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Madras High Court
Kalliyanasundaram Pillai, … vs Subba Moopanar Alias … on 21 October, 1902
Equivalent citations: (1904) 14 MLJ 139


1. This a suit on an hypothecation bond (Exhibit A) executed on the 4th November 1886, by Athakutti, the senior widow of the last male owner of the property in favour of Appavu Moopanar; a deceased undivided member of the plaintiff’s family. The bond was repayable on the 4th November 1887 with interest at 12 per cent to that date and thereafter at 15 per cent. The 1st defendant Sellathachi, is the surviving junior widow of the deceased owner and defendants 2 and 3 are the reversionary heirs in whose favour the 1st defendant executed an instrument of renunciation (Exhibit 7) in 1898 and who are joined in the suit as being in possession of the property jointly with the 1st defendant. The defendants 2 and 3 pleaded that the mortgage was without any lawful consideration, in that the money was not in fact lent. The Subordinate Judge, however, gave the plaintiffs a decree for the full amount sued for and the 3rd defendant now appeals against the whole decree. A preliminary objection is taken by the respondents that the 3rd defendant has no locus standi to appeal as he is the son of the 2nd defendant, who is the immediate reversionary heir. We overrule the objection. Both the 2nd and 3rd defendants were joined as deriving title under a settlement made by the 1st defendant and being in enjoyment of the property jointly. The decree proceeds on a ground common to both the defendants. That being so, it was competent to the 3rd defendant to appeal against the whole decree under Section 540, Civil Procedure Code. The onus of proving that consideration was in fact paid and that the loan was raised for a purpose binding on the junior widow and the reversionary heirs, clearly lies on the plaintiffs and the fact that the 1st defendant by her written statement fully supports the plaintiffs in no way affects the onus. We cannot agree with the Subordinate Judge that the plaintiffs have satisfactorily proved either the payment of the whole consideration or that the transaction was one beneficial to the estate and as such binding on the defendants. The consideration for Exhibit A is made up of two sums, viz., Rs. 1,524 and Rs. 975. The former is said to be the principal with interest of the sum secured by Exhibit C, a simple mortgage for Rs. 1,500,dated 15th September 1886 and executed by the senior widow in favour of the said Appavu. Assuming that there was in fact a payment of the whole or any portion of the consideration for Exhibit C, we are clearly of opinion that the amount was not borrowed for a purpose beneficial to the estate or that Appavu made proper enquiries and bonafide believed that the money was required for the benefit of the estate. The purpose is stated to meet the expenses of O.S. No. 24 of 1886, which the senior widow and she alone, brought against one T. Saminatha Chetty for the redemption of certain lands mort-gaged to him for Rs. 10,000 by the widow’s deceased husband. The junior widow was impleaded as 2nd defendant and both she and Saminatha put in written statements giving particulars of the settlement made on the 15th June 1886 between the two widows on the one hand and Saminatha on the other, whereby the equity of redemption was released in favour of Saminatha for substantial consideration. If the specific statements made in the written statements were false, the senior widow would certainly not have withdrawn the suit as she did, tut would have prosecuted the claim with success. We find, however, that on the 27th February 1887 she executed a release (Exhibit 15) reciting among other things that her claim was unfounded and withdrew the suit on payment of Rs. 1,100, of which Us. 1,000 was in the form of a pro-note. These proceedings therefore clearly show that she did not bring the suit believing that she had a bonafide claim, but that she must have been set up to make up a false claim by way of speculation and even if the whole of the sum of Rs. 1,100 was really paid to her, it would have hardly left any margin beyond defraying the costs of the suit. Appavu also must have been aware of the pleadings in the suit at the time when Exhibits C and A were obtained and there is no evidence that he made any enquiry of the junior widow, who did not join in the suit, bat resisted it, or that he was otherwise led to think that the suit was a bonafide one for the protection of the estate. We must, therefore, disallow this item, at any rate, against the reversionary interest of defendants 2 and 3 on the death of the 1st defendant.

