1. Paubati Charan Roy Choudhuri died many years ago leaving him surviving, a widow Mangala Debi, and two daughters Lakshmimani and Saraswati. His estate devolved first on his widow and on her death in 1849 on his two daughters jointly. Saraswati died in 1856 leaving a son Paresh, who died in 1873. The plaintiffs, the appellants before us, claim the property in dispute as the reversionary heirs of Parbati Charan when the succession opened on the death of Lakshmimahi in June 1899. The defendants on the other hand set up a title under a conveyance executed by Paresh in their favour on the 11th December 1872. Now at that date Paresh was the reversionary heir of Parbati Charan expectant on the death of Lakshmimani. As such he had a mere spes successionis which he could not validly transfer. That was the view taken by the learned Subordinate Judge in the trial Court by whom the plaintiffs' suit was decreed. In the lower Appellate Court, however, the learned District Judge appears to have found that by some arrangement between Lakshmimani and Saraswati each was in enjoyment of a moiety of Parbati Charan's estate and that on the death of Saraswati her moiety came into the possession of Paresh, who with the consent and sanction of Lakshmimani dealt with it as his own. It is not disputed that if two widows or two daughters taking jointly the estate of their deceased husband or father make an arrangement for separate possession and enjoyment, the arrangement will not ordinarily deprive the survivor of the right to the whole estate or enable the ladies to confer a title on a third party which will not terminate at the latest with the life of that survivor [Dharam Chand Lal v. Bhawani Misrain 24 I.A. 183 : 25 C. 189 : 1 C.W.N. 697 : 7 Sar. P.C.J. 248 : (sic) Ind. Dec (N.S.) 128 (P.C.), Dal Koer v. Panbas Koer 8 C.W.N. 658 and Chittar Kuar v. Goura Kuar 13 Ind. Cas. 3 O : 34 A. 189 : 9 A.L.J. 105]. But it is strenuously argued that the District Judge's finding amounts to this that Lakshmimani, by allowing Paresh to retain possession of Saraswati's moiety after her death, (sic) quashed that moiety in favcur of Paresh, who thus acquired an absolute title under and by virtue of the doctrine of acceleration. On the face of it the decision of the Pull Bench in Debi Prosad Chowdhry v. Golap Bhagat 19 Ind. Cas 273 : 40 C. 721 at pp. 738 : 742, 17 C. W.N. 701 : 17 C.L.J. 499 completely disposes of that contention, because according to tbat decision there can be no (sic) quishment of any thing less than the entire estate.
2. It is argued, however, that the judgments of the learned Judges, and especially the propositions on which the late Chief Justice and Mookerjee, J., summed up their views, went beyond the actual point to be decided and are not entitled to the binding force which attaches to judicial precedents. I am not prepared to assent to that. In that cafe a widow bad transferred by way of mortgage, with the consent of the next reversioner a portion of the entire estate left by her husband. The case turned on the effect of such a transfer. It, is Eaid tbat the question might have been decided on the narrow ground that a transfer of a particular property, part of the entire estate by way of mortgage, is not a transfer of the whole estate even in that part, because the widow retains what is commonly known as the equity of redemption. But it is obvious that the case as put by Sir Rash Bebary Ghose in argument for the respondent claiming under the transfer had a wider aspect end that the limited answer suggested would not have been a complete or sufficient answer.
3. The case law of Bengal recognises not merely the relinquishment by the widow of her husband's entire estate but the sale of the entirety to the next reversioner or with his consent to a third party [Nobokishore Sarma Roy v. Hari Nath Sarma Roy. 10 C. 1102 : 5 Ind. Dec. (N.S ) 737]. It was the recognition of such a transaction which caused the difficulty. Did the result depend on the consent of the reversioner or on the doctrine of relinquishment and what were the legal consequences
4. Sir Rash Behari Ghose contended for the broad generalization that, apart from any question of relinquishment, the widow and the next reversioner possessed between them a complete power of disposal over the whole or any part of the husband's estate, The Full Bench bad to-deal with that contention and they rejected it.
