Brett and Gupta, JJ.
1. The present suit was brought by the plaintiff Rai Thakurmani Singh Bahadur on a mortgage bond executed in his favour on the 25th October 1890 by Mussumat Daimani Koeri, the elder of two widows of Babu Mshendra Narayan Singh, deceased. The case for the plaintiff was that Babu Mahendra Narayan was heavily involved in debt at the time of his death, and that he left him surviving his two widows Mussumat Daimaui Koeri and Mussumat Dai Rani Koeri and no children. The two widows, who took a joint estate in his property, partitioned it and the debts between them. After the partition, Mussumat Daimani borrowed Rs. 500 and Rs. 1,000 from Babu Balajit Singh, and on the 25th March 1888 executed two mortgage bonds for those sums in his favour. The money covered by these two bonds was, it was alleged, borrowed for legal necessity,
2. The Rs. 500 was male up of a sum of Rs. 150 borrowed to carry on litigation connected with M. Thalba, one of the properties left by her husband, and two sums of Rs. 200 and Rs. 150 were borrowed for a similar purpose to protect another property, M. Makrooi, and to pay legal expenses in connection with proceedings in execution of a decree of Audh Narayan Singh.
3. The sum of Rs. 1,000 was made up of the following items : Rs. 412-8 was to pay off the balance of a debt due from her husband to Audh Narayan Singh, the father-in-law of defendants Nos. 2 and 3, and Rs. 400 was paid to the defendants Nos. 2 and 3 to recover from them M. Makrooi. which had been sold for arrears of revenue and which they had purchased, and Rs. 187-8R was to pay Government revenue on other estates.
4. On the 25th October 1890 the debt on the two mortgage bonds executed in favour of Babu Balajit Singh, had amounted to Rs. 2,400, and in order to pay off that sum as well as Rs. 40l due to defendants Nos. 2 and 3 under a decree, which they had obtained against her, and also to pay off Rs. 987 due to one Chaman for money borrowed on her behalf by her brothers Bajrangi and Sri, and to pay the expenses of the bond amounting to Rs. 12, Mussumat Daimani Koeri borrowed Rs. 3,800 on execution of the mortgage bond now sued on from the plaintiff through his father Kanhai Thakur, who was his benamidar. Subsequently Kanhai Thakur, on the 22nd December 1902, executed an ekrarnama in favour of the plaintiff admitting that he was the real mortgagee.
5. The due date was the 30th November 1891. The present suit was instituted on the 1st December 1903. The sum due on the mortgage bond was stated to be Rs. 23,671-9, but the suit was brought for Rs. 11,495 only.
6. The suit was brought against Mussumat Dai Rani, the surviving widow, as defendant 1st party, Chakrapan Singh, the son, and Babu Jekh Narayan Singh, the grandson of Babu Bish Nath Singh, brother of the deceased husband of Mussumat Daimani Koeri as defendants 2nd and 3rd party, who are the reversioners to the estate of Babu Mahendra Narayan Singh, and the subsequent purchasers of portions of the mortgaged property as defendant 4th party. Hari Singh, another purchaser, was added as a party defendant on the 30th January 1904.
7. On an objection by the defendants Nos. 2 and 3, Chetmoni Singh, minor grandson of the plaintiff, was added as a plaintiff, on the 30th January 1904.
8. Mussumat Daimani Koeri died in Kartic 1300F., that is to say, before the institution of the present suit.
9. Defendants 2nd and 3rd party were the real contesting defendants in the Court of the Subordinate Judge. The main grounds taken by them in their defence were, first, that the debt?, for which the mortgage was executed, were not contracted for legal necessity and so were not binding after the death of Mussumat Diamani Koeri on the estate of the deceased Babu Mahendra Narayan Singh, either in the hands of the surviving widow Mussumat Dai Rani or in the hands of the reversioners, and, secondly, that Mussumat Daimani Koeri, being one of two joint widows, was unable to alienate or mortgage any portion of the property left by the husband, so as to affect the interest of the co-widow or of the reversioners, without the consent of the co-widow, even though the alienation might have been for legal necessity.
