1. This appeal arises out of a suit brought by plaintiff Bai Suraj (now appellant) to redeem a mortgage (Ex. 20) effected by her husband Bhavsang Dalabhai and one Rahakuver in favour of Bhavasang Adesang in the year 1885. For purposes of this litigation Rahakuver's interest in the mortgaged property may be taken as negligible.
2. Bhavsang Dalabhai died on the 30th December 1908 leaving no issue. His widows Bai Man and Bai Suraj survived him. On June 4, 1908, Bhavsang made a will (Ex. 21) in the Gujarati language, and got it duly registered. The translation supplied to us is accepted by the parties to be correct. The material provisions of the will are: 'I direct that after my death the whole of my immovable and movable property described (herein) below shall be given to my said wife Man. My new wife named Suraj has not at all won my affection until now and has likewise taken no part whatever in serving and attending upon me... Therefore by reason of her such actions (conduct) I am altogether displeased with her. Consequently after my death she should not get any portion whatever of my property. Notwithstanding this, I am moved with compassion for her... I direct that after my death my wife, the said Bay Man, shall every year on the 1st day of Kartak Sudh pay to the said Bai Suraj during her lifetime Rs. 50... During my lifetime I am the owner of the abovementioned immovable proparty, and besides the same, the ornaments and things, etc., the movable and immovable properties; and as to such of the properties as may remain after my death Bai Man shall take the same into her possession and shall herself carry on the vahivat (management) thereof. And I fully empower Bai Man to deal with any property if it becomes necessary to do so, in any manner she may deem proper by way of (effecting) a mortgage, sale, charity, etc... If I be unable during my lifetime to redeem such of the above-mentioned properties as may have been mortgaged, then in that case I empower Bai Man after my death to redeem and take possession of the same in any way she may like. This right of redeeming after my death is not vested in any other person except Bai Man... Over and above the properties described above, as to my other properties which there may be, Bai Man is the owner of the whole of the said immovable and movable proper ties. She is (owner) after my death. As to the above described immovable properties... And besides the same as to all the movable properties that there are at present and the new dues that there will be hereafter. I am during my lifetime the owner of the same and after my death as to the properties that may remain Bai Man is the owner thereof.' The testator directed Bai Man to perform after his death all funeral rites and ceremonies in a manner befitting his rank and social position.
3. On January 4, 1909 Bai Man sold and conveyed the property involved n this suit to defendant No. 2 (now respondent No. 2) who is the grandson of the original mortgagee Bhavsang Adesang. The consideration is recited in the sale-deed (Ex. 55) to be Rs. 6,695, due on the usufructuary mortgage, Ex. 20, and a further sum of Rs. 2499, 'taken in cash for performing the obsequies of my deceased husband Raj Bhavsang Dalabhai and for my maintenance.'
4. Bai Man died in 1916, and on December 18, 1919, Bai Suraj brought this suit against defendants 1 and 2 who are respectively the son and grandson of the original mortgagee, to redeem the mortgage, Ex. 20. She alleged that on Bai Man's death she became the sole owner of the right to redeem; that the said alienation by Bai Man was not binding upon her; that Bai Man had no authority to make the alienation, that she had received no consideration for it, and that it was not justified by legal necessity. She also produced and relied upon a document (Ex. 35) purporting to be a will made by her husband, on December 25, 1908. The effect of this document is to revoke the earlier will in favour of Bai Man, and to confer a life interest on each of the two wives in certain specified properties.
5. The material issues before the trial Court were:-The 1st: 'Is it proved by the plaintiff that the deceased Bhavsang Dala made the will dated 25th December 1908, cancelling first the will dated 4th June, 1908?'; and the 3rd: 'Whether defendant 2 proves the sale-deed dated 4th January 1909, and is it valid and operative at law The learned Judge, on a careful consideration of the evidence adduced in the case, came to the conclusion, as to the first issue that the alleged will was not proved; in his opinion it was a fabricated document. On the 3rd issue he held that the sale-deed, Ex. 55, was valid, the consideration recited therein was paid, and the sale was justified by legal necessity. He therefore dismissed the suit.
