P.N. Mookerjee, J.
1. This appeal raises an important question of Hindu law.
2. The plaintiff who claims tote a permanent lessee from a Hindu lady brought this suit for a permanent injunction to restrain the defendants who are father and son from interfering with her possession of the disputed tank. The defendant No 1 claims to be a part transferee of the suit tank from the reversioners after the female owner's death and his son defendant No. 2 appears to have acted for his father. If, therefore, the suit succeeds against defendant No. 1, it will succeed against both the defendants; if it fails against him, it will fail against defendant No. 2 also.
3. In the plaint, there was no sepcific allegation that the plaintiff's lease was justified by 'legal necessity' or on the doctrine of 'benefit of estate', as applying to alienations by limited owners in Hindu Law, or on the theory of any 'bona fide enquiry' on the plaintiff lessee's part as to the existence of such justifying causes.
4. The defence, however, raised 'inter alia the question of justifying causes' in relation to the plaintiff's lease and contended that there were no such causes and, accordingly, the plaintiff's lease ceased to have effect, at any rate, on the female grantor's death.
5. The Courts below have not examined the question of 'justifying causes' or 'bona fide enquiry', but they have concurrently held that, the plaintiff's lease being, at the worst, not void but only voidable in law, and it not having been set aside in any appropriate proceeding and the reversioners or their representatives not having taken any steps for the purpose, her present suit must succeed. The propriety of this decision is challenged by the defendants-appellants.
6. The suit property is a tank, recorded in C.S. dag No. 624 of khatian No. 366 of Mouza Beluria in the district of Murshidabad. It originally belonged to one Raghunath Choudhury and, on his death, it devolved upon his daughter Sreemati Jalad Barani Devi. Jalad Barani died a childless widow aniat the time of her death, the defendant No. 1's vendors Satkari Mukherjee and Bisseswar Bidyaratna were the reversioners. During her lifetime, Jalad Barani had granted a permanent lease of the disputed tank to the plaintiff, but, as, on her death, the defendants threatened to disturb her possession of the same, she instituted the present suit for permanent injunction.
7. The defence denied 'inter alia' the plaintiffs lease and also her story of possession but these defences have been rejected on the merits by the Courts below and they are no longer available to the present appellants. The other defence, however, that, the lease having been given by a limitedowner without any justifying cause in the shape of 'legal necessity' etc., it cannot enure beyond the giver's lifetime, has been negatived by the lower Courts upon the view of law that, even though it might not have been given for any 'justifying cause', it was valid until set aside by the reversioners or their representatives in appropriate proceedings and the question of 'justifying causes' has not been considered at all.
8. In my opinion, this appeal ought to succeed in part and the case should go back to the trial Court for considering whether the plaintiff's lease was justified by 'legal necessity', or on the theory of 'benefit of estate', or 'bona fide enquiry', or whether it can be upheld, either in whole or in part, on the ground of express or implied affirmation by the reversioners. This implied affirmation may be founded 'inter alia' on waiver, estoppel or acquiescence.
9. The lease in the present case purports to be a permanent lease from a Hindu female. It, therefore, stands on the same footing as an 'alienation' by a Limited owner in Hindu Law. For its validity, so far as the reversioners are concerned, it must be supported by 'legal necessity', or on the theory of 'benefit of estate', or 'bona fide enquiry'. In the absence of either, it cannot enure beyond the grantor's lifetime if disowned or repudiated by the reversioners, -- and this term includes their representatives, -- in proper time. Usually, no doubt, such alienations are said to be voidable and not void but they are not to be understood as valid until set aside by the reversioners in Court proceedings. They are not void as they may acquire full validity and become binding on the estate by affirmance or assent of the reversioners, and they are voidable in the sense that they may be disowned or repudiated by the reversioners within, of course, the relevant period of time, and, on such timely repudiation, they cease to have effect. The choice lies with the reversioner and he has only to elect in time and exercise his option if he wants to avoid the alienation.
