M.C. Desai, J.
1. This is a defendants' appeal from a decree of a Civil Judge for possession over zamindari property in village Shemo and some houses, past mesne profits amounting to Rs. 3,400/- and pendente lite and future mesne profits atRs. 1,100/- per annum. The decree was made conditional upon the plaintiff-respondents' de-positing Rs. 3,600./- within three months for payment to the appellants; in default their suit was to stand dismissed with costs.
2. The property in dispute was admittedly owned by Dr. Ranjit Singh as his self-acquired property. He was murdered on 20-1-1895 and was survived by his widow Janki Devi and at least one brother Sher Singh. He had one more brother Lekhraj Singh, but when he died is a matter of serious controversy in the appeal. Sher Singh died in 1904 leaving his son Ram Sarup Singh, plaintiff-respondent No. 3. Lekhraj Singh left a son Bharat Singh, who was plaintiff No. 1, but died during the pendency of the suit leaving his sons Richpal Singh andJaipal Singh, plaintiffs-respondents Nos. 1 and 2. Janki Devi entered into possession of the property in dispute as a Hindu widow on the death of Ranjit Singh. On 25-1-1897 she sold it for the ostensible consideration of Rs. 20,000/- to Gopal Chand, father of defendants-appellant Nos. 1 and 2. Sher Singh as the nearest reversioner joined in the execution of the sale deed. Gopal Chand entered into possession of the property.
He transferred some of it to the other defendants Who are pro forma respondents in the appeal Janki Devi, who will be referred to as the widow, died on 5-10-1932. At the time of her death Ram Sarup Singh and Bharat Singh were the nearest reversioners. On 21-1-1944 they instituted the suit, giving rise to this appeal, to recover possession of the pro-perty in dispute alleging, that the sale, not being for legal necessity, was not binding after the death of the widow and that they wereentitled to possession of the property. Theyalso challenged the consideration of the sale though they did not specify for how much actually the property was sold.
They urged that the widow was purdahnashin, almost illiterate and unable to manager fairs' and that Sher Singh, though liter-ate, was addicted to drugs and unable to manage his affairs. They contended that Sher Singh's consent to the sale by the widow could not raise any presumption of legal necessity, be-cause he was too dependent upon her and was of weak intellect on account of the effect of drugs. They claimed not only possession of the property in dispute but also mesne profits for three years immediately preceding the in-station of the suit and pendents lite and future aaesne profits.
3. The suit was contested by the appellants, who filed their written statement on 24-4-1944. They did not admit the pedigree showing Lekhraj Singh as a brother of Ranjit Singh. They maintained that the sale was for Rs. 20,000/- Wit of which Rs. 17,450/- were paid in cash at the time of the registration and Rs. 2,550/- were paid earlier as earnest, that the sale was for legal necessity, that Sher Singh joined in the execution as the sole reversioner, by way of a family settlement and also intoken of the existence of legal necessity, that ho and the widow both were intelligent and literate persons, who fully understood what they were doing, and that the recitals in the sale deed disproved the existence of any person named Lekhraj Singh.
As regards the other defendants they alleged that they were not transferees but were mere licensees and were unnecessarily impleaded as defendants. On 25-7-1944 the appellants' counsel made a statement under Order X of the Code of Civil Procedure to the effect that the widow had to discharge debts amounting to Rs. 11,500/- due to Bholai Singh, Bishambhar Nath, Priya Lal, Chandi Prasad, Girwar and Chhunni Lal, that she required money to meet expenses of civil and criminal cases and that Ranjit Singh had (only) one brother Sher Singh.
The learned Civil Judge framed the following issues.
'1. What consideration, if any, actually passed for the sale and whether there was legal necessity for any portion of the same? Was the whole consideration paid or only a part was paid? Was the sale executed under undue influence and fraud as alleged in paras 3 and 6 of the plaint?
Does the sale bind the reversioners?
2. Was Sher Singh the sole presumptive reversioner on the date of the sale or some more persons; if it be held that Sher Singh was the sole nearest reversioner on the date of sale what is the effect of his joining as co-executant.
3. Whether any or both of the plaintiffs were the reversioners of Janki Devi and entitled to succeed her to the estate of Ranjit Singh on her death?
4. Is the claim barred by limitation? When did Mst. Janki Devi die?
5. Is the claim barred by principles of estoppel?
6. Whether Janki Devi and Sher Singh executed the sale after fully understanding the implications and whether did they possess sufficient intelligence to comprehend the transaction?
7. To what relief, if any, are the plaintiffs or any of them entitled?
8. Whether defendants Nos. 3, 6 and 5 are subsequent transferees from defendants Nos. 1 & 2 of the property in schedule B or are they in possession in their own rights? Is the suit bad for rejoinder of defendant No. 6?
9. Is the claim againat defendants Nos.3 to 6 barred by Section 41, T. P. Act?'
4. The parties led oral and documentary evidence. The plaintiffs examined Bharat Singh, Chiranji Lal, Chhattar Singh and Sohan Lal. The defendants (that is the appellants, the pro forma defendants-respondents being left out of consideration in the rest of the judgment) examined Bankey Lal, Bishambhar Nath Kallu, Ram Nath, Kailash Nath, Shyam Singh, Baldeo Behari, and Nathu Ram. Bharat Singh Chattar Singh and Chiranji Lal deposed thatLekhraj was a brother of Ranjit Singh and died in 1906. Sohan Lal gave evidence about the means of Ranjit Singh and the widow suggesting that the latter had no necessity of alienating the property.
Kallu, an attesting witness of the sale-deed, stated that tenants did not pay rent to the widow because many persons of the village were prosecuted for the murder of Ranjit Singh and there was a great famine. Ram Nath, who is distantly related to the defendants stated that the sale was negotiated by Gauri Shankar, a lawyer of Agra and maternal uncle of the defendants, that at the instance of the defendants' father he had told Gauri Shanker to make proper enquiries about the legal necessity for the sale by the widow and that he had paid earnest of 3,000/- to him on behalf of the defendants' father.
Bishambar Nath deposed about a debt due to him from Ranjit Singh and about its payment to the widow two years after his death. Shiam Sunder gave evidence about some debt due to his father, Priya Lal, by Ranjit Singh; his evidence about the existence of the debt and its repayment after Ranjit Singh's death is hearsay. Baldeo Behari Lal was a relation of Gauri Shankar, who died in 1924, and stated that at Gauri Shankar's instance he had enquired of Chandi Prasad and learnt from him that some money was due to him from Ranjit Singh or his widow and that Chandi Prasad died about 40 years ago.
He did not explain how the defendants knew that Gauri Shankar had asked him to enquire from Chandi Prasad whether any money was due to him. Nathu Ram is the son of Girwar, who had zamindari in village Shamo in which the property in dispute is situated and deposed about the conditions prevailing in the village. He stated that Ranjit Singh was murdered as he was returning from Shamo by some tenants of the village who bore enmity to him, that several persons were prosecuted for the murder, some of whom were hanged, that some persons absconded from the village on account of fear of prosecution and that the tenants did not pay any rent to the widow.
He also deposed about loans taken by the widow through Sher Singh from Bhulai Singh and Girwar for meeting expenses of rent suits and other suits, of the prosecution of Ranjit Singh's murderers and of succession certificate and household expenses. Lastly he deposed about repayment of the loans of Bhulai Singh and his father after the sale in dispute and about enquiries made by Gauri Shankar from Girwar and Bhulai Singh about the monies due to them from the widow.
