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Case Number

Second Appeals Nos. 265 and 361 of 1935

Judges

Pandrang Row, J.

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Smart Summary

Structured Summary of the Opinion

Factual and Procedural Background

This litigation arises from a suit in forma pauperis (Order S. No. 601 of 1931) for recovery of certain immoveable properties together with mesne profits, brought by three plaintiffs who are brothers and the sons of one Suryam. The plaintiffs alleged that Suryam was the adopted son of Buchayya and that the plaint properties (admittedly the self-acquisitions of Buchayya) had come to Suryam and were taken by him as joint family (ancestral) properties and enjoyed as such, notwithstanding a will executed by Buchayya in 1911 in favour of Suryam (Ex. 1). Suryam sold some properties by Ex. 2 (1919) and others by Ex. 8 (1924) to the two defendants; the suit sought to recover possession and avoid those alienations.

At trial the District Munsif of Tanuku (decree dated 16 February 1933) found in favour of the plaintiffs on all issues except that of the adoption of Suryam and dismissed the suit because it found adoption not proved. The Subordinate Judge, Ellore (decree dated 4 March 1935), on appeal, reversed the trial Court on the adoption question (finding adoption proved) and decreed that the plaintiffs were entitled to recover a three-fourths share of the properties covered by Exs. 2 and 8 with mesne profits of Rs. 45 per year on that three-fourths share. The two defendants filed second appeals (S.A. No. 265 of 1935 by defendant 2 and S.A. No. 361 of 1935 by defendant 1) challenging the appellate decree.

Legal Issues Presented

Whether the plaint properties bequeathed to Suryam by Buchayya (Ex. 1) were to be treated as ancestral (joint family) property in the hands of Suryam or as Suryam's self-acquired (separate) property.
Whether the sale deeds Ex. 2 (1919) and Ex. 8 (1924), executed by Suryam in respect of portions of the properties, are valid and binding on the plaintiffs (sons of Suryam) if the properties are ancestral.
Whether, if the sales are invalid, the alienees (defendants) are nevertheless entitled to equitable relief or compensation (equities) for sums they claim to have expended or debts satisfied out of the sale consideration (specifically Rs. 152 under Ex. 5 and Rs. 600 said to discharge an antecedent debt).
What share the purchaser (defendant 1) under Ex. 2 is entitled to — specifically, whether the vendor's share is to be computed as of the date of the alienation (Ex. 2) or as of the date of suit.
Consequential question of adjustment of mesne profits in view of the shares finally determined.

Arguments of the Parties

Plaintiffs' Arguments

The plaintiffs claimed that Suryam (their father), though the beneficiary of Buchayya's will, had taken and enjoyed the properties as joint family (ancestral) property and that therefore the alienations by Suryam (Exs. 2 and 8) were not binding on them as successors.
The plaint sought recovery of possession and mesne profits for the plaintiffs' share.

Defendants' Arguments

The defendants resisted the suit on several grounds (the opinion records resistance but does not elaborate all grounds of defence).
It was argued (by the alienees/defendants) that even if the sales were invalid as against the plaintiffs, the purchasers were entitled to certain equities: defendant 1 claimed an equity to the extent of about Rs. 152 (linked to Ex. 5) and defendant 2 claimed at least Rs. 600 (said to have been required to pay off an antecedent debt of Suryam to Veeracharyulu).
The lower appellate Court (as described in the opinion) adopted an approach (following Muthukumara Sethupathiar v. Sivanarayana Pillai) treating the vendor's share as to be ascertained at the date of the suit rather than at the date of alienation; this approach was relied upon to increase the plaintiffs' share on appeal below (a position challenged in the present opinion).

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Lalram Singh v. Deputy Commissioner, Pratapgarh, AIR 1923 PC 160	Referenced for the fact that High Courts differ on whether self-acquired property bequeathed by a Hindu father to his son becomes ancestral in the son's hands; the Judicial Committee noted the difference and declined to settle it in that case.	Used to acknowledge that the issue is unresolved at the highest level and to justify following the established Madras view pending a definitive pronouncement by the Judicial Committee.
Nagalingam Pillai v. Ramachandra Tevar (1901) 24 Mad 429	Sets out the Madras view that a father may determine whether property given shall be ancestral or self-acquired, and absent an expression of intention that it should be self-acquired, it is to be treated as ancestral.	The court followed this settled Madras view and held that Ex. 1 contained no expression making the property Suryam's separate self-acquired property; therefore the properties were to be deemed ancestral in Suryam's hands.
Muthukumara Sethupathiar v. Sivanarayana Pillai, AIR 1933 Mad 158	Presented (as relied on by the lower appellate Court) for the proposition that a vendor's share may be calculated with reference to the time when the suit was brought rather than the time of the alienation.	The court considered that the lower appellate Court's reliance on this decision was incorrect for the facts of the Presidency and declined to follow that approach in the present case.
Chinnu Pillai v. Kalimuthu Chetty (1912) 35 Mad 47	States the settled law in the Presidency that the share of a vendor (in the context of ancestral property alienation) is to be determined as of the date of the alienation.	The court applied this settled principle to hold that for Ex. 2 (1919) the share of defendant 1 is one-half (the share owned by Suryam at the date of Ex. 2) and not the larger share calculated as of the date of suit; the court declined to disturb this long-settled rule.

