Srinivasaraghavachariar vs E. Rajagopalachariar

Murray Coutts Trotter, Kt., C.J.—The position here is that money was borrowed by a woman called Alamelu Ammal who had a limited

estate in her deceased father''s property to enable her to marry one of her sons, the 3rd defendant in this case. She raised that money by a

mortgage and the mortgage was brought about actually by this plaintiff himself who together with his other brothers, the reversioners, had attested

the document. There was plenty of evidence in this case that the husband''s estate at the time was non-existent and that unless this mortgage was

obtained in this way there was no other way of obtaining it. It is said that the Hindu Law does not recognise the purpose of marrying a son as one

that can result in a debt binding on the estate. I prefer to avoid, the use of quasi metaphorical expression like '' necessity'' which of course can only

be true as applied to matters of this kind in a hyperbolical sense.! The doctrine laid down by the Privy Council has been analysed by the learned

Judge and indeed by the learned District Judge who wrote a very careful and learned judgment oh the subject; and the result of it all is that there is

a great conflict in the authorities which I do not propose to attempt to resolve for the purpose of this case as to whether procuring such a marriage

is binding on the estate or not. There is authority both ways not only all over India but in this very Presidency itself. In these circumstances my own

view is that when the reversioner put himself forward to bring this about the lender was entitled to assume that the reversioner was ready to

guarantee that the debt was one which would be binding on the reversioner of the estate in his hands. That being so, I do not feel myself called

upon to resolve the main question, as I might otherwise have, did this question of representation and estoppel not arise, and I am content to rest on

that narrow ground. The Letters Patent Appeal must be allowed and the judgment of the District Judge restored.

Srinivasa Aiyangar, J.

I agree but I would only add that the learned Judge from whose judgment this Letters Patent Appeal has been preferred seems to have thought

that, if as a matter of law at any particular time it was clear that the purpose for which an alienation was purported to be made was regarded as not

being proper to support an alienation and if such purpose should appear in the instrument, the alienation should not be supported even against a

person who brought about the transaction himself and attested the instrument of alienation. He must be a bold man who would undertake to say

that at any time any question at any rate with regard to the Hindu Law relating to alienation is so perfectly clear as to be obvious to any person

whatsoever. After all it must be remembered that most of these questions are mixed questions of law and fact and the law has therefore provided

that alienations will be binding on the estate not only as may be shown to have been for necessary or proper purposes but also as may be shown to

have been obtained after a bona fide inquiry with regard to the purpose of the alienation. In the latter case, if there is a bona fide inquiry made by

the alienee with regard to the alienation and all the persons, especially the presumptive reversioners interested in the estate, consent to the alienation

and also otherwise concur in it, then it follows that, apart altogether from the purpose of the alienation, the alienee would have satisfied the

requirement which will support the alienation. That is the reason why as a matter of common practice at any rate in South India every alienee of

property from a qualified owner has been, it seems to me, almost from time immemorial insisting upon making inquiries as to the purpose of the

alienation from the presumptive reversioners and insisting also in many cases in getting reversioners in proof of their approval of the alienation to

attest the deed. If the mere mention of the purpose in the document should be regarded as sufficient to whittle down the effect of such inquiry and

the effect of such attestation, I am satisfied that no alienee could possibly be safe and there is really no purpose served by providing that a bona

fide transferee after making inquiries will be protected; in this case the learned Judge has referred to a case of a gambling debt being required to be

paid off by a father and has put to himself the question whether in such circumstances even though the immediate heirs or reversioners should

consent to the alienation the heir or reversioner should be bound. But it cannot possibly be found that the question of the marriage of a son and the

payment of a gambling debt are at all analogous or in part materia. It seems to me that, having regard to the difficulty of deciding in each case on

the facts and under the law applicable whether the particular purpose for which the alienation is sought to be made would be proper or not, the law

has provided that a person who makes such inquiries and then purchases bona fide will be protected. In this case there is abundant evidence to

show that the mortgagee lent money on the mortgage only on satisfying himself that all possible persons who were interested in the estate

concurred with regard to the propriety of it. It therefore follows that the plaintiff who was a party to the transaction is clearly estopped from now

seeking to impeach the alienation. In this view it becomes unnecessary to discuss any of the other and more difficult questions that have been

argued. I agree that the appeal should be allowed with costs here and in the second appeal.