1. The plaintiff's suit is for possession of one-fourth share of the family property and for a declaration that certain alienations are invalid. In this appeal the property in dispute is comprised in Schedule B to the plaint. The District Judge has dismissed the plaintiff's suit so far as the B Schedule property is concerned. The plaintiff has preferred this second appeal.
2. The first point raised by Mr. Bhashyam for the appellant is, that what was sold to the 58th defendant under his mortgage decree was only the life-interest of the plaintiff's mother. In support of that contention he relies upon Ex. E-3 which is a statement put in by the 2nd defendant in O.S. No. 34 of 1901, who was the mortgagee decree-holder, and who brought the property to sale under his mortgage decree obtained against the plaintiff's mother Alamelammal. One of her suns brought a suit for a declaration that the property was the property of his father and the alienation by the mother was not binding upon him and upon his brothers. After the written statements were put in, the 2nd defendant, the decree-holder, consented to having the properties sold without prejudice to the rights of the plaintiff. The argument advanced by Mr. Bhashyam is that the mortgagee decree-holder by putting in this petition consented to have only the life-interest of the mother sold in execution of his decree. His contention is not supported by the pleadings in the case. Unfortunately the plaint in O.S. No. 34 of 1901 has not been filed in this case, but there is the statement of the 1st defendant, the mother, Ex. E-1, from which it is clear that the plaintiff contended that the property was the property of the father and not that of the mother, and the plaintiff did not set up the contention that even if the property was the property of the mother, she only had a daughter's interest and, therefore, what could be sold was only her life-interest. In paragraph 1 of Ex. E-1 the 1st defendant Alamelammal says: ?" The suit property belongs to the 1st defendant. The plaintiff has no concern and enjoyment whatever therein. It is not even the plaintiff's ancestral property. The 1st defendant got it ancestrally and is enjoying it with patta from 1858." Paragraph 2 makes the matter clear: "The plaintiff's father instituted a suit in O.S. No. 452 of 1898 in the District Munsif's Court, Chingleput, against this defendant for recovery of the suit property and some other property. It was decided that the property belonged to this defendant and the plaintiff's suit has been dismissed." In the light of the pleadings in O.S. No. 34 of 1901 it cannot be said that the plaintiff and his brothers put forward the case that the mother was only entitled to a life-interest as a daughter and they were entitled to the reversion. In the absence of such a contention in the pleadings and in the absence of an issue to that effect it cannot be said that the 2nd defendant consented to selling only the life-interest of the 1st defendant Alamelammal. What he says in Ex. E-3 is, " If there be any right for the plaintiff in the aforesaid properties, I consent to Have the auction sale effected without going against that right. " The meaning of that sentence is, that if the plaintiffs have any claim to the property, that is, as being their ancestral property, such a right would not be affected by the auction sale. It cannot by any process of ingenious reasoning be contended that by Ex. E-3 the 2nd defendant consented or agreed to have only the life-interest of the mother sold in auction.
3. The property was purchased by the mortgagee who was the 58th defendant in the present suit. He was in possession from the date of the sale. Alamelammal, the mother of the plaintiff died in 1918. The plaintiff, her third son, has brought this suit for a share of his mother's property and for a declaration that the alienation made by her in favour of the 58th defendant is invalid and is not binding upon him. Ex. XX is the deed of mortgage which was executed on the 7th July, 1896, by Alamelammal in favour of Vijiaraghavachari, 58th defendant. The consideration for the mortgage, Rs. 250, was received for the marriage of her son Jagannathachari. This sum, not having been paid, the mortgagee brought a suit and obtained a mortgage decree, and brought the property to sale. The contention of the appellant is that this mortgage is not binding upon the reversion. It is urged that the mother had considerable property and she could have paid off the mortgage amount out of the income of the property and reliance is placed upon Jiban Krishna Roy v. Brojo Lal Sen (1903) ILR 30 C 550 (PC) and Rameswar Mandal v. Provabati Debi (1914) 20 CLJ23 Where a woman inherits considerable property as a limited owner she is not entitled to charge the reversion with debts contracted by her when she could have met those debts from the income of. the property. But where the income is not sufficient for her own maintenance or for other purposes, such as pilgrimage to holy places, gifts for the repose of the soul of the person from whom she inherits her property or for other purposes which would be considered 'necessity' under the Hindu Law, a limited owner could alienate the property to the prejudice of the reversion. But where ample funds are in her hands for meeting her own expenses and for all other expenses incidental to the ownership of property, such as payment of cist or rent, she is not entitled to charge the property with her debts to the prejudice of the reversion. In this case the debt was contracted for the