Venkateswara Rao and Others vs Venkatasiva Rao

Bhimasankaram, J.—Defendants 23 to 28 arc the Appellants. Second Appellant having died pending this appeal, Appellants 7 to 11 have been brought on record as his legal representatives. The Plaintiff in the lower Court is the sole Respondent. The suit was instituted by the Respondent for the recovery of a number of items of Immovable property stated to .have belonged originally to the maternal grandfather of the Plaintiff Alamuru Surayyaguru. The Plaintiff''s case was that after the death of his maternal grandfather, the said Surayyaguru, the properties in question were in succession enjoyed by Surayya''s widow Simhamma and after her death in December 1910 the properties devolved on his own mother, Surya Manikyamba, who died in July, 1940. The Plaintiff claimed the suit properties as the sole reversioner to the estate of late Surayyaguru. II(c) contended that the alienations of the suit properties favour of the contesting Defendants made by his iriother are.not binding on the estate and that therefore he is entitled to recover possession of those items. In this appeal, however, we are concerned only with item 1 of the plaint C Schedule in which alone Defendants 23 to 28 are interested.

The main case of the Appellants was that the Plaintiff''s mother was entitled absolutely to the estate of her father under a will executed by the latter on #6th April, 1899 and that therefore she was entitled,to alienate the item as her own. They Alternatively pleaded that the sale being for jhe discharge of sundry debts incurred by Surayya himself, it was an alienation for legal necessity and thus binding upon his estate. They averred that their case of legal necessity was supported by the fact that in the sale deed (which is in favour of their predecessor-in-title), the Plaintiff who was a minor at the time and was represented by his father as guardian) as well as the widow of the last male-holder, Simhamma (who was described as lunatic at the time and was represented by her daughter as guardian) also joined as executants.

Issues 4, 6 and 7 raised in the lower Court! covered the controversy between the present Appellants and the Plaintiff. Issue 6 among them related to the alleged will of "Surayya, dated 26th April, 1899. No copy of the will was produced and there is hardly any trustworthy evidence in regard to its cx.ecuti.on. The lower Court found that the ..will was not established and it is frankly conceded by Mr. Suryanarayana lor the Appellants that on the evidence available? the Defendant''s-case as to the will cannot seriously be urged before us. Therefore, only two questions arise for determination in the present appeal and they are covered'' by issues 4 and 7 which are as follows:

(1) Whether tli o alienation could be supported on tlie ground of legal necessity? and (2) Whether the suit is in time or whether the Plaintiff''s mother & alienee had perfected their title by adverse possession?

So far as this latter point is concerned, it must be noticed that the present Appellants in their written statement raise no point of limitation. Issue 7 was therefore actually framed with reference to tl\\e plea of other Defendants interested in some other item. Further, there could be no question of limitation on the facts above-stated because, if the case of the will is true the Defendants succeed on the merits and if it is not, as the Suit was clearly instituted within less than 2 years from the date of the last limited owner, there could be no question of any bar of time. It seems to have been urged, however, in the lower Court that there was a claim by Surya Manfkyamba even while her mother was alive in a sale deed. Exhibit! A-29, dated 26th February, 1902, in her favour,, that the property now hi dispute was her own and not her father''s and that that would enable the alienees from her to set up adverse possession against '' the etsate. It appears that the property was originally mortgaged under Exhibit A-14 dated. 11th March, 1892 in favour of Surayya and that it was subsequently sold to Manikyamba under Exhibit! A-29 with a recital that the amount of Rs. 1,100 covered by the mortgage belonged to her and not! to her father and that therefore she herself was entitled to take a conveyance of those properties In her own right in discharge of the mortgage debit. It is now found that this money belonged to Surayya, that Suxaya Manikyamba had no interest in th& original.mortgage and that when she took Exrjfbi A-29 in discharge thereof, she was only getting for the benefit of,the estate. It may be noted that at the ,timeL.wheii: Exhibit A-29 was taken Spya Manikyamba''s loftier was alive and that she " the; person ;proprly entitled to obtain the sale in discharge ojukthft mortgage. Therefore, Surya Manikyamba,. came into possession of properties and/set up an absolute right thereto was holding it, if ,8 all adversely only to the ''and when her mother died in 1910, there could be no adverse possession thereafter either against her mother because she had died or against the estate because the estate was represented by Surya Mairiky-amba herself. The lower Court therefore rightly held under issue 7 that the suit was not barred by limitation.

