C MEENAMBAL AMMAL Vs. ABURUBAMMAL

JUDGEMENT

(1.) This appeal is against an order made by the learned Chief Justice as Mr. Justice Beasley in execution proceedings. In November, 1921, one Thayammal, who was the widow of Munuswami Mudali, with her brother Kanniappa Mudali jointly executed two promissory notes in favour of Aburubammal, who is the respondent before us. Kanniappa Mudali became an insolvent, and Aburubammal brought a suit against Thayammal on the notes. That suit was compromised in April, 1925 ; and on the basis of the compromise a consent decree was made, under which Thayammal had to pay Rs. 1,750 in instalments and the whole amount was made a charge upon a house in Madras called "Ganesa Vilas". In December, 1925, Thayammal surrendered her interest in that property and in her husband's estate to his reversioners ; and they a month or so later sold the house to Meenambal, who is the appellant before us. In June, 1926, Thayammal died; and the execution petition with which we are concerned was put in on the 30 March, 1928. At one stage it was asserted by Aburubammal that this house, "Ganesa Vilas," was the absolute property of Thayammal; but it has been admitted before us that Thayammal got it from her husband, whose property it was. How after being her husband's property it became her absolute property there is no evidence, and it has not been explained to us. Before Mr. Justice Beasley the whole case proceeded on the assumption that Thayammal had only a widow's interest in this house; and in the circumstances we also must proceed on that assumption. Mr. Justice Beasley eventually made an order that Aburubammal was permitted to execute the decree against the assets of Thayammal in Meenambal's hands and that the house should be sold in execution of the decree. It is against that order that Meenambal appeals.

(2.) It has been admitted before us that Meenambal has had nothing to do with any assets of Thayammal other than this house; and it is clear that Meenambal cannot be the legal representative of Thayammal except as the person owning or possessing the house. A large part of the judgment of Beasley, J., is taken up with the consideration of the question whether by surrendering her widow's interest to her husband's reversioners Thayammal could defeat the charge made by the consent decree on this house. I am inclined to agree with Beasley, J., that Thayammal's surrender could not have that effect, though I do not think it is necessary for the disposal of this case to express any final opinion on that.

(3.) But Mr. Ramanatha Shenai, who appears for Aburubammal, has taken a new point before us. He has drawn our attention to a decision of Phillips and Odgers, JJ., in Vijiaraghavachariar V/s. Ramanujachariar according to which, having made this alienation by way of a charge on the house, Thayammal had put it out of her power to make any surrender to the reversioners at all. In that decision the learned Judges follow the decision in Sakharam Bala V/s. Thama (1927) I.L.R. 51 B. 1019. If that view is correct, then, as Mr. Ramanatha Shenai contends, the surrender made by Thayammal was invalid, and on the strength of that surrender the reversioners could not convey a good title to Meenambal. But that difficulty, I think, could be answered for Meenambal by calling in aid Section 43 of the Transfer of Property Act. Mr. Ramanatha Shenai has contended that a transfer or attempted transfer of their expectancy by reversioners, cannot be validated under the provisions of that section and has quoted Ramasami Naik V/s. Ramasami Chetti (1907) I.L.R. 30 M. 255 : 17 M.L.J. 201. But that was an entirely different case. In that case certain defendants, who were in the line of succession to a Zemindari, purported to mortgage their expectancy, and the learned Judges held, no doubt rightly, that that was prohibited by Section 6(a) of the Transfer of Property Act. But here the reversioners did not purport to transfer any expectancy to Meenambal. They professed to be the owners of this house on the ground that the reversion had fallen in by the surrender and they professed to sell their present" right in the house to Meenambal. If the true view is that the surrender was invalid, they had not a present right in the house. But, when Thayammal died, the reversion did fall in apart from the surrender, and Meenambal, if the conditions of Section 43 of the Act are fulfilled, could call upon them to make good the transfer which they erroneously professed they were able to make at the time of their sale.