N V THIRUVENKIDASWAMI MUDALIAR Vs. PALANI AMMAL

JUDGEMENT

(1.) This Second Appeal is preferred by the plaintiff against the Decree and Judgment of the learned Subordinate Judge of Erode in A.S. No. 8 of 1957 in so far as they are against him. The suit was to recover a certain sum of money due under a promissory note Exhibit A-1, dated 16th March, 1952 and executed by the first defendant. The second defendant is the daughter of the first defendant and had in her favour a deed of surrender Exhibit B-i, dated 22nd April, 1954 and executed by her mother, in respect of certain properties which the first defendant was in possession of as the widow of her husband and certain other properties which belonged to the first defendant as her stridhana properties. The first defendant denied the execution of the promissory note and also the consideration therefor. The defence of the second defendant was that the suit being on a promissory note, she was not a proper party to the suit and that in any case she could not be made liable for the debt due under the suit promissory note. As against this plea the case for the plaintiff was that the second defendant was in the nature of an universal donee and that, therefore, she would be liable for the debts of the first defendant.

(2.) Both the lower Courts found that the suit promissory note was executed by the first defendant and that it was supported by consideration. The trial Court further found that the second defendant was an universal donee and as such was liable to pay the suit debt to the extent of Ammapalayam lands in her hands, which constituted the stridhana properties of the first defendant. On appeal the learned Subordinate Judge considered that the second defendant was not an universal donee and that, therefore, no decree could be passed against her in the suit. The aggrieved plaintiff has preferred this Second Appeal.

(3.) Before me, the learned Counsel for the appellant urged that the lower appellate Court went wrong in its view that the second defendant is not an universal donee. The ground on which the lower appellate Court held that the second defendant was not an universal donee was this. The properties involved in Exhibit B-1 consisted of the first defendant's widow's estate and of the Ammapalayam lands which were her stridhana properties. Exhibit B-1 purported to be a surrender in favour of the second defendant of the said properties. So far as the surrender of the widow's estate by the first defendant to the second defendant is concerned, it cannot be regarded as a transfer or a conveyance of the widow's estate; it could not therefore be said that there was any gift in favour of the second defendant as regards the widow's estate. In this view the learned Subordinate Judge thought that since there was no gift in favour of the second defendant of the whole of the donor's properties including the widow's estate, Exhibit B-1 did not constitute the second defendant as an, universal donee. The learned Counsel for the appellant attacks this view of the lower appellate Court on the ground that it is wrong to say that the first defendant was the owner of those properties which she was in possession of in her capacity as the widow of her husband. He contends that the property inherited by the first defendant from her husband cannot be said to be property which, she owns and. that, therefore, such property would not come within the scope of the words "the donor's whole property" in Section 128 of the Transfer of Property Act. If this contention is. accepted, it would of course follow that the second defendant is an universal donee, inasmuch as there was a gift by the first defendant of her entire stridhana properties, viz., Ammapalayam lands in favour of the second defendant. But it seems to me that the contention of the learned Counsel that the widow is not the owner of the properties which she inherited from her husband is unsound.