1. This appeal arises out of a suit for a declaration that certain transactions entered into by a Hindu widow were not binding upon the reversioners, and for recovery of possession of the properties in suit under the following circumstances.
2. One Raghunath had three sons, Thakur Das Madhu Sudan and Hari Narain, each of whom got 1/3d of the estate left by Raghunath. Hari Narain died leaving his widow Bamakali and his 1/3rd share devolved on her. Then Thakur Das died: his 1/3rd share passed to his brother Madhusudan, who thus got 2/3rds share. Then Madhusudan died on the 13th August 1867, leaving his widow Prosanna Kumari, who thus in herited 2/3rds share of the properties. After the death of Madhusudan, Prosanna Kumari settled all the properties left by him excepting the Thakurbati, Kacharibati, dwelling house, tank and garden at the back of the house and a Taluk No. 395 in permanent lease with her brother's son Khetra Mohan Samanta on the 17th September 1869. Bamakali, widow of Hari Narain joined in this settlement and gave a lease of her 1/3rd share to the said Khetra Samanta. Bamakali died on the 14th February 1891. After her death a suit was instituted by Prosanna Kumari as guardian of Basanta Kumar, the alleged adopted son of Madhusudan, for a declaration of Basanta's preferential right to the share of Hari Narain against Kailash and certain other persons who were then the reversionary heirs of Hari Narain The suit was dismissed as the adoption was not proved and the reversioners obtained a decree for costs against Prosanna Kumari
3. In execution of the decree for costs, Prosanna Kuman's interest in the property covered by the Ijara was put up to sale and purchased by one Radha Mohan. In the certificate of sale it was stated that only her life-interest was sold.
4. On the same day in execution of another decree obtained by Kailash Chandra and others against Ram Chandra father of Khetra Samanta and Syama Sandari, the aunt of Khetra, their interest in the Ijara, namely, 2/3rds share, was purchased by or on behalf of Raj Kishore Mondal, the predecessor of defendants Nos. 1 to 6. On the 5th May 1895 Prosanna Kumari sold certain lands which had been purchased by her to the said Raj Kishore. Prosanna Kumari died on the 7th August l907. At that time Srikanta and Nilkanta Mondal were the actual reversionary heirs and they gave a permanent lease of the properties to the plaintiffs on the 3rd December 1912
5. The plaint, as it originally stood, comprised three estates Nos. 396, 397 and 398, and plots Nos. 1 to 1161. The claims with regard to Taluks Nos. 396 and 397 and plots Nos. 1 to 602 have been compromised with the defendants who set up rights to the same.
6. The main defence was that Madhusudan at his death was involved in debts, that the Ijara was granted by Prosanna Kumari in order to pay off these debts, that Prosanna acquired an absolute right to the properties covered by the Kobala of 5th May 1895 and that she had absolute power of disposal over the same, and that the share of Madhusudan in estate No. 395 had been sold away for arrears of revenue.
7. The learned Subordinate Judge found that the Ijara to Khetra Samanta was executed for legal necessity, at any rate, the alienation could be justified on the ground that it was beneficial to the estate, that the properties covered by the Kobala of 1895 were acquired out of the income of the properties left by Madhusudan, that Prosanna Kumari was justified in dealing with them, as she did not express any intention to treat them as part of her husband's estate, that the Sale in respect of estate No. 395 was binding on the reversioners and that the remaining plots of land were not shown to have been included in the estate of Madhusudan.
