Nasim Ali, J.
1. One Khagendra Nath Mukherjee, a Hindu, governed by the Dabhayaga School of Hindu law, was the owner of premises Nos. 3 and 12 Mal Road, Dum-Dum, which are the subject-matter of dispute in these two appeals. He was also the owner of certain other properties. He died leaving him surviving a widow Bidhu Mukhi Debi, who will be referred to as 'the widow' and a daughter Hem Lata Debi. Hem Lata died during the lifetime of her mother leaving three daughters Nantu Bala, Abir Bala and Amiya Bala. Nantu Bala was married to one Haripada Mukherjee (herein called 'defendant'). Harendra Nath Mukherjee, Harihar Mukherjee, and Amarendra Nath Mukherjee are the three grandsons (son's sons) of the brother of Khagendra. They are the reversionary heirs of Khagendra and will be hereafter referred to as the reversioners. On 16th April 1921, the widow executed a Kobala (Ex. 1) in favour of Haripada purporting to sell premises No. 3 Mal Road to him for a consideration of Rs. 7000. On 25th April 1921. the widow executed another Kobala (Ex, 1-a) in favour of Haripada purporting to sell premises No. 12 Mal Road for a consideration of Rs. 5000.
2. On 1st March 1930, Harihar and Amarendra instituted a suit in the Court of the Subordinate Judge of 24-Parganas for a declaration that the said two Kobalas were not binding on them impleading the widow, Haripada and Harendra as defendants in the suit. They alleged inter alia (a) that the monthly income of the estate left by Khagendra was at least Rs. 500 and that after meeting all the necessary expenses of the widow there was always a sufficient surplus; (b) that Harendra was their stepbrother and that they were on bad terms with him; (c) that Harendra on account of this bad feeling induced the widow to sell the disputed properties; (d) that the necessities mentioned in the two Kobalas for the sale of the disputed properties were fictitious; (e) that before the sale of premises No. 12 Mal Road, the widow in collusion with Harendra secured the signature of Harihar on a letter full of false statements; (f) that at that time the widow informed Harihar that out of the sale proceeds of premises No. 12, only Rs. 1000 would be paid towards the satisfaction of a debt and the balance would be invested in G.P. Notes (g) that the widow at that time did not disclose that she was going to sell the premises No. 3 Mal Road also; (h) that there was no legal necessity for sale of the two houses. The widow filed a written statement on 24th April 1930. Her defence was that she was not induced by Harendra to sell the properties. She also alleged that Haripada on account of his misunderstanding with his father was driven out by him from the ancestral dwelling house and as he had no other place of residence, he came to reside with her in her house at 10, Hem Chandra Street, Kidderpore and that he had been living there with his family per. manently from 1917 as member of her family and that he was looking after her estate as her agent. She further stated that Haripada induced her to execute the said two Kobalas by making certain false representations and that the consideration money mentioned in the two Kobalas did not pass at all.
3. The defence of Haripada, the purchaser, to this suit in substance is as follows: Premises Nos. 3 and 12 Mal Road and the widow's dwelling house at 10, Hem Chandra Street were in a very dilapidated condition for want of repairs for a long time. The Cantonment authorities at Dum-Dum passed orders to the effect that unless the two houses were properly repaired they would be demolished. The two houses at Dum-Dum remained vacant for the most part of the year and the taxes and other dues in the Cantonment had to be paid regularly. Income from the said two houses after meeting all the expenses was not more than Rs. 3000 or Rs. 4000 per year. The widow therefore was compelled to have the two houses at Dum-Dum as well as the residential house at Kidderpore repaired by a contractor named Ganesh Chandra Chatterjee. The bills of this contractor amounted to Rs. 10,040. Before these repairs the widow had premises No. 3 Mal Road repaired to some extent by another contractor named Upendra Nath Sen. His bill not having been paid a suit was brought by him against the widow and a decree for Rs. 2250 was obtained by him against the widow. He threatened to attach the dwelling house at Kidderpore in execution of this decree. The income of the properties left by her husband being insufficient to pay off these debts the reversioners advised her to sell the disputed properties. The reversioners were aware of the existence of the legal necessity and gave their consent to the sale of these two houses out of their own free will. The defendant was induced by their consent and conduct to purchase the two houses in dispute for valuable con. sideration. In that suit Harendra filed a written statement denying the allegations made against him by the plaintiffs in that suit. He supported the other allegations of the plaintiffs.
