1. The appellants before us were the defendants in cavil suit No. 59 of 1954 of the Court of Civil Judge, Class II, Chhinclwara, out of which this appeal arises. The defendants had come up in second appeal against the concurrent decrees of the Courts below granting to the plaintiff-respondent Begambai possession of the property covered by the sale deed executed by Mst. Danno in their favour. That appeal was heard by Tambe, J. and was dismissed. The defendants have therefore preferred this Letters Patent Appeal against his decision.
2. The facts which are not in dispute are these : One Lalsingh had two wives, Mst. Purno and Mst. Danno. The plaintiff Begambai is the daughter of Mst. Purno. Mst. Danno had a daughter Mst. Shivrati and a son Kanhaiya. Mst. Purno died in the year 1920, Lalsingh on 11-12-1929, Kanhaiya in 1930, Mst. Danno on 9-11-1951, and Mst. Shivrati in 1952. Lalsingh left a house in mouza Loni Kala and certain fields in mouza Loni Kala and mouza Pachagaon. On his demise the property devolved upon his son Kanhaiya, and on the latter's death it devolved upon Mst. Dan-no.
Mst. Danno transferred all the property left by her and out of the sale proceeds purchased certain fields situate in mouza Ponia, mentioned in Schedule C attached to the plaint. These fields were sold by her to the defendants on 14-4-1951. After her demise the plaintiff as the next reversioner filed the present suit for possession of the said fields. Her contention was that these fields assumed the character of Lalsingh's property and accordingly the sale by Mst. Danno thereof was not binding upon her.
3. The defendants did not specifically plead legal necessity for the transfer of the fields in their favour. That question, however, appears to have been litigated and was negatived by all the Courts. In fact, as appears from the judgment of the learned Single Judge, it was conceded before him that the transfer in favour of the defendants was without legal necessity. So far as that part of the case is concerned, therefore, it is finally settled.
4. The only point that requires consideration is the nature of the fields at Ponia in the hands of Mst. Danno. It was contended that the right that the plaintiff had was to challenge the sale of the properties left by Lalsingh and that she had no right to question the alienation of the fields acquired from their sale proceeds. It is no doubt true that the plaintiff could also challenge the alienation of the properties left by Lalsingh, and, not having done so that alienation must be held to be good. That, however, does not solve the question about the nature of the property acquired from their sale proceeds.
5. This is apparently a case where the entire property left by Lalsingh was converted into another property. In effect, therefore, it is a case of substitution of one property for another. In such a case the property that is acquired partakes of the nature of the estate for which it has been substituted : Ayyangouda v. Gadigeppagouda, AIR 1940 Bom 200. This proposition was however contested on the authority of Ramayya v. Mahalakshmi, AIR 1922 Mad 357, Mahna Singh v. Thaman Singh, AIR 1930 Lah 1010, and Sitaji v. Bijendra Narain, AIR 1954 SC 601.
6. In AIR 1922 Mad 357 (cit. sup.) Swarnam had made a will in favour of her co-widow Thailammai in respect of the property bequeathed to her by her husband. Only a life interest was created by her in favour of Thailammai, but she purported to dispose of for value certain property to the third defendant in excess of her life estate. In that case the question was whether the properly alienated by her formed part of her husband's estate. Their Lordships held that the presumption in the case of properties acquired by Hindu widows and life-tenants is that they are self-acquisitions and the onus is on those who assert the contrary. It will be observed that such a presumption would arise only in the absence of known facts. Here, however, the facts are known, and therefore this decision does not solve the present question.
7. In AIR 1930 Lah 1010 (sup.), a widow had purchased certain properties by raising money partly by mortgaging her husband's estate and partly by mortgaging the properties that she acquired. The major portion of the consideration was known to have been raised by mortgage of the acquired properties. The question arose whether the remaining consideration was supplied by her from the money raised by mortgage of her husband's estate and secondly, if that was done, whether the properties acquired by her would partake of the nature of her husband's estate. Their Lordships observed that there was nothing on the record to find out whether any part of the money raised by mortgage of her husband's estate was paid towards the sale consideration. However, they also held that even if that was done the properties that were acquired by her would still remain her self-acquisition. It will be observed that since only a small portion of the sale consideration was raised by her with the aid of her husband's estate and the major portion was raised on the mortgage of her self-acquired properties her intention to treat the properties that she acquired as her self-acquisition was patent. It does not also appear that she was not able to pay off the money that she had raised by mortgage of her husband's estate. Therefore, no part of her husband's estate was lost for acquiring the new properties.
It was in these circumstances that the estate acquired by her was held to be her self-acquisition. Here, the entire sale consideration has come from the sale proceeds of the husband's entire property, and that makes a vital difference to the case.
8. AIR 1954 SC 601 (cit. sup.), lays down nothing more than what is the accepted law as regards the presumption about the nature of the properties found in the hands of a widow. That law is that there is no presumption that any particular property in her hands is part of her husband's estate, the reason being that the widow can have properties of her own. The case that their Lordships were considering was of acquisition of property by a Hindu widow from the income of her husband's estate.
As she had an absolute right to that income, the property acquired by her from that income did not necessarily make the acquisition an accretion to her husband's estate. It was therefore open to her either to keen it as her own property or to augment her husband's estate thereby. Under those circumstances their Lordships held that the burden of proving that it was an accretion to her husband's estate lay upon those who made that claim.
Here, the intention of Mst. Danno would not matter, because she had no absolute right to the sale proceeds of her husband's properties. Accordingly, we see no reason why the properties that she acquired in substitution for her husband's estate should not partake of its character.
9. It was contended before us that as the sale in favour of the defendants was acquiesced in by Mst. Shivrati the plaintiff cannot challenge the alienation. No such plea was raised in the written statement nor urged before the Courts below. That contention, therefore, has no basis and cannot be raised before us.
10. The result is that the appeal fails and isdismissed with costs.