Full Judgment Text
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PETITIONER:
S. SHANMUGAM PILLAI AND ORS.
Vs.
RESPONDENT:
K. SHANMUGAM PILLAI AND ORS.
DATE OF JUDGMENT04/05/1972
BENCH:
HEGDE, K.S.
BENCH:
HEGDE, K.S.
GROVER, A.N.
CITATION:
1972 AIR 2069 1973 SCR (1) 570
CITATOR INFO :
R 1976 SC 807 (18,42)
R 1976 SC1715 (12)
R 1980 SC 312 (5)
RF 1992 SC1110 (33)
ACT:
Hindu Law-Widow’s estate-Family arrangement-Alienation by
widow-When reversioners precluded from challenging
alienation-Charitable Trust-Tests for determining whether
dedication complete or partial.
HEADNOTE:
The last male-holder endowed some of his properties for a
charity the management of which was hereditary. His widows
alienated the properties inherited by them including the
properties endowed. The appellants, as reversioners, filed
a suit for setting aside the alienations and claiming the
endowed properties as ’huqdars. The High Court dismissed
the suit.
HELD, dismissing the appeal, that the appellants were
precluded from questioning the alienations of the
properties.
(i) Equitable principles such as estoppel, election and
family settlement are not mere technical rules of evidence.
They have an important purpose to serve in the
administration of justice and their scope should not be
narrowed down.
An alienation by a Hindu widow is voidable and not void. A
reversioner to the estate of a deceased separated Hindu, who
has expressly assented to an alienation of property forming
part of the estate, made by the widow in possession, cannot
on succeeding to the estate after the widow’s death
repudiate his action and sue for possession of the property
alienated by the widow. If the presumptive reversioner is a
minor at the time he has taken a benefit under the
transaction, the principle of estoppel will be controlled by
another rule governing the law of minors. A minor cannot be
compelled to take the benefit of a transaction which will
have the effect of depriving him of his legal rights when
the succession opens. But a minor can, after attaining
majority, ratify the transaction entered into on his behalf
by his guardian. If he so ratifies the transaction entered
into by his guardian and accepts the benefit thereunder,
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there cannot be any. difference in the application of the
principle of election. If the original transaction
conferring the benefit was in favour of the minor his
enjoyment of the benefit after attaining the majority may in
itself be a sufficient act of ratification. [578 D-G]
Krishna Beharilal v. Gulab Chand, [1971] 1 S.C.C. 837, T.
V. R. Subbu Chetty’s Family Charities v. M. Raghava Mudaliar
and Ors., [1961] 3 S.C.R. 624, Fateh Singh v. Thakur Rukmini
Pamanit Maharan, I.L.R. XIV All. 339 Jagarlpudi
Seetharamayya v. Sarva Chandralya [1954] 2 M.L. J. 162,
Makineni Virayya v. Madamanchi Sapayya, [1964] 1 M.L.J. 276,
and Ramgouda Annagouda v. Bhausaheb, 54 I.A. 396, referred
to.
Further, if a person having full knowledge of his right as a
possible reversioner enters into a transaction which settles
his claim as well as the claim of the opponents at the
relevant time he cannot be permitted to go back on that
agreement when reversion actually falls open. Although con-
flict of legal claims in present or in future is generally a
condition for the validity of family arrangements it is not
necessarily so. Even bona We disputes, present or possible,
which may not involve legal claims would be sufficient.
Members of a Joint Hindu family may, to maintain peace
571
or to bring about harmony in the family, enter into such a
family arrangement. If such an agreement is entered into
bona fide and the terms thereto are fair in the
circumstances of a particular case, the courts would more,
re-adily give assent to such an agreement than to avoid it.
[580 D, 581A]
Sahu Madho Das v. Pandit Mukand Ram, [1955] 2 S.C.R. 22,
Maturi Pullaiah v. MaturI Narasimhan, A.I.R. 1966 S.C. 1836
and Krishna Beharilal v. Gulab Chand, [1971] 1 S.C.C. 837,
referred to.
