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Keshava Tharagan v. Rudran Nambudri

Madras High Court

May 1, 1882

Judgment

Subsequent
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Factual and Procedural Background

Damodaram Numbudri, last male owner of the Thiruthil Illam, having no sons, gave his daughter Nangeli in marriage to Shangaran Nambudri (the second defendant) as a Sarvaswadanam son-in-law. The precise incidents of the Sarvaswadanam custom were not fully ascertained on the record, but it was agreed that the custom introduced the son-in-law into the Mam and conferred on him the status of a son in respect of Illam property, together with management obligations.

Nangeli died in her father's lifetime and (disputedly) left no issue. Damodaram and his wife Savitri purportedly conferred on Shangaran an immediate interest in the Illam property by a deed of Sarvaswadanam, a gift later ratified by Jadavedan, the nearest natural male heir.

On 21 July 1874 Shangaran mortgaged Illam lands to his younger brother Kollapratti Jadavedan (father of the plaintiff, Rudran) for Rs. 2,350; part of that sum was alleged to discharge prior encumbrances and part retained by Shangaran. On the same date Jadavedan leased the mortgaged land to the first defendant, Valia Alimu. The record shows reciprocal transactions (including Shangaran taking a lease from Valia Alimu), which the Judge treated as arrangements representing interest on the mortgage. Possession and revenue arrangements were conducted in Shangaran's name after Damodaram's death.

Subsequent suits and incidents: in 1875 Govinda Warrier sued (Original Suit 475 of 1875) and obtained a decree; Savitri resisted execution and later brought Original Suit No. 716 of 1876 and obtained an ex parte decree. In 1875 Savitri also instituted Original Suit 710 of 1875, claiming redemption of a small piece of land; issues were framed about Shangaran's title. Savitri swore in a temple (27 June 1876) that Shangaran had not received possession or independent management powers; she obtained a decree and executed it in October 1876. A registered receipt (exhibit 7) by Shangaran acknowledging Rs. 65 from Savitri (dated March 1877) is on the record (the Munsif suspected forgery; the Judge regarded it genuine). In 1878 Savitri executed several deeds mortgaging Illam lands to the sixth defendant; the Judge considered the alleged consideration fictitious. Cultivating tenants attorned to the sixth defendant.

In 1879 the first defendant brought Original Suit No. 609 of 1879 and obtained a decree for Rs. 900 against the plaintiff and Shangaran. Savitri died in 1879. In November 1879 the plaintiff instituted the present suit seeking possession of the lands and arrears of rent flowing from the 1874 mortgage and the contemporaneous lease.

At first instance (Munsif) and on appeal the Judge found that the decree in Original Suit 710 of 1875 affected only the property subject to that suit, that Shangaran had title to make the 1874 mortgage, and that the plaintiff established his claim to enforce the lease. The Judge also found conduct by the second defendant to have been aimed at evading creditors and that Savitri had been influenced by the sixth defendant.

Legal Issues Presented

Whether, under the Sarvaswadanam custom, a son-in-law's interest in the Illam property is divested on failure of issue (i.e., whether the interest ceases if the daughter leaves no issue).
Whether the deed of Sarvaswadanam executed by Damodaram and Savitri conferred an immediate interest on Shangaran analogous to that of a son, and whether that gift was ratified by Jadavedan.
Whether the mortgage transaction of 21 July 1874 (and the attendant leases) was a real transaction carried out for substantial consideration or a collusive/fictitious scheme intended to defraud creditors.
Whether the decree and proceedings in Original Suit 710 of 1875 operate as a bar or estoppel in the present suit to the extent of determining that Shangaran had no title to the Illam property.
What is the legal effect, under the Indian Oaths Act (Sections 9 and 11), of parties consenting to be bound by the oaths of their opponents in earlier proceedings — specifically, whether such oaths create conclusive estoppel in subsequent proceedings beyond the subject-matter of the earlier suit.

