Andrew Scoble, J.
1. Sitla Baktah Singh, a Hindoo of the tribe of Bhale Sultan Chhattris, resident in Sultanpur, died some time before the annexation of Oudh, leaving him surviving a widow named Daryan Kunwar and two daughters, Janga Kunwar and Jagrani Kunwar. He was absolute owner of an estate known as Pidara Kurnai and other property, which at his death passed to his widow and, at her death, would have passed to his daughters, but for a custom of the tribe excluding daughters and their issue from succession. The widow died on the 6 h of August 1892. having previously said the whole of the estate to her son-in-law Maheshar Bakhsh Singh, the husband of her daughter Jagrani Kunwar and mutation of names in the Revenue Registers was effected in his favour. After the death of Maheshar, which occurred on the 3rd of April 1893, the name of his son, Manokarnika Bakhsh Singh the present respondent was entered in the Government Records as proprietor of the estate; and the present appellants (with one Mahpal Singh, who died while the case was pending) brought The suit now under appeal, claiming that, by reason of the custom of the Bhale Sultan Chhattris, they were the next heirs in reversion to the estate of Sitla Bakhsh.
2. In the Courts below and before their Lordships two main questions were raised. First, whither the custom had been proved; and, secondly, whether certain deeds confirming the sales by the widow to Maheshar, executed by the then nearest reversioners and disclaiming all title to the property in dispute, were binding on their descendants, the appellants, who were the nearest reversioners at the time when The succession opened, at the widow's death. In the Courts in India, the District Judge held the custom not proved and the deeds not binding the Judicial Commissioner came to the exactly opposite conclusion on both points. The conflict of opinion in the Courts in India upon the question of custom has made it necessary for their Lordships to examine carefully the evidence in this case, in order to ascertain whether the alleged custom has been a his facturily proved. In making this examination, their Lordships have been materially assisted by the elaborate analysis of the evidence made by both the learned Judges below and by the learned Counsel who argued the appeal. They will briefly state the grounds on which they consider the judgment of the Judicial Commissioner on this point must prevail.
3. The Bhale Sultan clan appear to have derived their name, some three centuries ago, from their warlike exploits in the service of the Emperors of Delhi. They are now settled in considerable numbers in the district of Sultanpur in Oudh, in several villages in which they constitute the bulk of the population. It the language of the Indian Evidence Act. 1872. (section 43) they form a, 'considerable class of persons.' The evidence in support of the custom was mainly oral and no document was produced of an earlier date than the British annexature. Thirty-five witnesses were examinpd on behalf of the apellants. They were all members of the Bhale Sultan clan, mostly men of mature age and of good position. They all gave evidence that in their clan it was the custom that daughters and their issue were excluded from succession to the separated as ate of their father and put forward thirty-nine instances in which this exclusion had taken place. The Judicial Commissioner held that twenty of the so instances had been satisfactorily proved. For the respondent no evidence was given in contradiction of these instances, though ample time was allowed but for the production of such testimony had it been available but six witnesses were called, one of whom had signel a Ujib-ul-arz in which the custom was set up and two gave evidence in support of the custom.
4. In corroboration of the ora1 evidence, a number of village administ'ation papers (wajib -ul-arz) were produced of which seven were admitted by both Courts to be relevant, as relating to Bhale Sultan villages. In all these the rule is stated that a daughter and her issue do not alal-umum (that is, as a general rule) obtain the share. One of them is attested by 44 Zemindars and Lambardars of the village another by 40, others by 8 or 10. The dates of these documents are not given, but they were all officially recorded prior to the institution of this suit and quite independently of the parties thereto.
5. One other piece of evidence remains to be noticed. It has been stated that Sitla Bakhsh 1eft two daughters, Janga Kunwar and Jagrani Kunwar. In 1876, Janga Kunwar filed a suit against her mother Daryao Kunwar and her brother-in-law Maheshar Bakhsh for a decraratory decree that she was entitled to succeed to half her father's estate; and in answer to her claim, the Vakil for the defendants put forward the plea that '-among Bhale Sultans daughter never succeeded to the inheritance of her father.' The Court came to no decision on the point, but disposed of the suit on another ground reserving Janga Kunwar's right to put forward her claim on the death of her mother. The fact, however, that this defence was raised shows that the ex sentence of the custom was present to the mind of Daryao Kunwar at the date of the transactions to which their Lordships will now proceed to refer.
