Nachiappa Gounden v. Rangasami Gounden

JUDGMEMTS.

The Officiating Chief Justice — I agree with the learned Judges as to the rest of the case and will only deal with the point on which they differed. The question is as to certain alienations made by the mother of the last male owner in 1893 by Exhibit I in favour of Ramasami Gounden who was at that time the nearest reversioner. He predeceased the lady, and on his death his two nephews, the 1st defendant and a brother since deceased, and the present plaintiff, a dayadi of theirs, became the next reversioners; and in this state of things in 1896 the present plaintiff purchased from the 1st defendant and his brother two of the items which had been conveyed to Ramasami Gounden under Exhibit I, and advanced Rs. 8,000 to them on a mortgage, Exhibit III, of a third item, which the 1st defendant sold in 1907 by Exhibit IV to the 3rd defendant from whom as recited in Exhibit IV he had borrowed money on mortgage to pay off the plaintiff's mortgage. The defendants pleaded among other things that the plaintiff had acquiesced in and consented to the alienations, and that by his subsequent dealings with the properties so alienated he was estopped from questioning them. These contentions, formed the subject matter of the 2nd and 3rd issues. Very little evidence was tendered on them at the trial and the 1st defendant apparently contented himself with filing by consent Exhibit I, the deed of alienation, dated the 24th November 1893, Exhibit II, the sale-deed under which the plaintiff purchased two of the items included in Exhibit I on the 7th December 1896 and Exhibit III of the same date, under which he took a mortgage of another item for 8,000 rupees from the 1st defendant and his brother, and Exhibit IV, the sale-deed to the 3rd defendant. On this evidence the District Judge was of opinion that it did not shew that the plaintiff had assented to the alienations under Exhibit I or was estopped from questioning them. He observed that the alienations under Exhibit I were good for the life of the widow who survived for 10 years, and that all the plaintiff acquired under them from the 1st defendant and his brother was a temporary interest of uncertain duration. On appeal, Miller J., was of opinion that, even if there was consent by the nearest reversioners to partial alienations, that would not render them valid and that there was no estoppel; while Sadasiva Aiyar J., appears to have considered that the plaintiff's conduct showed that he assented to all the alienations effected by Exhibit I, and that the effect of the decision of their Lordships in Bajrangi Singh v. Manokarnika Bakhsh Singh, was to render partial Alienations valid when effected with the consent of the nex reversioner.

Now, in the first place, I am not satisfied on the evidence that the conduct of the plaintiff in subsequently purchasing two of the items and advancing money on mortgage of another can be regarded as consent with regard to all other items covered by Exhibit I. It seems to me, however, that it does shew consent with regard to the three items which were the subject of the sale and mortgage; and, as the items purchased are already in possession of the plaintiff, it will be sufficient to deal with the question as regards the mortgage. As to this I cannot agree with the conclusion of the District Judge that, in taking the mortgage from the 1st defendant and his brother, the plaintiff, who by that time had become their co-reversioner, dealt with them merely as holders of a temporary interest of uncertain duration limited to the life time of Marakammal, the mother of the last male owner. Exhibit III states that the mortgagors were hypothecating to the plaintiff the mitta which Ramasami Gounden acquired as a gift from Marakammal and which was in their possession and enjoyment, and that the plaintiff had advanced them Rs. 8,000 upon it. The net income of this item is given in the plaint as Rs. 550, and it seems to me that in making this large advance to the mortgagors on the security of this property the plaintiff clearly dealt with the mortgagor as full owners and must be taken to have recognised them as such. He must have known perfectly well that he was one of the next reversioners, and it was not suggested in evidence that he did not know. The recital also shews that he was perfectly well aware of the way in which the mortgagors had acquired the property. Here I may remark that though Exhibit I purports to be for consideration the District Judge states that this contention was abandoned at the trial, and it would, therefore, appear that in Exhibit III it was correctly described as a gift.

In these circumstances I cannot but regard his action in taking the mortgage as consenting to the alienation of this item by Marakammal and recognising the mortgagors' title to it. It must be borne in mind that the alienation by Marakammal was not void but only voidable according to the ruling of their Lordships of the Judicial Committee in Bijoy Gopal Mukerji v. Krishna Mahishi Debi. It may be that a man who takes a deed is not ordinarily bound by statements contained in it, but having regard to the fact that it was open to the plaintiff in his character of next reversioner of the last male owner to avoid or recognise the gift made by Marakammal, I think his conduct in taking a mortgage of the property which was the subject of the gift from the representatives of the donee was a representation to persons afterwards dealing with the property, whether as transferees of his mortgage or purchasers, that he was satisfied as to the transaction and did not propose to question it as next reversioner. The recitals in Exhibit IV, the subsequent sale-deed by the 1st defendant, the surviving mortgagor, to the 3rd defendant, shew that the 3rd defendant relied on the plaintiff's conduct in taking Exhibit II and Exhibit III when he advanced money on mortgage to the 1st defendant to pay off the plaintiff and got the plaintiff's discharged mortgage as one of his title deeds, and when subsequently he became the purchaser of the mortgaged property under Exhibit IV. In these circumstances I think the plaintiff is estopped from now questioning the alienation by Marakammal of this item, and that to this extent the third issue must be found for the defendants and the appeal so far be allowed.

I do not consider it necessary to express any opinion on the question whether a gift to the kindred of the last male owner, as distinct from an alienation for consideration, could be validated by the consent of the next reversioner as the question was not fully argued before us. As regards the question whether the effect of the consent of the next reversioner to an alienation is conclusive or merely evidence of propriety, I agree with Sadasiva Aiyar, J., that the decision of their Lordships in 30 All., 1 is authority for the former view, and will only remark that that was a case of partial alienations only, because as pointed out in the arguments before us and as appears from the report in 30 All., 1, the suit was to recover not only the immoveable properties alienated by the widow but also other moveable properties alleged to form part of the estate, and it was nowhere suggested either in argument or in the judgments of the High Court and the Privy Council that the properties alienated formed the whole of the estate or that this fact would influence the result. This is important with reference to the authority of the judgment of the majority of the Court in Rangappa Naik v. Kamti Nuik, because the judgment of the learned Chief Justice appears to have proceeded on the view that in 30 All., 1, the whole of the estate had been alienated with the consent of the next reversioner, which was not the fact. Since then a Full Bench of the Calcutta High Court has held in Debi Prosad Chowdhury v. Golap Bhagat(2), that consent is only evidence of the propriety of the transaction, and their Lordships of the Judicial Committee in a case in which this decision was cited let fall certain observations which are relied on by the respondents as supporting the same view, but the precise point did not arise nor were the observations necessary for the decision. In the result, I think the appeal should be allowed as regards the 1st item in the plaint and otherwise dismissed and that the appellant and the 1st respondent should pay and receive proportionate costs throughout.

Seshagiri Aiyar, J.—The last male owner of the properties in dispute was one Ramasami Gounden. On his death, his mother Marakammal succeeded to them. By Exhibit I, dated the 24th of November 1893, she gave away some of the properties to one Ramaswami Gounden, who was the immediate reversioner to her son's estate at the time. This donee predeceased Marakammal who died in August 1907. At her death, the undoubted heirs were the plaintiff and the 1st defendant. The 3rd defendant also claimed the property on the ground that he stood in the same degree of relationship to the last male owner as the plaintiff and the 1st defendant.

