N RANGA RAO Vs. RANGANAYAKI AMMAL

JUDGEMENT

(1.) Plaintiff s suit is brought to set aside an alienation made by 1st defendant widow of one Krishna Iyer, plaintiff being the nearest reversioner. Krishna Aiyar sold the property in 1883 to his concubine and another and they executed a hypothecation deed in favour of one Rama Rao in 1885. In a suit by the widow this mortgage was recognised as valid and in another suit by a subsequent mortgagee it was again held to be valid against the widow. A decree was obtained against Rama Rao, and in execution his mortgage deed was sold and purchased by one Rama Aiyar, who brought a suit upon it. The widow at first contested the suit, but abandoned her defence. The mortgaged property was therefore brought to sale and purchased by 2nd defendant in October 1902. It is contended for appellant that this sale in 1902 amounted to an alienati m by the widow and that this suit brought in 1913 is within time.. The only question that need be considered now is whether the facts of the case establish the fact that this sale amounted to an alienation by the widow. A statement by the widow (Exhibit D) admitting the claim has been found by the Subordinate Judge not to have been presented1 by the widow herself, but in other portions of his judgment he finds that she confessed judgment from corrupt motives. It is alleged that she received Rs. 900 as consideration for not contesting the suit, but the Subordinate Judge only finds this to be probable and does not say it was proved. It is sufficient for plaintiff s case to prove that the widow had done an act which necessarily resulted in the transfer of the property vide Sheo Singh v. Jeoni (1897) I.L.R. 19 All. 524. The question, therefore, for decision is whether the widow s withdrawal of her defence amounted to such an act. It must be remembered that the mortgage had already been held in judicial decisions to be valid and binding on the widow, and although the Subordinate Judge has now found that it is not valid, his decision is based on evidence given 30 years after the mortgage was executed, and his finding is merely that consideration has not been proved. Except for the allegation that the widow received Rs. 90t), there is no evidence of collusion between her and the plaintiff in the suit on the mortgage bond. ln view of the previous proceedings it was most unlikely that a defence by the widow would have been successful. That being so the sale would in all probability have taken place without any act on her part and therefore I am unable to say that the widow s action had as a necessary result the transfer of the property, nor can it be said that she materially contributed by her action to the transfer. Her action in 1900, more than 12 years before suit, followed by the sale in 1902 cannot therefore be said to amount to an alienation. Article 12.5 of the Limitation Act is therefore inapplicable and under Article 120 the suit is barred by limitation.

(2.) A number of other questions have been argued for respondents Nos. 2 and 8, which are decided against them by the Subordinate Judge, but it is unnecessary to discuss them in view of the above finding.

(3.) The Second Appeal fails and is dismissed with costs. Krishnan, J.