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Debi Prosad Chowdhury Vs. Golap Bhagat - Court Judgment

LegalCrystal Citation
SubjectFamily;Property
CourtKolkata
Decided On
Judge
Reported in(1913)ILR40Cal421
AppellantDebi Prosad Chowdhury
RespondentGolap Bhagat
Cases ReferredNobokishore Sarma Roy v. Hari Nath Sarma Roy
Excerpt:
hindu law - alienation--mortgage by widow of part of the estate--legal necessity--presumption--reversioner. - jenkins, c.j.1. but see bajrangi singh v. manokarnika bakhsh singh (1907) i.l.r. 30 all. 1; l. r. 35 i. a. 1.2. in that case their lordships held the consent of the kinsmen to be evidence of the bond fides of the transaction. that, moreover, was a case of sale. their lordships refused to extend the bengal doctrine of nobokishore's case (1884) i.l.r. 10 calc. 1102. further, and to apply the rule of sale to mortgages would be to extend the operation of the bengal doctrine.3. it was held by the privy council in behari lal v. mad ho lal ahir gayawal (1891) i.l.r. 19 calc. 236; l. r. 19 i. a. 19 i. a. 30. that the widow must withdraw her whole interest. a mortgage is not a case of withdrawal of the entire interest.4. in bajrangi singh v. manokarnika bakhsh singh (1907) i.l.r. 30 all. 1; l. r......
Judgment:

Jenkins, C.J.

1. But see Bajrangi Singh v. Manokarnika Bakhsh Singh (1907) I.L.R. 30 All. 1; L. R. 35 I. A. 1.

2. In that case their Lordships held the consent of the kinsmen to be evidence of the bond fides of the transaction. That, moreover, was a case of sale. Their Lordships refused to extend the Bengal doctrine of Nobokishore's case (1884) I.L.R. 10 Calc. 1102. further, and to apply the rule of sale to mortgages would be to extend the operation of the Bengal doctrine.

3. It was held by the Privy Council in Behari Lal v. Mad ho Lal Ahir Gayawal (1891) I.L.R. 19 Calc. 236; L. R. 19 I. A. 19 I. A. 30. that the widow must withdraw her whole interest. A mortgage is not a case of withdrawal of the entire interest.

4. In Bajrangi Singh v. Manokarnika Bakhsh Singh (1907) I.L.R. 30 All. 1; L. R. 35 I. A. 1. the whole estate was transferred, and the point decided was that consent of the reversioners after the transfer would not make it inoperative.

Mookerjee, J.

5. Do you say that this case negatives the surrender theory?

6. No. It only says that consent raises a presumption of legal necessity.

Mookerjee, J.

7. How is this consistent with the surrender theory?

8. They were dealing only with the questions as to the quantum of consent necessary and the proof of it.

Mookerjee, J.

9. Why should those questions arise if the surrender theory were right?

10. Sales of portions would be difficult to justify on the surrender theory. Bajrangi's case (1907) I.L.R. 30 All. 1; L. R. 35 I. A. 1. does not deal with the surrender theory at all. It merely decides a rule of evidence. There the sales were sales of portions at different times, making up in all the whole property. In this case it was only a mortgage, and it makes no difference that it was a usufructuary mortgage. The safeguard against abuse of the rights of the life interest of the widow is absent in a mortgage. The doctrine of acceleration or surrender is useful in cases where, as here, no legal necessity is alleged.

11. In Marudamuthu Nandan v. Srinivasa Pillai (1898) I.L.R. 21 Mad. 128 it was a case of a sale of a portion. Even in a sale of a part the widow withdraws her whole interest as to that part.

12. A consent of the reversioners to a mortgage would not of itself prove the existence of legal necessity. Whether the presumption of legal necessity arises from consent is a question of fact.

13. It is a significant fact that, except in the recent case of Hari Kissen Bhagat v. Bajrang Sahai Singh (1909) 13 C. W. N. 544. there is no reported case of a mortgage. Therefore the uniform current of authority referred to in the argument in Nobokishore's case (1884) I.L.R. 10 Calc. 1102. does not help us in the present discussion. Rangappa Naik v. Kamti Naik (1908) I.L.R. 31 Mad. 366. and Muthuveeru Mudaliar v. Vythilinga Mudaliar (1908) I.L.R. 32 Mad. 206. decided after Bajrangi's case (1907) I.L.R. 30 All 1; L. R. 35 I. A. 1. support my contention. See also Pulin Chandra Mandal v. Bolai Mandal (1908) I.L.R. 35 Calc. 939. The presumption of propriety of transfer arising from consent is rebuttable.

14. A surrender by the Hindu widow in favour of the next reversioner of the whole interest is supported by Hindu law and authorities.

15. Sreemutty Jadomoney Dabee v. Sarodaprosono Mookerjee (1856) 1 Boulnois 120; 3 I. D. (O. S.) 72. discussed. The question there was whether conveyance of the whole interest was valid.

16. There are really two principles that can be deduced from these cases: (i) that surrender of whole estate to the next heir or, with his consent, to a stranger, is a valid transfer, and (ii) alienation of whole or part must have justifying legal necessity. The consent of the reversioners is a piece of evidence: Raj Lukhee Dabea v. Gokool Chunder Chowdhry (1869) 13 Moo. I. A. 209; 3 B. L. R. (P. C.) 57.

Jenkins, C.J.

17. See Dayabhaga, Ch. XI. Is there not a third doctrine,---the doctrine of Narada?

18. This is a Mitakshara case.

Jenkins, C.J.

19. Are not there the words, etc.? How do you meet Narada's doctrine?

20. That is a special case of gift to the kindred of a woman's father or mother. That is not the general law.

Jenkins, C.J.

21. Begin at verse 26 of Chapter XI and read what follows for general scheme.

22. The full power given to the husband's kinsmen by those verses does not mean power to dispose of the property in conjunction with the widow. The verse of Narada quoted there refers only to the perpetual tutelage of the woman. It does not authorize her to give to any but to her own father or mother's family. Kindred of husband mean others than next reversioners: see Dayabhaga, Ch. XI, v. 56 and 62; Strange, vol. II, p. 409 at 410; Kalee Mohun Deb Roy v. Dhununjoy Shaha (1866) 6 W. R. 51. Madhub Chunder Hajrah v. Gobind Chunder Banerjee (1868) 9 W. R. 350. and Gunga Pershad Kur v. Shumbhoonath Burmun (1874) 22 W. R. 393.

23. Babu Dwarkanath Chakrabarti (following Mr. Sinha) refers to the original authorities. So far as the Dayabhaga is concerned, the rights of widows are dealt with in Ch. XI, Sections 1, verse 56 et seq. Reads verses 56 to 59. Verse 59 is the basis of the theory of surrender, and is a very important verse. Two other important verses are 63 and 64. They are a continuation of 61. Verse 64 introduces a limitation. There is no mention of reversionary heirs.

24. In dealing with the question of succession after the death of the widow, Jimutabahana says that it opens after her death. Sreekrishna speaks of her death, but Churamani adds 'when the right ceases.' From these words the theory of acceleration of the reversioner's right by surrender is based. The original texts therefore give no support to the theory of surrender.

25. Section 61 only provides for gifts or other alienations by the widow for the spiritual benefit of the husband. Section 62 provides for alienation for legal necessity. Section 63 says that the widow may make gifts to the husband's kindred at the husband's obsequies, but prohibits any such gifts to her own kindred. But verse 64 says that gifts to her own kindred may be made with the consent of her husband's kindred. It is clear, therefore, that the Dayabhaga nowhere authorises any alienation with the consent of the revisioners. Verse 64 would be no authority for such a proposition.

26. Then; Narada denies all rights to the widow in her husband's property. See Jolly's edition, Ch. XIII, verses 25 to 29. Verse 28 says that the husband's kins are her guardian, and that they have power in disposing of her and not of her husband's property. The text of Narada does not support the view of the Dayabhaga in verse 64---'In disposal of property by gift or otherwise she is subject to the control of her husband's family.' But the Dayabhaga was the champion of the widow's rights, and was the exponent of the progressive view of the times.

27. The two principles of surrender and alienation with the consent of kindred are based on texts. The question is, how far that ancient idea is kept up. A widow may retire in favour of the reversioner. As far as the texts go, she cannot alienate to any but the reversioner. Nobokishore Sarma Roy y. Harinath Sarma Roy (1884) I.L.R. 10 Calc. 1102. goes beyond the text: see the remarks of Garth C.J. in that case. The case law has gradually extended the doctrine illogically: see Mitter J.'s judgment. They invoke fictions. The Bombay High Court proceeds on a different basis: it takes it only as evidence. The Privy Council in Bajrangi's case (1907) I.L.R. 30 All. 1; L. R. 35 I. A. 1. says that all Courts agree in attaching certain consequences to the consent of the reversioners. They do not go to expound the orthodox theory. Behari Lal v. Madho Lal Ahir Gayawal (1891) I.L.R. 19 Calc. 236; L. R. 19 I. A. 30. is a Bengal case, and their Lordships clearly proceed on the theory of acceleration by surrender. They dismissed the claim because the entire bar of life estates had not been removed. A mortgage is not a surrender of the whole estate.

Jenkins, C.J.

28. Property must vest in an heir or, if she is a widow, we say the heir for the time being. I can understand her ceasing to be a heir by civil death or by executing a disclaimer. In that case the estate must vest in the reversioner. But I can't understand her ceasing to be heir by asserting her heirship in the act of transfer.

29. Mitakshara, Ch. II, Section 1 (Stoke's ed., p. 431). Texts of Narada or Vrihaspati are not used by Mitakshara. There is no para in Mitakshara authorizing the widow to alienate as the Dayabhaga does. The Dayabhaga is of a later stage.

30. [Dr. Ghose. But see Ch. II, Section 1, verses. 5 and 6.]

31. Those verses do not say anything as to widow's rights. The Mitakshara gives no right so long there are any males.

32. Therefore, from the texts a surrender is possible only of the entire estate. Nobokishore's case (1884) I.L.R. 10 Calc. 1102. perhaps makes some difference. The decision in Behari Lal's case (1891) I.L.R. 19 Calc. 236; L. R. 19 I. A. 30. was based on surrender. That is why we do not find cases, except only recently, of mortgages.

33. As to consent, original texts deal with kinsmen only and not reversioners. If all kinsmen join, there is very good and cogent evidence. In Raj Lukhee's case (1869) 13 Moo. I. A. 209, 228; 3 B. L. R. (P.C.) 57., the Privy Council had to deal with the consent of the husband's kindred, and treats the consent as evidence of necessity only. That was no case of surrender. The consenting party was no reversioner.