4. On 27th April 1932, Bidhumukhi died during the pendency of this suit. Harihar and Amarendra thereafter converted this declaratory suit into a suit for possession, of two-thirds share of the disputed properties and for mesne profits. On 23rd December 1932, Harendra raised another suit in, the Court of the Subordinate Judge of Alipore impleading the purchaser and the other two reversioners as defendants for possession of one-third share of the disputed properties and for mesne profits. Hei attacked the two deeds of sale on the same grounds as the plaintiffs in the other suit. The defence of the purchaser in this suit is the same as in the other suit. The two suits were heard together and were disposed of by the same judgment. The learned Subordinate Judge found (1) that Harendra gave his consent to the sale of the two properties in suit out of his own free will; (2) that Amarendra did not at all give his consent to the sale of these two houses; (3) that Harihar did not give his consent) to the transfer of premises No. 3 Mal Road; (4) that he gave his consent to the transfer of premises No. 12 Mal Road on condition that Rs. 1000 only out of the, sale proceeds would be spent for the satisfaction of the widow's debt and the balance would be invested in G.P. Notes for the benefit of the reversioners but this condition was not fulfilled; (5) that the purchaser did not pay the consideration money for the kobalas as mentioned therein. He accordingly passed a decree for possession of the two-thirds share of the two disputed houses in favour of Harihar and Amarendra but dismissed Harendra's suit. Hence these two appeals - one by Harendra (F.A. 190/34) and the other by the purchaser (F.A. 222/34). Harihar and Amarendra have filed cross-objections.
5. The points for determination in these two appeals are : (1) Whether the reversioners gave their consent to the sale of the two houses in dispute; if so, whether they are thereby precluded under the Hindu law from recovering possession to the disputed houses from the defendant; (2) whether there was legal necessity for the alienation of the two houses in suit; (3) whether the claim of the reversioners is barred by estoppel or the doctrine of election or ratification. The case of the defendant is that all the three reversioners gave their consent to the alienation of the two houses in dispute by the widow. (After discussing evidence as to consent his Lordship concluded.) I am therefore inclined to think that the letter contained statements which would not support the defendant's case about legal necessity and that the letter, as evidence of consent, was of no use. I therefore hold that Harendra gave his consent to the salef premises No. 12 Mal Road believing in we representation of the widow that there were certain debts due from her which she could not pay off from her own income. Amarendra gave no consent and Harihar's consent to the sale of premises No. 12 was obtained with representation that there was legal necessity to the extent of Rs. 1000 only. In Hari Krishen v. Kashi Pershad Singh (1914) 1 A.I.R. P.C. 90 their Lordships of the Judicial Committee observed,
when a 'stringent equity,' to use Lord Hobhousa's expression in the course of the argument in Jiwan Singh v. Misri Lal (1896) 18 All. 146 arising out of an alleged consent by the reversioners is sought to be enforced against them, such consent must be established by positive evidence that upon an intelligent understanding of the nature of the, dealings, they concurred in binding their interest; and that such consent should not be inferred from ambiguous acts or be supported by dubious oral testimony.
6. The next question for consideration is whether under the Hindu law the consent of the reversioners to the alienation by the widow precludes them from challenging the alienations. The only text on the subject is the text of Narode which is in these terms:
When the husband is deceased, the husband's kins are the guardian of his sonless wife. In the disposal and care of the property as well as in the matter of maintenance they have full power. But if the husband's family be extinct or contains no male or be helpless or there be no sapinda of his, then the kins of her own parents are the guardian of the widow: Golap Chandra Sarkar Sastri'a Hindu Law, Edn. 7, p. 805.
7. The expression 'husband's kins' in this text has been judicially interpreted to mean 'all those who are likely to be interested in disputing the transaction' : see Lukhee Dabea v. Gokool Chunder (1869-70) 13 M.I.A. 209 at p. 228 and Ranga Swami Goundan v. Nachiappa Goudan (1918) 5 A.I.R. P.C. 196:
Ordinarily the consent of the whole body of persons constituting the next reversioner 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 Baksh Singh (1908) 30 All. 1 at p. 16.
8. The next question is what is the meaning of the expression 'they have full power' in Narode's text? Does it mean that their consent would validate the alienation even if there be no legal necessity? In Ranga Swami Goundan v. Nachiappa Goudan (1918) 5 A.I.R. P.C. 196 Lord Dunedin observed:
The consent of the reversioner was looked on as affording evidence that the alienation was under circumstances which rendered it lawful and valid. But if the matter be considered on principle it seems clear that this must be the true view. For first if mere consent as such of the reversioner could validate alienation then the rule as to total surrender would be an idle rule and secondly mere consent could only validate on theory that the reversioner together with the widow represented the whole estate. But that is impossible unless the reversioner has a vested interest, whereas it is settled that he has only a spes successionis.
