- (1.) THE appellant is the 7th defendant in the court below in a suit by the plaintiff for declaration of his title to certain properties after setting aside certain alienations, for recovery of those properties with mesne profits and allied reliefs. We are not now concerned with most of the matters in controversy decided in this suit as between the parties. We are concerned exclusively with a mortgage executed by a life estate holder Saradambal (Ex. XIV-Ex B) in favour of the 7th defendant (appellant) for Rs. 1000 on 32-12-1124. M. E.
(2.) THERE are two simple questions for determination in this appeal. The first is this whether this life estate holder (Saradambal) had the power to make this disposal of property inter vivos during her period of enjoyment. The second is whether mortgage itself was supported by consideration, with reference to its constituent items and if so to what extent.
(3.) THE facts are that one Sundararaja Iyer was the father of three daughters of whom Saradambal was one and defendants 2 and 3 were the others. The first defendant in this suit is the husband of Saradambal but that is not a matter that is strictly pertinent to the aspect that arises for decision now. Admittedly, there was a partition deed in the family (EX. A), under which Saradambal took a life estate in the properties of the suit. The learned Additional District Judge has throughout misconceived her status as that of a Hindu woman owning properties in a limited estate under the Hindu law. This led him to launch in to an enquiry concerning the necessity for the mortgage in favour of the seventh defendant (appellant),which really does not arise. The learned Judge stated that: "it is a well settled that the alienation effected by a limited female owner like a daughter can be upheld only if it is for legal necessity, or for the benefit of the estate or with the consent of the next reversioner. Therefore, the alienee of a limited female owner has to prove that the impugned alienation is supported by consideration and legal necessity, or that the alienee after reasonable enquiry as to the necessity acted honestly in the belief that the necessity existed. " I am citing this passage from the judgment of the Court below in order to show that the lower court really missed the point in issue upon this aspect of the suit. It is now conceded before me, upon the facts, that Sundararaja Iyer was in possession of these properties as his self acquired properties, as far as we can judge, and that we have no right whatever to assume that Saradambal would have inherited these properties as the holder of a Hindu woman's estate, otherwise than under Ex. A. In fact, if Ex. A had not come into existence, nothing whatever could be said of Saradambal's right to the property. Consequently, one cardinal fact that has to be affirmed before we go further is that upon the evidence, it is irrefutably established that Saradambal held the properties, not as a Hindu woman owning a limited estate under the Hindu law, but as the holder of a life estate under the family settlement. This life estate necessarily partakes of the character of what are termed "life interest" under the English law of Real Property, since it really derives from that law.;