(Delivered by The Chief Justice).
This is a suit by the reversioners to the estate of one Arcot Annamalai Chetti, who died on the 2nd December 1880, for the recovery of the properties left by him, all of which were in the hands of alienees at the date of the institution of the suit. The following geneological tree will help in the appreciation of the facts.
(for geneological tree see next page)
The plaintiffs claimed to be entitled to the properties described in the Schedules A and B of the plaint. In the trial Court it was held that the plaintiffs had established their claim to the properties described in Sch. B and to one item in Sch. A. The properties described in Sch. A are eight in number. The one property in respect of which the plaintiffs succeeded was item No. 8. The plaintiffs have appealed in respect of the other properties mentioned in Sch. A. Items Nos. 3, 4 and 5 stand together, as do items Nos. 1, 2, 6 and 7. The learned Judge (Chandrasekhara Ayyar, J.) held that the plaintiffs were not entitled to the possession of items Nos. 3, 4 and 5 because it had not been proved that they belonged to the estate of Annamalai Chetti at the time of his death.
He rejected the plaintiffs' claim in regard to items Nos. 1, 2, 6 and 7 because he considered that they had been lawfully alienated by Ratnammal. We agree with the judgment of the learned judge so far as it concerns items Nos. 3, 4 and 5, but we are unable to concur in it in so far as it concerns items Nos. 1, 2, 6 and 7.
Annamalai Chetty, in conjunction with his mother-in-law Sundarammal, purchased items Nos. 3 and 4 in 1862. The Collector's Certificate was issued in their names in 1867. On the 20th November 1880 Annamalai Chetti transferred his half share to his mother-in-law, who thereby became the sole owner of these properties. She transferred them to K. Sundaram Chetti, Annamalai Chetti's son-in-law, on the 13th February 1884 and caused the Collector's Certificate to be issued in his name. Having got the title to these properties Sundaram Chetti (together with his wives and son) mortgaged them under documents dated the 29th October 1897 and the 16th February 1899. These mortgages were in the English form and each contained a power of sale, which was exercised on the 8th June 1914. The purchaser was one Jayaram Chetti and his successors in interest are the third and fourth defendants. Item No. 5 was bought by Annamalai Chetti and his son-in-law, Sundaram Chetty, on the 11th March, 1876. On the 20th November, 1880, Annamalai Chetti transferred his half share to his daughter Peria Thayammal. On the 2nd July 1896 Peria Thayammal and her husband Sundaram Chetti mortgaged the property to the Hindu Jananukula Saswatha Nidhi, Sundaram Chetti was also married to Peria Thayammal's sister Chinna-Thayammal and she joined in the mortgage as did Murugesa, Peria Thayammal's son. The mortgage was also in the English form and contained a power of sale which was exercised on the 28th April 1904. The purchaser was one Abbu Chetti, who mortgaged the property to the Nidhi on the 30th April 1904. This mortgage likewise contained a power of sale which was eventually exercised and the property was purchased by the predecessor in title of the fifth defendant on the 20th January 1912.
The case for the plaintiffs with regard to items Nos. 3, 4 and 5 is that in Civil Suit No. 164 of 1906 of this Court it was held that the properties belonged to the estate of Annamalai Chetti. That suit was instituted by Ratnammal to recover possession of her share in her father's properties. The defendants were her sister Peria Thayammal, Abbu Chetti (Peria Thayammal's son-in-law) who was in possession of two items of property, Kuppu Chetti (the husband of Swarnammal, Annamalai Chetti's daughter by his second wife) who was in possession of one item of property, and eleven other persons who were in possession of the properties described in the B Schedule to the plaint. The action resulted in Ratnammal being placed in possession of certain properties belonging to her father and Peria Thayammal in possession of other of his properties. It is said that the decision in this suit that items Nos. 3, 4 and 5 belonged to Annamalai Chetti operates as res judicata; but this contention was rejected by the learned trial Judge and we consider rightly rejected. Ratnammal was merely asking for the possession of her share of the properties and the plaintiffs in the present suit can only recover what belonged to Annamalai Chetti at the time of his death. As we have shown, Annamalai Chetti had parted with his interest in these three items before his death. The validity of the transfers has not been questioned before us and the Court is entitled to draw the presumption allowed by S. 90 of the Indian Evidence Act. The transfers made by Annamalai Chetti conferred complete titles on the transferees and the mortgages which eventually led to the sale of the properties to the predecessors of the third, fourth and fifth defendants were valid. In these circumstances the plaintiffs have no claim whatsoever to these properties.
