Venkateswara Rao And Others v. Venkatasiva Rao .

Bhimasankaram, J.:-

(1) Defendants 23 to 28 are 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 immoveable property stated to have belonged originally to the maternal grand father of the plaintiff, alamuru surayyagaru. The plaintiff's case was that after the death of his maternal grandfather, the said surayyagaru, 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 manikyarnba, who died in july, 1946. The plaintiff claimed the suit properties as the sole reversioner to the estate of late surayyagaru. He contended that the alienations of the suit properties in favour of the contesting defendants made by his mother 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 26th april, 1899 and that therefore she was entitled to alienate the item as her own they alternatively pleaded that the sale being for the 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 a lunatic at the time and was represented by her daughter as guardian) also joined as executants.

(2) 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 execution. The lower court found that the will was not established and it is frankly conceded by mr. Suryanarayana for 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 the alienation could be supported on the ground of legal necessity ? and (2) whether the suit is in time or whether the plaintiff's mother and 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 the 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 death 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 manikyamba even while her mother was alive in a sale deed, exhibit a - 29, dated 26th february, 1902, in her avour, that the property now in 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 estate. 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 debt.

(3) It is now found that this money belonged to surayya, that surya manikyamba had no interest in the original mortgage and that when she took exhibit a - 29 in discharge thereof, she was only getting it for the benefit of the estate. It may be noted that at the time when exhibit a - 29 was taken surya manikyamba's mother was alive and that she was the person properly entitled to obtain the sale deed in discharge of the mortgage. Therefore, when surya manikyamba came into possession of these properties and set up an absolute right thereto, she was holding it, if at all adversely only to her mother 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 manikyamba herself. The lower court therefore rightly held under issue 7 that the suit was not barred by limitation.

(4) But, under the above issue, a new point is now sought to be raised by mr. Suryanarayana for the appellants. Reliance is placed by him on what 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 plaintiff in order to disprove the case of the defendants as to the alleged will of surayya. It is dated 10th january, 1908 and is entitled a deed of surrender. The plaintiff's mother 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. Suryanarayana placing reliance on a recent decision of the supreme court repoted in natvarlal v. Dadhubhai, ( 1954) 1 m. L. J. 69 : ( 1954) s. C. J. 34 : 1954 s. C. R. 339 (s. C.). 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."

(5) 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 that 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 in 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 on the basis of which the plaintiff could have sued for the recovery of the 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 predecessors - in - title of these defendants in exhibit a - 45, dated 6th february, 1907.

(6) It purports to have been executed by " (i) digavalli venkataratnamgaru's wife surya manikyamba, (2) the said venkataratnamgaru's son venkatasiva rao being minor by father and guardian the said venkataratnamgaru and (3) late alamuru surayyagaru's wife, simhamma, being of unsound mind by daughter and guardian the said surya manikyamba ". It recites that the property covered by it was registered in the accounts in the names of alamuru venkatachalam dikshitulu, thammiraju and alamuru surayyagaru's wife simhammagaru, that it has been in the enjoyment as of right of surya manikyamba under the will of her father executed on 26th april, 1899 and that if was being sold for a sum of rs. 400 "for purposes of discharging the sundry debts contracted by alamuru surayyagaru". The will, of course, was a myth and therefore the alienation in question must only be supported by necessity. The learned counsel for the appellants contends that the recital that the 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 be observed that as some of the recitals are obviously unreliable besides being self - contradictory, it is difficult to accept the 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 a lienors. 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 the 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 disclose 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 : subrahmanyam v. Soorayya. There being no power of aliunde, except this recital, we must hold that the defendants have not discharged the onus that lay on them.

(7) 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 v. Dadubkai, (1954) 1 m. L. J. 69 : (1954) s. C. J. 34 : 1954 s. C. R. 339 (s. C.). The view of the madras high court established by a long line of decisions commencing from subbamma v. Subramanyam, (1915) 30 m. L. J. 260 : i. L. R. 39 mad. 1035 and confirmed by the full bench in vaidyanatha sastri v. Savithri, (1917) 33 m. L. J. 387: i. L. R. 41 mad. 75 (f. B.). 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 bala tripurasundara rao v. Kotayya, (1951) 2 m. L. J. 39.

(8) It was observed therein that there was no difference in principle between the case of an alienation and a case where the title of the limited owner became extinguished by the operation of the statute of limitation. The learned judges held that the adverse possessor acquires a title good against the limited owner for her lifetime. In the course of their judgment, they observed as follows :

"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 same 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."

(9) This principle was further extended to a case of a gift made by a widow in arunachala mooppanar v. Arumugha mooppanar, 1952 2 m. L. J. 280. By another bench of the same court. An attempt was made in this latter case to assail the very foundation of the decision in subbamma v. Subramanyam, 1915) 30 m. Lj. 260 : i. L. R. 39 mad. 1035. On the basis particularly of the judgment of the calcutta high court in ram krishna v. Smt. Kousalya mani, (1935) 40 c. W. N. 208 : a. I. R. 1935 cal. 89. 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 v. Dadubhai, (1954) 1 m. L. J. 69 : (1954) s. C. J. 34: 1954 s. C. R. 339 (s. C.). The supreme court had to consider the right of a surrenderee immediately after 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 joint 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 punjabhai 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 kashi 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 properties, 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 appointed took possession of all the properties belonging to the joint family. Bai kashi filed an unsuccessful suit against the guardian appointed by the district court for recovery of her share of the properties.

