# T. V. R. SUBBU CHETTY'S FAMILY CHARITIES v. M. RAGHAVA MUDALIAR AND OTHERS

- **Citation:** [1961] 3 S.C.R. 624
- **Court:** Supreme Court of India
- **Decided:** 1961
- **Bench:** P. B. Gajendragadkar, K. N. Wanohoo, K. C. Das GuPTa
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/t-v-r-subbu-chetty-s-family-charities-v-m-raghava-mudaliar-and-others-2060
- **Pages:** 16

## Headnote

Hindu Law-Alienation by widow-Reversioner's suit to set
aside alienation-Ratification of alienation by reversioner.
M, a Hindu, died leaving his mother, widow, sisters and
sisters' son and daughters. There were disputes between the
mother and the widow which were settled at the instance of certain arbitrators. Under this settlement a portion of one of the
houses was given to a sister of M, another portion to ,R son of
another sister and his sister and a third portion to the daughter
of the third sister. Certain properties, which had been agreed to
be .sold under the settlement were sold to the appellant by the
mother and the widow. After the death of the mother and the
widow R filed a suit as the next reversioner of M for recovery of
the properties sold on the ground that the alienation was without
necessity and was not binding on him. The appellant contended
(i) that R was precfo.ded from disputing the settlement between
the mother and the widow as he had received a benefit under it
and had ratified it by his conduct and
(ii) that the transfer was
for legal necessity.
Held, that the transfer was not binding on Rand he was
entitled to avoid it. The settlement between the mother and the
widow was also not binding on R. If a person having full
knowledge of his rights 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 arrangement when reversion actually .falls open.
But the mere fact that the reversioner has received some:benefit
under the transaction or has not challenged its validity wheii'il:•
took place cann·ot bar his rights as a reversioner. It will always
be a question of fact as to whether the conduct of the reversioner
on which the plea of ratification is based does in law amount to
ratification properly so called. In the. present case the settlement
was not in the nature of a family arrangement; at that time R
was a minor .and was-not a party to any of the said transactions.
There was no conduct of R which could amount to ratification of
the settlement or of the alienation. At the time when he accepted
the gift he could not know about his rights .as a possible reversioner. Further, there was no legal necessity for the transfer. ·
Sahu Madho Das v. Pandit Mukand Ram [1955] 2 S.C.R.. 22,
Dhiyan Singh v. fugal Kishore [1952] S.C.R. 478, Kanhai Lal v.
Brij LaJ (1918) L.R. 45 I.A. rr8, R•ngasami Gounden v. N achiappa
Gounden (r9r8) L.R. 46 I.A. 72 and Ramgouda Annacouda v.
Bhausakb (r927) L.R. 54 I.A. 396, referred to.
3 S.C.R.
SUPREME COURT REPORTS
625
CIVIL APPELLATE JmtISDICTION:
Civil Appeal No.
1961
. 204/1956. '
Subbu Ch.tly's
Appeal from the judgment a.nd
decree dated Family Chari1ies
February 23, 1951, of the Madras High Court in 0. S.
v.
Appeal No. 13/1948.
Raghava Mudaliar
R. Keshva Aiyangar and M. S. K. Aiyangarc, for the
appellant.
A. V. Viswanatha Sastri and Naunit
Lal,, for
respondent No. 1.
B. K. B. Naidu, for respondent No. 6.
1961. January 27. The Judgment of the Court was
delivered by
GAJENDRAGADKAR, J.-This appeal a.rises out of a. Gajendragadkar J.
suit filed by the respondent M. Rag ha. va. Mudaliar who
claims to be the reversioner of Madha.va. Rama.nuja.
Mudaliar. In his suit the respondent alle·ges that
after the death of Madha.va. Ramanuja Mudaliar which
took place on March 22, 1893, his property came into
the possession of his widow Manicka.mmal. Sub.
sequently the said Manickammal and Rengammal, the
widowed mother of the deceased Madhava Rama.nuja
Mudaliar alienated the properties without any legal
necessity. According to the respondent the . said
alienation was not binding on him a.nd so he wa.s
entitled to recover possession of the said property free
of a.ny encumbrance or charge. Manickamma.l died
on October 18, 1941, whereas Rengammal died in
June, 1921. On the death of the widow Ma.nickammal
reversion fell open and that has given a cause of action
to the respondent fo

## Text

January •7·
624
SUPREME COURT REPORTS
[1961)
T. V. R. SUBBU CHETTY'S FAMILY CHARITIES
v.