Court's Reasoning and Analysis

The court proceeded on the uncontested finding below that Suryam had in fact been validly adopted (a point not challenged in the present appeals). Having accepted adoption as proved, the court analysed the will (Ex. 1) executed by Buchayya in 1911. The will clearly intended to give Buchayya's self-acquired properties to Suryam and contained language (translated as "enjoy the properties from son to grandson and so on in succession with powers of gift and sale") which conveys a complete transfer of ownership to the legatee. However, the court found that those words did not indicate Buchayya's intention as to whether the properties, once vested in Suryam, were to be treated by Suryam as his separate (self-acquired) property or as ancestral (joint family) property.

On the unresolved legal question whether self-acquired property bequeathed to a son becomes ancestral in his hands, the court noted conflicting opinions in different High Courts and observed the Judicial Committee's decision in Lalram Singh, which declined to settle the conflict. In that circumstance, the court followed the established Madras doctrine (Nagalingam Pillai v. Ramachandra Tevar): absent an express intention in the will to make the property the separate property of the legatee, property bequeathed by a father should be held to be ancestral in the hands of the son. Applying this principle to Ex. 1, the court concluded that Buchayya's will contained no expression that the property should be treated as Suryam's self-acquired property; therefore, the properties were deemed ancestral in Suryam's hands.

Both lower courts had held that the sale deeds Ex. 2 and Ex. 8 were not binding on the plaintiffs. The court agreed with those concurrent findings. For Ex. 2, though the total consideration was stated as Rs. 1,460, only about Rs. 152 (Ex. 5) could arguably have been used for a debt binding on the plaintiffs; for Ex. 8 (consideration Rs. 1,900), Rs. 600 was said to be required to pay an antecedent debt, but there was no material showing that this debt was actually paid out of the consideration. The court found no reason to disturb the conclusion that neither deed of sale bound the plaintiffs and that plaintiff 1 (born before Ex. 2) could in any case ignore them.

The court considered the defendants' claim to equitable relief (equities) for amounts they asserted had been applied to debts. The court was not satisfied that such equities existed: it was not shown that the debts could not have been paid out of Suryam's own share of the sale proceeds (the vendor's share under a valid portion of the sale). Since the sales, insofar as they related to Suryam's own share, were valid and that share was sufficient to satisfy the debts in question, there was no showing that the sons' shares benefited as a result. The court also noted that the defendants were not the creditors asserting the rights and that the equity claim was raised for the first time in second appeal without sufficient material; accordingly the court declined to adjudicate that claim in second appeal.

As to the share to which defendant 1 was entitled under Ex. 2, the court rejected the lower appellate Court's adoption of a view that the share should be computed as of the date of suit (an approach attributed to Muthukumara Sethupathiar v. Sivanarayana Pillai). Instead, the court followed long-established Madras authority (Chinnu Pillai v. Kalimuthu Chetty) that the vendor's share must be ascertained as on the date of the alienation. Applying that rule, the court held that defendant 1 is entitled only to one-half (the share Suryam owned at the time of Ex. 2) as regards the properties comprised in Ex. 2 (plaint item 1). Consequentially, the mesne profits awarded by the lower appellate Court (Rs. 45 per year) were reduced to Rs. 30 per year for that item to reflect the reduced recoverable share.

Holding and Implications

Holding: Defendant 2's second appeal (S.A. No. 265 of 1935) is dismissed.

Defendant 1's second appeal (S.A. No. 361 of 1935) succeeds in part: the court holds that defendant 1 is entitled only to one-half of the share affected by Ex. 2 (the share Suryam owned at the date of Ex. 2) and that the mesne profits awarded in respect of that item should be reduced from Rs. 45 per year to Rs. 30 per year. In all other respects defendant 1's appeal fails. Parties in defendant 1's appeal will bear their own costs.

