SONAI KARUPPA PILLAI Vs. IRULAYEE

JUDGEMENT

(1.) The question of law which this second appeal raises is whether a gift or gratuitous conveyance executed by a widow is voidable by a reversioner to whom she subsequently surrenders the whole estate. One Kandaswami Pillai died leaving two widows, Kaliammai and Rakkayi. The widows and Mahalingam Pillai, Kandaswami's divided brother's son, were parties to a deed of partition under which they divided Kandaswami's property in accordance with certain oral instructions which he is said to have given before he died. The document provided that Mahalingam Pillai should enjoy Schedule A property absolutely; that Kaliammai should enjoy Schedule B property till her death, when it should pass to Mahalingam; and that Rakkayi should similarly enjoy Schedule C property, with remainder to Mahalingam. Mahalingam died in 1907 and Kaliammai in 1918. In 1920, Rakkayi executed a deed of surrender to the reversioner, who has brought this suit to recover Kaliammai's and Mahalinga's shares. The plaint Schedule D property is not now in question. The case has been argued on the assumption that the dispositions made by the widows in favour of Mahalinga were without consideration.

(2.) Two propositions of law which have been referred to in discussing the present question are now well settled. One is that where a widow adopts a son, he may sue, even during her lifetime, to set aside any alienation not supported by necessity, whether it was an alienation for consideration or not. That was decided by a Full Bench in Vaidyanatha Sastri V/s. Savithri Ammal (1917) ILR 41 M 75 : 53 MLJ 387 (FB) overruling Sreeramulu V/s. Kristamma (1902) ILR 26 M 143 : 12 MLJ 197. The other, for which authority is to be found in Sundarasiva Rao v. Viyyamma (1925) ILR 48 M 933 : 49 MLJ 266. is that an alienation made by the widow for consideration is good against a surrender, and the property alienated cannot be recovered until the widow dies. I do not think that the former principle affords any material help in deciding, as I have to decide, whether the fact that consideration is wanting enables a reversioner to whom surrender has been made to avoid an alienation which would otherwise stand good against the surrender. The two acts--adoption and surrender--are not fairly comparable. The distinctions between them, if I may say so with respect, have been very justly and clearly pointed out by Kumaraswami Sastri, J., in Vaidyanatha Sastri V/s. Savitthiri Ammal. Although a widow cannot be legally compelled to adopt, the duty to honour her husband's wishes is a solemn obligation imposed by Hindu Law and sentiment, and a person who, knowing this and knowing or having the means of ascertaining that she has authority to adopt, obtains a transfer of property from her, does so at his peril. In such circumstances, there is no reason to interfere with the logical consequences of an act which is equivalent, in its legal effects, to the death of the widow. But no such pious obligation attaches to a voluntary relinquishment by a widow of her estate. Hindu Law-givers hardly contemplated such an act, and "the whole doctrine of surrender and consequent acceleration of the estate of the reversioner has no basis in Hindu Smritis but has been evolved by Courts of justice on general principles of jurisprudence.

(3.) It follows that the Courts, having given the power, may set limits to its exercise. Strict logic requires that if a widow may renounce her rights upon the theory that she may anticipate her natural death by an act of civil suicide, every consequence that would ensue upon the one death should ensue upon the other. The doctrine that alienations for consideration are to prevail against a surrenderee has been accepted in defiance of this logical principle, upon grounds of justice, equity and good conscience. Equity steps in to temper the rigour of a rule which resembles in its inexorableness some old rule of English Common Law.