1. This is an appeal from, an order of the Additional Judge of Gorakhpur modifying a decree of the Additional Subordinate Judge of that District. The facts of the case are that one Achhaibar died leaving a widow Musammat Gulzarj and two daughters Musammat Lanji and Musammat Batka. Musammat Gulzari succeeded to her husband's estate which consisted of shares in two villages Katarua and Baldiha. She executed a deed of gift in respect of the Katarua property in favour of her two daughters in equal shares and their names were entered accordingly in the revenue papers.
2. The share in Mauza Baldiha had been mortgaged by Achhaibar. After the death of their mother the two daughters redeemed this mortgage, paying equal shares of the mortgage-money. On the 15th August, 1918, Musammat Lanji died, and after some litigation in the Revenue Courts the name of her daughter-in-law, Musammat Sitman, was recorded as proprietor of half the property in both the villages. The suit out of which this appeal arises was brought by Musammat Batka against Musammat Sitman for recovery of possession of one-half the property in both Katarua and Baldiha and for mesne profits.
3. The plaintiff's case was that on the death of her sister Musammat Lanji she was the only surviving heir of her father Achhaibar. The defence so far as Mauza Katarua was concerned was that the plaintiff had consented to the deed of gift executed by their mother under which each daughter had obtained a half share in the property, and was now debarred, from bringing a suit with regard to it. The Baldiha properly had been redeemed by the two daughters jointly, mutation had been effected in the names of their sons against their respective shares and the plaintiff was not entitled now to disturb this family arrangement. The First Court held that the plaintiff's consent implied by her taking the share of the property conveyed to her under the deed of gift did not amount to such a ratification of the transfer as would debar her from suing as soon as the succession opened. He, therefore, found that as the plaintiff had failed to prove that the share of the mortgage-money for Baldiha had been paid out of the profits by Musammat Lanji the plaintiff was bound to re-pay it to her and on doing this was entitled to a decree.
4. On appeal, the learned Additional District Judge held on the authority of Mahabir Prasad Singh v. Mata Prdsad: 63 Ind. Cas. 721 : 19 A.L.J. 799 : 3 U.P.L.R. (A.) 134 : 44 A. 44; (1922) A.I.R. (A.) 297 that the plaintiff had consented to execution of the deed of gift and was estopped from subsequently challenging it. The finding of the First Court with regard to the property in Mauza Baldiha was not disputed in that appeal.
5. The present appeal relates only to the Katarua property though there is a cross-objection with regard to Mauza Baldiha. It is contended that the deed of gift executed by Musammat Gulzari could only have the effect of accelerating the vesting of the estate in her daughters and could confer no absolute title on them. Musammat Gulzari had only a life-interest in the property and could give no better title than she herself possessed. It is conceded that if the plaintiff had taken part in the execution of the deed she might have been debarred from challenging it, but the mere fact that she took under it the share which would have come to her in any case when her mother died, does not preclude her from asserting her right to the whole property now.
6. The deed of gift purports to convey the property in Mauza Katarua which had belonged to the donor's husband Achhaibar to her daughters in equal shares 'as heirs according to the Shastras'. It is admitted that they at once entered into possession and obtained mutation. The question is whether this conduct is tantamount to such a consent as would operate to estop the plaintiff from claiming the whole property on her sister's death. The ruling quoted by the learned Judge and a later Full Bench decision of this Court in Fateh Singh v. Rukmini Dewanji Maharaj 72 Ind. Cas. 8;. 21 A.L.J. 235 : 45 A. 339; (1923) A.I.R. (A.) 387 have both affirmed the principle that a reversioner in whose favour the succession has opened cannot be permitted to challenge the validity of a transfer by a limited Hindu owner when before her death he has elected to hold the transfer good. It seems to me that in the present case the plaintiff by her conduct in taking her half share of the property and obtaining mutation in respect of it clearly indicated her approval of the entire deed of gift and cannot now be allowed to treat it as a nullity.
7. One argument addressed to this Court was to the effect that the defendant-respondent, Musammat Sitman, has no locus standi in the case as she is not an heir of her mother-in-law. This argument proceeded on the assumption that Musammat Sitman's husband had predeceased his mother Musammat Lanji. No definite allegation to this effect was made in the plaint, while in the written statement there, is a clear assertion that Musammat Sitman's husband became the owner of the property by right of inheritance on his mother's death. No issue was framed on the point, and it does not appear to have been raised in either of the Courts below. This plea cannot be taken now.
8. No plea as to the property in Mauza Baldiha was taken in the Memorandum of appeal to the Court below and it does not appear from the judgment of that Court that the Subordinate Judge's finding on the point was disputed before him. In these circumstances the respondent is not entitled to contest this finding in second appeal. The result is that the appeal and cross-objection are both dismissed with costs including in this Court, costs on the higher scale.