1. This is an appeal in a suit by one of the three reversionary heirs of one Shamal Singh to recover possession of one-third share of the inheritance after the death of his widow, Dulhin Nawab Kumari. Shamal Singh died in 1842 and Dulhin Nawab Kumari died in the beginning of 1900. Suit No. 509 of 1904, out of which this appeal arises, was instituted on the 14th December 1904. Another suit No. 511 of 1904, which is the subject of the next appeal No. 325 of 1906, was instituted on the 16th December 1904 by the other reversioners, who claimed to recover possession of the remaining two-thirds share. Shamal Singh had three brothers, Raghubir. Bhupal and Jagrup. They all predeceased Nawab Kumari. Of the sons of Raghubir, those, who have survived Nawab Kumari, are Kasi Prosad and Ram Prosad. They are the plaintiffs in suit No. 509. Bhupal's son, Behary, and Behary's sons, Bishen Prosad and Kishen Prosad, all predeceased Nawab Kumari. Jagrup left three sons, of whom only one Bajrang Sahai, who is the plaintiff in the present suit, has survived Nawab Kumari.
2. Thus when Nawab Kumari died, Kasi Prosad and Ram Prosad, the sons of Raghubir, and Bajrang, the son of Jagrup, were the only three reversionary heirs of Shamal Singh, each being entitled to a third share.
3. The subject matter of the present suit is a four anna share of a certain mokarari tenure left by Shamal Singh, consisting of five asli with appurtenant Dakhili Mouzahs and about 75 bighas of kamat lands.
4. The defence of the defendant No. 1, Hari Kissen Bhagat, was that Nawab Kumari, from time to time, borrowed from him sums of money for legal necessity for which she executed two registered mortgage bonds, one dated November 26th, 1877, for Rs. 950, hypothecating thereby properties Nos. 1, 2 and 3 of the schedule to the plaint, and another, dated July 11th, 1882, for Rs. 1,775, hypothecating thereby properties Nos, 1 4 and 5 and also a zurpeshgi ticca patta, dated July 10th, 1889, in respect of properties Nos. 2, 3, 4 and 5, on receipt of a zurpeshgi loan of Rs. 1,250. The patta was for a term of 11 years from 1297 to 1307 fusli, that is, from 1890 to 1900, and contained a stipulation for extension of the term for a further period, in case the loan was not satisfied within the original term. The defendant No. 1 further stated that he had obtained a decree on the first mortgage and, in execution thereof, had purchased properties Nos. 1, 2 and 3, on February 12th in 1894, for Rs. 2,550 and that he had obtained a similar decree on the second mortgage and, in execution thereof, had purchased properties Nos. 4 and 5, on September 13th, 1897, for Rs. 2,000. He also alleged that the reversionary heirs had attested those documents and had taken an active part in the loan transactions. He pleaded that by virtue of the aforementioned purchases he had acquired an absolute interest in all the properties.
5. The Court below has given the plaintiff a decree for possession holding that, save and except certain sums, the debts were not incurred for purposes of legal necessity and that what passed at the sales was merely the limited estate of the widow. The defendants have appealed.
6. I do not propose to follow the Court below into its minute examination of the pleadings in the suits founded upon the mortgages, the proceeding's held in execution of the decrees in those suits and the terms of the certificates issued in respect of the sales held under them, for in my opinion, the only sound method of testing what passed at those sales, whether the limited and qualified interests of the widow or the absolute inheritance, is to examine the real nature of the debts, for which those mortgages were executed and to see whether or not they were incurred for purposes recognized as valid under the Hindu Law.
7. In the somewhat analogous case of the sale in execution of a decree against the head of a joint Mitakshara family, the question as to what passed by the sale, whether the rights and interests of the father alone or the entire co-parcenary interest of the family, depends, as is laid down by the Privy Council in the case of Nanomi Babuasin v. Modhun Mohun 13 C. 21; L.R. 13 I.A. 1, upon the nature of the debt, namely, whether or not it was incurred for valid purposes.
