1. I need not detail the form in which this matter now cornea before me. It appears sufficiently from the pleadings and affidavits in the present case and from the pleadings in the former case from which this case springs.
2. The plaintiffs seek to restrain the defendant Kally Doss from executing a decree of this Court in a suit brought by him against the defendant Sreemutty Mohamoyee Dabee on the ground that the decree in that suit was obtained by collusion between her and Kally Doss.
3. The first point taken by the defendant is, that the plaintiffs are clothed with no right such as to entitle them to maintain their suit at all, on the ground that the suit instituted by Peary Mohun against Kally Doss and Sreemutty Mohamoyee Dabee to set aside the decree in the before-mentioned suit was compromised in such a manner as entirely to bar the plaintiffs' rights in respect of her deceased husband, Monohur Mookerjee, inasmuch as the consent decree obtained in that suit amounted in effect to a disposition by the widow and next reversioner (to use the inaccurate but generally used phrase of the estate so as entirely to defeat the right of persons subsequent to that reversioner; and in support of that proposition the case of Jadomoney Dabee v. Sarodaprosono Mookerjee Boul. 120 and Gunga Pershad Kur v. Shumbhuriath Burmun 22 W.R. 393 and other authorities have been relied upon. I refrain from detailing those authorities, because deciding this matter as I now do before the conclusion of Mr. Pugh's address, I desire to leave it open to counsel in case of an appeal to rely not only on those cases, but on others which he may find necessary to refer to having regard to the opinion I have thrown out.
4. Were it necessary to decide whether or not an alienation by a widow and next reversioner without the consent of subsequent reversioners is binding on them, I am ready to decide the negative of that proposition, and as authority I refer to Varjivan Rangji v. Ghelji Gokaldas I.L.R. 5 Bom. 563; Gouri Dat v. Gur Sahai I.L.R. 2 All. 41 and Sia Dasi v. Gur Sahai I.L.R. 3 All. 362 in the matter of which cases, it was, as I think correctly, thrown out by the Court that the law could not be considered as settled in favour of the law as contended for by Mr. Pugh. I follow the Bombay case as expressly negativing that proposition, and it appears to me difficult to meet the argument suggested by Mr. Mayne in his work on Hindu Law, Section 547: 'It must be remembered that where an estate is held by a female, no one has a vested interest in the succession. Of several persons then living, one may be the next heir in the sense that, if he lives, he will take at her death in preference to any one else then in existence. But his claim may pass away by his own death, or be defeated by the birth or adoption of one who would be nearer than himself. It certainly does seem to be common sense that the person who turns out to be the actual reversioner should not find his rights signed away by the consent of one who when he consented had a preferable title in expectation, but who in the actual event proved to have no title at all.' I can see no answer to that argument in justice, and I do not think that the authorities as they now stand would bear me out in dissenting from it. I am not unconscious of the deep respect to be paid to the Judge who decided the case of Jadomoney Dabee v. Sarodaprosono Mookerjee Boul. 120. But that case was decided before the expression of opinion by the Judicial Committee of the Privy Council in Rajlakhi Debia v. Gakul Chandra Chowdhry 3 B.L.R. P.C. 57 : 12 W.R. P.C. 47 : 13 Moore's I.A. 228 which is relied upon by Sargent, C.J. in the Bombay case, and last, but not least important, in the expression of doubt as to the proposition now under discussion, expressed by Garth, C.J. and Field, J. in Ram Chunder Poddar v. Hari Das Sen I.L.R. 9 Cal. 463.
5. I have said that so far as necessary I decide the proposition in the negative, but I must add that under the circumstances of this case, had I acceded to Mr. Pugh's proposition, which I do not, I should still continue the injunction to the hearing. It appears to me, for reasons I shall refer to presently, that it is important to the parties that the property should be preserved to the hearing, and that it is not contrary to the law of the Court under those circumstances to grant the injunction. (His Lordship then dealt with the facts of the case and continued.) In the face of those facts it would be an entire absence of the discretion of the Court to remove the protection which an injunction places over the property until the truth or falsehood of the grave charges against these two persons shall have been investigated by oral evidence. It appears to me that neither in law nor on facts such as can be established by affidavit should I be justified in releasing the property from the injunction. But, of course, in doing this I must not be taken as expressing any opinion as to the truth or falsehood of the plaintiffs' case.