M. RAGHAVA MUDALIAR AND OTHERS.
(P. B. GAJENDRAGADKAR, K. N. WANOHOO and
K. C. Das GuPTa, JJ.)
Hindu Law-Alienation by widow-Reversioner's suit to set
aside alienation-Ratification of alienation by reversioner.
M, a Hindu, died leaving his mother, widow, sisters and
sisters' son and daughters. There were disputes between the
mother and the widow which were settled at the instance of certain arbitrators. Under this settlement a portion of one of the
houses was given to a sister of M, another portion to ,R son of
another sister and his sister and a third portion to the daughter
of the third sister. Certain properties, which had been agreed to
be .sold under the settlement were sold to the appellant by the
mother and the widow. After the death of the mother and the
widow R filed a suit as the next reversioner of M for recovery of
the properties sold on the ground that the alienation was without
necessity and was not binding on him. The appellant contended
(i) that R was precfo.ded from disputing the settlement between
the mother and the widow as he had received a benefit under it
and had ratified it by his conduct and
(ii) that the transfer was
for legal necessity.
Held, that the transfer was not binding on Rand he was
entitled to avoid it. The settlement between the mother and the
widow was also not binding on R. If a person having full
knowledge of his rights 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 arrangement when reversion actually .falls open.
But the mere fact that the reversioner has received some:benefit
under the transaction or has not challenged its validity wheii'il:•
took place cann·ot bar his rights as a reversioner. It will always
be a question of fact as to whether the conduct of the reversioner
on which the plea of ratification is based does in law amount to
ratification properly so called. In the. present case the settlement
was not in the nature of a family arrangement; at that time R
was a minor .and was-not a party to any of the said transactions.
There was no conduct of R which could amount to ratification of
the settlement or of the alienation. At the time when he accepted
the gift he could not know about his rights .as a possible reversioner. Further, there was no legal necessity for the transfer. ·
Sahu Madho Das v. Pandit Mukand Ram [1955] 2 S.C.R.. 22,
Dhiyan Singh v. fugal Kishore [1952] S.C.R. 478, Kanhai Lal v.
Brij LaJ (1918) L.R. 45 I.A. rr8, R•ngasami Gounden v. N achiappa
Gounden (r9r8) L.R. 46 I.A. 72 and Ramgouda Annacouda v.
Bhausakb (r927) L.R. 54 I.A. 396, referred to.
3 S.C.R.
SUPREME COURT REPORTS
625
CIVIL APPELLATE JmtISDICTION:
Civil Appeal No.
1961
. 204/1956. '
Subbu Ch.tly's
Appeal from the judgment a.nd
decree dated Family Chari1ies
February 23, 1951, of the Madras High Court in 0. S.
v.
Appeal No. 13/1948.
Raghava Mudaliar
R. Keshva Aiyangar and M. S. K. Aiyangarc, for the
appellant.
A. V. Viswanatha Sastri and Naunit
Lal,, for
respondent No. 1.
B. K. B. Naidu, for respondent No. 6.
1961. January 27. The Judgment of the Court was
delivered by
GAJENDRAGADKAR, J.-This appeal a.rises out of a. Gajendragadkar J.
suit filed by the respondent M. Rag ha. va. Mudaliar who
claims to be the reversioner of Madha.va. Rama.nuja.
Mudaliar. In his suit the respondent alle·ges that
after the death of Madha.va. Ramanuja Mudaliar which
took place on March 22, 1893, his property came into
the possession of his widow Manicka.mmal. Sub.
sequently the said Manickammal and Rengammal, the
widowed mother of the deceased Madhava Rama.nuja
Mudaliar alienated the properties without any legal
necessity. According to the respondent the . said
alienation was not binding on him a.nd so he wa.s
entitled to recover possession of the said property free
of a.ny encumbrance or charge. Manickamma.l died
on October 18, 1941, whereas Rengammal died in
June, 1921. On the death of the widow Ma.nickammal
reversion fell open and that has given a cause of action
to the respondent for his present suit.
Madha.va Ramanuja Mudaliar died issueless and was
survived by his widow, his widowed mother, his sister
Anda.Jammal and the respondent
and his sister
Apurupamma.l who a.re the children of Amma.kannu
Ammal the second sister of Madhava Ramanuja
Muda.liar, and Ethirajamma.l the daughter of the third
sister of Madhava Ramanuja Mudaliar. To his suit
the respondent imple.aded the appellant Andalammal,
Krishnasami Mudaliar, son of the said Apurupamma.l
(defendant 1) and Susila Ba.i Aroma.I daughter of
626
SUPREME COURT REPORTS
[1961]
'96'
Ethirajammal as defendants 2 to 4. The Udayavar
Subbu Chelty's Temp!e. by the sole trustee Bysani Krishnaiah Chetty
Family Charities was JOmed as defendant 5.
v.
