Gogula Gurumurthy & Ors. v. Kurimeti Ayyappa

Judgment

The Judgment of the Court was delivered by ALAGIRISWAMI, J.-Venkanna, the father of the appellants, had a brother Ramamurti who died childless in the year 1908 leaving behind Jiim his widow Narasimham. After Ramamurti's death a series of litigations started between Venkanna and Narasimham and it is not ·over yet. Venkanna filed O.S. No. 14 of 1913 against the widow in respect of acts of waste·committea by her of Ramamurti's estate and was appointed a receiver in that suit. Ih that suit he got a decree against Narasimham for a sum of Rs.13,539,1- as she failed to furnish security as originally decreed by the court. Venkanna as receiver filed three suits on the foot of three mortgages in favour of Ramamurti. One was O.S. No. 34 of 1916. In execution of that decree item 1 of the 'A' ·schedule properties was purchased in court auction. O.S. No. 443 of 19 I 8 was filed on the foot of another mortgage in favour of Ramamurti. executed in 1904 and items 2 and 5 of the plaint schedule properties were purchased in execution of decree in that suit.

These three items of properties are the subject matter of this appeal. It is unnecessary for the purpose of this app.al to refer to. the third suit. Venkanna died in 1947 and Narasimham in 1951 after executing a will bequeathing in favour of her brother Venkata Sattayya all her properties. Venkata Sattayya filed the suit, out of which this appeal arises, for possession of the proporties bequeathed to him under the will and for mesne profits. The Subordinate Judge who tried the suit held that items 1, 2 and 5 become accretions to the main estate of Ramamurti and therefore the plaintiff was entitled only to an .acoount of the income from those properties till the death of Venkanna. The appeal against the Subordinate Judge's judgment came up for hearing before Justice Satyanarayana Raju and Justice Venkatesam of the And.bra Pradesh High Court.

The learned Judges called for a finding with regard to the interest on the two mortgages in execution of the decrees in which items I, 2 and 5 had been purchased, relating to the period before Ramamurti's death and the period after Ramamurti's death. After that finding was received they· allowed the appeal in part and held that the plaintiff would be entitled to a 19/34th share of item l, and 12/23rd share of items 2 and 5. This appeal is filed in pursuance of a certificate granted by the High Court. Mr. Ramasesneya Chaudhri appearing on behalf of the appellants raised four points which we. shall deal with seriatim. R I. The learned Judges of the High Court committed an error in <:onfining the appeal after receipt of the finding from the Subordinate Judge's court·only to the question of the share, which the appellant• and the respondent were entitled to, based on the calculation of the 0 G, GURUMURTHY v. K, AYYAPPA (Alagiriswami, J.) interest due on the mortgages before and after the death of Ramamurti.

His contention was that as the High Court had merely framed issues and referred them for tdal to the court of first instance under Order XLI Rule 25 of the Code of Civil Procedure and not remanded the whole case under Order XII· Rule 23, they should have heard the whole appeal and not confined the hearing merely to the points on which the finding was called for. We think that he is right in thi> contention.

Before the High Court the learned advocate for the appellants had contended that Narasimham owed to the estate ot Ramamurti a sum of Rs.14,639/- and that when the decree was sought to be executed by Venkanna, Narasimham claimed that the accouat due to her by way of interest under the three mortgage bonJs should be set off and that the execution could proceed only for the balance that the set off claimed by Narasimham was actually allowed and that therefore she would not be entitled to any share in the properties purchased in execution of the decrees obtained on the foot of the mortgage bonds, in lieu of the interest claimed.

The learned Judges disallowed him from raising that question on the ground that it was not raised or argued at the time when the finding was called for on the issues framed by them, and that if it had been raised and accepted there would have been no need to call for a finding or at any rate the finding called for would have been different, and that the argument of the learned counsel impugned the correctness of the conclusions reached by the Court on the basis of which the findings were called for. We consider that when a finding is called for on the basis of certain issues framed by the Appellate Court the appeal is not disposed of either in whole or in part. Therefore, the parties cannot be barred from arguing the whole appeal after the findings are received from the court of first instance. We find the same view taken in Gopi Nath Shukul v. Sat Narain Shukul (AIR 1923 Allahabad 384) where it was held that:

"Where an appellate Court at the first hearing does not decide the case but merely remits certain specific issues, it is open to the Court before which the case ultimately comes to disregard the findings on those issues and equally to form its own opinion on the whole case irrespective of anything that is said in the remand order." It was also held that: "An order remanding issues under Rule 25 is not a final order. No appeal lies againstit. The responsibility for the decree ultimately passed is entirely that of the Court before which the case comes after remand. It -is quite ot~erwise with an order of remand passed under Order 41, Rulo 23, for this is an order which does finally determine, subject to any right of appeal, the issues which it decides.'' A similar view was talcen by the Nagpur High Court in- Sultan C 19741 3 s.c.R. Beg v. Chuni/al (AIR 1918 Nagpur 193). In Abinruh Chandra Bidyanidhi iJhattachariee v. Dasarath Malo (XXXll (1927-28) Calcutta Weekly Notes 1233) it was said:

