N ARTHANARI GOUNDAN Vs. RAMASAMI GOUNDAN

JUDGEMENT

(1.) The plaintiff as reversionary heir of the son of one Marakathammal sued for a declaration that a deed of gift executed by her to one Ramaswami Goundan was not valid and binding on him and for partition. The principal question in this appeal is whether the gift by Marakathammal to Ramasami Goundan, (the transaction as evidenced by Exhibit I) is valid and binding on the plaintiff Ramasami Goundan, the donee, as the next presumptive reversioner to succeed on the death of the donor. The document Exhibit I runs as follows;--" As you have performed the funeral rites to my husband, the deceased Arthanari Goundan and my son the deceased Ramasami Goundan, as you have the right to inherit as surviving heir, all my properties after my death, as you have spent on my behalf and on behalf of my son, your own, and after borrowing monies required for conducting O.S. No. 5 of 1883 on the file of the District Court, Salem, conducted by my son, the deceased Ramasami Goundan, as plaintiff and all other Civil and Criminal proceedings in connection therewith in other Courts, as I am advanced in age and unable to supervise and manage the Mitta and other lands and to collect the amount due on the hypothecation debt bonds, and as you have consented to my possession and enjoyment with all rights and interests of all the properties other than those mentioned below which belong to me, under the Razinama decree in O.S. No. 5 of 1883 on the file of the District Court of Salem, and which I am enjoying and of which I make a gift to you, and as you have promised to support me during my life-time at your expense and to have the marriage of my unmarried daughter performed according to our customs and to perform all Siru and Slrappu to this and to another daughter who has been married, I have made a gift of the undermentioned properties valued at about Rs. 10,000 to you who is the elder brother s son of my husband the deceased Arthanari Goundan, and delivered possession to you. Therefore you shall in comfort possess and enjoy the undermentioned properties from generation to generation and with powers to give away by gifts sale etc. I have no manner of rights or interests over the said gift properties. To this effect is the deed of a gift executed by me with my consent." This document it is contended on behalf of the appellant should be taken as representing a transaction by which Marakathammal surrendered the whole of her life estate to the nearest reversioner, Ramasami Goundan and by which he returns to her the properties other than those which are described as given to him. In that way, it is said, we have here a surrender to the reversioner of the whole of the life estate without a reversion and a re-transfer to the widow of a portion of the property. I think it is perfectly clear on a proper construction of the document that, though the result may have been the same as if there had been a gift in return, those gifts were not actually made--what was done was merely that a portion of the property valued at Rs.- 0,000 was handed over to the reversioner in consideration of his having undertaken to do something for the widow and among others, I may take it, his having undertaken not to raise any objection to her disposal of the other party in case she chose to deal with it as if she were an absolute owner; that may be what is meant by the words " and as you have consented to my possession and enjoyment with all rights and interests" I take it then there is no surrender of the whole with re-conveyance of this part. Then if that is the construction of the document, the case is clearly a case of surrender of a part of the widow s estate to the nearest reversioner and therefore is invalid according to the Full Bench decision in Marudamuthu Nadar v. Srinivasa Piilai (1897) I.L.R. 21 M. 128. Now we are bound by that decision unless we can hold that it has been overruled by the Privy Council decision in Bagranji Sing v. Manikarnika Baksh Singh (1907) I.L.R. 30 A. 1 which was a case in which alienations to third parties made by a widow were ratified by certain deeds by the next presumptive reversioners. The Privy Council held that was sufficient to validate the alienation. As I have said before in Muthuveera Mudaliar v. Vythialinga Mudaliar (1908) I.L.R. 32 M. 206 that that decision did not in my opinion weaken the authority of the Full Bench case in Marudamuthu Nadar v. Srinivasa Pillai (1897) I.L.R. 21 M. 128. The Full Bench case is cited in that judgment and the portions of Mr. Subramania Aiyar s judgment in which he refers to the necessity of the surrender of the whole life estate is quoted by their Lordships of the Privy Council. I am unable to hold in spite of the fact that what was held to have been ratified actually was a series of partial alienations that their Lordships meant and overruled the decision in Marudamuthu Nadar v. Srinivasa Pillai (1897) I.L.R. 21 M. 128 as to surrender to the next reversioners and cannot find anything in the judgment justifying the view that that decision is not binding on us still. I think the same opinion has been expressed by the Chief Justice and Mr. Justice Sankaran Nair. I think I must therefore hold that I am still bound by the decision in Marudamuthu Nadar v. Srini- vasa Pillai (1897) I.L.R. 21 M. 128. and consequently this partial surrender was not valid against the plaintiff. Then it is suggested that the Plaintiff is estopped in some way by having taken a hypothecation in respect of a portion of the land to which this gift applied. I do not think there is any estoppel in these matters.

(2.) Then the other question which was raised is whether the share which, in the event of partition the plaintiff should get is properly the one half share which the District Judge has given him : and that contention is based upon this, the 3rd defendant like the plaintiff is a great grandson of Sengotti Velu Gounden who is the grand father of the last male holder. The plaintiff, 1st defendant and 3rd defen" dant are all great grandsons of Sengothavelu, the plaintiff and the 1st defendant and the last male owner are descended from him through his son by his second wife; while the 3rd defendant is descended from him through his son by his first wife. The question , then is whether the 3rd defendant by reason of his being related to the last male holder through a wife different from the lady who was the progenitor of the line to which the plaintiff, 1st defendant and the last male owner belong, is excluded by the plaintiff and the 1st defendant from sharing in the property of the last male holder. As said the plaintiff and the 1st and 3rd defendants are of the same degree. They are all connected with the last male holder as the descendants of Sengothivelu Gounden and they are all of the same degree of remoteness from Sengotti Velu Gounden. It has been held in Subba Sing v. Sarafraz Kunwar (1896) I.L.R. 19 A. 215 in which the parties stood in very much the same position as in this case, that in the same circumstances the whole blood would exclude the half. In the case of Sham Singh v. Krishna Sahai (1907) I.L.R. 30 A.J. (P.C.). Mr. Justice Mookerjee after discussing the question at length has stated that he is of the same opinion in holding that a paternal uncle of the half blood is excluded by a paternal uncle of the whole blood. On the other hand in the case on which the appellant relies Vithal Rao v. Ram Rao (1899) I.L.R. 24 B. 317 it was held that a paternal uncle of the half blood was not excluded by a paternal uncle of the whole blood. The view taken being that the difference between the half and the whole blood when preference is made, should be held to have application only to the special cases which are expressly referred to in the Mitakshara. The other view is held in Calcutta and Allahabad as expounded fully by Mr. Justice Mookherjee in the case to which I have referred, and I prefer to accept the conclusion arrived at in those Courts. The effect of that will be that the District Judge is right in giving the plaintiff one half of the estate and in my view, therefore, this appeal must be dismissed with costs.

(3.) There is a Memorandum of objections in which the 3rd defendant objects that he should not be made to pay the costs of the plaintiffs. He has succeeded in the whole of his claim as regards one half of items Nos. 1 and 2 and as to the rest of the property in dispute, he had made no claim in his written statement. He should not therefore be made to pay the costs of the plaintiff at all. He does not ask for costs in the Court below. The memo of objections will therefore be allowed with costs and the decree modified to the extent of striking out the provision that the 3rd defendant is to pay the costs of the plaintiff. Sadasiva Aiyar, J.