10. The Subordinate Judge held that the sums of Rs. 400 and Rs. 412-8 covered by the original mortgage bond to Babu Balajit Singh, executed on the 25th March 1883, were debts incurred for legal necessity, and that ordinarily the plaintiff would have been entitled under his bond to a decree for those sums. But he also held that, as the estate, which the two widows took, was a joint life estate, they were entitled only to the profits of the estate, but had no power to deal with the estate independently of each other. Belying on the cases of Bhugwandeen Doobey v. Myna Baee (1868) 11 Moo. I.A. 487 : 9 W.R P.C. 23, Gajapathi Nilamani v. Gajapathi Radhamani (1877) I.L.R. 1 Mad. 290 : L.R. 4 I.A. 212, and Ram Piyari v. Mulchand (1884) I.L.R. 7 All. 114, he held that the two widows were in the strictest sense coparceners, and that as between undivided coparceners there can be no alienation by one without the consent of the other, therefore the mortgage by Daimani without the concurrence of Dai Rani was not binding on the joint estate, so as to affect the interest of the co-widow. He therefore held that the plaintiff was not entitled to a decree for the sale of any of the properties in suit and accordingly dismissed the suit.
11. Plaintiff has appealed Before however dealing with the arguments, it is necessary to set out the following facts. After the death of Babu Mahendra Narayan, the two widows Daimani and Dai Hani took out a joint certificate to collect the debts due to the deceased and subsequently executed deeds of sale (Exhibit 0, dated 11th August 1885, Exhibit G of the same date, and Exhibit F of the 4th July 1886), by which the two jointly sold portions of the property left by their husband to pay off his debts.
12. On the 22nd April 1887, the co-widow Daimani, defendant No. 1, executed a deed of gift, Exhibit A, conveying her share in the property left, by Mahendra Narayan to Chakrapan Singh, defendant No. 2, and Madhusudan Singh, his brother, who was the father of Babu Jekh Narayan Singh, defendant No. 3, but who died before the institution of the suit. All she reserved to herself was a right to receive Rs. 25 from them as maintenance.
13. From that time there was a split in the family, the reversioners Madhusudan and Chakrapan being opposed to the widow Daimani Koeri. Daimani Koeri was assisted by her brothers Bajrangi and Sri. The plaintiff's story is that Daimani Koeri was driven to incur expense and debt by the persecutions of Madhusudan and Chakrapan, who wanted her to make over to them her share in the estate in the same way as Dai Rani had done, while the defendants' version is that the brothers of Daimani ran into debt through extravagance, and Daimani borrowed money on mortgages to pay off their debts.
14. By virtue of the execution of the deed of gift in their favour by Mussumat Dai Rani on the 22nd April 1887, the reversioners Madhusudan and Chakrapan regarded themselves 'as proprietors, possessors, heirs and representatives of a half share in the moveable and immoveable properties left by Babu Mahendra Narayan Singh,' and so represented themselves in a deed of sale (Exhibit D), which they executed jointly with Mussumat Daimani on the 27th April 1891 of certain property belonging to the estate of Babu Mahendra Narayan in favour of Babu Sheo Govind Bajpai and others.
15. And on the 2nd May 1888, they sued Daimani alone to recover by sale of her half share in M. Salahin, one of her husband's properties, a debt incurred by Babu Mahendra Narayan to their father, thereby treating that half share as liable for sale separately in satisfaction of the debt, and obtained a decree against her on the 30th July 1888.
16. In support of the present appeal it has been argued (1) that the Subordinate Judge has erred in law in holding that the mortgage executed by Mussumat Daimani Koeri in favour of the plaintiff-appellant was not binding on the property hypothecated, whether in the hands of the co-widow or of the reversioners, and (2) in holding that two only of the debts paid off by the money obtained from the defendants under the mortgage to them were incurred for legal necessity.
17. It has first been argued broadly on the authority of the case of Janoki Nath Mukhopadhya v. Mothura Nath Mukhopadhya (1883) I.L.R. 9 Calc. 580 and on the case of Dal Koer v. Panbas Koer (1904) 8 C.W.N. 658 that one of two widows is entitled to enforce, for the purpose of enjoyment of her share of their joint estate in the property of their deceased husband, a partition of the estate with the co-widow; and on the authority of the decision of the Privy Council in the case of Sundar v. Parbati (1889) I.L.R. 12 All. 51 : L.R. 16 I.A. 186 that where two Hindu widows are in lawful possession of the property of their deceased husband, such estate, being joint, is also partible and either widow may maintain a suit for possession.
18. And it is further argued on the authority of the case of Kalliyana Sundaram Pillai v. Subba Moopanar (1902) 14 M.L.J 139 that where, as in the present case, there has been a partition by consent, one widow can, for legal necessity, alienate her share in the estate without the consent of the co-widow.