Arguments of the Parties

Appellant's Arguments

The appellant (as represented in the record) and the Judge's earlier view: ordinarily, on failure of issue to the son-in-law by the daughter of the family, the son-in-law's interest in the Illam property ceases.
The appellant contended that the determination in Original Suit 710 of 1875 that Shangaran had no title should bind the present plaintiff, who had been a defendant in that earlier suit.

Respondent's Arguments

The respondent's pleader denied that there is any divesting of the son-in-law's interest once taken under the Sarvaswadanam custom.
The respondent relied on the Judge's finding and the deed of Sarvaswadanam that Shangaran received an immediate interest analogous to that of a son, ratified by Jadavedan.

First and Sixth Defendants' Arguments

The first and sixth defendants denied Shangaran's title to execute the 1874 mortgage; the first defendant claimed ignorance as to the circumstances of his connection to the mortgage.
Both relied on the decision in Original Suit 710 of 1875 as precluding the plaintiff from asserting a title in Shangaran that could support the mortgage.

Sixth Defendant in Second Appeal

The sixth defendant argued that because the Judge found the 1874 mortgage-deed did not display terms of a real transaction and that possession was not given to the lessee, the suit should have been dismissed as the transaction was not genuine.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Jenkins v. Robertson L.R. 1 Scotch Appeals 117	Authority that, under British law, a determination of matters in issue otherwise than by the Court (for example, by consent to be bound by an opponent's oath) is not a judicial adjudication that will operate as an estoppel in subsequent proceedings.	The court relied on this authority to support the view that the effect of the proceedings in Original Suit 710 of 1875 (where parties consented to be bound by oaths) was limited and did not create an estoppel beyond the subject-matter of that suit; the court held the effect was no greater than the Judge had held.

Court's Reasoning and Analysis

The court proceeded cautiously because the precise incidents of the Sarvaswadanam custom had not been fully ascertained on the record. It accepted the general understanding on the record that the custom introduces the son-in-law into the Mam with a status analogous to a son and associated management obligations, but noted that earlier judicial statements on the custom could not be accepted as conclusively determinative.

On the specific facts the Judge (whose findings the court accepted) found that Damodaram and Savitri conferred an immediate interest on Shangaran by the deed of Sarvaswadanam and that this gift was ratified by Jadavedan. The court found it unnecessary to resolve definitively the broader question whether a son-in-law's interest is ordinarily divested without issue, because the deed and ratification established Shangaran's interest on the facts of this case.

Concerning the 1874 mortgage and attendant leases, the court analyzed the transactional structure: Jadavedan's lease to the first defendant and the first defendant's lease to Shangaran were, in the Judge's view and as accepted by the court, effectively arrangements representing the interest on the mortgage debt. The court rejected the suggestion that absence of possession by the first defendant was necessarily a badge of fraud, finding the arrangement could legitimately leave Shangaran in possession while preserving the first defendant's security (especially for interest). The Judge had not found the mortgage lacked substantial consideration; the appellate court did not overturn that factual assessment.

The court addressed objections that the Judge should not have inquired into the reality of the mortgage or expressed opinions as to the sixth defendant's title. It held that when the whole transaction was impugned and the issue framed accordingly, the Judge properly examined the reality of the mortgage. The Judge could also refer to Savitri's conduct and the validity of later deeds to explain and assess the bona fides of the competing claims.

On the effect of Original Suit 710 of 1875, the court considered whether determinations (or consent to be bound by an opponent's oath) in that suit operated as a bar in the present proceedings. It cited the Indian Oaths Act, Sections 9 and 11, which provide that an oath administered when a party offers to be bound is conclusive proof of the matter stated as against the person who offered to be bound. The court reasoned, however, that such a statutory provision confines the binding effect to the subject-matter of the pending proceedings and does not make that method of decision an adjudication producing estoppel in later suits beyond that scope. The court relied on Jenkins v. Robertson to reinforce that determinations otherwise than by the Court do not operate as estoppels under British law. Accordingly, the court held the earlier decree affected only the property subject to that suit and did not defeat the plaintiff's present claim founded on the 1874 mortgage executed prior to the earlier suit.

