1. These appeals arise out of a suit instituted by Mt. Chauli in order to recover possession of three properties, an enclosed piece of land known as a gher with the buildings thereon, the whole of the village of Somli and the half of an area of 518 bighas 12 biswas in the village of Nandpur, which, we understand, represents a share of 5 biswas out of 20 biswas in this village. The property in suit admittedly belonged at one time to Amolak Ram, a Vaish Agarwal Saraogi Jain, who died in the year 1880 leaving him surviving a widow, Mt. Bir Kunwar, and three daughters, Mt. Permeshwari, Mt. Lachhmi and Mt. Barfi. Mt. Bir Kunwar died in 1880, Mt. Parmeshwari in 1905, Mt. Laehhmi in 1910 and Mt. Barfi in 1922. The plaintiff, Mt. Chauli, is the daughter of Mt. Lachhmi who also left her surviving two sons, Lalta Prasad and Durga Prasad. The plaintiff alleged that Mt. Bir Kunwar became the absolute owner of the properties in suit on the death of her husband, Amolak Ram, in accordance with the law or custom applicable to Jains of his caste and that the three daughters of Mt. Bir Kunwar succeeded to a joint life interest in the property on the death of Mt. Bir Kunwar; She further alleged that the joint life interest of the daughters came to an end on the death of Mt. Barfi and that she, that is, the plaintiff, thereupon became the owner of the property. The properties had been transferred by the three daughters of Amolak Ram to various persons between the years 1882 and 1894 and Mt. Ohauli, therefore, sought to recover possession together with mesne profits. The ghor was transferred to the predecessors-in-interest of Jagat Prasad, defendant 4, Sumer Chand defendant 5 and Purdaman Kumar defendant 6. The village of Somli was transferred to the predecessor-in-interest of Mt. Munirunnisa, defendant 7, who has since died and is now represented by Nasir Hasan. The share in the village of Nandpur was transferred to the predecessor-in-interest of Mt. Megho defendant 1, of Arah Das, defendant 2, of Nanak Chand, defendant 3, who has since died, and is now represented by Bishambhar Das, Arah Das, Bijai Kumar, Raj Kumar, Deo Kumar and Abhir Madan Kumar and of Mt. Madna, defendant 8.
2. The learned Judge of the lower Court found that the share in Nandpur alone was the self-acquired property of Amolak Ram and that the two other properties partly descended to him from his father, Diwan Singh and were partly purchased by him from ancestral funds. As the plaintiff did not suggest, and does not now suggest, that a Jain widow acquires an absolute interest in ancestral property, the learned Judge dismissed the suit for the possession of the gher and of the village of Somli. He found that the share in Nandpur was acquired by Amolak Ram himself but that two-thirds of the village had been transferred by Amolak Ram's daughters for legal necessity and he consequently gave a decree for the recovery of possession of one-third of the Nandpur property together with a sum of Rs. 600 as mesne profits for the three years immediately preceding the suit. Mt. Chauli appealed against the decree. Her appeal is No. 226 of 1937. Arah Das and Nanak Chand since deceased filed a cross appeal. Their appeal is No. 353 of 1937. The two appeals came up for hearing before a bench of the Court consisting of Thorn, C.J. and Ganga Nath, J. They passed an order remitting certain issues for decision and in the course of the order expressed their opinions or recorded findings upon certain of the points in issue. When the learned Judge of the lower Court submitted his findings on the remitted issues, the appeals came before another Bench consisting of Collister and Bajpai, JJ. The question then arose whether the opinions expressed or findings recorded in the order remitting issues could be questioned before the later bench. This question was referred to a Full Bench : AIR1945All268 of the Court and the finding was that the second bench had an unfettered discretion in the matter. The Full Bench held that the order remitting issues was an order of the Court and not of the individual Judges constituting the Bench. It also held that the opinions expressed or findings recorded were in essence tentative as they did not lead to any decree or order except the order remitting issues; the Judges of the second Bench were, therefore, entitled either to say that they would not re-open matters which had been fully argued before the Court and upon which the Court had recorded findings or expressed opinions after due consideration, or, on the other hand, if it appeared to them that there had been some obvious mistake to hold that they were not compelled when passing their final decree to rely upon those findings and opinions, they could re-consider the questions if they so choose just as they might have re-considered questions on which they themselves personally had expressed opinions or recorded findings in the course of the proceedings before finally passing a decree.