19. It is contended that the present is distinguishable from the case of Sri Gajapati Radhamani Guru v. Maharani Sri Pusapati Alakarajeswari (1890) I.L.R. 16 Mad. 1 : L.R. 19 I.A. 184, on which the Subordinate Judge relies, as in that case the senior of two widows executed a mortgage not only by herself and without the consent express or implied of the junior widow, but in repudiation of her right as a co-widow, which she was disputing at the time and also from the case of Bhugwandeen Doobey v. Myna Baee (1868) 11 Moo. I.A. 487, 9 W. R.P.C. 23. For the respondents reliance is placed on the decisions of the Privy Council in the case of Gajapathi Nilamani v. Gajnpathi Radhamani (1877) I.L.R. 1 Mad. 290 and in Bhugwandeen Doobey v. Myna Baee (1868) 11 Moo. I.A. 487 9 W.R.P.C. 23, on the decision of the Allahabad High Court in the case of Ram Piyari v,. Mulchand (1884) I.L.R. 7 All. 114 and on the following decisions of the High Court of Madras, Ariyaputri v. Alamalu (1888) I.L.R. 11 Mad. 304 and Vadali Mamidi Gadu v. Kotipalli Bamayya (1902) I.L.R. 26 Mad. 334, and it is broadly contended that the estate, which the two Hindu widows take according to the Mitakshara law by inheritance from their husband, is not several, but joint with rights of equal beneficial enjoyment and survivorship, that widows, who take such a joint inheritance, have no right to enforce an absolute partition of the estate between themselves; the most they can do is to effect by mutual consent a division of the possession of the property for peaceful enjoyment of an equal share of the profits and benefits of the estate. They have no right to enforce a partition of the title to the different properties between them. No alienation of any portion of the property can be made by one widow without the consent of the other so as to injuriously affect the interests of that other by survivorship or the interests of the reversioners.
20. The facts of the present case do not, however, appear to bring it within the broad principles contended for by the different parties. In this case Daimani, when she executed the mortgages in favour of Babu Balajit Singh and afterwards the mortgage to the plaintiff, was not one of two widows in joint possession of the property of her husband. On the husband's death on the 30th Kartik 1292, it is true the two widows Daimani and Dai Rani took a joint estate in the property of the husband and for some time remained in joint possession, but by arrangement between themselves they afterwards divided the property between them. Whether under the law they had the power to partition the title, as well as the possession of the properties, Section 8 of minor importance in this case. There can be no doubt that from Dai Rani's subsequent conduct she regarded the partition as one of the title as well as of the possession, for, on the 22nd April 1887 she made by gift an absolute alienation of her share in the estate to the reversioners Madhusudan and Chakrapan, reserving to herself a right to Rs. 25 only as maintenance. Whether that alienation would, in law, have prejudicially affected the right of Daimani by survivorship it is not necessary to determine-It is sufficient to mention that the reversioners accepted that gift and treated it as an absolute transfer to them of possession - and title and acted on that position when, on the 27th April 1891, they joined with Daimani in executing the deed of sale (Exhibit D), and when on the 2nd May 1883 they sued Daimani separately to recover from her by sale of her interests in a property of her husband the half share of a debt contracted by her husband with their father.
21. In joining in the execution of the deed of sale the reversioner certainly cannot be regarded as having occupied the position of a co-widow holding a joint estate with Daimani; and in suing Daimani separately they clearly proceeded on the assumption that thera was a partition between the widows not only of possession of the property included in their husband's estate, but also of the title.
22. And this being the case, it is to be noted that it is the defendants Nos. 2 and 3, the reversioners, who are now the persons, who in this case contest the plaintiff's claim. If the effect of the deed of gift to them by Dai Rani was to destroy her widow's estate and at once to vest them with title as reversioners to half the property left by Babu Mahendra Narayan Singh, then, no doubt, they would have a right to contest the claim, though the basis on which they claim their right would preclude them from setting up as against the plaintiff the disability of one widow to alienate without the consent of the other.
23. They cannot be allowed to benefit by an alienation made in their favour by one widow and to dispute the plaintiff's right to recover the debt due on the mortgage executed in his favour by the other.
24. If on the other hand it be considered, as is suggested in the plaint, that Dai Rani, even after her gift to the reversioners of her share in the joint estate as divided between them, still retained her light by survivorship to the half share in the possession of Daimani on her death, then, as it is clear from her conduct that the arrangement, which she and Daimani made for the partition of the property between them, was intended, so far as each was concerned, to give to the other full power of alienation in the event of legal necessity, she cannot, as against the mortgagee, the plaintiff, during her lifetime dispute his right to recover under the mortgage executed 'by Daimani: see the case of Ramakkal v. Ramasami Naickan (1899) I.L.R. 22 Mad. 522. The result is that whether or not their Lordships of the Privy Council in the case of Sundar v. Parbati (1889) I.L.R. 12 All. 51; L.R. 16 I.A. 186 intended to lay down that the joint estate of two widows under the Mitakshara law is partible not merely as regards possession but also as regards title, which view has been accepted by the Madras Court in the cage of Kalliyana Sundaram Filial v. Subba Moopanar (1902) 14 M.L.J. 139, we are of opinion that the mortgage executed by Daimani is a valid mortgage and binds the property hypothecated under it so for as the interests of Mussumat Dai Rani and the reversioners are concerned to the extent that the debt was incurred for legal necessity.