6. Against the decree Bai Suraj has brought this appeal. The first and main question discussed before us was whether the lower Court had erred in holding that the document, Ex. 35, was not duly executed by Bhavsang. This document purports to bear the attestation of eleven persons including that of the writer Dhanji. Four of these persons are said to have died since its execution. Of the seven survivors, three have been examined as witnesses, Exs. 34 (the writer), 47 and 48.
7. This evidence, which was disbelieved by the lower Court, has been very fully discussed before us. I agree with the learned Judge in holding that it is not proved that Ex. 35 was executed by Bhavsang; in my opinion Ex. 35 is a suspicious document. It is material to note that Bhavsang had not requisitioned the services either of Dhanji or of any of the ten persons who are said to have attested Ex. 35 when he executed his first will, Ex. 21, the genuineness of which is not disputed. Dhanji (Ex. 34) admits that he is not a professional writer; that he was not a friend of Bhavsang; that he had not written any other document for Bhavsang; and that he gets his own valuable documents written by other persons. Witness Raising (Ex. 47) is plaintiff's nephew. Neither his evidence, nor that of Bapubhai (Ex. 48) is such as to inspire confidence.
8. I see no reason to reject the lower Court's estimate of this evidence. The learned Judge, moreover, has compared the alleged signature of Bhavsang on Ex. 35 with his genuine signatures on Ex. 21 and in his opinion 'a deliberate attempt is made to put the signature of Bhavsang Dala' on Ex. 35. I have also made a similar comparison.
9. I should, however, prefer not to hazard a definite opinion on the point; for, as a mode of proof mere comparison of handwriting is inconclusive. But it does seem to me that the signature to Ex. 35 is a laboured one, and the formation of some of the letters (more particularly occurring in the signature is different from the formation of the same letters in the genuine signatures. I have read both the documents, Ex. 21 and Ex. 35. The tone of the letter is throughout apologetic. No acceptable story is placed before the Court to explain why Bhavsang so completely undid in December what he had deliberately done in the preceding June. And it is permissible to expect that if he had really changed his mind he would either have destroyed the first will or at any rate go t the later will also duly registered.
10. It has, however, been contended on behalf of the appellant that this document Ex. 35, was referred to in certain documents as early as in the year 1909, and that that fact renders its genuineness highly probable. Reliance was placed on a notice given on January 22, 1909 by Plaintiff to Bai Man and others, and on certain Farkhats (releases) said to have been executed by the two ladies in or about June 1909. As for the notice, Ex. 39, Bai Man in her reply (Ex. 40) dated January 29, 1909, denounced the statements made therein as false, and asserted that 'Bhavsang Delabhai on the date the 4th of June in the year 1908 made a registered will for my benefit and declared me to be the owner of his entire immovable and movable properties.'
11. That will had deprived his agnates of all hope of succeeding to his estate. The effect of the document, Ex. 35, and the Farkhats was to rehabilitate them. There is some evidence in the case that no good feeling existed between them and Bhavsang. There was sufficient interval of time between the 4th of June 1908 and the 22nd of January 1909 for the fabrication of Ex. 35, if indeed one was minded to do so. The fact, therefore, that it is referred to in the notice, Ex. 39, does not establish its genuineness; it only makes its genuineness probable.
12. The same remark applies to the Farkhats. But the original Farkhats are not forthcoming, and evidence as to the circumstances in which they were executed is wanting. Bai Suraj says in her examination-in-chief (Ex. 36): 'Farkhat was not made. I did not go to the Registry Office. Madhavsang Daji got the release. I do not remember whether I signed the Farkhat. I do not admit the true character of the Farkhat. Madhavsang might have got the Farkhat for Man, Rule B. Malji read out the Farkhat.'' The Farkhat said to have been executed by Bai Man in Plaintiff's favour is not put in, even though it was called for in the lower Court; for the learned Judge observes: 'I asked in vain about the original Farkhat, but some good sense prevailed in not producing it in Court as its genuineness is open to grave doubts.' And he adds that it is not proved that effect was given to the Farkhats. The defendants, however, clearly referred to the Farkhat in their written statement; and they produced and put in a certified copy (Ex. 22) of one of these Farkhats. It is clear therefore that some attempt was made in or about June 1909 either to bring about a settlement of the difference existing between the two widows, or to create evidence in support of the document purporting to be the later will of Bhavsang. Bai Man being dead, her evidence is not available. Plaintiff professes not to know anything about it.