After her husband's death Manickammal obtained
Raghava Mudaliar letters of administration to his estate from the High
--
Court at Madras. It appears that the relations of the
Gajendragadkar J. widow with her mother-in-law were embittered, and
that led to disputes between them. These disputes
were settled by the two widows in pursuance of the
advice of certain arbitrators who mediated between
them. The settlement thus reached was recorded in
writing on May 27, 1893 (Ex. D-2). It would be
relevent to refer to the main terms of the settlement
at this stage. This settlement set out the properties
covered by it as Serial Nos. 1 to 5. Item No. 1 which
was a house in three blocks was divided between the
respondent and his sister Apurupammal who were
to take one share; Ethirajammal who was to take
another share ; and Andalammal who was to take the
third share. House No. 62, which was Serial No. 2,
and houses and shops Nos. 126 and 127 which were
shown as Serial No. 3 were agreed to be sold, and it
was settled that out of the sale proceeds the debts of
the deceased Madhava Ramanuja Mudaliar and his
father should be discharged ; expenses incurred in
obtaining the letters of administration should then be
deducted along with the expenses of sale, and the
balance should be divided equally between the two
widows subject to a payment of Rs. 1,000/- to the
mother-in-law in lieu of her jewels. The two cawnies
of lands which were Serial No. 4 were agreed to be
given to the maternal uncle of the deceased Madhava
Ramanuja Mudaliar, whereas the moveables which
were shown as Serial No. 5 had to be divided half and
half between the two widows. This document contained a clause which provided that "in case any one
of us contravenes the terms the other party shall not
only cancel this agreement but his title to the estate
of Madhava Ramanuja Mudaliar prior to the agreement shall in no way be affected subject to which this
agreement has been entered into. "
The document
thus eJ:ecuted was attested by four attesting witnesses.
3 S.C.R.
SUPREME COURT REPORTS
627
It appears that soon after this agreement was
I96r
finalised; KrishnaRamy Mudaliar, defendant 3, object5 bbu Chell •
ed to its validity and disputed the right of the widows Fa:nily cnarrii: .
to deal with the property in the manner specified in it.
v.
He was, however, persuaded to abandon his objectionsRaghava Mudalit
and a sale deed was executed by him conveving his
--
.
· h
th- t
'd
f
•ct"
•
Gajendragadkar J
revers1onery ng ts to
e wo w1 ows o! cons1 erat10n
on September 10, 1894. By this document defendant 3
purported to recognise and grant an absolute title to
the two widows in regard to the estate of the deceased
(Ex. D-3).
Subsequent to this document the two
widows began to enjoy the properties as agreed between them.
On February 4, 1895 the two widows sold item No. I
in Schedule II attached to the plaint, i.e., Nos. 126 and
127, Anna Pillai Street and Audiappa Naick Street
respectively to
'fhatha Venkata Raghava Subbu
Chetty. The appellant is the successor in title of the
said divisior: in respect of the said item No. 1 in
Schedule IL In the present appeal we are concerned
only with this item.
On M:ay 27, 1895, a composite deed of partition and
administration of property of ·the deceased was
executed by and _between the two widows (Ex. D-5).
By this document the three blocks in the house shown
as Serial Ne,. 1 in Ex. D-2 were delivered into the
possession of the respective donees. The maternal
uncle of the deceased was given two cawnies of lands
as therein stipulated and the debts of the deceased
were discharged and expenses incurred in respect of
the letters of administration were met. It is under
these circumstances that the respondent filed his
present Suit No. 56 of 1946 on the Original Side of
the Madras High Court; and he claimed that the
alienations made by the two widows were not binding
on him and he was entitled to the possession of the
property left by the deceased Madhava Ramanuja.
The schedule attached to the plaint referred to four
items of property, and as we have already pointed
out it is only with item No. 1 out of these four items
with which we are concerned in the present appeal,
628
SUPREME COURT REPORTS
[1961]
In regard to the caid item the appellant urged that
Subbu Cllelly's the agreement between the two widows (Ex, D-2) and
Family Cllariti" the subsequent composite deed executed in pursuance
v.
. of it (Ex. D-5) were in the nature of a family arrange1/lagll•va Mudal1ar ment, and as such they were binding on the respondGajendragadkar J. ent. In was also ~lleged by the appellant that the
respondent had rec1eved benefit under the said arrangement and by his conduct had ratified it. The appellant further pleaded that the transfer in favour of
his predecessor was supported by legal necessity.
Incidentally a plea of surrender was also raised by
the appellant.