3. After the decision of the Full Bench the appeals have come before us for hearing. We may say at once that it was alleged in the Court below that Amolak Ram was not a Jain and that Mt. Chauli was not the daughter of Mt. Lachhmi, but on both these points the finding of the learned Judge was in favour of the plaintiff. This finding does not seem to have been contested when, the appeals were first argued and, our attention has not been drawn to any evidence which would justify us in holding that the learned Judge was wrong. These two points, therefore, require no further consideration. There cannot be any doubt now that the self-acquired property of a Jain Agarwal, if it passes to his widow on his death, is transferable by her at her pleasure. We need refer only to the case in Sheo Singh Rai v. Dakho ('75-77) 1 All. 688 which has been followed in Shimbhu Nath v. Gayan Chand ('94) 16 All. 379, Nikram Singh v. Sriniwas : AIR1926All586 and Pahar Singh v. Bijai Bahadur Singh : AIR1931All695 . The rule is now so well established that it is, in our judgment, unnecessary to prove it as a custom 'in every case.
4. It has, however, been argued before us that the fact that a widow has a right to transfer property does not necessarily imply that the property passes to her heirs rather than to the heirs of her husband. It has been suggested that property of this nature is not one of the kinds of property which are described as stridhan in the ancient texts. It has also been argued that in certain schools of Hindu law a woman may have an absolute right o alienation and yet the property may not descend to her stridhan heirs. In our judgment there is no basic principle upon which the property of a Jain should pass after his widow's death to his own heirs if she has not transferred it during her lifetime and consequently we see no reason to differ from the rule to the contrary which was laid down by this Court in Hukum Chand v. Sital. Prasad : AIR1928All52 . The decision in that case was based on the findings in Sheo Singh Rai v. Dakho ('75-77) 1 All. 688, in which their Lordships of the Privy Council entirely concurred with the High Court in holding that a Saraogi Jain widow 'takes an absolute interest at least in the self-acquired property of her husband'. It is true that the case could have been decided upon the finding that the widow had a right to adopt a son without authority from her husband but as the defendant had raised the point that she had only a widow's limited interest under Hindu law, very careful inquiry was made into the custom and the defendant obtained special leave to appeal to His Majesty in Council upon the ground that the case involved questions affecting the whole Jain community. In these circumstances we think that the learned Judges who decided the case in Hukum Chand v. Sital Prasad : AIR1928All52 were entitled to hold that a Jain widow inherits an absolute estate and not an estate limited to her lifetime with a power of alienation during her lifetime. It is conceivable that such an estate might exist, but it would still be a limited and not an absolute estate. We hold that Mt. Bir Kunwar had an absolute estate and that it devolved like stridhan because there is no rule that a woman's absolute estate can devolve in any other way.
5. The question then arises whether any of the properties in suit were ancestral. The learned Judges who passed the order remitting issues held that half the village of Somli was the self-acquired property of Amblak Ram because it was sold by him after his father's death when he was the sole surviving member of a joint Hindu family and was re-acquired by him at a later date. They held that the whole of the gher and five biswas of Nandpur were the self-acquired property of Amolak Ram. There can be no doubt now that these properties were acquired by Amolak Ram. The records show that the whole village of Somli passed to Amolak Ram on the death of his father but a few years later half of it was in the possession of a man called Ghasita. The learned Civil Judge thought that he was holding it under a mortgage but Thorns C.J. and Ganga Nath J. referred to a document dated 5th October 1936, which clearly shows that he was a vendee. It follows that Amolak Ram must have re-acquired this share. As for the gher, the defendants, Jagat Parshad and Purduman Kumar, pleaded in their written statements that all the property in suit was acquired by Amolak Ram with the help of ancestral funds. The defendant, Sumer Chand, pleaded that it went to Amolak Ram by survivorship but in his evidence he said he did not know whether Amolak Ram had purchased the gher and his own witness, Tufail Ahmad, deposed that Amolak Ram had purchased it. Amolak Ram's purchase of Nandpur is admitted and the only question which now arises is whether Amolak Sam had acquired these properties out of the income from his ancestral estate.