25. It remains for us to determine what, if any, of the debts, which were paid off by the money borrowed from the plaintiff by Daimnni on the mortgage of her half share in certain of her husband's properties were contracted for legal necessity, and, in approaching the consideration of this question. it is impossible to ignore the fact that from the death of Babu Mahendra Narayan Singh up to April 1887, the two widows were peacefully in possession of the estate and were engaged in paying off the debts by deeds of sale executed by both jointly.
26. On the 22nd April 1887, Dai Rani executed the deed of gift of her half share in the estate to the reversioners Babu Madhusudan Singh and Babu Chakrapan Singh, and thereafter we find Daimani contracting the debts, which the plaintiffs allege were for legal necessity, and were due to the fact that the reversioners were in different ways endeavouring to put pressure on her so as to induce her to make over her share in the estate to them in the same way as Dai Rani had done.
27. It rests however on the plaintiff to prove that there was legal necessity for the debts.
28. First there are the three sums of money taken from Bahu Balajit Singh, which were covered by the mortgage bond for Rs. 500 executed on the 25th March 1888. The sums are said to have been borrowed (1) to cover legal expenses incurred in an appeal to the Commissioner to set aside the sale for arrears of revenue of M. Makrooi, which had been purchased by Pryag Lal Mukhtar, (2) to file objections in the execution case brought by Audh Narayan Singh, father-in-law of the reversioners. and (3) to save from sale another mauza called Thalba. It is not clear whether Pryag Lal was the benamidar of Mudhusudan and Chakrapan; but in the execution proceedings in the case of Audh Narayan the plea was distinctly raised that Audh Narayan was the benamidar of those two persons. The original decree-holder in the latter case was Mr. Patrick Duff and the decree was transferred by him to Babu Khawas, who assigned it to Audh Narayan Singh. It seems not improbable that the two reversioners Madhusudan and Chakrapan were mixed up to a certain extent in the proceedings connected with Makrooi and with the execution of Audh Narayan's decree. At the same time, as the Subordinate Judge has pointed out, there is nothing beyond the statement of Bajrangi, the brother of Daimani, to prove that these debts were contracted for the objects stated, and that they were for legal necessity. In respect of these debts then we agree with the Subordinate Judge in holding that the claim must fail.
29. Next, there are the three sums covered by the second mortgage bond for Rs. 1,000 executed in favour of Babu Balajit Singh by Daimani on the 25th March 1888. Rupees 400 is said to have been paid to the purchaser in order to get back M. Makrooi. This payment seems to have been satisfactorily proved, and we agree with the Subordinate Judge on this point and that this debt was contracted for legal necessity. The next item is Rs. 412-8 paid to discharge the debt of Audh Narayan Singh. It seems that in 1886 that debt had risen to Rs. 3,105-8 and that to pay it off the two widows, on the 4th July 1886, sold their shares in certain properties of their husband to Hem Mani Singh for Rs. 3,051. For some reason, not explained in the present case, the purchase-money was not applied to the satisfaction of Audh Narayan's decree till the 28th March 1888. Hem Mani Singh then deposited Rs. 2,693, and Daimani, through her brothers Bajrangi and Sri, deposited Rs. 412-8. How this sum of Rs. 412-8 was arrived at, and why Daimani was especially responsible for it, is differently explained by the two parties. For the plaintiff it is stated that after the sale Daimani borrowed Rs. 350 out of the purchase-money for her necessary expenses and afterwards paid it back with interest. For the defendants Nos. 2 and 3, it is stated that Bajrangi took Rs. 650 out of the purchase-money and afterwards had to pay it back with interest by borrowing Es. 750 from them on a note of hand, and it is stated that Rs. 2,693 represents the balance of the purchase-money 'with interest due from Hem Mani Singh, the purchaser. Neither of these stories have been substantiated, and all that remains proved is that Daimani had to pay Rs. 412-8 to assist in discharging that debt. The Subordinate Judge has held that this was a debt incurred by her for legal necessity, and we agree with him. As regards the third item of Rs. 187, the Subordinate Judge has pointed out that as it has not been proved for what estates and at what times it was paid, it cannot be accepted as a debt incurred for legal necessity, and we think that this view is correct.