Mr. Justice Kunhiraman, who tried the suit, held
that there was a family arrangement which bound
the respondent. He also observed that the respondent had received benefit under the said arrangement
and was therefore precluded from challenging its
validity. The learned Judge incidentally made some
observations which showed that he was inclined to
uphold the plea of surrender raised by the appellant.
In the result the respondent's suit was dismissed.
The respondent then took the matter in appeal and
succeeded. The appeal court held that the impugned
arrangement cannot be said to be a bona fide family
settlement which would bind the respondent. Before
the appeal court it was conceded that the plea of
surrender raised by the appellant could not be sustained, and that the contention that the respondent
was bound by the family arrangement cot>ld not also
be sustained. It was, however, urged on behalf of the
appellant that the respondent's conduct precluded him
from disputing the validity of the arrangement but this
argument was rejected by the appeal court; likewise,
the contentions that the transfer in favour of the
appellant's predecessor was justified by legal necessity
also failed.
As a result of these findings the respondent's appeal was allowed, the decree passed by the
trial court was set aside, and the claim for possession
made by the respondent was decreed. The respondent's suit was accordingly directed to go before the
Official Referee for ascertainment of mesne profits
3 S.C.R.
SUPREME COURT REPORTS
629
claimed by him. It is against this decree that the
appellant has come to this Court in appeal.
S"1ib" c1uuy'•
'!'he principal point which has· been urged before us Family C4a1i1us
by Mr. R. Keshav Aiyangar on behalf of the appellant
v.
""'
is that in substance the respondent has ratified
theR•c""""-~"""
impugned transaction, has received benefit under it, Gafmd.agaakar J
and by his conduct has affirmed it, and so
it is
not open to him to challenge its validity and binding
character. In support of this argument he has canvassed for our acceptance the proposition that if a
person with full knowledge of his rights assents to a
transaction which may otherwise be voidable at his
instance and takes benefit under it, he is s'libsequently
precluded from disputing its validity. In support of
this argument he has relied on a decision of this Court
in Sahu Madho Das v. Pandit Mukand Ram {1). In
that case this Court, has held that it is settled law
that an alienation by a widow in exercise 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. This Court also observed that it is
a principle of general application underlying many
branches of the law that a person who with full knowledge of his rights has once elected to assent to a
transaction voidable at his instance and has thus
elected not to exercise his right to a void it, cannot go
back on that election and a void it at a later stage;
having made his election he is bound by it. The
argument is that though the respondent may not be
a party to the impugned transaction, if by his conduct
it can be said that he has elected to uphold it and has
received benefit under it he cannot be allowed to go
back upon the election. There is of course no doubt
about the correctness of the principle thus enunciated, but the difficulty in the way of the appellant arises
when the applicability of the said principle is tested
in the light of the relevant material findings in that
case. That is why it is necessary to refer very briefly
to the findings of fa.ct on which the decision in Sahw,
(1) (1955) 2 S.C.R. 22.
630
SUPREME COURT REPORTS
[1961)
'96'
Madho Das's case (1) rests.
In that case this Court
Subbu Chetty's considered the question as to whether the plaintiff
Family Cha1ities Mukand Ram had assented to the impugned family
· v.
arrangement, and observed that as he was not a party
qaghava Muda/iar t0 the arrangement his assent to the arrangPmerit
G . d--dk 1 itself and not to something else must be clearlv esta.
"1'" raga
ar · blished, and also his knowleJge of the facts. "Then,
having thus posed the question the material evidcuce
was examined, and it was held that the cumulative
effect of the said evidence led to the reasonable
inference that the plaintiff's assent was to the very
arrangement itself, and his conduct as well as the
conduct of his brother Kanhaiya Lal was consistent
only with that hypothesis; in other words, the
examination of the material evidence justified the
inference that Mukand Ram had in fact elected to
assent to the transaction and had recci yed benefit
under it, and so the doctrine of election or ratification
precluded him from disputing the validity of the said
transaction. It is, however, significant that dealing
with the case of the 1ainor sons, who were not parties
either personally or through their guardians, and who
did not claim title either through Pato or her
daughters, this Court expressly observed that so far
as they were concerned what they received were gifts
pure and simple and the only assent that could be
inferred from the mere acceptance of the gifts and
nothing more would be assent to that particular gift
and not assent to the gifts similarly made to others.
This observation brings out in bold relief by contrast
the relevant findfogs in the light of which the plaintiff
was held precluded from disputing the validity of the
impugned transaction.
The appellant has also relied on another decision of
this Court in Dhiyan Singh v. Jugal Kishore (2 ).
