TMI Blog1918 (12) TMI 4X X X X Extracts X X X X X X X X Extracts X X X X ..... y resisted this claim. The first defendant is now dead, and the second defendant is in his right, and is the sole respondent before the Board. 3. The grounds on which the claim was resisted arise out of the following facts. After the death of her husband Marakammal entered into possession of the estate. At that time Ramasami Gounden (designated in the pedigree as the alienee ) was the nearest reversionary heir. Marakammal executed in 1893 in his favour a conveyance of parts of the estate including the disputed part of the Konganapuram mitta. The deed, so far as material to the present questions, ran as follows: As you have performed the funeral rites to my husband, the deceased Arthanari 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 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reason of his taking the conveyances and mortgage above set forth, or was at least estopped from saying that the deed was bad. 8. Appeal being taken to the High Court, the case was heard by Miller and Sadasiva Aiyar JJ. Miller J. agreed in omnibus with the District Judge. Sadasiva Aiyar J. dissented from this review, and considered that the deed by Marakammal was good, it being, in his view, a correct proposition 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. 9. The judges thus differing in opinion, the appeal was dismissed. It was then again appealed under the Letters Patent to a Full Bench, and was heard by Wallis C.J. and Seshagiri Aiyar and Kumaraswami Sastri JJ. The learned judges all agreed with Miller J. and the District Judge as to the law applicable to the deed, but they held that the plaintiff was estopped from denying its validity in respect of the mortgage transaction. The suit was therefore dismissed as against the present respondent. Appeal was then taken to this Board. 10. The first matter to be considered is the dictum of Sadasiva Aiyar J., th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 13. To consider first the power of surrender. The foundation of the doctrine has been sought in certain texts of the Smritis. It is unnecessary to quote them. They will be found in the opinions of the learned judges in some of the cases to be cited. But in any case it is settled by long practice and confirmed by decision that a Hindu widow can renounce in favour of the nearest reversioner if there be only one or of all the reversioners nearest in degree if more than one at the moment. That is to say, she can, so to speak, by voluntary act operate her own death. The landmark of decision as to this may be taken as the case of Behari Lal v. Madho Lal Ahir Gyawal L.R. 19 I.A. 30, where, in delivering the judgment of the Board, Lord Morris said: It may be accepted that, according to Hindu law, the widow can accelerate the estate of the heir by conveying absolutely and destroying her life estate. It was essentially necessary to withdraw her own life estate so that the whole estate should get vested at once in the grantee. 14. That this was no new doctrine but was only the final sanction of a long series of decisions may be taken from the opinions of Garth C.J. and Mitter J. in Nob ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cessity. Now, necessity must be proved, and the mere recital in the deed of alienation is not sufficient proof: Banga Chandra Dhur Biswas v. Jagat Kishore Chowdhuri (1916) L.R. 43 I.A. 249. An equitable modification has also been admitted in the case where the alienee has in good faith made proper inquiry and been led to believe that there was a case of true necessity. 8. Thus far if the alienation stands alone. But it may be fortified by the consent of reversionary heirs. The remaining question is what is the effect of such consent? If the alienation be total, and the reversionary heirs be the nearest, it falls within the first division. But what if it be partial? 9. The matter is mooted in the case of the Collector of Masulipatam's Case (1861) 8 Moo. I.A. 529, just mentioned. Their Lordships there said: On the other hand, it may be taken as established that an alienation by her which would not otherwise be legitimate may become so if made with the consent of the husband's kindred. The exception in favour of alienation with consent may be due to a presumption of law that when that consent is given, the purpose for which the alienation is made must be proper. 10. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cial Committee examined the various cases which had been decided from the beginning. They set forth the cases of surrender and those, of partial alienation without discriminating for the purposes of the case before them between the two principles. They did not in any way throw doubt on the former judgment in Behari Lal's Case, which settled that a surrender must be total. Having set out the cases, the judgment, after quoting the opinion of Ranade J., in Vinayak v. Govind (1900) I.L.R. 25 B. 129: The consent of the reversioners must be of such kindred the absence of whose opposition raises a presumption that the alienation was a fair and proper one. continues: The principle being thus admitted by the High Courts in India the question of the quantum of consent necessary only remains. And then, as the consent in that case had been given by the whole of the reversioners then in existence, it decided that the Allahabad rule was too strict, and that the transaction must stand in a question with two reversioners who had not been parties to the transaction, but were sons of those who had. The judgment affirmed the Calcutta as against the Allahabad rule, but it did not particularize ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tances the question of necessity does not fall to be considered. But the surrender must be a bona fide surrender, not a device to divide the estate with the reversioner. (2.) When the alienation of the whole or part of the estate is to be supported on the ground of necessity, then if such necessity is not proved aliunde and the alienee does not prove inquiry on his part and honest belief in the necessity, the consent of such reversioners as might fairly be expected to be interested to dispute the transaction will be held to afford a presumptive proof which, if not rebutted by contrary proof, will validate the transaction as a right and proper one. These propositions are substantially the same as those laid down by Jenkins C.J. and Mookerjee J. in Debi Prosad's Case I.L.R. 40 C. 721. It follows that their Lordships cannot agree with a good deal of what was said in Bangappa Naik v. Kamti Naik (1906) I.L.R. 31 M. 366. 16. It now becomes necessary to fix what was the character of the deed executed by Marakammal in favour of Ramasami Gounden. All the judges in the courts below concurred in holding that it was not a total conveyance of Marakammal's property, and that was scarc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the judgment. But apart from that, if Bajranji Singh's Case had been decided on the ground of estoppel, it affords no parallel to the present case. In that case all the reversioners in being had consented to the alienations. They were bound by their own consent, and the post nati were held to claim through those that were bound. Here the plaintiff never consented to the deed, nor is his claim traced through Ramasami even in the matter of descent. 19. No doubt there is another view which is not estoppel, but is expressed by one learned judge as ratification. It is scarcely that, though it might be hyper-criticism to object to the use of the word. What it is based on is this. An alienation by a widow is not a void contract, it is only voidable: Bijoy Gopal Mukerji v. Krishna Mahishi Debi (1907) I.L.R. 34 C. 329. Now, in all cases of voidable contracts there is a general equitable doctrine common to all systems, that he who has the right to complain must do so when the right of action is properly open to him and he knows the facts. If therefore a reversioner, after he became in titulo to reduce the estate to possession and knew of the alienation, did something which showed ..... X X X X Extracts X X X X X X X X Extracts X X X X
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