8. The plaintiffs have appealed to this Court. The appeal relates to estate No. 398 and plots Nos. 603 to 1161.
9. The main contentions in this appeal are that the Ijara was a collusive transaction and that even if not collusive, it was not justified by legal necessity, nor was it beneficial to the estate so as to be valid against the reversioners, that the properties covered by the Kobala, dated the 5th May 1895, formed part of the corpus of the estate inherited by Prosanna Kumari from her husband and could not be alienated, that only her life interest had passed under the conveyance and that the remaining plots of land actually belonged to Madhu Sudan's estate. With respect to estate No. 398, the learned Pleader for the appellant admitted that regard being had to the current of recent decisions, he could not press his claim against the purchasers,
10. The first question for consideration, therefore, is as to the validity of the Ijara dated the 17th September 1869. As stated above, Madhnsudan died on the 13th August 1867, that is about 2 years before the Ijara was granted. He undoubtedly left some debts. The defendants' case is that he was in a hopelessly embarrassed condition at the time of his death. So far as the documentary evidence goes, there were only two debts due by him, namely, one a Kistibundi bond for Rs. 7,900 executed on the 3rd August 1863 in favour of Radha Mohan Mondal and the other a Kut Kobala in favour of one Debrani Dasi, dated 3rd Jaista 1269 B.S. corresponding to 6th May 1862, for Rs. 800 which was to become absolute on the 16th Pous 1271 if the mortgage was not redeemed before that date. It does not appear whether the Kut Kobala was redeemed by Madhusudan or was made absolute before his death, which took place before 1887. A number of Howlati slips and letters have been produced on behalf of the defendants to show that Madhusudan was in constant need of money and had to borrow even petty sums from Radha Mohan Mondal. These Howlati slips and letters were for the period 1261 to 4236 B.S. and the Kistibundi bond dated 3rd Falgoon 1269, which was substituted by another Kistibundi bond dated 3rd August 1863, shows that it was, in respect of monies borrowed from time to time and that it was executed for money due on adjustment of account. It appears, therefore, that the monies borrowed from time to time during the period 1261 to 1266 under the Howlati slips and letters (Exhibit 0 series) were covered by the Kistibundi bond. Oral evidence has been adduced to show that Madhusudan had various other creditors; but the witnesses who speak about these creditors cannot say whether there was any document in respect of the debts, nor can they say what the amount of debts was, nor whether they were paid off by Madhusudan.
11. Ram Kumar Bag, witness No. 1 for the defendant, was in the service of Madhusudan up to his death and afterwards was in the service of Prosanna Kumari till her death. He says that the debts left by Madhusudan including his Sradh expenses amounted to Rs. 10,000 or Rs. 11,000.
12. Another witness, Mohesh Chandra Haldar, who was also in the service of Madhusudan, says that the debts of Madhusudan gradually rose to Rs. 15,000 or Rs. 16,000. There is no evidence, either oral or documentary, to shew that the debts left by the deceased exceeded Rs. 15,000.
13. It appears from the evidence that Madhu at the time of his death left shares in four Taluks, namely, estates Nos. 395, 396, 397 and 398, and 2591 bighas of land, some of which, however, appear to be small and scattered pieces of land. One of them Taluk No. 395 was sold after his death by Prosanna Kumari to one Shama Sundari, aunt of Khetra Samanta, for Rs. 10,000. There is no documentary evidence as to the sale, but there is no doubt that it was sold after the death of Madhusudan and before the Ijara to Khetra Samanta, as it was not included in the Ijara which comprised all the properties with the exception of the dwelling house and a few other houses and garden mentioned above. The sale of this Taluk is referred to in the Kobala Exhibit Al, dated 18th December 1888, produced on behalf of the defendant, and it appears from the evidence of the defendant's witness Mohesh Chandra Haldar that Khetra had offered Rs. 10,000 for the property and he (Mohesh) was told that Khetra's aunt had purchased it. So that at any rate about Rs. 6,600 came into the hands of Prosanna Kumari by the sale of the property, assuming that Bamakali had a 1/3rd share in the property.
14. Then it appears from the application of Prosanna Kumari, dated 21st January 1868, for the collection of the debts due to Madhusudan under Act XXVII of 1860 that Rs. 9,000 was due to him: and the witness Ram Kumar says that the amount was realized. It also appears from the evidence of that witness that Madhusudan left moveable properties of considerable value, about Rs. 20,000. However that may be, we have it upon the evidence of the witnesses for the defendants themselves that at least Rs. 15,600 came to the hands of Prosanna Kumari after the death of Madhusudan and before the grant of the Ijara. This, together with the income of the properties for two years, appear prima facie sufficient for paying off the debts left by the deceased which, it may be noted, were Rs. 7,000 or Rs. 8,000 according to the finding of the learned Subordinate Judge or Rs. 15,000 or Rs. 16,000 according to the witness Mohesh Chandra Haldar.
15. The plaintiff alleged in the plaint that the income of the estate left by Madhu was Rs. 4,000 a year, and one of his witnesses said that the income of Prosanna Kumari and Bamakali exclusive of revenue and costs (of collection) was Rs. 5,000 or Rs. 6,000. The defendants' witness Ram Kumar also says that the net income excluding jama and collection charges was Rs. 5,000 or Rs. 6,000. The learned Subordinate Judge, referring to the statement in the plaint that the income was Rs. 4,000, says that the evidence was not satisfactory, but he has apparently overlooked the evidence of the defendants on the point, and he baa also overlooked the fact that by the sale of estate No. 395, Rs. 10,000 came to the bands of the ladies. He has further erred in holding that the amount of Rs. 9,000, for the collection of which Prosanna Kumari applied and obtained succession certificate, was not available to. her, when the defendants' witness says that the amount was realized by Prosanna Kumari.