5. The learned Civil Judge came to the following findings:
The plaintiffs were the nearest reversioners of Ranjit Singh entitled to inherit his estate on the widow's death. She died on 5-10-1932. The suit having been brought within twelve years of that date was not barred by time. She and Sher Singh executed the sale-deed in question intelligently and without any undueinfluence or fraud. It was executed for Rs. 17,400/-no earnest of Rs. 2560 was paid. The defendants must have learnt that the widow was indebted. to the extent of only Rs. 8,500 and that out of the amount of Rs. 8,500 only Rs. 3,600/- were due from the estate of Ranjit Singh, consequently the sale-deed was executed for legal necessity to the extent of Rs. 3,600 only and, therefore does not bind the reversioners. Sher Singh was not the sole presumptive reversioner on the date of the sale; his brother, Lekhraj Singh, was, alive. The suit was not barred on account of any estopped and did not suffer from any defect of misjoinder. The pro forma defendants were not subsequent transferees, but the claim, against them was not barred by Section 41, T. P. Act, The plaintiffs were entitled to recover possession of the property in dispute after paying Rs. 3,600 to the defendants and to a decree for Rs. 3,400 on account of past mesne profits and for Rs. 1,100 per annum on account of future mesne profits.
6. The defendants in this appeal challenge the findings of the trial court that the widow had legal necessity for selling property in order to raise Rs. 3,600 only, that there was no legal necessity for transferring the entire estate and that Lekhraj Singh was alive and Sher Singh's consent to the transfer was not enaugh. There is a cross-objection by the plaintiffs-respondents who challenge the findings of the trial court that there was legal necessity for transferring property worth about Rs. 3,600 and that consequently the plaintiffs could not get a decree for possession unless they paid Rs. 3,900 to the defendants. There is no dispute in this appeal about other findings.
7. The most important question is whether there was legal necessity for the execution, of the sale-deed. The property sold was the entire zamindari, total area 499 bighas 2 biswas bearing aggregate land revenue of Rs. 810-11-4, together with the entire sir land of total area 104 bighas 3 biswas, a grove land and some isolated plots of the area 9 bighs 17 biswas a house, a chaupal and a cattle-shed; all situated in village Shamo. Ranjit Singh and the widow lived in Mohalla Partabpur, Agra, about seven miles from Shamo. It is stated in the sale-deed that the consideration of Rs. 20,000 was received by the widow in cash, Rs. 2,550 as earnest prior to the execution and Rs. 17-450 in cash at the time of the registration. The following is the gist of the legal necessity recited in the sale-deed:
Ranjit Singh was indebted to the extent of Rs. 3,000 to Chhunni Lal and there were no means of discharging the debt. Money was also required to file suits in civil and revenue courts, for prosecuting the persons accused of the murder of Ranjit Singh and for obtaining a succession certificate on account of which the widow had to borrow Rs. 8,500 (Rs. 3,200 from Bhulai Singh, Rs. 500 from Bishambhar Nath, Rs. 1,800 from Priya Lal, Rs. 2,000 from Chandi Prasad and Rs. 1,000 from Girwar). and the creditors were pressing her to repay the money. The widow was pardanashin and unable to manage the zamindari.
8. There was a controversy whether the sum of Rs. 3,000 alleged to be due to Chhunni Lal was included in the amount of Rs. 8,500 borrowed by the widow. The language used in the sale-deed is ambiguous; the reference to the debt due to Chhunni Lal might have been made to explain the) need for borrowing Rs. 8,500 as well as to explain the need for executing the sale. The sale was executed undoubtedly for repaying the loans of the total of Rs. 8,500 borrowed by the widow herself for certain objects; but it is not very clear whether the debt due to Chhunni Lal was paid out of those loans or out of the consideration of the sale.
Since the recital in the sale-deed was about the legal necessity for executing the sale it is more reasonable to hold that the reference to the debt due to Chhunni Lal was one of the legal necessities, the other legal necessity being the repayment of the loans of the aggregate amount of Rs. 8,500. There were two debts, one contracted by Ranjit Singh and the other by the widow and it seems that the sale was executed to discharge both. The reference to the loans seems to be connected with the needs of the widow herself (to file suits, prosecute the murder case and obtain succession certificate) and not with the debt due to Chhunni Lal.
The debt due to Chhunni Lal was not paid before the execution of the sale-deed. Therefore, it could not be said that the loans were taken by the widow also with the object of paying him off. The trial court has disbelieved the evidence of Chhunni Lal's son, Bishmabhar Nath Khazanchi, to the effect that the debt was repaid after the execution of the sale; the evidence is certainly open to criticism, but even if it were believed there is nothing to suggest that the debt had been repaid before the execution of the sale, i.e., out of the loans of Rs. 8,500/-.
The debt due to Chhunni Lal at the time of its repayment must have been more than Rs. 3000/-. I am not saying that it must have been paid off wholly from one loan borrowed by the widow; but if a substantial part of it was paid off out of any of the loans borrowed by her it must have been out of the loan borrowed from Bhulai Singh, but the evidence of Girwar shows that the loan borrowed from Bhulai Singh had nothing to do with the repayment of the debt due to Chunni Lal. I, therefore, find that Rs. 3,000 due to Cnhuni Lal were not paid out of the loans and that the sale purports to have been executed to discharge liabilities to the extent of Rs. 21,700 (including Rs. 200 spent on registration). No other necessity is recited in the sale-deed itself.
9. The trial court has accepted the evidence of the defendants that the widow had borrowed Rs. 3,200 from Bhulai Singh, Rs. 1000 from Girwar, Rs. 1,800 from Priya Lal and Rs. 500 from Bishambar Nath and paid them off from the sale proceeds. Bhulai Singh, Girwar, Priya Lal and Bishambar Nath (other than P. W. Bishambar Nath Khazanchi) are all dead. There is the evidence of Nathu Ram to prove the loans taken from Bhulai Singh and Girwar and also their repayment. There is nothing in his evidence on account of which it might be disbelieved. The evidence about the loan taken from Priya Lal is given by his son, Shiam Sunder, though it is all hearsay.
There is no evidence about the loan taken from Bishambar Nath but the sale deed has been attested by Priya Lal and Bishamber Nath and since it contains the recital that the money had been borrowed from them the recital should be taken as correct. The remaining loan of Rs. 2,000 is said to have been taken from Chandi Prasad and Balbhaddar who also are dead; Baldeo Behari deposed that Chandi Prasad told him on his enquiry that he was a creditor of the widow. The trial court has in spite of doubts believed the evidence of Baldeo Behari and the recital. I accept the finding of the trial court that the widow had borrowed Rs. 8,500 from Bhulai Singh etc.
10. As regards the legal necessity, the payment of Rs. 3,000 to Chhunni Lal was undoubtedly a legal necessity; it was a debt due from Ranjit Singh and had to be paid out of his estate. The trial court has accepted only this payment as legal necessity. It held that the amount of Rs. 5,500, (Rs. 8,500, the amount of the loans minus Rs. 3,000) was not borrowed for legal necessity. Only one succession certificate was obtained and it was for Rs. 2,360/-and would not have cost more than a hundred rupees. As regards expenses incurred in prosecuting persons for the murder of Ranjit Singh there is no documentary evidence and it is not known how much money was spent after borrowing.
The prosecution was launched by the State and was conducted by the Government pleader; the judgment of the trial court is on the record and does not contain the name of any lawyer who might have been engaged by the widow to look after the prosecution or watch her interests. Bharat Singh denied that any lawyer was engaged. There were two civil suits fought by Ranjit Singh Or the widow. One was suit No. 8 of 1895 for pre-emption against the widow who was the vendee; it was decreed on 27-4-1895 and the pre-emptor acquired possession over the property on 8-9-1895.