(ii) A dedication of a property to religious or charitable
purposes may be either complete or partial. If the
dedication is complete a trust in favour of a charity is
created. If the dedication is partial, a trust in favour of
a charity is not created but a charge in favour of charity
is attached to, and follows the property which retains its
original private and secular character. Whether or not a
dedication is complete would naturally be a question of fact
to be determined in each case on the terms of the relevant
document if the dedication in question was made under a
document. If the income of the property is substantially
intended to be used for the purpose of a charity and only an
insignificant and minor portion of the income is expected or
required to be used and a substantial or the manager, it may
be possible to take the view that dedication is complete.
If on the other hand, for the maintenance of charity a minor
portion of the income is expected or required to be used and
a substantial surplus is left in the hands of the manager or
worshipper for his own private purposes, it would be
difficult to accept the theory of complete dedication.
In the present case the appellants failed to establish that
the dedication was complete. The dedication being only
partial the properties retained the character of private
properties and therefore the widows had a beneficial
interest in those properties.. [582 D-H]
Menakuru Dasaratharmal Reddi v. V. Duddukuru Subha Rao,
A.I.R. 1957 S.C. 797. referred to.
JUDGMENT:
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CIVIL APPELLATE JURISDICTION : Civil Appeal No. 693 of 1967.
Appeal from the judgment and decree dated November 10,
1966 of the Madras High Court in Appeals Nos. 245 and 530 of
1961.
M. C.Chagla and B. R. Agrawala, for the appellant.
S. T. Desai, K. R. Nagaraja, D. P.Mohanthy and S. Gopala-
kishnan, for the respondents Nos. 1, 3 and 4.
The Judgment of the Court was delivered by
Hegde, J.-This is a plaintiffs’ appeal by certificate. The
plaintiffs sued for possession of the properties described
in Sch. I and IV of the plaint as reversioners of one V.
Rm. Shanmugam Pillai who admittedly was the last male
holder of those properties as well as several other
properties. They also claimed past and future mesne profits
in respect of those properties. Properties detailed in Sch.
1 were said to have been endowed for a charity by name
Annadhana Chatram Charity. The plaintiffs claimed
possession of those properties as "Huqdars". They claimed
possession of Sch. IV properties as reversioners. The
trial court
572
decreed the plaintiffs’ claim in part. It gave a decree in
favour of the plaintiffs in respect of plaint Sch. 1
properties but dismissed their claim regarding Plaint-Sch.
IV properties. Both the parties appealed Against the
judgment and decree of the trial court. The High Court
allowed the appeal of the defendants and dismissed that of
the plaintiffs. In the result the entire suit was
dismissed.
In order to examine the various contentions advanced at the
hearing, it’ is necessary to state in brief various events
that took place prior to the institution of the suit. One
Ramalingam Pillai was the owner of a substantial part of the
suit properties. He had a brother by name Kuppan Pillai.
Ramalingam Pillai’s wife pre-deceased him. He had no
children. Ramalingani Pillai and Kuppan Pillai had married
sisters. Ramalingam Pillai in 1898 but Kuppan Pillai had
pre-deceased him. He had died in 1894, leaving behind him
his two daughters Palani Achi Ammal and Pichai Ammal.
Kuppan Pillai’s wife had also predeceased Ramalingam Pillai.
Ramalingam Pillai had brought up his brother’s daughters
Palani Achi Ammal and Pichai Amnial as his foster daughters.
Before his death, Ramalingam Pillai had got married Palani
Achi Ammal to V. Rm. Shanmugham Pillai, his maternal
uncle’s son by his first wife. The said Shanmugam Pillai
was associated with Ramalingam Pillai in his business. Du
September 29, 1898 Ramalingam Pillai executed a settlement
deed (Ex. A-2) settling his properties principally on
Palani Achi Ammal, Pichai Ammal and Shanmugam Pillai Under
that dead, he gave some properties to his deceased wife’s
sister’s son, Subramania Pillai. Subramania Pillai was the
son of Chitravadavammal, sister of the wives of Ramalingam
Pillai and Kuppan Pillai. Under Ex. A-2 Plaint-Sch. I
properties except item No. 4. were set apart for charities
which Ramalingam Pillai was carrying on. Under that
document Shanmugam Pillai was declared "Huqdars" of the afore
mentioned Annadhana charity. The Huqdarship was to be
hereditary in the family of Shammugam Pillai. Ramalingam
died very soon after executing Ex. A-2. After the-death
of Ramalingam Pillai, Shanmugam Pillai took as his second
wife Pichai Ammal, the sister of his first wife Palani Achi
Ammal. While managing the Annadhana Charities, Shanmugam
Pillai acquired ’ item No. 4 of Sch. T. and treated that
property as that of the Charity. Shanmugam Pillai had no
issues. He had executed a will on December 19, 1926. It
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was a registered will. That will be revoked on December 29,
1926. He died on December 31, 1926. After his death, his
widows put forward another will said to have been executed
by him on December 30, 1926 under which substantial bequests
were made to Shanmugam Pillai known as Vendor Shanmugam
Pillai, the step brother of V. Rm. Shamnugam Pillai as well
as to his step sisters Irulammai and her husband Subramania
Pillai.
