1. These appeals relate to certain items of property, which admittedly on 15th October 1914, formed part of the joint family property of two undivided brothers, Sundara and Ekambara Pandaram. On that day Sundara Panda-ram who was on his death bed executed what he calls a 'will' (Ex. A), in which certain provisions were made for his wife, Ranganayaki, in the event of her being unwilling to live on with her brother-in-law; and for his infant daughter Pattammal, to take effect at the time of her marriage. This will was attested by Ekambara, amongst other ' attestors, and subsequently registered by him. Ekambara however some years later executed a mortgage in favour of two Chetties, including in the security items of property set apart in the will for the maintenance of Ranganayaki and the marriage portion of Pattammal. The mortgagees obtained a decree on the mortgage and their rights as decree-holders were subsequently purchased in insolvency proceedings by one Venku Sah. The question now at issue in these appeals is whether the rights of the widow and daughter under the will are to prevail as against the rights of the heirs of Venku Sah. The two Courts below, the learned Sub-Judge and the learned District Judge of Chingleput, have held against the widow and in favour of the daughter, and have decreed that the property claimed by the daughter should be delivered to her.
2. With regard to the widow's claim little or no separate argument has been addressed to us. It was held by the learned Subordinate Judge that, though she had in the first instance a valid claim under the will, she did not elect to live apart from Ekambara but remained in the family and consented to be maintained in the ordinary way by him. She was still so residing at the date of the mortgage and relying upon certain rulings to which he refers, the learned Subordinate Judge holds that, in those circumstances she could not object to the manner in which Ekambara who was maintaining her might deal with the estate. No attempt whatever was made in the hearing before us to challenge the authority or the applicability of those rulings, and we must decide against the widow's claim. The claim of the daughter stands on much firmer ground. On this part of the case the Courts below hold that though the 'will' is invalid as a will since Sundara had no power of disposal over the property with which it deals, being still undivided from his brother, it is valid as a family arrangement to which the consent of the only remaining coparcener Ekambara had been obtained; and, being so valid, conferred upon the daughter an indefeasible title to succeed at the date of her marriage to the property set apart for her. The main argument against this conclusion in the appeal before us was that the 'will' does not; purport to dispose of the property at all, but is merely a record of a promise made by Ekambara of what he agreed to do in certain future, eventualities. To appreciate this argument it will be necessary to set out certain passages in the will. The operative portion of the will runs as follows:
I have got a brother named Ekambara Panda-ram. All the immoveable and the moveable properties and outstandings of the family, belong to me and ray said brother equally. Being attacked with asthma now and being apprehensive of my life, I execute this will. I may recover my health by the grace of Sri Kachapeswara Swami. If, perhaps, I do not recover my health, and I die, I have made a request to my younger brother to act according to the undermentioned particulars, and accordingly he has complied with it. So, after me, my brother should absolutely get all my immoveable and moveable properties and the outstandings and pay off the dues and further, he should act without fail according to the undermentioned arrangement.
3. Then follow 'particulars of arrangement' and the daughter's future is referred to in the following lines;
As Sri Kachapeswara Bhagavan has given me only a female child not named and 14 months old, she should be supported properly and my brother and my wife Ranganayaki should after (mutual) consultation get her married to a boy whom they like. My brother should give my said daughter jewels for Rs. 1000 as stridhanam. After such marriage, he should execute a stridhana deed so that the said female child herself may absolutely get the land mentioned in the first schedule in No. 25. Salabogam village, Conjeevaram, from son to grandson and so on in succession and should also put her in possession of the land. In default of my brother doing so in the very year of marriage, my said daughter should take the same thinking that I have given it to her as stridhanam on this very day.
4. Now much of this language, the reference to a 'request' to Ekambara's getting 'all my properties absolutely' and to Ekambara's executing a stridhanam deed at the time of the marriage seems to support the argument that this is merely a record of a promise or undertaking by Ekambara; but it is of course obvious that whatever Sundara might declare in his will he could not himself carry out, and must be carried out by Ekambara. Too much stress should therefore not be laid upon the respectful language in which Sundara alludes to his brother's future actions. And some meaning must be given to the final phrase. It can mean one thing and one thing only, that whether Ekambara carries out his promise or not Sundara definitely declares by this document that his daughter shall have title, when she marries, to the property in question. If she gets title by means of a deed executed by Ekambara so much the better; but if not, then the will itself is intended to be her title deed. We must therefore hold that by this will Sundara was deliberately disposing of property in favour of his daughter.
5. That Ekambara consented to this disposal of the property and that he alone, apart from that consent, would at the time have been adversely affected by it, is common ground. The only question that remains is whether in these circumstances the daughter obtained a good title to it. We think in view of the authorities relied upon by the Courtis below, and in particular Lakshmi Chand v. Mt. Anandi 1926 48 All 313 and Appan Patrachariar v. Srinivasachariar 1918 40 Mad 1122, there can be no doubt that she did. No doubt it was a life estate alone which was upheld in the former authority, and it was not upheld as against any stranger purchaser, but the principle is clear that, with the consent of all his co-sharers a member of a Hindu joint family can grant for his own purpose a valid mortgage of so much of the joint family property as would not exceed his share on partition. The vital requisite here is the consent of the other coparceners and there seems no good reason why if a mortgage is valid in these' circumstances an out and out bequest or other alienation should not also be valid., The second ruling in Appan Patrachariar v. Srinivasachariar 1918 40 Mad 1122 is-in our opinion direct authority in favour of the daughter. It is there held that a father in a Hindu joint family can with, the consent of his other co-parceners bequeath a reasonable portion of his ancestral property to his daughter, and this decision was given as against a stranger purchaser. It is argued that the authority of Appan Patrachariar v. Srinivasachariar 1918 40 Mad 1122 has been somewhat shaken by Subbarami Reddi v. Ramamma 1920 43 Mad 824, but we are unable to agree that this is so. The all-important feature in that latter case was the absence of consent and on p. 828 Wallis, C.J. seems to us to approver rather than to disapprove of the view that a 'will' executed with the consent of all other co-parceners and not revoked before death should be enforceable as a family settlement or arrangement. We are accordingly of opinion that the decisions of the Courts below should be affirmed and all these appeals dismissed with costs.
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