1. The defendants are the appellants before me in this second appeal. The suit properties, a house and land, belonged to one Angammal, maternal aunt of the plaintiff. She gave them to the plaintiff and his brother Maria Pillai by a registered deed, dated the 25th of October, 1925, Ex. A. Maria Pillai is dead and the plaintiff is his heir. The plaintiff filed the suit within 12 years after the date of the gift. The defendants pleaded that the gift was fraudulent, whatever that might mean. They also pleaded that they were reversioners to Angammal. The: District Munsif found that neither Angammal nor her donees were in possession of the property within 12 years prior to suit and therefore dismissed the suit. On appeal the Subordinate Judge found that Angammal was in possession until the date of the gift deed and there was therefore no question of adverse possession. He also found that the gift deed was a genuine transaction intended to be given effect to, and given effect to and that the defendants are not reversioners of Angammal. On these findings he decreed the plaintiff's suit. The defendants filed this Second Appeal.
2. In Second Appeal it has been contended before me that the plaintiff being a mere donee from a Hindu widow possessing the limited interest of a widow in the properties, he has not got such a title after her death as would enable him to maintain a suit for ejectment. It seems to me that the opposite proposition is so well established that I have no hesitation in deciding against the appellant.
3. In Modhu Sudan Singh v. Rooke a Hindu widow made a putni lease of two villages. After the widow's death the reversioner accepted rent from the putnidar. The High Court found that, though the putni was void, the acceptance of rent constituted him a tenant from year to year and dismissed the suit. On appeal the Judicial Committee affirmed the High Court's judgment on an even stronger ground. They said:
It must be observed that the putni was not void: it was only voidable; the Raja might elect to assent to it and treat it as valid...The learned Judges of the High Court appear to have fallen into the error of treating the putni as if it absolutely came to an end at the death of the widow. . . . Their Lordships think (here is a sufficient prima facie case of an election by the Raja to affirm the validity of the putni.
4. They dismissed the appeal. In Bijoy Gopal Mukerji v. Krishna Mahishi Debi the suit was by a reversioner to recover property leased by a Hindu widow for a term of 60 years (which extended beyond her life) from the lessees. The suit was brought within 12 years. The High Court applied Article 91 and dismissed the suit. On appeal to the judicial Committee it was held that in such a case the reversioner has not got to set aside the transaction by the Hindu widow and Article 149 would apply. In describing the nature of a Hindu widow's estate Lord Davey said:
A Hindu widow is not a tenant for life, but is owner of her husband's property subject to certain restrictions on alienation and subject to its devolving upon her husband's heirs upon her death. But she may alienate it subject to certain conditions being complied with. Her alienation is not, therefore, absolutely void, but it is prima facie voidable at the election of the reversionary heir. He may think fit to affirm it, or he may at his pleasure treat it as a nullity without the intervention of any Court, and he snows his election to do the latter by commencing an action to recover possession of the property. There is, in fact, nothing for the Court either to set aside or cancel as a condition precedent to the right of action of the reversionary heir.
5. Ever since this decision, it has been generally regarded as defining the true nature of a Hindu widow's estate. It is not an estate for life in the sense in which that term is understood in the English law. It is not an estate terminable on the death of the widow. If she makes a gift or alienation otherwise than for necessity, neither the gift nor the alienation is void. It is true that the transaction will be useless against the reversioner, but as against all persons other than reversioners the gift or alienation is perfectly valid, and the donee or alienee can maintain an action against a person resisting him, provided he is not a reversioner and provided there is no question of limitation. It may be that the trouble may turn out to be a thankless task, for after the plaintiff succeeds in his action the reversioner may step in and take away the property from him. But he may not. There is nothing in law to compel the reversioner to take any action and so long as he is silent and has done nothing to treat the gift or alienation as a nullity the title of the donee or alienee continues even beyond the life-time of the widow. This is the ground of the decision of Sir Lawrence Jenkins, C.J., and Caspersz, J., in Kishori Pal v. Sheikh Bhusai Bhwiya (1909) 14 C.W.N. 106. There it was held that a transferee from a Hindu widow without any legal, necessity was entitled to maintain a suit for ejectment. The second appeal was first heard by Brett, J. He said:
Whether or not it was within the rights of the widow to transfer the entire interest in. the property sold, such a sale, under the law, cannot be held to be ipso facto void but it is only voidable at the instance of the reversioners. In the present case, there is nothing whatever in the judgments of the Lower Courts to indicate that the reversioners appeared in the suit or that they, in any way, showed that they wished to avoid the transaction. That being the case, 1 am of opinion that the view taken by the Lower Appellate Court is not correct and that for the purposes of the present suit, the plaintiff has sufficiently established his title.