The case for the plaintiff is that the deed of gift is not binding on him and that he is entitled to a half share in the properties of Ramaswami Gounden. Defendants 1 and 2 (the 2nd being the son of the 1st) contend that the deed of gift operates as a surrender of Marakammal's estate, that it was assented to by the plaintiff, and that, therefore, it is not open to him to question it. The 3rd defendant disputes the right of the plaintiff to a half share and claims a third share for himself. He sold his share to the 1st Defendant; consequently the 1st Defendant will be entitled to two-thirds of the property if the 3rd defendant is also an heir.

The learned District Judge upheld the plaintiff's claim in all respects. The 1st and 2nd defendants appealed. On their appeal, Mr. Justice Miller was for confirming the decree of the District Judge; Mr. Justice Sadasiva Aiyar was for reversing it. Hence this appeal.

The principal points for consideration are:—

(1) Whether Exhibit I is binding on the plaintiff, and

(2) Whether the 3rd defendant is a claimant of equal degree with the plaintiff and the 1st defendant.

The first question involves a number of subsidiary questions. Although it was argued first, I shall deal with the second point before dealing with the first.

The facts relating to the’ second question are not in dispute. Sengottuvela Gounden, the common ancestor of the claimants, married two wives. The 3rd defendant is his great-grandson by the 1st wife, The plaintiff and the 1st defendant are his great grandsons by the 2nd wife. The last male owner Ramaswami Gounden was his grandson by the 2nd wife. Thus while all the three claimants are related in the same degree to the last male owner as being the great grandsons of his grandfather, the plaintiff and the 1st defendant are sapindas of the full blood, while the 3rd defendant is a sapinda of the half blood. The point for determination is whether in this degree of relationship, those of the full blood should be preferred to the one of the half blood.

Mr. A. Krishnaswami Aiyar has addressed an elaborate argument to us on the question. This matter has been considered in three reported judgments. Mr. Justice Banerjee in Subba Singh v. Sarafraz Kunwar, held that the sapindas of the full blood should be preferred to those of the half blood. Mr. Justice Ranade in Vithalrao v. Ramrao, did not accept this position. Mr. Justice Mookerjee in Sham Singh v. Kishun Sahai,(3), agrees with Mr. Justice Banerjee. It is not, therefore, necessary to discuss the subject in great detail; still having regard to the divergence of judicial opinion above indicated and to the fact that the question is res integra in Madras, it is necessary to state our reasons for the Conclusion at which we have arrived.

All the Smriti writers are agreed that the full brother is to be preferred to the half brother:—

“Among brothers, such, as are of the whole blood, take the inheritance in the first instance, under the text before cited, ‘to the nearest sapinda, the inheritance next belongs’ since those of the half blood are remote through the difference () of the pothers [Mitacshara, Chapter II, Sect. 4, placitum 5; vide also the Smriti Chandrika, Chapter XI, Sect, 4, placitum 25; and the Daya Bhaga, Chapter XI, Sect. 5, placitum 9]. The Vyavahara Mayukha (see “Daya Nirnaya,” Sect. VIII, placitum 16) is less favourable to the half brother, in that his place is after the full brother and his son under that law.

The argument of the learned Vakil for the appellant is that whereas an exception is made in the case of half blood brothers no such differentiation appears in the case of the other half blood relations in the ascending or descending line. The only rule applicable to them is “To the nearest Sapinda, the Inheritance next belongs.” Consequently the preference to full over half blood has no application to those heirs.

In order to deal with the contention satisfactorily, it is necessary to point out that Vignaneswara has given reasons in almost every case for the rules of succession which he has prescribed. In preferring the mother to the father, he relies upon the form of the conjunctive compound in which the term is placed before conformably with the rule which “requires the most revered object to have precedence.” In the case of the daughter's son, his reason may be briefly stated as the “putrikaputra” theory. With regard to the wife, he calls to aid the spiritual theory of her being one in body with the husband. There are other reasons given whenever a question of preference has to be explained. It is not necessary to refer to them all.

It is not a necessary inference from these rules that all of them are special in their character and that the author did not intend that any one of them should be treated as indicating a general principle. The more correct view is that while some of the reasons are only applicable to the special cases mentioned, there are others which are of a wider application and from their context and their nature intended to serve as guides to the exposition of similar positions elsewhere. One illustration of this statement may be given. I have referred to the rule of preference regarding the mother. Later on, in dealing with the succession of bandhus, the author had to decide between the father's kindred and the mother's kindred. He says:

“Here, by reason of near affinity, the cognate kindred of the deceased himself, are his successors, in the first instance; on failure of them, his father's cognate kindred; or, if there be none, his mother's cognate kindred. This must be understood to be the order of succession here intended.” (Mitacshdra, Chapter II, Sect. 6, placitutn 2).

From this, it is clear that the author does not want to extend the rule of preference which places the mother before the father to the mother's kindred, thereby indicating that the original ground was a special one. It is not an unnatural inference, therefore, to conclude that as no special rule is suggested regarding the full and the half-blood in the ascending and the descending lines, the author intended that the general rule of and should apply.

I have examined very carefully the reasons given by Mr. Justice Ranade in 24 Bora., 317. I am unable to accept the view that the rule of preference regarding brothers is a special rule, It was pointed out by Mr. Justice Milter in Gooru Gobind Shaha v. Anund Lall Ghose that there are numerous passages in the Dayabhaga in which a particular instance is put down to represent a general principle. This is true of the Mitakshara to a greater degree. Numerous authorities have laid down that the enumeration of heirs in the Mitakshara is only illustrative and not exhaustive. With reference to reasons for a rule of succession also, the same considerations must apply. As pointed out by Mr. Sircar in his “Mimamsa Rules of Interpretation” in the case of the Smrities all the four rules of interpretation are applicable, namely, Sruti, Linga, Vakya and Prakarana. With reference to each one of these four principles commentators have explained that “the suggestive power of words and ideas” should be largely resorted to. In my opinion the rule regarding the full and the half brother is an instance to which the Prakarana principle of interpretation is applicable. Sircar points but that the principle of Prakarana is in substsnce the principle of Upalakshana or incidental indication. When Vignaneswara says that the brothers of the full blood are to be preferred to those of the half blood on the ground of () he introduces a doctrine which by the theory of Upalakshana is applicable to all Sapindas of the full and the half blood.

Apart from these considerations, we have to bear in mind that the guiding factor in regulating succession in the Benares School is consanguinity. As Sir Michael Westropp pointed out in Lallubhai Bapubhai and others, v. Mankuvarbai and others, this doctrine is based on the theory that nearness is to be determined by the larger community of corporal particles between the propositus and the heir: The Judicial Committee of the Privy Council has approved of this proposition in Bai Kesserbai v. Hunsraj Morarji. This principle has been reaffirmed by the Committee in the recent case of Ramachandra Martand Waikar v. Vinayak Venkatesh Kothekar(4). If this is the basic principle of succession under the Mitakshara system, there can be no doubt that a person claiming both through a male and a female is to be preferred to one who claims through the male only: Mr. Justice Ranade says that the Pratyasatti or propinquity theory of the Mitakshara has different meanings in different places. I am unable to agree in this view. This theory is availed of by Vignaneswara whenever special considerations do not apply. The Smritis in most cases only collate the usages of the people. Vignaneswara has not been content simply to catalogue them. He has attempted to find out the reason for each of the observances. It is not right to impute to him that his rules of succession are based on different views of propinquity. Wherever he invokes that principle, he is consistent and clear; but where he is obliged to depart from it because of the conscience of the people being against it, he tries to justify the departure by special reasons. I do not think that there is good ground for holding that the Mitakshara understands Pratyasatti in different senses.