6. Although Daryao Kunwar appears to have been willing to invoke the custom as a defence against the claim of her un-married daughter, she was at the same time endeavouring to defeat the operation of the custom in regard to her married daughter. Jagrani Kunwar and her husband, Maheshar Bakhsh Singh, the father of the present respondent. During the period from 21st October 1872 to 24th July 1875, she executed five deeds of sale, by which she purported to transfer, for valuable consideration, successive portions of her husband's property to Maheshar Singh. The District Judge has found that these deeds were executed without 'legal necessity'; and it is certain that the preliminary consent of her husband's reversionary heirs was not obtained. One of these heirs, Matadin Singh, the father of the appellants Jagdamba Singh and Bajrangi Singh, brought a suit in the Court of the Deputy Commissioner of Sultanpur in 1873 to set aside three of the deeds ; but on appeal this suit was dismissed on a technical ground by the Judicial Commissioner on the 6th May 1874. Janga Kunwar's suit, already referred to, was dismissed on the 25th August 1876. Having thus succeeded, for the time beirg, in the Courts Daryao Kunwar entered into negotiations with the persons who were at that time admittedly the nearest reversionary heirs to her husband's estate and obtained from them two documents, called deeds of relinquishment, one dated the 4th May 1877 and the other dated the 29th January 1878. The first of these was signed by five persons, four of whom died without issue in Daryao Kunwar's lifetime and the fifth, Baijnath Singh, is the father of the plaintiff Mahpal Singh, who died while this suit was pending in the Court of the District Judge and who in now represented by the appellants. The second was signed by Janga Kunwar, Matadin Singh (the father of the present appellants) and Hanuman Singh, who is still living, but is not a party to this suit. In these documents, which are identical in terms, after enumerating the sales by Daryao Kunwar to Maheshar Singh, the executants go on to say :-
We All have given our full consent to all those sale-deeds which the Thakurs in has executed in favour of the Babu and will ever remain so satisfied. And after the death of the Thakurain we shall brini no claim against the Babu on account of the moveable and immoveable property owned by her; hence we have executed this deed of agreement so that it may serve as at authority and be of use in time of need.
7. ' It was not disputed,' saystle Judicial Commissioner in his judgment, ''that the executants of these deeds received consideration for ratifying the transfe a and agreeing not to dispute their validity. Indeed it was said that they were paid to execute the deeds.' Upon these facts, the Judicial Commissioner found that the transfers to Maheshar Singh were valid and dismissed the appeal.
8. The restrictions imposed by the Hindu law upon the widow's power to alienate her deceased husband's estate have frequently been the subject of consideration by this Committee.
For religious or charitable purposes, or those which are supposed to conduce to the spiritual welfare of her husband, she has a larger power of disposition than that which she possesses for purely worldly purposes. To support an alienation for the last she must how necsssity. On the other hand it may be taken as established that an alienation by her which would not otherwise be legitimate may become so if mode with the consent of her husband's kindred.' (Collector of Masulipitam v. Cavaly Vencata Narrainapah (1903) 8 Mao. I.A 529.
The kindred in such case,' their Lordships observe in a latter case, ''mail generally be understood to be all those who are likely to he interested in disputing the transaction. At all events there should be such a concurrence of the members of the family as suffices to raise a presumption that the transaction was a fair one and one justified by Hindu law.' (Raj Lukhee Dabea v. Gokool Cunder Chowdhry (1904), 13 Mac. I.A. 209.