But, under the above issue, a new point is now sought to be raised by Mr. Suryanarayauu lor the Appellants. Reliance is placed by him on whal is described as a deed of surrender executed by the mother of the Plaintiff in his favour and marked as Exhibit) A-85 in the lower Court. This was \\ apparently filed by the plaintilf in order to disprove i the case of the Defendants as to the alleged will ot Surayya. It is dated 10th January, 190S and is entitled a deed of surrender. The Plaintiffs mollicr thereunder relinquished "the right to enjoyment \\ possessed by me for life in the properties worth Rs. 8,000 which are described in para 3 hereunder.'''' It is now contended by Mr. Suryanarayaua placing'' , reliance on a recent decision of die Supreme Court j reported in Natvarlal Punjabhai and Another Vs. Dadubhai Manubhai and Others, , that under this deed, the Plaintiff became entitled at once to recover all the properties belonging to the estate of Surayya and the present suit being brought beyond the period of 12 years therefrom, is barred by time. This point is sought to be raised by an additional ground of appeal couched in the following terms:

Having regard to the fact that the Plaintiff''s mother surrendered all her rights under Exhibit! A-85, the right to sue, if any, accrued to the Plaintiff immediately, i.e., 10th January, 1920, the date of Exhibit A-85 and the present suit having been filed more than 12 years after that date, the same is barred.

Mr. M. S. Ramachandra Rao, for the Respondent, objects to this contention being raised for the , first time in this form. In the first place, he says Kthat these Defendants, as already pointed out, made no point of limitation in their written statement. Secondly, he says that there was no reference to the alleged surrender deed either in the plaint or ''jn the written statement and the deed was only ''Incidentally filed and that there was no issue raised concerning its validity. He further urges on the "merits that there was no valid surrender in this case n the basis of which the Plaintiff could have sued lor the recovery of tire alienated properties. He Submits further that the Supreme Court decision did not express any definite opinion as to the right .''of the surrenderee in regard to alienations for consideration.

Before we go into the question of limitation | thus raised, we shall dispose of the first point raised by Mr. Suryanarayana, viz., that the alienation in question must be upheld as being one for legal ''necessity. The sale deed in favour of the predeces-ors-in-title of these Defendants is Exhibit A-45, dated 6th February, 1907. It purports to have been -executed by "(1) Digavalli Venkataratnamgaru''s wife Surya Manikyamba, (2) the said Venkataratnam-ru''s son Venkatasiva Rao being minor by father d guardian the said Venkataratnamgaru and (3) to Alamuru Surayyagaru''s wife, Simhamma, being of unsound mind by daughter and guardian the tjfaid Surya Manikyamba". It recites that the pro-

perty covered by it was registered in the accounts in the names of, Alamuru Venkatachalam Dikshitulu, Thammiraju ;md Alamuru Surayyagaru''s wife Sim-hammagaru, that it has been in the enjoyment as of right of Surya Manikyamba Hinder tho will of her father executed on 26th April, 1899 and that it was being sold for a sum of Rs. 400 "for purposes of discharging the sundry debts contracted by Alamuru Surayyaguru". The will, of course, was a myth and therefore the alienation in question must only be supported by necessity. The learned Counsel for tire Appellants contends that the recital that tho consideration was taken for the purpose of discharging sundry debts contracted by the last male-owner should be taken as true in the absence of other evidence, because it is a recital in an ancient document. At the outset, it must bo observed that as soma of the recitals arc obviously unreliable besides being self-contradictory, it is dillieult to accept tho truth of any of them. In the first place, there is a reference to a non-existing will. Then it is said that the property was registered in accounts in the name of Surayya''s widow, Simhamma, which could not have happened if the will had bequeathed the properties absolutely to Surya Manikyamba- Perhaps the idea was that the will purported to give a life estate to Simhamma in the first instance followed by an absolute estate in favour of Surya Manikyamba. Even so, it is difficult to explain the inclusion, of Surya Manikyamba''s son, the present Plaintiff, in the sale deed. In view of this it is difficult to believe that any one of the material recitals in this document tending to support the alienation is true. It may also be noted that the so-called debts of Alamuru Surayya are not mentioned and the consideration is taken by the alienors themselves instead of being directed to be paid to the creditors. We may remark further, that it is unlikely that any debts of Surayya who died in 1899 would still be outstanding till the year 1907. There is abundant evidence in the case that Surayya himself, when he died, had considerable outstandings due to him while ''he evidence establishes with equal certainty that the Plaintiff''s father was, during the period of these alienations, in a state of embarrassing indebtedness. The above facts and circumstances djsclose that the Plaintiff''s father and mother were prepared to make any recitals which would enable them to secure cash into their hands to tide over the financial difficulties to which the father was subject. We are therefore unable to accept as true the recital in the sale deed as to the debts of Surayya. Like the other recitals, the recital as to Surayya''s debts seems to have been inserted with a view to support the alienation, and without regard to the facts. It is now settled law that however ancient the alienation may be, the burden of proof is upon the alienees from the limited owner to establish that the alienation is supported by necessity. Vide: Subrahman-yam v. Soorayya. There being no power of (sic) aliunde, except this recital, we must hold that, the Defendants have not discharged the onus that lay on them.

