1. This was a suit by a reversioner to recover property setting aside a grant or disposition made by the widow of a previous holder.
2. The circumstances underlying the litigation are these. The original plaintiff Abhesang was the son of one Tirabhi who was the great-grand-son of Tiratsang. Tiratsang had another son Ajabsang and Ajabsang's great-grand-son was Bapji Jasabhai whose property is the subject of this litigation. Bapji Jasabhai on dying left two widows, Bajiba and Jijiba. By Bajiba Bapji had a daughter Laduba and by Jijiba he had another daughter Ratanba. Ratanba married Bapujee Abhesing, who by another wife was the father of Fatesing, who was the father of the defendants 1 and 2. The third defendant on the record is the Talukdari Settlement Officer.
3. On the occasion of Ratanba's marriage with Bapuji Abhesing in 1857 the widow Jijiba executed in favour of her son-in-law Bapuji the deed Exhibit 89, the material portions of which run as follows:-' To Rana Shri Bapuji Abhesingji. Passed in writing by Jijiba, wife of Rana Bapji Jasabhai. My daughter Ratanba has been married to you. Consequently I have made a gift to you of all the Gharthal lands and the Sim lands with trees and meadows and all our moveable and immoveable properties pertaining to my share with this understanding that you should enjoy all our properties from generation to generation or deal with them in any way you choose. I have no son and consequently so long as I live I am to live in my husband's house and you are to maintain me, and when I die, then you are to perform my funeral ceremonies and pay the expenses of them according to the custom of our caste and according to your means; and whatever debts there may be due from me you are to discharge '. The date of this deed, which has been referred to throughout as the deed of gift, is the 10th of September 1857.
4. On the 23rd October 1857, or say six weeks later, we have the deed Exhibit 134 which is a deed of release passed to Jijiba by Dulabhai Suratsang, Tirabhai Rupji and Nathabhai Bhaiba. The deed sets out that the executants ' do pass in writing this deed, of release--that your lands and houses in the village and outside and the Giras and the other immoveable and moveable properties are all of your ownership and occupation. In consideration of our rights as agnates we have received Rs. 525 and we have no sort of right or claim in these properties any longer. You should enjoy them from generation to generation and do whatever you like with them. You may give them away in charity or sell them. We, our brothers, and heirs have no sort of claim or interest in these properties '.
5. Exhibit 39 which is the admitted genealogy of the parties shows who these three executants were. Dulabhai, it will be seen, was the elder son of Surajsang, and so represented the elder branch of Tiratsang's family. Nathabhai was the elder son of Bhaiba and Tirabhai was the younger brother of Bhaiba. They represented the younger branch of the descendants of Pratap-sang, son of Tiratsang.
6. By virtue of these two dispositions, Exhibits 89 and 134, Bapuji Abhesing went into possession of these properties in 1857, and remained in possession till his death. On his death he was succeeded by his son Fatesing who remained in enjoyment until 1878, when upon Fatesing's own application, the Talukdari Settlement Officer undertook management of the property on Fatesing's behalf and has so retained the management until now.
7. The first indication of any claim by any reversionary heir of Bapji Jasabhai occurred as late as September 1905, and took the form of a notice issued by the present plaintiff; in other words for a period of forty-eight years the defendants remained in unchallenged possession after the execution of the deeds which are now impeached. It is this possession which the plaintiff by this suit seeks to disturb.
8. Various issues were raised in the Court of the learned District Judge who decided several of them in the plaintiffs favour, Only two of those issues, however, are material to us at present, and those are :-(i) Whether the release (Exhibit 134) is a genuine document; and (2) if it is genuine, was it valid in law so as to transfer the property to the defendants' predecessor-in-title. Upon both these points the learned District Judge found in the defendants' favour, and these are the only two points which have been canvassed before us on behalf of the plaintiff-appellant.