16. The Ijara was granted to Khetra Samanta, but it appears that it was taken on behalf of his family, i.e., his father and uncles. Khetra was the son of Prosanna Kumari's brother. Prosanna had no child of her own and this nephew Khetra was brought up by her from his infancy. He was married at the costs of Prosanna and he lived in her house with his wife and children. It was he who looked after Prosanna's estate up to the death of Madhusndan and it was to him that the Ijara was granted, which comprised shares in the three Taluks Nos. 393, 397, 398, and all the rent free and rent-paying lands, excepting the 'dwelling house Kacharibati, Thakurbati and the tank and garden at the back of the house.' The whole estate was let out at a rent of Rs. 3,901 and a selami of Rs. 1,000. The revenue and rents payable for the Taluks and the lands amounted to about Rs. 3,200 and Rs. 700 appears to be the only profit which the ladies were to get under the Ijara. No boundaries of the lands were stated in the Pattah, only Mouzahs in which they were situated being set out in the Pattah.
17. Some of the witnesses for the defendants stated in a general way that the debts of Madhusudan were paid off by sale of some of the properties and by the grant of the Ijara. But assuming that Rs. 1,000 was paid as selami to Prosanna and Bamakali, it is not shown what became of the Rs. 10,000 obtained by the sale of the Taluk No. 395 and of the large sum of Rs. 9,000 which came to the hands of Prosanna when the succession certificate was taken out by her. Besides the above two sums the income of the properties for two years since the death of Madhu came to her hands. Had the Ijaradar been a stranger, he could not have been expected to account for the money, nor would he have been responsible for the previous management, if any, of the estate. Here the lessee was Khetra Samanta who was the de facto manager of the estate, and it. was for the defendants to show that there was necessity for the grant of the Ijara. It was recited in the Ijara Pattah that the lease' was granted 'for the purpose of liquidation of debts incurred in the lifetime of the late Madhusudan Mondal and in the time of our possession of the estate and the debts incurred in the Adya Sradha of the said Mondal.'
18. In the case of Nanda Lal Dhur Biswas v. Jagat Kishore Acharjya 36 Ind. Cas. 420 : 43 I.A. 249 : 20 M.L.T. 335 : 31 M.L.J. 563 : (1916) 2 M.W.N. 336 : 4 L.W. 458 : 18 Bom. L.R. 868 : 14 A.L.J. 1103 : 24 C.L.J. 487 : 1 P.L.W. 1 : 21 C.W.N. 225 : 44 C. 186 : 10 Bur. L.T. 177 (P.C.) the Judicial Committee, in referring to the recital of legal necessity in a conveyance executed by a Hindu widow, observed: 'But in such a case as the present their Lordships do not think that these recitals can be disregarded, nor on the other hand can any fixed and inflexible rule be laid down as to the proper weight which they are entitled to receive. If the deeds were challenged at the time or near the date of their execution so that independent evidence would be available, the recitals would deserve but slight consideration and certainly should not be accepted as proof of the facts. But as time goes by, and all the original parties to the transaction and all those who could have given evidence on the relevant points have grown old or passed away, a recital consistent with the probability and circumstances of the case assumes greater importance and cannot lightly be set aside, for it should be remembered that the actual proof of the necessity which justified the deed is not essential to establish its validity. It is only necessary that a representation should have been made to the purchaser that such necessity existed and that he should have acted honestly and made proper enquiry to satisfy himself of its truth.'
19. In the present case, however, although the transaction is more, than 40 years old, two of the witnesses examined on behalf of the defendants were in the service of Madhusudan and Prosanna Kumari. Evidence, therefore, is available as to the pecuniary condition of the estate at the time of the alienation. Besides the alienation in the case before the Judicial Committee 'was made to strangers, in the present case it was to a person who in fact managed the estate for the lady. If the nett income of the estate of the two ladies was anything like five or sis thousand rupees (about Rs. 4,000 in Prosanna Kumari's share, as deposed to by Ram Kumar and Mohesh Chandra), the grant of an Ijara at a rent of Rs. 3,901 and a selami of Rs. 1,000, which left only Rs. 700 as profit (2/3rds of which represented Prosanna Kumari's share), was certainly detrimental to the estate.
