B.B. Ghose, J.
1. This appeal arises out of a suit brought by the daughter's sons of one Peary Mohan Goswami for recovery of captain properties belonging to their maternal grandfather which had been alienated by their mother Uma Sundari. Uma Sundari died in November, 1912, and the present suit was brought in November, 1919.
2. The. Munsif gave a decree in favour of the plaintiffs with regard to all the lands claimed except four plots. The defendants appealed to the District Judge and the plaintiffs preferred cross-objections. The appeal of the defendants was decreed by the learned Judge and the cross-objections dismissed. In the result the entire suit was dismissed on appeal. The plaintiffs appeal to this Court and they attack the decision of the, District Judge on the ground that the alienations made by their mother who had Hindu widow's estate in the property left by her father were not justified by legal necessity.
3. The defendants allege that some of the properties did not belong to the estate of the maternal grandfather of the plaintiffs, namely, the lands entered in schedule 'ga' 4 and schedule 'cha' of the plaint. With regard to the lands included in schedule 'cha' the learned Judge found that the lands were acquired by Uma Sundari and the plaintiffs had not been able to; prove that it was done with the funds belonging to the estate of Uma Sundari's father. On this finding the plaintiffs' claim with regard to the lands stated in schedule 'cha' must be dismissed.
4. With regard to the lands of schedule 'go1 the question stands on a different footing. The property is found to have belonged to Peary. It was sold for arrears of rents during Uma Sundari's time and it was purchased at the auction sale by Uma Sundari in the benami of another person. On these facts the District Judge has held that Uma Sundari had acquired an independent right to the property. In this view he was clearly wrong. Even if the property had been sold and purchased by a third person in execution of a decree for rent against a limited owner it has been held in a series of cases that the sale would prima facie affect the interest of the limited owner alone, and unless it is established that the sale was held in terms of the rent law the absolute title could not have been conveyed to the purchaser. In the present case the purchase was made by the judgment-debtor herself, and the result of the decree, sale and the purchase was that there was no alteration in the position of the tenant and it must be held that the lands of schedule go continued to have been held by the lady in the same interest as previous to the sale. The plaintiffs, therefore, can claim this property unless otherwise barred.
5. A great portion of the judgment of the District Judge is taken up with the decision of the question whether the transactions by which Uma Sundari transferred the lands to the predecessor of the defendants were tainted by undue influence, fraud or coercion. These questions are of very slight importance in the present controversy, because assuming that the lady had executed the documents by which the transfers were effected with full knowledge? and fully understanding what she was about, still the plaintiffs as reversioners can claim to recover Dps3sea.si.0n of the properties conveyed urdesa the trannferee can establish that there was any justifying legal necessity for the transfers. It is immaterial that the plaintiff No. 1 was 16 or 17 years old at the time of the sale and the transactions were entered into with his knowledge by his mother, as that does not affect the plaintiffs' right to claim recovery of possession of the properties on the death of their mother.
6. With regard to the main question dealt with by the District Judge it appears to me to be quite clear that he approached the question from a wrong point of view. 'He starts by saying that tide plaintiffs can succeed only on showing that their mother executed the deeds without legal necessity and finishes his finding by the statement that it is to be presumed that Uma Sundari executed the deeds in favour of Rajani Ghose for legal necessity. The deeds by which the properties were conveyed are two, a kobala executed for a consideration of Rs. 100, which includes Plots Nos. 1, 2, 4 to 9, 11 to 15 and 17 to 50 of schedule 'ka' and the whole of the lands included in schedules kha, ga and cha and the rest of the properties claimed by the plaintiffs are covered by a permanent lease which had been granted by the lady at a rent of Rs. 24 only without receiving any premium for it. These lands, it has been stated in the judgment, were let out previously at a rent of Rs. 44-6-0 to another tenant.
