Judgement Appeal (No. 2 of 1922) from a decree (May 2, 1919) of the High Court varying a decree (December 23, 1916) of the Subordinate Judge of Madura. Law. Rep. 51 Ind. App. 145 ( 1923- 1924) Obala Kondama Naicker Ayyan V. Kandasami Goundar 214 The suit was brought by the appellants as next reversionary heirs to one Mayilchami, a Hindu resident in the Madras Presidency, who died in 1901, for a declaration that certain transfers of his property made by Aparanji Amman, his daughter and the appellants mother, were void as against them. The transfers were made in connection with a compromise of claims to the property, the facts as to which appear from the judgment of the Judicial Committee. The particular transfer in question in the appeal was to one Mandalathipathi, who on July 2, 1910, had mortgaged the land transferred to him to the fourth defendant, the present respondent, for Rs. 10,000 ; a decree on the mortgage had been obtained in 1915. The mortgage deed stated that the land was held under a partition deed executed by Aparanji Amman under the compromise filed in O. S. No. 12 of 1902. The Subordinate Judge of Madura, who tried the suit, found that the compromise under which the transfers were made was not brought about by fraud or undue influence, and that it, and the partition made under it, were bona fide family arrangements binding upon the plaintiffs ; and that the fourth defendant, the present respondent, having acquired mortgage rights for full consideration and without notice of any defect in the compromise and partition, his rights could not be affected, even if the compromise was not binding upon the plaintiffs. He, accordingly, dismissed the suit. Upon appeal to the High Court, the learned judges were of opinion that the Subordinate Judge had not properly considered the evidence in relation to the issue whether the compromise was bona fide, more especially the question whether Mayilchami and Mandalathipathi were divided. They accordingly directed that findings should be returned on those points. He, accordingly, dismissed the suit. Upon appeal to the High Court, the learned judges were of opinion that the Subordinate Judge had not properly considered the evidence in relation to the issue whether the compromise was bona fide, more especially the question whether Mayilchami and Mandalathipathi were divided. They accordingly directed that findings should be returned on those points. On the remand the suit came before a different Subordinate Judge, who found that Mayilchami and Mandalathipathi were not joint, and that the latter could not have been in doubt as to that matter ; and that the compromise and partition were not bona fide, and could not properly be called a family arrangement; but he found that the fourth defendant was not aware of any fraud in the compromise. Upon the return of the findings to the High Court, the learned judges (Sir John Wallis C.J. and Seshagiri Ayyar J.) held that the plaintiffs mother (the first defendant) must be taken to have entered into the compromise as representing the estate, and that she had acted bona fide ; but in the circumstances found to exist they held that the compromise could not be upheld against the plaintiffs by the parties thereto. They considered, however, that the fourth defendant (the present respondent) had a valid defence to the suit, on the ground that Mandalathipathi was in the position of a quasi trustee having regard to s. 89 of the Indian Trust Act, 1888, and that the present respondent was a transferee from him in good faith and for consideration, and was protected by s. 96. They further considered that he was a bona fide transferee for value without notice of any defect in his transferors title. In the result the decree was reversed save so far as the suit against the present respondent had been dismissed. 1923. Oct. 19, 22. De Gruyther K.C. and Kenworthy Brown for the appellants. The section of the Trust Act did not apply ; if under s. 89 any trust arose it was in favour of Aparanji Amman, and s. 96 has no bearing on the rights of the reversioners. There are concurrent findings that the so-called compromise was not made by Mandalathipathi bona fide. It was invalid, as he had no belief that he had any claim Gungeshwar v. Durga Prasad. There are concurrent findings that the so-called compromise was not made by Mandalathipathi bona fide. It was invalid, as he had no belief that he had any claim Gungeshwar v. Durga Prasad. (( 1917) L. R. 44 I. A. 229.) The case is accordingly one of an alienation by one having only a womans estate, without proof of necessity. It is therefore wholly void against the appellants Sham Sunder Lal v. Achhan Kunwar. (( 1898) L. R. 25 I. A. 183.) Sect. 38 of the Transfer of Property Act, 1882, did not by its terms apply to protect the respondents title against the reversioners. The principle by which an innocent purchaser Law. Rep. 51 Ind. App. 145 ( 1923- 1924) Obala Kondama Naicker Ayyan V. Kandasami Goundar 215 is protected cannot be applied to a person who takes at second hand from one with a limited interest. Had Mandalathipathi taken innocently and for value he would have been protected, and the respondent would have had a good title from him. So too if the reversioners had adopted the transaction as in Modhu Sudan Singh v. Rooke. (( 1897) L. R. 24 I. A. 164.) But even if in law the respondent can rely upon the principle, he failed to establish that he took without notice. The bond itself affected him with notice that Mandalathipathi acquired by transfer from one with a limited interest. That sufficed under s. 3 of the Transfer of Property Act to affect him with notice of the defect in his mortgagors title. Hon. Sir William Finlay K.C. and Narasimham for the respondent. The trial judge found the facts which were material to the case in favour of the respondent; the High Court had no power to order a remand Venkata Varuthi v. Anantha Kunwar (( 1893) I. L. R. 16 M. 