34. In Bairangi's case (1967) I.L.R. 30 All. 1; L. R. 35 I. A. 1. practically all kinsmen joined.

35. The case of surrender is one question, propriety is another. Evidence of legal necessity is therefore necessary when the question of propriety comes.Here there is no finding of legal necessity.

36. Dr. Rashbehary Ghose (with him Babu Umakali Mukherji, Babu Mahendra Nath Roy, Babu Upendra Nath Chatterji and Babu Nareshchandra Singha), for the respondent. A mortgage is an alienation. There is great danger in reversing a concurrent course of decisions. It would disturb thousands of titles. It may not be easy to formulate the basis on which the series of decisions rest. These cases rest apparently on the ground that under the Hindu law the widow and the next reversioners represent the entire inheritance. I am not now discussing acceleration. For some purposes they undoubtedly represent all. Take a suit by a mortgagee. Who are the parties? See Srinath Dass v. Hari Pada Mitter (1899) 3 C. W. N. 637. which relied on Nugenderchunder Ghose v. Kaminee Dossee (1867) 11 Moo. I. A. 241. and Mohima Chunder Roy Chowdhry v. Ram Kishore (1875) 23 W. R. 174. Take another case---a suit under Article 118 of the Limitation Act. There is no doubt a conflict of decisions: see Shrinivas Murar v. Hanmant (1899) I.L.R. 24 Bom. 260. Pulin Chandra Mandal v. Bolai Mandal (1998) I.L.R. 35 Calc. 908. and Ayyodorai Pillai v. Solai Animal (1901) I.L.R. 24 Mad. 405.

37. These cases may also be supported on the principle that, apart from any question of legal necessity, alienation by a widow with the consent of the next heir is a valid transaction. There is, moreover, the ground that a court is bound to presume, notwithstanding the dictum in Raj Lukhee's case (1869) 13 M. I. A. 209; 3 B. L. R. (P.C.) 57., that a transaction entered into by a widow with the consent of the next heir is a legitimate transaction. It is not at all necessary to presume legal necessity or to find that the purchaser made bond fide enquiry before purchase. In Bajrangi's case (1907) I.L.R. 30 All. 1; L. R. 35 I. A. 1., there was no legal necessity at all--not even the pretence of one. There was neither a surrender of the whole estate at a time.

38. There has been a divergence of opinion between some of the High Courts as to gifts, I would not, therefore, put it on the ground of the presumed existence of legal necessity, but on the ground that a Court is bound to presume it to be a valid transaction. Whether the judgment of the Judicial Committee in Bajrangi's case (1907) I.L.R. 30 All. 1; L. R. 35 I. A. 1. is sound or not, it is binding on us. Quite apart from that case, just look at the series of cases in Bengal. Even in Sir Richard Garth's time it was felt that a decision contrary to the fixed law at the time would have upset many titles. In 1913 it would be still more disastrous.

39. In Jadomoney Dabee v. Sarodaprosono Mookerjee (1856) 1 Boulnois 120; 3 I. D. (O. S.) 72. the decision was based not on the ground of surrender, but whether there was sufficient representation or not. The original texts speak only of the consent of the heirs. 'Heirs' does not mean all possible heirs.

40. The Full Bench case of Nobokishore Sarma Roy v. Hari Nath Sarma Roy (1884) I.L.R. 10 Calc. 1102. refers to the case of Trilochun Chuckerbutly v. Umesh Chunder Lahiri (1880) 7 C. L. R. 571. in which the sale was a sale of only portions.

41. The Calcutta High Court has consistently followed the same principle, rightly or wrongly: Mohunt Kishen Geer v. Busgeet Roy (1870) 14 W. R. 379. Raj Bullubh Sen v. Oomesh Chunder Rooz (1878) I.L.R. 5 Calc. 41. After the Pull Bench case we have Annada Kumar Roy v. Indra Bhusan Mukhopadhya (1907) 12 C. W. N. 49. and Bepin Behari Kundu v. Durga Charan Banerji (1908) I.L.R. 35 Calc. 1086. In the last mentioned case, there was only the consent of the daughters.

Mookerjee J.

42. But Maclean C.J. referred to the presumption.

43. The question did not really arise, and as to that see Annada Kumar Roy v. Indra Bhusan Mukhopadhya (1907) 12 C. W. N. 49. Putin Chandra Mandal v. Bolai Mandal (1908) I.L.R. 35 Calc. 939. Sankar Nath Mukerji v. Bejoy Gopal Makerji (1908) 13 C. W. N. 201.

Mookerjee, J.

44.They then accept the surrender theory.

45. I profess I am unable to reconcile the various theories unpn which the alienations in the several cases have been supported. But the rule is there and it is too late in the day to upset it: Hem Chunder Sanyal v. Sarnamoyi Debi (1894) I.L.R. 22 Calc. 354.

46. In the last mentioned case Banerjee J. also refers to Behari Lai's case (1891) I.L.R. 19 Calc. 236; L. R. 19 I. A. 30.

47. The transfer of the whole and the transfer of a part with consent stand on the same footing.

48. Their Lordships in Jadomoney's case (1856) 1 Boulnois, 120; 3 I. D. (O. S.) 72. pointed out that if the consent of every one who stood in the line of succession were necessary, no alienation would ever be possible.

49. The real ground of Nobokishore's case (1884) I.L.R. 10 Calc. 1102. was the long course of decisions.

50. In answer to Radha Shyam Sircar v. Joy Ram Senapati (1890) I.L.R. 17 Calc. 896, 900 n. I place the decision in Bajrangi's case (1907) I.L.R. 30 All. 1; L. R. 35 I. A. 1., where it has been held that in some cases the consent of all may be waived.

51. In Behari Lal v. Madho Lal Ahir Gayawal (1891) I.L.R. 19 Calc. 236; L. R. 19 I. A. 30. the question was, whether or not a grandson who was in existence at the date of the transaction by the widow was entitled to succeed to the exclusion of a grandson born subsequently. That would depend on whether or not the widow had made a surrender so as to accelerate the estate of the then reversioner. It was held that there had been no acceleration. Their Lordships were not discussing the question that is before you, viz., whether a transfer made by a widow with the consent of the next reversioner is valid or not. I do not dispute for a moment that to accelerate the estate the widow must commit a 'moral suttee' so to say, i.e., cease to be an heir.

Jenkins, C.J.

52. Is it the fact that their Lordships in Nobokishore's case (1884) I.L.R. 10 Calc. 1102., refused to disturb the long course of decisions, or they only said that consent is necessary, but they did not precisely say what quantum of consent is wanted

53. It was laid down there that a transfer made with consent would give a complete title to the transferee that cannot be challenged in any way. If the question of consent or legal necessity could be gone into, the purchaser's title would be precarious. Suppose the reversioner dies before the widow.

Jenkins, C.J.

54. But let us look to the exact question formulated in the reference.

55. The Subordinate Judge in Nobokishore's case (1884) I.L.R. 10 Calc. 1102. found that there was no justifying legal necessity. The whole point is whether the presumption of necessity arising from consent is rebuttable or not. I say it is irrebuttable. Mr. Sinha says it is rebuttable.

56. I can understand the judgment of Doss J. in Hart Kissen Bhagat v. Bajrang Sahai Singh (1909) 13 C. W. N. 544. that if a sale of a part would not be binding on the other reversioners, it would not be binding in the case of a mortgage, but I do not understand why, if it be binding as to whole in sales, it would not be binding in the case of a mortgage. This judgment has really caused the reference. On this point I again rely on Hem Chunder Sanyal v. Sarnamoyi Devi (1894) I.L.R. 22 Calc. 354. which is really in my favour.

Jenkins, C.J.

57. If you say that relinguishment is another term for surrender how can you say that transfer of a part is valid?]

58. In Trilochun Chuckerbutty v. Umesh Chunder Lahiri (1880) 7 C. L. R. 571. the transfer was of a part: see also Nobokishore's case (1884) I.L.R. 10 Calc. 1102. Marudamuthu Nadan v. Srinivasa Pillai (1898) I.L.R. 21 Mad. 206. is undoubtedly against me. But see Rangappa Naik v. Kamti Naik (1903) I.L.R. 31 Mad. 206. and Muthu-veeru Mudaliar v. Vythilinga Mudaliar (1908) I.L.R. 32 Mad. 206. The Bombay cases Ramkrishna Kuppuswami v. Tripurabai : (1911)13BOMLR940 . and Hunsrai Morarji v. Bai Moghibai (1905) 7 Bom. L. R. 622, 632. are also really in my favour.

59. After the decision of the Judicial. Committee in Bairangi' s case (1907) I.L.R. 30 All. 1; L. R. 35 I. A. 1., the Madras decisions cited above cannot count for much.

60. The Allahabad High Court evidently does not follow Bairangi's case (1907) I.L.R. 30 All. 1; L. R. 35 I. A. 1., though it must. It follows its older decision in Ramphal Rai v. Tula Kuari (1883) I.L.R. 6 All. 116. which the Privy Council has overruled. In Bakhtawar v. Bhagwana (1910) I.L.R. 32 All. 176. the Privy Council case is distinguished, as the Allahabad case was one of gift.

61. The judgment of the Judicial Committee rests on a proposition which is deducible from the current of cases and from Hindu law, and that is that a transfer by a widow with the consent of the kinsmen is valid. The only question is what is the amount of consent that is necessary. The Allahabad High Court wants it to be the consent of all kinsmen and not merely of the next reversioner: Abdulla v. Ram Lal (1911) I.L.R. 34 All. 129. That also is a case of gift.

62. Before Bajrangi's case (1907) I.L.R. 32 All. 1; L. R. 35 I. A. 1. it was uncertain as to the consent of which of the kindred is necessary. The Privy Council really adopted the view of Jadomoney's case (1856) 1 Boulnois 120; 3 I. D. (O. S.) 72.

Jenkins, C.J.

63. This is an alienation of a part.

64. It does not matter. I contend that whether the view taken in Nobokishore's case (1884) I.L.R. 10 Calc. 1102. is right or wrong, it is the settled law, and it would be disastrous to alter it now. I also contend that consent of the next reversioner is sufficient as the consent of kinsmen.

Jenkins, C.J.

65. If Nobokishore's case (1884) I.L.R. 10 Calc. 1102. be excluded as debateable, I do not find any case where it has been held that consent without legal necessity validates alienation.

66. Trilochun Chuckerbutty v. Umesh Chunder Lahiri (1880) 7 C. L. R. 571. Mohunt Kishen Geer v. Busgeet Roy (1870) 14 W. R. 379. Hem Chunder Sanyal v. Sarnamoyi Devi (1894) I.L.R. 22 Calc. 354. and Annada Kumar Roy v. Indra Bhusan Mukhopadhya (1907) 12 C. W. N. 49. All these were cases before Bairangi's case (1907) I.L.R. 30 All. 1; L. R. 35 I. A. 1.

