K R SRINIVASA AIYANGAR Vs. ALAMELU AMMAL

JUDGEMENT

(1.) The only point in this case is whether the alienation under Ex. F is binding upon the plaintiff. Under Ex. F the property belonging to the plaintiff's father and property which the plaintiff's mother, the 1 defendant, inherited from her parents were sold to the Defendants 2 and 3 for Rs. 600. Both Courts have dismissed the plaintiff's suit. The plaintiff has preferred this second appeal.

(2.) Mr. Rajah Aiyar for the appellants contends that the sale of the ancestral properties belonging to the plaintiff and his father is not binding upon him, inasmuch as there was no necessity at the time for the sale of the property. Both the Courts have come to the conclusion that the plaintiff's father was obliged to sell the property, for he was not living in the place, he hardly had any income, he was living at a distance as a cook and it was necessary to celebrate the plaintiff's Upanayanam who was about eleven or twelve years of age on the date of the sale, and therefore the sale was not only for a necessity, but also a prudent act of management. Mr. Rajah Aiyar's contention is that there must be actual necessity to bring the case within the principle of the decision in Hanuman Pershad's case [1855] 6 M. I. A. 393 and that in order to justify a father's sale of property belonging to his son there should be such pressure as could not be relieved in any other way. If at the time the property is sold he is unable to support his family from the income of the property and if has no other substantial income and if by selling the property he could maintain the family or at least provide funds for its maintenance, a Hindu father is justified in selling the ancestral property conveying the share of the son also. In this case the circumstances are such from which it could be reasonably inferred that at the time of sale there was necessity to sell the property in order to maintain the family. Mr. Rajah Aiyar's contention is that the father must have earned money as a cook and he was not justified in selling the property and getting a mortgage for the sale amount. But it is not possible now to say what were the actual circumstances which necessitated the sale. As the lower Courts point out, the man was living at a considerable distance, he was poor, the boy's Upanayanam had to be performed and there were other calls on the purse and the sale by the father of the plaintiff's ancestral property was for the proper purposes of the family and the sale therefore is binding upon the plaintiff. The appeal therefore as regards D. schedule properties is dismissed.

(3.) The case of the sale by the mother of the plaintiff, that is, the 1 defendant stands on a different footing. She inherited the property from her father. Desikam Aiyangar was her father, and after his death her mother Perundevi Ammal was in possession of the property; and after her death the property descended to the 1 defendant. In Ex. F. there is no mention of any necessity for the sale by the mother. The mother is not bound to sell her father's property for the purpose of putting the family in comfortable circumstances. No doubt if the mother had no other income and if the family was really starving and if she herself had no other income of her own and without selling the property she would starve, she would be justified in selling the property inherited from her father to the prejudice of the reversioners. In other words, such a sale would be binding on the reversioners. In this case the facts do not establish that there was any such necessity for the sale of her father's property. It is not open to a widow or a limited owner like the 1 defendant to sell the property in her possession because she could not manage the property or that it is beneficial to her as well as to the reversioners to sell it and buy some other property. In this case what she has done is she has sold the property and has left the sale proceeds in the hands of the vendee and has taken an hypothecation bond for the amount. It may be that the interest which she was able to get from the vendee was much more than what she would have got by cultivating the lands. Her own evidence is that the lands in her possession were capable of yielding about 3 or 3? bandy loads of paddy. That being so, I do not see how the sale by her could bind the plaintiff. Mr. Bhashyam Aiyangar for the respondent wanted to make a distinction between the property which Perundevi Ammal inherited from her husband and the property which was purchased by her with the income of her husband's property. His contention is that a life owner is entitled to utilize the income in any way she likes and the property purchased by her would not form part of the property she inherited. In this case there is no evidence that Perundevi Ammal kept her acquisitions separately from the property inherited by her and all the property descended to the defendant as the property of her father. Though it is open to a life-owner to keep the income and the acquisitions separately from the corpus, yet without specific evidence and proof of the intention of the life-owner (tenant) to keep such an acquisition separately, the Court cannot presume that it was so done. In this case there is absolutely no evidence that when the property descended to the first defendant anybody made any difference between the property which was enjoyed by Perundevi Ammal as having descended to her from her husband and the property which she purchased from its income. I do not think therefore that any distinction can be made between the property which Perundevi Ammal inherited from her husband and the property which she is alleged to have purchased from the income of the property she got from her husband.