Moreover, there is greater mutuality of spiritual offerings between the propositus and a full blood Sapinda than between him and a half blood Sapinda. It is true that Vignaneswara does not give great importance to spiritual offerings in fixing the position of the heir, but where this ground is not opposed to the theory of propinquity by blood, there is ho reason for ignoring this consideration altogether. It may also be pointed out that the author of Saraswathi Vilasa who criticises in a very out-spoken manner some of the conclusions of Vignaneswara speaks of this rule of preference between brothers of the full and half blood as a very good one. If we remember that this sentence follows a number of diverse comments upon the grounds assigned by the Mitakshara, it is clear that the Sarasvathi Vilasa regarded this one as sound in principle and as having a general application.

Mr. Justice Mookerjee has given excellent reasons for holding that the author of the Madana Parijata correctly expounds the view of Mitakshara regarding full and half blood Sapindas. The author says,—“In default of the paternal grandfather paternal uncles succeed, in the same way as brothers in default of the father. Even here the relative position of brothers of full and of half blood is the same: the sons of the paternal grandmother take the inheritance first and in their default the sons of the co-wives of the paternal grandmother.” There is no force in Mr. Krishnaswami Aiyar's contention that the author did not intend to extend the application of the principle to other Sapindas of the half blood.

Under the Dayabhaga system all relations of the full blood are preferred to those of the half blood of equal degree. (See Rajkishore Lahoori v. Gobind Chunder Lahoori and Rammoney Dossee v. Gobind Chunder Lahoory The Privy Council in Sheo Soondary v. Pirthee Singh, has approved of this proposition; Sir Lawrence Jenkins in 24 Bombay 317, it may be pointed out rests his decision on the principle of stare decisis. Although it is almost inexplicable that the full blood should rank equally with the half blood in a province where the prevailing authority (the Vyavahara Mayukha) brings the half brother only after the son of the full brother, it was thought inexpedient to upset titles established under the authority of Samat v. Amra. No such consideration applies to Madras. The ground of preference over the half blood is in consonance with received notions of the people in this part of India, is founded on the well known theory of propinquity of blood, and is a logical extension of the rule stated by the Mitakshara regarding brothers. In Mutkusami Mudaliyar v. Simambedu Muthukumaraswami Mudaliyar, the Judicial Commitee seem to have assumed that those of the full blood will be preferred to those of the half blood. I have therefore no hesitation in holding that the 3rd defendant is not entitled to rank part passu with the plaintiff and the 1st defendant as heir to the estate of the deceased last male owner, Ramaswami Gounden.

The main question relates to the validity of Exhibit I. Mr. Krishnaswami Aiyar's first contention is that the language of the document imports a surrender by the widow of all her rights in her son's property, the retention by the surrenderee of one portion of it and a re-grant to the widow of the rest. This imaginative process has not been realised by the execution of the necessary documents in that behalf. I am not unmindful of the obvious answer that the Smriti writers had not the Transfer of Property Act in their minds and that if a transaction bears on the face of it the impress that it was a result of considerations germane to Hindu Law, the fact that these considerations have not been carried out by appropriate documents will not prevent the operation of the rule of Hindu Law, although a party seeking possession on the strength of the transaction may find his title not established. At the same time, it has to be remembered that parties are as familiar with the Hindu Law as they are with the Transfer of Property Act, and unless apt language has been employed suggesting a surrender and a re-grant, courts should be slow to spell them out from stray recitals in documents. In the present case, the document is by the widow to the nearest reversioner. There is none from the latter to the former. It is true, that in Exhibit I, there is a recital that the widow is to enjoy the remaining properties as if she were its absolute owner. 1 do not think that the language is consistent only with a regrant to the widow. It is a statement which she herself makes. The observations of Mr. Justice Sankaran Nair in Rangappa Naik v. Kamti Naick, relate to a document executed by the reversioner to the widow where an implication of re-grant would properly arise. They have no bearing on the present case; I therefore hold that it has not been proved in this case that the widow surrendered her estate and that there was a re-grant of a portion to her.

The next contention is that the partial surrender by Exhibit I is valid. I think it necessary to state the principles on which a surrender is based under the Hindu Law, before dealing with the specific question. The only text is that of the Dayabhaga:—“Therefore those persons, who are exhibited in a passage above cited (4) as the next heirs on failure of prior claimants, shall, in like manner as they would have succeeded if the widow's right had never taken effect, equally succeed to the residue of the estate remaining after her use of it, upon the death of the widow in whom the succession had vested. At such time the succession of daughters and the rest is proper, since they confer greater benfits on the deceased than other claimants.” (Dayabagha, Chapter XI, Sect. 1, placitum 59). Mr. Justice Mookerjee points out in Debt Prosad Chowdhury v. Golap Bhagal that the above text is “comprehensive enough to include not merely the case of the death of the widow, but all cases where her right ceases.” Now the aim of the text is to enable female heirs to divest themselves of the temporal responsibility of managing an estate during their lives, and by surrendering possession and management, to accelerate the succession of the immediate reversioner. That is intended to give relief to her and not to enable her to enter into bargains with expectant heirs. It therefore stands to reason that if this object is to be achieved the whole of the estate should be surrendered. The rule should not be so worked as to place in the hands of the widow a weapon by which she can attain temporal advantages to herself under the guise of seeking spiritual salvation, and to those whom she favours at the expense of the heir on whom succession will devolve on her death. It is said that the principle of ‘surrender’ has been grafted from and is in consonance with other systems of law and with common sense. Courts should not encourage a mongrel rule of law and which while violating the fundamental conceptions of the system of jurisprudence which it is intended to serve, has not the merit of introducing any well recognised principle of equity and good conscience from the system from which the rule is borrowed. Fortunately the decided cases up till now do not compel us to extend the doctrine of surrender in this way.

There is the express decision of the Judicial Committee in Behari Lal v. Madho Lal Ahir Gayawal, that the surrender must be of the whole of the property if it is to confer title on the next reversioner, Mr. Krishnasawami Aiyar's ingenious suggestion that their Lordships only meant to lay down that the widow should not retain any interest for herself in the property surrendered cannot be accepted. It is true that in Pulin Chandra Mandal v. Bolai Mandal, the authority of 19 Calcutta 236 was extended in the direction suggested by the learned Vakil. That decision has been overruled by a Full Bench of the Calcutta High Court in 40 Calcutta 721. In Marudamuthu Nadan v. Srinivasa Pillai after a full examination of the authorities, it was laid down that partial surrenders are invalid. I do not think there is anything in 31 Madras 366 which supports the contrary conclusion. There is no ground for the suggestion that the pronouncements of any of the learned Judges in that case supports a partial surrender by the widow; nor is 30 Allahabad 1 an authority for that position. Both principle and authority are against the contention that it is competent to a widow to convey a good title to the property by a partial surrender in favour of the next reversioner. The spirit and letter of the Hindu Law are against it; and I know of no principle of jurisprudence which can lend validity to such a transaction.

