Sivanancha, Perumal Pillai Thampuranthozha Pillai vs Thirunamakarasu Pandaram and Others

Govinda Pillai, J.—The Plaintiff is the Appellant. The Plaintiff''s suit was for recovery of possession of the plaint property on payment of the mortgage amount charged on the same by virtue of Ex AM dated 17-7-1062 executed by one Bamaswami Pillai in favour of a stranger by name Arumugham for 1400 fanams. The Plaintiff stated that the plaint schedule property belonged to his maternal gcandfathar''s family, that the last male member of that family was his mother''s father the said Bamaswami Pillai who died in Ghingom 1064 and that at that time Bamaswami Pillai had left a widow by name Sivakami and a daughter Thankathammal by another wife Pukazhumperumal. The Plaintiff is the son of this Thankathammal. Besides Sivakami there was also one Eanthimathi Ammal, widow of Bamaswami Pillai''s father Arumugham Pillai. In the plaint it was stated that on the death of Bamaswami Pillai, his wife Sivakami sold half of the plaint property on 7-12-1066 to one Nagappan for 1225 fanams. Exhibit B or XVII is the sale-deed. Nagappan in his turn sold his right to the mortgagee Arumugham who transferred the mortgage right and the right to the equity of redemption to one Arunachalam Pandaram, the uncle of Defendants l and 2. This mortgagee Arumugham though had only a sale only for one half of the equity of redemption was seen to have conveyed the whole of the equity of redemption. The Plaintiff was not awate how he came to transfer the remaining half. He had therefore stated that even if the mortgagee had obtained a sale-deed from Sivakami Amma or Kanthimathi Amma for that half that too would be invalid. In the replication the Plaintiff had stated that the other said half had been conveyed on sale by Eanthimathi to the mortgagee under Ex. c dated 15-6-1065. According to the Plaintiff both Ess. B and c were invalid and that they were not supported by consideration and family necessity. These widows were not competent to completely assign away . the rights over the property BO as to defeat the claim of the reversioners. Eanthimathi died before 1066. Thankathammal died in 1074 and Sivakami died in Vrisohigom 1088. The Plaintiff ''stated that since the sale-deeds in favour of the mortgagee were invalid and not binding on the Plaintiff who was the sole reversioner after the death of Sivakami, he was entitled to redeem the mortgage Ex. AM on deposit of the mortgage amount of 1400 fanams. He had, however, fixed the market value of the property at 2000 fanams and paid the court-fees for the same.

The suit was originally, filed in the Munaiff''s Court on 4-1-1100 by pre3enting the plaint Ex. i. On a contention raised by Defendants 1 and 2 that the suit was undervalued, a commisioner was deputed to estimate the market value of the property. This was found to be RB. 2500 and so the Munsif passed an order to return the plaint for presentation to the proper Court. The Plaintiff''s appeal to the Distriot Court was dismissed. Ex. II is that order. He took up the matter in revision to the High Court and the High Court in Bx. O order confirmed the orders of the Courts below. He then got back the plaint and presented it in the District Court on 3-12-1108 after paying the necessary court-fees. In the plaint he had claimed that the period covered between the date of the original institution of the suit before the Muneiff''s Court and the date of the presentation of the came before the District Court after the final disposal of the matter by the High Court must be excluded in computing the period of limita. tion for this suit. On these allegations he prayed for setting aside the sale deeds Exs. B and c, for redemption of the mortgage in respect of the plaint property, and for recovery of the mesne profits from the Defendants from the date of the deposit of the admitted mortgage amount in Court.

Defendants 1 and 2 in whom the right to the property vested by virtue of the sale taken by Arunaohalam Pandaram, contended through their guardian that the suit was barred by limitation, that EXS. B and c were binding on the raversioner, that the Plaintiff was to prove Ida right, title and interest in the property, that the plaint was wanting in details and that a supplementary written statement would be filed only after the fuller particulars were furnished by the Plaintiff. The Plaintiff by a replication asserted that he was entitled to exclude the period of pendancy of the suit in the Munaiff''s Court. His suit was therefore stated to be within 12 years of the death of the limited owner Sivakami in Vrischigom 1088. He asserted that the plains property was Ramaswami Pillai''s ancestral property and that ev.en if it be Rama, swami Pillai''s self-acquisition it had become family property with his death and that the Plaintiff was entitled to claim the same.