In
that case it was held thttt even if the impugned award
was invalid the plaintiff who disputed its ~-alidity
wes barred from making that claim by reason of
estoppel.
Brijlal against whom the plea of estoppel
was effectively raised appeared to have made a claim
te the estate in <JUAstion in 1884 when the impugned
(I) [1955] 2 S.C.R. n
(:<) [19521S.C.R.478
t
3 S.C.R.
SUPREME COURT REPORTS
631
transaction took place, and it was as a result of this
1961
claim that settlement was reached and the impugned Subbu Chitty"•
transaction effected. This Court held that even if Family Ch•rilios
the award which was challenged was invalid Brijlal
v.
by his conduct had precluded himself from raising R•ghava Mudaliar
the contention against the validity of the award. In G . d -:ik
1
coming to this conclusion this Court observed that "1'" rag
•r ·
the case before it was very similar to the one which
the Privy Council had decided in Kanhai Lal v. Brij
Lal('). When we turn to the ·privy Council decision
itself we find that Kanhai Lal, who was held by the
Privy Council to be precluded from challenging the
arrangement to which he was a party, had set up a
title in himself on the strength of an alleged adoption,
and when, having regard to the said title, a settlement was reached and a compromise arrangement
was made, it was held by the Privy Council that the
doctrine of estoppal came into play. Kanhai Lal,
who subsequently became a reversioner according to
the Privy Council, was bound by the previous arrangement and "cannot now claim as a reversioner."
These two decisions also emphasise the fact that if a
person having full knowledge of his rights as a possible
reversioner enters into a transaction which settles his
claim as well as the claim of his opponents at the
relevant time, he cannot be permitted to go back on
that arrangement when reversion actually falls open.
There are two other decisions of the Privy Council
to which reference may be made. In Rangaswami
Gounden v. Nachiappa Gounden (')the Privy Council
had to deal mainly with the question of surrender,
its theory and its essential features. Incidentally it
had also to deal with the case of reversioner who had
taken from an alienee from a Hindu widow a mortgage
of a property which included a part of the property
alienated, and the question raised was whelher by
reason of the fact that the reversioner had a mortgage
of the said property he was precluded from challenging the validity of the SR.id alienation ; and the Privy
Council held that he was not so precluded. In dealing with this aspect of the question the Privy Council
(1) (1919) L.R. 45 I.A. p8.
81
(2) (1918) LR. 46 I.A. 72.
832
SUPREME COURT REPORTS
ll961J
1961
observed that it is well.settled that though he who
SNbbu C/JIU:/I may be termed a presumptive reversionary heir has a
Family c11a,;,.,, title to challenge an alienation at its inception, he
v.
need not do so, but is entitled to wait till the death of
R"lllava Mudali•• the widow has affirmed his character, a character
.GtlJ••d•"l!•dllar 1, which up to that date might be defeated by birth or hy
adoption.
The Privy Council then examined the
nature of the mortgage, the properties included in it,
and observed that the said mortgage consisted of
2/14ths of the mitta which had come to the mortgagors in right of their own succession, and the
remaining share had come to them through the
impugned deed of gift. Then it was observed that at
the time of the mortgage the mortgagee did not know
whether he would ever be such a reversioner in fact as
would give him a practical interest to quarrel with the
deed of gift; and the Privy Council asked "why should
he not take all that the mortgagers could give or propose
to give." "To hold that by doing so ", observed the .
Privy Council, "he barred himself from asserting his
own title to a part of what was mortgaged seems to
their Lordships a quite unwarrantable proposition."
This decision shows that the principle of election or
estoppel or ratification must be applied with due
circumspection and the mere fact that the reversioner
has received some benefit under the transaction or has
not challenged the validity of the transaction when it
took place cannot bar his rights as a reversioner when
reversion in his favour falls open.
The last case on which reliance has been placed by
the appellant is the decision of the Privy Council in
Ramgouda Annagouda v. Bhausaheb (1). In this case
the widow of the last male holder had alienated
nearly the whole of the property of her husband by
three deeds executed and registered on the same day.
One of the deeds was in favour of a presumptive
reversioner. The Privy Council held that the three
deeds had to be regarded as forming one transaction
entered into by all the persons interested in the properties, and that after the reversion fell open, the
reversioners who were parties to the said transactions
(1) (1927) L.R. Si I.A. ~g6,
,
...
3 S.C.R.
SUPREME counT REPORTS
633
were precluded from disputing the two alienations by
1961
reason of their conduct.