2. As to the other part of the consideration of Exhibit A, viz., Rs. 975, the recital is that it was received for payment of the maintenance due to Sivagami Achi and for discharging debts already incurred in O.S. No. 13 of 1881 and O.S. No. 230 of 1881 which terminated in second appeal in 1886. Sivagami Achi had a decree for the maintenance and there is evidence that the sum of Rs. 200-0-0 was, in fact, paid into Court on this account. We find that this sum was borrowed for a purpose binding on the estate and should be allowed to the plaintiffs with interest as provided in Exhibit A from the date of Exhibit A. It is also proved by Appavu Pillay that he received Rs. 770 on the date on which Exhibit A was executed, in discharge of Exhibit B (1), a pro-note, dated 30th December 1883, executed in his favour by the senior widow. He also proves that out of the sum of Rs. 575 which he lent under Exhibit B (1) Rs. 452 was paid on the same date in discharge of Exhibit B, a pro-note dated 5th November 1882 for Rs. 400, in favour of Saminatha Chetty and executed by both the widows. The execution of Exhibit B by both the widows is proved by the plaintiff’s 3rd witness and he also proves that the two sums, making up Rs. 400, therein recited as lent for the conduct of O.S. Nos. 3 and 230 of 1881, were spent for those suits. The suits were brought by third parties against the widows in respect of their late husband’s estate and were successfully defended. Considering that the amount of Exhibit B was borrowed by both the widows and for the purpose of defending the said suits, we may fairly hold that that amount with interest at 1 per cent, per mensem (the rate in Exhibit B) till date of Exhibit A with future interest at the rate therein provided is binding upon the property mortgaged as against the defendants–but we cannot allow the difference between the sum paid for the discharge of Exhibit B (Rs. 452-10-0) and the sum borrowed under Exhibit B (1)(Rs. 575), as Appavu gives no evidence to support the claim for the remaining consideration for Exhibit B (1).

3. The Subordinate Judge finds that Rs. 500 towards interest due on Exhibit A was paid by both the widows on the 23rd February 1890, which payment is evidenced on Exhibit A. The endorsement purports to be marked in token of signature by both the widows and attested four witnesses.

4. We are unable to accept the finding not withstanding that three of the attesting witnesses have deposed to the payment of the money. This is the only payment either on account of interest or principal ever made during the interval of more than 12 years between the execution of Exhibit A and the institution of the suit and the conduct of the 1st defendant when she executed the renunciation deed in 1898 in omitting to include this debt along with the other debts therein specified, is inconsistent with her having adopted and ratified Exhibit A, as she must necessarily have done if she had joined the senior widow in making a part payment towards that debt. If she had really made such payment in 1890, it is extremely unlikely that she would not have included the debt under Exhibit. A in the list of admitted debts scheduled dill in Exhibit 7. It is clear from Exhibit E (3) that the 1st defendant knew of the existence of a possible claim under Exhibit A and obtained an indemnity from the 3rd defendant’s guardian in case the claim should be substantiated. If she had really paid Rs. 50 J, towards the claim and admitted the debt in writing by signing the endorsement of payment on Exhibit A, she certainly would not have treated the claim as a contingent claim that might possibly be substantiated. She would rather have included it in the list of undisputed debts scheduled in Exhibit VII.

5. The alleged payment by the 1st defendant on account of Exhibit A not being proved, there is nothing to show that she adopted or ratified Exhibit A and the mortgage, therefore, cannot be enforced even in respect of her life estate, as it might be, notwithstanding the renunciation, if she had ratified Exhibit A before executing the renunciation.

6. It was contended on behalf of the appellant, that Exhibit A is totally invalid because the junior widow, who was then estranged from the senior widow, did not join in its execution; and in support of this contention reliance is placed on the decision of the Privy Council in the case in Sri Gagapati Radhamani v. Maharani Sri Pasupati Alakajeswari I.L.R. 16 M. 1. That case, however, is clearly distinguishable from the present. In that case the senior widow when she executed the mortgage was disputing the status of the junior widow as a widow at all and was also contending that the junior widow, if a co-widow, was entitled only to maintenance.

7. It has been held in Jijoyiamba Bayi Saiba v. Kamakshi Bayi Saiba 3 M.H.C.R. 424 (generally known as the Tanjore Rani’s case), that the position of a senior widow does, as in the case of other co-parceners, give her a preferable claim to the care and management of the joint property and to the extent therefore of the two sums already referred to the mortgage under Exhibit A, though executed only by the senior widow, did create a valid charge in favour of the plaintiffs as against the junior widow and the reversionary heirs. The decree of the Subordinate Judge must be modified as above indicated. The appellant and respondents will pay and receive proportionate costs of this appeal and the plaintiffs and defendants will pay and receive proportionate costs of the Court below.

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