"An order of remand made under Or. 41, r. 25 decides nothing. The Court, either the same or as differently constituted has jurisdiction, while finally hearing the appeal, to go back on' the reasons given or views expressed in ~he order of remand and must do so when those appear erroneous." We are, therefore, of opinion that the High Court should have gone into this q11estion and decided the matter, for if it turns out that the interest due on the two mortgages subsequent fo the death of Ramamurti had been set off against the amount due to Venkanna in the decree obtained hy him against Narasimham in O.S. 14 of 1913 there can be no ques•ion of Narasimham being entitled to any share in the properties purchased in court auction in execution of the decree in the two mortgages and her brother getting those properties by virtue of the will executed by her in his favour.

In the Trial Court the plaintiff's contention was that these properties were purchased out of the accumulated interest on the mortgages · and the defendants asserted that they were purchased out of the principal. That Court dismissed the plaintiff's claim on the ground that there was no proof of his allegations. It was before the High Court apparently th.~t the attempt to split the i~terest due on the 1nortgages into two portions, one before R~mamurt1 s death and the other after, was made and accepted by the High Court. It was on that basis that the High Court called for findings. After the findings were received the appellants raised the question about the set-off. They raised the question before .the Trial Court when it "'.as considering the apportionment of the interest but that Court felt 1t had no power to go into that question in view of the terms of the High Court's order calling for the finding.

And the High Court refused to allow the appellants to raise that question, which as we have just held was not ·correct. The decree in Venkanna's suit. appears to h~ve directed payment of interest to NaraSJmham [Para m (c) of the plamt and judgment of the High Court, page 102 of the paper book]. We find that Venkanna had submitted accounts to the court in his capacity as receiver till 1940. We have also evidence in this case that even \'Vhen Venkanna died a sum of Rs.4,486/- was due to him on the foot of the decree he obtained against Narasimham. It is, therefore, highly unlikely that any amount ·due to Narasimham was not given credit to. We find from the finding submitted by the Trial Court (Page 86 of the paper book) ·that when the decree in 0.S. 14 of 1913 was sought to be executed Narasimham claimed that the amounts due to her should be set off and execution should proceed only for the balance and from Ex. A-7 it would appear that the claim was allowed.

It seems therefore un- Hkely, ta!<ing the direction in t~e decree and the ord~r evidenced by .Ex. A-7 mto account, that the rnterest due to Narasimham was not II II G. GUllUMURTHY v. K. AYYAPPA (A.lagiriswami, /.) 59f! one of the items set off. We do not want to express any final opinion on the point but are of 0pinion that in the circumstances the High Court should consider this aspect of the matter and dispose of the appeal af1 esh. 2 Out of about 16 acres comprised in item I, 5 acres had been lost in revenue sale because of Narasimbam's failure to pay the land revenue on those lands. It was urged before the High Court and it has geen urged again before us that in allotting to the appellants a share of items I, 2 and 5 these 5 acres which were lost to the estate as a result of Narasimham's negligence should be debited against her share in them. We find ourselves unable to accept this contention just as the High Court, though they imve no reason for their conclusion.

Neither on principle nor on authority could the contention on behalf of the appellants be suppo1ted. A Hindu widow is entitled to the full beneficial enjoyment of the estate. So long as she is not guilty of wHful waste, she is answerable to no one. Her estate is not a lifeestate, because in certain circumstance• she can give an absolute and complete title. Nor is it in any sense an estate held in trust for reversioners. Within the limits imposed upon her, the female holder has the most absolute power of enjoyment and is accountable to no one. She fully represents the estate, and, so long as she is alive, no one has any vested interests in the succession. The limitations upon her estate are the very substance of its nature and not merely imposed upon her for the benefit of reversioners. She is in no sense a trustee for those who may come after her. She is not bound to save the income, nor to invest the principal. If she makes savings, she can give them away as she likes.

During her lifetime she represents the whole inheritance and a deci>ion in a suit by or against the widow as representing the estate is binding on the reversionary heirs. It is the death of the female owner that opens the inheritance to the reversioners, and the one most nearly related at the time to the last full owner becomes entitled to 'possession. In her lifetime, however, the reversionary tight is a me>e possibility or spes successionis. It l:annot be predicted who would be the nearest reversioner at the time of her death. It is, therefore, impossible for a reversioner to contend that for any loss which the estate might have sustained Clue to the negligence on the part of the widow he should be compensated from out of the widow's separate properties. He is entitled to get only the property left on the,date of the death of the widow. The widow could have, during her lifetime, for necessity, including her maintenance alienated the whole estate.