5 73
On September 29, 1898, the widows of V. Rm. Shanmugam
Pillai and Vendor Shanmugar Pillai, his sister Irulammai and
her husband Subramania Pillai entered into a registered
agreement styled as "agreement of peaceful settlement".
This document is marked as Ex. B-2. To that document
Vendor Shanmugam Pillai’s sons, the present plaintiffs 1 and
2 were also parties. At that time, they were minors. They
were represented by their father Vendor Shanmugam Pillai.
Ex. A-2 primarily affirms the alleged will said to have
been executed by V. Rm. Shanmugam Pillai on December 30,
1926. As per the agreement entered into under Ex. B-2,
Vendor Shanmugam Pillai obtained possession of various items
or properties left behind by V. Rm. Shanmugam Pillai. In
his turn he admitted that the widows of V. Rm. Shanmugam
Pillai were the absolute owners of. the properties said to
have ’been bequeathed to them under the alleged will dated
December 30, 1926.. Ex. B-2 purports to be a’ family
arrangement. In that deed Vendor Shanmugam Pillai
acknowledged the right of the widows to manage the charities
and pass on that right to others.
Shortly after the execution of Ex. B-2, the senior widow
Palani Achi Ammal filed a suit for partition of the
properties mentioned in Ex. B-2. That suit was decreed.
Thereafter on July 20, 1931, the senior widow settled the
properties that she got as her share under the partition
decree Ex. B-3 on Kanthimathimatha Pillai, his wife Pichai
Ammal and their minor daughters as per the registered
settlement deed Ex. B-3. This Pichai Ammal is the daughter
of Subramania Pillai son of the original settlor’s wife’s
sister Chitravadamal. The two widows Palani Achi Ammal and
Pichai Ammal had brought up Pichai Ammal daughter of
Subramania Pillai as their foster daughter and had got her
married to the aforesaid Kanthimathinatha Pillai. The
settlement proceeds on the basis that Palani Achi Ammal is
absolutely entitled to the properties settled. Thereafter
the junior widow Pichal Ammal settled the properties that
she got under the partition decree in favour of Palani
Pillai, the 4th defendant in the suit, as per the registered
settlement deed Ex. B-4 dated December 20, 1937. Palani
Pillai is the son of Kanthimathinatha Pillai. He is
referred to in the settlement deed as the second son of the
foster daughter of the widows, Pichal Ammal.
After the execution of Ex. B-2, Sankaralingam Pillai,
brother of Vendor Shanmugam Pillai who was not a party to
Ex. B-2 filed a suit for declaration that the alleged will
dated December 30. 1926 is a forged document. The suit was
decreed. The trial court held the will put forward to be a
forgery. Palani Achi Ammal and Pichai Ammal were defendants
in that suit. The defendants appealed against the decision
of the trial court. When
574
the matter was pending in appeal in the High Court Sankara-
lingam Pillai died. Thereafter the third plaintiff who was
his adopted son was brought on record as the legal
representative of Sankaralingam Pillai. He was represented
by his guardian Meenakshi Ammal. That appeal was dismissed.
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The High Court came to the conclusion that on the evidence
on record, it was not satisfied about the genuineness of the
will. The present third plaintiff became major in 1938.
