Madras High Court
Venkatarama Aiyar vs Aiyasami Aiyar And Ors. on 16 November, 1921
Equivalent citations: (1922)43MLJ340
JUDGMENT
1. This appeal arises out of a somewhat curious case. The plaintiff Venkatraroa Aiyar was convicted of the murder of his wife and sentenced to transportation for life. On the eve of departure for Port Blair he executed a deed of gift in favour one Singam Aiyar a relation of his. This was on 23-5-1900. The deed of gift omitting unnecessary words, runs as follows: 'You, Singam Aiyar, should obtain possession of and enjoy the undermentioned moveable and immoveable properties with the rights of gift, sale etc. In case my sentence should terminate and I should come back to my village, you should hand over the said properties to me. If I should not return you should get the undermentioned properties. You should discharge the debts due by me from my property and also collect the debts due to me." Four years afterwards on 20-6-1904, Singam Aiyar sold certain of the immoveable properties, which are the subject matter of the present suit, to the defendants. Singam Aiyar died subsequently. Plaintiff was released after serving 16 years and returned to his native place in October 1916. He brings the present suit to recover possession of the property from the vendees of Singam Aiyar. The District Munsif gave him a decree for possession and mesne profits. The District Judge has set aside the decree and directed that the suit should be dismissed with costs. This Second Appeal is now preferred to us.
2. The District Judge has decided against the plaintiff on two grounds one is limitation, which is not supported before us, and on which we have no hesitation in differing from him. The second ground is that the obligation to surrender the properties is only a personal one against Singam Aiyar and his heirs and not against the alienees and that this suit against the alienees alone without impleading Singam Aiyar's sons, is unmaintainable. No objection was taken in the first Court on the ground of mis-joinder for failure to implead the sons of Singam Aiyar, and the question of whether the right to recover the property is personal only to Singam Aiyar and possibly his sons will depend on the question of whether the defeasance clause is legal and enforceable. On this point we heard a long and detailed argument. The relevant provisions of the Transfer of Property Act are Sections 31 and 126, Section 31 says that "subject to the provisions of Section 12" (with which we have no concern), "on a transfer of property an interest therein, may be created with the condition super-added that it shall cease to exist in case a specified uncertain event shall happen, or in case a specified uncertain event shall not happen." This is a general clause. But the specific clause having reference only to gifts is Section 126. This runs thus. "The donor and donee may agree that on the happening of any specified event, which does not depend on the will of the donor, a gift shall be a suspended or revoked. Nothing in this section shall be deemed to affect the rights of transferees for consideration without notice." Both Section 31 and Section 126 are subject to the limitation that no rule of Hindu Law should be infringed. This is provided by Section 2 of the Act, as regards Section 31 and by Section 129 as regards Section 126. The general effect of this is that subject to two limitations provisions for defeasance on the occurrence of an uncertain event ,are legal and enforceable. The limitations are that, no rule of Hindu Law should be infringed and that the rights of transferees for consideration without notice should be safeguarded. This general rule appears to be in accordance with English Law, - Vide 24 Halsbury 170. "An estate in fee may be granted with words of direct limitation so as to be prima facie a fee simple, but with further words, sometimes called words of collateral limitation whereby it is liable to be determined on the happening of some future event, provided that this is of such a nature that by possibility it may never happen all. An estate so limited is called a "determinable fee" and moreover it is no objection that the future event may happen at a time beyond the limit allowed by the rule against perpetuities." Whether the defendants are transferees for consideration without notice so as to be entitled to the benefit of the last paragraph of Section 126 is a point which has not been determined by the District Judge and on which a finding will be necessary.
