(1.)THIS appeal is directed against an appellate judgment of a division bench of the Madras High court dated the 12/01/1948, reversing in part, a decision of the Subordinate Judge of Nellore passed in O.S.No. 3 of 1940.
(2.)TO appreciate the material facts of the case and ,the controversy that now centers between the parties, it would be convenient to refer to a short genealogy which is given below :--
The properties in dispute which are described in schedule A to the plaint admittedly belonged to one Narayanappa who was the father of the paternal grandmother of the plaintiffs. Narayanappa died intestate sometime before 1884 leaving him surviving his wife Chanchamma and a daughter named Venkata Narasamma. Narasamma was married to one Pitti Rangayya and they had a son named Venkatadri, who was the father of the plaintiffs. Chanchamma died in March, 1933, and the plaintiffs aver that they being the heritable bandhus of Narayanappa as the daughter's son's sons of the latter and there being no nearer heir in existence, they became entitled to all the properties left by Narayanappa on the death of his widow. It appears that on 22nd February, 1894, Chanchamma executed, what has been described as a deed of release, in favour of her daughter Narasamma and her son-in-law Pitti Rangayya, under which the entire estate of Narayanappa came into the possession of the latter. After the execution of this document, the daughter and son-in-law of Chanchamma began to deal with the properties left by Narayanappa as their own and entered into various transactions on that footing. Pitti Rangayya died in 1914 and Narasamma followed him in 1926. There are six items of property comprised in schedule A to the plaint. Of these items, 4 and 5 were sold by Venkata Narasamma. along with her son, the father of the plaintiffs, on 9/07/1922, to the 5th defendant and the father of defendants 6 to 9 for a sum of Rs. 6,500.00 . Again, on 26/10/1929, when both Narasamma and the plaintiffs' father were dead, item 1 of schedule A was sold by the mother of the plaintiffs as their guardian to the 1st defendant for a consideration of Rs. 33,000.00 . Defendants 2 and 3 are the undivided sons of the 1st defendant. There are other transfers in favour of other defendants in the suit but they are not the subject-matter of the appeal before us.
The plaintiffs' allegations in substance are that these alienations are not binding on them as the so-called deed of release executed by the widow could not and did not operate as a deed of surrender and any transfer effected on the strength of this deed by Venkata Narasamma or her son, Venkatadri, or even on behalf of the plaintiffs by their mother as guardian, could not be operative after the death of the widow. As these transfers were made during the lifetime of Chanchamma and without any legal necessity, the plaintiffs as actual reversioners were not bound by them and they are entitled to recover possession of the properties by evicting the transferees. It was for the recovery of possession of these properties that the present suit was brought and there was a claim for mesne profits as well from the date of the widow's death to the date of delivery of possession.
The defence of the defendants who are interested in the properties mentioned above, were really of a threefold character. It was contended in the first place that the plaintiffs were not the next reversionary heirs of Narayanappa and consequently were not entitled to succeed to the estate of the latter on the death of the widow. The second contention was that the deed of release operated as a surrender of the widow's estate in favour of the daughter who was the next reversioner and although by such a surrender the daughter could get only a limited estate which she would have been entitled to on the death of the widow, yet as the daughter died in 1926, the present suit which was instituted more than 12 years after the date of death, was barred by limitation. The third plea was that in any event, these alienations could not be set aside as they were justified by legal necessity.
The learned Subordinate Judge who heard the suit decided it adversely to the plaintiffs. It was held first of all that though the plaintiffs were the heritable bandhus of Narayanappa, the evidence adduced by them fell short of establishing that there were no agnatic relations or nearer heir in existence. As regards the document of release (Exhibit P. 6)executed by the widow in favour of her daughter and son-in-law, the Subordinate Judge came to the conclusion that the deed operated as a surrender of the widow's estate and as the daughter died in 1926, the plaintiffs' suit was barred by limitation. On the question of legal necessity, the finding recorded by the Subordinate Judge was that the sale deed (Exhibit D-I) executed in favour of the 1st defendant was supported by legal necessity to the extent of Rs. 5,061.00 and odd annas and that the other document under which defend: ants 5 to 9 claimed title was not binding on the estate at all. In the result, the plaintiffs' suit was dismissed in its entirety.
(3.)AGAINST this decision, the plaintiffs took an appeal to the High court of Madras and the appeal was heard by a division bench consisting of Gentle C. J. and Satyanarayana Rao J. The learned Judges allowed the appeal in regard to the items of property mentioned above and reversed the decision of the trial Judge to that extent. It was held that the plaintiffs were the nearest reversionary heirs of Narayanappa and that the deed of release did not operate as a surrender of the widow's estate. The plaintiffs were given a decree for possession in respect of item 1 of the schedule properties as against defendants 2 and 3 on condition of their depositing into court the sum of Rs. 5,061.00 , and odd annas, that being the amount of debt legally binding on the estate which was discharged out of the sale proceeds of the transfer, and there was a further direction to pay interest upon this amount at the rate of six per cent per annum from certain specified dates up to the date of making the deposit. It may be noted here that the 1st defendant died after the trial court's decree and his interest passed by survivorship to defendants 2 and 3, who are his undivided sons. As against defendants 5 to 9, there was an unconditional decree for recovery of possession in respect of items 4 and 5 of schedule A. The plaintiffs were further given a decree for mesne profits, both past and future, commencing from the date of the widow's death down to the date of delivery of possession, and the amount of mesne profits was directed to be ascertained in a separate proceeding under Order 20, rule 12 the Code of Civil Procedure. It is against this decision that the present appeal has been preferred by defendants 2, 3 and 5 to 9. 111
Mr. Rajah Aiyar, appearing for the appellants, did not seriously challenge the finding of the High court as to the plaintiffs being the nearest reversioners at the time of Chanchamma's death. He has assailed the propriety of the High court's decision substantially on two points. His first contention is that the deed of release (Exhibit P-6) executed by Chanchamma had the effect of a surrender of the widow's estate in favour of her daughter and son-in-law and the daughter having died in 1926, the plaintiffs' suit was barred by limitation. The second ground urged is that the High court should not have given the plaintiffs a decree for mesne profits from the date of the widow's death. Mesne profits could at best have been allowed from the date of the institution of the suit and so far as defendants 2 and 3 are concerned against whom a conditional decree was given, mesne profits could be allowed only from the time when the condition was fulfilled by the plaintiffs' depositing the specified amount in court.
The first point taken by the learned counsel for the appellants raises the question as to the legal effect of the document (Exhibit P-6), upon which the defendants mainly base their contention. The document is more than 50 years old and the language of it is not very clear or definite. It begins and ends by saying that it is a deed of release. It says that as the executant is a woman unable to look after her worldly affairs and as the persons in whose favour the document is executed are the son-in-law and daughter of the executant, she has put the latter in possession of all her properties, movable and immovable. Then comes a description of the properties and after that the provisions run as follows :- `Therefore you shall yourself pay the quit rent, etc., payable here for every year to the government and enjoy the same permanently from your son to grandson and so on hereditarily. For my lifetime you shall pay for our maintenance expenses Rs. 360.00 per year every year, before the month of Palguna of the respective years. ' The remaining clauses of the deed enjoin upon the recipients thereof the duty of realizing all debts due to the executant by other people and also of paying all just debts due by her. It is stated finally that the lands are under an izara lease executed by the widow in favour of one Narasimha Naidu which is due to expire by the end of 1346 Fasli and it would be for the daughter and son-in-law to consider what they would do with regard to the lease.