The learned Judge decided against the plaintiffs in respect of items Nos. 1, 2, 6 and 7 because he considered that Ratnammal had power to mortgage the properties without the consent of her sister Peria Thayammal and that it had been shown that the mortgages were created for legal necessities of the family. We shall presently deal with the question whether these mortgages were created for a family purpose and the effect of the deeds, but before doing so we must indicate our reasons for dissenting from the learned Judge's opinion that Ratnammal acting alone could bind the reversioners.
Peria Thayammal and Ratnammal were joint tenants of their father's estate and as such were exactly in the same position as if the estate had devolved on co-widows. In Gajapathi Radhamani v. Pusapathi Alakarajeswari (1), the Privy Council held that where a widow without the consent of her co-widow mortgages a part of the estate to which they are jointly entitled by inheritance from their deceased husband, the mortgage does not affect the interest of the other widow in the property and consequently when the other widow becomes entitled to the whole estate by reason of survivorship, she is unaffected by the mortgage. The fact that the mortgage was entered into to meet a family necessity did not alter the position. In Valluru Appalasuri v. Sasapu Kannamma Nayuralu (2), a Bench of this Court (Ramesam and Venkatasubba Rao JJ.) held that when the estate is in the hands of co-widows an alienation made for a family necessity does not bind the reversioner unless both the widows have joined in. This opinion was dissented from by the Allahabad High Court in Jai Narain Singh v. Munna Lal (3). In that case co-widows divided their husband's estate between them and one of them alienated a considerable part of her share. The alienation was for a legal necessity. The Allahabad High Court held that the widow was competent to alienate without the consent of her coparcener and that the alienation bound the reversioner. The other widow was in fact a consenting party but even if she had not consented the Court considered that the reversion would have been bound.
The Privy Council considered both Valluru Appala Suri v. Sasapu Kannamma Nayuralu , and Jai Narain Singh v. Munna Lal , in Gauri Nath Kakaji v. Gaya Kuar (4) and expressed disapproval of the Allahabad decision. In delivering the judgment of the Board Lord Salvesan observed that each widow can deal as she pleases with her own life interest, but she cannot alienate any part of the corpus of the estate by gift or will so as to prejudice the rights of the survivor or a future reversioner. Their Lordships left open the question whether the reversion would be bound where it was necessary to raise money for a family purpose and one widow, having been asked to concur, unreasonably refused. That question does not arise in the present case. Ratnammal neither sought nor got the consent of Peria Thayammal to the mortgages which she created.
Chandrasekhara Ayyar J. considered that Gajapathi Radhamani v. Pusapati Alakarajeswari and Valluru Appalasuri v. Sasapu Kannamma Nayuralu , did not apply in a case like the present because the judgment in Gauri Nath Kakaji v. Gaya Kuar , contains this statement:
“It may be noted that the case arose not between the survivor of the widows and the mortgagee but between the mortgagee and the reversioner after the death of both widows.”
The statement was made in connection with their Lordships' criticism of Jai Narain Singh v. Munna Lal and they were merely pointing out that what the Allahabad High Court said was obiter. They added, however, that the opinion was not consistent with the judgment of the Board in Gajapati Radhamani v. Pusapati Alakarajeswar .