Consequences and implications:

The properties bequeathed by Buchayya under Ex. 1 were held to be ancestral in Suryam's hands (following Madras precedent), and therefore the alienations by Suryam (Exs. 2 and 8) are not binding on the plaintiffs to the extent they impinge on the plaintiffs' shares.
No general equitable allowance was made to the purchasers (defendants) because the court found insufficient material to establish that the sons' shares had been benefited or that the debts could not have been paid from the vendor's valid share.
The court reaffirmed and applied the established Madras rule that the vendor's share is to be determined as of the date of alienation (Chinnu Pillai), thereby rejecting the alternative approach of calculating share as of the date of suit in the circumstances of the Presidency.
The judgment modifies the decree below in important particulars (partial allowance of defendant 1's appeal and reduction of mesne profits) but does not attempt to create new law; it follows existing Madras authorities pending any authoritative settlement by higher authorities on the unresolved conflict noted in the Judicial Committee's decision.

Additional orders: The other second appeal fails and is dismissed with costs. Leave to appeal was refused.

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Majeti Kasi Viswesra Rao Applt. v. Pulletikurti Varahanarasimham And Others

1. These appeals are from the decree of the Subordinate Judge, Ellore, dated 4th March 1935, reversing on appeal the decree of the District Munsif of Tanuku dated 16th February 1933 in Order S. No. 601 of 1931, a suit in forma pauperis for recovery of certain immoveable properties together with mesne profits by the plaintiffs who were three in number. The plaintiffs are brothers, being the sons of one Suryam who according to them was the adopted son of one Buchayya. The plaint properties were admittedly the self-acquisitions of this Buchayya, and the plaintiffs' case was that their father Suryam took these properties as joint family properties and enjoyed them as such, though there was a will in respect of these properties by Buchayya in favour of Suryam. Suryam sold some of the properties under Ex. 2 in 1919 to defendant 1 and some other properties under Ex. 8 in 1924 to defendant 2. The suit is in effect to recover possession of these properties avoiding the alienations referred to above. The suit was resisted by both the defendants on several grounds, which are reflected in the issues framed by the trial Court. Except on the issue relating to the adoption of Suryam, the findings of the trial Court were in favour of the plaintiffs. But on this question of adoption the trial Court found that the adoption had not been proved, and as a result of this finding alone, the suit was dismissed by the trial Court. The trial Court states in its judgment that, otherwise its decree would have been to the effect that Ex. 2 would be valid only to the extent of a half share owned by Suryam and that Ex. 8 would be valid. only to the extent of one. fourth share owned by him. On appeal by the plaintiffs, the learned Subordinate Judge differed from the trial Court as regards the question of adoption, and found that the adoption was true and valid. He accordingly allowed the appeal and decreed that the plaintiffs were entitled to recover three-fourths share of the properties covered both by Exs. 2 and 8 with mesne profits on that three-fourths share at Rs. 45 a year. The present appeals are by the two defendants, S.A. No. 265 of 1935, being the appeal by defendant 2 and Section A. No. 361 of 1935 being by defendant 1.

2. No attempt whatever has been made in these appeals to question the correctness of the finding of the lower appellate Court on the question of adoption. I must therefore proceed on the basis that the adoption has been proved and consider whether in view of that finding, the judgment appealed from is wrong. The first question that arises for decision in both these appeals is whether the plaint properties were taken by Suryam as joint family properties or whether they are his self-acquired properties. It is common ground that the properties which were admittedly self, acquired properties of Buchayya, his adoptive father, came to him not by way of succession but by virtue of the will executed in 1911 by Buchayya, Ex. I. That will recites the fact that the testate had adopted Suryam and performed his marriage and that therefore Suryam should be the owner of all his properties, moveable and immoveable and enjoy the same from son to grandson and so on in succession with powers of gift and sale. There is also a provision in the will to the effect that whether or not the adoption of Suryam is legal the properties have been given to Suryam to be enjoyed as of right after his death. It is clear from the will that the intention of the testator was that the properties should go to his adopted son Suryam, and it was only to makee assurance doubly sure that he further provided that even if the adoption were found to be not legal, Suryam was to get the properties all the same. Now that it has been found that Suryam was validly adopted by the testator, it must be taken that the properties were given by Buchayya by will to his adopted son. The words in the vernacular which have been translated as " enjoy the properties from son to grandson and so on in succession with powers of gift and sale" are the usual words employed in order to indicate that the entire ownership is to pass. They do not show in my opinion any intention on the part of the testator as to whether his adopted son, the legatee, is to take the properties as self, acquired properties or as joint family properties.