According to the Privy
Council the three deeds in question were inseparably FSubbul CC~tly'_s
. ·
.
d
h
ami y
narities
connected together and m that view Annagou a, t e
v.
reversioner, who challenged two of the three transac- Ragnava Mudaliar
tions, not only consented to the sale to Shivgouda and
-
the gift to Basappa-which were the two transactions Gaj1ndragadhar J.
impeached-but these dispositions formed part of the
same transaction by which he himself acquired a part
of the e8tate. Thus it may be taken to be well-settled
that if a presumptive reversioner is a party to an
arrangement which may properly be called· a family
arragement and takes benefit under it, he would be
precluded from disputing the validity of the said
arrangement when reversion falls open and he becomes
the actual reversioner. The doctrine of ratification
ma.y·also be invoked against a presumptive reversioner who;though·"DOt a party , to the transaction,
subsequently ratifies it with full knowledge of his
rights by assenting tp it and taking benefit under it.
It is, however, clear that mere receipt of benefit under
an arrangement by which a Hindu widow alienates
the property of her deceased husband would not preclude a presumptive reversioner from disputing the
validity of the said alienation when he becomes the
actual reversioner. It must always be a question' of
fact as to whether the conduct of the said reversioner
on which the plea of ratification is based does in law
amount to ratification properly so-called. It is in the
light of these principles that we must now consider
the relevant facts in the present appeal.
There can be no doubt that the transaction which
took place on May 27, 1893, as a result of the dispute
between the two widows and with the intervention of
the well-wishers of the family is not a family arrange.
ment as understood under Hindu Law. This position
was conceded before the High Court and is not
disputed before us (Ex. D-2). Similarly, the sale deed
which was executed by defendant 3 in favom of the
two widows is of no assistance because it was obviously
a sale by defendant 3 of his reversionary rights
which were then no better than apes B'UCCe&Bionia and as
634
SUPR~MKCOURT REPORTS
[1961]
t96z -- such this transaction (Ex. D-3) cannot help to validate
Subbu CINlly's the ear~ier arrangement between the two widows .. T~e
Family Cllarilies composite document (Ex. D-5) of May 27, 1895, is m
v.
substance no more than an alienation no doubt
Raillava Mudaliar executed for the purpose of carrying out the original
. --
arrangement between the two widows. Thus in dealGa1•1111raiadllar f. ing with the question as to whether the respondent is
precluded from challenging the validity of the
impugned transaction it is necessary to bear in mind
that the original transaction is not a transaction in
the nature of a family arrangement. Besides, he was
then a minor and admittedly he was not a party to
any of the said transactions.
It is, however, urged that the respondent obtained
a certificate or a patta from the Collector in regard to
the property conveyed to him under Ex. D-5, and the
argument is that he has deliberately withheld the said
patta because he apprehended that if produced the
patta would go against him. The explanation given
by the respondent for not producing the patta is
attacked as unsatisfactory, and it is urged that the
said explanation cannot possibly conceal his intention
to keep back the document from the Court. In his
cross-examination the respondent stated that the
Collector's certificate which had been given to him by
hls grandmother had been filed by him in Suit No. 495
of 1916 in the City Civil Court, and he added that his
advocate in the said suit had not returned the document to him. We may assume that the respondent has
not produced the document though it was in his possession; but we have on the record two documents which
were issued to the other donees, and all that the
appellant is entitled to assume is that a similar document had been issued in favour of the respondent. In
our opinion, the two documents on the record do not
assist the appellant's argument that any representation had been made by the respondent to the Collector
before he obtained a patta in his favour. In fact the
issue of the patta is a routine matter which would
necessarily follow on the execution of the registered
sale deed (Ex. D-5). On the registration of the said document persons who got certain immoveable properties
•
3 S.C.R. SUPREME COURT REPORTS
635
under it were given the certificates by .the Collector
1961
in ordinary course, and so no argument can be built up
against the respondent that the acceptance of the FSvbbul cc~"'.:~.
h
Ii
f
h
. .
l ""'' y _,.,_
patta amounts to t e rati cation o
t e or1gma
v.
transaction of sale.
1lag1sa,,. M"4oli&r
It is then urged that in Civil Suit No. 495 of 1916
.
-
filed in the City Civil Court at Madras by Apuru- G•J•"dragadilar f.
pammal against the respondent and another, the
respondent filed the written statement in which he
admitted the validity of the impugned transaction. It
appears that the plaintiff in that .sui~ had b.ased her
claim on the said impugned transaction, a.pd in respect
of the said claim the respondent had alleged in paragraph 2 of his written statement that he .admitted
that in consequence of certain disputes which a.rose
between the mother and the widow of th<J deceased
Govinda Mudaliar a compromise settlement was arrived
a.tin pursuance of which some transfers were effected.