If I may say so with respect, the confusion has arisen by mixing up the question of alienation with that of surrender. The latter rests upon a text of Hindu Law and is based upon certain principles which lawgivers in this country have recognised both in the case of males and females. The former is a rule of evidence which finds no express sanction in the Smritis. The texts which enjoin to what extent a female heir can alienate property are all collected by Mr, Mayne in paragraph 607. The Judicial Committee have interpreted these texts to mean that “for religious or charitable purposes or those which are supposed to conduce to the spiritual welfare of her husband, she has a larger power of disposition than she possesses for purely worldly purposes. To support an alienation for the last she must show necessity.” In interpreting this term “necessity” the question of the extent of proof has often cropped up. It has been laid down that the best proof of necessity will be where the next reversioner consents to an alienation by the widow. He is the man most interested in the inheritance. If his assent has been obtained, there is a guarantee that the alienation is justifiable. This rule of evidence has led to the consideration of the question regarding the nature of the consent. It is now well established that this consent must have been given bona fide. Such a restriction is necessary in order that the immediate reversioner who is old and who sees no prospect of his succeeding to the property may not deal with the property with intent to prejudice the rights of those who will be actually entitled to it on the death of the widow. I do not think, notwithstanding the obiter dicta of some learned Judges to the contrary, that the assent of the nearest heir has been regarded by the Judicial Committee as anything but a rule of evidence. The decisions bearing on the subject are very fully summarised by the learned Chief Justice of Calcutta in 40 Calcutta 721; if I may say so without presumption, I entirely agree with that lucid summing up and conclusion. The differences in opinion among learned Judges are mostly traceable to the case in 30 Allahabad 1. That was a case of partial alienation. I do not think this point admits of much doubt. It was by a series of transactions dealing with portions of the estate from time to time that the properties were conveyed. It was not a case of surrender. Sir Andrew Scoble in delivering the judgment of the Committee extracts various passages from previous decisions of the Committee and of the High Courts regarding the “restrictions imposed by the Hindu Law upon the widow's power to alienate.” The quotation from the Colleector of Masulipatam v. Cavaly Vencata Narainapah stops at the exact point where their Lordships deal with the proof of necessity. The remaining portion is very material as indicating the view of the Judicial Committee on this subject. They say: “But it surely is not the necessary or logical consequence of this latter proposition that in the absence of collateral heirs to the husband, or on their failure, the fetter on the widow's power of alienation altogether drops. The exception in favour of alienation with consent may be due to a presumption of law that where the consent is given, the purpose for which the alienation is made must be proper.” This position has heen consistently maintained in all the later decisions. 30 Allahabad 1 does not refer to another case before the Privy Council, Sham Sundar Lal v. Achham Kunwar, reported in I. L. R., 21 Allahabad 71. In this latter case, their Lordships say that the consent must be such “as to raise the presumption that the transaction was a fair one or one justified by Hindu Law.” The judgment in 30 Allahabad 1 proceeds to say that “The principle being thus admitted by the High Courts in India, the question of the quantum of consent necessary only remains;” the admitted principle, being that an alienation by a limited owner may be justified on the ground of necessity. This pronouncement is no authority either for the position that partial surrenders are valid or for the contention that the assent of the reversioner is anything more than presumptive evidence of justifiable alienation. I must now refer to Bijoy Gopal Mukerji v. Girindra Nath Mukerji which was subsequent to the Calcutta Full Bench decision and which places the meaning of assent by a reversioner beyond controversy. Their Lordships say with reference to the assent of the nearest reversioners that “as against them it is a fair inference from their conduct that they believed that the arrangement had been made in good faith, and under such circumstances of necessity as would give it validity according to Hindu Law, and as it has always been a feature of Hindu Law as administered by this Board to attach great weight to the sanction by expectant reversioners of an alienation of propetry by a Hindu woman as affording evidence that the alienation was under circumstances which rendered it lawful and valid, their Lordships in this case consider that the conduct of the appellants themselves during those years affords evidence upon which the respondents are entitled to rely.” I must regard this dictum as setting the controversy on this point at rest. To put it at the highest, Courts shall presume (to use the language of the Evidence Act) from the consent of the reversioners that the alienation was justifiable. Although I am inclined to think that it is a presumption of fact and not one of law, still the extent to which the principle has been pushed leads to the inference that the Courts are bound to presume the validity of an alienation when the next reversioner consents to it, until it is rebutted by clear and cogent evidence. Holding this view, I must dissent from the decisions which lay down that such a consent furnishes irrebuttable proof of necessity. I have referred at some length to this question because Mr. Justice Sadasiva Iyer holds “that a partial alienation by a widow to the nearest reversioner is valid in law when he is a male and gives him full ownership right in the alienated property.”

In the present case, the so-called surrender was to the next reversioner. So no question of the consent of the immediate reversioner at the date of the alienation arises, unless it can be argued that a man who takes a gift of property consents to the disposition in his favour. But as I pointed out above, the consent must be of a character to raise the presumption of necessity: It would do violence to legal conceptions to argue that any presumption of such a nature can arise when a man accepts a deed of conveyance in his own favour. Mr. Krishnaswami Aiyar realised this and asked us to support the transaction on the ground that as it was assented to by the plaintiff who was entitled to the property in case the immediate reversioner died, his conduct precluded him from contesting the validity of the transfer evidenced by Exhibit I.

This takes me to the consideration of the last question argued in this case. The facts relating to this aspect of the case are these: After the transfer of the properties under Exhibit I to the then next reversioner Ramaswami Gounden, and after his death, the two sons of his undivided brother Nachiappa Gounden, of whom the 1st defendant alone is now alive, sold to the plaintiff on the 7th December 1896 by Exhibit II some of the properties covered by Exhibit I. On the same date, the same persons mortgaged to the plaintiff by Exhibit III, other properties included in the surrender deed. Marakammal was alive at this time. Both Exhibits II and III refer to the deed of gift she executed to Ramswami Gounden. The question for determination is whether the conduct of the plaintiff in taking the sale deed and the deed of mortgage prevents him from seeking to recover the properties covered by these two documents.

On this question I have had the advantage of a consultation with the learned Chief Justice since the case was argued. I agree in the conclusion at which he has arrived. The 3rd defendant in this case must be deemed to be a stranger. The sale to him by the 1st defendant was to pay off the mortgage money due to the plaintiff. It is most likely that the 3rd defendant was induced to take the conveyance because he found that the plaintiff who with the 1st defendant were the nearest reversioners had advanced monies on the mortgage: It is open to argument that the 3rd defendant had the same means of knowledge as the plaintiff had and consequently the plaintiff cannot be said to have been estopped. I would have therefore preferred to have sent down an issue to the lower Court on the question. But seeing that both the learned Chief justice and Mr. Justice Kumaraswami Sastriar are inclined to hold that the evidence on record is sufficient to decide the point, I do not like to dissent from that conclusion. I therefore agree in the order proposed by the learned Chief Justice.

