1. The main point for decision is whether the faces that the defendants and the deceased father of one defendant, were attesting witnesses; that one of the defendants purchased the stamp-paper and that another identified the widow before the Sub-Registrar and that the deed recites that the money was taken for the defendants' benefit, establish in law that the deed is binding upon the defendants. I note at the beginning my conclusion that the lower Appellate Court took into consideration all the evidence before it and that its judgment is not vitiated by any omission to consider the evidence. The case presents no difficulty. The decision of their lordships of the Privy Council in the comparatively recent case or Rungaswami Gounden v. Nachiappa Gounden 50 Ind. Cas. 498 : 42 M. 523 : 46 I.A. 73 : 17 A.L.J. 526 : 36 M.L.J. 493 : 29 C.L.J. 539 : 21 Bom. L.R. 640 : 23 C.W.N. 777 : (1919) M.W.N. 262 : 26 M.L.T. 5 : 10 L.W. 105 has laid down very clearly me principles upon which a Court muse consider consort of reversioners toward, the validation of a deed executed by a Hindu widow transferring the property in which she has a widow's estate.
2. The point is discussed very fully in that decision. The consent of reversioners to an alienation such as this merely affords evidence that the alienation was under circumstances which render it lawful and valid. In other words, the consent of the reversioners is evidence of legal necessity. It will depend upon the circumstances of the case whether it is sufficient evidence or insufficient evidence, but the point, in so far as a Court of second appeal is concerned, is this: ordinarily, it will not be for a Court in second appeal to decide on the matter. It will be for the lower Appellate Court to determine whether such evidence is sufficient or not. That determination will depend upon the nature of the consent and on many other factors. The lower Appellate Court after examining the evidence has found that the circumstances upon which the learned Counsel for the appellants has rightly laid stress in the interest of his clients are insufficient to justify the conclusion that there was legal necessity. That finding cannot be assailed in second appeal. This concludes the matter. I am, therefore, in favour of dismissing this appeal with costs.
3. I agree. The consent of the immediate reversioners at the time of the transfer would, in the absence of evidence to the contrary, be only a presumptive proof of legal necessity, but the legal necessity relied upon must be such as would, justify a transfer under the Hindu Law. On the face of it, in this particular case the necessity for which the money was advanced was the payment of a decree against the reversioner. This obviously was not such a necessity as would justify a transfer by a Hindu widow.
4. In the present case no question of estoppel really arises. The learned District Judge has found that, besides the fact that the defendants appear as marginal witnesses to the deed, 'there is no other evidence on the record that the reversioners actually consented to Ganga Koer's alienating the property or that they had asked Ganga Koer to, mortgage the property and to help them to pay off the debt.' He has also justly remarked that the mere fact of attestation does not raise any presumption that the attesting witnesses were aware of the contents of tie document. On his finding that the present defendants did not actually consent to the alienation no question of estoppel as against them arises, nor are they bound by anything done by Debi Prasad through whom tiny do not claim.
5. The result is that we dismiss this appeal with costs. The defendants-respondents will not be allowed to execute the decree until they have made good the deficiency of Rs. 5. When they, have done so, they, will be allowed to add the amount as costs.