Posted On by &filed under High Court, Madras High Court.

Madras High Court
Rengan, Minor, By Guardian … vs Palaniyandi And Anr., Minors, By … on 2 February, 1928
Equivalent citations: (1929) 56 MLJ 66
Author: K Sastri


Kumaraswami Sastri, J.

1. This appeal arises out of a suit filed by the plaintiffs as the reversioners of one Sankaralingam Pillai to set aside the alienations made by his widow. Sankaralingam Pillaitlied in 1872 leaving his widow Kanthimathi Ammal, who died in 1911 and daughter Thangammal, who died in 1902. On Sankaralingam Pillai’s death, Kanthimathi Ammal succeeded to the properties and she made the alienation now complained of to the appellant’s father, the 35th defendant in the suit. Two questions were raised : (1) Whether the plaintiffs are the reversioners of Sankaralingam Pillai, and (2) If so, whether the alienation in favour of the 35th defendant is binding. The Subordinate Judge was of opinion that the plaintiffs were the reversioners and that the alienation was not binding. It is contended for the appellant that the plaintiffs’ father who was the next presumptive reversioner received Rs. 600 and executed a deed of release Ex. IV in favour of Kanthimathi Ammal, the widow and Thangammal, the daughter, who was then alive, relinquishing all his rights in the properties including the property now in dispute. The genuineness of Ex. IV is not disputed; nor is it disputed that the plaintiffs’ father received Rs. 600 as stated in that document. The circumstances that led to Ex. IV are set out in the document itself. There were certain properties, which were karnam inam, in the possession of Sankaralingam Pillai and on his death the karnam inam properties were registered in the name of the daughter Thangammal. Objection was taken by the plaintiffs’ grandfather that he was entitled to the inam and that it should be registered in his same and the revenue authorities referred him to a regular suit. In the meantime he died. It is stated in the release deed that the father of the plaintiffs wanted to take steps to file a civil suit but that at the mediation of certain persons this release was executed. It appears from the terms of the release deed that the widow was making alienations, creating encumbrances, mortgages and othis over it and was denying the title of the plaintiffs and their father. The deed of release purports to be an absolute release and the plaintiffs’ father binds himself and his heirs and says that he has no right to or further claim on the property. The Tamil word (sic) suggests any claim which he may be entitled to make on the death of the widow and the daughter. The property now in question is item No. 9 in the document. It is a tiled and thatched house situate in the town of Madura. It is expressly mentioned in the document that the property was purchased by Kanthimathi Animal’s husband Sankaralingam Pillai and was in the possession of his widow. It is clear from this document and from Ex. A-2 that this house could not have been and was not attached “to the inam. The properties attached to the inam are specifically set out and this item is not one of them. It is difficult to see how a house in Madura could ever have formed part of an inam. It is difficult to follow the contention of Mr. Jayarama Aiyar that the parties were under a mistaken impression that the house was a part of the inam property. The document distinctly negatives any such mistake because it specifically states that the house was purchased by Sankaralingam Pillai and that it was in the possession and enjoyment of the widow. It is argued that even if the only right that was released by this document was the reversionary right which the plaintiffs’ father had as the next presumptive reversioner on the death of the widow and the daughter, the agreement is invalid as what he agrees. to release under that document is that he would claim no rights to the property as to which he had only a spes successionis. At the date of the document item No. 1 was agreed to be sold and it was agreed that out of the sale proceeds he should get Rs. 600. The daughter died in 1902 long before the widow and the present alienation was in 1907 after the death of the daughter.