Kumaraswami Sastri J:—The 2nd defendant is the appellant. The plaintiff as one of the reversionary heirs to the estate of the deceased Marakammal sued for a declaration that the deed of gift dated the 24th November 1893 executed by Marakammal in favour of Ramaswami Gounden her husband's brother's son is invalid and not binding on him and for partition and delivery to him of a half share of the estate.

Various defences were raised, but for the purpose of this appeal it is only necessary to consider those relating to the validity of the deed of gift and to the claim of the 3rd defendant to a share along with the plaintiff and the 1st defendant. It is sought to support the alienation on the grounds (1) that it amounted to a surrender of the estate by the widow and to a re-grant which vested in the widow and the alience absolute title in the property each held, (2) that it was a family settlement bond fide entered into between the widow and the next reversioner, (3) that the consent of the next presumptive reversioner validated the alienation, and (4) that plaintiff cannot dispute its validity as he consented to the alienation, acquiesced in it and waived all objections by purchasing two of the items and taking a mortgage of the third. It is also argued that the distinction between Sapindas of the whole and those of the half blood does not extend beyond the case of brothers and the sons of brothers.

The District Judge held that the deed of gift was invalid as against the plaintiff and that the 3rd defendant was excluded by the plaintiff and the 1st defendant. An appeal was preferred to the High Court. Mr. Justice Miller was for holding that the alienation was invalid and that the 3rd defendant was excluded by the plaintiff and the 1st defendant. Mr. Justice Sadasiva Aiyar while agreeing with Mr. Justice Miller as to the 3rd defendant being excluded was for upholding the alienation.

The following table sets out the relationship between the parties so far as it is material:—

Marakammal succeeded as heir to her son Ramasami Gounden who died issueless in the year 1880. The next reversioner was Ramasami Gounden her husband's brother's son and she executed in his favour the deed of gift Exhibit I which is now sought to be declared to be invalid. It is dated the 24th November 1893 and the material part runs as follows:—“As you have performed the funeral rites to my husband the deceased Ardhanari Gounden and my son the deceased Ramasami Gounden, as you have the right to inherit as surviving heir all my properties after my death, as you have spent on my behalf and on behalf of my son your own (monies) and after borrowing monies required for conducting O. S. No. 5 of 1883 on the file of the District Court of Salem conducted by my son the deceased Ramasami Gounden as plaintiff and all other civil and criminal proceedings in connection therewith in other courts, as I am advanced in age and unable to supervise and manage the mitta and other lands and to collect the amounts due on the hypothecation debt bonds, and as you have consented to my possession and enjoyment with all rights and interests of all the properties other than those mentioned below which belong to me under the razinama decree in O. S. No. 5 of 1883 on the file of the Distrct Court of Salem and which I am enjoying and of which I make a gift to you, and as you have promised to support me during my lifetime at your expense and to have the marriage of my unmarried daughter performed according to our custom and to perform also seeru and serappu for this and to another daughter who has been married, I have made a gift of the undermentioned properties valued at about Rs. 10,000 to you who is the elder brother's son of my husband deceased Ardhanari Gounden and delivered possession to you. Therefore youshall in comfort possess and enjoy the undermentioned properties from generation to generation and with powers to give away by gift, sale, etc. I have no manner of right or interest over the said gift properties.”

I do not think that this document can be construed to be in effect one whereby the widow surrendered the whole of her estate to the reversioner and got back a portion with absolute powers of disposal. Far from the surrender of the whole estate the document recites that the widow was to have absolute powers over the properties not given to the reversioner. It merely evidences an arrangement whereby the reversioner in consideration of getting certain items of property consents to the widow enjoying the rest of the properties absolutely. There is no evidence of any arrangement whereby the widow agreed to surrender the entire estate to the reversioner and subsequent to the surrender get back a portion of the estate by a conveyance from the reversioner, and I do not think that any such arrangement can be inferred merely because the document recites that the donee agreed to the donor enjoying the remaining property with absolute rights. Nor is there any evidence that it was in pursuance of any family arrangement necessary and beneficial to the estate so as to make it binding on reversioners who do not claim under the reversioner who was alienee.

It is argued by the appellant's Vakil that even though there might not have been an absolute surrender of the entire estate, there was a surrender of that portion which was covered by the deed Exhibit I and that all that the law requires is that the widow should not retain an interest in the portion given to the reversioner. Reference has been made to Kanuram Deb. v. Kashi Chandra Sharma Chowdhury, and Pulin Chandra Mandal v. Bolai Mandal. In considering this aspect of the case, I think it is necessary to keep in mind the distinction between a surrender of the estate by the widow to the next reversioner, whereby the widow accelerates the succession by withdrawing her interest in the property, she treating herself as civilly dead so as to open up the inheritance in favour of the next reversionary heir; and (2) in an alienation of a part of the estate which is made with the consent of the next reversionary heir. So far as I can see there is except in Bengal very little authority for treating the reversioner's power to validate an alienation as derived from the ordinary power to accelerate the succession.

So far as the doctrine of surrender is concerned, there is no express authority to be found for it either in the Smritis or in the Mitakshara. The text of Katyayana accepted by all the commentators as authoritative expressly states that the widow is to enjoy the estate of her husband with moderation until her death and that after her the husband's heirs should take it. An anticipation of interest involved by the theory of relinquishment or a defeasance of ulterior interests by intermediate or premature acts on the part of the widow is hardly contemplated by the Smritis. As pointed out by Sircar, the rule probably originated from the doctrine that the retirement from the world or the extinction of one's desire for property is according to Hindu Law civil death and causes in the same way as natural death the extinction of her rights in property and has the effect of accelerating the inheritance. The theory of acceleration of the estate by surrender by the widow has been evolved by the Calcutta High Court from the Dayabhaga of Jimutavahana, and a long series of the decisions established the rule that it was open to the widow to surrender her widow's estate to the next presumptive reversioner so as to vest the full estate in him as effectually as if he had succeeded to the estate on her death. The doctrine of acceleration by surrender, though it finds no express support from the Smritis, has been placed beyond all doubt by the decision of the Privy Council in Behari Lal v. Madho Lal Ahir Gayawal, but it is clear that their Lordships expressly made it a condition precedent that her own life interest had to be withdrawn so that “the whole estate should be vested at once in the grantee.” In Marudamuthu Nadan v. Srinivasa Pillai, the Full Bench of the Madras High Court held that the alienation to be operative as a surrender should be absolute and complete and that the whole limited estate should be withdrawn. In Rangappa Naik v. Kamti Naik, their Lordships were of opinion that a transfer to be valid as a surrender should be one whereby the whole estate of the widow was extinguished. It is argued that the decision of the Privy Council in Bajrangi Singh v. Manokarnika Bakhsh Singh, has extended the doctrine of acceleration by surrender even to surrenders of part of the estate provided that the surrender is absolute as to the part surrendered; but reading the judgment, 1 am unable to find any passage where the express direction of the Privy Council in Behari Lal v. Madho Lal Ahir Gayawal that the surrender to be valid should be of the whole estate is questioned or modified. On the contrary their Lordships of the Privy Council cite the judgment of Justice Subramania Iyer in Marudamuthu Nadan v. Srinivasa Pillai, where he refers to the effect of the decision in 19 Cal., 236, as requiring that the surrender should be absolute and complete and that the whole estate should be withdrawn with approval and observe at the end of the judgment that their Lordships would be unwilling to extend the widow's powers of alienation beyond its present limits. Their Lordships in Behari Lal's case observe that “the necessity of the removal of the obstacle of the life estate is a practical check on the frequency of such conveyances” and it would require very strong authority to hold that the salutary check has been subsequently removed by the Privy Council. In Rangappa Naik v. Kamti Naik, his Lordship the Chief Justice was of opinion that the reservation as to the surrender being of the entire estate which is expressly laid down by the Privy Council in Behari Lal's case was not affected by the judgment of the Privy Council in Bajrangi Singh v. Mannokarnika Bakhsh Singh, Mr. Justice Sankaran Nair was also of the same opinion (see his observations at page 380). A similar view was also taken by the Full; Bench of the Calcutta High Court in Debi Proshad Chowdhury v. Golap Bhagat I am of opinion that the rule requiring the surrender of the entire widow's estate to be necessary to validate an alienation on the ground of surrender which was clearly laid down by the Privy Council in Behari Lal's case and by the Full Bench of the Madras High Court in Marudamuthu Nadan v. Srinivasa Pillai, is not affected by the decision of the Privy Council, in Bajrangi Singh v. Manokarnika Bakhsh Singh.