Under the decree the widow was to get Rs. 3,300 from the pre-emptor and must have got the money before the pre-emptor was delivered possession over the property on 8-9-1895. She got the costs of the suit from the pre-emptor; she must have spent something more, but there is no evidence whatsoever about the amount. The other suit was No. 38 of 1895 to enforce a mortgage; the widow was impleaded as a defendant because she was a subsequent transferee of the mortgaged property. She did not contest the suit and incurred no expenses over it. There is no evidence of any summary suits or of rent suits.
The total annual rental demand in respect of the property in dispute was Rs. 1,200/-; in two years after the death of Ranjit Singh notmore than Rs. 2,400/- would have fallen due on account of rent from tenants and if none of it was paid and suits had been instituted to recover the whole amount, it does not appear that she would have spent more than Rs. 400 as calculated by the trial court. Thus the only amount proved to have been spent by the widow on obtaining the succession certificate and in the litigation, civil, and revenue was Rs. 600 as found by the trial court. This expenditure was undoubtedly a legal necessity which would justify alienation of a part of the estate. A widow cannot alienate her estate in order to pay off debts incurred by herself, unless they themselves were incurred for legal necessity.
11. It was contended before us that the loans must be presumed to have been contracted by the widow for legal necessity from the lapse of time and the deaths of the widow, Sher Singh, Gopal Chand and other persons who could give evidence about the legal necessity. It is undoubtedly true that the suit has been instituted very late and that the respondents have waited till almost the end of the period of limitation for it. The right to sue accrued to them on 5-10-1932 and they filed the suit on 21-1-1944. They have not offered any satisfactory explanation, for the delay in filing the suit. When any person files a suit to contest a will on the ground of its being a forgery, or an inheritance on the ground of illegitimacy, a very considerable time after the defendant had acquired possession under the will or by inheritance, the defendant, 'in order to defend his status, should be allowed to invoke against the claimant every presumption which reasonably arises from the long recognition of his legitimacy by members of the family or other persons' (vide Rajendra Nath v. Jogendra Nath 14 Moo Ind App 67 at P- 77 (A).).
Legal necessity cannot be presumed, as a matter of law, from the lapse of time, as pointed out by the Judicial Committee in Bhojraj v. Sita Ram . Lord Roche speaking for the Judicial Committee observed at P. 756 (of All LJ) : (at p. 61 of AIR).
'Regard must be had to the amount of evidence likely to be available after the lapse of a long time and presumptions should be allowed to fill in gaps disclosed in the evidence ...........Presumptions not to supplement butto contradict the evidence would be out of place.'
A Bench of this Court in Ramanand Lal v. Damodar Das, AIR 1942 All 110 (C) recognised that there is no hard and fast rule about presumptions to be made either with regard to recitals in the deed of transfer or with regard to the question whether legal necessity existed or whether a representation of its existence was made and was belived after a bona fide enquiry and said at page 115:
'Each case will have to be considered on its merits and presumptions may be made which are consistent with the evidence, the probabilities and the surrounding circumstances in the case ............when the recital in the deed issilent as to the necessity, in the proper case,having regard to probabilities, circumstances and evidence in the case a presumtion may be raised either with regard to the factum of the necessity or with regard to representation oil the necessity.'
The law was stated by a Full Bench of the Madras High Court in Subrahmanyam v. Soorayya : AIR1950Mad514 as follows:
'If .... ...... owing to lapse of time directevidence of the facts and circumstances recited has disappeard, then the recitals acquire importance as observed by the Judicial Committee in Banga Chandra v. Jagat Kishore ILR 44 Cal 186: (AIR 1916 PC 110) (E). In such cases a recital consistent with probability and the circumstances of the case cannot lightly be set aside..........
What about cases where there are not even recitals of necessity ........... Has lapse of timeany, and if so what effect? Lapse of time does not shift the burden of proof from the purchaser to the reversioner who impugns a sale by the limited owner.'
12. In the words of Viswanatha Sastri, J. in the same case at p. 520 'lapse of time cannot conjure up a chain consisting entirely of missing links.' The burden of proof must remain on the person alleging necessity and
'to say that a suit by a reversioner to recover property alienated by a Hindu widow must fail in the absence of any evidence about the necessity of the loan would be in effect to abrogate the rule of limitation that he is entitled to institute a suit for the recovery of the property within 12 years of the date of the death of the limited owner,'' Jai Narain Singh, v. Collector of Aligarh, 1942 All LJ 152: (AIR 1942 All 189) (F) per Allsop. J. at P. 155 (of All LJ : (at P. 191 of AIR).
13. Coming to the circumstance, I find from the evidence that since the murder of Ranjit Singh resulted in the prosecution of tenants or residents of village Shamo, no rent was paid by the tenants of the village and the widow or her servants did not even dare to visit the village. Relations between Ranjit Singh and Nand Kishore (who was another lambardar in the village) were very much strained and the tenants of the village espoused the cause of Nand Kishore. There had also been many famines in the village in the year when Ranjit Singh was murdered and 3-4 years previously. Ranjit Singh died indebted and his financial condition was not at all good as would appear from his account books. He was only a retired Railway doctor and had practically no income from practice. At the time of his death, his account in the Imperial Bank of Agra was overdrawn by a little less than Rs. 1000/-. The overdraft was repaid a few months after his death. In the first six months of 1894, he did not deposit any money in the bank and instead went on withdrawing it. The widow did not get any income from the estate for two years and must have spent money for her own maintenance and for the payment of the land revenue. On behalf of the respondents it was pointed out that the widow acquired money from other sources. Their witness Sohan Palstated that the medical hall of Ranjit Singh was sold for Rs. 1,000/- and his carriage and pony for Rs. 250/-. He could not tell the name of the doctor who purchased the medical hall. He never saw the previous medical hall of the doctor. He could not tell who purchased the carriage and the pony; neither the sale took place in his presence nor the payment of money to the widow. He also deposed about sale of grains in village Shamo for Rs. 2000/-. This sale also did not take place in his presence and his evidence is nothing but hearsay. The appellants' witnesses denied that there were any grain pits in Shamo containing grains of Ranjit Singh. The widow must have realised some money from the sale of the medical hall and the carriage and the pony, but we cannot accept the bare statement of Sohan Pal about the amount. The widow realised Rs. 3,300/- under the pre-emption decree. There was a mortgage in favour of Ranjit Singh but there is no evidence of the widow's having received any income from it.
14. It is true that in considering whether the widow had legal necessity or not one must take into account not only the expenses but also the income; the widow cannot after pocketing all the income alienate the estate in order to meet all necessary expenses such as for maintenance, marriage, payment of husband's debt etc. Whatever income the widow received from the pre-emptor and the sale of the medical hall etc. must be taken into account in deciding whether she could meet the expenses of litigation, her own maintenance etc. without incurring any debt.
I am satisfied that she was not able to meet all the necessary expenses without borrowing. It is admitted by Bharat Singh himself that after the sale, she went to her father's place with only Rs. 6,000. She had sold the property for Rs. 20,000 and must have spent Rs. 14,000 out of the sale proceeds before leaving Agra for good. Rs. 12,000 were spent out of the sale proceeds in paying off the antecedent debts. It follows that she had no money left just before she executed the sale and that she had not saved anything from the sale of the medical hall etc.