9. Upon the practical application of this general principle there has been much discussion in the High Courts in India. A Full Bench of the High Court at Allahabad, in the case of Ramphal Bai v. Tula Kuari ILR (1883) All 116, considered that:-
The plain principle deducible from these rulings of the Privy Council is that in order to valluate an alienation by a Hindu widow of her deceased husband's esat' for purposes other than those sanctioned by the Hindu law, It must have the cooMit of all those among his kindred who can reasonably be regarded as having an interest in questioning the transaction.
10. And they accordingly held that the consent of the heir presumptive to an alienation by a widow was not sufficient to defeat the rights of a more remote reversioner and that an assignment by the widow to the heir presumptive had no greater effect in her favour than it would have had if he had been a stranger 'We think,' say the learned Judges,
that the spirit of the Hindu law is to keep the right of succession to the deceased husband's estate open until the window's death, free of any control by her, except in such cases as she has a power to adopt; and that no reversloner possesses such a present vested interest as enables him to combine with her in defeating his co-revolutioners. In other words, her right and theirs have one common basis, that of survivorship to the widow and it is incapable of anticipation.
11. The High Court of Calcutta has taken a different view, based upon a long current of authority in that Court, albeit two of the learned Judges- Garth C.J. and Pilot J -considered that the principles on which the decision was founded were open to great objection. In the case of Nobokishow Sarma Roy v. Hari Nath Sarma Roy ILR (1884.) Cal. 1002. a Full, Bench held that under the Hindu law current in Bengal:-
A transfer or conveyance by a widow npon the ostonsible ground of legal necessity, such transfer or conveyance being assented to by the person who at the time is the nrxt revesioner, will conclude another person not a party therty, who in the actual rcversioner upon the death of the widow, from asserting his title to the property.
12. The ground of the decision is thus shortly stated by Garth C.J.:-
If it is one established as a matter of law that a widow any relinquish her estate in favour of her husband's held for the time being seems imposible to prevente any alienation which the widow and the next heir may agree to make.
13. And more fully by Hitter J. :-
Whatever conflict there may be upon the question whether a Hindu widow may sell the whole inheritince without any legal necessity, merelywith the consents of the next mala heir, there is no conflict in the decisions, since the case of Jadamoney was decided in the lnre Supreme Court of Calcutta, upon question which the n relin quinhment by a Hind widow her estate the next male heir of her husband is valid or not. Such reliuquisment by The widow his been held fur a long series of years to he valid. ...But if the widow is competent to relinquish her estate to the next male heir of her husband, it follow and logical consequence, that she can alienate it merely with his consent without any legal necesiity.
14. In a subsequent case (Radha Shyam v. Joy Ram Senapati ILR (1884) Cal. 896, the same High Court held that the consent must be of the whole body of persons constituting the next reversion.
15. The Calcutta decision, of course, is not binding upon other High Courts, but it his been followed in Madras. In the case of Marudamuthu Nadan v. Srinivasa, Pillai ILR (1883) Mad. 128, decided by a Pull Bench of the Madras High Court in 1898, Subramania Ayyar, J., says :-
I think it unnecessary to go into the question whether the Hindu law, according to the texts or the commentaries, lends support to the doctrine that a female holding a qualified estate can validly surrender such an estate so as to entitle the then immediate Teversioner to enter upon the inheritanue and to hold it absolutely an if the succession had opened by the natural or civil death of the qualified owner. Though there has been no coarse of decisions on the paint in the Presidency as in Bengal, yet instances have occurred which show that parties have acted upon the view that each surrenders are valid in these parts as well. This appears even from Borne of the cases which have conr b.fore the Court. Since there is nulling in the doctrine its. If which makes it less suite to the community in this presidency than to the community in Bengal, it is not surrising that the Calcutta rulings have in practice been followed in this Presidency also. In such circumstance the rule, as stored be the Judicial Commitee in Behari lal v. Madho Lal LR. 19 I.A. 30, should, I think, be taken to be a rule applicable to this Presidency to, subject, no doubt, to the restriction pointed out by their Lordships, viz., that the surrender should be absolute and ' Complete and that the while limited estate should be withdrawn, a restriction that would guard against the injurious results w.ich would follow if the rule were not so qualified.