We are asked to ignore Gajapati Radhamani v. Pusapati Alakarajeswari because there the suit was one between widows and this suit is between reversioners and alienees and to ignore Valluru Appalasuri v. Sasapu Kannamma Nayuralu because it was not necessary in that case to decide whether both widows had to join in a mortgage in order to bind the reversion. We consider that the logical conclusion to be drawn from Gajapati Radhamani v. Pusapati Alakarajeswari is that co-widows must join in order to bind the reversion. It may be pointed out that the appellant-widow died during the pendency of the appeal before the Privy Council and the reversioner was substituted as the appellant. While it may be that the opinion expressed in Valluru Appalasuri v. Sasapu Kannamma Nayuralu , that in order to bind the reversion the co-widows must join in the transaction was obiter it was expressed after a careful consideration of the authorities and we agree with it. Inasmuch as Peria Thayammal did not join in or give her consent we must hold that the mortgages created by Ratnammal, even if they were necessary from the point of view of the family, do not bind the reversion.
We will now examine the facts. The mortgages created by Ratnammal were five in number and they were all in favour of one Swami Chetti. Ratnammal joined as a mortgagor Dhanakoti, the elder son of her deceased sister Chinna Thayammal. Dhanakoti was one of several presumptive reversioners. His execution of these deeds did not, however, add anything to the title of the mortgagee. The first mortgage was on the 11th April 1906 and was entered into as security for a sum of Rs. 1600 which Ratnammal had borrowed from Swami Chetti. It contains this recital:—
“Whereas the mortgagors aforesaid are in need of moneys for the discharge of their debts which have been all incurred for their family purposes and for the carrying on of a suit or suits for the recovery of possession of their share in all the properties moveable and immoveable belonging to the late Annamalai Chetti and whereas the mortgagors have applied to the mortgagee for a loan of Rs. 1,600 repayable with interest at 18 per cent per annum on the security of their right, title and interest in all the properties aforesaid and the mortgagee has agreed to grant the said loan now this indenture witnesseth………”
In accordance with this recital the operative part merely charged the right, title and interest of the mortgagors. All that Ratnammal possessed was a life estate, joint with her sister. Dhanakoti had no right in the properties at all. The other mortgages were created on the 24th August 1906, 29th January 1908, 1st August 1908 and 6th April 1909 respectively. The amounts raised were two sums of Rs. 300, one of Rs. 200 and another of Rs. 800. According to the recitals in the deeds, these sums were borrowed for the purpose of Ratnammal's suit. In every case the security offered and accepted was the right, title and interest of the mortgagors. We cannot regard these documents as showing that the moneys were required for family necessity; but even if they were, all that the mortgagee got was Ratnammal's interest in the property, and that interest ceased on her death in 1937.
Swami Chetti brought a suit to enforce these mortgages and on the 16th January 1930 he obtained a decree. This was never executed, but items Nos. 1, 2, 6 and 7 were sold by Ratnammal on various dates for the purpose of discharging the mortgage decree. The successors-in-interest of the purchasers are defendants 1, 2, 5 and 6. In the circumstances detailed they cannot be allowed to remain in possession of the properties. The properties belonged to the estate of Annamalai Chetti and the plaintiffs are entitled to them. The result is that the decree of the trial Court will be amended by the insertion of a declaration that the plaintiffs are entitled to items Nos. 1, 2, 6 and 7 and a direction that possession be given to them with mesne profits from the date of the death of Peria Thayammal, that is from the 4th April 1938.
The alienees have claimed that they have effected improvements to the properties and an issue (Issue 11) was framed on this question. In the Court below it was decided that this issue should be determined by the Official Referee. The inquiry before him will of course include the claim of the first, second, fifth and sixth defendants to improvements in respect of items Nos. 1, 2, 6 and 7.
The plaintiffs are entitled to their costs in this Court and below in respect of Items Nos. 1, 2, 6 and 7 as against the first, second, fifth and sixth defendants. They will pay the costs here of the third, fourth and fifth defendants in respect of items Nos. 3, 4 and 5.
The draft decree is in order. What this Court decided was that the alienees should have the value of the improvements effected by them and the amount was to be determined by the Official Referee.
N.R.R