13. In these circumstances it is not possible to ascertain the whole truth about these Farkhats. The only importance, however, which I can attach to them is that they make the genuineness of Ex. 65 probable; and I have taken that fact into consideration. It was also urged on plaintiff's behalf that she had been in possession of a considerable portion of her husband's estate, a circumstance inconsistent with Ex. 21 and consistent with Ex. 35. But here also the evidence is both meagre and indecisive.
14. I therefore agree with the trial Court in holding that the alleged latter will is not proved.
15. The burden, however, still lies on the 2nd defendant to establish those facts which would justify the alienation under which he claims. The sale (Ex. 55) was made not jointly by the two widows, but by Bai Man alone. It is neither re-alleged nor proved that Bai Suraj had consented to it. The alienation therefore is not binding upon her. 'On the principle of joint tenancy with survivorship, no alienation by one widow even though she is the manager at the time, can have any validity against the rights of the others without their consent, or an established necessity arising in circumstances which rendered it impossible to seek for consent.' [(Mayne, Hindu Law and [Usage, 9th Edition, Section 554. See also Bhugwandeen v. Myna Baee  11 M.I.A. 487, Sri Gajapati Radhamoni v. Pusapati  16 Mad. 1. The alienee, however, relies on the provisions of the will Ex. 21 as justifying the alienation.
16. In my opinion, the provisions of that will-they are set out above-confer an absolute ownership of the estate upon Bai Man.
17. It must now be taken as settled that the view that under the Hindu law, in the case of immovable property given or devised by a husband to his wife, the wife has no power to alienate unless the power of alienation is conferred upon her in express terms is not sound. If words are used conferring absolute ownership upon the wife, the wife enjoys the rights of ownership without their being conferred by express and additional terms, unless the circumstances or the context are sufficient to show that such absolute ownership was not intended. Bhaidas Shivadas v. Bai Gulab A.I.R. 1922 P.C. 193. In this case neither the context nor the circumstances are sufficient to show that absolute ownership was not intended to be conferred. The provision that 'I fully empower Bai Man to deal with any property, if it becomes necessary to do so, in any manner she may deem proper by way of effecting a mortgage, sale charity, etc., 'rather emphasizes but does not curtail the grant of absolute ownership.
18. The insertion of this provision expressly conferring on Bai Man a power of alienation can be explained on the ground that it may well have been that whoever drew the will held the view that words of absolute gift in favour of a Hindu widow were not sufficient in themselves to confer a power of alienation also: see Bhaidas case A.I.R. 1922 P.C. 193. Here we have a power expressly conferred. The case is thus distinguishable from that of Jamnadas v. Ramautar Pandey  27 All. 364 where the material provision in the will was expressed in these words: - 'In case of proper necessity she, as my representative is at liberty in every respect to transfer the property by sale or mortgage.'
19. Those words clearly restricted the donee's power of alienation and confined it to 'proper necessity.' The language used by Bhavsang was entirely different; in my opinion he intended to confer on Bai Man an alienable interest in the property; her power to alienate was not limited to necessary purposes. In this case moreover, the Subordinate Judge was satisfied upon the evidence adduced on behalf of the alienee that the sale in his favour was made to meet a valid necessity. Bhavsang does not appear to have possessed much available cash at any time.