She was, therefore, obliged to borrow in order to meet the expenses. From the income from the sale of the medical hall and the money received from the pre-emptor she must have discharged Ranjit Singh's liabilities to the bank, paid the land revenue and maintained herself; it may be that the income from the sale and the pre-emption decree money was not enough even for these expenses. In view of these circumstances, it can be presumed from the delay with which the suit was instituted that all the loans amounting to Rs. 8,500 were contracted by the widow for legal necessity. Legal necessity has to be proved; mere recital of its existence does not prove it.
'Necessity must be proved and the mere recital in the deed of alienation is not sufficient proof. An equitable modification has also been admitted in the case where the alienee has ingood faith made proper enquiry and been led to believe that there was a case of true necessity,' see Rangaswami Gounden v. Nachiappa Goundan, ILR 42 Mad 523 : (AIR 1918 PO 196) (G). The reason given by the Judicial Committee is that the reversioner's right would always-be defeated by insertion of carefully prepared details, if the recitals were relied upon to prove the facts contained therein; see ILR 44 Cal 186 : (AIR 1916 PC 110) (E). If, however, owing to lapse of time direct evidence of the facts and circums- tanceg recited has disappeared the recitals ac-quire importance. The lapse of time will save the alienee from an adverse Inference arising from the sketchy nature of the evidence adduced by him and will allow presumption to fill in de- tails in the evidence which had been obliterated by time; see : AIR1950Mad514 . The appellants are entitled to the presumption that Rs. 8,500 were borrowed for legal necessity. The widow could alienate the estate so far as necessary to raise the amount of Rs. 11,500.
15. There was thus legal necessity to justify alienation so as to raise Rs. 11,500. There is no recital whatsoever of any legal necessity for alienation of more property. There is much disparity between the amount of Rs. 20,000 for which the property in dispute was sold and Rs. 11,500 for which some of it could be sold. The widow had no justification whatsoever to sell all the property in dispute when the legal necessity could be satisfied by sale of a little more than half of it.
If a widow sells property for legal necessity for a certain amount but only a part of it is applied to satisfy the necessity the whole sale would be upheld because the vendee is not bound by the law to see that the whole amount paid by him is applied to satisfy the necessity.
'It would rather, appear that in any case whether the sale has been held to be justified, but there is no evidence as to the application of a portion of the consideration, a presumption arises that it has been expended for proper purposes and for the benefit of the family'; See Sri Krishan Das v. Nathu Ram .
The reason is that'Where the purchaser acts in good faith and after due inquiry, and is able to show that thesale itself was justified by legal necessity, heis under no obligation to enquire into the application of any surplus'; at p. 41.
But it should be noted that the whole sale must purport to have been made for legal necessity. As emphasised by the Judicial Committee at page 39, one must not lose sight 'of the true question which falls to be answered in such cases, viz., whether the sale itself was one which was justified by legal necessity.' The principles laid down above will not apply when the sale itself does not purport to have been made entirely for legal necessity as in the present case. Here the sale itself professed to be made not to raise Rs. 20,000 for legal necessity but to raise only Rs. 11,500 for legal necessity.
Had there been the recital in the deed or had there been any evidence to the effect that it was represented to the appellants that the widow required Rs. 20,000 for legal necessity, the sale could be upheld though it was proved that only Rs. 11,500 were actually spent by the widow on legal necessity. When it was not even represented to the appellants that Rs. 8,500 more were required for legal necessity, they could not take shelter behind the plea that they were not bound to see that this amount also was applied to satisfy legal necessity,
In Niamat Rai v. Din Dayal , the sale of the property in suit was found to be for legal necessity but out of the purchase money of Rs. 43,500 Rs. 38,000 were spent on legal necessity and the whole sale was upheld. In Indarjit v. Jaddu : AIR1933All169 the property was sold for Rs. 4,622, partly for legal necessity and partly for payment of the widow's antecedent debt, which was not for legal necessity and it was held that the sale was valid only to the extent of the legal necessity.
Here the nearest reversioner joined the Widow in the execution of the sale and yet the sale was held to be valid only in part. The vendee was not held to be entitled to the benefit of the rule laid down in the case of because the sale itself purported to have been executed in part for a necessity that was not legal necessity. In the case of AIR 1942 All 110 (C) it was pointed out that where a part of the transfer or a part of the consideration of the transfer is not justified by legal necessity or by a representation of legal necessity which the transferee had believed, the unjustified consideration or transfer will not bind the reversioner and that the doctrine of the case of does not apply where the transfer itself professes to be for partial necessity, with regard either to its consideration or to the property transferred.
If the property is such as cannot be sold in part, sale of the whole may be justified even though there is legal necessity for sale of a part of it, but that was not the case here. The zamindari property itself consisted of a share any portion of which could be sold by the widow. Then there were houses and sir rights which could have been exempted from sale. If legal necessity existed to justify sale of the bulk of the property and the portion in respect of which there was no justification is a small portion, it may be ignored and the whole sale may be held to be justified but here the portion of the sale in respect of which there was no justification was not a small or negligible portion being only a little less than one half.
16. Where in a suit by a reversioner for possession of property alienated by the widow it is found that the alienation was justified in part and not in its entirety the reversioner would be entitled to a decree for possession of the whole property on condition thathe paid to the alienee the consideration for the part of the sale that was justified; see : AIR1933All169 . Accordingly, if the matter rested here, the respondents would be entitled to a decree for possession of the property in dispute on condition that they paid Rs. 11,500 together with expenses of the execution of the sale deed to the appellants.
17. The appellants rely upon the consent of Sher Singh as justifying the entire sale. Sher Singh joined the widow in execution of the sale deed and this is more than his consent to the alienation. He was admittedly the next reversioner. The case of the respondents is that he was however, not the only next reversioner and that his brother Lekhraj Singh was alive at the time of the execution of sale and had not given his consent in any manner. So I come to the question whether Lekhraj Singh was alive then or not. There is considerable oral and documentary evidence.
The witnesses examined by the respondents tried to make out that Lekhraj Singh died in September, 1906, but their evidence is unreliable. Bharat Singh could not give a consistent account of the years of births and of deaths of Ranjit Singh, Sher Singh and Lekhraj Singh. He deposed that Lekhraj Singh died at the age of 40 but according to the entry in the chaukidar's death register, he died at the age of 65. There could not have been such a serious mistake either in the entry in the death register or in the statement of Lekhraj Singh's own son Bharat Singh, unless there was some confusion about the year of the death.
Chiranji Lal deposed that Lekhraj Singh died in 1904-1906 and that Sher Singh died two years earlier: but according to Bharat Singh, Lekhraj pre-deceased Sher Singh. Charanji Lal said at one place that the widow went to her father's home (after the sale of the property in dispute) when he was 18 years old and at another place he said that he was only 8-10 years old. He admitted having good relations with the respondents; that may account for his falsely stating that Lekhraj Singh was alive in 1897. Chattar Singh deposed about Lekhraj's death in 1906 and his signing a Mukhtarnama by Gulzar Singh in 1905 a Mukhtamama by Ganga Bux Singh and a Mukhtarnama by Bhopal Singh.
This witness belongs to another village; admittedly he had not received any letter from Lekhraj and had never seen any writing or signature of Lekhraj in the last 39 years and had not informed the respondents that he had seen Lekhraj attest the deeds. He himself was not another attesting witness of the deeds and one fails to understand how the respondents knew that he had seen Lekhraj sign them. He could not recognise Sher Singh's handwriting nor Ranjit Singh's nor Bharat Singh's. Ganga Bux never executed any Mukhtarnama; on the contrary a Mukhtarnama was executed in his favour.