6. The learned Judges found that the income from the village of Somli which was originally ancestral was only Rs. 128 a year and that this income was reduced to Rs. 64 a year after the transfer of 10 biswas in the village by Amolak Ram. They came to the conclusion that this income was not such that Amolak Ram could have acquired the 5 biswas in Nandpur and the gher from his savings. They would presumably have applied the same argument to the share in Somli if the defendants' case has been that the share was acquired by Amolak Ram out of ancestral funds. There was the additional argument about Nandpur that it had been admitted in a previous suit by the predecessor-in-interest of one of the defendants that it was the self-acquired property of Amolak Ram. In view of the decision of the Full Bench, we do not think that we are called upon to go into these questions again in so far as they affect the Nandpur and Somli properties. The only reason which was given to us why we should reconsider the matter was that the learned Judges mentioned in their order the fact that the gher had been purchased in the year 1843. They apparently relied upon deed of sale in favour of Amolak Ram. It is now admitted that a copy of the deed was produced in the Court below but was excluded from evidence because it was not proved that the original deed had been executed by the alleged vendor. When the case came up for arguments in this Court, a printed copy of the deed was produced and it was apparently assumed by all concerned that it was part of the evidence in the suit. It has now been discovered that there was an error upon this point. We have been urged in the course of the arguments to accept the deed in evidence on the ground that the endorsements of the Registration Officer constituted sufficient proof of its execution. It seems to us that the provisions of the Registration Act would probably make this evidence admissible to prove the execution of the deed, but we express no definite opinion upon this question because the fact remains that the deed never was part of the evidence in the suit and there was no application to this Court at any time that it should be admitted into evidence during the course of the appeal. The matter is of no great importance because we are satisfied that the learned Judges who passed the order remitting issues were not seriously influenced by the evidence of the deed.
7. It seems clear to us that the learned Judges meant that there could be no savings from the income of Somli when that income amounted only to Rs. 64 a year. It is true that they said that the total income from the village for the period up to 1843 would have been only Rs. 1152 and that the price of the gher according to the deed was Rs. 4000 but that could not have been an essential part of an argument which they applied equally to the property in Nandpur which was bought in 1864 for Rs. 600. We feel that we would be justified in accepting the finding of the learned Judges without considering the matter further but apart from that finding we have no doubt that Amolak Ram could not possibly have saved enough money from the income of half the village of Somli to buy property which was sold between 1884 and 1694 for Rs. 11,000. The income may have increased in some measure as years went by but on the other hand the later the purchase made by Amolak Ram the nearer must the price paid by him have approximated to the price received by his daughters.
