1. This is an appeal on behalf of the defendants in a suit for recovery of possession of immoveable property brought by a Hindu reversioner. The property in dispute belonged to one Hira Lal Gossain, upon whose death, in or about the year 1863, it descended to his widow, Ambika Dabya. On the 12th September 1870, she granted a permanent lease to the predecassor-in-interest of the appellants. She died many years later, in 1897. In the year following, the plaintiffs purchased the property from persons who had acquired an interest in a third share as reversionary heirs to the estate of Hira Lal Gossain. On the 22nd November 1905, the plaintiffs commenced this action for recovery of possession; their claim was resisted substantially on the ground that the lease had been granted for legal necessity and was, consequently, binding upon the, inheritance in the hands of the reversioners. This contention has been overruled by the Courts below. The plaintiffs are thus prima facie entitled to recover the property.
2. On behalf of the appellants it has been argued, however, that as the plaintiffs are transferees from some of the reversionary heirs, it is not competent to them to claim the property free of the lease-hold interest created by the lady; and in support of this position, reliance has been placed upon the cases of Modhu Sudan Singh v. Rooke 24 I.A. 164 : 25 C. 1 : 1 C.W.N. 433 and Rijoy Gopal Mukerjee v. Krishna Mahishi Debi 34 I.A. 87 : 34 C. 239 : 9 Bom. L.R. 602 : 11 C.W.N. 424 : 5 C.L.J. 334 : 2 M.L.T. 133 : 17 M.L.J. (sic) : 4 A.L.J. 329 (P.C.). It has been contended that an alienation effected by a Hindu widow' mast be avoided before the reversionary heirs can recover possession and that the right to avoid an alienation is personal to the reversionary heirs and cannot be exercised by a transferee from them. There is, in oar opinion, no foundation far this contention. It cannot be disputed that, as was pointed out by Sir Richard Couch in the case of Modhu Sudan Singh v. Booke 24 I.A. 164 : 25 C. 1 : 1 C.W.N. 433 an alienation of this description is not void but only voidable and that the reversionary heirs may elect to assent to it and treat it as valid. But it was explained by Lord Davey in Bijoy Gopal Mukerjee v. Krishna Mahishi Debt 34 I.A. 87 : 34 C. 239 : 9 Bom. L.R. 602 : 11 C.W.N. 424 : 5 C.L.J. 334 : 2 M.L.T. 133 : 17 M.L.J. (sic) : 4 A.L.J. 329 (P.C.) that although such an alienation is not absolutely void and is prima facie voidable at the election of the reversionary heirs, there is in fact nothing for the Court either to set aside or cancel as a condition precedent to their right of action. They may, if they think fit, affirm the transaction or they may, at their pleasure, treat it as a nullity without the intervention of any Court and they show their election by commencing an action to recover possession of the property. Consequently, in the case before us, the entire property vested in the reversionary heir upon the death of the widow, and it was competent to him to transfer it to the present plaintiffs. What has been transferred is not a right personal to the heir, but the interest in the property which, upon the death of the widow, has descended to him from the original owner. It is further, worthy of note that although eight years had elapsed between the death of the lady and the commencement of this action, there is no suggestion that the reversioner or his assignees had in any way recognised the validity of the alienation by her. Under these circumstances, we are of opinion that the plaintiffs are competent to maintain this action.
3. We may observe that a similar question was raised in a very different class of cases, namely, in relation to the right of a transferee from a purchaser at a sale for arrears of revenue to annul an encumbrance and to obtain possession of the property. In the cases of Narayan Chandra Kansabanik v. Kasiswar Roy 1 C.L.J. 579 and Anandachandra Poddar v. Kunjo Behari Pal 8 C.L.J. 177 it was pointed out that a right of this description is not personal to the purchaser at the revenue sale, but is transmissible by inheritance and is also alienable.
4. It has finally been argued that, inasmuch as, oat of the consideration for the permanent lease granted by the lady, Rs. 170 was applied to discharge a debt due from her husband, the plaintiffs are not entitled to avoid the lease except upon re-payment of this sum and in support of this proposition, reliance has been placed upon the case of Deputy Commissioner of Kheri v. Khanjan Singh 29 A. 331 : 5 C.L.J. 344 : 11 C.W.N. 474 : 4 A.L.J. 232 : 2 M.L.T. 145 : 17 M.L.J. 233 : 9 Bom. L.R. 591 : 10 O.C. 117 : 34 I.A. 72. It is sufficient to observe that this question was not presented in this form to either of the Courts below, and, it is moreover, clear that the plaintiffs would be entitled to succeed, unless the defendants established that there was legal necessity for the particular alienation whereon, their title is founded. This they have failed to do.
5. The result is that the decree of the Subordinate Judge is affirmed and this appeal dismissed with costs.