The suit was originally dismissed by the District Court on the ground of limitation. The Plaintiff appealed to the High Court with defen. dants 1 and 2 as Respondents. Pending the appeal, Defendant 8 brought the rights of Defendants 1 and 2 in execution of a decree and got himself impleaded as additional Respondent 3 in the High Court. He also filed a memorandum of objections. After hearing the appeal, the High Court set aside the decree of the trial Court and sent back the case for fresh trial. Defendant 3 thereafter filed a written statement where he contended that the property in question was the self-acquired and separate property of the deceased Ramaswami Pillai, that the sale deed by Kanthimathi Ammal in favour of the mortgagee made the mortgagee''s possession adverse to the extent of at least half the property from 15-6-1065, that the sale-deeds by Kanthimathi and Sivakami were valid and supported by consideration and necessity, that the Plaintiff''s suit was barred under Articles 122 and 129, Limitation Act, that the right to question the sale deeds had also become barred, that since the mortgagee conveyed the full right over the property to Arunachalam Pandaram the Jermi should have avoided such a sale within 12 years of the same, that the period of pendency of the Buit in the Munaiff''s Court could not be excluded as the appeal against the order returning the plaint and the revision petition were not prosecuted with good faith and due diligence, that the mortgagee had effected improvements in the shape of buildings, well and trees to the value of Rs. 5000 that in any event before redemption the Plaintiff was to pay the same and that the Plaintiff was not entitled to any relief. This Defendant also denied the marriage of the Plaintiff''s mother''s mother with Ramaswami Pillai.

The lower Court found that the plaint property was the self-acquisition of Ramaswami Pillai, that the Plaintiff had not proved that his grandmother Pnkazhumperumal had been legally married to Ramaswami Pillai, that the Plaintiff had not, therefore, shown that he had a right to impeach Exs. B and c, that Exs. B and c sale deeds are fully supported by consideration and necessity, that these documents were not liable to be set aside, that the Plaintiff had not acted in good faith in the proceedings prior to the presentation of the plaint before the District Court, that S. 14, Limitation Act, could not, therefore, help him, that the suit itself was barred by limitation and adverse possession and that the Plaintiff was not entitled to any relief. The learned Judge also stated that in view of the findings recorded by him on other issues the question of the value of improvements and award of the same did not arise for consideration. The suit was, therefore, dismissed with costs to Defendant 3.

After entering certain findings on some of the issues raised in the case, the suit had been first dismissed by the District Court on the ground of limitation. The Plaintiff appealed against the deeree and the appellate decision is reported at p. 1214 of 28 T. L. 3. The judgment would show that in the disposal of the appeal the Court was concerned only as regards the question of limitation and that for this purpose certain other matters interrelated with the same had also to bo taken into account. The decree was, therefore, pet aside and the case sent back for further evidence and fresh disposal. But in doing so, it had been stated that the decree of the lower Court was set aside and the suit remanded for trial of the question of necessity and consideration for the sale deeds Exs. B and c and whether tbe revision petition was conducted by the Plaintiff in the High Court, in good faith and with due deligence. At any rate, this direction, if it could be called a direction, did not cover the views expressed by their Lordships in the previous paragraphs. For the purpose of considering the exclusion of time under Limitation Act - Section 14, the periods other than the period during which the revision petition against the order returning the plaint for presentation to the proper Court was pending had also to be taken into account. The nature of the sale deed by the mortgagee to Arunchalam Pandaram was as important as the question relating to the consideration and necessity for EXS, B and c. The concluding paragraph did not advert to any of these aspects. It would appear that Defendant 3 had filed a petition to review this order of remand for a direction to the trial Court to go into certain other matters as well. The questions relating to the exclusion of period u/s 14 Limitation Act, and of consideration and bona fides for the transfer by the mortgagee were allowed to be gone into, but that regarding the value of improvements alleged to have been made by the vendees was not allowed to be included within the purview of matters mentioned in the remand order. It would be seen that Defendant 3 had been impleaded white the appeal was pending in ths High Court and so after remand in 1118 and after the order on the review application in 1116, he filed his written statement in 1117. Certain additional contentions were advanced and so 12 additional issues became necessary to be raised. One of his contentions related to the value of improvements and the trial Court refused to raise an issue relating to the same. The remand order did not include that matter. Defendant 3 came up in revision in 0. K. P. No. 289 of 1117. This Court allowed the revision petition and directed the trial Court to record pleadings in the case and to raise all the necessary issues-arising out of them. An issue relating to the value of improvements was considered necessary, for according to his Lordship who decided the revision petition and who was also a party to the order passed in the review application the records in the case justified the same.

