KATTAMOODY RAGHUPATHY Vs. KATTAMOODY KANNAMMA

JUDGEMENT

(1.) The subject matter of this suit is a house. One Venkatarayudu left a widow Seethamma. She adopted one Madhavarayudu, the 1st defendant in this suit. Ven-katarayudu s reversioner according to Hindu Law was the plaintiff. He instituted a suit to set aside the adoption of Madhavarayudu. That suit succeeded. After the termination of the suit two documents came into existence. One of them is Ex. D. and the other is Ex. E. Ex. D. was executed by the plaintiff in favour of the widow. According to that document he received Rs. 400/--from the widow; and then the documents state "I have relinquished my reversionary right and claim in the said property (i.e. the property of Venkatarayudu.) Therefore you shall enjoy the said property with power to dispose of the same by means of gift or sale; but neither I nor my heirs shall have anything whatever to do therewith." This document was executed on the 1st May 1896. On the 19th of the same month the widow Seethamma executed a deed of settlement in favour of the 1st defendant Madhavarayudu, whereby she settled on him certain cultivated land and the house in question in this suit. There was subsequent litigation between the parties. The plaintiff had executed mortgages in 1892 of his right in Venkatarayudu s property which was then only a reversionary interest. The mortgagee obtained decrees and purchased the properties mortgaged which however did not include the house in dispute. He also attached the house as property belonging to the plaintiff whose right had then ripened into an interest in possession, the widow having died previously. The question arose, whether the relinquishment deed Ex. D. would vest the property relinquished by the plaintiff in the widow, so as to make it impossible for the creditor to attach it as the plaintiff s property after the widow s death. this Court in second appeal held that as regards the creditor the right to the property was in the reversioner, notwithstanding the relinquishment deed. See Narasimham v. Madhavarayudu . In that judgment any question between the reversioner and the transferee from the widow, that is Madhavarayudu, was reserved. The learned Judges observed. "No question arises in this case as between the reversioner who purported to make a transfer and the transferee." The plaintiff in that suit was the transferee and the 1st defendant there was the creditor. The 2nd defendant was the plaintiff. Any question between the plaintiff and the 2nd defendant there was expressly left undisposed of. That is the question which now arises for decision.

(2.) Shortly put, the question is whether the plaintift is estopped by reason of Ex. D from disputing the alienation in favour of the defendant Madhavarayudu made by the widow. The District Munsiff held he was not: the District Judge held that he was. Now it is settled law that, if a reversioner for consideration assents to an alienation made by a widow or ratifies it subsequently, he would be estopped from disputing the alienation. In this case it is quite clear that there was no specific assent to this particular alienation. The question is, was there an assent in such shape as would furnish the 1st defendant with a plea of estoppel. 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. The language here in Ex. D. does not specifically refer to any alienations contemplated by the widow. The provision is "therefore you shall enjoy the said property with power to dispose of the same by means of gift or sale." In other words the absolute estate with power of alienation was to vest in the widow. They themselves cannot be said to refer to any-contemplated alienation at all, but only describe the estate which was to vest in the widow. But in the circumstances of this case I can entertain no doubt that the object of the deed of relinquishment and of the settlement was to enable the widow to deal with the property in favour of the defendant whose adoption made by her, had not been upheld by the Courts. It is quite true, as stated by Mr. Narayana Rao that in the lower Courts it was not contended that Ex. D. & E. were parts of the same transaction and that Ex. D. was executed with a view to enable the widow to settle her property on the defendant. But it is impossible for me to entertain any doubt that it must have been so. The circumstances put it beyond any doubt. It is doubtful whether it would not be sufficient, for purposes of estoppel, for a reversioner to empower the widow to enjoy the property as her absolute property with powers of alienation. I am by no means clear that it should not be held that in such a case he practically gives consent to any alienation that she may make, although the terms of the document may not show that any alienations are actually contemplated. I do not, however, rest my judgment on this ground and I would prefer to reserve to myself the right to consider that question again when it should arise for decision. I rest my judgment on the ground that Ex. D. must have been executed with a view to enable the widow to make provision for Madhavarayuda and that the plaintiff did assent to any alienation which the widow might make in his favour. In the Full Bench case Rangappa Naik v. Kamti Naik (1907) I.L.R. 31 M. 366 the assent by the reversioner was to any alienations that the widow might make and not to the particular alienation which was contemplated. All the learned Judges who took part in that judgment were of opinion that for purposes of estoppel that was sufficient. I think the principle of that case applies and the plaintiff must be held to be estopped.

(3.) I should refer to an argument of the learned Vakil for the appellant, that it should not be assumed in this case that the plaintiff received consideration for executing the relinquishment. The document says he did receive it; a note made by the Sub-Registrar shows that it was paid before him. Plaintiff no doubt denied it in his plaint. An issue was framed on the question but plaintiff did not adduce any evidence to support his allegation. It does not appear that the parties had not an opportunity of adducing any oral evidence that they might choose. The Munsif says that the matters in dispute were put so clearly in the course of previous litigations that neither party adduced oral evidence. I am not able to say that any thing said or done by the District Munsif, induced the plaintiff to abstain from adducing any evidence that he could. I must therefore proceed on the footing that he did receive consideration. The Munsif, in fact, says in his judgment that he did receive it and no objection has been raised in the memo of second Appeal to the assumption that the plaintiff did receive the sum of Rs. 400- in consideration of executing Exhibit D.