1. This appeal arises out of a suit to set aside a sale-deed executed by Mst. Shib Dei the mother of the plaintiff in the year 1909. Mst. Shib Dei inherited the property in suit from her father. Prior to this transaction she bad married and had become a widow. Prior to the deed in suit she had entered into a karao marriage with a second husband. At the time when the deed was executed she had no children, but a son, the plaintiff, was subsequently born to her. At the time of the transaction the presumptive reversioner was one Hans Ram. The sale-deed was executed in favour of Hans Ram's son Rati Ram.
2. In both the Courts below a case was put forward on behalf of the plaintiff that the deed was obtained from Mst. Shib Dei by fraud. This case has been rejected by both Courts and is now abandoned. The second defence is that the deed was executed without legal necessity. On behalf of the defendants it was objected that the plaintiff was incompetent to challenge the deed on the ground that ha was born after its execution. This plea has also now disappeared. The plaintiffs right to challenge it clearly depends on whether the deed was valid at the time of its execution. An issue was framed on the question of legal necessity but neither Court has come to a finding on it. The Courts have held that the deed was valid on the ground that it was executed with the consent of the next presumptive reversioner and that this dispenses with the necessity for proving legal necessity.
3. Now it has been held by the Privy Council in Rangasami Goundan v. Nachiappa Gowndan 50 Ind. Cas. 498 : 46 I.A. 72 : 36 M.L.J. 493 : 17 A.L.J. 536 : 29 C.L.J. 539 : 21 Bom. L.R. 640 : 23 C.W.N. 777 : (1919) M.W.N. 262 : 42 M. 528 : 26 M.L.T. 5 : 10 L.W. 105 (P.C.), that the consent of the nearest reversioners does not constitute absolute proof of the validity of the deed but that it operates by raising a presumption that the deed was executed for legal necessity. Following this principle it has been held that no consent of reversioners can validate a deed of gift because in such a case there can be no legal necessity Abdulla v. Ram Lal 12 Ind. Casa. 601 : 34 A. 129 : 8 A.L.J. 1318. It has also been held in an Oudh case decided by Mr. Scott and Sir Edward Chamier Deputy Commissioner of Sitapur v. Ausari Singh 9 O.C. 104 that where the presumptive reversioner was a man of over eighty his consent was not sufficient to dispense with other evidence. Similarly, it appears to me that where the transaction is in favour of a person having a direct interest in obtaining it, i.e., of the presumptive reversioner himself or as in the present case of his son, the presumption of the transaction being a proper one disappears. The deed in the present case being in favour of the son of the person whose consent is relied on, it was, in my opinion, necessary to offer other evidence in proof of the legal necessity. Evidence on this point was tendered but as no finding has been arrived at by the Court below I remit an issue under Order XLI, Rule 25. Was the deed in suit executed for legal necessity?
4. The finding should be submitted before the Judge's Court vacation. On receipt of the finding ten days will be allowed for objections.