67. Pulin Chandra Mandal v. Bolai Mandal (1908) I.L.R. 22 Calc. 939. is also a case in point. In Bepin Behari Kundu v. Durga Charan Banerji (1908) I.L.R. 35 Calc. 1086. Dr. Sen had to rely on the consent of the daughters as evidence. The case is distinguishable.

68. The real basis of the long current of Bengal judgments must be presumed to be that the widow and the next reversioner together represent the whole inheritance: see also Narada's text in Ch. XI, Section 1, verse 64 of Dayabhaga, and Dayacrama, Ch. I, Section 2, para. 7.

69. In Jadomoney's case (1895) 1 Boulnois 120; 3 I. D. (O. S.) 72. the Judges dealt with most of the earlier cases. Some of these are: Hemchund Mujoomdar v. Mussummaut Tara Munnee (1811) 1 Mac. Sel. Rep. 481, 484; 6 I. D. (O. S.) 352. Gocul Chund Chuckerwurtee v. Mussummaut Rajranee (1816) 2 Mac. Sel. Rep. 213; 6 I. D. (O. S.) 521. Brindabun Chund Rai v. Bishun Chund Rai (1826) 4 Mac. Sel. Rep. 180; 7 I. D. (O. S.) 134. and Agund Raee v. Rughoonath Sahye (1835) 6 Mac. Sel. Rep. 37; 7 I. D. (O. S.) 693. In Gocul Chund's case (1816) 2 Mac. Sel. Rep. 213; 6 I. D. (O. S.) 521. it was held that the consent of the reversioner is necessary only if there is no legal necessity. That case also states what is meant by 'reversioner.'

Jenkins, C.J.

70. That was a case where the entire estate was transferred.

71. In Jadomoney's case (1856) 1 Boulnois 120; 3 I. D. (O. S.) 72., Colville C.J. speaks of transfer of a part at p. 131.

Jenkins, C.J.

72. That contemplates gift to husband's or wife's kinsmen.

73. All these cases are summarized and discussed in Dr. Mitra's Tagore Law Lectures for 1879 at p. 372 et seg., and Mayne's Hindu Law (7th Ed.), p. 855.

74. In Collector of Masulipatam v. Cavaly Vencata Narrainapah (1861) 8 Moo. I. A. 529, 551; 2 W. R. (P. C.) 61. their Lordships say: 'it may be taken as established that an alienation by her, which would not otherwise be legitimate, may become so if made with the consent of her husband's kindred.' There is no question of presumption, far less of rebuttable presumption. The rule as to the evidentiary value of consent is common sense.

Jenkins, C.J.

75. There their Lordships take it as a fact that could be presumed.

76. As a matter of course, but not as matter of rebuttable presumption.

Jenkins, C.J.

77. You rather misread the word 'may' It is not 'must'.

78. They say later on, 'must be proper.'

79. Raj Lukhee Dabea v. Gokool Chunder Chowdhry (1869) 13 Moo. I. A. 209, 228; 3 B. L. R. (P. C.) 57. strikes a discordant note when it says: 'Their Lordships do not mean to impugn those authorities which lay down that a transaction of this kind may become valid by the consent of the husband's kindred, but the kindred in such case must generally be understood to be all those who are likely to be interested in disputing the transaction.' Well, the difficulty in India is to make out the next reversioner; that difficulty is got over, and the conflict of law is settled in Bajrangi's case (1907) I.L.R. 30 All. 1; L. R. 35 I. A. 1. If that case is good law, it is not merely a question of presumption. You are bound to follow the latest Privy Council case.

80. In Vinayak Vithal Bhange v. Govind Venkatesh Kulkarni (1900) I.L.R. 25 Bom. 129. it was held that the consent of all and every reversioner is not necessary.

81. It is difficult to appreciate the application of the principle of acceleration by the Calcutta High Court, if the only question was one of presumption. The quotation of texts would have been quite unmeaning then.

82. See Govindchund Bysack v. Cossinaut Bysack (1826) Montr. H. L. C. 477; 1 I. D. (O. S.) 292. in Shamacharan Sarkar's Vyavastha Darpan, Volume II, p. 41, which is referred to in Jadomoney's case (1856) 1 Boulnois 120; 3 I. D. (O. S.) 72. In Bajrangi's case (1907) I.L.R. 30 All. 1; L. R. 35 I. A. 1., there were successive deeds. For the facts of the case see the reports in the Allahabad Series.

Jenkins, C.J.

83. All those together make up the whole estate and the reversioners give their consent by one deed.

84. Yes, but that does not make any difference in law: see the arguments in Bajrangi's case (1907) I.L.R. 30 All. 1; L. R. 35 I. A. 1. Their Lordships say the High Courts were agreed as to the 'general principle'.

85. In Ramphal Rai v. Tula Kuari (1883) I.L.R. 6 All. 116. they were dealing with consent of the reversioner. It was challenged by a remote kinsman.

86. Their Lordships in Bajrangi's case (1907) I.L.R. 30 All. 1; L. R. 35 I. A. 1. followed the Calcutta High Court and disapproved of the Allahabad decision.

87. See also Rangappa Naik v. Kamti Naik (1908) I.L.R. 31 Mad. 366; 375. and Vinayak Vithal Bhange v. Govind Venkatesh Kulkarni (1900) I.L.R. 25 Bom. 129. per Ranade J.

Mookerjee, J.

88. Up to a certain point, there is no difficulty or difference.

89. We come back to Bajrangi's case (1907) I.L.R. 30 All. 1; L. R. 35 I. A. 1. again.

Jenkins, C.J.

90. See Radha Shyam Sircar v. Joy Ram Senapati (1890) I.L.R. 17 Calc. 896, 900.

91. That was a case of alienation of a part of the estate without the consent of all near reversioners.

Jenkins, C.J.

92. On the question of estoppel, and spes successionis have you seen Bahadur Singh v. Mohar Singh (1901) I.L.R. 24 All. 94, 107.

93. But see Colville C.J.'s judgment in Jadomoney's case (1856) 1 Boulnois 120; 3 I. D. (O. S.) 72. It does not matter whether it is the whole or part.

94. This reference has not been made because there is any decision that such a transfer would be invalid, but because of Doss J.'s decision. (1907) 13 C. W. N. 544., in which he holds that sale is different from mortgage.

Stephen, J.

95. Is there any question here of a difference between Dayabhaga and Mitakshara?

96. No. In any case, it is all in my favour. This question is elaborately discussed in G. Sarkar's Hindu Law, pp. 416 and 417.

97. The old cases referred to by my opponent support the ex stence of lawful purpose or justifying cause. For example, Kalee Mohun Deb Hoy v. Dhununioy Shaha (1866) 6 W. R. 51. It is held there that 'in the absence of any fraud', consent is good evidence of the bond fides of the alienee. Even if the consent is not cogent evidence, which I contend it is, it plainly shows that the alienee acted in good faith. It is conclusive. In this case, my client paid off some prior debts, and other prior debts were also paid from the mortgage money. See Madhub Chunder Hairah v. Gobind Chunder Banerjee (1868) 9 W. R. 350.

Doss, J.

98. Was wrong in reading Achhan Kunwar's case (1898) I.L.R. 21 All. 71; L. R. 25 I. A. 183. in the way he did.

99. Mr. Sinha, in reply: If this transaction can be upheld upon texts, upon logical deduction from them, or on case-law, there is nothing to be said. But it cannot be so upheld.

100. It is conceded that sales of portions cannot be supported by the doctrine of acceleration. In such cases you must prove legal necessity. We have been told that the texts authorize alienation of portions to husband's kindred, But when? Only at the funeral of the husband, or at other times for spiritual benefit. A sale of a portion to a stranger for money cannot confer such a benefit.

101. There is no current of authority in cases of mortgage.

102. Whether there was necessity is a matter of evidence. Consent may be evidence, but not conclusive by itself. The widow may recite in the deed of transfer a purpose that is not justifiable. Certainly the consent of the reversioners would not validate the transfer.

103. I am prepared to argue that the earlier cases holding that sales of portions were valid were wrongly decided. Why extend such a doubtful principle to mortgages? We should always bear in mind the warning in Bajrangis case (1907) I.L.R. 30 All. 1; L. R. 35 I. A. 1. that the principle should not be extended indiscriminately.

Cur. adv. vult.

Jenkins, C.J.

104. The question submitted for the determination of this Full Bench is in these terms:

Is the alienation, by way of mortgage by a Hindu widow of a portion of the estate of her husband, without any proved legal necessity, but with the consent of the next reversioner for the time being, valid and binding on the actual reversioner who is not the beir of the consenting reversioner?

105. The husband in this case died without male issue and the widow became, and at the date of the alienation still was, his heir.

106. A widow's power of alienation for purely Worldly purposes over her sonless husband's estate has been a constant theme of discussion, and in some respects it has been placed beyond the possibility of further argument.

107. Thus it may be taken as settled beyond dispute that she can alienate for legal necessity either the whole or a part of her deceased husband's estate, and that even in the absence of such necessity the alienee's title will prevail if he made reasonable enquiry and acted in the honest belief that such necessity existed. But the problem how far apart from this she can alienate merely with the consent of her husband's kindred is beset with difficulty.

108. A multitude of authorities bearing on this point has been cited to us; and though I have considered them all I propose to refer only to a few in expressing my opinion on the question submitted for our determination.

109. In 1826 a Hindu widow's position was considered by the Privy Council, and Lord Gilford in delivering their Lordships' opinion said of her, 'she is entitled to the possession of the property, but that she is only entitled to enjoy it according to the rights of a Hindu widow which it appears to me to be absolutely impossible to define---I mean the extent and limit of her power of disposing of it; because it must depend upon the circumstances of that disposition, whenever such disposition shall be made, and. must be consistent' with the law regulating such dispositions': Govindchund Bysack v. Cossinaut Bysack (1826) Montriou's H. L. C. 477; 1 I. D. (O. S.) 292, 309.

110. In the Collector of Masulipatam v. Cavaly Vencata Narrainapah (1861) 8 Moo. I. A. 529; 2 W. R. (P. C.) 61. decided in 1861, it was said at page 551 of a Hindu widow that 'for religious or charitable purposes, or those which are supposed to conduce to the spiritual welfare of her husband, she has a larger power of disposition than that which she possesses for purely worldly purposes. To support an alienation for the last she must show necessity. On the other hand, it may be taken as established that an alienation by her which would not otherwise be legitimate, may become so if made with the consent of her husband's kindred. . . . . The exception in favour of alienation with consent may be due to a presumption of law that where that consent is given the purpose for which the alienation is made must be proper'.