The evidence of the witness is wholly useless. Sohanpal stated that Lekhraj was alivewhen the widow was thinking of selling the property in dispute. He did not say anything about it in the examination-in-chief. Not only :is he one of the respondents but also his evidence does not inspire confidence. He could not say why Ranjit Singh was murdered; it is surprising that he did not know this in spite of the prosecution.
18. The documentary evidence filed by the respondents is all forged. There is a copy of an entry in the death register of the Chaukidar showing that Lekhraj died on 18-9-1906 at the age of 65 years. This copy was filed in court on 25-4-44, the date fixed for settlement of issues.
The appellant applied for the originaldeath register to be summoned on 5-7-1944, andit was produced on 25-7-44 by the record keeper. On 25-7-1944, the appellants made an application in the court alleging that the entry in thedeath register was a forgery being a clear interpolation and that it might be photographed. The application was allowed on 19-8-1944 and the appellants got the entry photographed. The death register of 1906 maintained in the collectorate had been destroyed. The choukidar's book which has lived pages contains entries of death and birth both; entries of death are made at one place and entries of birth at another place.
The entries are checked from time to time by some official, who makes an endorsement about the check. The endorsement occupies two lines and whenever there is an endorsementof a check, two lines remain blank (except for the endorsement). But in endorsement of check just where the entry of death of Lekhraj is made there is only one line left blank now and it is clear that the entry was interpolated in the other line that was left blankwhile making the endorsement. Moreover thedate of death is much higher than should have been if the entry had been made normally in an entirely blank line. A look at the photograph is enough to show that the entry of Lekhraj's death has been interpolated in a blank spacewhich happened to have been left on accountof an endorsement of checking made by an official.
It appears that entries of death were checked in September 1906, and the endorsement left a blank in the book of the chowkidar, which was utilized by the respondents for forging an entry of the death of Lekhraj. The book commenced from 1905; the earlier book used by him must have been deposited at the police station and was not available for forging an entry. The respondents have also produced their vakalatnamas and one Mukhtarnama purporting to bear signatures of Lekhraj made in 1905; they also are not free from suspicion. The Mukhtarnama was executed by Gulzar Singh of village Barauri in favour of Jiwa Ram of the same village on 26-4-1905 and it is attested by the three witnesses, Naubat Singh, Sarup and Lekhraj Singh.
Naubat Singh's and Sarup's signatures find place before that of Lekhraj Singh and they, are residents of village Barauri. The Mukhtarnama was executed in Khurja. Signatures of two witnesses were more than enough and yet Lekhraj Singh was asked to sign as a third witness. The parties to the deed and the first two attesting witnesses all belonged to Barauri; Lekhraji Singh was the only person who had nothing to do with Barauri. The Mukhtarnama was executed in order to be used in a court at Khurja and these persons of Barauri had an occasion to be in Khuraja in connection with the case but Lekhraj had no occasion to be in Khurja. It is significant that Bharat Singh was not asked to prove the signature of Lekhraj Singh on this document. One vakalatnama was executed by Chhotey Lal, Srimati Ranchi and Ram Saran Das on 1-5-1905 for use in the same case at Khurja. It is signed by two witnesses Pitambar and Lekhraj (the vakalatnama is not correctly printed in the paper book page 136-137; the signatures of the executants are mixed up with the signatures of the attesting witnesses). There was no necessity of two attesting witnesses and the signature of Lekhraj appears to have been interpolated subsequently.
The executants were all of village Ali Ahmadpur, & go also the attesting witness Pitambar. Only Lekhraj came from another village. It is too much of a coincidence that Lekhraj happened to be in Khurja not only when the people of Barauri executed the deed but also on another date when the people of Ali Ahmadpur executed a vakalatnama and that his signature happens to be put at a place where it could be by interpolation. Theword ^^xok** is written in Urdu before the signature of each attesting witness; but the last letter ^^ok** of the word is written differently against the signature of Lekhraj and the word ^^xok** does not appear tohave been written by the scribe who wrote the word against the signature of other attesting witness showing clearly that the signature of Lekhraj is an interpolation.
There are two more vakalatnamas executed on 26-4-1906 in the same case; in them also signature of Lekhraj is the last signature. I am not prepared to believe that Lekkraj signed those vakalatnamas.
19. Though the appellants' counsel did not admit the existence of Lekhraj, there is no doubt that he did exist. The khatauni of 1882 of village Asafpur shows that Lekhraj Singh, Sher Singh and Ranjit Singh were three brothers. It has not been explained by the respondents how they knew that the Mukhtarnama and the vakalatnama filed in same case of another village with which they had no concern had been signed by Lekhraj 38 years ago. There is hardly any doubt that they got the signature of Lekhraj forged on the documents and produced them in court. I am not holding that the signatures of Lekhraj on the documents were forged by comparing them with his authenticated signature; I am not assuming the role of an expert. I hold on the circumstantial evidence that the signatures are a forgery.
20. The appellants have not led any evidence to prove when Lekhraj died but could not be expected to do so. Lekhraj belonged to Jahangirpur in Agra, district and died there, whereas the appellants belonged to Patiala and did not know anything about Lekhraj, They cannot be expected to know when and where he died. There is no reference to Lekhraj at all in the sale deed; on the contrary it contains the statement that the executants had no partner or co-parcener and that Sher Singh was the next reversioner. Had Lekhraj been alive, there was no reason for the executants not only ignoring his existence but even denying it.
We have no reason to think that the widow or Gopal Chand was acting fraudulently. The sale deed does not contain any false recital; even though the sale was made for Rs. 20,000 necessity for raising Rs. 11,500 only was recited. It might be said that they! were interested in making the sale appear legal but the same could not be said of Sher Singh, who would not have falsely denied the existence of Lekhraj and would not have claimed that he was the sole next reversioner. Lekhraj is said to have remained alive for nine years after the execution of the sale but took no action to impugn it by a declaratory suit.
Not only was his reversionary right affected by the execution of the sale deed but even his very existence was denied by it and he should have normally rushed to the court at once. The execution of the sale was not a matter left in secracy at all since everybody knew about it. Bharat Singh stated that Lekhraj consulted lawyers and yet he did not file any suit in his lifetime. In the plaint itself the respondents made no reference to Lekhraj's not joining in the execution of the sale and did not state that he died or that he was alive when the sale was executed.
The signature of Sher Singh was alleged to be insufficient not because he was not the only next reversioner but because he was of weak intellect and too much dependent upon, the widow to be a free agent. No one reading the plaint would ever think that besides Sher Singh there was another next reversioner. Having regard to all the circumstances, I come to the conclusion that Lekhraj was not alive at the time of the sale in question. There is hardly any occasion for applying the rule that the onus of proving the year of Lekhraj's death lay upon the appellants; the entire evidence relating to the year of death is on the record and the question of onus has lost all importance.
Had the evidence left any doubt, the question of onus might have been, of importance because then the party on whom lay the onus would have failed. But the evidence on the record is sufficient for the finding that Lekhrajwas not alive. Sher Singh was, therefore, the only next reversioner.
21. The effect of a consent by reversioners through joining in the act of alienation by a widow of her estate depends upon several facts, viz. whether the alienation is a sale or some other transfer leaving the title in the widow, whether it is of the entire estate or a part of it, whether the consent is given by all the reversioners next and remote or by some of them and whether it is given by all the next reversioners or by some of them. A widow can always surrender the estate to the next reversioner. She can by voluntary act operate her own death; just as on her actual death the inheritance will reopen to the next reversioner, so also on her civil death resulting from complete effacement.
