MARLA SUBRAHMANYAM Vs. CHELIKANI CHINA SOORAYYA

JUDGEMENT

(1.) I agree entirely with my brother Viswanatha Sastri J, both in his reasoning and in his conclusion. I only wish to add a few words about the decision of the Judicial Committee in Magniram Sitaram v. Kasturbhai Manibhai, 46 Bom. 481 : (A. I. R. (9) 1922 P. C. 163), because we made the reference to the Full Bench on account of certain observations in it which were understood in a particular way by the Division Bench in Govindu v. Venkatapathi, I. L. R. (1947) Mad. 105 : (A. I. R. (33) 1916 Mad. 427). In my opinion, that decision did not lay down any presumption of law which could be applied without reservation to the care of an alienation by a Hindu widow. The essential difference between an alienation by the trustee of a religious or charitable endowment and an alienation by a limited owner like a widow is that in the former case the alienation is either valid or invalid whereas in the latter case an alienation per se would not be invalid in so far as it is a transfer of the limited interest of the widow. The fact that during the lifetime of the alienating trustee the alienee might not be disturbed does not mean that the alienation is valid to any extent. It mast not be overlooked that even if the alienating trustee does not challenge the validity of the alienation it will be open even during his life time for persons interested in the trust to sue for setting aside the alienation. In case the Court declares the alienation to be invalid, it will be invalid ab initio. It will not be valid even during the lifetime of the alienating trustee. In the case of a widow, the position is quite different. Even if a reversioner obtains a declaration that an alienation by her will not be binding on the reversion, nevertheless, the alienation will hold good during the lifetime of the widow. The question, therefore, with reference to an alienation by a trustee will always be whether it is valid or invalid. In the case of a trustee, it is the act of the holder of an office whose validity has to be determined. In the case of a widow, it is the amplitude of the estate which passes to the transferee that has to be determined.

(2.) The decision in Magniram Sitaram v. Kasturbhai Manibhai, 46 Bom. 481 : (A. I. R. (9) 1922 P. C. 163) enunciated the well-known doctrine of the presumption of a lawful origin in support of proprietary rights enjoyed peacefully for a long period. This appears clearly from the way in which their Lordships of the Judicial Committee themselves referred to it in the later case of Mahomed Mazaffaral Musavi v. Jabeda Khatun, 57 Cal. 1293 : (A. I. R. (17) 1930 P. C. 103). Their Lordships alluded to the fact that the land had been held for the greater part of the century at the original low rent continuously without any disturbance of the tenants and anything to show that either party to it regarded the right of the tenants as other than permanent while circumstances were proved which offered to establish the contrary and to the fact that it became completely impossible to ascertain the circumstances which caused the original grant to be made. They then observed as follows:

(3.) A distinction was sought to be made before them that the case in Magniram Sitaram v. Kasturbhai Manibhai, 46 Bom. 481 : (A. I. R. (9) 1922 P. C. 163) was concerned with a Hindu mutt, while the later case was as regards a Mahomedan wakf. But their Lordships thought,