9. First, then, we have the question of fact whether this document Exhibit 134 is genuine. In the first place it is to be noticed that the document purports to be of the year 1857, that is, to be more than thirty years old. Next it comes from the custody of defendants 1 and 2 who are the heirs of Bapuji Abhesing' the donee under Exhibit 89. It comes, therefore, from proper custody. All persons concerned with the preparation or execution of Exhibit 89 are now dead, but the defendants have been able to adduce very cogent evidence in support of its authenticity. The document was produced by the witness Bavaii Bajibhai (Exhibit 127) who was the manager of the 1st and the and defendants. He tells us that he found it in the large chest or box in which the family were accustomed to keep their ornaments and other valuables. It seems to me that there is' nothing which need excite suspicion in the manner in which this document emerges upon the scene. It purports to be written by one Bapuji who is dead. His son Udesing (Exhibit 99) proves the father's handwriting. He goes further and produces two other papers Exhibits 101 and 103 which, he says, were also written by his father about 1857. This witness is not shaken in cross-examination, and his evidence is supported by that of Mr. Ramanbhai who was examined as an expert in hand writing and who was satisfied that Exhibit 134 was in the same hand as Exhibits 101 and 103. Witness Parhbatsing (Exhibit 106) proves the attestation of his father Nana Bawa on Exhibit 134. And although I do not myself attach very much weight to this part of Parbatsing's deposition vet the witness becomes of more assistance to us when he produces certain other signatures of his father which are recognized by Mr. Ramanbhai as being in the same hand as the attestation on the Exhibit 134. It is worthy of remark that Exhibit 80 which is admitted to be genuine was written by the deceased Nana Bawa, and Mr. Ramanbhai there again finds agreement between the handwriting in Exhibit 89 and the attestation on Exhibit 134.
10. Witness Banesang (Exhibit 110) identifies his father Dulabhai's attesting signature on Exhibit 134 and it is significant that Dulabhai attested both documents Exhibits 89 and is
11. Witness Bajibhai (Exhibit 121) identifies his father Punjaji's attestation oh both Exhibits 89 and 134.
12. It seems to me that better evidence of a document executed in 1857 could not reasonably be expected than the evidence to Which I have referred. Both Exhibits 134 and 89 are written on a stamped paper bought on one and the same day, viz., and September 1857, and bought for Jijiba by one Ajmatkhan Pirkhan from the same stamp-vendor. Exhibit 89, as I have said, is admitted to be genuine, and it seems to me quite impossible on the evidence to put Exhibit 134 on any other footing than that occupied by Exhibit 89. It is said that on Exhibit 134 the vendor's endorsement shows that the paper was bought for a Mukhtyarnama, and that a Mukhtyarnama should be understood to be a mere power of attorney or a deed creating an agency, and cannot be understood to include such a document as Exhibit 134. Apart from the consideration that legal terms of precision were hardly likely to be familiar to Maulesalam Garasias in the year 1857, I take the liberty of doubting whether the word 'Mukhtyarnama ' might not correctly be used in 1857 of such a document as this, for certainly the word ' Mukhtyar' still survives as denoting one who is empowered or entitled to do a thing.
13. It was said that the Court's suspicion should be aroused by reason of the lateness of the date on which Exhibit 134 was first produced. But Exhibit 134 was produced at the same time as the admitted Exhibit 89, and both were produced within the time ordinarily allowed by law for their production. The defendants were under no obligation to produce them earlier, and I am of opinion that there is no substance in this objection.
14. It was said also that Exhibit 134, so far as the evidence goes, was never before produced on any occasion or seen by any person. But Mr. Gokuldaswas unable to satisfy me that there was any occasion on which the production of Exhibit 134 would have been ordinarily expected.
15. On these grounds it appears to me clear that the learned District Judge was right in his view that Exhibit 134 is in fact a genuine document. If that is so, there remains the question whether Exhibit 134 is good in law, that is, whether in law it operates to transfer the property to Bapuji Abhesing and his heirs. But before we can deal with that question it is necessary to make plain what exactly is the disposition of property with which we are concerned. For Mr. Gokuldas has contended that Exhibit 134 should be dissociated from Exhibit 89, and should be construed as an isolated and independent document which merely conferred on the widow Jijiba certain additional powers, which additional powers, says the learned pleader, had no connection with the transaction in Exhibit 89, and cannot be held to relate back to that transaction. I am compelled however, to adopt the opposite view. It has been laid down not once, but many times, by the Judicial Committee of the Privy Council that even to-day deeds and documents of the people of India should be construed not strictly by reference to their mere form but liberally so as to give effect to their clearly ascertained intentions. And if that is true in 1912, it seems to me to be still truer when the Court is dealing with a document passed in 1857. I have no doubt that the learned Judge was right in thinking that Exhibits 89 and 134, despite the short interval of time which separated them, must be read together as embodying one single transaction. I think that Exhibit 134 involved and was intended to involve and to record the collateral heirs' consent to the prior disposition made by Exhibit 89. It is true, as Mr. Gokuldas has observed, that Exhibit 134 contains no reference to the disposition already made by Exhibit 89. But in spite of that circumstance I am not the less of opinion that the object of Exhibit 134 was as I have stated. If that is so, then it is immaterial that the consent of the reversioners was given subsequent to the alienation: see Bajrangi Singh v. Manokarnika Bakhsh Singh ILR (1907) All. 1 : 9 Bom. L.R. 1348.