The surrender must, logically, be of the entire estate and in favour of the whole body of the next reversioners. In order to be tantamount to civil death, it must be such as to produce the effect which would have been produced if she had really died. If she surrenders the estate to the next reversioners, they would become the absolute owners and would have unfettered right to alienate it on any ground. The Hindu law does not prohibit or prevent the two acts being done simultaneously or through one document; a widow can surrender the estate to the next reversioners and they can alienate it through one document.
Consequently a Hindu widow and the next reversioners can execute a deed of sale of the entire widow's estate without any necessity and the vendee will acquire absolute title. This result cannot be achieved if only some of the next reversioners Join in execution of the sale or if the sale is in respect of a part of the widow's estate and not the whole, or if the alienation is' a mortgage or lease which) still keeps the title in the widow; in such cases the next reversioners will be bound on the death of the widow, only if the alienation is backed by legal necessity.
This distinction between a sale and any other transfer such as a lease or mortgage and the distinction between sale of the entire estate and sale of a part of it have sometimes not been kept in mind with the result that irreconcilable opinions have been expressed by Courts. A reversioner's joining in the execution of a sale by a widow will not confer absolute title upon the vendee, regardless of the question of necessity for the sale, unless the reversioner is the sole next reversioner and the sale is of the entire estate; in every other case the question of legal necessity for the alienation will arise and the only effect of the reversioner's joining the widow in the act of alienation will be, if at all, to raise a presumption of legal necessity. The presumption would be a presumption of fact and not conclusive and would be liable to be rebutted. The alienee may rely upon the presumption and not lead any evidence in the first instance to prove that the alienation was for legal necessity or that a representation of legal necessity was made to him and he hadbelieved it after a bona fide inquiry; the onus would then shift to the next reversioner to prove that in fact there was no legal necessity. Any of the following three consequences can thus arise out of a reversioner's joining the widow in an alienation:
(1) The alienation confers absolute title on the alienee irrespective of any necessity,
(2) it raises a presumption that the alienation was for legal necessity and
(3) it has no effect at all.
22. A next reversioner's joining the widow in the act of alienation is one act and his giving consent to the alienation another act and the question whether the two acts have the same legal effect or not has been a matter of controversy. The Judicial Committee has tacitly accepted the view that a consent by the next reversioner stands on the same footing as joining the widow in the act of alienation, but a serious doubt about the correctness of the view has been cast by the Supreme Court though it has left the question open and even proceeded on the basis that it is correct. It is unnecessary for me to go into the merits of the controversy because here the next reversioner has joined the widow in the act of alienation and not merely consented to it.
23. I shall now deal with the authorities. One of the earliest expressions of the law on the subject is by the judicial Committee in Raj Lukhee Debee v. Gokool Chunder, 13 Moo Ind App 20& (PC) (K); there a widow sold a part of the estate without legal necessity and the sale deed was attached by some kindred of the deceased husband. The Judicial Committee held that the sale was not binding upon the next reversioner on the widow's death. Sir James W. Col-vile delivering the Judicial Committee's opinion observed at p. 228:
'Their Lordships do not mean to impugn those authorities which lay down that a transaction of this kind may become valid by the consent of the husband's kindred, but the kindred in such case must generally be understood to be all those who are likely to be 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. That it can be, as Mr. Field seemed to put it, a presumption of law in the sense of 'presumptio juris et de jure', their Lordships do not think.'
Their Lordships did not accept the contention that mere attestation of a sale deed imports concurrence and also were not satisfied that the attesting witness was the then next reversioner. Consequently there was no consent by the next reversioner and the sale being of only a part of the estate it could not amount to relinquishment by the widow of her widow's interest. It was in reply to the contention of the vendee that the mere consent of the attesting witness validated the sale, that their Lordships observed that in some cases consent may validate the sale by raising a presumption that it was for a legal necessity; since they were considering the case of sale of a part of an estate, they observed that the consent, even of the next reversioner, would not as a matter of law validate the sale.
Their Lordships were not considering a sale of the entire estate and were not laying down any law regarding the effect of consent to such a sale. Nobokishore v. Harinath, ILR 10 Cal 1102 (FB) (L), is a decision of a Full Bench of the Calcutta High Court which equates consent by the next reversioner with his joining the widow in the act of alienation. Garth C. J. observed that a widow can always relinquish the entire widow's estate in favour of the next reversioners and proceeded to say :
'If it is once established, as a matter of law, that a widow may relinquish her estate in favour of her husband's heir for the time being, it seems impossible to prevent any alienation, which the widow and the next heir may thus agree to make. And it seems equally impossible to deny, that for a long series of years, this Court has treated and considered such alienation as lawful' (p. 1108),
The next reversioner there had not joined the widow in alienating the estate but had only given his consent to the alienation and the question arose whether it had the same effect as his joining the widow in the act of alienation. The learned Chief Justice had his own doubts and was of the view that
'to allow the widow to relinquish her estate to the next male heir of her husband, is one thing; but to allow her to sell out the whole inheritance, without any legal necessity, merely with the consent of the next male heir, so as to bar the rights of other heirs of her husband in the future, is another thing' (p. 1109).
But he felt bound by a long course of authority in the High Court and held that the consent had the same effect as joining in the execution to validate the sale. Mitter J. agreeing observed at p. 1110:
'If the widow is competent to relinquish her estate to the next male heir of her husband, it follows, as a logical consequence, that she can alienate it merely with his consent without any legal necessity.'
Prinsep J. referred to the case of 13 Moo Ind App 209 (PC) (K) and observed at p. 1111.
'It has been settled law in Bengal that a Hindu widow by relinquishing her rights in favour of the heir to her husband's estate accelerates his inheritance, and that the effectof a conveyance by her and such, heir is to convey the absolute estate.'
24. The next case to be considered is Eajrangi Singh v. Manokernika Baksh Singh ILR 30 A11 1 (PC) (M), the facts of which were that a widow sold the entire estate through three sale deeds executed in 1872 & 1875, the sale deeds were expressly ratified and confirmed by the then next reversioners and a suit was brought by the next reversioners after the widow's death to recover possession over the estate from the alienee. The Judicial Committee dismissed the suit on the ground of the ratification or consent. The entire estate was sold by the widow and the sale was consented to, though subsequently, by the then next reversioners; it was, therefore, a valid sale irrespective of the question of legal necessity and the vendee acquired an absolute title.
Their Lordships overruled the then prevailing view of this Court that no reversioner possesses such a present vested interest as to enable him to combine with the widow in defeating the other revessioners and observed that it was at variance with the principle itself and not in accordance with the practice m other parts of India where the Mitakshara law prevails and approved of the Calcutta view that consent of all the next reversioners would validate the sale. In the case of ILR 42 Mad 523: (AIR 1918 PC 196) (G) there was a gift of a part of the estate by a widow with the consent of the next reversioner and their Lordships held that it could be avoided by the next reversioner on the widow's death.
The gift was not for a purpose recognised by the Hindu Law, and it being of only a part of the estate the consent of the reversioner could not have any greater effect than that of simply raising a presumption of legal necessity, and since the circumstances were such as to be inconsistent with any such presumption, the gift was bound to be set aside at the instance of the next reversioner. Lord Dunedin uttered a warning against being entangled in western notions of what a Hindu widow might do and emphasized the distinction between the power of surrender of renunciation and the power of alienation for certain specific purposes. Dealing with the power of surrender his Lordship said that it was founded on certain texts of the Smritis and that it was settled by long practice that
'a Hindu widow can renounce in favour of the nearest reversioner if there be only one or of all the reversioners nearest in degree if more than one at the moment', i. e., 'she can..... by voluntary act operate her own death' (p. 532 (of ILR Mad) : (at p. 198 of AIR).