111. The case of Raj Lukhee Dabea v. Gokool Chunder Choudhry (1869) 13 Moo. I. A. 209; 3 B. L. R. (P. C.) 57. came before the Privy Council in 1869 on appeal from the High Court at Fort William in Bengal. The transaction in controversy was a sale by a widow, the deed of conveyance being executed by her and attested by one Juggut Ram. The High Court held that the consent of Juggut Ram, unquestionably given at the time of the sale and against his own obvious interests, was a very strong piece of evidence in favour of the purchaser, as Juggut Ram was then the sole heir and reversioner, and, at the date of the sale, was the person most likely to know the real state of the case and the urgent necessities of the widow. In delivering the opinion of the Privy Council Sir James Colville, dealing with this question of consent, said: 'Their Lordships do not mean to impugn those authorities which lay down that a transaction of this kind may become valid by the consent of the husband's kindred, but the kindred in such case must generally be understood to be all those who are likely to be interested in disputing the transaction. At all events, there should be such a concurrence of the members of the family, as suffices to raise a presumption that the transaction was a fair one, and one justified by Hindu Law. That it can be, as Mr. Field seemed to put it, a presumption of law in the sense of praesumptio juris et de jure, their Lordships do not think. It is, no doubt, an element to be taken into consideration, and deserving of considerable weight in the estimation of all the evidence of the transaction.'

112. Their Lordships, after expressing their inability to affirm that Juggut had concurred in the deed, and their opinion that he was not proved to have been the next heir, then proceed as follows: 'On the other hand, the very fact of his connection with the family leads to the presumption that he knew that the present appellant had the power given to her by her husband to adopt a child, and that, therefore, his interest, even if it existed, as next reversioner, was in all probability likely to be defeated. Therefore, if his concurrence' were proved, it would not amount to such a concurrence by the husband's kindred as, in the opinion of their Lordships, would have defeated the plaintiff's claim.' Then after pointing out that no issue as to concurrence had been raised in the pleadings or in earlier stages of the cause, they say: 'The case of the party who sought to support the validity of this transaction was, that the sale had been made for particular purposes. He gave no evidence of that. He did not, by any suggestion in his written statement or otherwise, put forward the concurrence of Juggut Ram, either as supplying the want of proof of the existence of the debts and the necessity of the sale, or as a consent equivalent to such proof.'

113. In Sham Sundar Lal v. Achhan Kunwar (1898) I.L.R. 21 All. 71; L. R. 25 I. A. 183. Lord Davey, delivering their Lordships' opinion, says: 'To give validity to the bonds . . . . the plaintiffs . . . . must show that there was legal necessity for raising the money by a charge on Khairati's estate, or at least that in advancing their money the creditors gave credit on reasonable grounds to representations that the money was wanted for such necessity. It is not a case in which all the kindred of Khairati have assented or could assent to the bonds', or either of them, and the circumstances are not such as, in the opinion of their Lordships to raise any presumption from such concurrence as there was of Achhan Kunwar and Inayet Singh in the first bond, or of Inayet Singh in the second bond that the transaction was a fair one or one justified by Hindu law. In order to raise such a presumption the consent of the deceased's kindred to his widow's or daughter's alienation must be shown to be given with a knowledge of the effect of what they were doing, and an intelligent intention to consent to such effect.'

114. The law as enunciated by their Lordships in these cases is dear; the difficulty is occasioned by a decision of a Full Bench of this Court in Nobokishore Sarma Roy v. Hari Nath Sarma Roy (1884) I.L.R. 10 Calc. 1102. where an answer in the affirmative was given to the question, ' whether, according to the law current in Bengal, a transfer or conveyance by a widow upon the ostensible ground of legal necessity, such transfer being assented to by the person who at the time is the next reversioner will conclude another person not a party thereto who is the actual reversioner upon the death of the widow from, asserting this title to the property?'

115. This decision rests on the theory of an acceleration of the next heirs' interest occasioned by the widow's relinquishment in his favour.

116. The reasoning in effect is this: it is only the widow's interest that stands in the way of the next heir's succession; that obstacle is removed by the determination of the widow's interest: the determination can be effected by her death, civil or natural, by disclaimer at the husband's death, and so by relinquishment later.

117. In English law, it is true, a disclaimer by an heir will have no effect; all he can do is to dispose of his inherited property by an ordinary conveyance, but Nobokishore's case (1884) I.L.R. 10 Calc. 1102. appears to lay down a different rule, at any rate for a Hindu widow.

118. But as there cannot be a disclaimer of a part, so the relinquishment must be of the whole, for it is only by a total relinquishment that the condition of the heirship can be determined: Moazam Hassain Chowdhuri v. Bhouddin (1900) 5 C. W. N. 189.

119. It was suggested by the respondent that in Nobokishore's case (1884) I.L.R. 10 Calc. 1102. the dealing was with a part of the-property, and, as supporting this, reliance was placed on the language of Banerjee J. in a later case. But there is nothing in the report of Nobokishore's case (1884) I.L.R. 10 Calc. 1102. that supports this view, and an examination of the original record in no way helps the respondent's contention. Moreover, it is opposed to the line of reasoning on which the decision rests. This view is in accord with the language of the Privy Council in Behari Lal v. Madho Lal Ahir Gayawal (1891) I.L.R. 19 Calc. 236; L. R. 19 I. A. 30. where it was said in appeal from Bengal: 'It may be accepted that, according to Hindu law, the widow can accelerate the estate of the heir by conveying absolutely and destroying her life estate. It was essentially necessary to withdraw her own life estate, so that the whole estate should get vested at once in the grantee. The necessity of the removal of the obstacle of the life estate is a practical check on the frequency of such conveyances.'

120. Starting then from the established position that the next heir's succession can be accelerated by relinquishment, it was determined in Nobokishore's case (1884) I.L.R. 10 Calc. 1102. as a logical consequence that the widow, with the next heir's consent, could alienate without any necessity.

121. But if logic is to have any place, the alienation so sanctioned must be of the entire estate. How far it can be said that the doctrine of acceleration consequent on relinquishment applies where the widow retains an interest in the purchased price, or the sale is little more than a change of investment, it is difficult to say; the cases do not refer to this. The road to the decision in Nobokishore's case (1884) I.L.R. 10 Calc. 1102. was not without its difficulties, but the learned. Judges felt it had to be travelled that titles might be quieted. But it is settled that there should be no extension of this Bengal doctrine: Bajrangi Singh v. Manokarnika Bakhsh Singh (1907) I.L.R. 30 All. 1; L. R. 35 I. A. 1.

122. Much reliance has been placed on this last decision of the Privy Council by the respondent in the argument before us, and Dr. Rashbehary has even contended that it is conclusive in his favour. There, by successive instruments, a widow purported to transfer for valuable consideration to her son-in-law the whole estate of her deceased husband whose heir she was. Subsequently the consent of the nearest reversionary heirs was obtained, but they predeceased the widow. This consent took the form of a relinquishment embodied in two deeds. The transaction was impugned by those who, at the widow's death, were the next heirs, and the question raised was whether the 'deeds confirming the sales by the widow to Maheshar, executed by the then nearest reversioners, and disclaiming all title to the property in dispute, were binding on their descendants, the appellants, who were the nearest reversioners at the time when the succession opened, at the widow's death' (1907) I.L.R. 30 All. 1, 14. No new principle was formulated; that already established by prior decisions was applied to a novel set of facts.

123. The judgment, after stating that the principle is admitted, points out that the only question remaining' for determination was the quantum of consent necessary. On this, the stricter doctrine of Allahabad was rejected in favour of the more tolerant view that ordinarily the consent of the whole body of persons constituting the next reversioners should be obtained, though there might be cases in which special circumstances might render the strict enforcement of this rule impossible.

124. At the same time it was distinctly said that their Lordships would be unwilling to extend the widow's power of alienation beyond its present limit.

125. The result, then, of the authorities binding on us appears to me to be this. To uphold an alienation by a widow of her deceased husband's estate where she is his heir it should be shown---(i) that there was legal necessity, or (ii) that the alienee, after reasonable enquiry as to the necessity, acted honestly in the belief that it existed, or (iii) that there was such consent of the next heirs as would raise a presumption, either of the existence of necessity, or of reasonable inquiry and honest belief as to its existence, or (iv) that there was a consent of the next heirs to an alienation capable of being supported by reference to the theory of the relinquishment of the widow's entire interest and consequent acceleration of the interest of the consenting heirs. Where any one of the first three positions is established, the alienation may be of the whole or any part of the husband's estate; but where the fourth alone is proved, then the alienation must be of the whole.

126. Here the alienation is only of a part of the husband's estate, and that by way of mortgage, so that the fourth position cannot apply.

127. I would therefore answer the question propounded by saying that the alienation byway of mortgage by a Hindu widow as heiress of a portion of the estate of her deceased husband, without proof either of legal necessity or of reasonable enquiry, and honest belief as to its existence, but with consent of the next reversioner, for the time being, will be valid and binding on the actual reversioner if the presumption of legal necessity or of reasonable enquiry and honest belief raised by such consent is not rebutted by more cogent proof.

128. The case must be returned to the Division Bench for disposal in accordance with this answer to the reference.

Harington, J.

129. The question in this reference is: 'Is the alienation by way of mortgage by a Hindu widow of a portion of the estate of her husband without any proved legal necessity, but with the consent of the next reversioner for the time being, valid and binding on the next reversioner who is not the heir of the consenting reversioner?'

130. The question whether the widow can dispose of the whole of the estate of her deceased husband, with the consent of the next reversioner for the time being, must be regarded as having been settled as far back as 1884 by a Full Bench of this Court, in the case of Nobokishore Sarma Roy v. Hart Nath Sarma Roy (1884) I.L.R. 10 Calc. 1102.

131. But, in that case, the decision does not appear to be based on any principle of Hindu law, it rather proceeds on the ground that there had been a long series of decisions affirming this proposition, and that many sales had taken place and titles had been accepted on the faith of these decisions which it would be unjust to disturb. And although the Chief Justice describes the transaction as a relinquishment rather than a surrender, the decision can hardly be placed on that ground. No doubt when a woman becomes incapable of holding property by physical death, or by entering a religious order, she relinquishes her husband's estate: this can hardly be said to be the case when she converts his estate into money and continues in the enjoyment of it in another form.

132. The views of the various High Courts in India on the question of alienations by a widow were considered by the Judicial Committee in 1907, in the case of Bajrangi Singh v. Manokarnika Bakhsh Singh (1907) I.L.R. 30 All. 1; L. R. 35 I. A. 1. in which, without pronouncing an opinion as to the grounds on which the principle is to be placed, their Lordships say, the principle being admitted by the High Courts in India, the quantum of consent has to be considered.