299 (P.C.).); Order xli., r. 25. If there was power there was no adequate reason for requiring fresh findings. But in any case the Subordinate Judge upon the second hearing and the High Court concurrently found that the respondent was not aware of any defect in the compromise. The effect of the compromise was to vest the legal estate in Mandalathipathi, and the respondent as a purchaser for value without notice is protected even if the compromise was invalid. But in any case the Subordinate Judge upon the second hearing and the High Court concurrently found that the respondent was not aware of any defect in the compromise. The effect of the compromise was to vest the legal estate in Mandalathipathi, and the respondent as a purchaser for value without notice is protected even if the compromise was invalid. One having a Hindu womans estate has power to compromise claims against the estate which she represents Ramsuram Prasad v. Shyam Kumari. (( 1922) L. R. 49 I. A. 342.) The transfer under the compromise is not to be regarded as an alienation but as a recognition pro tanto of an antecedent title in Mandalathipathi Khunni Lal v. Jovind Krishna Narain. (( 1911) L. R. 38 I. A. 88.) Even regarded as an alienation, the findings that the respondent took without notice protect the respondents title. De Gruyther K.C. The verbal evidence shows that the respondent was on terms of intimacy with the family and supports the view that he had notice of the nature of the mortgagors title. Nov. 15. The judgment pf their Lordships was delivered by SIR LAWRENCE JENKINS. This is an appeal from a decree of the High Court of Judicature at Madras, dated May 2, 1919, which varied a decree of the Subordinate Judge of Madura, dated December 23, 1916. The plaintiffs are the reversionary heirs of their maternal grandfather Mayilchami, who died in May, 1901, and was succeeded by his daughter, Aparanji Amman, the mother of the plaintiffs. The defendants are (among others) Aparanji Amman, Kumaravigaya, the son of the late Mandalathipathi, Sennamman Avergal, and Kandasmi Goundar. The purpose of the suit is to establish the plaintiffs title as reversioners. To explain this title it will be convenient to set out the following pedigree — 3Vijaya Vaiyapuri | | | Son Son | | Son Mayilchami, died | May, 1901. | | | | Mandalathipathi Son died 1890 = Aparanji | Sennamman | | The plaintiffs Kumaravigaya (sons). Law. Rep. 51 Ind. App. 145 ( 1923- 1924) Obala Kondama Naicker Ayyan V. Kandasami Goundar 216 On Mayilchamis death Sennamman commenced pro ceedings under the Criminal Procedure Code for possession of the estate of her father-in-law. Her application substantially failed. | | | | Mandalathipathi Son died 1890 = Aparanji | Sennamman | | The plaintiffs Kumaravigaya (sons). Law. Rep. 51 Ind. App. 145 ( 1923- 1924) Obala Kondama Naicker Ayyan V. Kandasami Goundar 216 On Mayilchamis death Sennamman commenced pro ceedings under the Criminal Procedure Code for possession of the estate of her father-in-law. Her application substantially failed. She then instituted a suit on February 14, 1902, against Aparanji and Mandalathipathi seeking to establish a will alleged by her to have been executed by Mayilchami and praying that possession should be given to her of one-third share of the property left by him. Both defendants to that suit filed written statements, and the litigation closed with a compromise in 1903. It provided that 10 kulies of the property therein described and a house should be delivered by the defendants to Sennamman. To this extent it was within the scope of the suit, and ultimately a decree was passed in accordance with this stipulation. But the compromise also purported to define the rights of the defendants to that suit as between themselves. By cl. 8 it provided that the properties described in the plaint (other than what was given to Sennamman) should be divided into moieties and that each of those defendants should take one. On February 23, 1907, a partition deed was executed in accordance with the terms of the compromise. On July 2, 1910, Mandalathipathi executed a mortgage on property taken by him under the compromise to secure Rs. 10,000 advanced to him by the respondent Kandasami Goundar, and on January 7, 1915, a decree for Rs. 17,257 was passed on it in the mortgagees favour. The plaintiffs, as reversioners under their maternal grand father, have instituted this suit on March 2, 1915, seeking to establish the invalidity as against them of the respective titles claimed by Kumaravigaya, the son of Mandalathipathi, deceased, and by the mortgagee. It has been held by the High Court, and their Lordships adopt the finding, that Mayilchami and Mandalathipathi were separate and not joint, and there can be no doubt that this was known to Mandalathipathi at the time of the compromise. But the compromise was based on the supposition that there was a question as to whether there had been a separation between the two lines of the family. But the compromise was based on the supposition that there was a question as to whether there had been a separation between the two lines of the family. The High Court has further found that there is no evidence that Aparanji, with full knowledge that there was no truth in the claim put forward by Mandalathipathi, agreed to the compromise from ulterior motives and that there is not sufficient evidence to show that in assenting to the terms of the compromise she was not acting bona fide in the light of the circumstances then brought to her notice. Their Lordships do not dissent from this appreciation of the evidence. Aparanji at the time of the compromise stood in need of especial protection. She was a purdanashin lady recently widowed, the mother of infant sons, and, so far as the evidence discloses, without any adult male relation except Mandalathipathi to advise her. But it was under his advice and influence that she acted in the litigation with Sennamman and in