It is not, however, necessary for the reversioners to come to Court or institute any suit or proceeding for the purpose of avoiding such alienations. Any overt act or sufficient expression of intention by the reversioner to repudiate the alienation will have the legal effect of avoiding it and. will invalidate the same, so far as he is concerned. In a suit, therefore, by- the alienee for any relief in respect of the disputed property on the strength of such alienation, when it is disowned or repudiated by the reversioners in time, the alienee cannot succeed unless he proves that the transaction was justified by 'legal necessity' or on the theory of 'benefit of estate' or unless he can prove requisite enquiry or rely on express or implied affirmation by the reversioners, and the reversioners' defence of repudiation will be sufficient to defeat the alienee's suit in the absence of proof of 'justifying causes' for the alienation or the relevant enquiry or express or implied affirmation, as stated above.
This, in my opinion, is the true effect of the decision of the Judicial Committee in the case of -- 'Bijoy Copal v. Krishna Mahisi Debi', 34 Ind App 87 (PC) (A), (which, by the way, was the case of an 'ijara' lease) as subsequently explained andelaborated by the Board in the cases of -- 'Kondama Naicker v. Kandasami Goundar', AIR 1924 PC 56 at pp. 59-60 (B) and 'Kalyandappa v. Chanbasappa', AIR 1924 PC 137 at p. 143 (C), and if I may add with respect, that is the true legal position in Hindu Law. In the earlier of the two cases, reported in AIR 1924 PC 56 (B), their Lordships definitely held that the said decision, reported in. 34 Ind App 87 (PC) (A), was authority for the view that, in such cases, the reversioners on the death of the limited owner, 'can treat it (the disputed alienation) as a nullity without the intervention of any Court' and they expressly re-affirmed the said proposition vide pp. (59-60) and, later on, they observed further (vide p. 60), that, 'on their mother's (the limited owner's) death in their lifetime they (the reversioners) would have the immediate title without the intervention of any Court.' In the other case, reported in AIR 1924 PC 137 (C), they cited the decision in 34 Ind App 87 (PC) (A), as authority for holding that Article 91, Limitation Act, was inapplicable to such cases, as it was unnecessary to set aside the disputed transaction (vide p. 143), and plainly endorsed the said principle.
10. I have briefly set out above the relevant proposition and I have cited sufficient authorities in support of it. To complete the picture I will only add one other reference, namely, -- 'Raja Modhu Sudan Singh v. Rooke', 24 Ind App 164 (D). That case shows that the transaction is not absolutely void and it may be assented to by the reversioners and its validity affirmed by them and that, on such assent or affirmance, sometimes loosely called 'ratification', -- a term strictly inaccurate for the purpose, as expressly held by the Judicial Committee in -- 'Raja Rai Bhagwat Dayal Singh v. Debi Dayal Sahu', 35 Ind App 48 at p. 58 (PC) (E)' (Vide also -- 'Sankar Nath v. Bejoy Gopal', 13 Cal WN 201 at p. 209 (F)), -- it continues to be valid and binding against the reversioners. The dispute there was with regard to a putni lease, granted by a Hindu widow without legal necessity, and their Lordships explained the relevant law at pp. 168-169 of the Report in the following terms:
'It must be observed that the putni was not void, it was only voidable; the Raja (the' reversioner) might elect to assent' to it and treat it as valid. Its validity depended upon the circumstances in which it was made. 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 .....Thetaking rent (by the reversioner Raja) ..... wasprima facie an admission that the ptitni was still subsisting an election by the Raja to treat it as valid .....(and) there is a sufficient prima faciecase of an election by the Raja to affirm the validity of the putni.'