133. The result of these two decisions, which are both binding on us, is to establish that a widow can, with-v out proof of legal necessity, alienate the whole of her husband's estate with the consent of the then next reversioner. But they leave the principle on which such alienations are to be supported open--the Full Bench being decided on the ground that it would be unjust to disturb what had been settled by a long series of decisions, while the Judicial Committee affirm that the principle is admitted, but do not say on what ground it is to be taken as established.

134. It is contended by the appellant that the widow's power to make a title to a portion of her husband's estate cannot be placed on the ground that she has a power to relinquish, but that to justify a sale or mortgage of a portion of the estate there must be legal necessity, and that the consent of the then reversioner is, at its highest, only evidence that legal necessity existed, or at any rate that, the transaction was a proper one; while for the respondent it is contended that the widow and the reversioner, for the time being, represent the estate and are able to make a good title to the whole or any part of it, or to mortgage it or any part of it, so as to bind those who happen to be the heirs of the deceased husband at the widow's death.

135. The former view is supported by the case of Behari Lal v. Madho Lal Ahir Gayawal (1891) I.L.R. 19 Calc. 236; L. R. I. A. 30. which was decided by Privy Council in 1891. This was, however, a case of a peculiar character. The widow did not convey out and out to the next reversionary heir, but gave the estate to him subject to her having the estate for life. Before the widow died another reversionary heir had come into existence, and it was held that the ekrarnama executed by the widow could not operate to defeat that reversioner.

136. But the conveyance passed no estate in possession at the time it was executed. It was not to affect the possession of the property until after the widow's death. This might well be said not to be a conveyance of the estate to the then next reversioner, for it was a conveyance to a person who might or might not be next reversioner at the time when the property passed under the conveyance.

137. The Privy Council lay down that it was essentially necessary that the widow should withdraw her whole life-estate, so that the whole estate should get vested in the grantee, and say that this will be a practical check on the frequency of such conveyances. It is not quite clear, I think, whether their Lordships meant by the words ' whole estate' every bigah of land of which the estate consisted--or whether they meant the absolute estate, as contrasted with an estate subject to a preceding life interest. For the purposes of the judgment, the latter proposition was necessary, not the former.

138. I do not think that this case can be regarded as affording an answer in the negative to the question submitted to us. If the words 'whole estate' mean every foot of land, then the case would afford an answer to the question, but I think that the words 'whole estate' refer to the nature of the estate in the property conveyed---and that the case does not afford an answer to the question before us.

139. It is, however, inconsistent with the proposition that the widow and the next reversioner completely represent the estate and are able to make such disposition of it as they choose--if they could they would be able to make the disposition which the Privy Council have held cannot be made---and it is an authority for the proposition that a widow cannot, even with the consent of the next reversioner, retain possession of the estate and make a disposition of it to take effect at a future time.

140. We are led, therefore, to the proposition that a widow can alienate with the consent of the next reversioner, but such an alienation must be complete and effective, i.e., she must not retain possession of the property.

141. The question of difficulty is to say on what principle of law is this power in the widow to be supported. Is it on the ground that she can relinquish in favour of a reversioner, or on the ground that the consent of the reversioners is evidence that she is acting within her powers in alienating the estate?

142. The instances given of relinquishment are those in which the widow does something which destroys her capacity for holding property--such as incurring a voluntary death, or entering a religious order. I think, if relinquishment is to be taken in its strict sense, it would involve something which rendered the widow no longer capable of being her husband's heir. It is true, nevertheless, that the texts recognise gifts by the widow of a portion of the estate to her husband's kindred as meritorious. She appears, therefore, to have had a power of alienating portions of the estate, while she still filled the position of being the possessor of the estate: but these powers, whether of relinquishing the whole estate by entering a religious order or alienating part by giving it to her husband's kindered, only enabled her to benefit the heirs of her husband, and did not enable her to get any advantage for herself.

143. I do not, therefore, think that her power to alienate for valuable consideration can be placed on either of these grounds, for I think that when a widow converts her husband's property into money and enjoys that, she cannot be said to relinquish it, nor can she be said to make a gift when she receives valuable consideration for the conveyance.

144. Is it then to be taken that the consent of the next reversioners is evidence of the propriety of the transaction? If it be taken merely as evidence, then it is open to be rebutted--and it can be shewn that there was in fact no legal necessity for the conveyance; if, on the other hand, it is conclusive evidence, then it affords an answer to the question.

145. It is clear that a widow for her religious or charitable purposes, or for those which were supposed to conduce to the spiritual welfare of her husband, or under pressure of legal necessity, is entitled to sell or mortgage the whole or any portion of her husband's estate. J The transaction, therefore, was not one which lay wholly outside the power of the widow. She might deal with the estate under certain circumstances, and if the consent is to be taken as conclusive evidence that these circumstances exist, there is an end of the question.

146. In the case of Kalee Mohun Deb Roy v. Dhununjoy Shaha (1866) 6 W. R. 51. decided in 1886 the consent of the then next reversioner was treated as evidence of the existence of legal necessity. The Judges do not say . it was conclusive evidence: they say it gives rise to a strong presumption that such necessity existed in the absence of evidence of the want of legal necessity.

147. The case of Pulin Chandra Mandal v. Bolai Mandal (1908) I.L.R. 35 Calc. 939. decided in 1908 goes so far as to affirm the proposition that an alienation of a portion of the husband's estate by the widow is valid even though there is no legal necessity, if made with the consent of the then reversioner. This case goes further than the case of Hem Ghunder Sanyal v. Sarnamoyi Debi (1894) I.L.R. 22 Calc. 354. decided in 1894, in which it is la d down that the widow may convey to the next reversioner or to a third party, with the consent of the next reversioner, the whole or any portion of the estate, and the transferee will acquire an absolute interest. The Judges, however, after discussing the texts and the cases say that they are not prepared to hold that the widow and the next reversioner are competent to deal with the property so as to convert the widow's estate (the property remaining in her) into an absolute estate.

148. The former of these two cases supports the proposition contended for by the respondent, but on the question whether the alienation would be held to be good, even if it were established that no legal necessity existed, the case of Pulin Chandra Mandal v. Bolai Mandal (1908) I.L.R. 35 Calc. 939. is inconsistent with the earlier case of Kalee Mohun Deb Roy v. Dhununjoy Shaha (1866) 6 W. R. 51. and, moreover, it lays down what is not consistent with the judgment of the Privy Council. In Raj Lukhee Dabea v. Gokool Chunder Chowdhry (1869) 3 B. L. R. (P. C.) 57 13 Moo. I. A. 209. their Lordships say in reference to the effect of the consent of the husband's kindred, 'there should be such a concurrence of the members of the family, as suffices to raise a presumption that the transaction was a fair one': and while saying it is not a proesumptio juris et de jure, they say, 'it is, no doubt, an element to be taken into consideration, and deserving of considerable weight in the estimation of all the evidence of the transaction.'

149. I think that the conclusion to be drawn from the cases is to show that the widow, with the consent of the then next reversioner, has the power of making an alienation of the whole or any portion of her deceased husband's estate--but that the power is limited to this extent that no act done bv the widow, with the concurrence of the then next reversioner, or by the then next reversioner, can have the effect as against the actual reversioner of giving the widow a greater estate in the property than she has under the Hindu law : see Hem Chunder Sanyal v. Sarnamoyi Debi (1894) I.L.R. 22 Calc. 354. The widow and next reversioner are not, therefore, enabled jointly to deal with the estate as though their joint power was equivalent to that of an absolute owner.

150. I think the principle on which an alienation by the widow with the consent of the next reversioner is to be supported is that it raises a strong presumption that at the time of the alienation the persons then interested in preventing the alienation were unable to dispute its propriety, or, in other words, that circumstances existed which enabled the widow in accordance with the rules of Hindu law to alienate the estate so as to destroy the interest which might in future descend on the next reversioners as heirs to her deceased husband. The presumption is a very strong one; and though not absolutely irrebuttable, evidence to rebut it would not affect the validity of the transaction, if it were established that the mortgagee or purchaser had given valuable consideration, and had acted bond fide, believing, on the faith of such consent, that circumstances justifying the alienation existed. I would therefore answer the question submitted to us in the terms which have been proposed by my Lord.

Stephen, J.

151. In answering the question referred to us, we have to deal with only one of the two methods by which a Hindu widow can alienate the property of her deceased husband in which she has inherited an estate. For present purposes, it may be taken for granted that her alienation of the whole or part of it can be supported by proof that it was necessary, or, what is practically the same thing, for the purpose of benefiting her husband's kindred in one of the limited number of ways prescribed in the Hindu texts, with which we are not immediately concerned. Furthermore, proof of due enquiry by the purchaser into the necessity of the alienation, leading to an honest belief on his part that necessity exists, is taken to be a proof of necessity, as far as he is concerned.

152. Taking this to be so, the question to be decided is: What is the effect of the consent to the alienation of the next heir to the deceased husband for the time being? And on a review of the authorities that have been quoted to us, by which we are bound, the answer seems to me as follows. In the first place, there is no doubt that the' consent of the kindred, not necessarily the next heir of the deceased husband, to alienation by a Hindu widow is evidence that 'the transaction was a fair one; and one justified by Hindu law,' but it seems that the effect of such concurrence is at most to raise a presumption: Rai Lukhee Dabea v. Gokool Chunder Chowdhry (1869) 13 Moo. I. A. 209. Even for this purpose the consent of all the kindred is necessary, and the circumstances of the concurrence of any of them must be considered: Sham Sundar Lal v. Achhan Kunwar (1898) I.L.R. 21 All. 71; L. R. 25 I. A. 183. Ordinarily, the consent of the whole body of persons constituting the next reversioners should be obtained, though there may be cases in which special circumstances may render the strict enforcement of this rule impossible: Bajrangi Singh v. Manokarnika Bakhsh Singh (1907) I.L.R. 30 All. 1; L. R. 35 I. A. 1. I feel some difficulty in appreciating the full scope of this rule, but I have no doubt that it applies to a case when the consent of a reversioner is relied on as affording evidence of the necessity of an alienation. On principle and on authority these rules apply where the alienation is of the whole or a part of the widow's estate.