20. Reliance was placed on behalf of the respondents upon the case of Murugesam Pillai v. Manickavasaka Desika 39 Ind. Cas. 659 : 44 I.A. 98 : 32 M.L.J. 369 : 15 A.L.J. 281 : 21 M.L.T. 288 : 1 P.L.W. 467 : 5 L.W. 759 : 210. W.N. 761 : 40 M. 402 : 19 Bom. L.R. 456 : 25 C.L.J. 589 : (1917) M.W.N. 487 (P.C.), where the Judicial Committee commented upon the non-production of books of accounts, which would have shown that the lease executed by the manager of a Hindu temple (in that case) had been recognised by his successors, In the present case it does not appear that the plaintiffs lessors had got the books and accounts of the estate on the death of Prosanna Kumari and we think, therefore, that the observations made in that case do not apply to the present.
21. It is true that Bamakali joined in granting the Ijara; but she had no son and she was living apparently amicably with Prosauna Kumari in the same house Khetra was managing the estate for both the ladies and Bimakali might have thought it convenient to join with Prosanrna Kumari who had a 2/3rds share. Having regard, to all the circumstances, we do not think that legal necessity for the grant of the Ijara has been made out.
22. The learned Subordinate Judge was of opinion that the Ijara could be supported on the ground that it was beneficial to the estate. Referring to the litigation which Madhusudan had with Kailash, he observes: 'This litigation is continued for some years after his death and it naturally interfaced with collection of rent. Besides, it was a source of constant drain on the slender means of the widows Prosanna Kumari and Bamakali. Obviously it was difficult for them to husband the resources so as to be able to meet the cost of litigation and at the same time pay off the* existing debts. Madhusudan could not himself do it. If the widows had allowed the old state of things to go on, the entire estate might be lost. Such was the position of the widows when the Ijara was granted. It secured them a nett profit of about Rs. 700 a year; relieved them from the pressure of litigation costs and at the same time enabled them to save the properties from the clutches of creditors. Having regard to all the circumstances, the permanent Ijara in favour of the Samantas must be taken as a step beneficial to the estate, and apparently it was more advantageous than the permanent Ijara which the reversioners have granted, to the plaintiffs. It has been beneficial to the reversioners in that it has saved the estate. On this consideration alone, apart from legal necessity, the Ijara must be held binding on the reversioners.'
23. On behalf of the appellant, reliance was placed on the case of Palaniappa Chetty v. Sreemath Deivasikamony Pandara 39 Ind Cas. 722 : 44 I.A. 147 : 21 C.W.N. 729 : 15 A.L.J 485 : 1 P.L.W. 697 : 33 M.L.J. 1 : 19 Bom. L.R. 567 : 22 M.L.T. 1 : (19l7) M.W.N. 477 & 507 : 26 C.L.J. 153 : 40 M. 709 : 6 L.W. 222 (P.C). In that case Lord Atkinson in delivering the judgment of the Judicial Committee states: 'The phrase 'benefit of the estate', as used in the decisions with regard to the circumstances justifying an alienation by the manager of an infant heir or by the trustee of a religions endowment, cannot be precisely defined, but includes the preservation of the estate from extinction, its defence against hostile litigation, its protection from inundation and similar circumstances.'
24. It is contended on behalf of the respondents that those observations were made with reference to the powers of a Shebait of a religious endowment or the manager of an infant heir, and are inapplicable to the case of a Hindu widow, who unlike a Shebait or a guardian does not hold the property for another. 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, and it is argued that she has greater latitude in dealing with her property than a Shebait or a guardian where it is for the benefit of the estate, and certain cases have been relied upon It is unnecessary in the present case to discuss the question whether the words benefit of the estate' should be understood in the same sense in relation to the powers of a Hindu widow in which they have been used with reference to the powers of a Shebait or a guardian in the case cited above, because in our opinion the Ijara was not for the benefit of the estate in any sense of the term and the oases relied upon do not help the respondents.
25. In the first case cited before us, Dayamani Debi v. Dayamani 33 C. 842, it was held that a permanent lease granted by a Hindu widow which was for the benefit of the estate was binding upon the reversioner But it was found, in that case that ' the previous tenants on the property would not adhere to it, because it was not profitable, and that it was impracticable, the land being jungle, to bring it under cultivation without spending a substantial sum on its improvement,' and the lease was granted under those circumstances. It was also found that the bargain was a good one, that both the bonus and the rents went into the pockets of the plaintiffs (who were the sons and reversioners of the lady) and that what the mother did was for the good of the plaintiffs who had been benefited by her act.