When a deoree is set aside and the case remanded to the lower Court all the contentions between, the parties are before the.Court and it is open for the trial Court to go into all the issues arising on such contentions. In Marthandan v. Koahummini 31 T.L.J. 131, it was observed that when the appellate Court exercises its power of remand, and orders a de novo trial, there was no rule which compelled it to accept certain findings recorded by the Court below, merely because no objection has been filed against them. The whole case was held to have been reopened so that the trial Court was quite competent to go into all those matters. But there was an earlier Full Bench case in Mariyam v. Krishna Namburi 18 T.L.J. 1226 where it had been held that in case of a remand under o. 40, R. 22, Civil P. 0., the decisions on questions contained in the orders-directing the came will be conclusive between the parties and that the Court which passed the order was precluded from going behind the same when the matter came up again by way of a fresh appeal against the decree after remand. But in this case even if this Full Bench rulirg is made to apply, it could be seen that no find, ings were entered on any questions before the appellate Court and so we take it that the whole case was before the trial Court when it got back the case on remand. Thus though there were some findings in the first judgment in the trial Court in favour of the Plaintiff on certain issues, these findings are to be taken to have been set aside when the decree was reversed and a de novo trial was ordered.

The first question that arises for consideration in this appeal relates to the status of the Plaintiff. The Plaintiff''s case was that his mother Thankatbammal was the daughter of Pnkazhumperumal who was the legally wedded wife of Ramaswami Pillai. He would, therefore, be in the line of reversioners if there was a marriage between Pukazbumperumal and Ramaswami Pillai and that marriage was valid. Defendant 3 in para. 17 of his written statement denied the. marriage of the mother of the Plaintiff with Ramaswami Pillai. But it would appear to us that this contention of Defendant 3 could not stand in view of what had transpired in the case. (His Lordship after discussing the evidence concluded that Ramaswami Pillai''s connection with Pukazhumperumal was by a legitimate marriage and that the Plaintiff was a reversioner. His Lordship there proceeded:)

9-10. There was dispute between the parties as to how the plaint property was acquired. (His Lordship held that the property was the self-Acquisition of Rainaswami and proceeded :)

The most important question for consi. deration in this case then relates to the validity of EXS. B and c. The property was outstanding on EX. AM mortgage of 1062. While so.''Kanthimathi Ammal executed a sale deed for one half of the equity of redemption on receipt of additional consideration of 634 fanams-1 ch. 8 ca3h. Exhibit 0 was on 13-6-1005. It was stated that fanams 410 out of this had been received to . discharge the debt incurrad in maintaining herself, and fanams 124-1 ch 8 cash was received in cash. The findings as to the nature of the acquisition,, would show that Eanthimathi Animal was quite incompetent to deal with any portion of the equity of redemption, for the property was to be with Ramaewami Pillai''s living widow Sivakami. Eanthimathi Ammal would have only a right to claim maintenance and any alienation by her of a portion of the property would be invalid. The other half of the plaint property was sold by Sivakami on 7-12-1066 under Ex. B to one Nagappan who was Kauthiraathi Animal''s son-in-law. After giving, credit for one-half of the mortgage amount, the document showed that 625 fanams had been paid in cash. On 9-2.1067 Nagappan transferred B right to the mortgagee by executing EX. xvIII. Then on 7-7-1078, the legal repre. sentatives of the original mortgagee sold the ontira property to the paternal uncle of defendauta 1 and 2 under EX. VII sale deed.