9. I am therefore of opinion that mere consent by the reversioners does not validate the alienation by the widow under the Hindu law. The next point for consideration is whether there was legal necessity for the alienation of the disputed properties. It is settled law that to be valid as against the reversioners or to affect their reversionary right an alienation effected by Hindu widow can be supported only by proof aliunde that such alienation was made for valid and legal necessity and onus of establishing such necessity rests heavily on the person who claims the benefit of the transaction with a Hindu widow - Hari Krishen v. Kashi Pershad Singh (1914) 1 A.I.R. P.C. 90. If however the necessity is not proved aliunde, and the alienee does not prove enquiry on his part or honest belief in the necessity, the consent of the reversioners affords a presumptive proof which if not rebutted by contrary proof will validate the transaction : Ranga Swami Goundan v. Nachiappa Goudan (1918) 5 A.I.R. P.C. 196. The value of the consent however is to be measured by reference to all the circumstances of the case : Vinayak v. Govind (1901) 25 Bom. 129.
10. In the present case defendant relies on the, consent of the reversioners as well as on other evidence to support the alienations in his favour on the ground of legal necessity. All the reversioners however did not give their consent to the alienation in favour of the defendant. Harendra no doubt gave his consent. But he did so as he was informed by the widow that she was involved in debts. The evidence in this case shows that he had great regard and esteem for the widow. Although Harendra gave his consent, he could not induce Harihar and Amarendra to give their consent. Harihar gave his consent to the sale of one of the houses as he was told by the widow that there was legal necessity to the extent of Rs. 1000 only. Amarendra did not give his consent at all. This is the nature of the consent of the reversioners in the present case. I will now proceed to deal with the other evidence relating to legal necessity.
11. In the two deeds of gale, Exs. 1 and 1-a, the legal necessities mentioned are : (a) a decree obtained by one Upendra Nath Sen against the widow for Rs. 2250. (b) A debt of Rs. 10,040 due to a contractor Ganesh Chandra Chatterjee on the widow. There is no dispute that Upendra Sen obtained a decree for Rs. 2250 against the widow. It Is also not disputed that it was a consent decree and Rs. 403 was payable by the end of Chaitra 1327 B.S., that is 14th April 1921. It is also not disputed that a cheque of Rs. 403 was paid to the decree-holder Upendra on 9th April 1921, in part payment of this decree. Upendra received this cheque through the defendant (Ex. E). It is not disputed by the plaintiffs that the cheque was the cheque of the defendant. The reversioners however allege that the widow paid the defendant the value of this cheque in cash before he gave the cheque to the decree-holder. The defendant denied this in his evidence. But P.W. 4, Lalit Mohan Basu, who was admittedly an officer of the widow at the time, in cross-examination, stated that the widow paid the defendant the amount covered by the cheque in cash on the very day the defendant made over the cheque to the decree-holder. I believe this evidence of P.W. 4 and hold that the defendant received the value of his cheque in cash from the widow before payment to the decree-holder.
12. It is stated in Ex. 1-a that Rs. 1597 was paid by the defendant to the widow on 12th April 1921 for satisfying the balance of Upendra's decree. The only evidence on this point is of the defendant himself. The decree of Upendra was not satisfied till 22nd August 1922 (Ex. 5). It has been proved by very satisfactory evidence that the widow paid this amount out of a sum of money received by her from one of her tenants. There is no evidence that at the time when Rs. 1597 is alleged to have been paid by the defendant to the widow to show that the decree-holder was pressing the widow for payment of the balance of the decretal amount. The decree-holder did not execute his decree for the realization of the balance till 17th May 1922. If this amount was really necessary for satisfying the decree why did not the defendant pay it direct to the decree-holder and get the decree satisfied? Again if the amount was actually received by the widow, why did she, not satisfy the decree at once? I there, fore hold that the defendant did not pay Rs. 1597 to the widow as alleged by him and that the widow satisfied the decree of Upendra from the income of her properties. I now come to the debt alleged to hays been due from the widow to the contractor Ganesh Chandra Chatterjee. It is stated that the widow was compelled by the Dum-Dum cantonment authorities to have the disputed houses repaired and that the residential house at Kidderpore was about to fall into ruins for want of repairs. It is also stated in this document that the widow was compelled to have the said houses repaired by the contractor Ganesh Chandra, that she became indebted to that contractor for Rs. 10,040 and that she was unable to pay off this debt from the income of her properties. The recitals in a deed of transfer cannot by themselves be relied upon for the purpose of proving the facts contained therein. If such facts are admitted, the right of reversioner would always be defeated by insertion of carefully prepared details, 43 I A 249.7 The defendant in his evidence stated that the widow was served with a notice by the cantonment authorities to demolish the two disputed houses as they were very old. This notice has not been produced. The story of notice is not to be found in the deeds of transfer. Amarendra in his evidence denies that expensive repairs were made in the disputed houses. He also denies that Ganesh repaired the houses. P.W. 2 in his evidence stated that the houses at Dum-Dum were tenanted and were not unfit to be let out. The account books of the year 1919-20 support the evidence of this witness. These account books show that there were European tenants in these houses at that year. I therefore disbelieve the defendant's case that the two disputed houses in Dum-Dum were in a dilapidated condition and were about to fall into ruins for want of repairs.