His Lordship referred to the case of ILR 10 Cal 1102 (FB) (L) in this connection and repelled the idea that a widow can surrender a part of the estate provided she surrendered her complete interest in it, observing that 'there cannot be widow who is partly effaced and partly not so' (page 533) (of ILR Mad) : (at p. 199 of AIR). His Lordship then observed:
'The surrender once exercised in favour of the nearest reversioner or reversioners the estate became his or theirs, and it was an obvious extension of the doctrine to hold that, inasmuch as he or they were in title to convey to a third party, it came to the same thing if the conveyance was made by the widow with his or their consent. This was decided to be possible by the case of (ILR 10 Cal 1102) (FB) (L).'
Thus the view taken in the case of ILR 10 Cal 1102 (FB) (L) that consent by the next reversioner (S) was equivalent to his (their) joining the widow in the alienation was accepted. His Lordship then proceeded to consider the power of alienation. It is to be noted that the question of exercising the power of alienation would arise only so long as the widow has not suffered death, natural or civil by surrender; this was made clear by his Lordship's pointing out that it the alienation be total and the reversionary heirs be the nearest, it falls within the power of surrender.
Discussing the power of alienation, his Lordship pointed out that an alienation in order to be valid must be for legal necessity, that legal necessity must be proved or the alienee must have acted in good faith after proper inquiry and been led to believe that there was legal necessity and that the alienation may be fortified by the consent of the reversionary heirs. His Lordship then laid down that if the alienation was partial, the reversioner's consent would not give force per se but would be of evidential value and referred to the case of 13 Moo Ind App 209 (PC) (K). The reasons given were:
'If mere consent as such of the reversioner could validate alienation then the rule as to total surrender would be in an idle rule. And secondly mere consent could only validate on the theory that the reversioner together with the widow represented the whole estate. But that is impossible unless the reversioner has a vested interest, whereas it is settled that he had only spes successionis' (P. 534) (of ILR Mad) : (at p. 200 of AIR).
His Lordship explained the decision in the case of ILR 30 All 1 (PC) (M) and pointed out that the Judicial Committee had in that case
'set forth the cases of surrender and those of partial alienation without discriminating for the purposes of the case before them between the two principles. They did not in any way throw doubt on the former judgment in Behari Lal v. Madho Lal, ILR 19 Cal 236 (N) which settled that a surrender must be total' (p. 535) (of ILR Mad): (at p. 200 of AIR).
The law ultimately laid down by his Lordship at p. 536 (of ILR Mad) : (at p. 201 of AIR), is
'(i) An alienation by a widow of her deceased husband's estate held by her may be validated if it can be shown to be a surrender of her whole interest in the whole estate in favour of the nearest reversioner or reversioners at the time of the alienation . In such circumstances the question of necessity does not fall to be considered. But the surrender must be a bona fide surrender, not a device to divide the estate with the reversioner, (2) When the alienation of the whole or part of the estate is to be supported on the ground of necessity, then, if such necessity is not proved aliunde and the alienee does not prove inquiry on his part and honest belief in the necessity, the consent of such reversioners as might fairly be expected to be interested to quarrel with the transaction will be held to afford a presumptive proof which, if not rebutted by contrary proof, will validate the transaction as a right and proper one.'
Proposition (1) deals with the power of surrender and proposition (2) with the power of alienation. Proposition (2) as explained earlier could applyonly in the absence of applicability of proposition (1) ; if a widow surrenders the entire estate no question of necessity arises. The words 'the whole or part of the estate' are used in proposition (2) because alienation of the whole of the estate may not amount to surrender (for example when it is not in favour of all the next rever-sioners or the alienation is in the form of a mortgage or a permanent lease). The cases of ILR 10 Cal 1102 (FB) (L) and ILR 42 Mad 523: (AIR 1918 P C 196) (G), have been discussed by the Supreme Court in Mummareddi Nagi v. P. Durai-raja : 2SCR655 . the facts of which were that a widow surrendered the entire estate in favour of the then next reversioner and a stranger and a suit was brought after her death by the actual rever-sioners for possession. Mukherjea J. said at p. 661 (of SCR): (at p. 111 of AIR);
'The doctrine of surrender or relinquish-ment by the widow of her interest in the husband's estate which has the effect of accelerating the inheritance in favour of the next heir of her husband is now well settled doctrine of Hindu Law',
but held that the surrender was invalid because it was not in favour of only the next rever-sioners. At p. 662 (of SCR) : (at p. 111 of AIR) he said that effacement by the widow
'may be effected by any process and it is not necessary that any particular form should be employed. All that is required is that there should be a bona fide and total renunciation of the widow's right to hold the property.'
It follows that there need not be an express surrender or renunciation by the widow; surrender may be implied from an act of alienation to a third person by her and all the next reversioners. At p. 663 (of SCR) : (at p. 112 of AIR) the learned Judge stressed the fact that the deed of alienation was not one executed by the widow and the next reversioner jointly in favour of the stranger; the next reversioner did not figure as executant 'nor even as an attesting witness' and, therefore, the alienation could not be deemed to be a surrender by the widow to the next reversioner and an alienation by the latter to the stranger. On p. 664 (of SCR) : (at p. 112 of AIR) it is said :
'It would be quite consistent with established principles of law if the widow relinquishes her interest in the husband's estate and the reversioner, in whom the estate vests, transfers the estate either in whole or in part to another person. If the transfer is of the entire estate, the two transactions may be combined in one document and the widow and the reversioner might jointly transfer the whole estate to a stranger but the implication in such cases must always be that the alienee derives his title from the reversioner and not the widow.'
And then a doubt is thrown on the extension of the doctrine in the case of ILR 10 Cal 1102 (FB) (L). Proceeding on the assumption that ILR 10 Cal 1102 (FB) (L), was rightly decided the learned Judge distinguished it from the case in hand because there was no evidence of any consent by the next reversioner. In Bhola Nath v. Hari-mani Dasi 30 Cal LJ 6 : (AIR 1919 Cal 214) (P), there was an alienation by a widow in which the next reversioner joined and following ILR 10 Cal 1102 (FB) (L), the learned Judges upheld the alienation as valid. They said that the alienation purported to be
' a conveyance by which the widow was selling her widow's estate and the reversioner, his reversionary interest'
The contrary view taken by a Bench of this Court in Fateh Singh v. Rukmini Rawanji (AIR 1923 All 387) (FB) (Q) and Ram Dayal v. Mi-thoo Lal, AIR 1923 All 410 (R) and by the High Court of Patna in Thakur Prasad v. Dipa kuer, ILR 10 Pat 352: (AIR 1931 Pat 442) (S), cannot be accepted as correct. In the case of AIR 1923 All 387 (FB) (Q), there was not a sale but a gift in favour of a family idol and it was assented to not by all the three next reversioners but by only two of them. Obviously the consented gift could not be deemed to be equivalent to re-linquishment by the widow in favour of the next reversioners and a gift by them to the idol.
One of the consenting reversioners filed a suit for possession after the widow's death and he was held to be estopped from suing. But some of the reasons given in support of the decision are against the weight of authority, particularly to that of the Judicial Committee of the Privy Council and the Supreme Court. For instance it was said at p. 389 that the two reversioners had no interest in the property at the time of the consent, which they could assign or relinquish because so long as the widow did not die they had nothing more than a spessuccessionis.