30. We come next to the mortgage bond for Rs. 3,800 executed in favour of the plaintiff's benamidai Kanhai Thakur on the 25th October 1890. This debt is said to have been made up of the following items: Rs. 2,400 to pay off the two mortgage bonds given to Balajit Singh; Rs. 987 to pay off a sum, which Daimani had borrowed from Chaman Singh to pay off a decree, which Madhusudan and Chakrapan had obtained against her brothers Bajrangi and Sri; Rs. 401 to discharge a decree obtained by Madhusudan and Chakrapan against Daimani herself; and Rs 12, costs of executing the bond. As to the sum of Rs. 987, the defendants explain that Bajrangi borrowed Rs. 750 from them to pay off the Rs. 650 with interest, which he had previously taken out of Hem Mani's purchase-money. For the plaintiff it is alleged that this Rs. 750 was an additional sum, which Madhusudan and Chakrapan compelled Daimani to pay for the restoration of Makrooi. The brothers borrowed the money from Madhusudan and Chakrapan on the hand note on the 27th March 1888. In the note itself it is stated: 'I have borrowed Rs, 750 for payment of money due by Mussumat Sri Daimani Koeri to Audh Narayan Singh, decree-holder, on account of Execution Case No. 20 of 1888 to pay the road-cess and to pay the consideration money for Mehal Mokrooi purchased by M. Pryag Lal. 'This recital in no way supports the defendant's story. Nor does it entirely support the plaintiff's account. The money was borrowed on the 27th March 1888 and Audh Narayan's decree was paid off on the 28th March 1888. It seems not impossible that Rs. 412-8, out of the Rs. 750, went to pay off that decree. Plaintiff has, however, already been given credit for that sum in the bond of Balajit, and he cannot get credit for the same sum again. As to the balance of Rs. 750 there is no definite evidence to prove for the discharge of what special debts it was employed. The sum of Rs. 40 is said to have been borrowed to pay off the decree obtained by Madhasudan and Chakrapan against Daimani on the 30th July 1888. It has been argued for the defendants that there is no proof that the decree was ever executed, and it is suggested that it could not be executed as it covered land on which the ancestral dwelling stood. It is suggested that the mortgagee ought to have seen that the money was deposited in Court in satisfaction of that decree. We do not think this contention is sound. There is no doubt that the decree was outstanding, and that it was one which Daimani was bound to pay off, the debt having been contracted by her husband. In the bond it was stated that the money was borrowed to pay off that debt and this was sufficient to protect the mortgagee. He was not bound to see that the money was in fact paid. For the plaintiff it has been urged that the money was in fact paid out of Court, and considering the strained relations between the parties we are unable to believe that the decree has been allowed to remain so long unsatisfied. We therefore hold that the plaintiff is entitled to recover this sum also, which was borrowed for legal necessity. We see no reason why he should not recover also the Rs. 12, the cost of execution of the bond.
31. The sums then for which the plaintiff is in our opinion entitled to a decree are Rs. 400 + 412 + 401 + 12 = 1,225 with interest as provided for in the different bonds.
32. A plea of limitation, which- has been taken, is not in our opinion sustainable. The mere fact that the infant Chet Narayan Singh was not made a plaintiff till the 29th January 1904 is not fatal to the suit--see Guruayya Gouaa v. Dattatraya Anat (1903) I.L.R. 28 Bom. 11 Nor is the fact that Hari Singh, the purchaser of a small portion of the property, was not added as a partj defendant until the same date a bar to the suit. The proper course might have been that laid down in Sari Kissen Bhagat v. Veliat Hossein (1903) I.L.R 30 Calc. 755, bur, as it appears that his purchase was at a sale for arrears of revenue under Act XI of 1859, which had the effect of annulling all iucumbrances on the property and as the decree is for a portion only of the mortgage debt, no such distribution of the debt among the properties mortgaged is under the circumstances of the case required.
33. We accordingly set aside the judgment and decree of the Subordinate Judge and in lieu thereof direct that an account be taken and interest as stipulated for under the bonds be calculated on the different sums, making up the sum of Rs. 1,225 up to the date hereinafter fixed and added to it, and it be ordered that, if that sum with inferest thereon as stipulated in the bonds be not paid by the defendants 1st and 2nd and 3rd party within 6 months from the date of the preparation of the decree, then the plaintiff will be entitled to execute his decree by sale of the mortgaged pro-peities The appeal is decreed to this extent with proportionable costs. It is to be noted that, should the sums found due under the bonds after calculation of interests thereon and adding it to the principal exceed the amount of the claim in the suit, the plaintiff will not be entitled to that excess.