16. Upon this state of the facts then we have this transfer to Bapuji Abhesing, consented to by the three reversioners whom I have named, and the question is whether such a transfer made in these circumstances and with this consent is valid. Mr. Gokuldas has contended that the consent obtained for his alienation is insufficient, and he urges that no alienation could be valid without the consent of Laduba and Bajiba and Surajsang the father of Dulabhai, for Surajsang, he contends, was alive when this transaction was effected. As to Bajiba, however it would appear that the learned pleader was under a misapprehension, and if I understood him rightly he recognized as much when he came to reply upon the case. For Exhibit 33 in the suit is clear evidence that it was admitted in the trial Court that Bajiba could have been living at the time of Exhibit 134, and it follows that in the Court below it was common ground that Bajiba was dead at this time, and the suit was fought out upon that understanding.
17. As to Laduba, the daughter of Bajiba, it must be admitted that she was one of the next reversioners. She would inherit with Ratanba after the widow's death. At the same time one must endeavour to bear in mind what is likely to have happened if in fact this was a genuine document. Our Courts have held that in such a case as this the consent of a Hindu female to an alienation is 'absolutely immaterial.' And if that it the view which the Courts have taken now, I think, it is certain that that was the view which Maulesalam Garasias would have taken in 1857. If in ordinary circumstances that would have been their view of the unimportance of a female's assent, they would probably have been strengthened in their opinion in the particular circumstances of this case, seeing that Laduba was already married and provided for at the time of the alienation, and had gone completely out of the family. It may be added that Laduba who died about 1886 never made any objection to this alienation.
18. As to Surajsang, Mr. Gokuldas's difficulties seem to me to begin at the outset. For even supposing that he was in a position to show that Surajsang was alive in 1857, I cannot concede that that necessarily involves that Surajsang's own signature would be expected on every document of consequence in which he was concerned. It appears to me that any trifling indisposition of Surajsang's or any reluctance to travel or mere caprice would have seemed to him sufficient to justify him in deputing his eldest son to sign on his behalf. And I think if Dulabhai had done so, signing his own name, without more, no surprise would have been excited among the members of the caste at that time. However that may be, I am of opinion that Mr. Gokuldas has failed to show any good ground for supposing that Surajsang was alive in 1857, The circumstance to which he can point in support of his proposition is that in Exhibit 42, which is a record of receipts in respect of Giras paid to the Girasias for the year 1864-65, Surajsing's signature appears in the column reserved for the signature of the person receiving the allowance. It is noticeable, however, that though there are two entries to this effect, in neither of them does Surajsang himself sign, and the entries are signed for him by a different person on each occasion. The fact that Surajsing's signature occurs in this record appears to me, however, not to raise even a presumption in favour of the view that Surajsang was then alive. For the records show that Surajsang's name remained on them for four or five years after 1864, and as the learned Judge has pointed out, so long as Surajsang's name remained upon the records, the Taluka authorities would be determined to get the signatures of Surajsang down upon their records to vouch for the payments made. And if Surajsang himself was dead though his name remained upon the records, it appears to me that any responsible person would naturally sign for him in order to meet the objections of the Mamlatdar and that no one concerned in this innocent misrepresentation would have been in the least conscious that he was doing anything irregular or unauthorized. It may be added that if it had been any material part of the plaintiffs case that , Surajsang was dead in 1857 there were numerous witnesses whom the plaintiff might have called to establish that fact. Not only was no such witness called, but the very case itself that Surajsang was dead at the time of Exhibit 134 was not put to any of the defendants' witnesses. Conscious perhaps of the infirmity of this part of his case Mr. Gokuldas put in an application (Civil Application No. 709 of 1910) for permission to bring fresh evidence from the records to show that Surajsang survived beyond 1857. From what I have already said it will be clear that such evidence would have no effect on my own mind even if it were produced and were beyond suspicion. But apart from that, the application is merely a petition that the plaintiff should be allowed now in appeal to eke out the imperfections which through his own default existed in his case at the trial. I know of no authority for granting such an application which we therefore felt bound to reject.