8. On the question of necessity we have been, referred to the decision in two suits filed in 1923 by the sons of Mt. Parmeshwari and Mt. Lachhmi to contest alienations made by the three daughters of Mt. Bir Kunwar. That is the judgment reported in Humum Chand v. Sital Prasad : AIR1928All52 . We agree with the learned Judges who-passed the order remitting issues that this decision is not binding upon Mt. Chauli who was not a party to the suit. We also agree; with them that the daughters of Mt. Bir Kunwar were joint tenants and that none of them was entitled to transfer any property without the consent of the others. On this point we have been referred to the award of an arbitrator delivered on 13th July 1881. The argument is that the property passed in separate shares to the three daughters under an oral will made by Mt. Bir Kunwar. It has been suggested that the arbitration award proves this will. The question arose whether this award was admissible in evidence, but we do not think it is necessary for us to express any opinion upon this point because we are satisfied that the award, even if admissible as against Mt. Chauli, does not establish that there was any oral will. It would appear that there was some dispute-between the daughters after Mt. Bir Kunwar's death and they called in one Sant Lal to arbitrate. He recited in his award that Mt. Bir Kunwar had made an oral will at the time of her death the terms of which were that a sum of Rs. 400 should be set apart to meet the expenses of Mt. Barfi's gauna ceremonies and that half the remaining property should go to Mt. Parmeshwari and one-fourth of it each to Mt. Barfi and Mt. Lachhmi. He further said that it was Mt. Bir Kunwar's intention that the daughters should alienate the property only for necessity and that it should pass after their deaths to their issue; the debts were to be paid by the daughters in proportion to their shares. The reason he gave for the will was that Mt. Bir Kunwar had intended to adopt, according to the Jain law, as her son the son of Mt. Parmeshwari but had got ill and died before the necessary ceremonies could be performed. It appears to us that the award leads only to the conclusion that there could have been no oral will made by Mt. Bir Kunwar. If she had intended to adopt Mt. Parmeshwari's son and had made a will we should have expected her to leave the whole property to him and there is no reason why she should not have done so. It is very likely true that she intended to adopt him and that this was the cause of the dispute between the daughters. Doubtless Mt. Parmeshwari contended that she should get the whole property according to her mother's wishes and the other two daughters contended that they should get their shares as the adoption had not in fact taken place. The arbitration award seems to us to have been a compromise between the contending claimants and we believe that the allegation about the oral will was made merely to afford a basis for this compromise. It is said that the daughters accepted the compromise and, if they did so, they were certainly entitled to arrange for the enjoyment of the property during their own lives but they were not entitled by agreement to change their status as joint tenants so as to affect the rights of Mt. Chauli.
9. It has been suggested that the award is a family settlement but it is not clear how the use of that term affects any issue before us. There is no question that any arrangement between the sisters was invalid for want of consideration and we know of no authority for the proposition that the three women merely because they were sisters could by agreement defeat the rights of Mt. Chauli who is claiming the property not as their representative but as the representative of Mt. Bir Kunwar.
10. In our judgment there is nothing in the award (if it is admissible in evidence) to justify the conclusion that the three daughters of Amolak Ram were other than joint life tenants of the stridhan property of Mt. Bir Kunwar which they had inherited from her. That being their position they could alienate the property only for legal necessity and none of them could make any alienation without the consent of the others.
11. As the learned Civil Judge rejected Mt. Chauli's claim to the village of Somli and to the gher on the ground that they were ancestral property to which she had acquired no title he pointed out that it was not necessary for him to consider whether the transfer of them by Amolak Ram's daughters was justified by legal necessity but he nevertheless thought it advisable to express his opinion on the point. He found that there was no reliable evidence to establish that there was any legal necessity for the transfer of the gher but that a sum of Rs. 4157 out of the price paid for the village of Somli was spent on the payment of debts due from Mt. Bir Kunwar, which her daughters could be bound to pay if it was assumed that she was the absolute owner of the property.
12. About Nandpur the learned Judge said:
This sale which related to two-thirds of the five biswas at Nandpur was held by the Hon'ble High Court to have been made for legal necessity : vide Ex. 19. In the present suit defendants 1 to 3 and 8 have led no evidence to prove the necessity but the said finding commands respect. I accordingly hold that the sale was made for necessity.