The sale deeds Exs. B and c came into existence in 1066 and 1065. The executants, the vendees and the attestors were all dead so that at this ditance of time, it would not be possible for the aliences to give satisfactory evidence as to the passing of consideration. The lower Court, therefore, held that in case of such ancient documents there was a presumption as to the passing of consideration. It is doubtful whether this inference is correct though in the case of documents which are more than 80 years old a presumption as to its execution by the parties purporting to execute the same and as to its genuineness could alone be presumed. Though direct evidence is not forthcoming, it could be assumed from the admission made by the Plaintiff as p. w. 5 that there was consideration for these sale deeda. He had been asked as to what the w$$$ws did with the consideration recited in the several sale deeds and his answer was that they were keeping the same with them till death. They could keep money with them only if they had received the consideration. The Plaintiff had also produced Ex. A, a receipt executed by Sivakami for 2000 fanams on account of a mortgage taken in her name from her brother for 2000 fanams. She had therefore kept a good portion of the consideration with her. In view of these circumstances we take it that Exs. B and c are supported by consideration.

The finding as to consideration will not make Exs. B and c valid. Eanthimathi by herself was not competent to execute Ex. c. That was the case with Sivakami also. In Gauri Nath v. Mt. Qaya Kuar 55 I.A. 399 : AIR (15) 1928 P.C. 251, it had been pointed out by the Privy Council that the rights of two or more widows who succeeded to the estate of a man were these of joint tenants with a right of survivorship, They are entitled to obtain a partition of separate portions of the property so that each may enjoy her equal share of the income accruing therefrom. Each can deal as she pleased with her own life interest, but she cannot alienate any part of the corpus of the estate by gift or will so as to prejudice the rights of the survivor or future reversioner. If they act together, they can burden the reversion with any debts contracted owing to legal necessity, but one of them acting without the authority of the other, cannot prejudice the right of survivorship by burdening or alienating any part of the estate. The mere fact of partition between the two, while it gives each a right to the fruits of the separate assets assigned to her, does not imply a right to prejudice the claim of the survivor to enjoy the full fruits of the property during her lifetime.

No widow could in the abaence of legal necessity bind the inheritance for her own personal debts or private purposes as against reversioners. A Hindu widow or other limited owner can always transfer her life interest in the property inherited by her. Vide Durga Kunwar v. Matru Mai 35 ALL. 311 : 19 I. C. 138. Any alienations in excess of her powers are not void, but voidable in the sense that it is open to the reversioner to elect to abide by them when the estate falls into his possession, either by express ratification, or by acts done by him which treat them as valid and binding. Modhu Sudan v. Rooke 24 I. A. 164 : 25 Cal. 1 P.C. Such an alienation can be avoided only at the instance of a co-widow or the reversioners and not by third parties. An alienation by the limited owner when it is not for necessity does not require to be set aside by the reversioner, and he can treat it as a nullity without the intervention of a court. Vide Bijoy Qopal v. Krishna 34 I. A. 87 : 34 Cal. 329 P.C ; Kondama Naicher v. Kandaswamy 51 I. A. 145 : AIR 1924 P.C. 56 and AIR 1927 227 (Privy Council) The law on the subject being thus settled the alienation could not be upheld as the sale deeds were not binding on both the widows but only by one after the other. Though by executing the sale for one-half of the property Sivakami might be fixed with the notice of the sale by Kanthimathi Animal for the other half, both the transactions could not be held to be valid if they are defective. It has already been indicated that since the plaint property was the Self-acquisition of Ramaswami Pillai, Kanthimathi had no right to deal with the same and Ex. c was therefore invalid. As regards the necessity, there was no evidence that money had been borrowed for purpose of maintenance. A party dealing with a limited owner and advancing money so as to bind the estate in the possession of that limited owner should take particular care to see that the ideahngs could be supported even if they were impeached after a length of time. Whether for legal necessity or otherwise, it was open to the widow to transfer her limited estate and such transfer would be valid during her life time. The .right to question the transfer would arise to the reversioner only after the life time of the widow. It would not also be known when that would take place or by whom the alienation would be questioned. Under such circumstances, it is the duty of the transferee or the creditor to secure the necessary evidence even at the inception. In the absence of any such evidence in this case, we cannot say that Ex. 0 was supported by binding family necessity. There is no recital of any necessity in the case of Ex, B and prima facie therefore in the absence of further evidence, it has to be held that the sale deed was executed by the widow for no legal necessity binding on the estate.

