Nelakanti Sundarasiva Row and Others vs Ivatury Viyamma and Others

Two points are raised for decision in this appeal. The first question we have to decide is whether when the two sisters Viyamma (the 1st

defendant) and the deceased Peramma divided their women''s estate, they did so merely with a view to convenient enjoyment, retaining the right of

the survivor to take the whole on the death of one of them or whether such right of survivorship was expressly excluded by agreement between the

parties. It is not denied that it was open to the sisters to do either in a manner binding between themselves. The question is one of fact and the

learned Subordinate Judge has held that the right of survivorship was expressly excluded.

The properties originally belonged to one Perayya. He died without male issue and he had no coparceners. His estate therefore passed to his

widow Rajamma. She died 25 years ago and the estate then passed to Perayya''s two daughters, Viyamma and Peramma, they taking a joint

daughter''s estate for life. It was these ladies that divided the estate. There is no partition deed but the division is admitted by all parties, the only

dispute being whether the right of survivorship between themselves was retained or expressly given up. The Subordinate Judge has accepted the

evidence for the defence on the point, in preference to the contrary evidence for the plaintiff. The documents he has referred to, though not very

conclusive, support the defence version so far as they go, as pointed out by him. No reason has been shown for us to take a different view of the

evidence in appeal. It was, however, elicited from one of the witnesses that two lists were drawn up for the properties as divided and mention was

made in them of the right of survivorship having been extinguished. Now it is contended that these lists not being produced, oral evidence cannot

be allowed in proof of the transaction. The partition and the arrangement to extinguish the right of survivorship were both made orally and the list, if

any, will only be, one of the pieces of evidence in favour of it. Non-production of it may go to the weight of the evidence but does not prevent

other evidence being given. It is not a case to which Section 92 of the Evidence Act applies. We accept the finding of the Subordinate Judge that

the right of survivorship was expressly extinguished when the partition was made.

The second question raised is one of law. The plaintiff claims the suit properties through the 2nd defendant who is the nearest reversioner to

Perayya, to whom the surviving daughter Viyamma has executed a deed of surrender Ex. XVI. He contends that by virtue of the surrender the 2nd

defendant has become entitled to the whole of Perayya''s estate and that he is not bound by any arrangement made between the two sisters. This is

a question on which we are concluded by authority in this Court and unless we differ from it and refer the question to the Full Bench, we are bound

to follow it. The ruling in Subbamma v. Subramaniam ILR (1915) M 1035 is exactly in point and lays down. that when a reversioner obtains the

estate through the surrender by the life-estate-holder of her estate, he is not entitled to question her alienations during her life-time but must wait till

her death to do so. It was urged for the appellant that this case is no longer good law after the ruling of the Full Bench in Vaidyanatha Sastri v.

Savithri Ammal ILR (1917) M 75 which held that in the case of an adoption by a widow the right of the adopted son to question the widow''s

alienations accrued at once overruling the decision in Sreeramulu v. Kristnamma ILR (1903) M 143 which was relied on as an authority in

Subbamma v. Subramaniam ILR (1915) M 1035 : 1915 30 MLJ 260. The ruling in Vaidyanatha Sastri v. Savithri Ammal ILR (1917) M 75

cannot, however, be taken as shaking the authority of the Subbamma v. Subramaniam''s case ILR (1915) M 1035 when we find two of the

learned Judges on the Full Bench, the late Chief Justice Wallis and Kumaraswami Sastri, J., expressly referring and approving on that ruling and

distinguishing it. The Chief Justice had affirmed the same proposition in Singaram Chettiar v. Kaliyanasundaram Pillai (1914) MWN 735. A ruling

to the contrary in C.M. A. No. 322 of 1919 was cited to us in an unreported decision of Oldfield and Seshagiri Aiyar, JJ., where it was held that a

reversioner claiming by surrender from a widow was in the same position as a person adopted by a widow and could at once challenge the

widow''s alienations ; but this case, besides being unreported, was not followed by Wallis, C. J., and Old-field, J., himself when it was cited to

them in the case reported in Sri Rajah Inuganti Venkata Rajagopala Suryarao Bahadur Garu Vs. Sri Rajah Datla Venkata Suryanarayana

Jagapathi Bahadur Garu and Another, . Oldfield, J., practically went back on his former judgment. In this state of authority I am not prepared to

differ from the ruling in Subbamma v. Subramaniam ILR (1915) M 1035 above referred to on a supposed analogy between the case of a son

adopted by a widow and a reversioner claiming by virtue of a surrender by the widow on the ground that both of them claim from the last male

holder and not from the widows.

As Kumaraswami Sastri, J., points out in Vaidyanatha Sastri v. Savithri Ammal ILR (1917) M 75 the Courts are justified in recognising the right

of surrender by the widow, to impose conditions on her power based on considerations of justice, equity and good conscience. Whereas in this

case the surrender was effected for the purpose of defeating the alienees for consideration; the rule that till the surrenderer dies her acts cannot be

questioned by the surrenderee seems to be a just and equitable rule. I would therefore follow the ruling in Subbamma v. Subramaniam ILR (1915)

M 1035 , and hold that the plaintiff is not entitled by virtue of the surrender deed Ex. XVI to question the alienations of Peramma in favour of the

defendants till Viyamma dies and the joint life-estate comes to an end.

In this view, it is not necessary to consider whether the surrender is an invalid transaction in the circumstances of this case. Both the points taken

by the appellant failing, the appeal must be dismissed with costs of respondents 5 to 20.