6. There was a Letters Patent Appeal in which Sir Lawrence Jenkins, C.J., observed:
Now, how do the authorities stand? It seems to me that the matter is placed beyond doubt by what was decided and said in Bijoy Gopal Mukerji v. Krishna Mahishi Debi . It was there pointed out that an alienation by a widow, even though there may not be legal necessity or consent, was not void and could not be regarded as void, because it is- the established law that such transfer was capable of affirmation after the death of the widow, and that which is capable of affirmation cannot possibly be void. If not void, it is clear that the transfer even after the death of the widow had a qualified operation. It is quite true that to nullify such a transfer a suit is not necessary; disaffirmation would be sufficient. But as the transaction is capable of disaffirmation, so it is also capable of affirmation; and, while there is nothing decisive one way or the other, it seems to me that we cannot say that the transfer even after the death of the widow is incapable of operation as against a third party in the position, of the defendant-respondent in this appeal. I, therefore, agree with the conclusion at which Mr. Justice Brett has arrived.
7. In my opinion this case establishes that, where the reversioner is silent, a transferee from 'a Hindu widow, whether a donee or alienee, has got some qualified title to enable him to maintain a suit for ejectment. If I may humbly say so, I entirely agree with this decision and I think that the proposition is so well established that I regard the attempt to argue this appeal as rather a bold attempt on the part of the learned advocate.
8. The same conclusion was arrived at in Maharaja Kesho Prasad Singh v. Chandrika Prasad Singh I.L.R. (1922) Pat. 217. In that case there was a gift by a Hindu widow. Two of the reversioners did not dispute the gift after her death in 1880. But the third reversioner did not consent to the gift and sued to recover his one-third share and succeeded after going up to the Privy Council. The donee, Sheo Lochan Singh, sold the other two-thirds share to the plaintiff and he brought a suit to redeem two zarpeshgi mortgages effected by the widow and to which the properties were subject. One of the contentions in the appeal was that the interest of the plaintiff's vendor Sheo Lochan, although valid during the lifetime of the widow, terminated on the death of that lady notwithstanding that the reversioners of the two-thirds share have never from the year 1880, when the widow died, up to the present, elected to treat the transfer as void. After stating this contention, Dawson Miller, C.J., says:
It is not disputed that a sale or mortgage by a Hindu widow which purports to pass or hypothecate the absolute title is valid against every one except the reversioners and that unless the reversioners elect to treat it as a nullity it subsists as against every one else, In the present case the gift as to the two-third share was never challenged by the reversioners interested in that share. It is argued, however, that a gift stands on a different footing from a sale or mortgage and certain authorities have been relied on in support of this contention. The general rule was clearly laid down by Lord Davey in delivering the judgment of the Judicial Committee in Bijoy Gopal Mukerji v. Krishna Mahishi Debi ...The alienation in question in that case was an ijara lease but there is nothing in the judgment to suggest that any other form of alienation would not come within the doctrine applied, and it is difficult to see upon what principle a distinction can be drawn between a gift and any other form of transfer.
