1. This is an appeal by the plaintiffs in a suit for recovery of possession of land with mesne profits upon declaration of title. The disputed property admittedly belonged to one Mahim Chandra Chakra barti, and upon his death, which took place on the 27th June 1892, passed to his widow Monmohini, who died on the 2th October 1915. The plaintiffs are the four sons of Umesh Chandra Chakrabarti, the brother of Mahim Chandra Chakrabarti, who died in 1908, and they claim the estate of their uncle as reversionary heirs after the death of their aunt The defendant is the son of Annapurna, a sister of Mahim and Umesh, and claims title to the property by purchase under a conveyance executed on the 16th June 18y5 by Monmohini and Umesh. The Subordinate Judge has held that the plaintiffs have failed to prove that the conveyance does not operate against them and has dismissed the suit. On the present appeal, the substantial point for investigation is, whether the conveyance in favour of the defendant has passed to him a title operative against the plaintiffs as the reversionary heirs to the estate of their paternal uncle.
2. We may observe at the outset that the circumstance that the conveyance in favour of the defendant was executed jointly by the widow and the then next reversioner did not by itself create in his favour an indefeasible title. This is conclusively settled by the decision of the Full Bench in Debi Prosad Chowdhury v. Golap Bhagat 19 Ind. Cas. 273, 40 C. 721; 17 C. W. N. 701; 17 C. L, J. 499 (F. B.). where it was ruled that the transferee acquires a good title as against the actual reversionary heir, if the 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: Gopeswar Misra v. Gopini Baishnabi 21 Ind. Cas. 200; 17 C. W. N. 1062; 19 C. L. J. 18. and Shyamadas Roy v. Radhika Prosad *. This view has now received the .47 Ind. Cas. 853: 22 C. W. N. 846; 29 C. L. J. 24,approval of the Judicial Committee in Eangasami Oounden v. Nachiappa Gounden (4)**. In the case before us, the conveyance covers a portion of the estate of Mahim Chandra inherited by his widow consequently, the defendant can successfully resist the claim, only on proof of legal necessity or such bona fide enquiry as entitles him to protection from a Court of Equity.
3. It is well settled that in a suit of this description, instituted for recovery of property alienated by a Hindu widow in possession of her husband's estate, the burden of proving that there was legal necessity or bona fide enquiry rests in the first instance on the person who claims title from the widow Amar Nath Sah v. Achan Kuar19 I. A. 196; 14 A. 420 (P. 0.); 6 Sar. P, C. J. 197; 7 Ind. Dec. (N. s.) 637., Maheshar Baksh Singh v. Ratan Singh 23 I.A. 57; 23 C.766 (P.C.); 7 Sar. P. O.J. 19; 6 M. L. J. 127; 12 Ind. Dec. (N. s.) 508., Bhagwat Dayal Hinghv. Debi Duyal Sahu (7), Nanda Lai v. Jagat Kishore Acharjya (8) and brij Lal v. Inda Kunwar (9). Recitals in deeds as to the existence of such necessity cannot by themselves be relied upon for the purpose of proving the assertion of fact which they contain the existence of necessity must be substantiated by evidence aliunde: Brij Lai v. Inda Kunwar23 Ind. Cas. 715 (P. C.); 36 A. 187; 18 C. W. N. 649; 26 M. L. J. 442; (1914 M. W. N. 405; 15 M. L. T. 395; 19 C. L. J. 469; 12 A. L. J. 495; 16 Bom, L.R. 352; 1 L. W. 794., Nanda Lai v.Jagat Kishore Aeharjya 36 Ind. Cas. 420; 44 0. 