19. This then is the evidence as to how Exhibit 134 came to be executed and who were the interested parties whose assent to it was obtained. The question remains whether that consent was sufficient to validate the alienation. The law upon that question is contained in Vinayak v. Govind ILR (1900) 25 Bom. 129 ; 2 Bom. L. R. 820 where Sir Lawrence Jenkins points out that the Bombay view of this matter is 'that the consent of the persons interested to oppose, the transaction evidences its propriety if not its actual necessity.' Mr. Justice Ranade in the same case in dealing with the question of the precise degree of consent which would be required records his opinion that 'the consent of the reversioners must be of such kindred, the absence of whose opposition raises a presumption that the alienation was a fair and proper one. ' I pause to observe that this sentence is quoted, apparently with approval, by their Lordships of the Privy Council in Bajrangi's case ILR (1907) 30 All. 1. Mr. Justice Ranade proceeds:-'The consent of kindred in the matter of adoption in those Provinces, where such consent is required stands on the same footing. The consent of other kinsmen is not essential. There should be evidence of the assent of such kinsmen as suffices to show that the widow's act was bonafide and proper.' (See page 140.)
20. Finally in Bajrangi's case the Privy Council laid down that 'ordinarily the consent of the whole body of persons constituting the next reversion should be obtained, though there may be cases in which special circumstances may render the strict enforcement of this rule impossible.' I think for reasons already given that if there ever was a case falling within this special reservation, this is that case, so far as Laduba is concerned.
21. The authorities to which I have referred seem to me to show that the question whether an alienation is validated by the reversioners' consent or not depends not only on the number and character of the persons consenting, but also upon the nature and purpose of the alienation itself, and the circumstances in which it was made. There must be such consent as to satisfy the Court that the kinsmen most interested in opposing did not oppose. If the Court is satisfied of this, it seems to me that more is not ordinarily required. This view of the law is not, I think, in conflict with anything that was said in Pilu v. Babaji ILR (1909) 34 Bom. 165 : 11 Bom L.R. 1291. That decision, like every other decision, must be read in the light of the facts which were then before the Court. And if it is so read it will be noticed that the rule of law which was applied there was exactly that which I have endeavoured to state. Indeed Vinayak v. Govind ILR (1900) . 25 Bom. 129 : 2 Bom. L.R. 820 was expressly set out as lending authority upon which that decision was based. Mr. Gokuldas has pointed to certain observations as to the peculiar case of a gift where we said that 'the operation of the principle of validation by reversioners' consent is ordinarily limited to transfers for consideration, and cannot appropriately be extended to voluntary transfers by way of gift, where there is no room for the theory of legal necessity.' It is unnecessary to emphasize the reservation indicated in the use of the word ' ordinarily.' And it is sufficient to say that those observations were made with reference to the facts then before us. Those facts were that there was a mere voluntary transfer which had no further consent than the consent of the party benefiting by the gift, who was a Hindu woman, and of her son. It was decided that such a consent as that was insufficient to support the gift. But a decision upon facts such as those is clearly of no guidance to us now in the wholly diverse facts with which we are concerned.
22. If then the law is in Bombay that the consent of the joint body of reversioners validates the deed as being evidence of the propriety of the deed, we have in this case equally strong . evidence in favour of the same view from another quarter. For we have the parties' own conduct in that, for a period of half a century, the original reversioners and their numerous heirs and descendants acquiesced in this alienation, though there was at least one occasion which invited objections if objections had been entertained. In 1878 the estate was taken over by the Talukdari Settlement Officer as being Fatesing's estate, and on his own application, he having represented that the estate included this particular property. The Talukdari Settlement Officer's proclamation Exhibit 82 shows that this property in suit was included, and the Talati Kashinath (Exhibit 129) proves that the proclamation was published in the villages, a Battaki being beaten. It is also proved that the plaintiff was then living in the village. Since the Talukdari Settlement Officer assumed the management Government have advanced large sums of money to disencumber the estate. But from 1857 till September 1905 no protest or objection was ever raised by the plaintiff or by any other of the numerous collateral heirs who would be interested in impeaching this alienation.
23. The circumstances surrounding the transaction seem to me to lend further support to the view that it was proper. This was not a gift to a stranger, nor was it an out and out or unconditional gift; for there was consideration passing from the donee who undertook to maintain this young widow, and did maintain her during the forty years of life which remained to her. He was further under the obligation to pay her debts and her funeral expenses, and we have no reason to suppose that that obligation was not discharged. The donee was the husband of her daughter Ratanba, and the evidence of the old men Virsang Jibhai (Exhibit 124) and Raising Mulji shows that such transfers on such occasions are not unusual in the caste. This circumstance appears to me to be very material when one is administering a system of law which attributes such exceptional weight to usage and custom as does the Hindu law.