153. In the second place, consent to the widow's alienation has an effect on that alienation in cases where the widow may be supposed to have relinquished her rights over her deceased husband's property. That a Hindu widow can cede and relinquish her rights in favour of the reversioner is clearly laid down by Ramesh Chandra Mitter J. in Gunga Pershad Kur v. Shumbhoonath Burmun (1874) 22 W. R. 393. relying on the decision in Sreemutty Jadomoney Dabee v. Saradaprosono Mookerjee (1856) 1 Boulnois 120; 3 I. D. (O. S.) 72. The decision in this case was confirmed on a Letters Patent Appeal, and its principle is recognised by the Privy Council in Behari Lal v. Madho Lal Ahir Gayawal (1891) I.L.R. 19 Calc. 236; L. R. 19 I. A. 30. where it is said that 'the widow can accelerate the estate of the heir by conveying absolutely and destroying her life-estate', but it is 'essentially necessary' for her 'to withdraw her own life-estate, so that the whole estate should get vested at once in the grantee.' The principle is also recognised by a decision of a Full Bench of this Court in Nobokishore Surma Roy v. Hari Nath Sarma Roy (1884) I.L.R. 10 Calc. 1102. but a conclusion is drawn from it by which I conceive that we are bound, and which in my opinion carries the matter very much further. In that case a widow sold to a stranger a share in a taluk, which I understand to have been treated as the whole of the property inherited by her from her deceased husband. The reversioner then executed a separate document in which he assented to the conveyance by the widow, and covenanted for himself and his heirs that he would not lay claim to the property at any future time. The reversioner then predeceased the widow, and on her death the person who succeeded to the property was one who was not bound by the covenant of the previous reversioner. On these facts, Garth C.J., after referring to the principle of relinquishment, points out that it frequently happens 'that a widow who is anxious to turn her husband's estate into money, may arrange with the next heir of her husband for the time being, to alienate the estate to some third person for their mutual benefit. They may both share in the profits of such a transaction', and thus the person who would be the next male heir to the deceased husband at the time of the widow's death is deprived of his rights. He then goes on---'But, if it is once established, as a matter of law, that a widow may relinquish her estate in favour of her husband's heir for the time being, it seems impossible to prevent any alienation which the widow and the next heir may thus agree to make.' After quoting authorities he goes on---'To allow the widow to relinquish her estate to the next male heir of her husband, is one tiling; but to allow her to sell the whole inheritance, without any legal necessity, merely with the consent of the next male heir so as to bar the rights of other heirs of her husband in the future, is another thing.' He then concludes, on authority and on grounds of practical convenience, that it is impossible to hold that the widow may not sell the estate in the way described. Mitter J, after poining out that a widow can relinquish the whole of her estate to the next heir, adds: 'But, if the widow is competent to relinquish her estate to the next male heir of her husband, it follows, as logical consequence, that she can alienate it merely with his consent, without any legal necessity,' referring to the decision in Mohunt Kishen Geer v. Busgeet Ray (1870) 14 W. R. 379. to show that the one proposition follows as a logical consequence of the other.

154. This decision is based on the principle of relinquishment, though that principle is not distinguished from, or contrasted with, the principle of consent being evidence of the propriety of the alienation, and, as I understand the matter, a sale by the widow with, the consent of the reversioner is held on authority and for purposes of practical convenience to be equivalent to a relinquishment by the widow in favour of the reversioner, and a conveyance by him.

155. The difference between a sale by the widow with the consent of the reversioner, and a sale by the reversioner after a relinquishment by the widow, may be to some extent a matter of form, a view to which the Judges who decided Mohunt Kishen Geer's case (1870) 14 W. R. 379. seem to have inclined; but Garth C.J. expressly contemplates a case in which the sale is not only formally, but actually, by the widow, because he supposes it to be made for the common benefit of the widow and the reversioner, and that they share in the profits of the transaction. A sale by which the widow receives the price of her husband's property does not seem to be a relinquishment, as that term is used in earlier cases and in the later case of Behari Lal v. Madho Lal Ahir Gayawal (1891) I.L.R. 19 Calc. 236; L. R. 19 I. A. 30., but there I read this case as extending the meaning of relinquishment so as to make it indistinguishable, as far as I am concerned, from alienation, and I find nothing in the later case in the Privy Council' overruling this construction. Personally I am fortified in this view by finding that Banerjee J. in Hem Chunder Sanyal v. Sarnamoyi Debi (1894) I.L.R. 22 Calc. 354. acquiesced in the decision in Nobokishore's case (1884) I.L.R. 22 Calc. 1102., however unwillingly be may have done so, and we are as much bound by it as he was.

156. On my view of the effect of the decision in this case, a difficulty arises as to whether the decision covers an alienation of a part as well as of the whole. In its terms, it seems not to, but in principle there is no reason why it should not, and the Court in Hem Chunder Sanyal's case (1894) I.L.R. 22 Calc. 354. seems to have thought it did : on the other hand, the decision in Behari Lal's case (1891) I.L.R. 19 Calc. 236, L. R. 19 I. A. 30. which was given after Nobokishore's case (1884) I.L.R. 10 Calc. 1102., though it does not notice it, and before Hem Chunder Sanyal's case (1894) I.L.R. 22 Calc. 354. is unmistakably clear as to the necessity for a relinquishment being of the whole property.

157. Under these circumstances; I consider that the decision in Nobokishore's case (1884) I.L.R. 10 Calc. 1102. makes a sale by a Hindu widow of all her interests in the property that she has inherited from her husband competent to pass an absolute title to the transferee, if it is made with the consent of the then heirs of her husband, and it has not been suggested in this case that a mortgage is to be distinguished in this respect from a sale. How far this rule may extend it is not necessary to consider exactly on the present occasion, though I think it may safely be said that it might lead us out of sight of our starting point in the Hindu law. But I do not think we are bound to apply the rule in question to a case where, as in the one before us, only a portion of the property in which the widow is interested is affected by her action. In Bajrangi Singh's case (1907) I.L.R. 30 All 1; L. R. 35 I. A. 1. where the law laid down in Nobokishore's case (1884) I.L.R. 10 Calc. 1102. seems to be approved of, the widow executed successive transfers of all the property she inherited from her husband; she then died, and subsequently persons who, in view of the judgment of the Privy Council, must be taken to represent the reversioners at the time, ratified the widow's alienations. If we take this case to be decided on the theory of relinquishment as well as on that of necessity being presumed from consent, which I think we must, the ratification applies at least to a complete alienation and the case is therefore no authority for extending the rule laid down in Nobokishore's case (1884) I.L.R. 10 Calc. 1102. to an alienation of a part. This follows from a consideration of the facts of the case, but it is also to be observed that their Lordships do not consider that they are laying down any new principle, and express themselves as being 'unwilling to extend the widow's power of alienation beyond its present limits.' I therefore concur in the answer to the. question before us suggested by the Chief Justice.

Mookerjee, J.

158. The question referred for decision to the Full Bench has been formulated as follows:

Is the alienation, by way of mortgage by a Hindu widow of a portion of the estate of her husband, without any proved legal necessity, but with the consent of the next reversioner for the time being, valid and binding on the actual reversioner who is not the heir of the consenting reversioner?

159. The texts relevant for the determination of this question are those of Katyayana, Vyasa, and Narada, quoted by Jimutavahana in the Dayabhaga, Chapter XT, Section 1, paragraphs 56, 60, 64:

Let the childless widow, preserving unsullied the bed of her lord, and abiding with her venerable protector, enjoy with moderation the property until her death. After her, let the heirs take it.

Katyayana.

For women, the heritage of their husband is pronounced applicable to use. Let not women on any account make waste of their husband's wealth.

Mahabharata.

When the husband is deceased, his kin are the guardians of his childless widow. In the disposal of the property, and care of herself, as well as in her maintenance, they have full power. But if the husband's family be extinct or contain no male, or be helpless, the kin of her own father are the guardians of the widow, if there be no relations of her husband within the degree of a sapinda.

Narada.

160. From these texts, Jimutavahana draws the inference that it is competent to the widow to enjoy the estate for life, which goes, upon the termination of her interest, to the heirs of her husband; it is also competent to her to make a gift or sale for the obsequies of her husband, and for other religious and charitable purposes; she may also, in case of necessity, mortgage the property, or sell or otherwise alienate it. We have consequently the principle that a widow can alienate the corpus of the property inherited by her for purposes of necessity, she can sell it, or mortgage it, and, in certain cases, she can even make a gift of a reasonable portion of it: Collector of Musulipatam v. Cavaly Vencata (1861) 8 Moo. I. A. 529; 2 W. R. (P. C.) 61. Upon this fundamental principle, has been engrafted, by judicial decisions, the equitable doctrine that a transferee is protected if he proves that he made proper and bond fide enquiries as to the actual existence of such alleged necessity, and did all that was reasonable to satisfy himself as to the existence of such necessity: Amarnath Sah v. Achan KUar (1892) I.L.R. 14 All. 420; L. R. 19 I. A. 196. Bhagwat Dayal Singh v. Debi Dayal Sahu (1908) I. L. R 35 Calc. 420; L. R. 35 I. A. 48. and Hunoomanpersaud Pandey v. Babooee Munraj Koonweree (1856) 6 Moo. I. A. 393; 18 W. R. 81 n. It is therefore firmly settled that a widow takes only a restricted estate in the property of her husband, and that, at her death, it passes to the heirs of her husband, except as to such portion as may have been alienated by her for legal necessity Govindchund By sack v. Cossinaut By sack (1826) Montr. H. L. C. 477; 1 I. D. (O. S.) 292. and it is beyond controversy that, upon this point there is no difference between the Dayabhaga and the Mitakshara schools of Hindu law : Keerut Singh v. Koolahul Singh (1839) 2 Moo. I. A. 331; 5 W. R. (P. C.) 131. Collector of Masulipatam v. Cavaly Vencata Narrainamph (1861) 8 Moo. I. A. 529; 2 W. R. (P. C.) 61, Mussumat Thakoor Deyhee v. Rai Baluk Ram (1866) 11 Moo. I. A. 139. Bhugwandeen v. Myna Baee (1867) 11 Moo. I. A. 487; 9 W. R. (P. C.) 23.