186; 24 0, L. J. 487; 20 M. L. T. 335; 3i M. L. J. 663; (1916) 2 M, W. N. 386; 4 L. W. 458; 18 Bom. h. E. 868; 14 A, L, J. 1103; 1 P. L. W. 1; 21 0. W. N. 225j 10 Bur. h. T. 177:431. A. 249 (P. 0.).and Banga-sami Gonndm v. Nachiappa Oounien50 Ind. Cas. 498; 46 I. A. 72; 36 M. L. J. 493, 17 A. L. J. 636; 29 0. L. J. 539; 21 Bom. L. E. 640s 23 C. W. N. 777; (19,9) M. W. N. 262; 42 M. 528; 26 M. h. T. 5;10 L. W. 105 (P. C.). Where, however, the alienation is made with the concurrence of or jointly with the then next reversioner, a presumption arises in favour of the validity of the transaction. The exact nature of this presumption was described in the case of Debi Prosaa Choudhry v. Golap Bhagat (1). The consent of persona who are the guardians of the widow and are, as the next possible takers of the estate, most deeply interested in its preservation, indicates the propriety of the transaction but the presumption is not conclusive and is rebuttable. This follows from a long series of decisions of the Judicial Committee which were reviewed by the Fall Bench and also from the later decisions in Bijoy Gopal Mukerji V. Girindra Nuth Mukerji 23 Ind. Gas. 162; .41 C. 793; 18 C. W. N. 673; 19 C. L. J. 620j 27 M. b. J. 123; .10 M. L. T. 68; (1914) M. W. N.430; 1 L. W. 533; 16 Bom. L.R. 425;12A. L. J.711 (P.C.) and Rangi-sami Guunden v. Nachiappa Gounden (4). As the consent of the reversioners, who, in the words of Lord Dunedin in the case last mentioned, might fairly be expected to be interested to quarrel over the transaction, thus affords a presumptive proof of the propriety of the transaction, the circumstances under which the consent was given must be carefully scrutinised, and , if it transpires that the transaction was in essence a device to divide the estate with the reversioner, his consent must manifestly lose its probative force. Let us now test the evidence in the light of these principles.
4. Mahim Chandra Chakrabarti, as the evidence unmistakably shows, was a man of means. The application for Letters of Administration presented by his widow on the 22nd July l892, within a month of the date of his death, states that he left 1,584 bighas of land valued at Rs 8,700, and a sum of Rs. 629 due from creditors against most of whom decrees had been obtained. There is no indication that the extent of the assets was overvalued it is certainly not customary for people to overestimate the value of an estate where succession duty has to be paid. Besides, the statement in the case before us was verified by the defendant as also by the brother of the widow, who later on became a transferee of a portion of the estate. Different witnesses give varying figures for the income of the immoveable property in our opinion, an estimate of Rs. 2,000 a year does not err on the side of excess. The widow obtained the Letters of Administration and entered upon the management of the estate. In less than three years, we find that she proceeds to execute almost simultaneously a number of documents whereby she alienates a considerable portion of the estate left by her husband These transactions may be conveniently enumerated as follows:-(i) 15th June 1 S-'S ---Conveyance of 261 bighas of land in favur of her brother Syama Charan Bhattaoharyya for an alleged consideration of Rs. 3,499.(ii) 15th Jute 1895---Conveyance of 285 bighas of land in favour of the defendant (her husband's sister's son) for an alleged consideration of Rs, 2,499.(iii) 18th June l895---Dead of endowment of 13 bighas 15 cottahs' of land in favour of Trailokya Nath Chakrabarti for the worship of the family deities.(iv) l8th June 1895---Deed of gift of 252 bighas of land, valued at Rs. 1,500, in favour of Umes Chandra (her husband's brother), the then next reversioner.(v) l8th June 1895---Ekrarnama in favour of times Chandra undertaking not to act to the prejudice of the reversion in respect of the properties still left in her hands (area estimated at 705 bighas, i.e., less than a half of the entire estate).