9. He then refers to a number of cases and observes:
None of these cases, however, in my opinion form a guide to the determination of the exact question we are now called upon to decide. It is not a question between presumptive and remote reversioners. The question is whether a gift of the whole of her husband's property made By a Hindu widow, not challenged by the reversioners during her life-time and acquiesced in by those who would take a vested interest after her death can be challenged by any one else. In my opinion there can be only one answer to this question. It is the reversioners and the reversioners alone who can dispute the gift. If they choose to allow the property to which they are entitled to remain in the possession of the donee that is their affair and no one else can object. If the donee remains in possession under a claim of right for twelve years he will acquire an indefeasible title even against the reversioner.
10. He then discusses the decision in Naba Krishna Roy v. Hem Lal Roy (1905) 2 Cal. L.J. 144, where it was contended that the alienation must be first set aside before the reversioner can sue for possession. Then he observes:
Such expressions must be regarded in connection with the context and the subject-matter of the suit. It is, in a sense, permissible, though perhaps not strictly accurate, to say that the gift is void when considering ha validity as against the reversioner. He may treat it as a nullity and need not sue to have it set aside before claiming possession. The true view appears to be that it is not binding upon him and he can elect to treat it as a nullity and sue for possession at any time within twelve years of his interest becoming vested without first suing to have it set aside notwithstanding Article 91 of the Limitation Act. He may, on the other hand, elect to treat it as valid but no third person can claim his option or set up the plea that such a gift is void merely because it may have been but was not so treated by the reversioner. The judgment of the Calcutta High Court in Kishori Pal v. Sheikh Bhusai Bhuiya (1909) 14 C.W.N. 106 is, I think, an authority for this view. In my opinion the respondent's plea that the gift was void cannot be supported.
11. If I may humbly say so, I agree with every word of the above opinion of Dawson Miller, C.J. The words 'void' and 'voidable' have to be carefully used in connection with the rights of the reversioners as against a Hindu widow's alienations. A Hindu widow's gift or alienation without necessity is void as against the reversioner in the sense that he need not set it aside. A mere disaffirmation is enough. But such a transaction is also voidable in the sense that only a reversioner can treat it as a nullity and if he chooses to remain silent nobody else can question it and it therefore remains valid. The transaction has the character of a transaction which is not void as against the rest of the world. It has the character of a void transaction only as against the reversioner. It is unsafe to apply the word 'voidable' to such a transaction in the usual sense of the term. Hence all the confusion that now and then arises, if still such confusion exists after Lord Davey's judgment in Bijoy Gopal Mukerji v. Krishna Mahishi Debi . It is true that in Maharaja Kesho Prosad Singh v. Chandrika Prasad Singh I.L.R. (1922) Pat. 217 the donee's title to two-thirds became completely indefeasible on account of the acquiescence of the two reversioners for more, than 12 years, but the judgment does not rest on that ground. Even if the suit was filed within 12 years, the whole reasoning of Dawson Miller, C.J., applies. Mr. Lakshmanna relied on another decision in Harihar Ota v. Lokenath Misra (1905) 1 Cal. L.J. 408. There the plaintiff was the reversioner and it was held that Article 141 applied to the suit and that he need not sue to set aside the widow's sale. At page 416 Woodroffe, J., observes:
As I have pointed out, a Hindu widow stands midway between the cases I have referred to, having neither an absolute nor yet a life-interest in the property, but having a conditional authority only to absolutely dispose of it.
12. This sentence in my opinion correctly describes the position of a Hindu widow's estate. The further sentences that follow were used by Woodroffe, J., from the point of view of the reversioner. Expressions which suggest that the alienation is good for the lifetime only of the alienor and not valid beyond her death must be understood from the point of view of the reversioner. As, Dawson Miller, C.J., observes in Maharaja. Kesho Prasad Singh v. Chandrika Prasad Singh I.L.R. (1922) Pat. 217,
such expressions must be regarded in connection with the context and the subject-matter of the suit. It is, in a sense, permissible, though perhaps not strictly accurate, to say that the gift is void when considering its validity as against the reversioner.