161. The question next arises, whether, apart from legal necessity, a widow is competent to alienate the corpus of the property inherited by her, with the consent of the then next reversioners, so as to bind the person who turns out to be the actual reversioner at the time of her death. This question was answered in the affirmative by the Bengal Sadar Court in Hem Chund Mujoomdar v. Mussummaut Tara Munnee (1811) 1 Mac. Sel. Rep. 481; 6 I. D. (O. S.) 352. Gocul Chund Chuckerwurtee v. Mussummaut Rajranee (1816) 2 Mac. Sel. Rep. 213; 6 I. D. (O. S.) 521., Mussummaut Bijya Dibeh v. Mussummaut Unpooma Dibeh (1806) 1 Mac. Sel. Rep. 215; 6 I. D. (O. S.) 159., and Bindrabun Chund Rai v. Bishun Chund Rai (1826) 4 Mac. Sel. Rep. 180; 7 I. D. (O. S.) 134. The reason for this conclusion does not appear to have been clearly formulated, even if appreciated, in the earlier decisions. But reference is made in more than one place to the fact that according to the text of Narada, the relations of the husband are the natural guardians of the widow and they are not likely to consent to an alienation, unless there is justifying necessity for it. In a very early case, however, Mohun Lal Khan v. Ranee Siroomunnee (1812) 2 Mac. Sel. Rep. 40; 6 I. D. (O. S.) 389., the question was pointedly raised as to who were the relations of the husband whose consent was essential to validate the alienation by the widow. It was ruled that an alienation by the widow to be valid must bear the assent of the next heirs and the paternal kindred of her husband, and the same view was affirmed in Roopchurn Mohapater v. Anundlal Khan (1812) 2 Mac. Sel. Rep. 45; 6 I I D. (O. S.) 392. The point arose for consideration before the Judicial Committee in Rany Srimuty Dibeah v. Rany Koond Luta (1847) 4 Moo. I. A. 292; 7 W. R. P. C. 44., but was not decided, though their Lordships referred without; disapproval to Mo him Lal Khan v. Ranee Siroomunnee (1812) 2 Mac. Sel. Rep. 40; 6 I. D. (O. S.) 389., the decision wherein was stated to have been 'founded expressly on the ground that the deed then in question was executed without the concurrence of the descendants in the male line, who, though they were not heirs, were guardians or protectors of the widow.' A similar view was accepted by the Bengal Sadar Court in Hafzoonnissa Begum v. Radhabinode Missur (1856) Beng. S. D. A. R. 595. See also Nundkomar Rai v. Rajindurnaraen (1808) 1 Mac. Sel. Rep. 349; 6 I. D. (O. S.) 256., Mussummaut Bhuwani Munee v. Mussummaut Solukhan (1811) 1 Mac. Sel. Rep. 431; 6 I. D. (O. S.) 315. This view, however, was repudiated by the Supreme Court in a case decided shortly after. Jadomoney v. Sarodaprosono (1856) 1 Boulnois 120; 3 I. D. (O. S.) 72., in which it was ruled that the reversioners whose consent was necessary to validate an alienation by the widow consisted of that class of persons only who would immediately succeed to the estate if the widow's interest was determined, and did not include that wider class of persons who might by possibility become heirs on the happening of that event. Sir Charles Jackson J. observed that where the widow's conveyance is executed with the consent of all the nearest heirs living at the time of conveyance, and there are no other heirs of preferable or equal degree living at the decease of the widow, the whole estate in possession and the reversion has been sufficiently, represented for the purpose of such conveyance, and the conveyance itself is valid.

162. The learned Judge referred to the note of Mr. Colebrooke to the case of Mahoda v. Kuleani (1803) 1 Mac. Sel. Rep. 84; 6 I. D. (O. S.) 62. to the effect that a 'widow's gift of the estate to the next heir is good in law, as such a gift is a mere relinquishment of her temporary interest in favour of the next heir; it may, however, happen that the person who would have been entitled to take the inheritance at her decease might be different from the one who obtained it under gift or relinquishment to him as -presumptive heir, and if the title of that person be either preferable or equal, it may invalidate such gift in whole or in part.' Here we see the origin of what may be called the relinquishment theory, first formulated by Mr. Colebrooke, and applied, possibly unconsciously, in the cases of Mussummaut Bijya Dibeh v. Mussummaut Unpoorna Dibeh (1806) 1 Mac. Sel. Rep. 215; 6 I. D. (O. S.) 159., Collychund Dutt v. Moore (1837) Fulton 73; 1 I. D. (O. S.) 687., and Ramdhun Bukshee v. Punchanun Bose (1853) Beng. S. D. A. R. 541. Sir James Colvile, C.J., in the same case, Jadomoney v. Sarodaprosono (1856) 1 Boulnois 120; 3 I. D. (O. S.) 72., expressly adopts the relinquishment theory as consistent with the letter and spirit of the Hindu law. He first described the nature of the estate of a Hindu widow in the words of Lord Gilford in Cossinaut Bysack v. Govindchand By sack (1826) Montr. H. L. C. 477; 1 I. D. (O. S.) 292., and accepts the view of the true position of a reversioner as defined by Sir Lawrence Peel, in Oojulmoey Dossee v. Sagormoney Dossee (1850) 1 Tay. & Bell. 370; 2 I. D. (O. S.) 491., and Hurry Doss Dutt v. Runjunmoney Dossee (1851) 2 Tay. & Bell. 279; 2 I. D. (O. S.) 744. The learned Chief Justice then points out that the policy of the Hindu law is not to keep the estate, as long as possible, inalienable and subject to a species of entail in favour of persons unascertained, but to prevent the alienation of family property from taking place, either by operation of law in favour of the widow's natural heirs, who would generally be other than the heirs of her husband, or in favour of strangers, by the gift or other disposition of the widow. Reference is made in support of this view to the Dayabhaga of Jimutavahana, chapter XI, Section 1, paras. 63 and 64. As a matter of fact, the theory of relinquishment is foreshadowed in the Dayabhaga, chapter XI, Section 1, para. 59, where Jimutavahana lays down that the persons who would be the next heirs on failure of prior claimants, succeed to the residue of the estate remaining after her use of it-upon the demise of the widow in whom the succession had vested, in the same manner as they would have succeeded if the widow's right had never taken effect. The words used by Jimutavahana ('if her right ceases or never takes effect') are comprehensive enough to include, not merely the case of the death of the widow, but all cases where her right ceases; in other words, the reversioners take the estate, not merely when the widow dies, but also when her title is extinguished, for instance by renunciation, remarriage or the like. It is plain, therefore, that in 1856 two principles were recognised by our Courts. According to one principle, an alienation by a widow, made with the consent of all the possible heirs of her husband, was. held operative because the consent of persons who were the guardians of of the widow, and who were, as the next possible takers of the estate, most deeply interested in its preservation, indicated the propriety of the transaction: Kalee Mohun Deb Roy v. Dhununjoy Shaha (1866) 6 W. R. 51., Madhub Chunder Hajrah v. Gobind Chunder Banerjee (1868) 9 W. R. 350. According to the other principle, an alienation by a widow, made with the consent of the entire body of the immediate reversioners, was held operative, because between the widow and the reversioners the entire estate was represented, inasmuch as the widow might relinquish her estate in favour of the reversioners and create in them a present indefeasible interest. These two doctrines, as is plain from an examination of the texts and from the history of the judicial decisions on the subject, were entirely distinct in their inception and development. But, as an examination of the cases shows, the distinction was subsequently overlooked, and the indiscriminate application of the two principles has caused much embrrassment.

163. In so far as the consent theory is concerned, it is plainly indicated by Turner L. J. in Collector of Muslipatam v. Cavaly Vencata Narrainapah (1861) 8 Moo. I. A. 529; 2 W. R. (P.C.) 61. in the following passage: 'It may be taken as established that an alienation by her (the widow) which would not otherwise be legitimate, may become so if made with the consent of her husband's kindred. But it surely is not the necessary or logical consequence of this latter proposition that in the absence of collateral heirs to the husband, or on their failure, the fetter on the widow's power of alienation altogether drops. The exception in favour of alienation with consent may be due to a presumption of law that where that consent is given the purpose for winch the alienation is made must be proper'.

164. The same view is emphasised by Sir James Colville in Raj Lukhee Dabea v. Gokool Chunder Chowdhry (1869) 13 Moo. I. A. 209.: 'their Lordships do not mean to inpugn those authorities which lay down that a transaction of this kind may become valid by the consent of the husband's kindred, but the kindred in such case must generally be understood to be all those who are likely to be interested in disputing the transaction. At all events, there should be such a concurrence, of the members of the family, as suffices to raise a presumption that the transaction was a fair one and one justified by Hindu Law. That it can be a presumption of law in the sense of praesumptio juris et de jure, their Lordships do not think. It is, no doubt, an element to be taken into consideration, and deserving of considerable weight in the estimation of all the evidence of the transaction.'

165. Again, in Sham Sundar Lal v. Achhan Kunwar (1898) I.L.R. 21 All. 71; L. R. 25 I. A. 183., Lord Davey gives expression to the theory that consent of reversioners merely affords proof of the-propriety of the transaction, in the following terms. 'At the date of the bond of 1877, Hulas Kuar, as the heir of Khairati Lal was the owner of his estate, but with a restricted power of alienation. Achhan Kunwar was next in succession, and, would, if she survived her mother, become her father's heir and take the estate, subject to the same restriction.' Inayat Singh was one of the two male heirs next in succession to the restricted estate who would be full owners in the event of their surviving their grandmother and mother. Inayat was moreover a minor. At the date of the bond of 1881, Achhan Kunwar was owner of the property for a daughter's estate with restricted power of alienation and Inayat Singh was one of the heirs apparent. At both dates Inayat Singh was living in his father's house and dependent upon him. In 1877 neither Achhan Kunwar nor Inayat Singh (even if he had been of age), could by Hindu Jaw make a disposition or bind their expectant interests, nor does the deed apply to any but rights in possession, and in 1881 Inayat Singh was equally incompetent to do so, though the deed purports to bind future rights. To give validity to the bonds as against the estate of Khairati Lal, the plaintiffs and appellants must show that there was legal necessity for raising the money by a charge on Khairati's estate, or, at least, that in advancing their money the creditors gave credit on reasonable grounds to representations that the money was wanted for such necessity. It is not a case in which all the kindred of Khairati have assented or could assent to the bonds, or either of them, and the circumstances are not such as, in the opinion of their Lordships, to raise any presumption, from such concurrence as there was of Achhan Kunwar and Inayat Singh in the first bond or of Inayat Singh in the second bond, that the transaction was a fair one or one justified by Hindu law. In order to raise such a presumption the consent of the deceased's kindred to his widow's or daughter's alienation must be shown to be given with a knowledge of the effect of. what they were doing and an intelligent intention to consent to such effect.'

166. On the other hand, the relinquishment theory was clearly explained by Lord Morris in the case of Behari Lal v. Madho Lal Ahir Gayawal (1) in the following terms: 'At the time of the execution of the ikrarnama, Madho Lal was not born, so that the plaintiff was then the apparent reversionary heir, subject to the life estate of his grandmother, Lachoo Dai; it may be accepted that, according to Hindu law, the widow can accelerate the estate of the heir by conveying absolutely and destroying her life estate. It was essentially necessary to withdraw her own life estate, so that the whole estate should et vested at once in the grantee. The necessity of the removal of the obstacle of the life estate is a practical check on the frequency of such conveyances.'