The question, therefore, remains as to whether the Defendants can succeed on the ground that the Plaintiff''s suit is barred by limitation. Before the pronouncement of the Supreme Court in Natvarlal Punjabhai and Another Vs. Dadubhai Manubhai and Others, , the view of the Madras High Court established by a long line of decisions oommencing from Subbamma v. Subramanyam ILR Mad 1035 : AIR 1917 Mad 473) (B), and confirmed by the Full Bench in Vaidyanatha Sastri Vs. Savithri Ammal and Others, , was that an alienee from a widow cannot be dispossessed by a surrenderee from her during her lifetime. This doctrine was later extended to the case of a person holding the whole or any part of the widow''s estate adversely to her by a Bench of the Madras High Court in Kora Bala Thripurasundara Rao Vs. Ratala Kotayya, . It was observed therein that there was no difference in principle between die case of an alienation and a case whore the title of the limited owner became, extinguished by the operation of By virtue of the surrender if the surrenderee is not allowed to displace the title of an alienee holding the property under an alienation which was not for a necessary binding purpose, it stands to reason that on the sam(c) analogy a person who had acquired title by adverse possession must also be protected. By adopting the device of surrendering the estate the widow cannot get round the effect of her inaction in not suing within time to recover possession of the property.

This principle was further extended to a case of a gift made by a widow in Arunachala Mooppanar Vs. Arumugha Mooppanar and Others, , by another Bench of the same Court. An attempt was made in this latter case to assail the very foundation of the decision in ILR Mad 1035 : AIR 1911 Mad 473) (B). on the basis particularly of the judgment of the Calcutta Hi?h Court in Ram Krishna Prodhan Vs. Sm. kousalya Mani Dasi and Others, . This attempt Was repelled and the learned Judges observed that they did not''think, that they, should "try to unsettle the settled law in the Madras State which has been in force for such a long time." . (10) In Natvarlal Punjabhai and Another Vs. Dadubhai Manubhai and Others, , the Supreme Court had to consider the right of a surrenderee immediately alter the surrender to displace the title acquired by adverse possession against the widow. The facts of the case were as follows . One Shankarbhai died as a member of a .iolnt family without any issue, leaving Behind him his widow Bai Kashi. Between the widow and the only other coparcener there was alleged to be a severance in status without a division of the properties by metes and bounds. That coparcener having died, his widow adopted one Puniabhai and sought the appointment of a guardian for the minor adoptee and in her application to the District Court she claimed that the minor was the sole owner of the entire joint family properties. Bai Ka:

hi who was served with a notice of this application and who had meanwhile himself adopted a son named Sivabhai, relied upon the division in status as entitling her adoptee to the share of her husband. But Bai Kashi''s adoption was held invalid by the District Judge who appointed a guardian for all the Pro-. perties, on behalf of the minor adoptee of the other widow.