24. Then again, whether the transaction embodied in these Exhibits is to be described as a gift or not, it seems to me manifest that the whole transaction was in the nature of a family settlement or agreement. The real nature of it was that the reversioners in consideration of a sum of cash then A and there received, parted with their rights in favour of Jijiba so as to allow her to endow her daughter on her marriage. The parties concerned in this transaction were related , to each other, and the party to be benefited was a young lady on the occasion of her marriage. Such a family arrangement as this would in any circumstances be entitled to protection at the hands of the Court. It seems to me it is all the more entitled to that protection here, where one of the persons thus assenting to the arrangement was the plaintiff's own father, and where the arrangement has, as I say, been acquiesced in for a half century. That acquiescence alone appears to me to constitute proof that the agreement of 1857, as it was consented to then, so it was ratified and confirmed down to September 1905, when it first occurred to the plaintiff to launch this suit.
25. It may be material, though I do not think it necessary, to add that there is authority for the view, as the learned Judge has shown, that gifts by a widow on the occasion of a daughter's marriage are understood in Hindu law to conduce to the spiritual benefit of the widow's husband. If that is so, then that affords yet another reason for upholding this transaction.
26. Upon all these grounds, I am of opinion, that the learned District Judge's decree was right and this appeal ought to be dismissed with costs. As the Talukdari Settlement Officer was sued in his official capacity, he is entitled to a separate set of costs from those of the 1st and the 2nd defendants.
27. I have but little to add to what has been said by my learned Colleague. But this much, I think, I ought to say as this is a case of some importance. What appeals to me most strongly as determining the result in this case is that the evidence taken as a whole shows to my mind, conclusively, that there was a family arrangement or settlement. I take it that Exhibit 134, for the reasons stated by my learned Colleague, is undoubtedly a genuine document. That being so, and taking that together with the other evidence, we find that the reversioners received compensation for their interest. It was not a very near or very valuable interest because there were two daughters then alive. However, whatever it was worth, their interest was paid for in cash. The widow was provided for-the only surviving widow at the time of Ratanba's marriage. The bulk of the property went to the husband of the daughter Ratanba, no doubt in the hope that it would ultimately pass to the descendants of Bapji Jasabhai, the original owner. This was a very natural arrangement, and one which seems to have amply secured the interests of all concerned except possibly the daughter Laduba. She, however, had been previously married and some property had been bestowed on her or her husband at the time of her marriage. The arrangement must have been known to everybody, substantially concerned by or interested in it, and it stood unchallenged, for nearly fifty years.
28. It is argued very strongly by Mr. Gokuldas that in fact there was no occasion for the reversioners to challenge the arrangement until after the death of Jijiba-the lady who was the principal person in arranging this disposition of the property. He argues that so long as she was alive she had and was known to have a life interest in the whole of this property ; and could do with that interest what she chose ; and that whatever she did would hold good so long as she remained alive. She remained alive till 1900. It may be that this argument states what in law is correct. Yet it seems to me what would appeal to the minds of those who had an interest in this property would be, not this view of the law, even if they had any knowledge of it, but the patent ever present fact that the lands and the profits had passed away from the family into the hands of the husband of a daughter of Bapji Jasabhai; and that there they remained. On the death of Bapuji Abhesing the property passed into the hands of his son Fatesing. In 1878 it was taken over by the Talukdari Settlement Officer and remained with him. On all these occasions there was the opportunity, the inducement, to intervene and protest, if any of these reversioners supposed that they had any right to intervene or challenge the family arrangement. No one of them did so, and that, it seems to me is an argument of great weight for holding that we have here a family arrangement and not a mere gift. If the document called the deed of gift were the only thing in the case with which we had to deal it might be difficult to avoid the conclusion that it was substantially a gift and governed by that portion of the Hindu law which relates to gifts by widows of property which has come to them from their husbands. But I regard this so-called deed of gift as merely one part of the family arrangement. No doubt the family arrangement was not effected, so far as the documents are concerned, in any very skilful or lawyer-like manner, but it was done in a way that Sufficed, with a definite purpose and with definite perceptible results. Nobody challenged these results then or thereafter for nearly half a century.
29. As regards Surajsang I would only say that if I were driven to make an inference from such evidence as there is on the record, that inference might be that at the time when this family arrangement was made he was still alive. But I agree with my learned Colleague that it is a matter of no importance, because it is established, to my mind, beyond any question whatever that those to whose interest it was to make opposition to this arrangement did not oppose it, and were at the time, and remained thereafter, satisfied with it.
30. For these reasons I agree that the appeal be dismissed with costs.