Prinsep and Rampini, JJ.
1. The plaintiffs are the purchasers of an 8 annas share in certain property from the defendants Nos. 4 and 5, who, together with the defendants Nos. 2 and 3, inherited the entire property as heirs of Joy Narain Ghose on the death of his widow Avimani Dasi.
2. It appears that Avimani Dasi sold an 8-annas share to the defendant No. 1. The plaintiffs' vendors, who ordinarily would inherit an 8-annas share of the estate of Joy Narain Ghose, are found by both the lower Courts to have never been in possession of their share. Since Avimani's death it has been held by defendant No. 1 in respect of the half-share bought by him, and by defendants Nos 2 and 3 in respect of the remainder by right of inheritance. The plaintiffs now sue to recover possession as against the defendant No. 1, the purchaser from Avimani, and the defendants Nos. 2 and 3, who were co-heirs with their vendors, and are charged with having colluded with the defendant No. 1 in keeping the plaintiffs out of possession. The primary object of the suit undoubtedly was to have it declared that the sale by Avimani was not a sale of an absolute title in consequence of her having only a life-interest as a Hindu widow. But as we regard the suit, its object was also to obtain, by reason of the purchase from two out of the heirs of Joy Narain Ghose, whatever share in his estate up to a half share was inherited by the vendors of the plaintiffs. If there were any doubt as to this being the object of the suit, it is set at rest by the supplementary issue which has been drawn up in the course of the trial by the Subordinate Judge.
3. Neither of the Courts has found whether the sale by Avimani of an 8-annas of the property in dispute was a valid sale for legal necessity in accordance with Hindu law. The Courts concurrently have found against the purchase by the plaintiffs, holding that no consideration passed, and that in fact it was not a real transaction; and this finding has been arrived at notwihstanding that the vendors have themselves admitted the receipt of consideration.
4. We are of opinion that, having regard to the nature of the suit and the admission of the vendors, this point did not properly arise'. The Subordinate Judge seams to have attached undue weight to the fact that the vendors of the plaintiffs were out of possession, and to have considered with this fact the nature of the transaction. But such purchases are not uncommon and are recognized by law, which has provided in the law of limitation a special limitation for a suit by a private purchaser to recover possession of immoveable property sold when the vendor was out of possession.
5. Both the Courts have found that the defendants Nos. 4 and 5 consented to the sale by Avimani, and that as they were some of the reversioners who have subsequently inherited a share of the estate, representing the share so conveyed, the title of the defendant No. 1 was a good title as against them. This conclusion has been arrived at principally with regard to the rule laid down by a Full Bench in the case of Nobokishore Sarma Roy v. Hari Nath Sarma Roy I.L.R. 10 Cal. 1102; but in our opinion the principle enunciated by the Full Bench cannot be carried to this length, and cannot be applied to an alienation of only a portion of the widow's estate.*
6. Numerous complications, which it is unnecessary to describe, would arise if it were possible, that a Hindu widow having a life-interest could, during her life-time, convey a portion of the estate to some of the reversioners so as to give them a valid title and thus enable them to re-convey. It would be impossible for a widow to predicate 'who would at her death succeed to her husband's estate as his heirs so as practically to make a partition during her life-time, and retain a portion herself. The judgment of the Full Bench proceeded on the ground that by alienating property with the consent of all the reversioners she would be relinquishing in their favour, and thus accelerate the succession so as to enable them to convey, and that this would be the real effect of a conveyance by her with their consent. This principle would not apply to a case like that now before us.
7. It is open to some doubt whether the facts found by the District Judge would amount to a consent such as would confer an absolute title on the vendee, even if defendants Nos. i and 5 represented the entire reversionary interest. We observe that the District Judge has not found, as the Subordinate Judge has found, that the defendants Nos. 4 and 5 participated in the consideration money paid by the defendant No. 1. Moreover, it has not been found, nor does it appear that the vendee, defendant No. 1, bought solely on the assurance of their consent so as to estop them; for the deed itself recites what was considered to be a legal necessity under the Hindu law and a sufficient cause for the alienation, and therefore to establish any title as against the heirs the vendee would be bound to prove that.
8. The case therefore depends upon the character of the sale by Avimani to the defendant No. 1. Both the Courts have overlooked the main point necessary for the consideration of this issue, that is to say, they have omitted to find whether the alienation was for legal necessity. The case must therefore be remanded to the Lower Appellate Court in order that this point may be determined; and the District Judge will deal with it according to law, either deciding the case on the evidence on the record, or remitting it to the first Court. Should it be found that the sale by Avimani to the defendant No. 1 conveyed an absolute title in an 8-annas share, then it will be for the Court to consider whether the plaintiff's on the supplemental issue should receive a decree for a 4-annas share of the estate, which would represent the share inherited by their vendors. On the other hand, should it be found that the sale by Avimani conveyed only the life-interest of a Hindu widow, the plaintiffs will be entitled to a decree to recover the share now held by the defendant No. 1. Costs to abide the result.