13. I do not think the decision in Harihar Ota v. Lokenath Misra (1905) 1 Cal. L.J. 408 helps the appellant. The case of Ghansham Singh v. Teg Bahadur Singh (1911) 9 A.L.J. 496 also, in which the suit was by a presumptive reversioner for a declaration, has no bearing on the present question. The case in Dashrath v. Tarachand (1927) 10 N.L.J. 216 is a case of a donee on the one hand and an alienee for consideration on the other. In that case the defendant was not a person who had no title of any kind in the property. It is unnecessary for me either to agree with that decision or dissent from it at present. It is distinguishable and cannot help the appellant in this case.
14. The learned advocate for the appellant then relied on a group of cases which seem to hold that a will by a widow does not confer such title on a devisee as to maintain a suit for ejectment. The first decision so relied on is a decision of my brother Wallace, J., in Srinivasachariar v. Raghavachariar : (1924)46MLJ560 That decision does not apply to the case of a gift or alienation intended to be operative during the widow's lifetime. Either the case of a will stands, on a different footing from that of a gift or alienation--then this decision must be distinguished on that ground--or there is no distinction on principle between a will and a gift or alienation--then this decision must be regarded as erroneous. I am inclined to be of the latter opinion. But it is unnecessary for me to say so for this case. It is enough for the decision of this case to say that cases of gifts or alienations are so clear having regard to the decisions I have cited above that they cannot be. disturbed by any decision relating to a will. I am unable to see any distinction on principle between the case of a will and that of an alienation, if we start with the position that a Hindu widow's estate is not a life-estate as Lord Davey has said. The decision in Durga Sundari v. Ramkrishna Poddar (1913) 18 C.L.J. 162, does not really support the decision in Srinivasachariar v. Raghavachariar : (1924)46MLJ560 . In that case (Durga Sundari v. Ramkrishna Poddar (1913) 18 C.L.J. 162) obviously defendants 2 to 5 were the reversioners and the property had been treated as theirs in the prior transactions. A devisee from the widow preferred a claim and it was held by N. Chatterjee, J., that his claim did not prevail. On Letters Patent Appeal Sir Lawrence Jenkins, C.J., and Mookerjee, J., dismissed the appeal. It cannot be said that Sir Lawrence Jenkins, C.J., intended to differ from his former view in Kishori Pal v. Sheikh Bhusai Bhuiya (1909) 14 C.W.N. 106, whether it is a will or a gift or alienation, as against the reversioners it is a nullity. Some of the defendants in Durga Sundari v. Ramkrishna Poddar (1913) 18 C.L.J. 162 were the reversioners. It is not that a will stands on a lesser footing than a gift or alienation. In Palchur Mahalakshmamma v. Vemi Reddi Babu Reddi (1922) 44 M.L.J. 60 referred to in Srinivasachcuriar v. Raghavachariar : (1924)46MLJ560 it was not argued for the appellant that the will by the widow was valid against persons other than the reversioners. If that contention had been expressly raised, I think a different view would have prevailed. The head-note shows that the only point that was argued was that the appeal having been allowed by an earlier order to continue, the objection that it abated cannot be taken at a later stage. If the decision cannot be so distinguished, I ,am now inclined to dissent from it. The decision in Raghava Mudaliar v. Narayanaswami Mudaliar (1893) 4 M.L.J. 88 is of no value after the decision of the Privy Council, Bijoy Gopal Mukerji v. Krishna Mahishi Debi and must be regarded as overruled by it. Anyhow Wallace, J.. himself in Srimvasachariar v. Raghavachariar : (1924)46MLJ560 recognises that the case of a transaction during the lifetime of the widow intended to take effect inter vivos stands on a different footing. The case in Prafulla Kamini Roy v. Bhabani Nath Roy I.L.R. (1925) C. 1018 is a case where the conflict is between a donee from a widow and the reversioner and such a case cannot be affected by the principle of Bijoy Gopal Mukerji v. Krishna Mahishi Debi . In my opinion, the matter is so plain that this appeal must be dismissed.