3. The other question to which the argument before us has been almost entirely devoted is whether a defeasance clause, such as the present, transgresses any rule of Hindu Law. The respondents contend that, unlike English Law, Hindu Law treats all conditions of defeasance as illegal. Apart from any question of alienation by Singam Aiyar they say that if the plaintiff had returned within a month of the execution of the gift deed Singam Aiyar being alive and the properties not alienated, the plaintiff would even then not be entitled to recover the gifted properties. We have been referred to no authority which lays down that an estate once vested cannot be divested; and the main authority to which we have been referred Krishnaswami Aiyar v. Appavier 12 L.W. 519 in which the principal rulings quoted to us are discussed is to the contrary effect, and we can see no reason why we should hold in appellant's favour on this point. What we have been referred to is the collection of rulings of which Sreemathi Soorjeemoney Dassee v. Deenobandu Mullick 9 M.I.A. 123 and the Tagore case I.A. Supp. Vol. p. 47 are the best examples), dealing with variations in the ordinary rules of inheritance purporting to be directed by wills. We make no distinction between gifts and wills. But we must observe that the general principle of all these decisions appears to be the desirability of frustrating the attempts of private individuals to vary the course of inheritance prescribed by Hindu law. We will quote one passage from the Tagore case. "It follows directly from this that a private individual, who attempts by gift or will to make property inheritable otherwise than the law directs, is assuming to legislate, and that the gift must fail and the inheritance take place as the law directs." This was well expressed by Lord Justice Turner in Soorjeemoney Dossee v. Deenobondo Mullick. 6 M.I.A. 555. "A man cannot create a new form of estate or alter the line of succession allowed by law, for the purpose of carrying out his on wishes or views of policy." Similarly in Kristoromoni Dasi v. Narendra Krishna Bahadur (1882) I.L.R. 16 Cal. (P.C.) what is condemned is the initiation of a course of succession unknown to Hindu law. It is with this principle in mind that a reference has been made in Sreemethi Surjeemoney Dasse v. Deenobondo Mullick 9 M.I.A. 136 to the limitation of the defeasibility of an event which has to happen, "if at all, immediately on the close of a life in being." Now the slightest consideration of the deed of gift which we are considering, Exhibit A, will show that it does not purport or attempt to alter the ordinary course of succession by inheritance or to create any new form of estate unless the defeasible estate is per-se unknown to Hindu Law, a point on which, as already stated, we can find no authority. Exhibit A provides that the property conveyed shall go to Singam Aiyar and pass to his heirs in the ordinary course of inheritance subject to the single contingency that, if the plaintiff returns it will go back to him and pass to him and pass to his heirs in the ordinary course of inheritance. We do not, therefore, think that any of the rulings of this class quoted by the learned vakil for the respondents has any bearing on the present case. In our opinion, the clause providing that in the event of the plaintiff's return, all the properties shall revert to him is legal and enforceable, equally upon Singam Aiyar and upon Singam Aiyar's heirs.
4. It only remains to determine whether the defendants are entitled to resist the suit as purchasers for consideration without notice. This is embodied in the second issue, and on this we must request the District Judge to return a finding within two months on the evidence already on record. Seven days are allowed for filing objections.
5. In compliance with the order contained in the above judgment, the District Judge of Trichinopoly Submitted the following.
6. I would return a finding that the defendants are bona-fide purchasers for value without notice.
7. This Second appeal coming on for final bearing after the return of the finding of the Lower Appellate Court upon the issue referred by this Court for trial.
JUDGMENT
1. In this case, the learned Judges who heard the case in the first instance called for a finding on the question raised in issue (2) whether the contesting defendants were bona fide purchasers for value without notice and as such have a valid title against the plaintiff which they could rely upon under Section 126 of the Transfer of Property Act. The learned District Judge has returned a finding that they were purchasers for value. But on the question of notice his finding is somewhat indefinite. On looking to the facts stated by him it is however clear to our mind that they are persons who purchased the property with notice of the defeasance clause in the original deed of gift granted by the plaintiff to Singam Aiyar. The, District Judge says that their attention was drawn to the terms of the document and that they read the document. Reading the document and looking at the nature of the title under which Singam Aiyar held the property, he thinks is a kind of constructive notice; this is clearly wrong. They had actual notice of the title under which the property was held by Singam Aiyar, and therefore we must hold that the contesting defendants do not bring themselves within Section 126, last clause, so as to be able to support their title as against the plaintiff.
2. The learned Judges on the former occasion observed at the end of their judgment "It only remains to determine whether the defendants are entitled to resist the suit as purchasers for consideration without notice." It is only on that issue that they sent the case down for a finding. It is now argued before us that there are still matters to be disposed of by this Court before a final decree is passed in this case, and it is contended in the first instance that really no question of notice would arise on a proper construction of Exhibit A as the sale in the particular instance to the contesting defendants was authorized by the document. We could not allow this point to be raised now even if there is anything in it as it would be entirely against the judgment of the learned Judges on the former occasion by which the parties are bound.
3. In the next place it was argued that we should call for a finding on issues 5 and 6, issue 5 relating1 to the question of equities that might arise in favour of the defendants, and issue 6 relating to compensation for improvements alleged to have been made.
4. As regards issue 5, it is clear that the equities could, not be worked out in this case as an account will have to be gone into of all the dealings with all the properties of the plaintiff from the time when he left this country. The learned District Judge held that that could not be done without his heirs being made parties to the suit. Apparently on the former occasion when the case was before this Court the matter was not pressed and no finding was asked for on that issue.
5. Again as regards issue (6) the matter stands thus. The learned District Munsif found in very strong terms that the alleged claim for improvement was mythical and unproved. Against that no doubt on appeal to the District Judge a ground was stated in the appeal memo but it would appear from the judgment of the District Judge that the point was not really argued before him. Perhaps as he was reversing the decree in favour of the defendants the fact that it was not argued before him may not be very material. But when the case was before this Court on the former occasion when a finding was called for it should certainly have been brought to the notice of the learned Judges that a finding on this matter would be necessary for the disposal of this case. However, that may be, acting under Section 103 of the Civil Procedure Code we have heard the evidence on the point ourselves. We consider that the District Munsif's view of the claim for improvement is clearly correct. It is therefore unnecessary to remit the case on issue (6) even if we think that that issue is open to consideration at this stage. In these circumstances we must accept the finding.
6. In the result the decree of the Lower Appellate Court must be set aside and that of the District Munsif restored with costs in both Courts.