3. On the question whether self-acquired property bequeathed by a Hindu father to his son is the separate property of the son or whether it is ancestral in his hands as regards his sons, there is a difference of opinion between the different High Courts, which is referred to by their Lordships of the Judicial Committee in Lalram Singh v. Deputy Commissioner, Pratapgarh AIR 1923 PC 160. The question cannot be said to be absolutely settled as their Lordships of the Judicial Committee declined in that case to settle the difference of opinion, but deferred it to a later occasion. Till their Lordships of the Judical Committee settle this difference, I am bound to follow the view that has been adopted and followed in Madras ever since Nagalingam Pillai v. Ramachandra Tevar (1901) 24 Mad 429 and that view is against the appellants. That view is that it is left to the father to determine whether the property which he gives shall be ancestral or self-acquired, and further, that unless there is any expression of intention or wish that the property should be deemed to be self-acquired, it must be held that the property is to be enjoyed as ancestral property. In the particular will, Ex. 1, there lis nothing from which any intention can be gathered of Buchaya's wish or intention that the properties were to be the self-acquired properties of Suryam. I am therefore unable to accept the arguments on the side of the appellants or to dissent from the conclusion arrived at by the lower appellate Court on this question, viz., that the properties must be deemed to be ancestral properties in the hands of Suryam.

4. Both the Courts below have found accordingly that the sale deeds Exs. 2 and 8 are not valid and binding on the plaintiffs. In Ex. 2, the consideration is stated to be Rs. 1,460 and the only portion thereof which can be said to have been utilized for any debt binding on the plaintiffs is the amount covered by Ex. 5, that is to say, about Rs. 152. As regards the other alienation, Ex. 8 out of the total consideration of Rs. 1,900, Rs. 600 is said to have been required for the purpose of paying off an antecedent debt of Suryam due to one Veeracharyulu. But it would appear that even this debt was not paid by Suryam out of the consideration received by him. In any case, I see no reason to differ from the concurrent findings of both the Courts below that neither of these deeds of sale is binding on the plaintiffs and that plaintiff 1 in any case who had been born long before even Ex. 2 is entitled to ignore them.

5. In this connexion, it has been argued that even if the sales are invalid and not binding on the plaintiffs, the alienees are entitled to some equities, defendant 1 in respect of Ex. 2 to the extent of Rs. 152 and defendant 2 in respect of Ex. 8 to the extent of at least Rs. 600. I am not satisfied that these equities exist in the present case. It has not been shown that the debts in question which were due by Suryam, viz., a debt of Rs. 150 under Ex. 5 and the debt of Rs. 600 due to Veeracharyulu could not have been paid from Suryam's share of the consideration. The sales are of course valid so far as the share of Suryam is concerned and this share was sufficient to satisfy both these debts. It is not possible therefore to say that the sons' shares have in any way been benefited by reason of the payment of these debts. The sons' obligation to pay their father's debts ceases to exist when the father's debt has been discharged. That obligation also can be enforced against the sons only by the creditor. In this case, the defendants are not the creditors. Defendant 2 certainly does not stand in the shoes of the creditor because it is not his case that he has paid the creditor of Suryam, viz., Veeracharyulu, at any time. This claim to equity is moreover put forward for the first time in second appeal. There is no reference to it in the judgments of either of the Courts below and I do not think it is possible to adjudicate upon this claim in second appeal in the absence of sufficient material.

6. The only other point that arises for determination in these appeals is the share that can be claimed by defendant 1 under Ex. 2. On this point, the trial Court was of opinion that the share was one half, that is, the share which was owned by Suryam, the vendor at the time of Ex. 2. The lower appellate Court however thought that Muthukumara Sethupathiar v. Sivanarayana Pillai AIR 1933 Mad 158, was authority for the position that the share should be calculated with reference to the time when the suit was brought and not at the time when the alienation took place and accordingly held that even as regards Ex. 2, the plaintiffs' share was three-fourths and Suryam's share only one-fourth. I am of opinion that this view adopted by the lower appellate Court is not correct. The law on the subject is practically settled in this Presidency ever since Chinnu Pillai v. Kalimuthu Chetty (1912) 35 Mad 47, and that decision has been followed in a number of subsequent cases, and I see no reason whatever for not following what has been accepted as settled law for so many years. The law as stated there is that the share is to be determined as on the date of the alienation, and it follows from this that the share to which defendant 1 is entitled is one half and the other half alone can be claimed by the plaintiffs so far as the properties concerned in Ex. 2 are concerned, that is, plaint item 1. The appeal by defendant 1 therefore succeeds as regards this point. It follows as a consequence that the mesne profits awarded by the lower appellate Court should be reduced from Rs. 45 a year to Rs. 30 a year so far as this item is concerned. In other respects, this appeal of defendant 1 fails. The other second appeal fails altogether and is dismissed with costs. In the appeal by defendant 1, viz., S.A. No. 361 of 1935, parties will bear their own costs. Leave to appeal refused.

Majeti Kasi Viswesra Rao Applt. v. Pulletikurti Varahanarasimham And Others

Structured Summary of the Opinion

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Plaintiffs' Arguments

Defendants' Arguments

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Majeti Kasi Viswesra Rao Applt. v. Pulletikurti Varahanarasimham And Others

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