5. There can be no doubt that each of these transactions formed part of a carefully organised and matured plan for distribution of the estate ; we have the significant fact that stamps for the documents were purchased simultaneously from the same stamp vendor on the 12th March 1895. It may be added that there were intermediate alienations, namely, a permanent lease in favour of one Bangsi Mandal on the 14th April l895, for a premium of Rs. 400; on the same date there was another lease in favour of Ainuddin for a premium of Rs. 740 and a conveyance in favour of Satish Chandra Chakrabarti for Ra. 300. There was aho a mortgage of soma land executed on the 15th June to Bingsi Mandal for a loan of Rs. 500, which is said to have been repaid the very next day, out of the alleged consideration for the sale to the defendant. The various alienations we have mentioned took place with the concurrence of the then next reversioner, and as the parties are proved to have acted under legal advice, the policy pursued is not difficult to appreciate. As the law was generally understood at that timp, Hem Ohunder Sanyal v. Sarnamoyi Debt22 C. 354; 11 Ind. Dec, (N. s) 228., an alienation by a widow, even of a portion of the estate of her husband, was taken to convey an absolute title to the purchaser, provided it was made with the concurrence of the then next reversioner. No doubt, a general recital of necessity was also inserted in the deeds, but evidently the real foundation of the transactions was the consent of the immediate reversioner. The defendant now finds himself in a state of unexpected embarrassment by reason of subsequent judicial pronouncements he is consequently driven to support the transfer in his favour, solely on grounds of legal necessity and bona fide enquiry. In our opinion, this attempt has ended in a complete failure
6. As regards legal necessity, was must bear in mind that it is nit sufficient for the transferee to prove that there were some debts payable by the deceased full owner or his widow. A person who claims title under an alienation from her must prove that there was legal necessity for it, that h, such pressure on the estate at the time the alienation was made as justified the act of the widow. The creditor is not protected merely by proof that the money raised has been applied for the benefit of the estate. The true rule is that the creditor, to protect himself---where he is not shown to have made a bona fide enquiry---must prove that there was an actual pressure on the estate or danger to be averted, such as a threatened suit on a genuine debt, an outstanding decree or an impending sale, which the widow had no funds to meet: Rameswar Manddl v. Provabati Debi25 Ind. Cas. 84; 20 C. L. J. 23 at p. 28; 19 C. W. N. 313.. Tested from this point of view, there is no solid foundation laid here for proof of legal necessity for the sale to the defendant. There is a general recital in the conveyance that Mahim had contracted debts which could not be repaid out of the income. There is no specification of debtors or of the amount of their dues. The only debt specified, namely, the mortgage executed in favour of Bansi Mandal on the previous day, was manifestly illusory. The transaction, as we have seen, had been arranged at least three months earlier when the stamps were purchased on the 12th March 1895. The fact that a mortgage was executed on the 15th June and is said to have been repaid on the 16th June out of the alleged consideration for the conveyance, is not calculated to inspire condense in the genuineness of the transaction. Evidence was brought forward at the trial to show that decrees had been obtained against the widow for small sums of money due for arrears of rant, but most of these appear to have been satisfied, Same rough account books of Mahim have been produced to show that from time to time he ased to t ika loans from others; the aggregate of the entries selected comes to about R>. 1,030. But the account books are obviously incomplete; in some places, entries have been out in an inexplicable manner in other place, there is no bredit side. It is impossible to draw any inference from these account books as to the financial position of Mahim at the time of his death. On the other hand, it is a matter for legitimate comment that the account books of 1895, that is, the year in which these transactions took place, are not forthcoming. They would have shown, if properly kept, the exact state of the family funds and the mode in which the alleged considerations for the sales and leases, if really received by the widow, were applied by her. No reliance can be placed upon the assertions made by the defendant in his oral testimony to show that Mahim at the time of bis death was in debt to the extent of nearly Rs, 2,700, These allegations are not corroborated by contemporaneous documentary evidence and are not strengthened by testimony that Mahim sometime before his death had been sued by Sarat Kumari, one of his sisters-in-law, for a share of the ancestral properties of her husband. As already stated the evidence, if accepted, tends to show that Mahim sometimes used to take loans and at the time of his death probably left 'koine debts. Beyond this the evidence does not carry us, and we have really no information as to the state of family affairs at or about the time when the series of transactions mentioned took place. We must not also overlook the fact that the defendant knows all about the transactions, while the plaintiffs have no personal knowledge of them; indeed, the first plaintiff was a child two years old when the sale took place, and his brothers, the other plaintiffs, had not been born then. In our opinion, the claim of the defendant cannot possibly be supported on the ground of justifying legal necessity.
