1. This Second Appeal raises a question of competing title as between the alienees from the last male-holder Ramaswami's widow, Seshamma, the appellants before me, and the contesting defendants, in the Court of trial on the one hand and the settlees from her mother-in-law, Eamamma, on the other, of whom the plaintiff in the trial Court respondent l before me, is the last surviving brother. It was the primary part of the plaintiff's case in the plaint that there was a usufructuary mortgage by the plaintiff and his deceased brothers in about 1935 in respect of the suit properties in favour of defendant 1 which became discharged before the date of suit, and that defendant 1 was not entitled to remain in possession. It may be noted that this part of the plaintiff's case was put forward as accounting for the defendant's admitted possession for some years, prior to suit. It was his further case that defendant l got Seshamma, defendant 6, after her mother-in-law's death to alienate the suit properties to defendants 2 and 4 clandestinely, under Exs. D. 1 and D. 2 dated 23-3-1944, to the prejudice of the plaintiff who, along with his brothers, had become entitled when they were alive, and solely after their deaths, under the settlement deed from her mother-in-law in favour of the plaintiff and his brothers, Ex. P. 3 dated 17-5-1916. The contesting defendants denied the usufructuary mortgage set up in the plaint, asserted their own title as vendees from Seshamma and put the plaintiff to proof of his title and his possession within 12 years prior to suit. The learned District Munsif of Amalapuram dismissed the suit upholding the defendants' pleas, and the learned Subordinate Judge of Amalapuram on appeal decreed the suit ignoring the plaintiff's case and version of the usufructuary mortgage and finding the plaintiff's title as under Ex. P. 3 and possession within the statutory period as against the contesting defendants' title under Exs. D. 1 and D. 2 and as against their possession as lessees from Soshamma from 1935 to 1944 and as vendees from her thereafter which had been found by the trial Court and which was not found against by the lower appellate Court.
2. I am not prepared to disturb the finding of the lower appellate Court as to the plaintiff's possession within the statutory period in support of which Ex. P. 4 series have been filed. The finding on the question of plaintiff's title however stands, in my opinion, on a different footing. The contesting defendants prima facie are entitled as alienees from the widow of the last male-holder who would be the person, if nothing more existed, competent to deal with the properties in suit. Their prima facie title is sought to be defeated by the plaintiff on whom undoubtedly the onus lies by means of the recitals of Ex. P. 3, the settlement deed in favour of himself and his brothers, by Eamamma, the mother of the last maleholder. Seshamma is not a party thereto. Neither she nor persons claiming under her can be held bound by its recitals. Even assuming the recitals of Ex. P. 3 to be true, I am of the view that they are insufficient to make out an absolute title in Ramamma which she could convey to the plaintiff and his brothers. The learned Subordinate Judge went too far, in my opinion, in holding that there was a binding arrangement between Seshamma and her mother-in-law Ramamma that the properties in suit should be held by the latter for an absolute estate pursuant to a direction of the last male-holder, even if such direction were the fact, as recited in Ex. P. 3. The settlement attributable to the last male-holder according to the recitals of Ex. P. 3 does not suggest anything more than that in order that his mother Ramamma and his wife should have no disputes in future regarding the former's maintenance, the suit properties should be enjoyed by the former while the remaining half of his estate should be enjoyed by the latter. Enjoyment for maintenance does not ordinarily connote anything more than enjoyment during the lifetime of the person entitled to maintenance, and there is nothing in the context to indicate that the last male-holder meant to make of his mother a co-owner with his widow in all respects so that his mother might alienate the properties in favour of whomsoever she liked to the prejudice of the widow, even if she survived his mother. The only material that we have in the case with reference to the nature of the estate taken by Ramamma under the arrangement between her and her daughter-in-law is that furnished by the contents of Ex. P. 3, and the mere fact that Eamamma dealt with the properties under Ex. P. 3 purporting to convey an absolute title does not necessarily mean that she did have the absolute title which she purported to convey, especially in view of the fact that there is nothing in its recitals about the settlement by the last male-holder suggesting that he desired his mother to take the suit properties except for purposes of maintenance or to hold them more or less as a co-owner with his widow without a reverter to the latter on the death of the former. The presumption in the case of a maintenance grant when nothing else is known and where the document of grant is not forthcoming, and, if forthcoming, ambiguous in its terms, is that it is intended to enure for the lifetime of the grantee, not beyond, and there is nothing in the recitals of Ex. P. 3 to rebut that presumption. The mother died in 1931, and within four years thereafter the defendants appear on the scene first as lessees of the widow and afterwards as vendees from her. The possession of the plaintiff and his brothers under Ex. P. 8 which continued for a few years after the death of Ramamma, while it might be sufficient to satisfy the requirement of Article 142, Limitation Act, as to plaintiff's possession within 12 years prior to suit would not confer upon the plaintiff the right to remain in possession of the properties as against the vendees from Seshamma such as the defendants appellants are.