When Ramaswami Pillai died there were 6 items of propertiee besides the plaint property. Of these 6 items, 3 were paddy lands, with a seed capacity of 20 Marakkals. The remaining 3 items were outstanding on mortgage. It was seen that after executing Ex. c sale-deed, Kanthimathi Ammal filed o. 8. 120 of 1065 for partition of Ramaswami Pillai''s properties. Exhibit x is copy of the judgment in that case and EX. xi copy of the decree. Apparently, there was intenerence of mediators, and it was seen that though this judgment was passed on 22-12-1066 all the properties belonging to Ramaswami Pillai were sold on 7-12-1066 under Exs. D and H. The money received was divided between the two widows. That fact is mentioned in Ex. x itself. On the same date of Exs. D and H, Ex. B was. executed by Sivakami and she received 625 fanams in cash. Thus by 7-12-1066 the attempt of the two widows was seen to be to alienate all ancestral properties and to divide the proceeds between themselves. It might be, as argued by the Respondent''s learned Advocate, that these properties were not sufficient to meet the maintenance expenses of the two widows and that, therefore, it was quite open to them even to_sell the properties to raise the necessary amounts for the purpose. There is no such case put forward at any stage even in Ex. X case or in the written statement in this case. This argument could not, therefore, be accepted. Exhibits B and c are, therefore, held to be invalid and they could not affect the reversioner''s right.

Transfer of properties by limited owners, even though they are not supported by legal family necessity would be operative during the lifetime of the widows. They would not be binding on the reversioners. But the reversioners should file the suit for possession within 12 years of the death of the last limited owner and the Article of the Limitation Act governing such a suit would be Art. 189. The last widow Sivakami died in Virsohigom 1088, and so, if a suit had been filed within 12 years of that date, it was agreed to by both Bides that tbe present suit would be within time. It would, therefore, be unnecessary for us to consider whether Art. 122 or Art. 132 would be made applicable to the facts of this case. When a mortgagee purports to convey an absolute title over the mortgage holding for valuable consideration, the mortgagor is bound to bring the suit under Art. 122, Limitation Act, within 12 years of the date of the transfer. This article refers to the transfer by the mortgagee and when the mortgagee had acquired the right over the equity of redemption by virtue of certain documents which were subsequently found to be invalid or voidable, it could be argued that he had lost the characteristics of a mortgagee, and that the conveyance by him was in the nature of one proceeding not from a mortgagee contemplated in this article but from an absolute owner. It is doubtful whether under these circumstances this article could be made applicable in suits to avoid such transfers. It did not appear that Skinner v. Naunihal Singh AIR 1929 P. C. 158 : 51 ALL 867 went against this proposition of law. The conveyance dealt with in that case was from a person who had only a life estate pure and simple by virtue of a will executed by that person''s father. The position of the widows in a Hindu family regarding the estate inherited by them from male agnates is entirely different. Except in regard to a limited power as to alienation, she inherits the estate with all the incidents of full ownership. Any person who oared to look into ihe conveyance dealt with in the Privy council case by the limited owner would have understood that it could be operative only for the life time of that man whereas an alienation by a widow under the Hindu law would have to be tested as to whether it could be upheld or not. The question of consideration and necessity would arise in such cases and if it is found that the alienation was supported by family necessity and consideration, then it would be binding on the estate and no reversioners would be entitled to question the same. Thus, the Privy Council ruling mentioned above would have no application to the facts of the present case. The present Plaintiff had filed a suit for possession in the Muhsiff''s Court on 4-1-1100. The Defendant questioned the valuation given in the plaint so that the property was valued by a commissioner sent from Court. After the commissioner''s report, an order was passed on 28-12-1101 returning the plaint for presentation to the proper Court. The Plaintiff took up the matter in appeal to the District Court. The District Court dismissed the appeal on 28-5-1102. Thereupon he filed a revision petition before the High Court impeaching the findings of the Courts below. Exhibit o, dated 15-11-1103 is the order passed by the High Court in that revision petition dismissing the same. Then he got back the plaint from the High Court and presented it in the District Court on 3-12-1103, with the necessary court-fees. If the period during which this suit was pending in the Munsiff''a Court from 4-1-1100 to 81-11-1108, the date on which the original plaint was returned under orders of the High Court was excluded, then bis suit would be within 12 years of the death of the last widow.

