1. This is a defendant s appeal arising out of a suit for a declaration that the mortgage deed, and a decree on the basis of it obtained by the contesting defendants, were collusive, null and void, and not binding on the plaintiff. The plaintiff is a separated brother of Kalap Nath Singh deceased. On Kalap Nath Singh's death, his son, Harbans Singh, survived him. On the death of Harbans, Kalap Nath Singh's widow, Mt. Acharja, succeeded to the ostate as a Hindu mother. Kalap Nath in his life time had executed a simple mortgage deed on the 13th of May 1914, when his son, Harbans, was alive. After the death of Kalap Nath and Harbans, the defendant mortgagee instituted a suit on the basis of the deed, and obtained an ex parte decree on the 4th of November 1920, against Mt. Aeharja. The plaintiff, as the next reversioner, has instituted a suit alleging that the original mortgage deed was without any legal necessity, and, was, therefore, not binding on the joint Hindu family estate, and further that the decree obtained by the contesting defendants against the widow Mt. Acharja was a collusive one.
2. The Court of first instance came to the conclusion that it had not been established that the decree was either fraudulent or collusive. It did not go into the question of the mortgage having been for legal necessity, but it dismissed the suit on the ground that the plaintiff as reversioner had no right to challenge an alienation made by Kalap Nath. In the opinion of the Munsif the only person who could have challenged it was Harbans, the other co-parcener. On appeal to the lower appellate Court the learned Judge has come to the conclusion that the plaintiff has a right to call upon the mortgagee to prove legal necessity for the mortgage. He has not recorded any express finding as to whether the decree obtained against Mt. Acharja was or was not a collusive one. He has also omitted to decide himself whether the mortgage had been for legal necessity but has remanded the case for the disposal of the question of legal necessity.
3. In our opinion the view of the learned Judge that the plaintiff has a right to challenge the alienation in case the decree is not in his way, was quite correct. A co-parcener had no absolute right to transfer the family property without legal necessity. The transfer by Kalap Nath, if it was without legal necessity, was, therefore, not binding on the estate, and was liable to be challenged by Harbans. A Full Bench of this Court in the case of Muhammad Muzamillulah Khan v. Mithu Lal (1910) 33 All. 783 has laid down that the right to challenge an alienation is not only confined to the members of the family, but can also be availed of by subsequent transferees. It seems to us that that right must also be availed of by successors-at law. If an alienation is made by one member of a joint Hindu family, which is really not binding on the estate, and afterwards that member dies, and also the surviving members die, the reversioners would have the right to challenge the alienation. We are, therefore, of opinion that if the decree passed against Mt. Acharja was not in the plaintiff's way, he would be entitled to challenge the alienation.
4. It is contended on behalf of the respondent that the decree against Mt. Acharja cannot bind the plaintiff-reversioner, because he has not claimed through her. This contention cannot be accepted. A Hindu widow represents the estate for the time being though her rights are to a certain extent qualified. If she fights a case against a third party, she is representing the estate and is fighting the case in a representative character on behalf of all the subsequent reversioners. A decree fairly and properly obtained against her in the absence of any fraud or collusion, would be binding on the reversionary heirs. It is only when the decree relates to a matter personal to her, that it would not be binding. This was the view clearly expressed by Banerji, J. in the Full Bench case of Risal Singh v. Balwant Singh (1915) 37 All. 496, and that view has been approved of by their Lordships of the Privy Council in the case of Risal Singh v. Balwant Singh A.I.R. 1918 P.C. 87.
5. It is next contended on behalf of the respondent that inasmuch as the decree against Mt. Acharja was an ex parte decree, there was not a proper and fair fight. It is urged that this Court has held that a compromise decree between a Hindu widow and a third party would not necessarily bind a reversioner. A compromise decree is merely an embodiment of a private contract entered into by a widow and private persons. There is clearly in such a case no adjudication by the Court. An ex parte decree, however, stands on a different footing. There is no confession of judgment by her, and the plaintiff has to prove by evidence and satisfy the Court that he has got a good case. We, therefore, think that an ex parte decree, unless there be anything special which would suggest that it was not fairly and properly obtained, would be binding on the reversioners.
6. We are, therefore, of opinion that before the suit can be finally disposed of, it is not only necessary to find whether there was or was no legal necessity, but it is also necessary to determine whether the ex parte decree against Mt. Acharja had been fairly and properly obtained, and whether it was without any fraud or collusion.
7. As the Court of first instance has recorded a finding on the absence of fraud or collusion, it will be necessary for the appellate Court to decide the question itself. Under the circumstances a remand to the first Court with regard to the question of legal necessity was inconvenient. Both the issues should be disposed of by the lower appellate Court. We accordingly set aside the order of the lower Court, and remand this case to the lower appellate Court with the direction to readmit it to its original number and to dispose of it according to law. Costs in the Court below and this Court will abide the event.