the compromise by which Mandalathipathi took to the detriment of herself and her infant sons the benefits to which, as he well knew, he had no honest claim. In these circumstances the High Court rightly came to the conclusion that as against defendant No. 2, Mandalathipathis son and heir, the plaintiffs established the invalidity of the compromise after their mothers death. From this part of their adjudication no appeal has been preferred, and the only contest now is with the mortgagee in whose favour the High Court decided. The ground of this decision is that the mortgagee is a bona fide transferee for value, and so stands in a better position than his transferor, whose title was held to be bad. The High Court appears to have thought that justification for this view was to be found in the Law. Rep. 51 Ind. App. 145 ( 1923- 1924) Obala Kondama Naicker Ayyan V. Kandasami Goundar 217 provisions of the Indian Trust Act. In their Lordships opinion this was erroneous the Act has no direct relevance to the circumstances of this case, and it was properly realized in the argument here that if the High Courts conclusion can be supported it must be on other grounds. In their Lordships opinion this was erroneous the Act has no direct relevance to the circumstances of this case, and it was properly realized in the argument here that if the High Courts conclusion can be supported it must be on other grounds. It has thus been contended that the High Court acted without jurisdiction in remanding the case as it did, and that the true view of the facts is that taken by the first trial .judge. But though the High Courts procedure may invite criticism, this is of no importance in view of that Courts ultimate findings of fact which, as already indicated, their Lordships accept. They therefore do not think it necessary to discuss further the propriety of the remand. It is then contended that the plea of purchaser for value without notice assists the respondent. But an initial difficulty in applying this doctrine is that on the face of the title the mortgagee had notice that his mortgagor took from one who only had a limited and conditional power of disposal. And so the inquiry comes back to this what was the daughters interest and power, bearing in mind that the case comes from the Madras Presidency ? It is now settled beyond dispute that a daughter as heiress of her father takes a restricted interest similar to that taken by a widow with a similar power of disposal. This power is conditional; she can dispose of the inheritance for legal necessity, but it lies on the alienee to prove the existence of this necessity, and this is so even though the absence of necessity be not pleaded by the reversioner. Thus it was laid down in Sham Sunder Lal v. Achhan Kunwar (L. R. 25 I. A. 183, 191.) "In a suit like the present, on a bond made by a person with restricted power of alienation, the defendants are not required to plead the absence of legal necessity for the borrowing. It is for the plaintiffs to allege and prove the circumstances which alone will give validity to the mortgage." And later it was said the "touchstone of the authority is necessity.” It may be conceded that even though there may not be legal necessity in fact, the alienee would be equally protected if he honestly did all that was reasonable to satisfy himself that the required necessity existed. But here there is no proof either of necessity or of inquiry validating the compromise. The inheritance therefore was not transferred so as to bind the reversioners. On the contrary, the reversioners on the mothers death can treat it as a nullity without the intervention of any Court Bijoy Gopal Mukerji v. Krishna Mahishi Debi. (( 1907) L. R. 34 I. A. 87.) Nor, in their Lordships opinion, does it alter the position that the dealing with Mandalathipathi purported to be a compromise and an acknowledgment of an existing title. Even so, it was improperly induced and equally vitiated. As against the reversioners in this case, it was not within the power of Mandalathipathi to transfer a larger legal title than he himself had, nor have the reversioners by any act or omission debarred themselves from insisting on this contention. It is true that the reversion is still an expectancy, but an expectant reversioners right to sue for a declaration has statutory recognition, and for the purpose in hand it is legitimate to consider what their position would be on their mothers death in their lifetime. They would in that event have the immediate title without the intervention of any Court, and there would in their Lordships view be no principle of justice, equity or good conscience that would empower the Court to deprive them of that legal title or to impose any restriction in derogation of it. Their Lordships therefore are unable to agree with the High Courts decision in the mortgagees favour, and they will accordingly humbly advise His Majesty that the appeal be allowed, and that the decree of the High Court be varied so far as it dismissed the appeal as against the fourth defendant and ordered that the plaintiff should pay to the fourth defendant Rs. 621.2.6 for his costs, by directing in lieu thereof (a) that it be declared that the mortgage of July 2, 1910, and the decree thereon are inoperative against the plaintiffs beyond their mothers lifetime, and (b) that the fourth defendant pay to Law. Rep. 51 Ind. App. 145 ( 1923- 1924) Obala Kondama Naicker Ayyan V. Kandasami Goundar 218 the plaintiffs their costs in the lower Courts so far as attributable to his claim against them, the amount of such costs to be assessed by the High Court. Rep. 51 Ind. App. 145 ( 1923- 1924) Obala Kondama Naicker Ayyan V. Kandasami Goundar 218 the plaintiffs their costs in the lower Courts so far as attributable to his claim against them, the amount of such costs to be assessed by the High Court. The fourth defendant must pay to the plaintiffs their costs of this appeal.