1. This is a second appeal from a judgment of the lower appellate Court, which reversed the decree of the trial Court and dismissed the plaintiff's suit, The appellant's claim m based upon her being the preferential reversioner in respect of a property which was held by her mother, enjoying a widow's estate therein. The other reversioner is her sister, defendant No 5. It is conceded that the plaintiff, being the poorer of the two sisters, is the preferential reversioner. The property, 1928 the subject-matter of the claim in the suit, was sold by the plaintiff's mother about thirty years ago. The plaintiff was not a party t0 the sale-deed. The sale-deed recited that the sale was for family purposes. Defendant No. 1 is the alienee of the property. His case in the lower Courts was that the sale had taken place for a family necessity, viz., to obtain a divorce for the plaintiff, and that the plaintiff was a consenting party to the sale and bad benefitted by it. The first Court held that the defendants had failed to prove that the consideration for the sale was taken for the purpose of enabling the plaintiff to get a divorce from her husband, or that she had consented to the sale. The lower appellate Court found that the sale had taken place for the plaintiff's divorce and benefit.
2. Under the Hindu law, no doubt, the marriage of a daughter would be a legal necessity justifying the alienation of property by a widow. A divorce, however, is against the policy of Hindu law, and no precedent has been pointed out which would justify the Court in holding that a divorce may be regarded as a legal necessity. The finding of the lower appellate Court, however, makes it clear that the plaintiff elected to receive a benefit from the sale of the property by her widowed mother rather than wait for her reversionary rights to mature into ownership on her. death. That finding would, in my opinion, bring the case under the Full Bench ruling of this Court in Akkava v. Sayadkhain : AIR1927Bom620 . The appellant would, therefore, be debarred now from claiming the property. It is not necessary, in my opinion, to consider in this appeal what right, if any, defendant No. 5 might now claim in the property as that matter is not before us. We dismiss the appeal with costs.
Charles Fawcett, Kt., A.C.J.
3. I agree. I do not think that there is any ground for our not accepting the finding of the lower Court, although it depends, a good deal upon inference and the actual payment of the money obtained by the alienation to the plaintiff's husband is not conclusively proved. But there was evidence before the District Judge on which he could properly arrive at his conclusion. In that view, the plaintiff, undoubtedly, was a reversioner, who benefitted by the alienation. It is true that she did not actually join in the alienation so that this case is not on all fours with that of the Full Bench case in Akkava v. Sayad-khan : AIR1927Bom620 . But the judgment of the Privy Council in Ramgouda v. Bhausaheb : (1927)29BOMLR1380 , shows that the general principle is not confined to cases of reversioners joining in transactions, but that such joinder is only an instance of acts of a reversioner which treat the alienation as valid or binding, so as to preclude such reversioner from exercising his right to avoid it. (See the report at p. 1384). In the present case, I think, that the plaintiff's act in accepting a substantial benefit from the alienation amounts to an act showing her consent to the alienation and her election to treat it as valid and binding, so far as she was concerned.
4. Mr. Coyajee argued that the consent of a female reversioner was insufficient, and there are, no doubt, authorities which support that contention. But I think these must clearly be taken to have been overruled by the Full Bench decision in AJckava v. Sayadkhan.
5. Mr. Coyajee's second contention was that the consent of the whole body of reversioners is necessary to validate a transaction, and that the plaintiff' was one of two daughters, so that, her consent alone would not be sufficient. That would possibly be a good argument if the validity of the alienation depended entirely upon the consent of the reversioners. But there is this further ground of validation, which does not necessarily require every reversioner to have benefitted by the alienation. Their Lordships of the Privy Council at page 1384 of the report speak of reversioners, 'who may either singly or as a body be precluded' from exercising their right to avoid the transaction.
6. A particular reversioner can be precluded, by his conduct, and it is not necessary that in every case the whole body of reversioners should be so precluded. In the present case the suit is brought by the plaintiff alone with the acquiescence of her sister, defendant No. 5, so that for the purposes of this suit, if the plaintiff is precluded from questioning the validity of the alienation, that suffices to justify the decree of the lower Court. Therefore it seems to me that the legal objections that have been taken to the decree of the Court below are not sustainable in view of the Privy Council decision that I have mentioned. Whether defendant No. 5 can bring another suit against the plaintiff is a question which I do not think we have sufficient materials to discuss. Possibly, such a suit would be barred as res judicata.