This, it is said, a.mounts to an admission of the valid,ity
of the si.id transaction (Ex. D-15). This argument,
however, fails to take notice of the fa.ct that while
referring to the said compromise settlement the
respondent had expressly added .that the said compromise settlement was obviously to take effect only
during the life tenancy of the widow of the deceased
Govinda Mudaliar (Ex. P-3).
In other words, taking
the statement as a whole, as we must, the respondent
looked upon 'the said compromise settlement as an
alienation macle by the widow and as intended to take
effect during her lifetime and no more. lo other words,
far from supporting a plea of ratification against the
respondent this statement strengthens his case that he
took the benefit with the knowledge and under the
belief that the arrangement under which the said
benefit flowed was intended to be operative during the
lifetime of the widow, and as such he had no occasion
to challenge its validity whilst the widow was alive.
A somewhat similar argument is based on the
conduct of the respondent in relation to Civil Suit
No. lll7 of 1921 filed by Masilamani Mudaly, the
sister's son, and the deceased Govinda Mudaliar in
the Madras High Court (Ex. P-16). To this suit the
636
SUPREME COURT REPORTS
[1961]
z96z
respondent was impleaded as defendant 7. In this
S .. __ c•-
, suit the said plaintiff had challenged the validity of
uu~ -ttys th
t
d
k d -"
'
' '
Fa,,.ily Charities
e arrangemen , an
as e ior a ppropnate IIlJLmcv.
tions against defendant 6 to the suit, Thuggi Kondiah
Raghava MudaliarChetty, Trustee of Udayavar Koil, and other defendants from dealing with the property to the prejudice of
G•j•ndragadkar f. the reversionary right of the plaintiff. It is unnecessary to refer to the pleadings in the said suit or to
specify in detail the reliefs claimed. The only point
which is relevant to consider is that the reversioner
had challenged the arrangement in question. The
respondent by his written statement had purported to
support the plea made by the plaintiff, and had added
that he was not personally aware of any attempt on
the part of defendants 2 to 4 to alienate the properties in respect of their possession and enjoyment. This
suit, however, did not proceed to a trial as it was dismissed for want of prosecution, and the argument is
that since the respondent had supported the plaintiff
in the said suit it was necessary that he should have got
himself transposed as a plaintiff, when he found that
the original plaintiff was allowing the suit to be
dismissed for non-prosecution. In our opinion, this
argument is far-fetched and cannot possibly sustll.in
the plea of ratification against the respondEnt. If
the respondent took possession of the property under
the arrangement with the distinct understanding that
the arrangement was to last only during the lifetime
of the widow, we see no justification for the assumption that he should have carried on Civil 8uit No. 1117
of 1921 or should in fact have challenged the said
arrangement at all.
The last argument urged in support of the plea of
ratification is based on the oral evidence given by the
respondent in the present case. The respondent was
asked about the quarrels between the mother and the
widow of the deceased Mudaliar, and he said that
they were living together and that there were quarrels
between them. Then he was asked as to whether he
got the property under the impugned arrangement,
and he said that his gni.ndmother gave him the house
with the Collector's certificate and told him that she
'
3 S.C.R.
SUPREME COURT REPORTS
637
was going to die soon and so he may take the house.
1961
The respondent abo admitted that since the house
bb
c1uu,•
was thus delivered to him and to his sister they were FS.:;,; Charil~•
in possession of it and in enjoyment of its income.
v.
The respondent then stated that he was not aware of Raghava Msulal•••
the document of 1895 until 1916, ·and that he came
-
to know about the division between the two widows Gajend••c•dh•• J.
only in 1910. It is urged that this statement should
not be believed, and that the reluctance of the respondent to disclose the truth should lead to the
inference that he knew .i.ll about the impugned
transaction and its effect, and that when he took
possession of the property allotted to him under the
said transaction he knew fully well about his ri!l'hts
and he accepted the benefits with the object of rabfying the whole transaction. In our opinion there is no
substance in this argument.
In this connection it is relevant to remember that
until Act II of 1929 was passed a sister's son, like the
respondent, would havo had very fow chances of
becoming an actual reversioner; he would have come
in the list of bandhas; and so it would be difficult to
assume that at the time when the respondent accepted the gift of the house he knew about his rights as
a possible reversioner. Besides, the benefit which he
obtained under the impugned transaction could also
in substance have been claimed by him under an
earlier arrangement entered into between Govinda
Mudaliar and Madhava Ramanuja Mudaliar on
February 7, 1887 (Ex. D-1). Having regard to the
arrangement disclosed by the said document the benefit given to the respondent and the other children of
the sisters of the deceased Mudaliar may as well have
been based on the said arrangement, and all that the
transactions of 1893 and 1895 did was to give effect
to it (Exs. D-2 and D-5). Besides, as we have already
pointed out, in 1893 the respondent was a minor, and
when subsequent to 1895 he took possession of the
property it does not appear on evidence that he knew
that the intention of the widows was to treat the
property as absolute owners and to convey absolute
titles to the respective donees and transferees under
638
SUPREME COURT REPORTS
[1961]
1961
the said transaction. He also could not ha. ve known
s bb -;,,
•
a.~out his rights as a. possible reversioner. Therefore,
Fa:il; ch:~r,i:s in our opinion, the High Court was right in holding
v.
