Validity of mortgage by life estate holder.

The appellant is the seventh defendant in the Court below in a suit by the plaintiff for declaration of his title to certain properties after setting aside certain alienations, for recovery of those properties with mesne profits and allied reliefs. We are not now concerned with most of the matters in controversy decided in this suit as between the parties. We are concerned exclusively with a mortgage executed by a life-estate-holder Saradambal (Exhibit XIV-Exhibit B) in favour of the seventh defendant (appellant for Rs. 1,000 on 32-12-1124 M.E.)

There are two simple questions for determination in this appeal. The first is whether this life-estate-holder (Saradambal) had the power to make this disposal of property inter vivos during her period of enjoyment. The second is whether the mortgage itself was supported by consideration, with reference to its constituent items, and, if so, to what extent.

The facts are that one Sundraraja Iyer was the father of three daughters, of whom Saradambal was one and defendants 2 and 3 were the others. The first defendant in this suit is the husband of Saradambal, but that is not a matter that is strictly pertinent to the aspect that arises for decision now. Admittedly, there was a partition deed in the family (Exhibit A) under which Saramdabal took a life-estate in the properties of the suit. The learned Additional District Judge has throughout misconceived her status as that of a Hindu woman owning properties in a limited estate under the Hindu Law. This led him to launch into an enquiry concerning the necessity for the mortgage in favour of the seventh defendant (appellant), which really does not arise). The learned Judge stated that:-

“It is well-settled that the alienation effected by a limited female owner like a daughter can be upheld only if it is for legal necessity, or for the benefit of the estate or with the consent of the next reversioners. Therefore, the alienee of a limited female owner has to prove that the impugned alienation is supported by consideration and legal necessity, or that the alienee after reasonable enquiry as to the necessity acted honestly in the belief that the necessity existed.”

I am citing this passage from the judgment of the Court below in order to show that the lower Court really missed the point in issue upon this aspect of the suit. It is now conceded before me, upon the facts, that Sundararaja Iyer was in possession of these properties as his self-acquired properties, as far as we can judge, and that we have no right whatever to assume that Saradambal would have inherited these properties as the holder of a Hindu woman’s estate, otherwise than under Exhibit A. In fact, if Exhibit A had not come into existence, nothing whatever could be said of Sardambal’s right to the property. Consequently, one cardinal fact that has to be affirmed before we go further is that, upon the evidence, it is irrefutably established that Sardambal held the properties, not as a Hindu woman owning a limited estate under the Hindu Law, but as the holder of a life-estate under a family settlement. This life-estate necessarily partakes of the character of what are termed “Life Interest” under the English Law of Real Property, since it really derives from that law.

The question is whether the owner of such a life-estate would have powers of disposition inter vivos, so long as she held the estate, as distinguished from powers of devising the properties after her by means of a will, or otherwise providing for the inheritance. Before turning to the decisions of this Court, I may refer to In re Thomson’s Estate: Herring v. Barrow1. James, L.J., observed:-

“The Vice-Chancellor was of opinion that the widow took no further estate than a life-estate. and that at most she had no further power of disposition than by act inter vivos. At her decease, should there be anything remaining, the testator gives it over.”

This view of the Vice-Chancellor was affirmed. A similar case came up for d