It is argued by the appellant's Vakil that apart from the question of surrender the alienation is valid as it was with the consent of the next reversioner. The contention is that the alienation would have been valid if it had been made to a stranger with the consent of the next reversioner and that there is no reason why it should not be equally valid if made to the next reversioner himself who must be deemed to have consented to an alienation in his favour. This contention raises the question as to the effect of the consent of the next reversioner. Does consent per se validate an alienation which could not otherwise be supported, or is it only evidence of the propriety of the alienation? This question has been fully discussed and considered by a Full Bench of the Calcutta High Court in Debi Prosad Chowdhury v. Golap Bhagat, and I have no hesitation in agreeing with the conclusions arrived at, that consent is only evidence of the necessity or propriety and that the alienation by the widow with the consent of the reversioner would not as against reversioners other than those that consent confer an indefeasible title to the alienee apart from any question of necessity or propriety, unless such an alienation can be supported on the doctrine of surrender with the limitation laid down in Behari Lal's case or estoppel.

The effect of assent by the reversioners has been discussed by their Lordships of the Privy Council in several cases and it has been treated as evidence of necessity and not as something that of itself validates an invalid alienation. I need only refer to The Collector of Masulipatam v. Cavali Vencata Narainapah, Raj Lukhe Debea v. Gokool Chunder Chowdhry(5), Sham Sunder Lal v. Achhan Kunwar, and Bijoy Gopal Mukerji v. Girindra Nath Mukerji. Nothing can be clearer than the following observations in Raj Lukhee Debea's case: “Their Lordships do not mean to impugn those authorities which lay down that a transaction of this kind may become valid by the consent of the husband's kindred but the kindred in such case must generally be understood to be all those who are likely to be interested in disputing the transaction. At all events, there should be such a concurrence of the members of the family, as suffices to raise a presumption that the transaction was a fair one, and one justified by Hindu Law. That it can be, as Mr. Field puts it, a presumption of law in the sense of presumptio juris et de jure, their Lordships do not think. It is no doubt an element to be taken into consideration and deserving of considerable weight in the estimation of all the evidence of the transaction.” In their latest pronouncement on the subject in Bijoy Gopal Mukerji's case their Lordships observe: “It has always been a feature of Hindu Law as administered by this Board to attach great weight to the sanction by expectant reversioners of an alienation of property by a Hindu woman as affording evidence that the alienation was under circumstances which rendered it lawful and valid.”

If consent per se validated an alienation it is difficult to see why their Lordships of the Privy Council should have in a series of decisions treated it as evidence of propriety. There can be no question of propriety or necessity when all that is required is the concurrence of the widow and the next reversioner to give a complete title to the alienee.

The Smritis and the commentators thereon do not in my opinion sanction the view that the widow and the next reversioner can do what they like with the estate. The text of Katyayana is that she should live under the protection of her elders and enjoy with moderation the property which she got from her husband and that after her death her husband's heirs should take the property. Brehaspati observes that “she has not got property therein to the extent of gift, mortgage or sale” except for spiritual or religious purposes. What such purposes are appears from the following text of Brehaspati “with presents offered to his (her husband) manes and by pious liberality let her honour the paternal uncles of her husband his spiritual parents and daughter's sons, the children of his sister, his maternal uncles, and also old and unprotected persons, guests and females.” The position of her husband's kindred is thus defined by Narada: “When the husband is deceased his kin are the guardians of his childless widow. In the disposal of the property and care of herself as well as her maintenance they have full potter. The texts lay down the purposes for which alienations are justified and the power of the kinsmen who are placed in the position of her guardians can only be for carrying on the directions in the Smritis as to the proper and appropriate way in which she is to enjoy the estate. Vignaneswara is silent as to the powers of disposal by a widow with the consent of the husband's kindred, but Jimutavahana says that she is empowered to give presents to her husband's sapindas but not to her own relations if any of her husband's relations are in existence and adds “with their consent however she may also bestow gifts on the kindred of her own father and mother. In the disposal of property by gift or otherwise she is subject to the control of her husband's family.”

It is clear that the Smritis never contemplated alienations by a widow except for necessary or spiritual or charitable purposes and gave her absolute powers in some cases and powers subject to the advice aud guidance of her husband's kinsmen in others. There is nothing to justify the conclusion that the mere assent of one who would be the heir if the widow died at the particular moment would entitle the widow to make alienations at her pleasure or squander the estate on purposes which the Smritis would have emphatically condemned.

I might in passing refer to the distinction sought to be drawn between cases of consent by the next reversioner to alienation for consideration and consent to gifts by the widow. In Bakhtawar v. Bhagwana, Abdulla v. Ram Lal, and Umrao Kunwari v. Sheo Mangal Singh, it was held that the decision of the Privy Council in Bajrangi Singh's case, did not apply to gifts. A contrary view was taken by the Madras High Court in Kuppier alias Venkatasubbier v. Kotta Chinnaramier, and Raghupathi v. Kannamma,(6) where it was held that there was no difference in principle between gifts and transfers for consieeration.

If their Lordships of the Privy Council laid down the rule that consent of the reversioner validates an alienation which is otherwise invalid it is difficult to see what difference it would make if the alienation was for or without consideration. If consent per se validates an alienation it must be because of the efficacy of the assent and it is difficult to see what difference it would make in principle if the widow received consideration which she squandered on purposes which cannot by any stretch of imagination be said to be necessary or proper. It may be that a gift is made to a deserving person Or for an object that is praiseworthy. It may be one that has been recommended by the text writers as a gift which the widow might well make owing to its being conducive to the spiritual welfare of herself or her husband or the material prosperity of his kinsmen. If it were necessary to do so I would hold that there is no difference between gifts and other transfers but I do not think the question raised has any direct bearing on the facts of the present case, as the deed Exhibit 1, though it is called a deed of gift, was really a transfer in consideration of moneys advanced and help rendered in connection with litigation concerning the estate which came to the widow and also in respect of expenses to be borne in connection with the marriage expenses of the sister of the deceased male holder.