Even after obtaining a decree in his favour in the will
suit, the third plaintiff entered into an agreement with the
two widows on October 27, 1938 (Ex. B-5). Under this deed
he took substantial properties and acknowledged the absolute
right of the widows as regards the other properties detailed
therein. It may be noted that by the time Ex. B 5 came to.
be executed alienations in favour of Defendants 1 to 4 had
already taken place. Under Ex. B-5, the third plaintiff
also acknowledged the right of those defendants who were
also parties to that deed, to the properties settled on
them. Further under that document the third plaintiff
acknowledged the right of the two widows and defendants 1 to
4 to manage the properties set apart for charities.
We have earlier mentioned that at the time Ex. B-2 was
executed, plaintiffs 1 to 2 were minors. As seen earlier,
the father of the plaintiffs had secured for himself and for
is sons several items of properties under that agreement.
The first plain tiff became major on January 10, 1931
Thereafter he, on his own behalf and as the guardian of his
minor brother joined his aunt, Irulammal in partitioning the
properties jointly obtained by them under Ex. B-2. Ex. B-
10 dated October 11, 1931 is a settlement deed executed by
the first plaintiff for himself-and as the guardian of his
brother, the second plaintiff settling some of the
properties obtained under Ex. B-2 on their sister. The
second plaintiff after becoming a major joined with the
first plaintiff in conveying an item of property secured
under Ex. B-2 in favour of one Subbiah Konar (Ex. B-11).
Plaintiffs 1 and 2 effected various alienations under Ex.
B-12, B-15 and B-16 to B-42 of the properties obtained by
them under Ex. B-2. All these transactions proceeded on
the basis that the arrangement entered into under B-2 as was
valid one. Those transactions show that plaintiffs 1 and 2
ratified the arrangement made under Ex. B-2. The third
plaintiff in his turn alienated several items of the
property obtained by him under Ex. B-5. On October 16,
1939, he sold some portions of that property under Ex. B-34
for Rs. 4,000/-. Again under Ex. B-36, he sold some other
items on July 13, 1953 for a sum of Rs. 25,000/-. He also
effected certain exchanges under Ex. B-34 and B-35., All
these transactions proceeded on the basis that the
arrangement made under Ex. B-5 was a valid
575
one. Having set out the course of events, we shall now
examine whether it is open to the plaintiffs to challenge
the alienations effected in favour of D-1 to D-4.
We shall first take up the question whether the alienation
of the Plaint-Sch. IV properties by Palani Achi Ammal and
Pichai Ammal is open to challenge. There is now no dispute
that these two widows had only widows’ estate in the
properties left by their husband. The impugned alienations
were not effected to meet any necessity of the estate of the
deceased last male holder. Hence prima facie, the impugned
alienations, are not binding on the reversioners. But it is
now well settled that an alienation by a Hindu widow is only
void-able and not void. The reversioners may or may not
choose to avoid the same,-see Ramgouda Annagouda and ors. v.
Bhausaheb and ors. (1) and T. V. R. Subbu Chetty’s Family
Charities v. M. Raghava Mudaliar and ors(2).
Both the trial court as well as the appellate court have
come to the conclusion that the plaintiffs are not entitled
to avoid the alienations in question either on the ground of
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estoppel or election.
So far as the third plaintiff is concerned, he is clearly
estopped from challenging those alienations made. As seen
earlier even after the High Court came to the conclusion
that the will put forward by the widows is not proved to be
genuine, he entered into an agreement with those widows
under which he obtained some properties as absolute owner.
In his turn he acknowledged the right of the widows to the
remaining properties including those that had been alienated
in favour of defendants 1 to 4. As seen earlier by the time
Ex. B-5. came to be executed on October 27, 1938, the
alienations in favour of defendants 1 to had taken place.
D-1 to D-4 were parties to Ex.-B-5. It is clear from Ex. B-
5 that the, third plaintiff was aware of those alienations.
In Ex. B-5, he accepted the validity of those alienations.
In other words with full knowledge of facts the third
plaintiff represented to the widows as well as to defendants
1 to 4-that he accepts the validity of the alienations in
favour of defendants 1 to 4. By doing so he secured
immediate advantage of getting possession of fairly
extensive properties which he would not have otherwise got
till the death of the two widows. Hence he is clearly
estopoed from contesting the validity of the alienations in
favour of defendants 1 to 4.
The claim of the third plaintiff may be examined from
another angle. It is seen from the record that within about
a month of the decision of the High Court in the litigation
relating to the will, the guardian of the third plaintiff
entered into a compromise
(1) 54 I.A. 396.