2. The first question is whether this release refers only to a release of the rights which the executant had to the karnam office and the lands attached to it or whether it also refers to the rights which he would have had to the property on the death of the widow. The Subordinate Judge thinks that it relates only to the karnam office and therefore the decisions referred to by the appellant did not apply to the facts of the case, Having regard to the wording and the terms of the document and to the fact that the property was property which was not attached to the office, there can be little doubt that what he released was his claim both present and as reversioner to the property. He releases all his rights whatever they may be reserving no kind of claim that may arise. He got consideration for it. It is unnecessary that, in order to release the rights which he may have to the property, there should be an alienation or an alienation in contemplation at the date of release. Raghnpathy v. Kdnnamma (1912) 23 M.L.J. 363 is an authority for this proposition. It is open to a reversioner to agree not to raise any claim which he may be entitled to make on the death of the widow in respect of the alienation made by her and as he received consideration for the agreement I think that the case falls within the principle of the decision of their Lordships of the Privy Council in Annagowda Patil v. Bhausheb (1927) L.R. 54 I.A. 396 : 53 M.L.J. 350 (P.C). It was held in that case that, where a reversioner enters into an agreement with a widow in respect of properties and is alive at the date of the death of the widow, it is not open to him to question an alienation made by her. In the present case I find it difficult to see how it is open to the plaintiffs to question the alienation on the ground that there are any facts which distinguish the case for the one reported in Annagowda Patil v. Bhausaheb (1927) L.R. 54 I.A. 396 : 53 M.L.J. 350 (P.C.). Their father who was alive for six years after the date of the death of the widow did not question the alienation. He had received consideration; and if he had sued, it is clear that he would have been estopped from disputing the alienation made, and his sons therefore who would not at the death of the widow be entitled to the property cannot claim any right to set aside the alienation. The only question in this case is whether Ex. IV reserves any reversionary right which the plaintiffs’ father had at the date of Ex. IV. The Subordinate Judge has disposed of the case on that ground, and as we differ from him and as there is no other question raised as regards the validity of the sale, we think that the decree of the Subordinate Judge will have to be reversed as regards this item and the suit as regards the 35th defendant dismissed with costs in this and the Lower Court.

Reilly, J.

3. Mr. Jayarama Aiyar has contended that the only right which the plaintiffs’ father, Subbiah Pillai, released under Ex. IV was his existing right, which he claimed at that time, to a half share in the karnam inam property. But 1 agree that, so far as item No. 9 is concerned–and that is the only item with which we are concerned in this appeal–Subbiah Pillai could not have been under any misapprehension that he was dealing with any part of the karnam inam. If that is so, then the only right which he could suppose himself to have had in item No. 9 was his reversionary right, and, so far as Ex. IV deals with his right to that item, he must have been intending to deal with his reversionary right. In Ex. IV he states that he has received Rs. 600 and then he goes on to say : “I have hereby given an out and out release to the effect that neither myself nor my heirs shall have any right to or further claim on the property.” In Ex. IV he does-not explicitly consent to any particular alienation by Kanthimathi Ammal or Thangammal, in whose favour Ex. IV runs, though he does implicitly consent to the alienation of item No. 1 covered by this document, and it has been pointed out to us that D.W. 5 gives evidence that Ex. XX, an out and out sale of another item covered by the document, was executed by Kanthimathi Animal and Thangammal on the very date of Ex. IV and attested by Subbiah Pillai. But apart from that, although there are no words in Ex. IV stating that Subbiah Pillai consents to Kanthimathi Ammal or Thangammal making any alienation by sale or gift or exercising absolute rights in the property, I do not think that we can give proper force to the expressions which he used in the document and which I have quoted unless we understand him to mean that he is thereby consenting to their exercising full powers of sale and gift. In Annagowda Patil v. Bhausaheb (1927) L.R. 54 I.A. 396 : 53 M.L.J. 350 (P.C.) their Lordships of the Privy Council have recently-stated that it is settled law that a reversioner would be precluded from exercising his right to avoid a widow’s alienation either by an express ratification or by acts which treat it as valid or binding. In that case a reversioner who had himself received part of the benefit of a widow’s transaction was held to be estopped from questioning it when he survived her. On what principle can we say that a reversioner is estopped after the reversion falls in to him from questioning a particular alienation of which he has received part of the benefit and to which he has consented and is not estopped when for consideration he has consented to future alienations in general being made by the widow? In Raghupathy v. Kannamma (1912) 23 M.L.J. 363 Mr. Justice Sundara Aiyar says : “It is to my mind quite clear that, if a reversioner for consideration gives general consent to a widow, to alienate and says that she might make any alienation that she pleases it would estop him with respect to any alienation made by her.” With that I respectfully agree. That being so, I agree that this appeal must be allowed with costs.

Leave a Reply

Your email address will not be published. Required fields are marked *

* Copy This Password *

* Type Or Paste Password Here *

89 queries in 0.190 seconds.