Neither Bai Kashi nor her adopted son ever obtained possession of the portion of the properties claimed by them, as the guardian so appoints took possession of all the properties be longing to the joint family. Bai Kashi filed an! unsuccessful suit against the guardian appointed'' by the District Court for recovery of her shaw'' of the properties. Thereupon, one Rukmini, a'' sister of Shankarbhai, instituted a suit for declaration that the joint status of the familj; had been disrupted and that she, as the next heir of Shankarbhai, was entitled to his share cl ? the properties on the,death of Bai Kashi.

Though the suit was dismissed by the trials Court, the High Court, on appeal, gave the appcl-''; lants a declaration in the terms asked for. After I this judgment, Bai Kashi executed a deed of surrender in favour of RiTkmini''s sons who were her husband''s nearest reversioners. They brought the suit.out of which the appeal before the Supreme Court arose for possession of Shankarbhai''s share as his next heirs, as against the sons of the minor adoptee Punjabhai. The appeal was against the decision of a . Pull Bench of the Bombay High Court in ILR (1949) Bom 869 where- * in the learned Judges held that though the defen. dants had acquired a title against Bai Kashi by adverse possession, the widow Bai Kashi could effect a valid surrender and that by virtue of the acceleration of the inheritance thereby, the next heirs of Shankarbhai became competent at once i to recover the possession of the properties by ejecting the Defendants and were not bound to wait til] the widow''s death.

In reaching that conclusion, the learned Judges overruled'' an earlier decision of their own Court reported in Sakharam Bala Nikam Vs. Thama Bala Nikam, and refused to follow the Madras decisions as also the decisions of the Allahabad High Court in Lachhmi Chand Vs. Lachho and Others, . They preferred the Calcutta view embodied in Ram Krishna Prodhan Vs. Sm. kousalya Mani Dasi and Others, . The learned Chief Justice who delivered the judgment of the Pull Bench proceeded upon the footing that the doctrine of surrender was definitely founded upon Hindu texts and that no equitable considerations could therefore be imported into what he considered a doctrine of Hindu Law.

He rejected the view expressed in several cases that the principle of surrender was itself the result of judicial decisions and that therefore it would be proper for Courts to impose limitations thereon in accordance with principles of justice, equity and good conscience. Criticising a passage from the judgment of Krishnan, J. in (Nelakanti) Sundarasiva Row and Others Vs. Ivatury Viyamma and Others, , the learned Chief Justice observed as follows:

....In Sundarasivarao v, Vivyamma, Mr Justice Krishnan, who delivered the judgment of tin Bench, quit(c) frankly concedes that the Courts an justified, in recognising the right of surrender b; the widow, to impose conditions on her power basic on considerations of justice, equity and good for science. With very great respect, if the Hindu Imp is clear, I fail to see where the power of the Coin arises in altering the law from considerations justice, equity and good conscience.

By tho time this Full Bench decision read d the Supreme Court, the same point; came up consideration again in the Allahabad High ''out itself and it was there held in Raghuraj Singh Vs. Babu Singh and Another, contrary''to'' earlier view, t"a| where a Hindu widow Me surrenctar of her entire estato, the reversioaer n whose favour the surrender takes place succeeds to the estate in his own right as an immediate heir and the cause of action for a suit to recover possession of a property alienated by her-arises to the reversioner on the date of the surrender. It was urged ["before the learned Judges that under Article 141 of the Limitation Act, the reversioner will have 12 H years from the date of the death of the widow and that the surrenderee was not bound to have sued within 12 years from the date of the surrender. In Rejecting that argument, their Lordships observed as follows:

The description, however, in the first part of the Article as to the nature of the suit under thatj article is as follows:

Like suit by a Hindu or Muhammadan entitled to the possession of Immovable property on the death of a Hindu or Muhammadan female.

If the word death in the first column includes civil death, then the cause of action arose on the date of surrender, and the suit had to be filed within 12 years of that date. If the word "death" in the first column means only physical death, then the right to possession of the Plaintiff, oa the view expressed by us, did not arise in 1941 when she died and the Article will not, therefore, apply.