About the other third he said that no legal necessity was made out. He did not discuss the question whether each widow could alienate her share without the consent of the others. The learned Judges who passed the order remitting issues agreed with the Court below that there was no proof of any necessity for the transfer of the gher. They held that the finding in the previous suit about Nandpur was not evidence against Mt. Chauli, that there was no other evidence and that it had consequently not been established that there was any necessity for the transfer of any part of the village. They expressed no opinion about the legal necessity for the transfer of Somli but they said that none of the sales of the properties in dispute was made jointly by all the daughters and therefore none of them was valid and binding upon the estate. As learned Counsel for the appellant had stated that his client was willing on grounds of equity to pay compensation for improvements made to the gher they remitted issues in order to ascertain the amount due on that account. They also remitted an issue about the mesne profits due to the plaintiff on account of the gher and of half the village of Somli. It was admitted in arguments before us that there was no evidence that any of the three daughters of Mt. Bir Kunwar directly and specifically consented to the alienations made by the others but it was suggested that such consent could be inferred from their course of conduct because the existence of debts due from Mt. Bir Kunwar was admitted in the award, because each daughter was made liable for paying her share of those debts and because each daughter eventually transferred her share in the properties. We can. not accept the suggestion.
13. Even if the statement in the award can be taken as an acknowledgment by the daughters that each had to pay a certain sum in order to discharge debts incurred by Mt. Bir Kunwar that acknowledgment does not imply an agreement that each daughter might transfer property in order to pay the debts. According to the award the debts amounted in 1881 to a sum of Rs. 3951-7-4 of which an amount of Rs. 2500 was secured by a mortgage on the village of Somli created by a deed executed on 27th April 1880, and the remaining amount of Rupees 1451-7-4 was the total of a number of unsecured debts, including one due to Murli, a servant of Mt. Bir Kunwar. 'We have been told that Murli obtained a decree for the recovery of the sum due to him and that 2 biswas 10 biswansis of Somli were sold in execution of that decree and purchased by Mahanand and Murli Dhar, the husbands of Mt. Parmeshwari and Mt. Lachhmi, but our attention has not been drawn to any evidence which establishes these facts. From the deeds of sale it appears that Mahanand and Murli Dhar had in some way acquired a share of 2 biswas 10 biswansis but there is nothing to show that they acquired them at a sale in execution of a decree in favour of Murli. The learned Judge mentions in his judgment a decree which has not been shown to us but according to him it is a decree in favour of Murli Dhar himself. Mt. Barfi sold 4 biswas 71/2 biswansis to Hardyan Singh on 29th August 1884 but it is suggested that the property was preempted by Mt. Parmeshwari. Mt. Lachhmi and Murli Dhar sold 4 biswas 71/2 biswansis and 1 biswa 5 biswansis respectively, that is a total of 5 biswas 121/2 biswansis, to Nazir Husain on 26th January 1891. Mt. Maheshwari and Mahanand sold id biswas 71/2 biswansis to Nazir Husain on 20th March 1891. This share was described as consisting of three parts, namely, 8 biswas 15 biswansis. The ancestral property of Mt. Parmeshwari, 4 biswas 71/2 biswansis acquired by her by preemption and 1 biswa 5 biswansis acquired by Mahanand at some unspecified sale in execution of a decree.
14. By a deed of sale executed on 4th July 1882, Mt. Lachhmi and Mt. Barfi purported to transfer two-thirds of the 5 biswas in Nandpur. Mt. Parmeshwari sold 21/2 out of the 5 biswas on 29th September 1880. Mt. Barfi and Mt. Lachhmi sold their one-fourth share in the ghar on 13th December 1884 and 15th October 1893, respectively, and Mt. Parmeshwari her half share on 8th January 1894. Since Mt. Parmeshwari was claiming half the property it seems evident that she could not have consented to the sale by Mt Barfi and Mt. Lachhmi of two-thirds of the Nandpur property in 1882. Thereafter the transactions and the, dates suggested that the three daughters had acted quite independently of each other on the assumption that each was the absolute owner of her own share under the award and there was no necessity for consultation between them. Mt. Parmeshwari could not have given her previous consent to the sale of Mt. Barfi's share in Somli if she afterwards exercised her right of pre-emption. It may be said that the three daughters acquiesced in each other's alienations but in our judgment that is very different from saying that they all considered and consented to each alienation. We hold that the alienations were not binding on Mt. Chauli. In this view of the matter, it is unnecessary to consider the question of legal necessity but we may say that we agree with the learned Judges who remitted issues that there is no evidence to show that there was any legal necessity for the alienation of the gher or the property in Nandpur. It has been urged that there was a recital in the deed executed by Mt. Barfi and Mt. Lachhmi about the latter that a sum of Rs. 1500 was needed to pay off debts due from Mt. Bir Kunwar and that no further evidence should be required about a transaction which occurred over fifty years ago. The defendants themselves relied upon the arbitration award which shows that the unsecured debts amounted in all to a sum of less than Rs. 1500 and that the shares of these two widows were half that sum. We consider that the recital was on the face of it unreliable and that no inquiry could possibly have been made. About the other transfers there is not even a recital.