26. The next is that of Bijoy Gopal Mukerji v. Girindra Nath Mukerji 23 Ind Cas. 162 : 41 C. 793 : 18 C.W.N 673 : 19 C.L.J. 620 : 27 M.L.J. 123 : 16 M.L.T 68 : (1914) M.W.N. 430 : 1 L.W. 533 : 16 Bom. L.R. 425 : 12 A.L.J. 711 (P.C.), when the question was as to the validity of an Ijara for 60 years, dated the 7th September 1863 which had been executed by a Hindu widow aged 42 with the consent of the then reversioners and which was part of an arrangement or settlement in which all the branches of her husband's family shared. In a suit brought after the death of the widow by the reversionary heirs of her husband, this Court (Caspersz and Coxe, JJ.) said, 'if we find that the arrangement was for the benefit of the estate and did actually benefit the estate, we should apply and even broaden the principle adopted in the case of Dayamani Debi v. Strinibash Kundu 33 C. 842 ' and after referring to the principle laid down in that case observed, ' the principle is based upon the decisions of their Lordships of the Judicial Committee and it was applied in Venkaji Shridar v. Vishnu Babaji 18 B. 534 at p. 536 : 9 Ind. Dec. (n.s.) 865, where Sir C. Sargent, C.J., said: ' A widow like a manager of the family must be allowed a reasonable latitude in the exercise of her powers, provided she acts fairly to her expectant heirs,' a fortiori if Sayamani Debi made a good bargain for herself, and if that bargain did not prejudice the position of the then reversioners it should be given effect to, and the present reversioners ought not to be allowed to obliterate the history of nearly half a century.' [See Bijoy Gopal Mukerji v. Girindra Nath Mukerji 23 Ind Cas. 162 : 41 C. 793 : 18 C.W.N 673 : 19 C.L.J. 620 : 27 M.L.J. 123 : 16 M.L.T 68 : (1914) M.W.N. 430 : 1 L.W. 533 : 16 Bom. L.R. 425 : 12 A.L.J. 711 (P.C.).]
27. The case was taken up to the Privy Council, see Bijoy Gopal Mukerji v. Girindra Nath Mukerji 23 Ind Cas. 162 : 41 C. 793 : 18 C.W.N 673 : 19 C.L.J. 620 : 27 M.L.J. 123 : 16 M.L.T 68 : (1914) M.W.N. 430 : 1 L.W. 533 : 16 Bom. L.R. 425 : 12 A.L.J. 711 (P.C.), and the decision of this Court was upheld. Their Lordships held that the arrangement of which the Ijara formed part was in truth dictated by the necessities of the case and that the choice of the term of 60 years as the term of the Ijara was made for the benefit of the estate, and did not injure any one. It was pointed out that from 1882 to 1893 when the widow died, the persons who now sought to Set the Ijara aside acquiesced in and took the benefit of the arrangement which, it might therefore be inferred from their conduct, had, in their opinion, been made in good faith and under such circumstances of necessity as would give it validity according to Hindu Law; and the conduct of the appellants themselves during those years afforded evidence on which the respondents were entitled to rely. Their Lordships observed: 'They are of opinion that the case depends entirely on the facts, and that it raises no new question of law as to the powers of a Hindu widow to deal with family property in case of necessity with the consent of the then present reversioners and they are, therefore, of opinion that the appeal fails.'
28. In that case the fact that some of the then reversioners took a Durijara was relied upon and our attention has been called to the fact that in the present case also Kailash, one of the then reversioners, took a sub lease from Moaraja Dasi, the aunt of Khetra Nath, in respect of 1/3rd share of the Ijara in the benami of one Baikuntha Majhi. But Kailash was one of many of the then reversioners, and any inference which may be drawn from his taking a Dur ijara of the said share is weakened if not destroyed by the fact that he along with several others, the then reversioners, had put up the 2/3rds share of the Ijara right, expressly stating that it was good only for the lifetime of the widow Prosanna Kumari.