With great respect to the learned Judges, it seems to us that there is nothing like civil death, as such, recognised in any civilised system of law at the present day and that word "death" could not, in our opinion, be equated with civil death. It is to be remembered that the doctrine of surrender is supported by the fiction only of the civil death of the widow and even that is limited to her position in regard to her husband''s estate. II seems to us therefore that if a surrenderee is entitled to recover immediate possession of all the properties belonging to tire estate of which he is the reversionary heir, then his suit would fall under the residuary Article 144 of the Limitation Act and not under Article 141. Be that as it may, the Supreme Court in their decision above referred to seem to reject the view of the Madras High Court as regards the surrenderee''s right to recover immediate possession. They do seem, however, to act upon the view of the Bonrbpy High Court that there is an inflexible rule of Hindu Law relating to surrender based upon ancient texts.

After referring to remarks of Ashutosh Mookerjee, J., in Debi Prosad v. Golap Bhagat ILR Cal 721 at p. 771 (FB) (K), that the theory of relinquishment or surrender was foreshadowed in certain remarks of Jimutavahan, the learned Judges of the Supreme Court in Natvarlal Punjabhai and Another Vs. Dadubhai Manubhai and Others, observe as follows:

There is indeed no mention of surrender or renunciation in the text and it was not on the basis of any textual authority that the law of surrender developed in India.

(13A) We may also observe that they take a passage from the decision of the Madras High Court In Damaraju Venkatarayudu Vs. T. Narayanayya and Others, , as summing up quite correctly the true nature and effect, of a surrender by a Hindu widow of her husband''s estate. They say further:

An analysis of the Madras decisions, referred to above, upon which the learned Counsel for the Appellant places his romance, will show that the grounds upon which they "purport to be based are of a three-fold character: The first is that an alienation of property by a Hindu Widow, in excess of her powers, though not binding on the inheritance, creates in the alienee an interest commerisuvafce with the period of her natural life...... The second ground is, that as the widow herself is incapable of disputing the title of the alienee or of the person who has acquired interest by adverse possession against her, a like disability attached to the reversioner also who could not haye obtained the properties but for the surrender made by the widow. The third ground assigned is that the law of surrender being a judge-made law, the Courts in recognising the right of surrender by a Hindu widow can and ought, to impose conditions on the exercise of her power based on considerations of justice, equity and good conscience, and surrender being a purely voluntary act on the part of the widow, she could not be allowed by her own act to prejudice the interests which she had already created.

They reject both the first and the second lines of reasoning and in regard to the third ground, they make the following observations at page 79 (of Mad LJ): (at p. 69 of AIR):

Coming now to the third ground, it is certainly true that a surrender is a voluntary act on the part of the widow and she is under no legal or moral obligation to surrender her estate. Instances do arise where an alienee has paid valuable and substantial consideration for a property on the expectation of enjoying it so long as the widow would remain alive and his expectations have been cut short by u surrender on the part of the widow, which no doubt benefits the reversioner in the sense that he gets the inheritance even during the widow''s life-time. On the other hand, a person, who takes transfer from a Hindu, widow, acts with his eyes open. If tire transfer is without any legal necessity, there is a risk always attached to the transaction, and there is no law, as we have already explained, which secures to him necessarily an estate for life. A man making a purchase of this character is not expected to pay tiie same value which he would pay if the purchase were made from a full owner. Be that as it may, even assuming that the Court is not incompetent to impose conditions on the reversioner''s rights of recovering possession of the property during the widow''s life-time on grounds of equity, justice and good conscience in proper cases, It is clear that in the case before us no equitable considerations at all arise."

In an earlier part of the same judgment, their Lordships observed at page 74 (of Mad LJ): (at p. 66 of AIR) as follows:

Whether any equitable principle can be invoked in favour of a third party who has acquired rights over the property by any act or omission of the widow may be a matter for consideration.

In the discussion of the third ground, dyer Lordships seem to have in mind the language of B. N. Rau, J., in Ram Krishna Prodhan Vs. Sm. kousalya Mani Dasi and Others, rather than that of Krishnan. J., in (Nelakanti) Sundarasiva Row and Others Vs. Ivatury Viyamma and Others, both of whom speak of imposing conditions on the surrenderee. In the former case, B. N. Rau, J., in discussing the right of the surrenderee-reversioner to challenge an alienation made by the widow, stated at page 699 as follows; ''Two views have been taken; (a) that the reversioner may challenge th(c) alienation at once; (b) that he must wait until the widow''s death."