(2) [1961] 3 S.C.R. 624.
576
with the two widows possibly with a view to avoid further
litigation. Evidently in pursuance, of that agreement Ex.
B-5 came to be executed after the third plaintiff became a
major. Hence Ex. B-5 can be considered as a family
settlement. That is not all. As seen earlier after he
became a major, on the strength of Ex. B-5, he alienated
several items of property obtained by him under that
document. We shall presently examine the relevant decisions
but at present it is sufficient to say that the third plain-
tiff is precluded from challenging the validity of the
alienation made in favour of defendants 1 to 4.
Let us now examine whether plaintiffs 1 and 2 can challenge
the alienations made in favour of defendants 1 to 4. The
trial court has come to the conclusion that they are
estopped from challenging the validity of the alienations in
favour of defendants 1 to 4 in respect of the properties
mentioned in Plaint-Sch. IV. The High Court has affirmed
that. decision on the ground that after they became majors
they had elected to stand by Ex. B-2. Hence they cannot
challenge the alienations in question. We have earlier seen
that very soon after the death of V. Rm. Shanmugam Pillai,
the father of the plaintiffs, Vendor Shanmugam Pillai on his
own behalf and as the guardian of plaintiffs 1 and 2 entered
into an agreement with the widows of V. Rm. Shanmumugam
Pillai (Ex. B-2). Under that agreement he secured
immediate possession of considerable properties for himself
and his minor sons, plaintiffs 1 and 2. Under Ex. B-2,
Vendor Shanmugam Pillai by implication, admitted the
genuineness of the alleged will of V. Rm. Shanmugam, Pillai
which was ultimately found to be not genuine by the High
Court as seen earlier. But for the agreement under Ex. B-2
Vendor Shanmugam Pillai would not have got any portion of
the properties left by V. Rm. Shanmugam Pillai during the
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life time of the widows of V. Rm. Shanmugam Pillai. It was
said that at the time when Ex. B-2 was entered into V.
Rm.Shanmugam Pillai might not have been aware of the fact
that the will put forward by the widows was not a genuine
one. Our attention was invited to the finding of the trial
court that Ex. B-2, was a part of a scheme on the part of
the widows of V. Rm. Shanmugam Pillai and Vendor Shanmugam
Pillai to defeat the claims of Sankarlingam Pillai, the
father of the third plaintiff. It is true that the
plaintiffs who were minors on the date of Ex. B-2 would not
have been bound by the agreement contained therein if they
had not chosen to stand by it. It was oven to them on
attaining majority either to stand by the agreement or
renounce the same. By the time they attained majority, the
will case had been decided by the High Court. It is
reasonable to assume that they were aware of the fact that
the High Court had come to the conclusion that the will put
forward was not genuine. Therefore
577
it was open to them to denounce the agreement under Ex. B-
2,But they did not choose to do so. On the other hand they
not only continued to enjoy the properties that they and
their father got under Ex. B-2 but also went on allienating
various items of those properties, see Ex. B-9, B-10, B-11,
B-12, B-15 and B-16 to B-42. From these transactions, it is
clear that plaintiffs 1 and 2 ratified the agreement entered
into under Ex. B-2. It is also reasonable to hold that
after becoming majors instead of renouncing the benefit
obtained under Ex. B-2, they elected to stand by that
agreement and retained the benefit obtained under that docu-
ment.
Ex. B-2 and B-5 read together may also be considered as con-
stituting a family arrangement. The plaintiffs and the
widows of V. Rm. Shanmugam Pillai are near relations.
There were several disputes between the parties. The
parties must have thought it wise that instead of spending
their money and energy in courts, to settle their disputes
amicably. The father of plaintiffs 1 and 2 and later on the
plaintiffs were only presumptive reversioners, so also was
the third plaintiff. None of them had any vested right in
the suit properties till the death of the widows. Hence
first the father of plaintiffs 1 and 2 and later on the
plaintiffs must have thought that a bird in hand is worth
more than two in the bush. If in the interest of the family
properties or family peace the close relations had settled
their disputes amicably, this court will be reluctant to
disturb the same. The courts generally lean in favour of
family arrangements.