7. As regards bona fide enquiry, the position of the defendant is if possible, weaker still. He is by no means a stranger to the family. After the death of his father, he was brought up in the family of Mahim who was his maternal uncle. It is not necessary to determine what was the precise extent of the influence exercised on Monmohini by her brother and her nephew respectively. It is dear that the defendant was intimately acquainted with, even if he did not actually look after, the affairs of Monmohini in these circumstances, no question of bona fide enquiry really arises.
8. We have further evidence to show that the consent of Umesh to the alienation was obtained under circumstances which makes it valueless as an indication of the propriety of the transaction. Umesh was a needy man and was in receipt of a small allowance from the estate of his father. This was withheld for a time, much to his inconvenience. In addition to this, we find that he received by way of gift land valued at Rs. 1,500, which was substantial enough, in his straitened circumstances, to induce him to assent to the transactions in favour of the defendant and the brother of the widow. In this view, we need not examine whether the alleged consideration for the sale to the defendant was actually paid by him to his maternal aunt. It has been suggested that he had no funds at his disposal to enable him to make the purchase. The circumstances are certainly suspicious, but we need not go into the point further, as the sale could not be supported even if it was for consideration.
9. On a review of all the circumstances of the case, we feel no doubt that the sale to the defendant was only one element in a scheme for the division of the estate, during the lifetime of the widow, among persons nearly related to her and well-acquainted with the state of the family. The end was intended to be achieved by a series of transfers effected with the concurrence of the then next reversioner, who was paid a substantial consideration as the pries of his consent. There was no justifying necessity for there alienations and no occasion for such enquiry as affords protection to a hona fide purchaser for value.
10. We may add finally that whatever the position of Umesh might nave been, the plaintiffs, though his sons, are not affected by any rule of estoppel. The plaintiffs do not claim through their father, but directly as reversioners to the estate of their uncle. The contrary view indicated in Rangippa Naik v. Kamti Naik31 M. 366; 18 M. L. J. 309; 3 M. L. T. 355 (F.B.), Muthuveeru Mudaliar v. Vythilinga Mudaliar 3 lnd. Cas. 476; 32 M. 206; 5 M. L. T. 122; 19 M. L. J. 88. and Vinayak v. Govind 25 B. 129; 2 Bom. L. R. 820. possibly received some color of support from dicta in Rnp Narain v. Gopal Devi 3 Ind. Cas. 382; 36 I. A. 103; 33 C. 780; 6 A. L. J. 5-567 (P. C); 10 C. L. J. C8- 13 C. W. N. 920; 5 M. L. T. 423; 11 Bom. L. R. 833; 93 P. E. 1909; 68 P. h. R. 1910; 146 P. W. R. 1909; 19 M. L. J. 548. and Bajrangi Singh v. Manokarnika Bakhsh Singh351. A. 1 (P. C); 30 A. 1; 6 0. L. J. 761; 5 A, L. J. 1; 12 0. W. N. 74; 17 M. L. J. 603; 9 Bom. L. R. 1348; 11 O. C. 78; 3 M, L, T. 1., but was contrary to the principle enunciated in Bahadur Singh v. Mohar Singh 29 I. A. 1; 24 A. 91 (P. C.); 6 C. W. N. 169. 4 Bom. L.R. 233 12 M. L. J, 56; 8 Sar, P, C, J, 152, and has now been definitely negative by the Judicial Committee in Rangasami Gounden v. Nachiappa Gounden (4). The plaintiffs are consequently not precluded by any rule of estoppel from disputing the validity of the alienation nor are they affected by the circumstance that they had, after the death of their father and before the death of their aunt, taken by inheritance the land transferred by way of gift to their father this clearly does not operate as acquiescence or ratification.
11. The result is that the appeal is allowed 1, the decree of the Subordinate Judge set aside and the suit decreed with costs in both Courts, The case will be remitted to the Subordinate Judge for determination of the mesne profits.Appeal allowed.