that the appellant had failed to establish his plea. of
Raghava Mudali•• ratification against .the respondent. Indeed, to hold
.
-
otherwise would be in the words of the Privy Council
Ga;endragadha• f." a. quite unwarrantable proposition " (1) (p. 87).
That leaves the question of legal necessity to be
considered. The High Court has held that the impugned transfer cannot be said to have been justified by
legal necessity ; and, in our opinion, the finding of t.he
High Court on this point is obviously right. In dealing
with this question it may be relevant to recall that the
widow of the deceased Mudaliar had obtained letters of
administration to the estate of the deceased on April 26,
1893, and, as usual, in issuing the letters limitation had
been imposed upon the widow that she could not deal
with or transfer the property in qu~stion without the
• · requisite sanction. There is some force in the argument urged before us by Mr. Sastri on behalf of the
respondent that it was with a view to avoid the necessity to obtain the requisite sanction that the widow
of the deceased Mudaliar was persuaded by her motherin-law to enter into the impugned transaction under
the guise of a family arrangement. The document
itself (Ex. D-5) does not purport to be justified by
legal necessity. In terms it purports to give effect to
the original arrangement of 1893 (Ex. D-2); and if
the said arrangement is not valid as a family arrangement the subsequent transfer would also be invalid.
Besides, out of a
total consideration of about
Rs. 10,000/- the amount of Rs. 776/- can be taken to
represent the debts due by the deceased Muda.lia.r ;
the rest of the items of considemtfon cannot be treated
as constituting a legal necessity at a.II.
The a.mount
of Rs. 558/- was the expense incurred for executing
the document; similarly the a.mount of .Rs. 409/-
representing the funeral expense of the deceased
Mudalia.r, had apparently been spent by the widow
who wanted to reimburse herself and that cannot be
a legal necessity. The other items of consideration do
(1l (1918) L.R. 46 I.A. 72,
3S.C.R.
SUPREME COURT REPORTS
639
not even purport to be for legal necessity. Therefore,
'96'
in our opinion, the conclusion is inescapable that the Subbu C/utty's·
impugned transfer is not justified by legal necessity.
Family Charilie<
The result is the appeal fails and is dismissed with
v.
costs.
Raghava Mudaliar
Appeal, dismissed.
MAHABIR PRASHAD RUNGTA
v.
DURGADATT.
(J. L. KAPUR, M. HIDAYATULLAH and J. C. SHAH, JJ.)
Contraet-Commercial transaction-Breach-Time, •if of the
essence of the contraet-Aggrieved party, if can rescind the contractlnterest-Rate-Awarding of-Principfe-lndian Contract
Act,
z87z (IX of z87z), s. 55.
The respondent had agreed to transportcoalfrom the appellant's colliery to the railway station. The appellant had to
keep the road in repair and arrange for petrol and had to make
the payment for the actual coal despatched by the roth of the
following month. The appellant complained that he was suffering loss as the respondent had slowed down the work and the
respondent complained that by not arranging for the petrol, not
keeping the road in repairs and not making payments of amounts
due the appellant had made it impossible to fnlfil the contract.
The quantity of coal transported was a fact within the knowledge
of the appellant and the agreement merely provided for payment
of the bills by roth of the following month, without stating
expressly that the presentation of bill was a condition precedent
to the payment. The appellants contended that time was not of
the essence of the contract and in any case the payment of the
bills depended npon the presentation of bills in time and also
challenged the award of the interest.
Held, that in commercial transactions time is ordinarily of the
essence of the contract and was made so in the contract and when
this important condition of the agreement was broken, s. 55 Of the
Indian Contract Act could be invoked by the aggrieved party and
he was entitled to rescind the contract.
In the present case by withholding the payment of the bills
cl. (5) of the contract was breached by the appellant.
Held, further, that interest for'a period prior to the commencement of suit is claimable either nnder an a'greement or
usage of trade or under a statutory provision or nnder the
Interest Act for a sum certain where notic11 is given. These
h
Gojendragadkar J.
z96I
January 31.