1. The defendant-appellant Mahadeo Prasad is the vendee of a house from a Hindu widow Mt. Tulsha. The sale to him was made with the consent of the nearest reversioner Lalai. The plaintiff sued as next reversioner after Lalai, who having consented to the sale deed is disqualified from suing. The only relief granted to him by the Court below is a declaration that the sale-deed will not be binding on the reversioners other than Lalai after Mt. Tulsha's death. The plaintiff's right to this relief was contested in both the Courts below on the ground that the sale was for legal necessity and with the consent of Lalai, the next presumptive reversioner. Both Courts have found that the sale was not for legal necessity. The defendant has pressed his appeal to this Court on two grounds:
1. That the house was the sole property possessed by the deceased, and that the sale under the Privy Council ruling in Rangasami Goundan v. Nachiappa Goundan AIR 1918 PC 196 comes under the doctrine of surrender, and no question of legal necessity arises.
2. That in any case the consent of the nearest reversioner raised a presumption of legal necessity which has not been rebutted.
2. To the first plea there are two fatal objections. In the first place it was never urged in the Courts below that this house was the sole property inherited by the widow, and there is no finding to that effect. It is not open to the appellant to put forward in second appeal a new plea involving an issue of fact for the determination of which there are no materials on the record. In the second place we are unable to accept the interpretation placed by the learned advocate on the Privy Council judgment. It is true that there is one sentence in the body of the judgment which may appear to favour that interpretation, but when their Lordships come to sum up the principles established by the decided cases they limit the case of an alienation which operates independently of any question legal necessity to an alienation by the widow of her whole interest in favour of the next reversioner or reversioners at the time of the alienation. They definitely lay down that in the case or an alienation of either the whole or part of the estate the consent of the reversioners interested in disputing the transaction affords a presumption of the validity of the transaction which holds good until rebutted. The very same argument which has been advanced by the appellant in this case was put forward and rejected in Harihar Prasad v. Udai Nath Sah AIR 1923 All 190. In that case there was a gift to the entire estate with the consent of the next reversioner.
3. The second plea does not arise. The case has not been decided on the burden of proof but on a definite finding by both Courts that no legal necessity existed. The learned Judge of the Court below was alive to the presumption raised by the consent; of the next reversioner, for he cites in his judgment the case of Ghisiawan Pande v. Raj Kumari AIR 1921 All 33 where the question of the presumption arising from the consent of the reversioner was considered, but was held to be insufficient where there was definite evidence which negatived the existence of legal necessity. That is exactly the position which arises in the case before us. We accordingly dismiss the appeal with costs including fees on the higher scale.
4. The cross-objections put forward by the respondents have not been pressed and are also dismissed with costs including fees on the higher scale.