Equitable principles such as estoppel, election, family
settlement etc. are not mere technical rules of evidence.
They have an important purpose to serve in the
administration of _justice. The ultimate aim of the law is
to secure justice. In recent times in order to render
justice between the parties, courts have been liberally
relying on those principles. We would hesitate to narrow
down their scope.
Now let, us proceed to consider the decided cases read to us
at the hearing of the appeal.
In Fateh Singh v. Thakur Rukmini Ramanji Maharaj(1), a Full
Bench, of the Allahabad High Court held that a reversioner
to the estate of a deceased separated Hindu, who has
expressly assented to an alienation of property forming part
of the estate, made by the widow in possession, cannot on
succeeding to the estate after the widow’s death repudiate
his action and sue for possession of the property alienated
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by the widow. The ratio of that decision clearly applies to
the claim made by the third plaintiff in this case.
578
In Jagarlapudi Seetharamayya v. Sarva Chandrayya and
ors.,(1) Andhra Pradesh High Court was Called upon to
consider a claim somewhat similar to that made by plaintiffs
1 and 2. Therein the court ruled that during the life time
of the widow a presumptive reversioner has only a Spec
successionis in the estate of the last mate holder and he
cannot, therefore, purport to convey the Said interest or
otherwise deal with it. His rights in the property would be
crystallised only after succession opens.. But after
succession opens or even during the widow’s life time he may
elect to stand by the transaction entered into by the widow
or otherwise ratify it, in which case he would be precluded
from questioning the transaction. Proceeding further the
court enumerated the three classes of estoppels that may
arise for consideration in dealing with reversioner’s
challenge to a widow’s alienation. They are : ( 1 ) that
which is embodied in s. 1 1 5 of the Evidence Act, (2)
election in the strict sense of the term whereby the person
electing takes a benefit under the transaction and (3)
ratification, i.e., agreeing to abide by the transaction. A
presumptive reversioner coming under any one of the
aforesaid categories is precluded from questioning the
transaction, when succession opens and when he becomes the
actual reversioner. But if the presumptive reversioner is a
minor at the time he has taken a benefit under the
transaction, the principle of estoppel win be controlled by
another rule governing the law of minors. A minor obviously
cannot be compelled to take the benefit of a transaction
which will have the effect of depriving him of his legal
rights when the succession opens. But a minor can certainly
after attaining majority ratify the transaction entered into
on his behalf by his guardian. If he so ratifies the
transaction entered into by his guardian and accepts the
benefit thereunder, there cannot be any difference in the
application of the principle of election. The effect would
be the same. It is as if he was a major at the time the
transaction was affected and the benefit was conferred on
him. What he could not do at the time of the transaction
must be deemed to have been done by him by his act of
ratification. It may be that on attaining majority he has
the option to disown the transaction and disgorge the
benefit or to accept it and adopt it as his own. Whether
after attaining majority the quandum minor accepted the
benefit or disowned it, is a question to be decided on the
facts. of each case.
In the course of the judgment Subba Rao C.J. (as he then
was) dealing with the case of persons who were minors at the
time the transaction was entered into observed
"The mere act of succession to the father may not amount to
ratification as the son’s enjoyment is consistent
(1) [1954] 2, M.L.J. P. 162.
579
with his right of inheritance to the father. But he can
either expressly or by necessary implication ratify the
transaction entered into by the father. But if the original
transaction conferring the benefit was in favour of the
minor, different considerations would arise. His enjoyment
of the benefit after attaining majority may in itself be a
sufficient act of ratification."
In support of the contention that the plaintiffs are not
estopped which expression includes not only the estoppel
proper but also "election" Mr. M. C. Chagla, learned Counsel
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for the appellants relied on the decision of a Division
Bench of the Madras High Court in Makineni Virayya and ors.
v. Madamanchi Bapayya(1). On the facts of that case, the
learned judge came to the conclusion that the plaintiffs-
reversioners in that case were not estopped from claiming
the suit property on the death of the widow. But in the
course of his judgment, after examining several decisions
Patanjali Sastri J. (,as he then was) speaking for the Court
observed
"These decisions will be found on examination to proceed on
the principle that an allienation by a Hindu widow without
justifying necessity is not void but only voidable at the
instance of the reversionary heir who may either affirm or
avoid it, but will be precluded from questioning it if he
does something which amounts to an affirmation of the
transaction. Such election to hold the sale good, as it has
sometimes been expressed, may, it has been held, take place
even before the death of the widow while the reversionary
heir was only a presumptive reversioner."