Considered as a rule of evidence the doctrine of validation by assent is founded on the doctrine that a person may well be presumed not to act against his interest and that where a person who would be entitled to avoid a transaction unless certain conditions are satisfied assents to it to his prejudice the safe inference to draw is that the conditions existed. The effect of the decisions of the Privy Council referred to by me above no doubt give assent a high evidentiary value but they do not make it conclusive proof. As observed by their Lordships of the Privy Council it is not a presumption of law in the sense of “presumptio juris et de jure” but its effect is to afford strong corroborative evidence where evidence of necessity is given and to supply the place of such evidence where it is not forthcoming.

I do not think that the decision of the Privy Council in Bajrangi Singh v. Manokarnika Bahksh Singh can be read as overruling all the previous decisions wherein assent was only treated as evidence of necessity or as laying down the new principle that the widow and the next reversioner or reversioners can do what they like with the estate. Having regard to the series of decisions that limit the widow's powers of disposal and those which put the reversioner's right as a mere spes successionis, it is difficult to hold that the widow and the next reversioner represent the entire inheritance and could deal with it as effectively as if the inheritance devolved on the next male heir. As pointed out by the Chief Justice in Debt Prosad Chowdhury v. Golap Bhagat, their Lordships of the Privy Council while referring to the doctrines of validity by assent and by surrender formulated no new principles but only applied doctrines established by prior decision to a novel set of facts. Wife all deference to the learned Judges I dissent from the view taken in Venkatasubbier v. Chinnasamier, and Mallik Saheb v. Mallikarjunappa, as to the effect of the decision of the Privy Council in Bajrangi Singh's case. I am of opinion that Muthuveeru Mudalliar v. Vythilinga Mudaliar, Pelu v. Babji, Ramakrishna v. Tripurabai and Debt Prosad Chowdhury v. Golap Bhagat are correctly decided and that the following propositions are deducible from the authorities.

(1) An alienation to be valid as to surrender must be of the widow's whole life estate so as to vest the inheritance at once in the alienee.

(2) That where the alienation is only of a part of the estate the consent of the next presumptive reversioner is evidence of the necessity or propriety of the alienation and that in the absence of any evidence to the contrary the Court shall presume that the alienation was proper.

(3) That the consent of a reversioner will, if given bona fide and for consideration, estop and bind the reversioner so consenting and those claiming through him apart from any question of necessity or propriety.

(4) That whether it is a case of surrender or partial alienation the consent must be bona fide and not a device for the purpose of enlarging the widow's estate.

(5) That assent has a double aspect not merely raising a presumption but also raising an estoppel against the person assenting even though he might not have received any consideration or benefit.

The next point for consideration is whether the alienation by the widow, tested by the above rules, is binding on the plaintiff. The appellant's Vakil rests his case on estoppel, acquiescence and waiver, There is no dispute as to the facts. After the death of Ramasawmi Gounden (the alienee from the widow under Exhibit I) the 1st defendant who was the son of the donee's undivided brother Nachiappa Gounden and 1st defendant's brother (now dead) sold to the plaintiff two of the items of property conveyed by the widow under Exhibit I and mortgaged another item to him for Rs. 8,000/. The deed of sale in plaintiff's favour Exhibit II recites that the two items were obtained by Ramasami Gounden under the deed of gift and it is not disputed that the deed referred to is Exhibit I. The deed of mortgage which was executed on the same date of the deed of sale (7th December 1896) was for Rs. 8,000 and the only item mortgaged was the Mitta (item 1 of the plaint). The mortgage recites that the Mitta hypothecated was “the mitta which Ramasami Gounden obtained under a deed of gift from Marakammal.” The Schedule to the mortgage deed also describes the property similarly. The property was sold subsequently by the 1st defendant to the 3rd defendant and it appears from the deed of sale that money had been horrowed from the vendee to discharge the mortgage in plaintiff's favour and that the sale was inter alia to discharge the debt so incurred.

When the plaintiff purchased two items of property and got a mortgage of another item (which was the most valuable) for Rs. 8,000, Ramasami Gounden the donee under Exhibit I was dead and the plaintiff was one of the next reversioners. The deed of gift Exhibit I executed by Marakammal in favour of Ramasami Gounden was not void but was only voidable at plaintiff's option as ruled by their Lordships of the Privy Council in Bijoy Gopal Mukerji v. Krishna Mahishi Debi. He was no doubt not bound to institute a suit to set it aside nor was he bound by any overt act to express consent or dissent but he was certainly bound not to do any act which would reasonably induce third parties to believe that he elected not to avoid the transaction but to affirm it. It is difficult to believe that the plaintiff was not aware of his legal rights and of his rights to dispute the validity of the alienation by the widow. It appears from Exhibit I that Marakammal was 52 years old in 1893 so that she was at the date of Exhibits II and III-about 55 years old. The plaintiff's age as appears from his deposition is 40 in 1909 so that he was 27 years old in 1896 and he purchased two items and lent money on the third. It is no doubt true that the alienation by the widow will be good during her life time, but it is hardly likely that the next reversioner who was a young man of 27 would have lent Rs. 8,000 when the widow on whose death he would succeed was an old woman of 55 years merely on the strength of the life interest. When a reversioner under such circumstances lends a considerable sum on one of the most important items of property alienated by the widow, 1 think a reasonable and prudent man might infer that he assented to the alienation of that item by the widow. It has no doubt been held in Sham Sundar Lal v. Achhan Kunwar, that the consent must be shown to have been given with a knowledge of the effect of what one is doing and an intelligent intention to consent to such effect. As regards acquiescence and ratification it has been held in La Bangue Jacques Cartier v. La Bangue D’ Epargne De La Cite Et Du District De Montrealy, that they must be founded on full knowledge of the facts and must be in relation to a transaction which is valid in itself and not illegal and to which the effect may be given as against the party by his acquiescence in and adoption of the transaction. The principles as to estoppel are to be found in Sect, 41 of the Transfer of Property Act and Sect. 115 of the Evidence Act. The law is clear but the difficulty arises in its application to a particular set of facts. When a person lends a large sum of money to another on the security of property treating him as absolutely entitled to the property while as a matter of fact his title was only a limited one avoidable at the option of the mortgagee on the widow's death, it is difficult to see on what principle he can turn round and dispute the title of a purchaser who has lent money to pay him off and who to recoup himself has purchased the property.