* The same was decided in Sristidhur Churamoni Bhuttacharjee v. Brojo Mohun Biddyaruton Bhuttacharjee, appeal from Appellate Decree No. 881 of 1889 decided by Phinsep and Rampini, JJ., on the 26th May 1890, in which the judgment was as follows: This is a suit brought by one claiming, on the death of Bhagiruthi, a Hindu widow, as heir, the estate of her husband, Sarthukram, to set aside two alienations made by her to the respondents. It appears that in respect of one of these alienations, one of the then reversionary heirs, Kauhai, signified his assent, not as a witness, but by affixing his name with the words 'memzoar shud' which, we understand, mean 'approved.' The other alienation is similarly subscribed by both the then reversionary heirs, Kanhai and his elder brother Narain, these two being sons of Jugdumba, daughter of Sarthukram and Bhagiruthi. It has been contended, on the authority of the judgment of the Full Bench in Nobokishore Harma Boy v. Hari Nath Sarma Boy I.L.R. 10 Cal. 1102, that these alienations are valid. Both the reversioners who signified their assent to the alienations predeceased the widow, their maternal grand-mother. One of them, Kanhai, who was the only assenting party to one of the alienations, it has been found, died a minor. The ago of Narain, the elder, has not been found by the lower Courts, and therefore if it were necessary for a decision of the case as to the title of the defendants, we should be bound to remand the suit for a proper finding. But as the case now stands, we think that without a finding on this point the plaintiff should obtain a decree in full of his claim.
In the first place, we are of opinion that Kanhai being a minor, his consent would not make the alienation a valid alienation. It has been found by the Lower Appellate Court that there was no legal necessity for this alienation, and, as this is a finding of fact, we are unable to question its correctness. As. we have already stated in a judgment delivered in second appeal 259 of 1889, Badha Shyam Sircar v. Joy Bam Senapati (Ante, p. 896) on the 8th instant, we are not inclined to extend the terms of the judgment of the Pull Bench in Nobo--kishore Sarma Boy v. Hari hath Sarma Boy I.L.R. 10 Cal. 1102 to an alienation made by a Hindu widow with the consent of only some of the reversionary heirs so as to bind their share in the ancestral estate.
The consent of the reversioners contemplated by the Pull Bench is, in our opinion, such. a consent as would be a valid consent, being given by persons themselves competent to execute a valid conveyance. Kanhai being a minor cannot be regarded as a competent person, and his death before the estate had fallen in by the death of his grandmother, a widow having only a life-interest, and before he had attained his majority, would prevent that alienation becoming absolute as against the heirs of Sarthukram at the death of the widow. The conveyance might be only voidable on his attaining majority, but his consent as a minor could not operate as against the heirs of Sarthukram's estate. No doubt, as has been pointed out by the respondent's pleader, the plaintiff-appellant could not be the heir of Kanha and Narain, who up to their deaths were the reversionary heirs to Sarthukram's estate, and therefore he might not be one who as Kanhai's heir should represent him in any matter relating to his own estate, but we cannot admit that in a matter concerning Sarthukram's estate any right flowing from the reversionary interest which was only inchoate and never arrived at maturity should pass away from the actual heirs of Sarthukram to one who could never succeed by inheritance to that estate. The consent given by Kanhai as a minor would not operate so as to exclude the plaintiff from the inheritance and pass Sarthukram's estate on the death of Kanhai, the survivor of the two brothers, to his heir and away from Sarthukram's family so as to give Kanhai's heir the power of avoiding or ratifying the alienation. He would not be in a position to exercise his option for the benefit of Sarthukram's estate, because if he avoided the alienation the property would pass to the plaintiff. This shows that it would be impossible to extend to this case the principle upon which the Full Bench prooeeded. The alienation, therefore, to which the minor, Kanhai, alone signified his approval is, in our opinion, invalid as against the plaintiff.
It has been next contended that although on this ground the alienation in respect of any share to which Kanhai might have a reversionary interest might be invalid in respect of that particular share, the share inherited by Narain would be bound by such alienation. This would of course depend upon his status as a major when he signified his consent. But, as has already been remarked, the lower Appellate Court has omitted to come to any finding in this respect. However, if for purposes of agrument we assume that he was a major, the alienations even as to the share to which he was one of the reversionary heirs at that time, cannot be affirmed. We have already held to this effect in second appeal No. 259. The result therefore is that the alienations in this suit are, in our opinion, absolutely void after the death of Bhagiruthi, and the plaintiff is entitled to a decree with costs throughout, the decrees of the lower Courts being varied.