In our opinion this decision instead of helping the,
plaintiffs definitely supports the contentions of the
defendants.
It was urged on behalf of the plaintiffs that it was not
permissible for the father of the plaintiffs 1 and 2 as well
as the third plaintiff to transfer their contingent interest
as remote reversioners; hence we must hold that the
transactions entered into under Exs. B-2 to B-5 were wholly
void. This contention can best be answered by quoting a
passage from the decision of the Judicial Committee in
Ramgouda Annagouda’s case ( 2 ). Therein repelling a similar
contention the Judicial Committee observed
"It was argued that Annagouda’s contingent interest as a
remote reversioner could not be validly sold by him, as it
was a mere spec succession is, and an agreement to sell such
interest would also be void in law. It is not necessary to
consider that question because he did not
(1) [1946] 1, M.L.J. 276.
(2) 54 I.A. 396.
580
in fact either sell or agree to sell his reversionary
interest. It is settled law that an alienation by a widow
in excess of her powers is not altogether void but only
voidable by the reversioners, who may either singly or as a
’body be precluded from exercising their right to avoid it
either by express ratification or by acts which treat it as
valid or binding."
It is true that a widow cannot enlarge her own estate by
entering into a contract. But as observed by this Court. in
Krishna Beharilal V. Gulab Chand(1):
"It is well settled that a Hindu widow cannot enlarge her
estate by entering into a compromise with third parties to
the prejudice of the ultimate reversioner. But the same
will not be true if the, compromise is entered into with
persons who ultimately become the reversioners."
As observed by this Court in T. V. R. Subbu Chetty’s Family
Charities Case (supra), that if a person having full
knowledge of his right as a possible reversioner enters into a tra
nsaction which settles his claim as well as the claim
of the opponents at the relevant time, he cannot be
permitted to go back on that agreement when reversion
actually falls open.
The application of the tests laid down in the above
decisions leads to the firm conclusion that, the plaintiffs
are precluded from questioning the alienations of the
various items of property covered by Sch. IV of the plaint.
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Now turning to the plea of family arrangement, as observed
by this Court in Sahu Madho Das and ors. v. Pandit Mukand
Ram and another(2), the Courts lean strongly in favour of
family arrangements that bring about harmony in a family and
do justicto its various members and avoid, in anticipation,
future disputes which might ruin them all. As observed in
that case the family arrangement can as a matter of law be
inferred from a long course of dealings between the parties.
In Maturi Pullaiah and anr. v. Maturi Harasimhan and ors.
this Court held that although conflict of legal claims in
presenti, or in future is generally a condition for the
validity of family arrangements, it is not necessarily so.
Even bona-fide disputes present or possible, which may not
involve legal claims would be sufficient. Members of a
joint Hindu family may, to maintain peace or to bring about
harmony in the family, enter into such i
(1) [1971] S.C.C 837. (3) [1955] 2, S.C. R. 22,
(2) A.I.R. 1966 S.C 1836.
581
family arrangement. If such an agreement is entered into
bona. fide and the terms thereto are fair in the
circumstances of a particular case, the courts would more
readily give assent to such an agreement than to avoid it.
In Krishna Beharilal’s case (supra), this Court observed:
"The dispute between the parties was in respect of a certain
property which was originally owned by their common ancestor
namely Chhedilal. To consider a settlement as a family
arrangement, it is not necessary that the parties to the
compromise should all belong to one family. As observed by
this Court in Ram Charan Das v. Girjanandini Devi and ors.
[1965] 3, S.C.R. 841, the word "family" in the
context of a family arrangement is not to ’be
understood in a narrow sense of being a group
of persons who are recognised in law as having
a right of succession or having a claim to a
$hare in the property in dispute. If the
dispute which is settled is one between near
relations then the settlement of such a
dispute can be considered as a-family
arrangementsee Ramcharan Das]s case (supra)."
Judged by the tests laid down in these decisions, we can
reasonably come to the conclusion that Ex. B-2 and B-5 read
together brought about a family settlement.