It is argued that the principles of Hindu Law as to ratification and assent only apply to ratification by the next presumptive reversioner and that same principle cannot be applied where the alienation is by the widow to the next reversioner and that next presumptive reversioner consents. I am unable to see any reason for the distinction. As I have already pointed out the Hindu Law does not make any distinction between the next and the more remote reversioners or display any preponderating preference for the next heir over another more remote. The texts speak of the husband's kinsmen and the word paternal uncles in the text of Brehaspati where the paternal uncles of her husband are spoken of has been interpreted to mean the sapindas of her husband. Narada speaks of the husband's kin being the guardians. The rule laid down in Bajrang Singh's case in 30 Allahabad 1 that the assent by the next reversioners is enough is only a practical working rule and cannot be construed to mean that the assent given by remoter reversioners has no legal effect even though the immediate reversioner is the alienee and his assent or evidence of necessity is of no use.

It is not necessary that the assent or ratification should be before or at the date of the alienation; Bajrangi Singh v. Manokarnika Bakhsh Singh nor is assent required to be in any particular form. Assent might be inferred by attestation; Venkatasubbier v. Chinnasamier, Narayana Aiyar v. Rama Aiyar, Chunder Dutt Misser v. Bhagwat Narain Thakur, Ismail Jolaha v. Jaganath, though as pointed out by their Lordships of the Privy Council in Raj Lukhee Debea's case mere attestation without more does not necessarily import concurrence. It may also be inferred by recitals in other documents or by a course of conduct which leads to the reasonable inference that a person elects to ratify a voidable transaction. Venkatasubbier v. Chinnasamier, Mallik Saheb v. Mallikarjunappa(7), Modhu Sudan Singh v. Rooke(8).

So far as the two items of property purchased by plaintiff are concerned they were not very valuable and were sold along with other items of property admittedly belonging to the vendor. I do not think that under these circumstances it can be taken as proved beyond doubt that the plaintiff intended to give up his rights as regards all the items of property transferred by the widow under Exhibit I. So far as the mortgage of the Mitta under Exhibit III is concerned I am of opinion that the facts set out by me show that plaintiff must have assented to the alienation. Though Exhibit I purports to be a deed of gift the recitals show that the alienee had spent his own moneys for a litigation concerning the estate got by the widow (to repay which the widow could have borrowed moneys or sold properties so as to bind the reversioners and agreed to defray the marriage expenses of her daughter who was the sister of the last male owner. Assent by the reversioner is strong evidence of the truth of the recitals and shows that it was either necessary or proper. So far as the plaintiff is concerned, I am of opinion that he cannot question Exhibit I in so far as it conveys the Mitta, item (1), to Ramasami Gounden both on the ground of estoppel and on the ground of consent or ratification.

The last question is about the exclusion of the reversioners of the half blood by those of the full blood. It will be seen from the genealogical table that Sengottuvela Gounden had two wives and that while the plaintiff the 1st defendant and the last male owner are descendants of Sengottuvela Gounden by second wife the third defendant claims descent through the first wife. It is argued for the appellant that the rule of Hindu Law as to the exclusion of half blood by those of the full blood extends only to brothers and their sons and that there is no reason to apply the doctrine to ascendants. The balance of authority is in favour of the view that the distinction between whole blood and half blood extends to sapinda relations other than the brother and his sons. In Subba Singh v. Sarafraz Kunwar, and Sham Singh v. Kishun Sahai, and their Lordships dissented from the view taken in Samat v. Amra, Vithalrao v. Ramrao, by the Bombay High Court. Justices Miller and Sadasiva Aiyar, though they differred on other points, agreed in accepting the view taken by the Calcutta and Allahabad High Courts.

The chief argument adduced by the appellant's Vakil is that while the Mitakshara makes mention of the difference between whole and half blood in dealing with the case of brothers and their sons no such distinction is drawn when other heirs are spoken of. It is also argued that the reasons given by the Mitakshara for fixing the position of what are called the compact heirs are not always consistent and that consequently there is no reason to treat the grounds of inclusion or exclusion as applicable to the other heirs. These arguments lose much of their force when it is remembered that the Mitakshara bases the whole scheme of succession on the well known text of Manu (Chapter IX, Sloka 187) which has been translated by Colebroke as “To the nearest Sapinda the inheritance next belongs.” Literally translated the line reads as follows “He who is unremote from sapinda his property becomes his.” The Mitakshara treats sapinda relationship as arising from connection with parts of one body curtailed by the technical limitation that it includes only paternal agnatic relations within the seventh degree. It treats as axiomatic slokas 186 and 187 of Chapter IX of Manu which run as follows:—To three must libations of water be made, to three must pinda or oblations of food be presented. The fourth is the giver of these offerings; the fifth has no concern with them. Whoever is unremote from (among) Sapinda his porperty becomes his.’ After him the Sakulaya is the heir, then the preceptor or pupil.” In trying to reconcile this principle with the fact that the mother (probably by long usage) was placed before the father while the maternal relations were postponed to the paternal, Vignaneswara put forward reasons which other commentators did not accept, but there can be little doubt that however illogical the grounds might be when applied to particular relations the basic principle accepted by him was that the inheritance goes to the nearest Sapinda. In treating of the mother's rights to succeed in preference to the father he observes as follows:—“Besides the father is a common parent to other sons but the mother is not so and since her propinquity is consequently the greatest, it is fit that she should take the estate conformably with the text, “To the nearest Sapinda the inheritance next belongs.” In treating of brothers he gives the preference to brothers of the whole blood, his reason being that those of the half blood are remote through the difference of the mother and that therefore those of the whole blood should take the inheritance in the first instance conformably to the text of Manu “To the nearest Sapinda the inheritance belongs.” In dealing with brother's sons he states: “On failure of brothers also their sons share the heritage in the order of the respective fathers,” and Balambhatta explains this to mean “in their order as descended from brothers of the whole or half blood.”

So far as I can see, there is no reason for limiting the exclusion of the agnates of half blood by those of the full blood to brothers and their sons if propinquity is to be the basis on which succession is to be regulated and the text of Manu “To the nearest Sapinda the inheritance next belongs” is to be treated as of universal application. The Mitakshara, which is a running commentary on the institutes of Yagnavalkya, is known for its brevity and the repetition of arguments or grounds of exclusion when there is no difference in principle is hardly to be expected. Nor is it exhaustive on matters of succession. The view taken by the Calcutta and Allahabad High Courts has the sanction of Visweswara Bhatta, the well-known author of the Madanaparijata, who states that the paternal uncles and other ascendants succeed “on the analogy of brother's sons mentioned in the verse of Yagnavalkya regarding other heirs and that the distinction between the whole blood and the half blood applies to all ascendants”. Upalakshana and Lakshana are well known technical terms in Mimamsa and it cannot be said that commentators like Vignaneswara wara had not the rules of the Mimamsa in mind. Upalakshana is the rule of construction whereby a word is taken to mean not only a thing denoted by it but also as meaning and including other things of the same nature. Lakshana is extending the meaning of a word to things connected by analogy. Applying these principles of interpretation and bearing in mind the rule of Manu as to succession by propinquity, there can be little doubt that Vignaneswara gave the reason for preferring whole to half brothers by way of illustration of a general principle and hardly intended to cut down a rule of general application. I am of opinion that preference based on connection by whole blood applies not only to brothers and their sons but to uncles and their sons and grandsons.

In the result I allow the appeal as regards the Mitta, item I of the property and modify the decree of the Lower Court by dismissing plaintff's suit as regards this item. The parties will pay and receive proportionate costs throughout.

Decree modified.