He expressed his conclusion in the following words:

For all these reasons, I am of opinion that (a) Is the right view: if in any particular case its strict enforcement leads to injustice, the Court can, in setting aside the alienation, impose such terms as it thinks fit in order to compensate the alienee.

The learned Judge apparently had no doubt as to the immediate vesting in the surrenderee of tire right to sue. Bat ho thought that, in setting aside an alienation at his instance, conditions may be imposed upon him in favour oi the alienee, on equitable considerations. This apparently is the view that commended itself to the Supreme Court though the learned Judges in dealing with the third ground upon which, the Madras decisions were supposed to have vested, do not say in so many words that that ground is unsound. But the expression ''imposition of conditions'' seems to imply not a postponement on equitable considerations of the right to sue but only subjecting to __some conditions, the reversioners right; of recovering the possession during the widow''s life-time, in proper cases. It seems to us that the decision of the Supreme Court unequivocally establish one conclusion, vi/.., that the surrenderee has an immediate fight to sue for die possession of the whole of the estate in respect of which the widow effaced herself. We cannot see how equitable considerations could avail to postpone the right to sue, though they may enable the Court "to impose conditions, in setting aside an alienation," to adopt the language of B. N. Rau, J. In our opinion, though the ease before the Supreme Court was one relating only to adverse possession against the widow and though the Supreme Com! not dealing with the question of limitation, their Lordships intended to lay down that a surrender operates eoinstanti to clothe the reversioner with the right to impugn the widow''s act of alienation.

The Supreme Court do not leave us in any doubt as to their view in regard to the vesting of such a right. In such a case it is true that it is not Article 141 that would apply but Article 144 as we have already pointed out. We are, therefore, of the opinion that where there is a surrender following upon an alienation by a widow, the surrendree must sue within 12 years of the surrender to set aside the alienation.

We must, however, deal with the preliminary objections of Mr. Ramachandra Rao which we mentioned above, before discussing the applicability of the rule laid down, by the Supreme Court, to the facts of this case. There is little substance in his first contention that the point of limitation should not be allowed to be raised for the first time in this Court. Section 3 of the Limitation Act clearly enjoins upon the Court that duty''-of dismissing a suit if it is barred by time, whether a plea of limitation is or is not taken by the Defendant. The more serious objection, however, is that Exhibit A-85 which purports to be a deed of surrender was only incidentally filed in the case y, and no question was raised in the Court below as to whether it comprised the whole of the estate which came into the hands of the limited owner. In so far as the validity of Exhibit A-85 as a surrender turns upon the question whether it comprised the whole of the estate of Surayya which vested -in the Plaintiff''s mother, it depends upon facts the ascertainment of which has not been made the subject-matter of any issue and which therefore have not been investigated. This appears to us to be a formidable objection to the availability to the Appellants of tire present contention. Again, it seems to us clear that Exhibit A-85 is limited to a conveyance of the rights of Surya Manikyamba in respect only of property specified in the schedule thereto. While it is true that a surrender need not be effected by a deed, when in fact there is one, it seems to us. that the language used in it cannot bo ignored in haying to ascertain whether the transaction amounts to a surrender in tire eye of the Hindu Law.

Now, Exhibit A-85 makes no mention of the properties alienated by the Plaintiff''s mother, cither because she thought that they were to be treated as having been properly alienated and could not therefore be questioned by the Plaintiff, or because she thought that even otherwise, her son could not recover them during her life-time. In any case, the non-inclusion of these items together with the actual conveyance of her life interest in specific items only of her father''s property deems to us to detract from the character of the transaction as a surrender. That deed does not, in our opinion, operate as a voluntary self-effacement of the limited owner in regard to the whole of the estate she had inherited. Claiming under that document, the Plaintiff could not have instituted a suit for the recovery of the alienated properties. That being so, we think that it has not been established by the Defendants that there was an acceleration of the inheritance in favour of the Plaintiff in the year 1920 which enabled him to sue at once for the recovery of the property in dispute. The suit therefore cannot be said to come within the scope of Article 144 but falls clearly within that of Article 141 of the Limitation Act, in which case it is clear that the suit is not barred.

In the result, the appeal fails and is dismissed with costs. C. M. P. No. 185 of 1956 is an application for leave to raise additional grounds in tl-e appeal.