7. With regard to the question of legal necessity it is sufficient to draw the attention of the learned Judge to the latest case decided by the Privy Council on the question, namely, the case of Obala Kondama Naicker Ayyan v. Kondasamy Goundar 79 Ind. Cas 961 : 47 M. 181 : 39 C.L.J. 194 : 22 A.L.J. 16 : 19 L.W 107 : (1924) M.W.N. 86 : 46 M.L.J. 172 : A.I.R. 1924 P.C. 56 : 26 Bom. L.R. 198 : 10 O. & A.L.R. 176 : 28 C.W.N. 1050 : 51 I.A. 145 : 1 R. 5 A. (P.C.) 19 : 10. W.N. 1 (P.C.) in which Sir Lawrence Jenkins in delivering the judgment of the Privy Council observed at page 188 Page of 47 M.--[Ed.]: 'It is now settled. beyond dispute that a daughter as heiress of her father takes a restricted interest similar to that taken by a widow with a similar power of disposal. This power is conditional; she can dispose of the inheritance for legal necessity, but it lies on the alienee to prove the existence of the necessity, and this is so even though the absence of necessity be not pleaded by the reversioner.' He then cites a previous Privy Council case of Sham Sundar Lal v. Achhan Kunwar 21 A. 71 : 25 I.A. 183 : 2 C.W.N. 729 : 7 Sar. P.C.J. 417 : 9 Ind. Dec. (N.S.) 755 (P.C.) in which it was stated that 'In a suit like the present, on a bond made by a person with restricted power of alienation, the defendants are nut required to plead the absence of legal necessity for the borrowing.' It was stated later that the 'touchstone of authority is necessity.' In that very case it was observed on the authority of the case of Bijoy Gopal Mukerji v. Krishna Mahishi Debi 31 C. 329 : 34 I.A. 87 : 5 C.L.J. 334 : 11 C.W.N. 424 : 9 Bom. L.R. 602 : 17 M.L.J. 154 : 2 M.L.T. 133 : 4 A.L.J. 329 (P.C.) that the reversioners, on the mother's death can treat it 'as a nullity without the intervention of any Court.' The learned District Judge has not dealt with the question of necessity from that point of view. He states: 'Now as to legal necessity there is evidence that she had litigation for some years with the defendants' predecessor and she had to meet the costs of the said litigation. The learned Court below thinks that the defendants' predecessor Rajani Ghose Pleader wronged the lady by forcing her to litigate with him and he could not in law take advantage of his own wrong.' Now, it should be remembered that costs of litigation are not always a legal necessity. If the costs had been incurred for the purpose of protection of estate and the limited owner had incurred debts for the purpose of meeting these costs then only, I think, the costs of the litigation could be considered as legal necessity. There is no finding to that effect by the learned Judge. He ought to have come to a finding as. to what the litigation was for which the lady was said to have incurred costs, and whether these costs could be recovered from the estate left by her father. The learned Judge lower down observes: 'Besides costs of litigation it appears that Uma Sundari was not well to do, she was in distress about keeping up her dwelling house and maintaining her children.' This also appears to be too vague a finding to base any decision upon. He has reversed the decision of the Munsif on the question of legal necessity. The Munsif has found distinctly that the lady was in affluent circumstances and had enough money to build a pucca house for herself. These matters have not been dealt with by the learned Judge at all. He has gone apparently upon the idea that as no undue influence, coercion, misrepresentation or fraud has been proved there is no reason why the lady should transfer the properties without legal necessity, as it is to be presumed that she loved her sons and acted in their interest. He has dealt with the question from a wrong standpoints. He ought to have found upon the evidence whether there was actual legal necessity or such representation on which a bona fide purchaser could properly act in accepting a transfer from a person having only the limited interest of a Hindu widow.
8. Then with regard to the question of the I lease, as I have already observed no premium was paid and the Judge has come to no finding whatsoever as to how this document could have been executed for legal necessity. He simply says: 'I am of opinion that the two deeds were executed for legal necessity.' The findings which he has arrived at which I have already stated cannot amount to a legal necessity for a permanent lease at a reduced rent of the properties inherited by her from her father. The decision of the learned Judge, therefore, with regard to these properties cannot stand except with regard to the share of plaintiff No. 1, The learned Judge has found that plaintiff No. 1 had accepted rent with regard to the lands included in the pottah after the death of his mother. His finding is that after the death of the lady plaintiff No. 1. ratified the act of his deceased mother in granting the lease to the defendants' predecessor. The claim of plaintiff No. I with regard to these lands must, therefore, fail.
9. The result, therefore, is that the decree of the learned District Judge with reference to the four plots with regard to which the suit was dismissed by the Munsif will stand, as also his decree with regard to the land included in schedule 'aha' of the plaint. The decree with regard to the properties included in the pottah executed by Uma Sundari will be modified to this extent that the plaintiff No. 2 will get a decree with regard to his share in those properties, that is to say, his eight-annas share. The rest of the case will be remanded to the lower Appellate Court for a decision of the question relating to the sale deed which covers the plots. I have already mentioned with the exception of 'aha' lands. The learned Judge will upon the evidence come to finding as to whether the sale of the properties covered by the kobala as stated above can stand with reference to the observationus made in this judgment.
10. Plaintiff No. 2 will get 1/4th of the costs of this appeal as against the defendants. She defendants will bear their own costs in this Court. Further costs which will be incurred and the costs of the Courts below will abide the result of the decision of the appeal by the learned District Judge.
11. I agree.