20. In 1894 he raised the sum of Rs. 5,799 by mortgaging other properties; he was not able to satisfy the debts until 1906; and even then he was only able to do it by selling the property to the mortgagee himself. A redemption decree obtained by him in July 1907 with reference to another property remained unsatisfied at his death. He died in December 1908 leaving the mortgage now under consideration unredeemed.
21. It is proved by witnesses on both sides that after his death Bai Man performed the necessary funeral rites and ceremonies in a manner befitting his rank and social position as he had directed her to do. To satisfy her husband's debt, and in order to be able to perform those ceremonies, she sold the property in suit to defendant No. 2, five days after Bhavsang's death. It is so recited in the sale-deed (Ex. 55), and the truth of that recital is established by evidence. The sale was conducted openly for plaintiff says that she was invited to sign the conveyance (Ex. 36). The payment of consideration is proved by witnesses, who, according to the Judge who had seen them were 'respectable persons,' and whom he believes. The learned Judge has given sufficient reasons for holding that there was legal necessity for the alienation, and that consideration was paid for it. I agree with his reasons and conclusions and would add that the fact is not without its significance that plaintiff remined acquiescent for nearly twelve years, although she knew of the transaction when it was carried out.
22. For these reasons I would confirm the decree and dismiss the appeal with costs.
23. I concur in dismissing the appeal with costs for the reasons given in the judgment just delivered by my learned brother.
24. I would only add a few remarks. I think the contents of the alleged will (Ex. 35) clearly point to its being a got up document, in the absence of any adequate explanation for the testator so soon changing his intentions in this way. It is extremely unlikely, for instance, that, after executing a registered decd-of-gift in favour of the girl Bai Girja, whom he had brought up from infancy, he would, just 6 months later, try to nullify that gift, in the way Ex. 35 does. No reason is even suggested for his wanting to divest Bai Girja of what he had given her; and the plaintiff, Bai Suraj admits in her deposition that Bai Girja, and after her death her son Mohan continued in possession of the land and house that had been gifted to her.
25. The provision in Ex. 35 for Bai Man getting more property than Bai Suraj was no doubt inserted in an attempt to avoid suspicion.
26. The recitals in the Farkhat passed by Bai Suraj to Bai Man (Ex. 22) as to the execution of the later will by the deceased are really admissions in favour of the maker of them, which are inadmissible in evidence under Section 21 of the Evidence Act. The corresponding Farkhat alleged to have been passed by Bai Man was not produced in the lower Court, though the Subordinate Judge says he pressed for its production. Though it was produced by the pleader for the appellant at the hearing of the appeal, no sufficient reason appears for our allowing it to be now put in evidence under Order 41, Rule 27, and Civil Procedure Code. But, even assuming that it contains similar recitals as to this will, I do not think (in view of Bai Man's reply to plaintiff's notice, Ex. 40) that such recitals could be treated as a genuine admission by her of the authenticity of the will. In compromise, or attempted compromise, of that kind, each side naturally sets forth its case, without its following that the opponent admits the truth of it.
27. I concur with my learned colleague in thinking that the will, Ex. 21, conferred an absolute estate on Bai Man, with full powers of alienation, I do not think the words 'if it becomes necessary to do so' can properly be read as restricting this power to the case of 'legal necessity' under Hindu law. That is opposed to the use of the word 'fully' 'empower,' are to the consideration that the entire clause would be unnecessary, if that was the testator's real intention. Again, the use of the word 'charity' indicates that the testator intended even to allow a gift of immovable property by way of charity, a case which does not fall under the ordinary powers of a Hindu widow to alienate for legal necessity. This also differentiates the case from that at 27 Al. 364, which [(besides qualifying the word ('necessity')] gave only a power to sell or mortgage. The words 'if it becomes necessary to do so,' in my opinion, were merely intended to bar alienations for which there are no reasonable grounds. They are based on the ordinary aversion of an owner to alienate, unless it is necessary to do so.
28. In any case, I agree with the finding of the lower Court that there was 'legal necessity' in the present case. The deceased's will shows his anxiety to have his funeral ceremonies properly performed, and I entirely concur with what my learned brother says on this point.