ARUNACHALA MOOPPANAR Vs. ARUMUGHA MOOPPANAR AND ORS.

JUDGEMENT

(1.) THE properly in dispute in this litigation formed part of the estate of one Pattakarathi Moopanar on whose death his widow Esakki Animal succeeded to a widow's estate. By a gift deed Ex. D. 1 dated 12 -12 -1936 she gifted away the suit and other properties in favour of her brother, defendant 1. Nearly ten years later, by Ex. P. 5 dated 10 -2 -1946, she surrendered her estate in favour of the nearest reversioner of her husband, the plaintiff. By Ex. D. 6 dated 29 -4 -1946 father of defendants 4 to 7 purchased for consideration 32 cents of land which are in dispute in this suit from defendant 1, the donee under Ex. D. l. The suit out of which this second appeal arises was filed by the plaintiff for recovery of possession of the 32 cents of land on the strength of the surrender deed, Ex. P. 5, executed in his favour by the widow Esakki Animal. Both the lower Courts have upheld the contention put forward by the alienees that it is not open to a reversioner, to whom the widow has surrendered the estate after alienating a part of the property to recover possession of the alienated property on the strength of the surrender deed until the death of the widow.

(2.) IN this case it is admitted that the widow Esakki Animal is still alive and that if the contention of the alienees who claim under defendant 1 is accepted, then the suit has to be dismissed.

(3.) BUT Mr. K.V. Venkatasubramaniam for the appellant contends that the instant case is not one of alienation for consideration by the widow but is one where the widow has voluntarily made a gift of a portion of her husband's estate in favour of a donee. Such being the case the learned counsel contends that the principle enunciated in the cases above mentioned cannot be applied to this case. But we find that in - - : AIR 1927 Mad 429 (G) Curgenven J. had to consider a similar case and the learned Judge says that what is applicable to alienees for consideration must apply with equal force to gifts and donations. Mr. Venkatasubramaniam wants to question the very foundation of the decision in - -, AIR 1917 Mad 473 (A) on the footing of the expressions of opinion by Monkerjee J. in - - 'Debi Prasad v. Golap Bhagat',, 40 Cal 721 (K), followed and adumbrated in the judgment of D.N. Mitter J. and B.N. Rao J. in - - Ramakrishna v. S.M. Kausalya Mani',, AIR 1935 Cal 639 (L). The learned Judges of the Calcutta High Court were of opinion that the basic principle of the surrender by a Hindu widow of her husband's estate is not founded on judicial decisions at all but can be traced to the Hindu law -giver Katyayana and, therefore, when the Madras Judges held that the whole doctrine is based upon Judge -made law they have made a fundamental error in the approach to the question.