5. The power of the widow to sell the entire inheritance to the next reversioner or with his consent, was traced to a lax application of the doctrine of relinquishment and acceleration. It could only be supported, if at all, on the basis of a sort of fictitious relinquishment. But the fictitious relinquishment still resembled the true relinquishment in this that it must be a relinquishment of the entirety of the husband's estate.
6. It followed that Nobokishore Sarma Roy's case 10 C. 1102 : 5 Ind. Dec. (N.S ) 737 was no authority for the validity of a partial alienation of the husband's estate, even with the consent of the next reversioner. It was held that a partial transfer, whether by way of sale or mortgage, had nothing to do with relinquishment. The term had no meaning in such a connection and so much had really been conceded by Sir Bash Behari Ghose himself [Debi Prosad Chowdhry v. Golap Bhagat 19 Ind. Cas 273 : 40 C. 721 at pp. 738 : 742, 17 C. W.N. 701 : 17 C.L.J. 499]. A partial transfer was a transfer and nothing more and could only be supported by necessity. The consent of the next reversioner was merely strong presumptive evidence of necessity [ Kalee Mohun Deb Roy v. Dhununjoy Shaha 6 W.R. 51, Raj Lukhee Dabea v. Gokool Chunder Chowdhry 13 M.I.A. 209 : 12 W.R.P.C. 47 : 3 B.L.R.P.C. 57 : 2 Suth. P.C.J. 275 : 2 Sar. P.C.J 518. 20 E.R. 529, Bijoy Gopal Mukerji v. Girindra Nath Mukerji 23 Ind. Cas. 162 : 41 C. 793 : 18 C.W.N. 673 : 19 C.L.J. 620 : 27 M.L.J. 123 : 16 M.L.T. 68 : (sic) M.W.N. 430 : 1 L.W. 533 ; 16 Bom. L.R. 425 : 12 A.L.J. 711 (P.C.)].
7. That, as I understand it, was the decision of the Full Bench on the case presented for their consideration and we are bound to follow and apply it.
8. In arriving at the decision the majority of the learned Judges expressly relied on the language of the Privy Council in Behari Lal v. Madho Lal Ahir Gayawal 19 I.A. 30 : 19 C. 236 : 6 Sar. P.C.J. 88 : 9 Ind. Dec. (N.S.) 603. The relevant passages in the judgments of Sir Lawrence Jenkins, C.J., Stephen, J., and Mookerjee, J., will be found at pages 750, 765 Page's of 40 C.--Ed. and 780 Page's of 40 C.--Ed. of the report. Harington, J., expressed a somewhat different view on the point (page 756 Page's of 40 C.--Ed.), but arrived at the same conclusion as the other members of the Bench as to the principle applicable to partial alienations (page 759 Page's of 40 C.--Ed.). Holmwood, J., concurred generally with the Chief Justice.
9. It is idle, therefore, for the learned Pleader for the respondents in the present case to rely upon the two subsequent cases which purport to follow Nobohishore Sarma Roy's case 10 C. 1102 : 5 Ind. Dec. (N.S ) 737, namely, Hem Chunder Sanyal v. Sarnamoyi Debi 22 C. 354 : (sic) Ind. Dec. (N.S.) 238 and Pulin Chandra Mandal v. Bolai Mandal 35 C. 939 : 12 CW.N. 837 : 8 C.L.J. 280. These two cases were fully considered in Debi Prosad's case 19 Ind. Cas 273 : 40 C. 721 at pp. 738 : 742, 17 C. W.N. 701 : 17 C.L.J. 499, where 'Sir Lawrenoe Jenkins, C.J., and Mookerjee, J., pointed out that the results arrived at were in part due to a misapprehension of the effect of Nobohishore Sarma Roy's case 10 C. 1102 : 5 Ind. Dec. (N.S ) 737.
