E RAJAGOPALACHARIAR Vs. SAMI REDDI

JUDGEMENT

(1.) The plaintiff's suit is for possession of one-fourth share of the family property and for a declaration that certain alienations are invalid. In this appeal the property in dispute is comprised in Schedule B to the plaint. The District Judge has dismissed the plaintiff's suit so far as the B Schedule property is concerned. The plaintiff has preferred this second appeal.

(2.) The first point raised by Mr. Bhashyam for the appellant is, that what was sold to the 58 defendant under his mortgage decree was only the life-interest of the plaintiff's mother. In support of that contention he relies upon Ex. E-3 which is a statement put in by the 2nd defendant in O.S. No. 34 of 1901, who was the mortgagee decree-holder, and who brought the property to sale under his mortgage decree obtained against the plaintiff's mother Alamelammal. One of her suns brought a suit for a declaration that the property was the property of his father and the alienation by the mother was not binding upon him and upon his brothers. After the written statements were put in, the 2nd defendant, the decree- holder, consented to having the properties sold without prejudice to the rights of the plaintiff. The argument advanced by Mr. Bhashyam is that the mortgagee decree-holder by putting in this petition consented to have only the life-interest of the mother sold in execution of his decree. His contention is not supported by the pleadings in the case. Unfortunately the plaint in O.S. No. 34 of 1901 has not been filed in this case, but there is the statement of the 1 defendant, the mother, Ex. E-1, from which it is clear that the plaintiff contended that the property was the property of the father and not that of the mother, and the plaintiff did not set up the contention that even if the property was the property of the mother, she only had a daughter's interest and, therefore, what could be sold was only her life- interest. In paragraph 1 of Ex. E-1 the 1 defendant Alamelammal says: ?" The suit property belongs to the 1 defendant. The plaintiff has no concern and enjoyment whatever therein. It is not even the plaintiff's ancestral property. The 1 defendant got it ancestrally and is enjoying it with patta from 1858." Paragraph 2 makes the matter clear: "The plaintiff's father instituted a suit in O.S. No. 452 of 1898 in the District Munsif's Court, Chingleput, against this defendant for recovery of the suit property and some other property. It was decided that the property belonged to this defendant and the plaintiff's suit has been dismissed." In the light of the pleadings in O.S. No. 34 of 1901 it cannot be said that the plaintiff and his brothers put forward the case that the mother was only entitled to a life- interest as a daughter and they were entitled to the reversion. In the absence of such a contention in the pleadings and in the absence of an issue to that effect it cannot be said that the 2nd defendant consented to selling only the life-interest of the 1 defendant Alamelammal. What he says in Ex. E-3 is, " If there be any right for the plaintiff in the aforesaid properties, I consent to Have the auction sale effected without going against that right. " The meaning of that sentence is, that if the plaintiffs have any claim to the property, that is, as being their ancestral property, such a right would not be affected by the auction sale. It cannot by any process of ingenious reasoning be contended that by Ex. E-3 the 2nd defendant consented or agreed to have only the life-interest of the mother sold in auction.

(3.) The property was purchased by the mortgagee who was the 58 defendant in the present suit. He was in possession from the date of the sale. Alamelammal, the mother of the plaintiff died in 1918. The plaintiff, her third son, has brought this suit for a share of his mother's property and for a declaration that the alienation made by her in favour of the 58 defendant is invalid and is not binding upon him. Ex. XX is the deed of mortgage which was executed on the 7 July, 1896, by Alamelammal in favour of Vijiaraghavachari, 58 defendant. The consideration for the mortgage, Rs. 250, was received for the marriage of her son Jagannathachari. This sum, not having been paid, the mortgagee brought a suit and obtained a mortgage decree, and brought the property to sale. The contention of the appellant is that this mortgage is not binding upon the reversion. It is urged that the mother had considerable property and she could have paid off the mortgage amount out of the income of the property and reliance is placed upon Jiban Krishna Roy V/s. Brojo Lal Sen (1903) ILR 30 C 550 (PC) and Rameswar Mandal V/s. Provabati Debi (1914) 20 CLJ23 Where a woman inherits considerable property as a limited owner she is not entitled to charge the reversion with debts contracted by her when she could have met those debts from the income of. the property. But where the income is not sufficient for her own maintenance or for other purposes, such as pilgrimage to holy places, gifts for the repose of the soul of the person from whom she inherits her property or for other purposes which would be considered necessity under the Hindu Law, a limited owner could alienate the property to the prejudice of the reversion. But where ample funds are in her hands for meeting her own expenses and for all other expenses incidental to the ownership of property, such as payment of cist or rent, she is not entitled to charge the property with her debts to the prejudice of the reversion. In this case the debt was contracted for the marriage of one of her sons. The purpose for which the loan was contracted is clear from the document itself, and it is not suggested either by the plaintiff or by the defendant that the debt was borrowed for any other purpose. The question, therefore, arises whether a limited owner is entitled to charge the reversion with a debt contracted for the purpose of the marriage of her son. No authority is shown for the position that a mother could alienate the property inherited by her own father for the purpose of getting one of her sons married. Mr. Viswanatha Aiyar's contention is that there is a moral obligation to get her son married and therefore she is entitled to borrow for the purpose of getting her son married. There is no obligation under the Hindu Law on the part of a mother to get any of her sons married. The case of a daughter stands on a different footing altogether. It is one of the duties of the father to get his daughter married and settled in life, and in the case of the twice-born the girl has to be married before she attains puberty and therefore the Hindu Law lays the obligation upon the father of getting the girl married, and in order to do so the father is entitled to alienate ancestral property and the sons cannot question his act. But no such obligation is laid upon the father to get any of his sons married and I am not aware of any authority in which it was held that a father could alienate ancestral property for the purpose of gettingany of his sons married. In the case of a mother there is no obligation at all to get any of her sons married by borrowing money on the security of the property inherited by her from her father. In Rustom