court in O.S. No. 1 of 1924 which held that it was valid and binding. This contention formed the subject of issue No, 5 in the Court

below, which was found in the affirmative. In O.S. No. 1 of 1924 one Ramu Thevar sued as trustee to recover the properties which were gifted to

Neelambal subject to the deductions mentioned above. His case was that Neelambal had obtained an absolute interest in the property, which she

dedicated to certain charities appointing Kandasami Thevar to conduct and manage the same. Kandasami was unwilling, it was said, to undertake

the duties of a trustee, and further predeceased Neelambal. Thereupon she managed them herself during her lifetime and died on 28th May, 1923,

having appointed Ramu Thevar to manage the trust after her. It was also alleged that Swami Pillai and his brother Thiagaraja trespassed upon the

properties, and they were accordingly made parties to the suit along with the widows of Kandasami. The compromise in O.S. No. 1 of 1880 was

impugned by Swami Pillai and his brother, but without success, in the trial and the appellate Courts. In second appeal however, that question was

not gone into, as it became unnecessary in view of the finding that the properties were held to have been gifted to Neelambal even during the

lifetime of Appa Pillai himself. In view of the abandonment of this contention, we do not think it necessary to enter into a discussion of the legal

effect of the decisions arrived at in the said suit and evidenced by the judgments marked as Ex. IX series in the present suit.

The next contention which we have to consider is that covered by issue No. 6 which is as follows:

Is the plaintiff estopped from questioning the absolute rights of the deceased Thayyamuthu Achi for reasons mentioned in paragraph 12 of the

written statement.

The acts of the plaintiff on which the estoppel is sought to me made out are:

(i) A partition between the plaintiff and his brother of the properties their father, Swami Pillai, got under the compromise.

(ii) The acceptance by plaintiff of a gift from Kamalathachi of the properties she got under the same compromise, the gift deed containing a recital

that the properties had been got by her absolutely with full powers of alienation.

(iii) The purchase by plaintiff of a property from Purnathachi, the daughter-in-law of Panchanadam, who got it under a compromise with

Thayyamuthu on a suit instituted by Appa Pillai himself during his lifetime, for recovery of the property on the ground that Panchanadam had

trespassed on it. This was O.S. No. 27 of 1878 which was settled on 1st March, 1880, by Thayyamuthu accepting the defendant''s case that the

property had been gifted to him by Appa Pillai.

(iv) Lastly that plaintiff was a party to certain exchange deeds which dealt with the properties he had purchased from Kamalathachi, whose title

was traceable to the compromise.

Having given our careful consideration to this plea we are clear that there is no substance in it. Here again the conduct of the plaintiff evidenced

by these transactions has little bearing on the nature of the estate which the widows originally purported to obtain under the compromise. It is

difficult to see how the partition referred to above would raise an estoppel. The brothers had succeeded to the properties which their father rightly

or wrongly managed to secure, and how the partition which they effected could be said to amount to conduct or representation on which any body

could be said to have acted to his prejudice is impossible to see. The conduct implied in the other heads referred to above, can no doubt prevent

the plaintiff from impeaching those transactions themselves, as against the parties or privies and in respect of the properties comprised therein. But

no higher efficacy than that can be attributed to them. The defendants who are strangers cannot take advantage of them, as they have neither acted

on them nor have in any way been prejudiced by them. Reliance was placed in this connection on the case reported in Ramakotayya v.

Viraraghavayya (1928) 56 M.L.J. 755 : ILR 52 Mad. 556 (F.B.). The proposition of law is succinctly stated in the headnote of the report in these

terms:

If the next presumptive male reversioner consents, though for no consideration, to an alienation without necessity by a Hindu widow(for example, a

gift as in this case), the transaction will be binding on him when he actually succeeds to the estate.

The correctness of this proposition is beyond question, but it is to be observed that it has no application to the present case. As explained by

Coutts-Trotter, C.J., the essence of the doctrine (of estoppel) is that the person who acted on the faith of the assertion was damnified and this

feature is as conspicuous by its absence in this case as it was in that case. Nor is there any reason for the application of the other principle, termed

the third doctrine at page 560, whether its true label is election or ratification. It is enough to say that so far as the plaintiff is concerned he did

nothing to affirm or validate the absolute right of Thayyamuthu in the properties in suit. Further we are not in this case dealing with an alienation by

the widow which is voidable, and therefore capable of being confirmed or ratified by the reversioner. As we have already observed we are

concerned to decide the character of the estate retained by the widow, and not of that which was conveyed away by the compromise. This

contention must also accordingly be overruled.

Lastly there is the objection that plaintiff could not make out a full title to the property claimed, as the release deed Ex. H is inoperative for

want of specification of the properties covered by it. By this deed Thiagaraja released his interest in the properties which accrued to both the

brothers as reversioners on the death of Neelambal, in consideration of a sum of Rs. 6,000 received by him from the plaintiff in the manner

mentioned in the document. The document has been registered though it did not set out the properties for some reason which has not been made

clear to us. in spite of this omission, there is and can be no difficulty in ascertaining what were the properties which were released by Thiagaraja.

Thiagaraja himself never objected to the validity of the deed, and far from it he appears to have affirmed it as second defendant in his written

statement in O.S. No. 1 of 1924. In these circumstances we cannot find a justification for refusing to recognise the claim of the plaintiff in full. We

may also say that this point was not reiterated before us.

The result is that the appeal succeeds. There will be a decree for possession in favour of the appellant of the properties claimed in suit. The

Subordinate Judge will ascertain the amount of the mesne profits claimed in the plaint, and pass a final decree in accordance with the result of his

enquiry. The respondents will pay the appellants their costs.