Thirumalaisamy Naidu and Others vs Venkatarama Ayyar and Others

Phillips, J.—The appellants in appeal 229 (23) plaintiffs 1 sue as reversioners of one Muthusami Naidu who died in 1873, leaving a widow

Kuppammal who was in enjoyment of his property until she died in 1919. The appellants have obtained a decree for some items claimed by them

and this appeal relates to 23 items for which their claim was disallowed. The appeal is only pressed in respect of items 15, 20, 21 and 23 to 28,

the claim to the other items being given up. In order to determine the validity of the alienation of these items by the widow it is necessary to

consider certain facts in the case. In 1884 the widow Kuppammal executed an othi deed in favour of one Perumal Kone in respect of item 31 for

Rs. 350. This document was not registered and Perumal Kone-filed a suit to compel registration after a criminal case of cheating preferred against

Kuppammal by him had been dismissed. The litigation in respect of the othi deed continued until about 1887 when Perumal Kone obtained a

decree on his othi for sale of the property which he purchased in 1889 for Rs. 750. Before registration was ordered, Kuppammal executed a

mortgage deed in respect of a portion of the house for Rs. 1,000 in favour of her aunt Kaveri Ammal. It has been found and is not now disputed

that Rs. 500 out of the Rs 1,000 was borrowed for a purpose binding on the husband''s estate. Kaveri Ammal filed a suit on this document and

obtained a decree against Kuppammal and Perumal Kone. This went up to the High Court and the suit was dismissed with the observation that

Kaveri Ammal should be in possession of the property until she was redeemed by Perumal Kone who had purchased the equity of redemption in

execution of his own decree. Kaveri Animal''s right eventually passed to one Chockayan who purchased the othi right in execution of a decree

obtained thereon. Chokayan then brought a suit to recover possession ''of the properties or in the alternative for sale and obtained a decree for

possession in the District Munsif''s Court.

An appeal was then preferred by Perumal Kone who had already been held by the High Court not to be entitled to possession until ha

redeemed this othi, and this appeal was compromised by Perumal Kone and Chockayan and other parties to the appeal, Kuppammal and Kaveri

Ammal, not joining in the compromise. In that compromise there was a direction to sell items 2 to 9 in that suit (plaint items 23 to 28) and, if that

were insufficient a portion of the1 house in Perumal Kone''s possession was to be sold. It will thus be seen that this compromise was in

contravention of the order of the High Court with reference to Perumal Kone''s possession. Items 2 to 9 were sold for Rs. 197 and purchased by

Muthalaga Kone, defendant 43, a relation of Perumal Kone, Chockayan did not further execute his decree and Perumal Kone remained in

possession of item 31, the house. These are the main facts upon which the decision of this appeal depends.

So far as item 15 is concerned, it was sold under Ex. 1 in 1887 for Rs. 40. The money is said to have been paid:

for meeting the High Court appeal expenses in connexion with the suit filed against me by Perumal Kone.

As a matter of fact that litigation between Kuppammal and Perumal Kone was not carried to the High Court, but the Subordinate Judge has

held that as there was litigation in which Kuppammal was concerned at about that time the sale was for a purpose binding upon the estate. This

finding is sought to be supported by the respondent on the ground that the litigation was necessary in order to defend Kuppammal''s title to the

estate and as such was binding upon She estate and reliance is placed upon the rulings in Amjad Ali v. Moniram Kalita [1886] 12 Cal. 52 and

Debi Dayal Sahoo v. Bhan Pratap Singh [1904] 31 Cal. 433. The latter decision has, however, been overruled by the Privy Council in Bhagwat

Dayal Singh v. Debi Dayal Sahoo [1908] 35 Cal. 420 and the former is only authority for holding that when a widow''s estate is attacked she is

justified in incurring expenses to repeal that attack out of her husband''s estate. In this case, however, it cannot be said that she was defending an

attack on her estate. She was defending a suit which was filed in consequence of her own act i.e., the execution of the othi deed and thus was

defending her own personal interests. Such expenses cannot be said to be binding upon her husband''s estate. Therefore, the alienation evidenced

by Ex. 1 is clearly not binding upon the plaintiffs.

Items 20 and 21 were alienated under Exs. 2 and 3, and of the consideration of Rs. 77-8 in Ex. 3 Rs. 27-8 was incurred for the expenses of the

above mentioned litigation and to that extent the Subordinate Judge has held that the alienation was valid; but for the reason given above it must be

held that no part of the consideration was binding upon the estate and consequently the alienation is not binding on the plaintiffs.