15. The learned Judge of the trial Court found that a sum of Rs. 4157 out of the considerations for the transfer of Somli was payable to redeem the mortgage executed by Mt. Bir Kunwar on 27th April 1880. This sum consisted of two items, namely, Rs. 1157 left with the vendee under the deed executed by Mt. Lachhmi and Murli Dhar on 26th January 1891, to' redeem the mortgage of 1880 and Rs. 3000 out of Rs. 4500 left with the vendee under the deed executed by Mt. Parmeshwari and Mahanand to redeem the mortgage of 1880 and another mortgage of 1886 executed by Mt. Parmeshwari herself. About the first item we may say that there seems to have been a slip of the pen because the amount was Rs. 1175 and not Rs. 1157. We must confess that the learned Judge's reasoning about item 2 is not very clear. As it was not specified in the sale-deed how much was due on each mortgage he has assumed that Rs. 3000 was due on the mortgage of 1880. From the context we might gather that he based this figure on the fact that Mt. Bir Kunwar's mortgage was originally executed to secure a principal sum of Rs. 3000 but the sale was of something less than three-fourths of the mortgaged property and on the other hand interest may have accrued for over ten years at nine annas per cent, per mensem. It is possible, however, that the learned Judge may have been influenced by the amount secured by the mortgage of 1886, which has not been printed and placed before us, or by other evidence which has not been brought to our notice so that we are not in a position to say that his estimate was wrong. We have no sufficient material before us to make an estimate of our own and we would, therefore, accept his finding subject to the correction of the slip which he has made and would hold that the widows were entitled to transfer property in order to obtain a sum of Rs. 4175.
16. There are two other points which have been raised. One is that Mt. Sharbati, who is not a party, is in possession of a one-sixth share in Nandpur. This point was raised in the written statement of Rekhab Das, Arah Das and Bishambhar Das, but was not made the subject of an issue. In our judgment it is not a point which arises properly in this suit. (After further considering this point his Lordship dealt with the question of the amount of compensation which should be paid for the improvements made to the gher and concluded. We consider that the ends of justice would be served if we reduced the amount of compensation to about one-half of that allowed by the learned Judge. We think the amounts should be:
Jagat Purshad ... Rs. 11,500 0 0Sumer Chanel ... ' 9,000 0 0Parduman Kumar ... ' 2,500 0 0.
17. The parties have accepted the findings that the mesne profits for a half share in Somli for three years amount to Rs. 660 and for the gher amount to Rs. 799 due from Jagat Parshad, Rs. 631 from Sumer Chand and Rs. 711 from Parduman Kumar. On our findings Mt. Chauli would be entitled to a larger proportion of the mesne profits of the gher but as she has not pressed the point we accept the findings of the learned Judge. The result is that we accept the appeal in part and hold that Mt. Chauli is entitled to possession of the whole of Nandpur and a sum of Rs. 1800 as mesne profits, to half of Somli with a sum of Rs. 660 as mesne profits and to the gher with the mesne profits which we have found due on condition that she pays within six months of this decree the amounts which we have estimated as due to each of the defendants on account of improvements. Mt. Chauli will get her proportionate costs in both Courts. There is a cross-appeal by L. Arah Das and the representative of Nanak Chand. It raises points which we have already decided against the appellants or which have not been argued. We hold that there is no force in the appeal and we dismiss it with costs. Decrees will be drawn up accordingly.