If the putni lease was absolutely void 'it could not of course be confirmed' (vide 34 Ind App 87 at p. 91 (PC) (A), and election or affirmation by the Raja (reversioner) would have been useless to continue it or to make it binding on the estate. This view is definitely and in the clearest possible terms, expressed by their Lordships in the subsequent case of 34 Ind App 87 (PC) (A), already referredto above, where the earlier case (24 Ind App 164 (PC) (D)) was cited and explained and the matter was further examined to ascertain the other limit of the phrase 'not void but voidable' in relation to Hindu widow's alienations. That was also a case of lease -- an ijara lease -- by a Hindu widow and, while dealing with the question whether it was void or voidable, their Lordships recorded the following observations at pp. 91-2 of the Report:
'As to the answer to the question so put, they think that it is not answered by merely saying that the ijara was voidable only and not void. In the case before the Board (24 Ind App 164 (PC) (D)), cited by the learned Judge, the question was whether the acceptance of rent, payable under the putni, and other circumstances afforded evidence of an election by the Raja to confirm the putni and treat it as valid. If it was ipso facto void it could not of course be confirmed, and the acceptance of rent would be evidence only of the creation of a new tenancy. 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 shews 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. It is true that the appellants prayed by their plaint a declaration that the ijara was inoperative as against them, as leading up to their prayer for delivery to them of khas possession. But it was not necessary for them to do so, and they might have merely claimed possession, leaving it to the defendants to plead and (if they could) prove the circumstances which they relied on for showing that the ijara or any derivative dealings with the property were not in fact voidable, but were binding on the reversionary heirs.'
And then they proceeded to hold that 'the article in the Schedule to the Limitation Act applicable to the case is Article 141' 'and not Article 91'.
These two cases (24 Ind App 164 (D) and 34 'Ind App 87 (A)) sufficiently explain the term 'not void but voidable' as used in relation to a Hindu widow's alienation, which has received fur-their clarification in AIR 1924 PC 56 at pp. 59-60 (B) and AIR 1924 PC 137 at p. 143 (C), this lasS authority also laying down the time-limit of twelve years from the widow's death for a suit for possession by the reversioner concerned (vide p. 143) and thus the outer limit of time beyond which no repudiation would ordinarily be effective.
11. I, accordingly, hold that the courts below were not right in decreeing the plaintiffs suit without finding any 'justifying cause' for the disputed lease -- or sufficient enquiry in that behalf by the plaintiff lessee -- or affirmation thereof, ex-press or implied, by the defendant No. 1 or his predecessors, there being in this case no dispute that the implied repudiation of the plaintiff's lease by the actual reversioners, arising from the terms of their kobalas to Defendant No. 1 (which were executed after Jaladbarani's death and thus after their estate or the reversion had fallen in and were as such valid and effective in law) and the express repudiation of the said lease by Defendant No. 1 before the suit and also in his written statement were all well within time and there being also no scope here for any claim of prescriptive title by the plaintiff in view, particularly, of the injunction, obtained by her in this suit.
12. A remand thus seems inevitable and the case must go back to the trial court for determination of the question as to whether the respondent's lease was supported by 'legal necessity' or 'benefit of the estate' or requisite enquiry or whether it has acquired validity and immunity from challenge by the appellants by reason of express or implied affirmation, as explained above, by Defendant No. 1 or his predecessors, either as to the whole or any part thereof.
13. It is only necessary to add that, in judging the theory of 'benefit of estate', the Court will be free to apply whatever test seems to it to be appropriate in law, namely, whether it should be restricted only to acts of a defensive or protective character or whether it may be extended to all acts of prudent management of whatever nature, and the Court will duly consider the conflict of judicial opinion on this point as to the meaning and scope of the term 'benefit' in such connection. I am expressing no opinion on the said point.
14. In making this order of remand, I am quite alive to the fact that, in the plaint, no clear or specific case was made that the disputed lease had been given by Jalad Barani for 'justifying causes', supporting alienations by a limited owner in Hindu Law, or that it was protected by the theory of 'bona fide enquiry' or by reason of subsequent affirmation, express or implied, by the reversioners or their representatives, and that possibly explains the absence of an issue on this point, but I am not prepared to take a serious view of this omission in the circumstances of this case.
If necessary, the Court will give leave to the parties to amend their pleadings for raising this limited issue which will be framed by the Court in appropriate terms and the Court will allow the parties to adduce relevant evidence on the same and will finally decide the case in the light of its determination of the said issue. This will be the only issue to be tried at the rehearing and no other question will be allowed to be raised.
15. The appeal thus succeeds in part, the judgments and decrees of the courts below . are setaside and the case is remanded, as indicated above,for rehearing, according to law, in the light of theobservations I have made above. The appellantswill get their costs of this Court. Other costs willabide the final result.