3. My attention has been drawn by Mr. Bhimasankaram, learned counsel for the respondent, to the decision of this Court reported in Mangamma v. Doraya, I. L. R. (1937) Mad, 335 : (A. I. R. (24) 1937 Mad. 100) wherein it has been held that in the absence of direct evidence one way or the other there is no presumption as to the quantum of interest which a Hindu female takes in respect of immoveable property given to her. There is nothing in that judgment which militates against the view I, am taking here. The question decided in Mangamma v. Doraya, I. L. R. (1937) Mad. 335 : (A. I. R. (24) 1937 Mad. 100) does not arise here, although if the question arose it might be pertinent to observe that, as will be seen from the reference made in the judgment to the rule as stated in Mullah's Principles of Hindu Law, 8th Edn. 467, and to the decision of the Privy Council reported in Mahomed Shumsool v. Shewukram, 2 I. A. 7 : (14 Beng. L. R. 226 P. C.) the learned Judges were prepared to hold that a Hindu donor must be presumed to have made his gift to a Hindu female with tho notion present to his mind that as a rule Hindu females take only a limited estate in property inherited by them from male relations. A ruling perhaps more pertinent to the case on hand is a Bench decision reported in Venkatappiah v. Venkatasubbiah, 16 M. L. J. 352 which holds that in the absence of any evidence that lands set apart for the maintenance of a female member of the family, (in that case a coparcener's widow) were not to be resumed on her death, the presumption is that they are resumable. Applying the principle of that decision to the present case it seems to me that the suit lands would, prima facie, be liable to revert to Seshamma, unless she is proved to have extinguished her right of survivorship by any binding agreement.
4. Mr. Bhimasankaram has, with his usual resourcefulness, also sought to maintain the decree of the lower appellate Court on the basis of a title by adverse possession on the part of the plaintiff and his brothers commencing from the date of Ex. P. 3; but a case of prescriptive title as such has not been raised in the pleadings, and I am not prepared to construe the issue of title in the circumstances of this case as covering a case of title by prescription or to entertain in second appeal the point raised for the respondent with reference to such case.
5. The equities arising out of the state of the record as to possession and the considerations connected with the question of title seemed to my mind during the progress of the hearing of the appeal so evenly balanced that I was wondering whether to accept the appeal or reject it; but having reserved judgment I have definitely made up my mind in favour of the appellants on a careful consideration of the true legal perspective indicated by me in the foregoing as applicable to the case. The decree of the lower appellate Court is accordingly set aside and the decree of the trial Court restored with coats here and in the lower appellate Court.
6. No leave.
7. Mr. Bhimasankaram tells me, as I have finished reading this judgment, that, since the lower appellate Court has not found one way or the other on the question of the usufructuary mortgage act up by the plaintiff but has merely ignored the case and version about the mortgage, because apparently it found it possible to decide the case without a finding upon it, I must send the case back to the lower appellate Court for a finding on the question which forms the subject-matter of issue No. 1. I think Mr. Bhimasankaram is right. Although this point was not mentioned to me at the time of the argument, the respondent is certainly entitled to have a finding called for on this question from the lower appellate Court. I accordingly direct the learned Subordinate Judge of Amalapuram to submit his finding on this question within six weeks from the date of the receipt of this judgment. Time for objections one week thereafter.