8. With these remarks I shall proceed to examine the character of the debts secured by these mortgages.
9. Now turning to this aspect of the case, I find that the sum of Rs. 950, which was the consideration for the first mortgage bond, (dated November 26th, 1877), was, according to that document, borrowed to pay off a debt of Rs. 300, due to Beni Singh under a bond, dated the 5th jaist 1297 fusli, (May 27th, 1872) and also to meet the necessary expenses of the widow. The bond of 1872 was an unregistered simple bond in favour of Baijnath Singh, said to be brother of Beni Singh who is referred to in the first mortgage bond. This bond does not mention the purpose for which the money was borrowed. The defendants, however, have attempted to supply this omission by the testimony of two witnesses who have deposed that this money was borrowed to meet the expenses of a pilgrimage to Benares and the offering of pindas there. I do not think that any reliance should be placed on the evidence of these witnesses, because it seems to me very unlikely that they should have any recollection of an event which transpired nearly thirty-five years since, and one in which they were not personally concerned. Moreover, even if these witnesses be believed, there is, so far as I am aware, no distinct authority in favour of the position that pilgrimage to Benares is recognized as a legal necessity by the Hindu law. As regards the remainder of the consideration received for the first mortgage bond, I need only remark that the defendant's witness No. 2 has deposed that the money was employed to meet the personal expenses of the widow. But then it was said by the learned Vakil for the appellant that though there be no proof that the consideration for the first mortgage was advanced to meet purposes recognized as legally necessary, the document was witnessed by Raghubir who, at the date of that document, was according to the finding of the Court below, (a finding which has not been questioned in appeal), the sole reversionary heir, and also by Behary Singh, the son of Bhupal and further that the document was signed on behalf of the lady by, and the consideration of the bond was received through, the plaintiff. On these facts, it was contended that Raghubir consented to the transaction and that his consent had the effect of transmuting what could otherwise have been a mortgage of the limited estate only into a mortgage of the whole inheritance. In further support of this position, stress was laid upon the words: 'I, my heirs and successors are, and shall be, in every respect, bound by this writing,' which words occur in the bond. I am unable to accept this contention as sound. We have not been referred to any direct authority in support of this contention. Assuming that attestation of the document by Raghubir may be taken as proving that he consented to the transaction, it seems to me that consent by itself is not sufficient to establish the existence of legal necessity, Bepin Behari Kundu v. Durga Charan Banerji 35 C. 1086, and in so far as it may be treated as corroboration of the evidence of the existence of such necessity, it can be of no avail here, for, as I have indicated, there is no other evidence on the subject to which any probative force can be attributed. Thirdly, in further regard to the contention that the mere consent of the reversioner, assuming that he consented, was sufficient, apart from any question of legal necessity, to validate the transaction as against the estate, reference may be made to the case of Sham Sunder Lal v. Achhan Kunwar 21 A. 71; L.R. 25 I.A. 183, where a widow, holding a widow's estate in her husband's property, had in 1877 executed, jointly with Achhan Kunwar, her daughter and Enayet Singh, the minor son of that daughter, a mortgage bond in favour of a creditor without legal necessity. The mortgage bond was signed by the husband of Achhan Kunwar, under a power-of-attorney, executed in his favour by the widow and her daughter. A similar mortgage bond had been executed in 1881 by Achhan Kunwar and her son Enayet, who had then become of age. With reference to these two deeds, their Lordships of the Privy Council observed as follows: 'In 1877, neither Achhan Kunwar nor Enayet Singh (even if he had been of age) could, by Hindu law, make a disposition of, or bind, their expectant interests, nor does the deed apply to any but rights in possession; and in 1881 Enayet Singh was equally incompetent to do so, though the deed purports to bind future interest. To give validity to the bonds a against the estate of Khairat Lal, the plaintiffs and appellants must show that there was legal necessity for raising the money by a charge on Khairat'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.' This decision clearly shows that where a Hindu widow borrows money on mortgage of her husband's estate, though the transaction may he concurred in, or consented to, by the next reversioner, such consent or concurrence cannot have the effect of conferring on the deed a larger operation than a mortgage of the limited interest only.
10. I think that the doctrine of surrender, upon which, the validity of a sale, out and out, of the whole or any portion of the inheritance, with the consent of all the immediate reversioners is based, Bajrangi Singh v. Manokarinika Bakhsh Singh 30 A. 1; L.R. 35 I.A. 1, cannot legitimately be extended to the case of a mortgage, where ex hypothese the widow still retains the ownership of the estate, though subject to the liability created by the mortgage, nor can the validity of the first mortgage bond be rested on the doctrine of estoppel, for there was no representation whatever on the face of the bond and there is no reliable evidence of any representation aliunde that the money was required for any justifiable purpose, so as to bind the absolute estate. Even if there had been any such representation, Kasi Prosad and Ram Prosad, the plaintiffs in suit No. 511, would not have been bound by the act of their father, Raghubir, in attesting the deed, (Bahadur Singh v. Mohar Singh. 24 A. 94; L.R. 27 I.A. 1), though in that case, Bajrangi, plaintiff in the present suit, might possibly have been bound by his conduct in the transaction and estopped from disputing the nature of the transaction if not its legal effect and validity.