13. Amarendra in his evidence says that the residential house at Kidderpore is by the side of his house and that extensive repairs of this house were never made by the widow. His evidence shows that ordinary repairs were made from time to time. In his written statement the defendant alleged that the residential house in Kidderpore was also in a very dilapidated condition. In his evidence however he did not say so. The account books Ex. 2-C show that this house was repaired in 1919-20. The widow, the defendant and his wife and children had been living in this house at the time. P.W. 1 and P.W. 4, the two officers of the widow at that time deny that the house was in a very bad condition. I therefore hold that the houses at Dum Dum were not in a dilapidated condition as alleged by the defendant and that there was no necessity for extensive repairs of the residential house at that time. It is stated in the kobala that Ganesh Chandra Chatterjee repaired all these houses. Amarendra as well as P.W. 4 deny this.
14. In order to prove that Ganesh Chandra Chatterjee made the repairs the defendant relies upon: (1) the bills of the contractor, D/- 16th January 1921 and Exs. D, D-1 and D-2; (2) a letter written by Messrs. Khatian & Co. on 15th February 1921, to the widow demanding payment of Rupees 10,040 for repairs of the Dum-Dum houses and the residential house Ex. 1; (3) endorsements of the contractor on the bills Exs. D, D-1 and D-2 showing that the bills were paid in full on 18th March 1921. (His Lordship then discussed evidenced and concluded.) My conclusion is that the defendant in fact paid nothing to the widow, that the widow was not at all indebted to the contractor Ganesh and that she did not pay anything to him. The bills and the endorsements on them and the letter of demand are all fictitious and were brought into existence to support the false recitals in the deeds of sale. I therefore hold that there was no legal necessity for the sale of the two disputed houses by the widow.
15. The next point for consideration is whether the claim of the reversioners is barred by estoppel or the doctrine of election or ratification. Mr. Bose appearing on behalf of the defendant conceded that the bar of estoppel or the doctrine of election or ratification has no application so far as the claim of Amarendra is concerned. So far as Harihar is concerned the contention of Mr. Bose is that Harihar's claim to premises No. 12 Mal Road is barred by estoppel, as the widow represented to the defendant that Harihar had given his consent to the sale of this house and that relying on this representation the defendant purchased this house. From the evidence of Amarendra it appears that the letter containing the consent of Harihar was written sometime in March 1921. It does not appear from the evidence that this letter was actually shown by the widow to the defendant. There is also no reliable evidence to show that the letter was written by Harihar to the widow before 18th March 1921, when the defendant is alleged to have paid Rs. 10,000 to the widow. The defendant paid no money to the widow for the purchase of the disputed houses. The question of any alteration in his position does not therefore arise. The debts mentioned in the kobala are fictitious. The defendant was living with the widow and was looking after her affairs. He was therefore aware of the real state of affairs. Harihar's claim is therefore not barred by estoppel. It was conceded by Mr. Bose that there was no ratification by Harihar.
16. So far as Harendra is concerned, the contention of the defendant is that he was estopped from challenging the sale of premises No. 3 Mal Road on account of his representation in the letter Ex. C. The representation contained in Ex. C amounted to this, that the widow had informed-Harendra that she was involved in debts. There is no reliable evidence to show that this representation induced the defendant to purchase this property excepting his own oral testimony. If he was really induced to purchase the property on account of the representations contained in Ex. C, one would naturally expect that this letter on which so much reliance is now being placed by the defendant would be entered in the schedule of documents. Further as the defendant was aware of the fact that there was no legal necessity and did not pay any consideration for the sale, Harendra's claim cannot be held to be barred by estoppel.