29. The last case relied upon is that of Upendra Nath Bose v. Bindeshri Prosad 32 Ind. Cas. 468 : 20 C.W.N 210 : 23 C.L.J. 452. In that case a permanent mokarari lease granted by the daughter of a deceased Hindu of some properties belonging to his estate in settlement of a bona fide dispute was held binding on the reversioners, and it was pointed out that the test to be applied in determining the validity of an alienation by a limited owner is whether the purpose for which the alienation was made was in the circumstances of the case proper and legitimate and the existence of legal necessity in the narrow sense of actual pressure on the estate or the danger to be averted' is not the only test. In that case the permanent lease was not only attested by the reversioner, but he later on set up the lease in answer to a suit of the grantue claiming the entire estate by survivorship as the undivided copartner of the last male owner and ultimately joined in a compromise by which the plaintiff in the suit admitted that he had no title to the estate and the reversioner affirmed the Mokarari Pattah.
30. All the cases relied upon, therefore, are clearly distinguishable. In the present case the learned Subordinate Judge no doubt says that the litigation with Kailash continued for some years after Madhusudan's death and it naturally interfered with the collection of rent, and that if the widow had allowed the old state of things to go on, the entire estate might have been lost. Some witnesses have said in a general way that the litigation continued for 20 years, but we do not know the nature of the litigation, nor what the cost of the litigation was. The Ijara was granted within 2 years of Madhusudhan's death, and it does not appear with whom the litigation continued after the grant of the Ijara. The only documentary evidence about litigation placed before us relates to the suit brought by Prosanna Kumari as guardian of Basant Kumar, the alleged adopted son of Madhusudan, for recovery of the properties of Harinarain as his reversionery heir on the death of Bamakali. The suit was dismissed on the ground that the adoption was not proved. Basant Kumar, who was set up as the adopted son of Madhusudan, was the son of Khetra Nath. We fail to see how this litigation about the adoption which took place long after the grant of the Ijara, and which was conducted presumably for the benefit of the son of Khetra Nath the Ijaradar, can be taken into consideration in determining whether the Ijara was for the benefit of the estate. It appears that the widows made some savings, and purchased some lands, so there could not have been any drain on their slender means' by any litigation, and there is no evidence to show that the Ijaradar was' involved in any litigation with Kailash and others. It is pointed put that there were a large number of small plots of land and that the rental payable for the lands was heavy. But if the nett income in Prosanna Kumari's share was anything like Rs. 4,000, the rent payable cannot be said to be heavy.
31. The estate was being managed by Khetra since the death of Madhnsudan and it was to him or his family (father and uncles) that the Ijara was granted. If the estate was well-managed by Khetra as Ijaradar, there does not appear to be any reason for saying that it was not equally well managed by him before the Ijara. There is no suggestion that Khetra, who had been brought up by Prosanna Kumari from his infancy and who was living with her with his wife and children, had refused to manage the estate for her unless the Ijara was granted to him; there is no mention of any such reason in the Ijara Pattah, nor even that it would be convenient to let out the properties in Ijara, and there is no evidence to show that they could not be let out except under a permanent lease. The only reason assigned for the grant was that there was necessity for raising money for liquidating the debts. The management appears to have been continued after the Ijara in the same way as before the grant. The property was practically transferred subject to the profit of Rs. 700, and it seems to us that the grant of the Ijara was not for the benefit of the estate, but for the benefit of Khetra and his family, Khetra being the object of affection of Prosanna Kumari.
32. It appears that in 1876, i.e., 7 years after the Ijara, Prosanna Kumari and Bamakali sold some rent-free lands to Radha Mohun, vide Exhibit B (2). Radha Mohun excavated a tank and constructed a brick built ghat. He then made a gift of it to his son in 1296. There is another sale by the two widows in favour of Uma-moyee, brother's wife of Radha Mohan. Umamoyee also after her purchase in the name of her daughter excavated a tank, constructed a brick built ghat and planted trees in the garden. These sales took place after the grant of the Ijara when the widows were entitled only to the Ijara rent, and there is no explanation as to how Radha Mohun or Umamoyee obtained khas possession of thesa properties. These transactions are relied upon as showing the collusive nature of the Ijara. They throw some doubt about the real nature of the Ijara. But apart from these two transactions, there is nothing to show that the widows had anything to do with the lands covered by the Ijara. Having regard to the object of granting the Ijara which was to benefit Khetra and his family and the subsequent dealings with the Ijara, we think that it was not proved that the Ijara was a collusive one. We have, however, found that the Ijara was not justified by legal necessity and not beneficial to the estate.