Holding and Implications

THE APPEAL FAILS AND IS DISMISSED WITH COSTS.

Direct consequences for the parties:

The court upheld the Judge's findings that, on the facts, Shangaran had received an immediate interest under the deed of Sarvaswadanam which was ratified by Jadavedan, and that in 1874 Shangaran had title to make the mortgage relied on by the plaintiff's father.
The court accepted the Judge's assessment that the arrangement surrounding the 1874 mortgage and the related leases was, on the evidence, a bona fide transaction representing interest on the mortgage debt and not necessarily vitiated by absence of possession by the first defendant.
The court held that the decree in Original Suit 710 of 1875 affected only the property that was the subject of that suit and that consent to be bound by an opponent's oath in that suit did not create a broader estoppel in subsequent litigation beyond the subject-matter of that suit.
Accordingly, the plaintiff's claim to enforce the mortgage/lease arrangements of 1874 was sustained and the appeal seeking to overturn those findings was dismissed.

Broader legal implications: The court applied existing statutory provisions (Indian Oaths Act, Sections 9 and 11) and cited Jenkins v. Robertson for the proposition that determinations made otherwise than by the Court do not create estoppels beyond the subject-matter. The opinion does not purport to lay down a novel principle of law beyond its application to the facts; its rulings were limited to the issues in the appeals before it.

Show all summary ...

1. The facts of this case, so far as they have been ascertained, are as follows : Damodaram Numbudri, the last male owner of the Thiruthil Illam, having no sons, gave his daughter Nangeli in marriage to the second defendant, Shangaran Nambudri, whom he accepted as a Sarvaswadanam son-in-law.

2. [The ordinary incidents to this Sarvaswadanam custom have not as yet been ascertained after any complete inquiry. The Judge refers to two of his own decisions, of which the latter follows the earlier, and the earlier proceeds, not so much on evidence, as on the hypothesis that the custom is a survival of the obsolete practice of constituting as heir the son of an appointed daughter. These rulings cannot then be safely accepted as conclusive. It is agreed that the effect of the custom is to introduce the son into the Mam, to confer on him the status of a son in respect of the property of the Illam, coupled with the obligation of managing, or assisting in the management, of the estate and of supporting the family.

3. The Judge considers, and the appellant's pleader insists, that ordinarily on failure of issue to the son-in-law by the daughter of the family, his interest in the Illam property ceases.

4. The respondent's pleader, on the other hand, denies there is any such divesting of the interest once taken. It would be impossible to determine which view is correct, either in reference to evidence on the record, or in advertence to any sufficient authority known to us. It is, however, unnecessary to arrive at a decision in this case, for the Judge finds, and his finding is supported by the deed of Saravaswadanam, that in this case Damodaram and his wife Savitri conferred on the second defendant an immediate interest in the property of the Illam, analogous to that of a son, and that this gift was ratified after the death of Damodaram by Jadavedan, the nearest natural male heir of the deceased.

5. Nangeli died in her father's lifetime and left no issue, if, as is disputed in this Court, she had any.

6. After the death of Damodaram, Shangaran entered into, or continued in possession of, the lands of the Illam, for which revenue engagements were taken in his name; and he also on several occasions exercised the Urayama rights of the Illam. On July 21st, 1874, the transactions took place which are the foundations of the claim made in this suit. Shangaran mortgaged the lands of the Illam mentioned in the plaint to his younger brother, Kollapratti Jadavedan, father of the plaintiff, Rudran, in consideration of Rs. 2,350. Of this sum, it is alleged Rs. 1,723 were taken to pay off prior encumbrances on the Illam properties, and Rs. 627 were retained by the mortgagor for his own use. [261] On the same date, Jadavedan granted a lease of the mortgaged land to the first defendant, Valia Alimu. This lease the Judge considers was granted to Valia Alimu as a collateral security for Rs. 900 advanced to the mortgagee to enable him to make up the mortgage money; and that it was a bond fide transaction, the Judge regards as proved by the circumstance that Valia Alimu sued and obtained a decree for the amount in Original Suit 609 of 1879. On the same day, July 21st, 1874, Shangaran, the mortgagor, took the lands in lease from Valia Alimu, and the Judge finds that the rents received on the lease by the mortgagee to Valia Alimu and the lease by Valia Alimu to the mortgagor, Shangaran, in effect, represented the interest on the mortgage debt.