11. I am, therefore, of opinion, that the sale in execution of the decree upon the first mortgage could not and did not pass the absolute estate.
12. As regards the second mortgage bond dated 11th July 1882, the consideration thereof, as recited in it, is made up as follows:
13. For satisfaction of the principal and interest due to the defendant No. 1, on an unregistered simple bond, dated the 22nd Sraban
1286 fusli, (July 25th, 1879) ... Rs. 649
For payment of interest due on the
first mortgage bond, dated November
26th, 1877 ... ... ... ... 535
For satisfaction of the sum due on a
registered mortgage bond, executed
in favour of Thakur Jhabbu Singh,
dated 20th Baisakh 1288 fusli (May
3rd, 1881) ... ... ... ... 367
For payment of rent to the land-
lord for the Mokarari, and for meeting
necessary expenses ... ... ... 224
Total ... Rs. 1,775.
14. The unregistered simple bond, in favour of the defendant No. 1, dated 25th July 1879, which was for a sum of Rs. 400, recites that Rs. 209 was taken for payment of interest due under the first mortgage bond, dated November 26th, 1877, and the remainder, Rs. 191, to meet necessary expenses and expenses for the transplantation of seedlings, and contained a stipulation for payment of compound interest. The mortgage bond, in favour of Thakur Jhabbu Singh, dated May 3rd, 1881, under which the sum of Rs. 301 was borrowed, recites that the money was taken for the purpose of defraying the expenses of Bhandara (the feeding of Brahmins etc) given after return from pilgrimage to Gya and for the purpose of digging a masonry well and the ceremonies connected therewith. Neither the second mortgage bond, dated July 11th, 1882, nor the simple bond, dated July 25th, 1879, in favour of the defendant No. 1, nor the mortgage bond, dated May 3rd, 1881, is attested by the next reversioner Raghubir. Hence the purchase of properties Nos. 4 and 5, in execution of the decree founded upon the second mortgage, was not and could not be supported before us. But it has been argued that the sums borrowed for payment of rent to the landlord and for meeting the expenses of the Bhandara and of digging a well are debts incurred for purposes of legal necessity and form a legitimate charge on the estate.
15. Under the zurpeshgi ticca patta, dated July 10th, 1889, a sum of Rs. 1,250 was borrowed, out of which a sum of Rs. 475 was applied towards payment of arrears of rent due to the landlord, Rs. 295 was paid towards satisfaction of a debt of Rs. 125 due to Mode Narain, one of the sons of Raghubir, under a Rokka, dated 18th Baisakh 1288 (May 2nd, 1881), for Rs. 125, said to have been borrowed for meeting the expenses of the Bhandara and in payment of certain other sums due to Kasi Prosad, one of the plaintiffs in Suit No. 571, and Bishen Prosad, grandson of Bhupal, and the remainder Rs. 480 was taken in cash for the personal expenses of the widow. Out of this sum, a change is similarly claimed in respect of the sum of Rs. 466 odd actually applied towards payment of rent due to the landlord.
16. It has been held by the Privy Council, in the case of Deputy Commissioner of Kheri v. Khanjan Singh 29 A. 331; L.R. 34 I.A. 72 that where a sale by a widow is partially invalid owing to absence of legal necessity, the whole sale must be set aside, the purchaser accounting for the mesne profits and the sums expended for legal necessity being set off against them. It appears from the evidence that in the Road Cess papers, the annual value of the 4 anna share of the mokarari properties of Nawab Kumari was assessed at Rs. 1,219. Besides the mokarari properties, the widow had 70 or 75 bighas of Kamat land in mouzah Sonepai, as appears from the evidence of the defendant No. 1 himself.
17. According to the evidence of the plaintiff, the annual income of the widow was between Rs. 1,200 and Rs. 1,500. According to the admission of the defendant No. 1 himself, the income was between Rs. 700 and Rs. 800. The defendant No. 1 has admittedly been in possession of the properties in suit from the date of the zurpeshgi lease; he is liable to account for the profits received by him from the date of death of the widow, in February or March 1900, down to the 14th. December 1904, when the present suit was instituted, that is, for a period of nearly four years.
18. Taking the income roughly at Rs. 1,000 annually, the defendant No. 1 has received nearly Rs. 4,000 during this period, that is, an amount which is far in excess of the total sum which the defendant can claim as valid charges on the properties.
19. For the foregoing reasons, the judgment of the Court below is affirmed and this appeal dismissed with costs.
20. This judgment governs appeal from original decree No. 325 of 1906.
21. I agree generally in the opinion expressed by my learned brother in this judgment.