Of course so long as a widow does not die the presumptive reversioner has no right or interest in the property because he has only a spes successionis, but it is equally true that the estate would vest in him if the widow dies either a natural or a civil death by relinquishment. Whether the estate should be deemed to have vested in the consenting reversioner or not was not discussed at all. It may not be correct to say that a widow and the nearest reversioner between them represent the entire estate, but it does not follow that an alienation of the entire estate by a widow jointly with all the next reversioners does not amount to her civil death and to the alienation by the next reversioners of the estate vesting in them.
In the case of AIR 1923 All 410 (R), it is not known whether the gift by the widow, consented to by the next reversioner, was of the entire estate or a part; if it was of only a part, it was rightly observed by Gokul Prasad J. that the consent would only raise a presumption that the alienation was for a legal necessity. The statement at p. 411 of the learned Judge that the consent of the next reversioner does not amount to relinquishment because he had no vested interest which could be relinquished, is too broad: it will not hold good when the entire estate is alienated by the widow. In the case of ILR 10 Pat 352: (AIR 1931 pat 442) (S), it was also said by Dhavle J. at p. 362 (of ILR Pat) : (at p. 445 of AIR) that:
'a reversioner's consent does not by itself operate to validate an alienation by a Hindu widow but is only presumptive evidence that the alienation was proper.'
The effect of consent by all the next reversioners to an alienation of the entire estate by the widow was not considered in the case at all. The alienation in the case of Kali Shanker Das v. Dhirender Nath : 1SCR467 was a mortgage and probably of a part of the widow's estate; therefore, it was held that the consent did not validate the alienation. Mukherjee J. observed at p. 318 (of SCA) : (at p. 509 of AIR) :
'The alienation here was by way of mortgage and so no question of surrender could possibly arise.'
The consenting reversioner was the next reversioner; therefore, the consent had some legal effect and since it could not be to validate the alienation it could be only to
'raise a presumption that the transaction was for legal necessity or that the mortgagor had acted therein after proper and bona fide inquiry and has satisfied himself as to the existence of such necessity, (p. 318) (of S C A) : (at p. 509 of AIR).' In Udaibhan v. Gajendra Singh (AIR 1923 All 28) (U), the statement is repeated that the consent of the reversioners merely affords evidence about the lawfulness of the alienation; it is not known whether alienation there, was of a part of the estate or the whole of it, but the judgment does not purport to lay down the effect of consent by all the next reversioners to alienation of the entire state. There is an observation of Sulaiman J. that consent will not validate it if the necessity alleged in the deed is not such as is recognized by the Hindu Law; if a particular necessity is alleged in the deed, the consent may raise the presumption that that necessity existed, but if the alleged necessity is not a legal necessity within the meaning of the Hindu Law, the consent will not raise a presumption that another necessity recognized by the Hindu Law as legal existed.
As pointed out by Daniels J. C. in Manzu-ran Bibi v. Janki Prasad AIR 1922 Oudh 50 at p. 52 (V), when the purpose for which an alienation is made is known there is no room for any presumption and the court's function merely is to examine whether the purpose is one which the Hindu Law recognizes as valid. The question whether there was necessity or not would arise only if the alienation was not deemed to be a surrender by the widow followed immediately by an alienation by the next reversioner; if the alienation was of part of the estate no fault can be found with the observations made by the learned Judge. Haji Mohd. Said Khan v. Dar-shan Singh : AIR1927All835 , follows the case of ILR 42 Mad 523 : (AIR 1918 PC 196) (G), the alienation there was of part of the estate and it was rightly observed at p. 80 (of ILR All) : (at p. 836 of AIR), that the consent of a reversioner is no conclusive proof, but simply raises a presumption, of the existence of legal necessity. The alienation in Debi Prasad v. Golap Bhagat ILR 40 Cal 721 (FB) (X), which was approved of by their Lordships in-the cases of ILR 42 Mad 523 : (AIR 1918 PC 196) (G) Harendra Nath v. Hari Pada : AIR1939Cal387 . and Bajrang Bahadur v. Rameshar Bux , were of parts of the estates and so it was-held that the consent could only raise a presumption of legal necessity.
25. The sale by the widow in the case before us was of the entire estate inherited by her from Ranjit Singh. Nothing was left with her after the sale. Sher Singh was the only next reversioner; there were remoter reversioners but they would not have inherited the estate if the widow had died on the date of the sale. Execution of the sale by her and the next reversioner is in the eye of law meant her dying a civil death, by Sher Singh's inheriting the estate and his selling it to the appellant's father. No sale by him can be challenged, on the ground on which the sale by the widow is challenged; he passed absolute title regardless of any question of legal necessity. The title acquired by the appellants is, therefore, indefeasible.
The consent of Sher Singh was impeached on the ground that he had received consideration. He was employed as a compounder by Ranjit Singh on a monthly salary. He is said to have been living jointly with the widow upto-the date of the sale. It cannot be said from these facts that his consent wag purchased by the widow or the appellant's father. Even if he derived some gain from the consent, it will not affect the validity of the sale. The very basis for holding the sale to be valid is that it is as good as a sale by Sher Singh himself. There could not be a sale by Sher Singh except for consideration and no alienation by him could be impeached on the ground that he derived a gain from it. The suit of the respondents must, therefore, fail.
26. It is unnecessary to decide whether the decree for mesne profits was correctly passed but in order to complete the judgment I would deal with the question. The appellants contended that the sale in their favour was voidable and not void, that the respondents did not give them any notice of their intention to avoid it, that they elected to avoid the sale only by instituting the suit and that consequently no decree for mesne profits for the period prior to the institution of the suit could be passed in their favour. I have explained in Hanuman Prasad v. Indrawati : AIR1958All304 , what is meant by an alienation by a Hindu widow being voidable after her death.
If the absolute title did not pass to the appellants under the sale, the title to it would have vested in the respondents immediately on the widow's death and the appellant's possession would have become unlawful and they would have become liable for mesne profits from that time. It is not necessary for the next reversioner to serve a notice upon the alienee that he intends to treat the alienation as void. In : 2SCR655 , mesne profits for the period commencing from the date of the widow's death were allowed to the nextreversioner. So there is nothing wrong with this part of the decree.
27. There was a small controversy about the exact consideration of the sale. The ostensible consideration was Rs. 20,000/-, Rs. 17,450/-were paid in cash at the time of the registration and Sher Singh admitted having received Rs. 2,550/- previously. This was the amount of earnest paid by the appellant's father, evidence of which was given by Ram Nath . The trial court disbelieved his evidence, because there was no documentary evidence and the sale deed does not explain when the amount was paid. I do not think the non-mention of the payment of earnest in the sale deed was conclusive. How the consideration was received was not required by any law to be stated in the sale deed.
At the time of the registration the executants did say that they received the amount earlier; it is hypercritical to say that they did not say that it was received as earnest. The appellants* father was a respectable man; he was a Magistrate. He would not have told a falsehood for the sake of Rs. 2,550/- only. All the attesting witnesses of the sale deed are dead except Kallu, who has stated that the sale was for Rs. 20,000/-, It must be held that the sale was for Rs. 20,000/-.
28. I would allow the appeal, dismiss the cross objection set aside the decree passed by the trial court and dismiss the suit of the respondents with costs of both courts.
N.U. Beg, J.
29. I agree.