17. The next contention of Mr. Bose is that if there were no legal necessity, the alienations were not void but voidable and Harendra had the option either to ratify it or to repudiate it and as Harendra attested both the documents and wrote Ex. C(1) to the widow after the execution of the two Kobalas, it must be taken that he elected to ratify the alienations. In Ranga Swami Goundan v. Nachiappa Goudan (1918) 5 A.I.R. P.C. 196 Lord Dunedin observed:
An alienation by a widow is not a void con tracer it is only voidable : Bejoy Gopal Mukerjee v. Krishna Mahishi Debi (1907) 34 Cal. 329. Now in all casel of voidable contracts there is a general equitable doctrine common to all systems that he who has right to complain must do so when the right of action is properly open to him and he knows the facts. If therefore a reversioner after he became in titulo to recover the estate to possession and knew of the alienation did something which showed that he treated the alienation as good, he would lose his right of complaint.
18. Harendra admittedly attested the two documents knowing full well that they were the sale deeds of the two houses. The attestation of 1-a was in pursuance of the consent given by him in the letter Ex. C. Before the attestation of Ex. 1, Harendra did not intimate to the widow in writing that he would attest this Kobala also. After the attestation of Ex. 1, he wrote Ex. C (1) stating that he would attest. If Harendra's attestation of Exs. 1 and 1-a be considered in the light of his statements in Exs. C and G (1) there cannot be any doubt that when he attested these two documents he believed the representation of the widow that she was involved in debts to be true. The evidence does not show that at that time he had the least suspicion that the representations were false and that the debts had no existence. At the time of the attestation or at the time when Harendra wrote Ex. G (1) he was not aware of the real facts and was therefore not aware of his right to avoid the alienation. The principle of ratification or election there, fore is not attracted to the case of Harendra. Harendra and Harihar are therefore not precluded from claiming their shares of the disputed houses either on the ground of estoppel or on the principle of election or ratification. Harihar and Amarendra have filed cross-objections to the decree of the trial Judge, as the trial Judge did not give them a decree for mesne profits and did not award any cost to them.
19. The trial Judge has held that they are not entitled to get any decree for mesne profits as they did not adduce any evidence to prove the amount of mesne profits payable to them. The learned advocate appearing on their behalf could not satisfy us that the learned Judge was wrong. No evidence was adduced by the plaintiffs to show what profits the defendant actually received from the disputed houses after the death of the widow. The learned advocate on the authority of a decision of the I Madras High Court in Ramakka v. Nagesam : AIR1925Mad145 con. tended that the defendant being admittedly in possession of the property, the onus was upon him to show what amount he actually got from the two houses after the death of the widow. In that case it was held that a. person who had a special knowledge of certain facts must prove them. Section 106, Evidence Act, says so. In that case it was also held that if a certain amount was claimed by the plaintiff as mesne profits on the footing that that amount the defendant could get from the property with due diligence, the onus was upon the plaintiff to prove what amount the defendant could have got from this property with due diligence. It is true that the defendant has adduced no evidence to show what amount actually he received during the period of his possession. The plaintiffs have also adduced no evidence to show what amount the defendant could have got from the properties. Under the circumstances it is impossible for the Court to determine the amount of mesne profits and the claim for mesne profits must therefore fail for want of evidence. The trial Judge was therefore right in dismissing the claim for mesne profits. The cross-objections, so far as mesne profits are concerned, are therefore dismissed.
20. As regards the costs the accepted principle is that costs shall follow the event unless the successful party is guilty of misconduct or there is other good cause for depriving him of it. No exceptional circumstances have been pointed out by the trial Judge to justify the refusal of costs to Harihar and Amarendra. The cross-objections so far as they relate to the costs in the trial Court are therefore allowed.
21. The result therefore is that Harendra's appeal (190/34) is allowed. He will get a decree for possession in respect of his 1/3rd share of the premises Nos. 3 and 12, Mal Road, Dum-Dum. Harihar and Amarendra. will get a decree for possession of the remaining 2/3rd share in these two properties. Their claim for mesne profits is dismissed. The appeal of the defendant (F.A. 222 of 1934) is dismissed. The cross, objections of Harihar and Amarendra are allowed in part. Harendra, Harihar and Amarendra will get their costs in the trial Court as well as in this Court.
22. I agree.