JANAKI AMMAL Vs. GPERUMALSWAMI NADAR

JUDGEMENT

(1.) This appeal raises the question whether a Hindu mother has the right to remain in the family house after it has been sold at an auction held in pursuance of an order passed in a partition suit and has been purchased by another branch of the family. One Thavasamuthu Nadar had three sons, Rathnaswami, Vallathambi and Guruswami. Rathnaswami married Amanthammal, the sixth defendant in the suit out of which this appeal arises, and by her had two sons and one daughter (the first and second plaintiffs and the ninth defendant). Vallathambi married Janaki Animal, the appellant, who was the eighth defendant and by her had five sons and one daughter (the first, second, third, fourth, fifth and eleventh defendants). Guruswami married Raja Rajeswari Ammal, the seventh defendant, who bore him three sons and a daughter (the third, fourth and fifth plaintiffs and the tenth defendant). Thavasamuthu lived with his three sons and their families in the family house at Porayar, Tanjore District. He was a man of considerable wealth and died leaving a large number of immovable properties. According to the plaint, Thavasamuthu died in or about the year 1885. Guruswami, the youngest son, died in 1920. Rathnaswami and Vallathambi survived their father, but predeceased Guruswami. In the year 1921, a partition suit (C.S. No. 655 of 1921) was filed by the sons of Rathnaswami and Guruswami. On the 18 January, 1924, a preliminary decree for partition was passed by Devadoss, J., who directed that the questions relating to the maintenance of the widows of Rathnaswami, Vallathambi and Guruswami and their rights to reside in family " properties " should be decided after the receipt of the report from the Official Referee.

(2.) On the 10 November, 1936, the case came before Wadsworth, J., who passed what has been described as an interim final decree. Wadsworth, J., directed that the suit should be remanded to the Official Referee for the preparation of a final account on the basis of his order and for the framing of a scheme of partition. On the 30 July, 1937, the Court directed that the immovable properties comprising the estate should be sold at an auction at which the members of the three branches of Thavasamuthu's family alone should have the right to bid. In other words there should be a private, not a public auction. This private auction took place in September, 1937. The family house was bought by the third, fourth and fifth plaintiffs. Their branch altogether bought nine properties, of a total value of Rs. 53,000. The appellant's sons bought 23 houses with land attached for which they paid about Rs. 2,00,000. Lakshmana Rao, J., dealt with the question of the confirmation of these sales. The appellant objected to the sale of the family house being confirmed and asked the learned Judge to cancel it or to declare that the sale was subject to her right to reside therein. The learned Judge rejected her contentions and confirmed the sale without any restriction. The appellant, however, refused to vacate when called upon to do so by the receivers and they had to apply to the Court for an order directing her to vacate. This application was heard by Gentle, J. The third, fourth and fifth plaintiffs offered to allow the appellant, although she was not their mother, but the mother of the first, second, third, fourth, fifth and eleventh defendants, to reside in another house which they had purchased, until the partition had been completed. The learned Judge considered that this was a very reasonable suggestion and passed an order directing the appellant to vacate the family house on this condition. The present appeal lies from this order. It has not been suggested that the respondents are unwilling to comply with the condition, but it is said that the learned Judge was wrong in directing the appellant to vacate at all. It is said that under Hindu Law she has an absolute right to remain in the house until her death. While recognising that as a general rule a Hindu mother has a right to reside in the family house the respondents contend that in the special circumstances of this case the appellant is bound to vacate. They also contend that partition of the family properties puts an end to the right of a mother to remain in the family house,, and in such circumstances she must accept a suitable residence elsewhere.

(3.) Mr. Rajah Aiyar, on behalf of the appellant, relies on the Full Bench decision of this Court in Ramanadhan V/s. Rangammah and particularly on the following passage which appears at page 270 of the report: The right of residence of Hindu females is ordinarily referable to the mily house and a purchaser may be presumed to have notice of that fact. It is reasonable to hold that he is not a bona fide purchaser entitled to eject her, unless it is proved that the sale is valid as against her, either because, as in this case, it is made in liquidation of a debt binding on her or an ancestral debt, or with her consent or in circumstances which would sustain a plea of equitable estoppel against her.