Items 23 to 28 which correspond to items 2 to 9 in the suit brought by Chockayan and compromised by him with Perumal Kone were

purchased by Muthalaga Kone for Rs. 197. The Subordinate Judge has held that inasmuch as Chockayan''s debt was binding on the estate to the

extent of Rs. 500 and these items were sold for Rs. 197 which is less than that amount of Rs. 500 the sale is binding on the plaintiffs. The

Subordinate Judge has also found that during the whole course of the litigation between Kuppammal, Perumal Kone, Kaveri Animal and

Chockayan there is no indication to show that anything beyond the widow''s interest was litigated and there is no reference in any one of those

proceedings to the question whether any of the transactions were binding on the estate of the husband In the absence of evidence to the contrary it

may be inferred that when a person is litigating in respect of a debt which is in part or in whole binding on the husband''s estate, it is his intention to

obtain a decree binding that interest. Here, however, there are several circumstances to rebut that inference. The fact that in the very numerous

proceedings no mention is made of the binding nature of the debt upon the husband''s estate is one. Even when Kuppammal brought a suit to set

aside the sale of items 2 to 9 no reference was made to the interests of her husband. The compromise between Perumal Kone and Chockayan

was effected behind the widow''s back and although she was bound by the decree as being a party to the appeal which was compromised, yet it is

clear that the compromise was one which should not have been allowed, in view of the prior judgment of the High Court. There is also the fact that

properties whose value according to Ex. 12 a and P.W. 5 about Rs. 2,000 were sold for Rs. 197. Under Ex. 12 a the price of similar lands in

1898 was over Rs. 400 an acre in 1877. P.W. 5 paid Rs. 200 an acre for a similar land. These lands were brought under irrigation by the Periyar

project in 1896 and their value was largely enhanced. It is also significant that Chockayan took no steps to deprive Perumal Kone of the

possession of the house. It would appear from all these facts that what was being litigated was the present right to possession and that the parties

did not contemplate obtaining an absolute estate in the property but only the interests of Kuppammal. It is contended for respondent 26 (defendant

43) that the question is res judicata by reason of the dismissal of Kuppammal''s suit to set aside the sale to him. This plea of res judicata was not

taken by this defendant but only by defendant 48 in respect of other property. The omission to take the plea at the trial raises an inference that

respondent 26 was aware that the litigation was not concerned with the absolute right in the property. All these circumstances taken together are in

my opinion sufficient to rebut the inference that the absolute estate was ever in contemplation in the prior litigation. The alienation is not therefore

binding on the plaintiffs and they are entitled to recover the property on payment of Rs. 500, the amount found to be binding upon them.

Appeal No. 241 of 1923 has been filed by defendant 48 with reference to the northern portion of the house, item 31. This was alienated under

Ex. 20-d, for a sum of Rs. 350 received by Kuppammal to discharge sundry debts and for maintenance. There is no evidence to show that the

debts were binding on her husband''s estate and she was in possession of ample means for her maintenance. The alienation is therefore, not binding

upon the estate, nor upon the plaintiffs. As regards item 15 plaintiffs must pay Rs. 500 for value of improvements. In the result Appeal 229 is

allowed in respect of items 15, 20, 21 and 23 to 28 and dismissed as regards the other items. Appeal 241 is dismissed with costs. In Appeal 229

parties will pay and receive proportionate costs, separate sets.

Reilly, J.

The question what defendant 43 bought for Rs. 197 at the Court-sale of items 23-28 appears to me doubtful. But in all the circumstances I am

not prepared to differ from the finding that he bought only the widow''s interest. In such cases it is for the alienee to make out that he acquired

effectively more than the widow''s interest in the property alienated.

The sale of item 15 Mr. Appuswami contended was binding on the reversioners because it was for the purpose of raising funds to defend

Kuppammal''s interest in her litigation with Perumal Kone. That litigation has been found and I agree with the finding to have been concerned only

with Kuppammal''s interest as widow, not with her husband''s estate. But Mr. Appuswami has cited 12 Cal. 52 as an authority to show that a

widow may alienate part of her husband''s property in order to defend her interest in it. In that ease, however, the widow was defending her

widow''s interest in her husband''s property against an attack which threatened to deprive her of it entirely by obtaining a judgment that she had no

such interest The decision is no more than an instance of the general rule, so often applied in probate and succession cases, that the proper

expenses of defending or enforcing the rightful devolution of property may be charged to that property. It is a very different thing to assert that a

widow, who having got undisputed possession chooses to squander her widow''s interest, can burden her husband''s property to the prejudice of

the reversioners with the expense of attempting to escape from the results of her own folly. I agree that the reversioners'' appeal must succeed in

respect also of items 15, 20 and 21 subject to the payment of Rs. 500 to defendant 20 for improvements. I agree also that Appeal 241 of 1923

should be dismissed with costs.