7. The Judge also finds it was not until 1875 that any question was raised as to Shangaran's interest in the property of the Illam. In that year, Govinda Warrier, who held some of the lands mentioned in the plaint under a mortgage from Damodaram, and had as was usual, leased them to the mortgagor, brought Original Suit 475 of 1875 on his mortgage and obtained a decree against Shangaran and the fifth defendant, Kunhi Ayappan, the cultivator or tenant. Savitri resisted the execution of the decree, and the Munsif rejected her claim on the ground that she was colluding with Shangaran. She then brought Original Suit No. 716 of 1876 to contest the Munsif's order and obtained an ex parte decree. The Judge stated it as his impression that Govinda Warrier's claim had been satisfied by Shangaran, or the latter would have defended the suit. The plaintiff's father was not a party to Original Suit 716 of 1876, but in the same year in which Govinda Warrier sued, Sayitri instituted Original Suit 710 of 1875, claiming to redeem a small piece of land, which she alleged had been demised to the plaintiff's father on kanam by her husband. The plaintiff's father and Shangaran Nambudri, who was made a party subsequently to the institution of the suit, pleaded that Savitri was not entitled to maintain suit, seeing the Shangaran had by a Sarvaswadanam marriage acquired the property of the Illam; and they also pleaded that Shangaran had in 1872, when managing the affairs of the Illam, created a further charge on the property. Savitri denied the title of Shangaran, and issues were framed accordingly.

8. It was represented to the Munsif that the plaintiff's father and Shangaran agreed to be bound by the oath of Savitri taken in a certain temple.

9. Savitri, on June 27th, 1876, appeared in the temple and swore that when her daughter was given in Sarvaswadanam marriage to Shangaran, he received neither possession of the Illam property nor authority to manage it; that he had at no time enjoyed independent powers of management, and was not at any time exercising any such powers (exhibit 14). Savitri having given this deposition, obtained a decree on June 28th, 1876 (Exhibit 15), which she executed in October 1876 (exhibit 16)

10. A copy of a registered receipt (exhibit 7) has been filed by the defendant, in which Shangaran acknowledges that he has received from Savitri Rs. 65, paid by her on account of revenue for the Illam lands included in the decree in Original Suit No. 710. This receipt is dated March 20th, 1877, and was registered on the following day. The Munsif suspects it to be a forgery, while the Judge regards it as genuine. In 1878 Savitri executed several deeds (exhibits 3, 4, and 5), mortgaging the lands of the Illam to the sixth defendant; but the Judge considers the alleged consideration for these deeds is fictitious. The cultivating tenants have, in view of these deeds, attorned to the sixth defendant.

11. In 1879, the first defendant brought Original Suit No. 609 of 1879 against the plaintiff and Shangaran to recover the sum of Rs. 900, alleged to have been advanced by him on the occasion of the mortgage of 1874, and obtained a decree (exhibit 26), and in the same years Savitri died. In November 1879 the plaintiff instituted this suit, claiming to recover possession of the lands and arrears of rent in virtue of the title acquired by his father under the mortgage of 1874 and of the contemporaneous lease.

12. The first and sixth defendants denied the title of Shangaran to execute the mortgage, the first defendant asserting in explanation of his connection with the mortgage, that he was unaware of the circumstances; and both these defendants relied on the decision in Original Suit 710 of 1875, as precluding the plaintiff from asserting that Shangaran had any title, by which the mortgage could be supported.

13. The Munsif, and, in appeal, the Judge, have held that the decree in Original Suit 710 of 1875 can affect only the property which was the subject of the decree in that suit, and on the other evidence, they have held it established, that in 1874 the second defendant had title to make the mortgage, and that the plaintiff has established his claim to enforce the terms of the lease.