10. A few days after Debi Prosad Chowdhry's case 19 Ind. Cas 273 : 40 C. 721 at pp. 738 : 742, 17 C. W.N. 701 : 17 C.L.J. 499 was decided, judgment was delivered by a Bench presided over by Mookerjee, J., in Gopeswar Misra v. Gopini Baishnabi 21 Ind. Cas. 200 : 17 C.W.N. 1062 : 19 C.LJ. 318. It was held that Debi Prosad's case 19 Ind. Cas 273 : 40 C. 721 at pp. 738 : 742, 17 C. W.N. 701 : 17 C.L.J. 499 had settled the law relating to partial alienations and that Pulin Chandra Mandal's case 35 C. 939 : 12 CW.N. 837 : 8 C.L.J. 280 had been overruled. Apart from anything else we are bound by that view of the effect of the decision of the Full Bench.
11. In the present case, the result is plain. On Saraswati's death, Lakshmimani, apart from any arrangement which might be binding on her for her life-time, became entitled as the survivor to the entire estate. If she chose to 'leave half the estate in the hands of Paresh, that was not a relinquishment. Paresh, though he was the next reversioner, did not acquire an absolute title by acceleration and no alienation made by him could enure for a period longer than Lakshmimani's life.
12. In my opinion the judgment and decree of the District Judge in the suit out of Which Appeal No. 2074 arises should be discharged and the decree of the Subordinate Judge decreeing the suit restored. The plaintiffs are entitled to their costs in this Court and the Court below from the defendants.
No. 2858 OF 1915.
13. In the suit out of which Appeal No. 2858 arises the plaintiffs claim under a conveyance, dated the 14th November 1872, executed, not only by Lakshmimani but by Paresh the then next reversioner. No doubt the fact that Paresh joined in the conveyance is strong presumptive evidence of necessity but the presumption is not conclusive. The trial Court held on a careful consideration of the evidence and the circumstances that it had been rebutted. The learned District Judge came to a different conclusion, but the reasons assigned by him in his judgment are unsatisfactory. He seems to be of opinion that the Privy Council in Hari Kishen Bhagat v. Kashi Parshad Singh 27 Ind. Cas. 674 : 12 I.A. 64 : 42 C. 876 : 28 M.L.J. 565 : 19 C.W.N. 370 : 17 W.L.T. 115 : (1915) M.W.N. 511 : 13 A.L.J. 223 : 21 C.L.J. 225 : 17 Bom. L.R. 426 : 2 L.W. 219 (P.C.), 'held that the consent of the reversioners will make the sale valid.' It is hardly necessary to say that that is not the effect of the decision.
14. The propriety of an alienation with the consent of the next reversioner may come in question not only with reference to the conduct of the widow, whether or not she was justified by necessity, but also with reference to the conduct of the next reversioner, whether or not his conduct was honest. If in the absence of legal necessity he engineered the transaction to suit his own ends and for his own immediate gain, his consent would lose all its virtue. The transaction would stand no higher than a partial alienation in his favour and would have to be judged from that stand point. Nevertheless whatever might be said of the conduct of the widow or the next reversioner, the transferee if he made due enquiry and acted bona, fide would still be entitled to the benefit of the equitable rule laid down by the Privy Council in Hunoomanpersaud Panday v. Musammat Babooee Munraj Koonweree 6 M.I.A. 393 : 18 W.R. 81 note : Sevestre. 253n : 2 Suth. P.C.J. 29 : 1 Bar. P.C.J. 552 : 19 E. R. 147 and now enacted in Section 38 of the Transfer of Property Act. Nor would the antecedent mismanagement of the estate affect him unless he was in some way a contributory party thereto (Mayne's Hindu Law, Section 636).
15. In the present case the Appellate Court has not correctly stated the law applicable. As to the facts, the express findings of the Subordinate Judge are not categorically displaced and the conclusions--so far as any definite conclusions are stated--seem to be based rather on a priori considerations than on an examination of the evidence.
16. If the case must, as I think, be remanded, it is undesirable to say more, except perhaps this that the question of necessity, as it arises here, must be considered with reference to the estate as a whole, not solely with reference to that portion of it which was in the actual possession of Lakshmimani or solely with reference to that portion which was in the possession of Paresh.
17. The appeal should, in my opinion, succeed to this extent that the decree of the Court below should be discharged and the case remitted to that Court in order that the appeal thereto may be re-heard.
18. I agree.