Judgement

Appeal from a judgment and decree of the High Court (November 20, 1914), so far as it reversed a decree of the District Judge of Salem (October 4, 1909).

The suit was instituted by the appellant in 1908 against the respondent (a minor) and his father (since deceased) together with thirty other defendants. The plaintiff claimed a declaration that he was entitled to possession of a moiety of certain lands in the possession of the various defendants. The lands in dispute had formed part of the estate of one Ramasami Gounden, deceased. He died childless in 1890, and his mother, Marakammal, then succeeded to his properties for a womans estate. On November 24, 1893, she executed a deed of transfer in favour of her nephew, who at that time was the nearest reversionary heir to her deceased son. The deed is set out

96 Law Rep. 46 Ind. App. 72 ( 1918- 1919) Rangasami Gounden V. Nachiappa Gounden

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in the judgment of their Lordships. The defendants had taken, by inheritance or transfer, from the alienee.

The appellant in 1896 purchased from the respondents father and uncle two of the properties alienated, and had taken a mortgage (since discharged) of other alienated property, namely, a share in mitta lands in Konganapuram.

Marakammal died in 1907, the appellant being then a reversionary heir to Ramasami, entitled to half his estate.

Written statements of defence were filed by the respondent and his father, since deceased. They pleaded, so far as is material, that the deed of transfer of November, 1893, was valid, and contended further that by taking the conveyances and the mortgage above referred to, the appellant had acknowledged the alienation, and was precluded from disputing its validity.

The District Judge made a decree as prayed, save as to -certain properties no longer in dispute.

Upon appeal to the High Court, by the present respondent and his father, the other defendants not appealing, Miller J. agreed with the trial judge, but Sadasiva Aiyar J. was of opinion that the decision should be reversed. Upon a further appeal, under s. 15 of the Letters Patent, the decision of the trial judge was reversed as to the mitta lands, which had been the subject of the mortgage taken by the appellant, but was otherwise affirmed.

1918. Oct. 31. Dunne K. C., and Dube for the appellant. The deed of November 24, 1893, effected a gift and was not a transfer for consideration; further it did not relate to the whole estate. It consequently was not a valid alienation, although made to the then nearest reversioner Behari Lal v. Madho Lal Ahir Gyawal (( 1891) L. R. 19 I. A. 30.); Marudamuthu Nadan v. Srinivasa Pillai (( 1898) I. L. R. 21 M. 128.); Debi Prosad Chowdhury v. Golap Bhagat. (( 1913)I. L. R. 40 C. 721.)

That contention is not affected by the decision in Bajrangi Singh v. Manokarnika Bakhsh Singh. (L. R. 35 I. A. 1.) Had this been an alienation for consideration the consent of the. reversioners, had it been proved, would have raised a presumption that the transaction was for necessity. That principle has no application to the case of a gift Bakhtawar v. Bhagwana (( 1910) I. L. R. 32 A. 176.); Abdulla v. Ram Lal (( 1911) I. L. R. 34 A. 129.) ; Pilu v. Babaji. (( 1909) I. L. R. 34 B. 165.) Even if consent on the part of the reversioners was relevant, then was no evidence of it Jiwan Singh v. Misri Lal (( 1895)

L. R. 23 I. A. 1.); Hari Kishen Bliagat v. Kashi Pershad Singh, (( 1914) L. R, 42 I. A. 64.) The fact that the appellant had taken a mortgage of part of the alienated property does not preclude him, by estoppel or otherwise, from asserting his right as reversioner upon the succession opening.

De Gruyther K.C. and Kenworthy Brown for the respondent. The deed, though called a deed of gift, was made in consideration of legal expenses incurred by the transferee in litigation connected with the property, as is recited. This therefore is not a case to which the decision of the Board in Behari Lal’s Case (I) applies. An alienation by