Judgement

Appeal (No. 78 of 1920) from a judgment and decree (October 8, 1918) of the High Court, reversing a decree of the Additional Temporary Subordinate Judge of Tanjore.

The suit was brought by the appellants, the grandsons of one Ramajee Bavajee who died in 1858, to recover certain movable and immovable property from the respondents. The first respondent claimed title under a deed of settlement made in 1858 by Ramajee Bavajee in favour of his wife Thulja Boyee,

Law Rep. 49 Ind. App. 129 ( 1921- 1922)

T. B. Ramachandra Rao V. A. N. S. Ramachandra Rao

26

and under her will; the other respondents were in possession under the first respondent. The appellants by their plaint contended that under the deed of settlement Thulja Boyee had only a life interest in the property in suit, and further that that was a res judicata by reason of a decision in certain land acquisition proceedings in 1894.

The facts of the case appear from the judgment of the Judicial Committee.

The trial judge made a decree in the plaintiffs favour, holding that upon the true construction of the deed of settlement Thulja Boyee had only a life interest in the property. With regard to an issue framed as to res judicata, after reference to decisions of the High Court at Madras, he held that the extent of the interest taken by Thulja Boyee was a res judicata by the decree of 1897 in the land acquisition pro ceedings, but only to the extent of the properties which were the subject of those proceedings.

An appeal to the High Court was heard by Sir John Wallis C. J. and Seshagiri Ayyar J. and is reported at I. L. R. 42 M. 283. The learned judges held that Thulja Boyee took an absolute estate in the property, and was competent to dispose of it by will. The question of res judicata was raised by the memorandum of appeal, but would appear from the above report not to have been argued before the High Court. The only reference to it in the judgments is in that of Seshagiri Ayyar J., who said "A portion of the property in suit is governed by the decision of this Court (vide exhibit A in the judgment of 1896). To that extent the defendants claim is barred by res judicata." The question was raised by the appellants case in the present appeal.

1921. Dec. 8, 9. De Gruyther K.C., and Narasimham for the appellants. Under the deed of settlement of 1858 Thulja Boyee took only a life interest. It is conceded that where a property is conferred by a Hindu on a woman by words apt to confer an absolute estate, the fact that the donee is a woman does not cut down the estate given Surajmani v. Rabi Nath Ojha (L. R. 35 I. A. 17.); Bhaidas Shivdas v. Bai Gulab (L. R. 49 I. A. 1.); Sasiman Chowdhurain v. Skih Narayan Chowdhury. (L. R. 49 I. A. 25.) It is, however, otherwise in the case of a simple gift by husband to wife.

The authorities show that in that case the wife does not take a heritable estate. The texts on this question are referred to in Maynes Hindu Law, para. 664, and are set out in Sarkars Vyvashtha Chandrika, vol. ii., p. 510. There is on the question an absolute consensus of opinion in the Indian authorities Koonjbehari Dhur v. Premchand Dutt (( 1880) I. L. R. 5 C. 684.); Atul Krishna v. Sanyasi Chun Sircar (( 1905) I L. R. 32 C. 1051); Jamna Das v. Ramautar Pande (( 1904) I. L. R. 27

A. 364.); Caralapathi Chunna v. Cota Nammalwariah (( 1909) I. L. R. 33 M. 91.); Hirabai v. Lakshmibai (( 1887) I. L. R. 11 B. 573, 578.) ; Motilal Mithalal v. Advocate-General of Bombay. (( 1910) I. L. R. 35 B. 279.) If the effect of the gift was to confer a life estate, it did not give also a right to alienate. Secondly, having regard to the decree made in 1897 in the land acquisition proceedings the question of title was res judicata. The decision of the Board in Rangoon Botatoung Co. v. The Collector, Rangoon (L. R. 39 I. A. 197.) is distinguishable. That case related merely to the amount of the award; it does not apply where under s. 31, sub-s. 2, of the Land Acquisition Act, 1894, a dis