14. The Judge considers that the second defendant, in order to evade his creditors, set up Savitri to contest his title, and that she was eventually gained over by the sixth defendant to give substantial effect to proceedings which had been designed to conceal the title of the second defendant.

15. The sixth defendant, in second appeal, argues that, inasmuch as the Judge has found that the mortgage-deed of 1874 did not exhibit the terms of a real transaction, and that possession was not given to the lessee, the suit should have been dismissed. The Judge, it may be admitted, suggests that the arrangement was complicated, and that it was purposely so continued with a view to defraud some one. We do not understand the Judge to find that the mortgage was not made for substantial consideration. The apparent complication is explained by the Munsif and, as it seems, correctly as occasioned by the desire to give the first defendant security at least for the interest on the advance made by him. Standing between the mortgagor and mortgagee, he could enforce from the former, who was to remain in possession, payment of the rent which represented the interest, and if default were made in its payment, obtain possession. Absence of possession on his part was compatible with the arrangement contemplated by the deeds and is not of itself a badge of fraud.

16. It is objected that the Judge should not have determined whether the mortgage was a real transaction, but he could not have avoided doing so, when the whole transaction was impugned and the issue was purposely framed on the averment.

17. It is next objected that the Judge should not have expressed any opinion as to the validity of the title of the sixth defendant. It appears to us he could hardly have avoided adverting to the whole of Savitri's conduct and explaining it in a manner consonant with his conclusions--it had a bearing on the question as to the bona fides of the litigation between Savitri and the second defendant.

18. Nor can we allow there is any force in the objection that the deed executed by Damodaram and Savitri as a deed of Sarvaswadanam has been misconstrued.

19. Although the terms of the instrument are somewhat ambiguous, yet, Interpreted in view of the custom and of the conduct of the parties, we agree that they are sufficient to constitute Shangaran heir to the estate in the place of a son.

20. The objection that the second defendant was ousted by reason of the ex parte decree obtained against him in Original Suit 716 of 1876 cannot affect the title of the plaintiff's father, who was no party to the suit, and who claims under a mortgage executed before the institution of the suit.

21. The last objection, which we decide with some hesitation is, the objection that the Judge has refused their due effect to the proceedings in Original Suit 710 of 1875.

22. The decree in that suit affects, it is true, only the property which is the subject of it; but the appellant is entitled to contend that the determination of all questions of fact, directly and substantially in issue in that suit, binds the parties to the suit, and therefore the present plaintiff, who was then the first defendant, that the question, whether Shangaran had acquired a title to the property of the Illam, was directly and substantially put in issue, and that it was determined in the negative.

23. To this argument, it is answered that there was no determination of the issues, but that the then defendants consented to be bound as to the subject of the suit by the oaths of their opponents.

24. The Indian Oaths Act, Sections 9 and 11, declares that, if any party to any judicial proceedings offers to be bound by any oath or affirmation made in the form therein mentioned, such oath may be administered and the evidence so given shall, as against the person who offered to be bound as aforesaid, be conclusive proof of the matter stated.

25. The oath having been taken, the Court is constrained to accept the statements of the deponent as true and, cannot exercise its judgment in this matter. It would be highly dangerous to regard the decision of an issue so arrived at as an adjudication, operating as an estoppel in any future proceedings. The terms of the Act indicate that the party consents to be bound only in respect of the subject-matter of the pending proceedings. A party may be willing to risk so much on the conscience of his ' opponent. He knows what, at the outside, his loss will be, but it would be unreasonable to suggest that he should bind himself further than is necessary for the decision of the pending suit, and, as we have said, we do not understand that the law compels us to hold that he is bound to a greater extent.

26. Jenkins v. Robertson L.R. 1 Scotch Appeals 117 is an authority, that, under British law, a determination of matters in issue, otherwise than by the Court, is not a indicium and will not operate to create an estoppel. We hold, then, that the effect of the proceedings in Original Suit No. 710 of 1875 is not greater than the Judge has held it to be.

27. The appeal fails and is dismissed with costs.