Rangaswami Pillai and Another vs Vaidylinga Mudaliar and Another

Coutts Trotter, J.—This suit arises out of a question as to who is entitled to certain properties which during his life-time belonged to

Tyagaraja Mudali. He died in 1856, leaving a widow who died in 1902. The plaintiffs are the reversionary heirs of Tyagaraja Mudali and the

defendants are the persons who admittedly for a considerable period of time have been in actual possession of the property. The plaintiffs'' case is

that the defendants or their predecessors-in-title acquired or must be taken to have acquired the land from the widow.

When such a case is scrutinized after a great lapse of time as in the present cage, it is not very surprising that the evidence should be of a

somewhat scanty nature; and practically the whole case turns upon the effect of, and the inferences to be drawn from, three documents. The first of

these is a razinamah or compromise decree in a suit brought by Tyagaraja Mudali in 1855, the year before he died, and there is no question but

that in that suit a decree was given in favour of Tyagaraja Mudali in respect of these very lands and an order was made that possession was to be

given to Tyagaraja Mudali. Mr. Kuppuswami Aiyar on behalf of the defendants, the appellants here, argues, and we think correctly, that we cannot

merely from that document infer that the decree was executed and that he actually got possession under the razinamah decree, and that the

respondents must carry it further and must show something in the nature of actual possession. Exhibit F is a written statement put in by Tyagaraja

Mudali''s widow in an action in the District Munsif''s Court of Shiyali. The proceedings were a suit for partition'' between the various male

members of her family, of whom the most important was her brother Subbaraya Mudali who was the 1st defendant in that suit; and the plaintiff

claimed as part of the family property, available for division a plot described in that action as No. 1, which admittedly corresponds to the land in

issue in this case. Exhibit E. is the written statement of the 1st defendant Subbaraya. He said plot No. 1 had been purchased by him for Rs. 200 on

the 16th October 1858, and had been in his exclusive enjoyment. The defendants, in this case ultimately claim under him; and they say that Exhibit

B affords no evidence at all that the purchase was made from the widow. It could not have been made from Tyagaraja Mudali himself because he

was dead. In paragraph 3 of Exhibit F, the written statement put in by the widow of Tyagaraja, she states that this land had belonged to her

husband, and that she had been enjoying it since his death: and in paragraphs 5, 6 and 7 she alleges that she, being a woman and not being able to

look after the lands, had had the pattas put into the name first of Sokku Mudali and then, after he died, of the 1st-defendant Subbaraya Mudali in

whose possession she alleges the property was at the date of that suit in 1890. That, I think, is clearly admissible evidence u/s 13 of the Evidence

Act and the effect of it is that Subbaraya gives evidence that the widow was in possession of the land in 1890 through her agent Subbaraya. The

defendants'' acquisition of this property was admittedly subsequent to that date, and it has to be traced through Subbaraya obviously as her agent.

If Subbaraya had authority from her to alienate the property, then the plaintiffs have succeeded in establishing the point that the claim of the

defendants is through a Hindu widow who had no power to alienate the whole estate. If, on the other hand, Subbaraya acted in fraud of the

widow, it is quite obvious that the defendants'' case is even worse. But the defendants say the matter does not stop there, because in that suit in

which she put in the written statement Exhibit F to which I have just referred, a decree was given, another razinamah decree which concluded her

from saying that the property ever formed part of her husband''s estate; and the reason for that is that she allowed the suit to go ex parte so far as

she was concerned, and took no steps to appear or give evidence or take any part in the proceedings and accordingly the learned Judge in that

case made an order in accordance with the agreement arrived at between the various other members of her family in the action, whereby it was

declared that the suit property was part of the brother''s divisible property, and that her claim on behalf of her husband''s estate was baseless. Mr.

Kuppuswami Aiyar says that that decree is binding upon her reversioners although she allowed it to go ex parte, and he relies upon a decision of

this Court in Lakshminarayana Sastry v. Venkayya 17 M.L.J. 160. What that case decided was this; that the fact thai a decree is allowed by a

widow to go ex parte is not conclusive to show that it is not within the meaning of the decision of the Privy Council in Katama Natchier v. Rajah of

Shivagunga 9 M.I.A. 539 : 2 W.R. 31. : 1 Suth. P.C.J. 620 : 2 Sar. P.C.J. 25 : 19 E.R. 843 ""fairly and properly obtained,"" and the learned Judges

point out that it may very well be that the widow, after careful consideration of such, facts as were within her knowledge and such evidence as she

hoped to call in that suit, honestly came to the conclusion that it would be wasting the money, of the estate to defend those proceedings. That may

well be the law; and it may be that it is a right modification of the strict doctrine laid down by the Allahabad High Court in Gobind Krishna Narain

v. Khunni Lal 29 A.P 487 : 4 A.L.J. 865 : A.W.N. (1907) 151 that in no circumstances can an ex parte decree against a widow be binding upon

the estate, that is, the reversioners. However, it is unnecessary to decide that. For accepting as we do the principle in Laxminarayana Sastry

v.Venkayya 17 M.L.J. 160, we think that this case is clearly distinguishable, because every circumstance of suspicion exists in the present case and

the learned, District Munsif seems to think that it was not a decision fairly and properly obtained, No, doubt the onus rests primarily upon those

who challenge it to establish that it was not fairly and properly obtained. But in this case where there has been a great lapse of time and where all

these circumstances of suspicion exist, we think it would be quite wrong to bind the reversioners by that judgment. That being so, all the points

taken fail.

I have not dealt with the point about the plaintiffs having brought a former proceeding in 1903 in respect of certain other properties, which they

alleged formed part of Tyagaraja''s estate, against the present defendants; because we are both clearly of opinion that there is no substance at all in

the contention that it falls within Order II, Rule 2, of the Civil Procedure Code.

The appeal fails on all points and is dismissed with costs.

Moore, J.

I agree.