Section 14, Limitation Act, allows the Plaintiff to exclude the time during which he had been prosecuting with due diligence another civil proceeding, whether in a Court of first instance or in a Court of appeal, against the Defendant, where the proceeding is founded upon the same cause of action and is prosecut. ed in good faith in a Court which, from defect of jurisdiction, or other cause of a like nature, is unable to entertain it. The Plaintiff stated that the market value of the property was 2000 fanams and if that be so, the proper Court where the suit had to be filed was the Munsiff''s Court. But the Defendants raised a question as to the valuation of the suit and so a commissioner was taken. There were buildings also on the property put up by the mortgagee and his vendee and when that too wa3 valued the value of the property was found to be more than p.a. 2000. The plaint was therefore returned for presentation to the proper Court. There was therefore defect of jurisdiction so far as the Munsiff was concerned to try the suit. If the defect be of such a character as to make it impossible for the Court to entertain the suit either in its inception, or at all events as to prevent it from deciding on its merits, then the case would come under the category denoted by ''other cause of a like nature'' mentioned in Section 14, Limitation Act. There is nothing on record to show that the Plaintiff acted mala fide in presenting the plaint in the Muasiff''s Court in the first instance. The Munsiff''s Court., after enquiry found that it bad no jurisdiction to entertain the suit. It ordered the return of the plaint for presentation to the proper Court. The Plaintiff thought that the order was not correct and so he preferred an appeal to the District Court. That itself would show, as held in Ayappan Mundan v. Ratnaswami Nadar 17 T.L.R. 168 and Muthuswami v. Meenammal 36. T.L.R. 118 that he was diligent in the matter and that he was prosecuting the case in good faith. When he was defeated in the District Court he moved the High Court to revise that order. As held in this case itself, in 28 T. L. R. 1214, the Court of appeal includes a Court of revision also. Thus the proceedings which terminated the dismissal of the revision petition by the High Court were conducted in good faith and with due diligence. That period has to be excluded in computing the period of limitation. As mentioned already, there is nothing to doubt the bona fides of the Plaintiff and we take that he can exclude the period under 8. 14. When such period is excluded his suit should be deemed to be within 12 years of the death of the last limited owner. The suit is therefore within time.

The result is that "EXS. B and C have to be set aside and the Plaintiff allowed to recover possession of the property on payment of the mortgage amount and the value of improvements. The lower Court bad not entered any finding cn the question of value of improvements. It would, therefore, treat this decree as a preliminary one and enquire into the question of value of improvements effected by the mortgagee after EX. A M date. A final decree will be passed allowing the Plaintiff to recover possession of the plaint property on payment of mortgage amount of 1400 fanams and value of improvements that would be determined hereafter. Both parties were primarily responsible for prolonging this litigation. Both of them had advanced untenable contentions on material points and BO we think that both sides are to be directed to suffer their costs incurred by them till now. The costs to be incurred here after by the parties shall be costs in the cause. The decree of the lower Court is set aside and the appeal is allowed as indicated above.