The reversioner's right to institute a suit to prevent waste is a different matter. If it could have been established .that in having allowed some part of the properties to be sold in revenue sale she was guilty of wilful waste it would have been a different matter. It would still have been necessary for the reversioner to have instituted a suit on that basis. It is dou\>tful whether such a suit can be institoted after her death. In any case the necessary averments are not availabl€ in this suit. We are, therefore, unable to accept this contention 3. Another point urged before the High Court as well as before us wu that the cost incurred by Venkanna in the suit and in the execution proccedinas should have been taken into account in allocatina [ 1974 l 3 S.C.R. items I, 2 and 5 between the appellants and the respondent.

The High Court took the view tl)at as the income received by Venkanna and the amounts spent by him including the amounts spent for the suit and the execution proceeding were taken into account at the time of the settlement of the accounts and there was an executable decree in favour of Venkanna for a sum of Rs. 4,486/· as the amount due on settlement of account, and it was peon to Venkanna to realise the amount aeainst the estate of Ramamurti in execution of the decree, it is not now open to the appellants to claim that these should be separated from the amount of the decree and should be added on to the amount of principal and interest accrued during the lifetime of Ramamurti. We agree with this view. Incidentally it should be noticed that the conclusion of the High Court on this point would seem to point to the same conclusion in respect of the first point. 4.

Lastly, it was argued that Narasimham, the widow, had treated thi• property as accretion to the husband's estate and therefore the appellants are entitled to the whole of the pro~rty. The facts on the basis of which this contention is urged are : (a) When Narasimham's life interest in the estate was sold in E.P. No. 93 of 1927 filed by Venkanna she did not question the legality of the sale on the ground that her interest in the property was not a life interest but was a full interest. (b) Jn the order in E.A. 624 of 1935 passed by the Subordinate Judge, Visakhapatnam the widow treated items I, 2 and 5 as part of the estate of her husband and she had also asserted therein that she had a right to enjoy the same as representative of his estate. (c) Life interest in the A-Schedule properties was sold in E.P. 28 of 1940 in execution of the decree in 0.S. 14 of 1913 and the widow did not object to the sale on the &round that what was J;e.ing sought to be sold was a life interest but that she was entitled to full interest.

We do not think anyone or all of these grounds are sufficient to establish that the widow had treated this property as accretion to the husband's estate .. As observed by the Madras High Court in Akkanna v. Vtnkayya (l.L.R. (1902) 25 Mad. 351) "the acquirer of property presumably inte.nds to retain dominion over it and in the case of a Hindu widow the presumption is none the less so when the fund with which the property is acquired is one which, though derived from her husb•nd's property, was at her absolute disposal. In the case of property inherited from the husband, it is not by reason of her intention but by reason of the limited nature of a widow's estate under the Hindu Law, that she has only a limited power <>f disposition.

But her absolute power of disposition over the income derived from such limited estate being now fully recognised, it is only reasonable that, in the absence of an indication of her intention to the contrary, she ml)sl be pres.urned to retain the same control over the investment of such income. The mere fact that properties t.hus acquired by her are managed and en- II G. GURUMUTHY V. K. AYYAPPA (Alagiriswami, /.) joyed by her without any distinction, along with properties inherited from her husband, can in no way effect this presumption. She is the sole and separate owner of the two sets of properties so long as she enjoys the same, and is absolutely entitled to the income derived from both sets of properties." The fact that she wanted possession of those properties or that when in execution of his decree Venkanna bought what he alleged was her life interest in the properties she did not object to it and assert that she had full interest does not affect this question.

It was to her advantage to keep qujet. She was not thereby cstopped from contending that she had an absolute interest in the properties. It should, more over, be remembered that the question that the items 1 2 and 5 may have to be divided as between the reversioners and the widow in proportion to the respective shares of the husband's estate and the widow in that property was really a later development. Before the Trial Court both parties proceeded on a different footing altogether as mentioned earlier. The widow was all along• doing everything to prcvent;her husband's reversioners getting anything from the estate. She had transferred quite a good part of it to her '1brother, which was what enabled the reversioner to file the suit against her for acts of waste. She exhibited a very clear intention that whatever she possessed should So to her brother.

There is absolutely no room on the facts of this case to hold that she exhibited the least intention to treat the income from the husband,'s estate as an accretion to that estate. In the result the appeal is allowed and the judgment of the High Court set aside. The High Court will dispose of the appeal afresh. The costs of this appeal will abide and be provided in the fresh decree to be passed by the High Court. C.M.P. No. 2016 of 1969 is dismissed. s.c. Appeal allowed. 10-'-M45Sup.Cl/75