marriage of one of her sons. The purpose for which the loan was contracted is clear from the document itself, and it is not suggested either by the plaintiff or by the defendant that the debt was borrowed for any other purpose. The question, therefore, arises whether a limited owner is entitled to charge the reversion with a debt contracted for the purpose of the marriage of her son. No authority is shown for the position that a mother could alienate the property inherited by her own father for the purpose of getting one of her sons married. Mr. Viswanatha Aiyar's contention is that there is a moral obligation to get her son married and therefore she is entitled to borrow for the purpose of getting her son married. There is no obligation under the Hindu Law on the part of a mother to get any of her sons married. The case of a daughter stands on a different footing altogether. It is one of the duties of the father to get his daughter married and settled in life, and in the case of the twice-born the girl has to be married before she attains puberty and therefore the Hindu Law lays the obligation upon the father of getting the girl married, and in order to do so the father is entitled to alienate ancestral property and the sons cannot question his act. But no such obligation is laid upon the father to get any of his sons married and I am not aware of any authority in which it was held that a father could alienate ancestral property for the purpose of gettingany of his sons married. In the case of a mother there is no obligation at all to get any of her sons married by borrowing money on the security of the property inherited by her from her father. In Rustom
4. Singh v. Moti Singh (1896) ILR 18 All 474 the alienation by the mother was held to be good on the ground that the father was too poor to provide for the marriage of the daughter, and the mother was obliged to find the money for celebrating the marriage of the daughter. This is quite in consonance with the principle of Hindu Law that a daughter should be married before she comes of age and it is the duty of the father to see that she is married. If the father is too poor to do his duty, the mother could, under the circumstances, alienate her property for the purpose of getting the girl married. This would not support the contention of the respondent that the mother could also do the same thing for the son. In Narainbati Kumri v. Ramdhari Singh (1916) I Pat LJ 81 it was held that a grandmother could not alienate her property for the purpose of celebrating the marriage of her daughter's daughter for there is no duty at all on her to get her grand-daughter married. No doubt natural affection might prompt her to do so; but if she wants to get the girl married she must do it out of the income of the property and she could not encumber the reversion with a debt for such a purpose. As observed by Sharfuddin, J. at p. 85
" Merely because Adyabati remained with her grandmother Anupbati, it is no ground according to Hindu Law to charge the estate of Kamla Prasad with the cost of her marriage. It may be a moral duty to see that this girl was properly married but I am not convinced that this can at all be considered as legal necessity of a nature that would bind the estate."
5. In Bai Mangal v. Bai Rukhmini (1898) ILR 23 Bom. 298 it was held that a married daughter had no claim for maintenance upon the father, There is, therefore, no justification for Alamelammal to borrow money on the security of the property for celebrating the marriage of her son.
6. The next contention advanced by Mr. Viswanatha Aiyar for the respondent is, that the plaintiff was a consenting party to the transaction evidenced by Ex. XX. The money was borrowed for the marriage of his brother and therefore the plaintiff is estopped from contesting the validity of the transaction. In order to establish estoppel it is necessary to make out that a representation was made by a person, and the other party to the representation believed that representation to be true and acted upon it to his prejudice. If no representation was made or if the other party did not believe in the representation and did not alter his position to his prejudice by believing that representation, then there is no question of estoppel at all. In this case the mortgagee was aware for what purpose the money was borrowed. The document recites a purpose and he does not adduce evidence to show that the purpose recited in 'the mortgage deed is not the purpose for which the money was borrowed. But it is very strongly pressed upon my attention by Mr. Viswanatha Aiyar that the mere consent of the reversioner to a transaction is sufficient to make the transaction valid. Strong reliance is placed on Mahadeo Prasad Singh v. Mata Prasad (1921) ILR 44 All 44 It was held in that case that, if the next presumptive reversioner at the time of a transfer made by a Hindu widow of property of her deceased husband assents to such transfer, neither he nor any of his successorsin-title can afterwards dispute its validity. With very great respect I am unable to follow the reasoning of the learned Judges in that case. The decisions of the Privy Council on which the learned Judges rely do not support such a wide proposition as that laid down in that case. At page 53 the learned Judges observe:
"If it was intended to lay down the general proposition that in no case a reversioner can by his act or conduct estop himself from challenging a transfer after he has succeeded to the estate, then we would not agree with the decision."