33. The strongest argument in favour of the respondent is that the reversioners themselves had let out the entire estate to the plaintiff at a rent of Rs. 200 taking a selami of Rs. 1,000, and that this shows that the terms upon which the Ijara was granted by Prosanna Kumari were beneficial to the estate. It is contended on behalf of the respondents that the reversioners we're entitled to the proprietary right as only the life-interest of Prosanna Kumari had been sold, and, therefore, entitled at any rate to two-thirds of the Ijara rent (Rs. 7001/4) and that in the circumstances the rent reserved by the widow, as compared with that reserved by the plaintiff, was certainly beneficial to the estate.
34. But the Ijara did not contain the boundaries of the lands let out. The plaintiff claims 1,161 plots of land in the suit. As a matter of fact, the learned Subordinate Judge found that some of the plots have not been shown to form part of the estate of Madhusudan. Then the Ijara by Prosanna Kumari and Bamakali Comprised the three Taluks Nos. 396, 397 and 398, which were the only revenue-paying lands included in the estate, and they have already been sold away since the grant of the Ijara.
35. Two other properties were sold away by the widows to Radha Mohun and Umamoyee as stated above, and it is not clear from the record what are the relative values of the Taluks and the two properties and the lands included in the Ijara.
36. The defendants contested even the proprietary right of the reversioners, and the plaintiffs in taking the lease took upon themselves the burden of a heavy and costly litigation,
37. The Ijara right of Khetra, his brother and Shama Sundari, namely, 2/3rds share of the Ijara, was put up to sale on the 15th August 1895 at the instance of Kailash and others who were some of the then reversioners, and was purchased by Raj Kishore father of defendants Nos. 1 to 6 in the name of his servant. It is stated in the sale certificate that 'the Ijara Pattah granted by Prosanna Kumari one of the proprietors and Zemindars of the judgment-debtors in respect of the properties sold at auction shall remain in force during her lifetime so far as her right is concerned.' It is pointed out on behalf of the respondents that in the certificate of sale by which Prosanna Kumari's Maliki right to the land, namely, 2/3rds share was purchased by Raj Kishore on the 15th August 1395, although the Maliki right was described as a life-interest only, it was stated that 'the judgment-debtor has only a life-estate in the properties described in the above schedule and the Maliki right only to get the said permanent Ijara rent during her lifetime has been sold.'
38. It is contended on behalf of the appellant that the words in the original mean: Lasting for the lifetime of the judgment-debtor' (Prosanna), and do not mean permanent Ijara right. But we think that the original, as it stands, means a permanent Ijara right, though it, cannot be said to be quite clear. The decree-holders, however, at whose instanoe the two sales took place were the same persons, namely, Kailash and others, and the sales took place on the same day. In the certificate of sale relating to the Ijara right, it was distinctly stated that the Ijara was to remain in force only for the lifetime of Prosanna Kumari, and it is difficult to see why the same Ijara right was described as a permanent Ijara right in the sale certificate in connection with the Maliki right. The statement in the sale certificate Exhibit 3 (1) might have been due to some mistake. In any case, having regard to the clear terms in which the Ijara was described in certificate of sale relating to the sale of that right, we are unable to hold that there was any recognition of the permanent Ijara right by Kailash and others.
39. It appears that Prosanna and Bamakali brought a suit for arrears of rent against the Ijaradar and that on the death of Bamakali, the reversioners got themselves substituted in her place. It is accordingly contended on behalf of' the respondent that that amounted to ratification of the Ijara: and reliance was placed on the case of Modhu Sudan Singh v. Itooke 25 C. 1 : 24 I.A. 164 : 1 C.W.N. 433 : 7 M.L.J. 127 : 7 Sar. P.C.J. 194 : 13 Ind. Dec. (n.s.) 1 (P.C.). But in that case the rent, which was deposited by the Patnidar, and was withdrawn by the reversioners, was for a period subsequent to the death of the widow. In the case before us, the arrears of rent were for a period prior to the death of Bamakali and the reversioners could recover the amount due to the deceased only by getting themselves substituted in her place and proceeding with the cause of action upon which the suit had been brought by Bamakali. We do not think that under those circumstances it could be said that there was any ratification of the Ijara by the reversioners, at any rate so far, as Prosanna Kumari's share was concerned. We are accordingly of opinion that the Ijara is not binding upon the plaintiff.
