MALLA SURIAH Vs. CHOUDHRI SURAN NAIDU

JUDGEMENT

(1.) In this case a certain Ammanna had a widow s estate in the properties of her deceased husband Sanyasi Naidu. After her husband s death the next reversioners were her two grandsons both in the same degree, one called Janakanna and the other Yerranna. The widow purported to adopt Yerranna, and the Courts below have found as a fact that the adoption was bad. She also by Exhibit VII during Yerranna s life-time purported to convey to him the whole of her deceased husband s property. Subsequently Yerranna died and thereupon Ammanna, the widow, alienated with the consent of Janakanna certain properties in favour of various persons. This time the alienations were not of the whole property but only of parts of it. The first point taken for the appellants was that as by Exhibit VII, there was an alienation of the whole estate by the widow, that would be binding if there was proved consent of the next reversioners. Yerranna, of course, consented, because, the surrender was in favour of him. But there is no document in existence whereby any consent by Janakanna was obtained. It is argued that, because he did not object, his consent must be presumed. We cannot accept that argument. We think his consent is a question of fact which must be proved by evidence like any other fact, and the Subordinate Judge in this case weighed such evidence as there was to substantiate the contention that Janakanna consented to the alienation to Yerranna and decided against the contention. He says: It is nowhere stated nor proved that Janakanna assented to that surrender and waived all his rights to the property. The fact that subsequent to Exhibit VII Janakanna chose to join Ammanna in dealing with those very properties after Yerranna s death lends support to the contention that Janakanna regarded Ammanna herself as the owner of the property and joined her in dealing with the property." That is the conclusion arrived at by him, after a consideration of the probabilities in the light of what happened later, that in fact Janakanna never consented to the alienation by Exhibit VII. That being so that alienation is clearly bad. But after Yerranna s death, alienations, as I have already stated, were made by the widow Ammanna at the time when Janakanna was undoubtedly the next reversioner, alienations of parts of the property, and we are asked to say that the consent of the nearest reversioner will conclusively validate the alienations by the widow not merely of the whole estate but of part of it. It is argued that the decision in Bajrangi Singh v. Manokarnika Bakhsh Singh 30 A. 1; 3 M.L.T. 1 (P.C.); 12 C.W.N. 74; 9 Bom. L.R. 1348; 6 C.L.J. 766; 5 A.L.J. 1; 35 I.A. l; 17 M.L.J. 605 has upset the express decisions of this Court and other Courts to the effect that the doctrine that the consent of the nearest reversioner validates alienations is confined to cases where the alienation is of the whole estate. It is said that Bajrangi Singh v. Manokarnika Bakhsh Singh 30 A. 1; 3 M.L.T. 1 (P.C.); 12 C.W.N. 74; 9 Bom. L.R. 1348; 6 C.L.J. 766; 5 A.L.J. 1; 35 I.A. l; 17 M.L.J. 605, when properly examined, is a case of a partial alienation. That is true in one sense and not true in another. It is an aggregate of partial alienations which in their totality comprehended the whole estate and the effect of the transactions as a body was to divest the widow of any interest at all in the estate of her deceased husband. It is quite true that there are observations of the learned Judges in this Court which purport to speculate as to what the effect of the decision of the Privy Council in Bajrangi Singh v. Manokarnika Bakhsh Singh 30 A. 1; 3 M.L.T. 1 (P.C.); 12 C.W.N. 74; 9 Bom. L.R. 1348; 6 C.L.J. 766; 5 A.L.J. 1; 35 I.A. l; 17 M.L.J. 605 may be upon other decisions of this Court rather than treat it as a definite expression of opinion one way or the other. But speaking for myself I do not think that anything in Bajrangi Singh v. Manokarnika Bakhsh Singh 30 A. 1; 3 M.L.T. 1 (P.C.); 12 C.W.N. 74; 9 Bom. L.R. 1348; 6 C.L.J. 766; 5 A.L.J. 1; 35 I.A. l; 17 M.L.J. 605 has unsettled what I think is a clearly established doctrine of Hindu Law in this Presidency, that where a widow alienates part only of the estate of her deceased husband the consent of the next reversioner is not anything more than evidence-- it may be in some cases evidence of great weight and great conclusiveness,--but is never more than evidence that the alienations were justified by necessity and were proper alienations in law. I think there is nothing either in the decision of the Privy Council or any of the observations of this Court to overrule or to make no longer good law the decision of this Court in Marudamuthu Nadan v. Srinivasa Pillai 21 M. 128; 8 M.L.J. 69 and the exact decision on this point in Muthuveera Mudaliar v. Vythilinga Mudaliar 3 Ind. Cas. 476; 5 M.L.T. 122; 32 M. 206; 19 M.L.J. 88. For my part I do not regard this question as open to this Court and I do consider it as settled law in this Court that a partial alienation by a widow is not conclusively validated by the consent of the nearest reversioner.

(2.) The appeal fails and is dismissed with costs. Seshagiri Aiyar, J.

(3.) My learned colleague has stated the facts and it is not necessary for me to refer to them now. Mr. Srirangachari has argued three questions. His first proposition is this, that a transfer of the whole estate by a widow to one only of the immediate reversioners, provided the other reversioners do not dispute the transfer, is binding upon the reversioners who may live after the widow. The theory of surrender is that the widow retires from the management of the property and lets in the persons who are entitled, to succeed her after her death. This theory becomes inoperative if the transfer is made to only one of the persons who are entitled to enjoy the property. Moreover, as pointed out by my learned brother, the finding of the Subordinate Judge is that the other reversioner is not shown to have consented to the surrender in favour of the other reversioner. Therefore that proposition fails.