This statement of the law is correct. If a reversioner by his act which amount either to ratification or election or some other act which he has done after the reversion opened, in order to make the alienee believe that he was standing by the transaction and that he was prepared to allow it to be good, he cannot afterwards resile from that position; but by the mere consent to the transaction at the time when it takes place, it cannot be said that in all cases a reversioner is estopped from contesting the validity of the transaction after the death of the limited owner. The other cases,
Gur Narayan v. Sheolal Singh (
1918) ILR 46 C 566:
36 MLJ 68 (PC) and
Basappa v. Fakirappa (
1921) ILR 46 46 Bom. 292 are also on the same lines as that in
Mahadeo Prasad Singh v. Mata.Prasad.(
1921) ILR 44 All 44 and, as I have already observed, the broad principle which the learned Judges lay down in those cases is not in. my opinion warranted by the decision of the Privy Council in
Rangaswami Goundan v. Nachiappa Goundan (
1918) ILR 42 Mad 523:
36 MLJ 493 (PC). Each case has to be considered in connection with the facts of that case. Unless any broad principle has been laid down by the Privy Council it would not be right to extract from a few cases a broad principle as that which has been laid down by the learned Judges of the Allahabad High Court in
Mahadeo Prasad Singh v. Mata Prasad (
1921) ILR 44 All 44 and
Fateh Singh v. Thakur Rukmini Ramanji Maharaj (1923) ILR 45 All 339 (FB) From the judgment of their Lordships of the. Privy Council in
Rmgaswami Goundan v. Nachiappa Goundan (1918) I L R 42 Mad 523:36 M L J 493 (P C) it is clear that, if the reversioners consent to a transaction that would be, in the absence of other evidence, presumptive evidence of the necessity for the transaction. It is for the alienee to prove necessity or to prove that he made a bona fide inquiry and satisfied himself that there was necessity for the alienation. But where he is unable to give evidence of circumstances which would amount to necessity in law, or where he is not able to prove that he made bona fide inquiries as to the circumstances which would constitute necessity, if he proves that the nearest reversioners consented to the alienation, that would be presumptive evidence of the existence of the circumstances which would amount to necessity, and, in the absence of any evidence to the contrary, that presumption could be acted upon and the onus laid upon the alienee would be shifted to the reversioner. That being the principle of the decision in
Rangaswami Goundan v. Nachiappa Goundan (
1918) I L R 42 Mad 523:
36 M L J 493 (P C) it is difficult to see now the mere consent of the reversioner estops him from disputing the validity of the transaction. If he is able to show that the transaction was for a purpose which ostensibly Could not be binding on the reversioner, then the mere fact that he consents to the alienation cannot possibly estop him. Supposing a son negotiates for a loan for his father to meet a gambling debt or a debt incurred for liquor, and if the lender knowing the purpose of the loan lends money and the document by which the amount is secured recites the purpose, namely, the payment of a gaming debt or a debt incurred for supply of liquor, the mere fact that the son has negotiated the loan or was a consenting party to the transaction or even attested the document would not be sufficient to estop him from afterwards contending that the debt incurred by the father was not binding upon him. It is only in cases where the lender was misled by a representation made by a person that he can raise the plea of estoppel. Whereas in this case the purpose is mentioned in the document itself, I fail to see how any question of estoppel ran arise. On the other hand the mortgagee with open eyes lent money for a purpose which he must have known or ought to have known and, if he took the trouble to inquire, would have known, could not be binding on the reversioner. It is not necessary to discuss this point any further and it is not necessary for me to notice all the cases quoted by Mr. Viswanatha Aiyar.
7. The B schedule property consists of three items. On item 3 there was a house which was said to be worth Rs. 6,000 according to the plaintiff, and the District Munsif found that the house was worth Rs. 2,000. It was demolished by the 58th defendant who is now dead and he is represented by the 59th and 60th defendants. The District Judge has not given a rinding as regards the value of the house. Inasmuch as the 58th defendant has demolished the house the plaintiff would be entitled to one-fourth value of the house, his share being one-fourth and his brothers being entitled to three-fourths. I allow the Second Appeal with costs of the plaintiff and remand the appeal to the lower appellate Court for disposal after recording findings on issues 7 and 8.