40. The next question relates to the lands conveyed by Prosanna Kumari by the Kobala (Exhibit B), dated 5th May 1908, in favour of Raj Kishore Mondal for Rs. 800, in which it was recited that the lands had been purchased with her Stridhan. These lands, certain jamas situated and were purchased in rent due to the estate of defendant's contention it appears, were within the estate lieu of arrears of Madhusudan. The was that the rent being due to the widows, the properties purchased in lieu of such rent must be taken to be the Stridhan of the ladies.
41. The question for consideration, therefore, is whether the properties so acquired were her absolute properties or were accretions to the estate.
42. As laid down by the Judicial Committee in the case of Isri Dutt Koer v. Hansbutti Koerain 10 I.A. 150 : 10 C. 324 : 13 C.L.R. 418 : 7 Ind. Jur. 557 : 4 Sar. P. C.J, 459 : 5 Ind. Dec. (n.s.) 217 (P.C.), the matter which has to be looked at in deciding whether the property acquired or purchased by the widows is the--to descend with the husband's estate or is to be treated as a separate estate, is whether the widows have made any distinction between the original estate and the after-purchases.' In Sheolochun Singh v. Saheb Singh 14 C : 387 at p. 393 : 14 I.A. 63 : 11 Ind. Jur. 231 5 Sar, P.C.J. 1 : 7 Ind. Dec. (n.s.) 267 (P.C.) their Lordships observed: 'Where a widow comes into possession of the property of the husband, and receives the income and does not spend it, but invests it in the purchase of other property, their Lordships think that prima facie it is the intention of the widow to keep the estate of the husband as an entire estate, and that the property purchased would prima facie be intended to be accretions to the estate. There may be no doubt circumstances which would show that the widow had no such intention, that she intended to appropriate the savings in another way.' The question in each case is one of intention.
43. It appears that the jamas were purchased by the two widows Prosanna Kumari and Bamakali jointly in proportion to their shares in the original estate, namely 2/3rds and l/3rd respectively. Prosanna Kumari while selling the property declared in the Kobala that it was her Stridhan. And it is contended that the lands were purchased in the benami of one Mohesh who executed a conveyance in favour of the ladies, and that indicates an intention to keep the lands separate from the estate. But the' land covered by the Kobala Exhibit B was 97 bighas, and Mohesh says that only 22 bighas 2 cottas had been purchased in his name. On the other hand, in a suit brought by her as guardian of her alleged adopted son Basanta for recovery of the properties of Hari Narain on the death of Bamakali referred to above, l/3rd share of this purchased property, though described as 'self-acquired property of Prosanna Kumari and Bamakali purchased with their own money,' was claimed as part of Hari Narain's estate. No doubt it was a suit by Basanta but Prosanna Kumari brought this suit as his guardian. The fact that the properties were claimed as 'Hari Narain's estate shows the intention to treat the property as part of the original estate. The learned Subordinate Judge says that as the boundaries of the lands are not given in the plaint, it is difficult to say if these lands are identical with the lands transferred by the Exhibit B. But it is not suggested that Prosanna Kumari or Bamakali had purchased any lands other than those covered by the conveyance. We think that' the intention of the widows was to treat the purchased properties as part of the original estate, and, therefore, they must follow the corpus.
44. The appellants do not press their claim, and rightly so, with regard to Taluk No. 398 which has been sold for arrears of rent.
45. With regard to the remaining lands which are not covered by the Kobala (Exhibit B) nor by the certificate of sale, the plaintiffs' claim must fail. It is contended that no question was raised by the defendants that these lands did not form part of Madhusadan's estate, but there was a distinct issue raised on the point and it was found against the plaintiffs. We are of opinion that the decision of the Court below is right on this point.
46. The result is that the decree of the lower Court will be modified and the claim of the plaintiffs will be decreed only in respect of the plots Nos. 603 to 1161 covered by the Ijara Pattah and the Exhibit B.
47. The plaintiffs are entitled to mesne profits from the date of the institution of the suit until the delivery of possession, to be ascertained in further proceedings. As regards the period prior to the institution of the suit, however, we thick having regard to the circumstances of the case that the plaintiffs should get profits for 3 years prior to the date of the suit, calculated on the basis of the Ijara rent payable in respect of Prosanna Kumari's share in proportion to the lands decreed out of the properties covered by the Ijara, after deducting therefrom the proportionate rents and other demands payable in respect of the said lands, the amount of such profits being ascertained in further proceedings.
48. The parties will be entitled to costs in the proportion of two-thirds (appellants) and one-third (respondents).