This leaves us with the dispute relating to properties set
out in Sch. I of the plaint.
So far as the properties set out in Sch. I of the paint are
concerned, the High Court and the trial court have reached
different conclusions. The trial court held that under Ex.
A-2, Ramalingam Pillai had made a complete dedication of
those properties for charities and the management of the
charities had been left to V. Rm. Shanmugam Pillai and
after him to his successors. On the basis of those
conclusions that Court held that the alienation of those
properties is invalid and not binding, on the plaintiffs.
The High Court felt unable to come to any firm conclusion on
the evidence on record, as to whether the dedication made
under Ex. A-2 by Ramalingam Pillai was complete or partial.
Further it came to the conclusion that the plaintiffs are
precluded from questioning the management of those
properties by defendants 1 to 4 in view of the various
transactions between the parties referred to earlier.
It may be noted that the parties are agreed that charities
mentioned in Ex. A-2 have to be conducted in accordance
with the directions given in Ex. A-2. The only question is
who should conduct them. The further controversy between
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the parties is whether the dedication made under Ex. A-2 is
partial or complete.
532
We agree with the High Court that the evidence on record is
not satisfactory enough to reach a firm conclusion as to the
nature of the dedication. Plaintiffs have failed to adduce
acceptable evidence as regards the income of the properties
set apart for charities. That being so, even if we accept
the estimate made by the trial court regarding the expenses
to be incurred for conducting those charities, we have no
basis to find out the extent of the surplus that is likely
to be left in the hands of the persons who manage those
charities. Under the-se circumstances it is not possible to come
to the conclusion that under Ex. A-2, Ramaligam
Pillai had created a trust in respect of those properties
for conducting the charities mentioned in Ex. A-2.
As observed by this Court in Menakuru Dasaratharami Red-di
and anr. v. Duddukuru Subba Rao and ors. (1) that dedication
or a property to religious or charitable purposes may be
either complete or partial. If the dedication is complete a tr
ust in favour of ,a charity is created. If the
dedication is partial, a trust in favour of a charity is not
created but a charge in favour of the charity is attached
to, and follows, the property which retains its original
private and secular character. Whether or not a dedication
is complete would naturally be a question of fact to be
determined in each case on the terms of the relevant
document if the dedication in question was made under a
document. In such a case it is always a matter of
ascertaining the true intention of the parties, it is
obvious that such an intention must be, gathered on a. fair
and reasonable construction of the document considered as a
If the income of the property is substantially intended to
be used for the purpose of a charity and only an
insignificant and minor portion of it is allowed to be used
for the maintenance of the worshipper or the manager, it may
be possible to take the view that dedication is complete.
If, on the other hand, for the maintenance of charity a
minor portion of the income is expected or required to be
used and a substantial surplus is left in the hands ,of the
manager or worshipper for his own private purposes, it would
be difficult to accept the theory of complete dedication.
Ex. A-2, after setting out the various charities to be
conducted concludes by saying that "If, after conducting the
said charities properly, there be any surplus, the same
shall be utilised by the ’said Shanmugam Pillai and his
heirs for family expenses. They should also look after the
same carefully and properly." This shows that the entire
income of the properties set apart for charities was not
thought to be necessary for conducting the charities. ’It
was for the plaintiffs to establish that the dedication was
complete and cosequently there was a resulting trust. As
they have
(1) AIR 1957 S.C. 797.
583
failed to establish the same, for the purpose of this case,
we have to proceed on the basis that the dedication was only
partial and the properties retained the character of private
properties. Therefore the, widows of V. Rm. Shanmugam
Pillai had a beneficial interest in those properties see
Kalipada Chakraborti and anr. v. Palani Bala Devi and
ors(1). As seen earlier they had alienated their interest in
those properties. For the reasons already mentioned, the
plaintiffs are precluded from questioning the validity of
those alienations. It is not open now to them to contend
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that the alienations in question are invalid. It is not
necessary for as to decide in this case whether their
successors can challenge those alienations. Suffice it to
say that the plaintiffs are precluded from challenging those
alienations.
In the result this appeal fails and the same is dismissed
with costs.
K.B.N. Appeal dimissed.
(1) [1953] S.C.R. 503.
584