SRINIVASA AIYER Vs. THIRUVENGADA MAISTRY

JUDGEMENT

(1.) The short facts of the case are these. One Swaminatha Aiyer, who was the last male owner, died in 1859 leaving a junior widow Annapurni and his mother Kuppachi Ammal. Kuppachi Ammal managed the property as the guardian of her daughter-in-law. While doing so, she alienated certain properties in favour of the defendants predecessor-in-title. On becoming a major, Annapurni brought a suit to set aside her mother-in-law s alienations. A decree on compromise was passed (Exhibit K), by which the alienees were given certain properties absolutely and the remainder were given to Annapurni. She died in 1909. The present suit is brought to recover the property from the alienees.

(2.) There is no evidence, and naturally there can be none at this distance of time, as to the circumstances which led to the compromise. The Courts below have held that the compromise was binding on the reversioners. Mr. K.V. Krishnaswami Iyer addressed to us a very exhaustive argument on that and two other questions. We may very shortly deal with the two subsidiary questions. The learned Vakil contended that a guardian of a minor widow in alienating property can only convey the ordinary limited interest possessed by the widow and not the absolute interest which, under certain circumstances, she can convey, and that consequently by the compromise nothing can pass to the alienees but a widow s interest. We are unable to accept this contention. The guardian of a minor can exercise all the powers which a minor has, and there is no ground for suggesting that the guardian intended to exercise the smaller rights and not the larger rights which her ward possessed. The second point was that the mere production of the compromise decree would not show that Annapurni in challenging the alienation was acting in the interests of the estate. We see no force in this contention. Prima facie, any person, whether a limited owner or full owner, who wishes to recover property on the ground that an alienation is invalid must be taken to have put in issue the rights of the estate to recover the property. The limitation suggested by the learned Vakil that Annapurni might have attempted to contest the alienation on grounds personal to herself seems far fetched. In our opinion her action in questioning the alienation of her mother-in-law-must be regarded as having been done for the benefit of the estate and not for, her personal benefit.

(3.) Now comes the very important question which was fully discussed before us. The decision in Katama Natchier v. Rajah of Shivagunga 9 M.I.A. 539 at p. 604 : 2 W.R.P.C. 31 : 1 Suth. P.C.J. 520 : 2 Sar. P.C.J. 25 : 19 E.R. 843 is the foundation for the rule of law that a decree obtained honestly against the contesting widow will bind the reversioners. The proposition enunciated in that case has been re- affirmed by the Judicial Committee in a number of cases. Amrit Narayan Singh v. Gaya Singh 44 Ind. Cas. 408 : 45 C. 590 : 23 M.L.T. 142 : 22 C.W.N. 409 : 27 C.L.J. 296 : 34 M.L. J. 298 : 4 P.L.W. 221 : 16 A.L.J. 265 : (1918) M.W.N. 306 : 7 W. 581 : 20 Bom. L.R. 546 : 45 I.A. 35 (P.C.); Kanhai Lal v. Brij Lal 47 Ind. Cas. 207 : 40 A. 487 : 22 C.W.N. 914 : 8 L.W. 212 : 24 M.L.T. 236 : 35 M.L.J. 459 : 16 A.L.J. 825 : (1918) M.W.N. 709 : 28 C.L.J. 459 : 16 A.L.J. 825 : (1918) M.W.N. 709 : 28 C.L.J. 394 : 5 P.L.W. 294 : 20 Bom. L.R. 1048 : 45 I.A. 118 (P.C.) and lastly Bisal Singh, v. Balwant Singh 48 Ind. Cas. 553 : 40 A. 593 : 28 C.L.J. 519 : 24 M.L.T. 361 : 9 L.W. 52 : 23 C.W.N. 326 : (1919) M.W.N. 155 : 36 M.L.J. 597 : 21 Bom. L.R. 611 : 45 I.A. 16 (P.C.). In all these cases the decree was passed after a fair contest in Court. In none of them was there a compromise decree. From early times, the Courts in this country have held that a decree to which the widow has only consented and which was not passed after contest cannot be placed on a higher footing than a contract or alienation by her. In Sheo Narain Singh v. Khurgo Koeny 10 C.L.R. 337 this principle was enunciated, and also in Rajalakshmi Dasee v. Katyayani Dasee 12 Ind. Cas. 464 : 38 C. 639 by Mr. Justice Mukerjee after an elaborate discussion of the case-law on the point. In Sant Kumar v. Deo Saran 8 A. 365 : A.W.N. (1886) 129 Mr. Justice Mahmood reviewed the case-law on the point and came to the same conclusion. In Jeram v. Veerbai 5 Bow. L.R. 885 the same view was taken in Bombay. In Madras, Justices Benson and Sundaram Aiyar expressed the same opinion, although it was obiter dictum in Bhogctraju v. Adapalli Seshayya 12 Ind. Cas. 123 : 35 M. 560 : 10 M.L.T. 179. In Bangarayuiu v. Perayyi Sastry 30 Ind. Cas. 927 : (1915) M.W.N. 810 : 2 L.W. 1025 the point was not decided though a finding was called for on the assumption that Bhogaraju v. Adapalli Seshayya 12 Ind. Cas. 123 : 35 M. 560 : 10 M.L.T. 179 was right. In Appeals Nos. 40,88 and 130 of 1914, the learned Chief Justice and Mr. Justice Ayling have expressed the same opinion. On the other hand we have the judgment of Mr. Justice Abdur Rahim which has been concurred in by Mr. Justice Srinivasa Aiyengar in which a different view was indicated. In Calcutta very recently Mr. Justice Mukerjee, who had stated the law very elaborately in Rajlakshmi Dasee v. Katyayani Dassee 12 Ind. Cas. 464 : 38 C. 639 appears to have changed his view. In Mohendra Nath Biswas v. Shamsunnessa Khatun 27 Ind. Cas. 954 : 21 C.L.J. 157 : 19 C.W.N. 1280 the learned Judge seems to have been influenced by the recent decision of the Judicial Committee in Bisal Singh v. Balwant Singh 48 Ind. Cas. 553 : 40 A. 593 : 28 C.L.J. 519 : 24 M.L.T. 361 : 9 L.W. 52 : 23 C.W.N. 326 : (1919) M.W.N. 155 : 36 M.L.J. 597 : 21 Bom. L.R. 611 : 45 I.A. 16 (P.C.) in holding that a compromise decree is on the same footing as a contested deoree. But in Bisal Singh v. Balwant Singh 48 Ind. Cas. 553 : 40 A. 593 : 28 C.L.J. 519 : 24 M.L.T. 361 : 9 L.W. 52 : 23 C.W.N. 326 : (1919) M.W.N. 155 : 36 M.L.J. 597 : 21 Bom. L.R. 611 : 45 I.A. 16 (P.C.) there was no compromise decree, but a decree after contest. The Patna High Court in Bam Sumran Prosad v. Shyam Kumari 47 Ind. Cas. 697 apparently agree with the later view of Mr. Justice Mukerjee. In this state of authorities and as there is no direct pronouncement by the Madras High Court we have deemed it expedient to examine the principles on which this question should be decided.