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.

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. (( 1917) L. R. 44 I. A. 229.) The case is accordingly one of an alienation by one having only a womans es