167. The two doctrines, thus formulated and applied, came up for examination by their Lordships of the Judicial Committee in Bajrangi Singh v. Manokarnika Bakhsh Singh (1907) I.L.R. 30 All. 1; L. R. 35 I. A. 1., and it is remarkable that neither theory Was expressly repudiated or approved, though detailed reference was made to judicial decisions in which either the one or the other principle had found acceptance. Under these circumstances, I think, the inference may legitimately be drawn from the decision of their Lordships in Bajrangi Singh v. Manokarnika Bakhsh Singh (1907) I.L.R. 30 All. 1; L. R. 35 I. A. 1., that both the doctrines are well founded on principle; the only question is, what are the limitations or qualifications, if any, subject to which each of these doctrines has to be applied. If the widow has alienated the whole of the estate of her husband with the consent of some only of the immediate reversioners, or, if she. has alienated a part only of the estate of her husband with the consent of all the immediate reversioners, or, again, if she has-alienated part of the estate of her husband with the consent of some only of the immediate reversioners, the consent merely furnishes evidence of the propriety of the transaction or of the fact that the transferee has taken after due enquiry as to the existence of legal necessity. The presumption which thus arises from the consent of the reversioners is not conclusive and is rebuttable; but, plainly, there is no room for the application of the relinquishment theory. In each of these cases, either the widow does not absolutely convey and destroy her limited estate or she does not accelerate the estate of the entire body of immediate reversioners. On the other hand, if the widow transfers the entire estate of her husband with the consent of the whole body of immediate reversioners, the relinquishment theory becomes forthwith applicable; the position is precisely the same as if the widow had withdrawn completely and in its entirety her own qualified estate, and the whole estate had vested at once in the entire body of immediate reversioners, who, upon this acceleration of their estate, had conveyed an absolute interest to the transferee. The distinction between the two classes of cases is fundamental and well marked, and if it is borne in mind, we can appreciate without difficulty why Sir Andrew Scoble observes in Bajrangi Singh v. Manokarnika Bakhsh Singh (1907) I.L.R. 30 All. 1; L. R. 35 I. A. 1. that ordinarily the consent of the whole body of persons constituting the next reversioners should be obtained, as laid down in Radha Shy am Sircar v. Joy Ram Senapati (1890) I.L.R. 17 Calc. 896., but that there may be cases in which special circumstances may render the strict enforcement of this rule impossible. This view is consistent only with the doctrine that consent of reversioners, in certain classes of cases as already explained, merely furnishes presumptive evidence of the propriety of the transaction; from this standpoint, the rule laid down in Ramphal Rai v. Tula Kuari (1883) I.L.R. 6 All. 116. cannot be sustained. On the other hand, the class of cases to which the relinquishment theory is applicable is easily defined; they are cases in which two elements are present, namely, first, a transfer by the widow of the entire inheritance in her hands, and, secondly, the consent of the entire body of persons who would be entitled to succeed upon the extinction of the qualified estate of the widow. This view, I venture to think,' does not really militate against the decision of the Full Bench in Nobokishore Sarma Roy v. Hari Nath Sarma Roy (1884) I.L.R. 10 Calc. 1102. Sir Richard Garth clearly contemplated a case in which the analogy of relinquishment of her estate by the widow could be applied, he speaks explicitly of the death of the widow or of the renunciation of the world by her, or of some not by her which might in the eye of law justify the inference that she was civilly dead. The learned Chief Justice also refers to the contingency of 'a disclaimer by her at the time of the death of her husband! In each of these instances, her interest in the entire estate left by her husband would be withdrawn from her and become vested in the then immediate reversioners. Mr. Justice Romesh Chandra Mitter is equally explicit on the point. He plainly contemplated a relinquishment of the entire estate by the widow in favour of the then next male heir of her husband. I am not unmindful that Mr. Justice Banerjee, who, when at the Bar, successfully argued the case of Nobokishore Sarma Roy v. Hari Nath Sarma Roy (1884) I.L.R. 10 Calc. 1102., on behalf of the respondent, stated in the case of Hem Chunder Sanyal v. Sarnamoyi Dehi (1894) I.L.R. 22 Calc. 354., that the principle of the Full Bench decision, is applicable to transfers of part of the estate as of the whole, and this was subsequently accepted without question in Pulin Chandra Mandal v. Bolai Mandal (1908) I.L.R. 35 Calc. 939. An examination of the record, however, in the case of Nobokishore Sarma Roy v. Hari Nath Sarma Roy (1884) I.L.R. 10 Calc. 1102. does not confirm the view taken by Mr. Justice Banerjee; on the other hand, so far as I can gather, the alienation in controversy' covered the entire estate and was made with the consent of the entire body of immediate reversioners. The two points which were considered by the Full Bench were in essence these, namely, first, whether a transfer by the widow with the consent of the immediate reversioner could be treated as equivalent to a transfer by the widow to the reversioner followed by a transfer by the latter to the alienee, and, secondly, whether a transfer by the widow to the immediate reversioner stood on the same footing as a real relinquishment by her. Upon the first point, it was ruled, in consonance with previous decisions [Shama Soonduree v. Shurut Chunder Dutt (1867) 8 W. R. 500., Mohunt Kishen Geer v. Busgeet Roy (1870) 14 W. R. 379., Gunga Pershad Kur v. Shumbhoonath Burmun (1874) 22 W. R. 393., Muddoosoodun Doss v. Mohenderlall Khan (1859) 2 Boulnois 40; 3 I. D. (O. S.) 454.], that the question was one of form rather than of substance, and, that, consequently, a conveyance by the widow with the assent of the immediate reversioner might be deemed, to operate precisely in the same manner as two conveyances, one by the widow to the reversioner and the other by the reversioner to the transferee. Upon the second point, Sir Richard Garth was inclined to take the view that a sale of the whole inheritance by the widow to the immediate reversioner did not stand on the same footing as a real relinquishment by her, and, apparently, Mr. Justice Pigot was of the same opinion; but, in view of a series of prior decisions of this Court [Raj Bullubh Sen v. Oomesh Chunder Root (1878) I.L.R. 5 Calc. 44., Trilochun Chuckerbutty v. Umesh Chunder Lahiri (1880) 7 C. L. R. 571.], they acceded to the contention that a transfer of the whole inheritance to the next male heir might be treated as a relinquishment by her in his favour. If the matter were res integra, I would without hesitation adopt the view that a sale by the widow of the entire inheritance to the then immediate reversioner does not possess the characteristics of a real relinquishment by her, as contemplated by Hindu law givers. A widow who transfers the property for a consideration or retains an interest in the purchase money, cannot, by any stretch of language, be deemed to have relinquished her interest in the estate of her husband; the estate by her action, has, ill essence, only undergone a transformation, and the immoveable property has been converted into money which may be shuffled out of sight as land never can be, But if this strict view was not acceptable in 1884 on the ground of stare decisis, much less can it be pressed now; I do not, therefore, rest my conclusions on this, the strictly logical view of the matter, especially in view of the fact that if the relinquishment theory is restricted in application only to cases where there is a real relinquishment, that is, a real abandonment by the widow of her interest, the stringency of the rule may be evaded in practice by the execution of a formal deed of relinquishment and a secret payment of consideration to the widow or a separate agreement to pay her maintenance allowance-for life. I assume, consequently, as Sir Richard Garth did, that when a widow sells the entire inheritance to the immediate reversioner, she relinquishes her estate in his favour; this view was in substance adopted by Lord Morris in Behari Lal v. Madho Lal Ahir Gayawal (1891) I.L.R. 19 Calc. 236; L. R. 19 I. A. 30. when he stated that according to Hindu law the widow can accelerate the estate of the heir by conveying absolutely and destroying her life estate. Beyond this proposition, based, as we have seen, on somewhat questionable grounds, we need not go and, as I read the judgments in Nobokishore Sarma Roy v. Hari Nath Sarma Roy (1884) I.L.R. 10 Calc. 1102., we are not required to go even by the Full Bench decision. The principle of that decision is applicable only when the transfer by the widow is of her entire interest in the estate inherited by her from her husband, and is made with the consent of the whole body of immediate reversioners; an extension of that principle to cases where either of these elements is absent is not warranted by the language used by the learned Judges, nor can it be deemed a logical development of the principle acknowledged by them as the foundation of their decision.

168. Upon an examination, then, of the texts and judicial decisions applicable to this matter, and upon a review of the principles which underlie them, the following propositions appear to be deducible:

(i) When a Hindu widow has alienated, in whole or in part, the estate inherited by her from her husband, the transferee can establish a good title as against the reversionary heir after her death, if he proves that the alienation was made by her for purposes of legal necessity.

(ii) When a Hindu widow has alienated, in whole or in part, the estate inherited by her from her husband, the transferee can establish a good title as against the reversionary heir after her death, if he proves that he made proper and bond fide enquiry as to the actual existence of legal necessity, and did all that was reasonable to satisfy himself as to the existence of such necessity.

(iii) When a Hindu widow has alienated, in whole or in part, the estate inherited by her from her husband, with the consent of the reversionery heirs, such consent may raise the presumption that the transfer was for legal necessity or that the transferee had made proper and bond fide enquiries and had satisfied himself as to the existence of such necessity. The quantum of consent necessary to raise this presumption depends upon the facts of each particular case, and, in all cases, the presumption raised by such concurrence on the part of the reversioners is rebuttable.

(iv) When a Hindu widow has alienated her entire interest in the estate inherited by her from her husband, with the consent of the whole body of persons entitled to succeed as immediate reversionary heirs, the transferee acquires a good title as against the actual reversionary heirs at the time of her death.

169. In view of this exposition of the law, I hold, in entire concurrence with the learned Chief Justice, that the question referred to the Full Bench should be answered as follows:

170. When an alienation by way of mortgage has been effected by a Hindu widow in respect of a portion of the estate of her husband, with the consent of the next reversioner for the time being, such consent may raise a presumption that the transaction was for legal necessity or that the mortgagee had acted therein after proper and bona fide enquiry and had satisfied himself as to the existence of such necessity, but this presumption, when it arises, is rebuttable, and it is open to the actual reversioner to establish that there was in fact no legal necessity and that there had been no proper and bond fide enquiry by the mortgagee.

Holmwood, J.

171. I agree with my Lord. The facts of this case and many similar cases which come before the Courts clearly show that the consent of the next reversioners for the time being must be hedged in with safeguards, if there is to be any limit to the widow's powers of alienation.

172. A spendthrift young man who happens to be the next reversioner at the time of the alienation induces the widow to raise money or mortgage for his benefit to be spent by him on his own immoral or wasteful purposes. The only legal principle upon which such a condition of things could be justified is that the widow has entirely relinquished the estate to the next reversioner so as to cast on him the whole responsibility for the waste of the ancestral property. In the absence of such relinquishment there must be such a consent by the nearest reversioners as to raise a presumption that the transaction was a fair one and one justified by Hindu law. Such a presumption can only arise with reference to the circumstances of each case.

173. It is unnecessary to refer to those cases which have been dealt with in the judgment delivered by my Lord, where legal necessity is proved or presumed from facts. If the question is answered in the way my Lord the Chief Justice proposes to answer it, it seems to me that all difficulties will be met and salutary check will be put on the extension of the widow's power of alienation which is deprecated by their Lordships of the Judicial Committee in their latest decision.


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