16. The question was also considered by the High Court of Bombay in 1901 in the case of Vinayak v. Govind ILR (1901) 25 Bom. 129. In the course of his judgment Jenkins C.J. says (at p. 133): -
There can be no question that, apart from legal necessity, a widow can validly alienate land that has devolved upon her from her husband with the content of the revevsioner. The basis on which this rests is a matter of coourt overay. The High Court of Calcutta on me whole appears favour the view that the consent derives its effect from the power supposed to resiib in a widow of accelarating, by the surrender of her own interest, the interests of the reversioners. It is impossible nut to feel some difficulty as to this doctrino.... The other view is that the consent of the persons interested to oppose the transition evidnces its proprity, if not its actual necessity. This has a parallel in the law relating to a widow's adoption under certain circumstaces and it finds support in the texts. . . . This view has too, in a messure, ihe aunctiun uf the l'rny Council.
17. And he quotes the casas of Coll etor of Masulipatam v. Cavdly Venenta (1889) 13 Moo. I.A. and Raj Lukkee Dabea v. Gokool Chunder (1861) 8 Moo. I.A. 629. which have been already reierred to. ' Turumg then t0 Bombay,'he ges on to say,''the High Court here appears to have accepted this view rather than that which finds tavour in Calcutta.' In the same case Ranade J. observes (at p. 139):__
The Bengal theory that the widow's interest was a life intereat and that her surrender or realease of that intrest to the next reversioner accelerates his cotaining the full title has never net with much acceptance on this side of India. Our leadig case-Varjvan Bangii v. Rangi Gokaldas I.L.R. 5 Bom 563 lays down that the cons.nt must be of all ihe kindred, but that does liot rueui chat (very single member who is a kindred must actually join in the conveyance.
18. And the conclusion to winch ruoomes is that, in order to validate an alienation by a widow otherwise than from legal necessity.
The consent of the reversinnorg must be of such kindred the absence of whose opposition raises a preemption that the alienation was a fair and proper one.
19. The principle being thus admitted by the High Courts in India, the question or the quantum of consent necessary only remains. The High Court of Allahabad, indeed, does not recognize the validity of surrenders in favour, or alienations with the consent, of presumptive reversioners, so as to defeat the : title of the actual reversioner at the time of the widow's death. But this restriction is at variance with the principle itself and is not in accordance with the practice in other parts of India in which the Mitakshara law prevails:. Their Lordships have not been referred to any cases in the Province of Oudh in which this restriction has been acted upon; and though they would be unwilling to extend the widow's power of alienation, beyond its present limits, they cannot adopt the further limitation which the Allahabad High Court; has sought to establish. They agree with the High Court of Calcutta : Radha Shyam v. Joy Ram ILR (1884) Cal. 896, that ordinarily the onsent 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.
20. Applying this rule to the case now under consideration, the Judicial Commissioner has found that 'of the reversionary heirs who executed the deeds, Hanuman Singh and Sheo Dayal Singh were four degrees removed and Sheo Bakhsh Singh, Sheo Narain Singh, Baijnath Shingh and Matadin Singh were five degrees removed from Jai Singh, the common ancestor of themselves and Sitia Bakhsh Singh. There do not appear to have been any other reversionary heirs alive at the time of the transfers superior in degree to fianuman Singh and Sheo Dayal Singh, or equal in degree to Sheo Bakhsh Singh, Sheo Narain Singh, Baijnath Singh and Matadin Singh, or indeed any other reversionary heirs at all in the line of Jai Singh Rai.' Their Lordships agree with the Judicial Commissioner that the consent of these persons was sufficient and that it is immaterial that it was given after the execution of the deeds. Omnia ratihabitio retrotrahitur et mandaio priori aequiparatur. The appellants who claim through Matadic Singh and Baijnath Singh must be held bound by the consent of their father.
21. Their Lordships will humbly advise His Majesty that the appeal ought to be dismissed and the decree of the Judicial Commissioner dated the 6th March 1900 confirmed. The appellants must pay the costs of the appeal.