(11) Thereupon, one rukmini, a sister of shankarbhai, instituted a suit for a declaration that the joint status of the family had been disrupted and that she, as the next heir of shankarbhai, was entitled to his share of the properties on the death of bai kashi. Though the suit was dismissed by the trial court, the high court, on appeal, gave the appellants a declaration in the terms asked for. After this judgment, bai kashi executed a deed of surrender in favour of rukmini'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 full bench of the bombay high court in h. R. (1949, bom. 869 wherein the learned judges held that though the defendants 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 to recover the possession of the properties by ejecting the defendants and were not bound to wait till the widow's death. In reaching that conclusion, the learned judges overruled an earlier decision of their own court reported in sakharam bala v. Thama, (1927) i. L. R. 51 bom. 1019. And refused to follow the madras decisions as also the decisions of the allahabad high court in lachmi v. Lachho, (1926) i. L. R. 49 all. 334, 346. They preferred the calcutta view embodied in ram krishna v. Kausalya, the learned chief justice who delivered the judgment of the full 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 sundarasivarao v. Viyyamma, 1925 49 m. L. J. 266 : i. L. R. 48 mad. 933 the learned chief justice observed as follows :

"in sundarasivarao v. Viyyamma, 1925 49 m. L. J. 266 : i. L. R. 48 mad. 933 mr. Justice krishnan, who delivered the judgment of the bench, quite frankly concedes that the courts are justified, in recognising the right of surrender by the widow, to impose conditions on her power based on considerations of justice, equity and good conscience. With very great respect, if the hindu law is clear, i fail to see where the power of the court arises in altering the law from considerations of justice, equity and good conscience."

(12) By the time this full bench decision reached the supreme court, the same point came up for consideration again in the allahabad high court itself and it was there held in raghuraj singh v. Babu singh, a. I. R. 1952 all 875. Contrary to its earlier view, that where a hindu widow made a surrender of her entire estate, the reversioner in 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 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 that article is as follows : " like suit by a hindu or muhammadan entitled to the possession of immoveable property on the death of a hindu or muhammadan female. "

(13) 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, on the view expressed by us, did not arise in 1941 when she died and the article will not, therefore, apply. "

(14) 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 referred to her husband's estate. It seems to us therefore that if a surrenderee is entitled to recover immediate possession of all the properties belonging to the 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 not seem, however, to act upon the view of the bombay high court that there is an inflexible rule of hindu law relating to surrender based upon ancient texts.

(15) After referring to remarks of ashutosh mookerjee, j. , in debi prosad v. Golap bhagat, 1930 i. L. R. 40 cal. 721 at 771 (f. B.). That the theory of relinquishment or surrender was foreshadowed in certain remarks of jimutavahan, the learned judges of the supreme court in natvarlal v. Dadubhai, 1954 1 mlj 69 : (1954) s. C. J. 34 : 1954 s. C. R. 339 (s. C.). 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"

.

(16) We may also observe that they take a passage from the decision of the madras high court in damaraju v. T. Narayana, 1941 1 m. L. J. 349 : i. L. R. (1941) mad. 551, 557 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 reliance, 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 commensurate 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 have 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."

(17) 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 :

"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 a 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 the 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 the 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."

(18) In an earlier part of the same judgment, their lordships observed at page 74 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, their lordships seem to have in mind the language of b. N. Rau, j. , in ramakrishna v. Kausalya, 1935 40 c. W. N. 208 : a. I. R. 1935 cal. 689. Rather than that of krishnan, j. , in sundarasiva rao v. Viyyamma, (1925) 49 m. L. J. 266 : i. L. R. 48 mad 933 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 challege the alienation at once ; (4) that he must wait until the widow's death. "

(19) 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."

(20) The learned judge apparently had no doubt as to the immediate vesting in the surrenderee of the right to sue. But he thought that, in setting aside an alienation at his instance, conditions may be imposed upon him in favour of the alienee on equitable considerations. This apparently is the view that commanded itself to the supreme court though the learned judges in dealing with the third ground upon which the madras decisions were supposed to have rested, 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 reversioner's 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 establishes one conclusion, viz. That the surrenderee has an immediate right to sue for the 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 case before the supreme court was one relating only to adverse possession against the widow and though the supreme court were not dealing with the question of limitation, their lordships intended to lay down that a surrender operates eo instanti to clothe the reversioner with the right to impugn the widow's act of alienation.

(21) 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 surrenderee must sue within 12 years of the surrender to set aside the alienation.

(22) We must, however, deal with the preliminary objections of mr. Ramachandra rao which we have 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 indian 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 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 the 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 be ignored in trying to ascertain whether the transaction amounts to a surrender in the eye of the hindu law.

(23) Now, exhibit a - 85 makes no mention of the properties alienated by the plaintiff's mother, either 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 seems 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 indian limitation act, in which case it is clear that the suit is not barred.

(24) 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 the appeal. This application is allowed. Appeal dismissed.