1. These two groups of appeals arise out of rent suits brought by the plaintiff in respect of the 16-annas rent for 1326 and a portion of 1327 B.S. The defence of the tenants was that the plaintiff was not entitled to more than 8-annas share of the rent. In the first group of cases- the Court of first instance dismissed the plaintiff's suit on the ground that she had not acquired a. title in respect of 8-annas of the property, and with reference to the other 8-annas the claim was dismissed as the plaintiff failed to prove separate;, collection. On appeal by the plaintiff the learned Subordinate Judge decreed the plaintiff's suit for the entire 16-annas of the rent. The first group of appeals, there-fore, are from the decrees of the power Appellate Court by the tenants-defendants. In the second group of cases the Court of first instance (presided over by a different officer) decreed the plaintiff's suit in full and on appeal by the tenants the Subordinate Judge (who was a different officer) dismissed the plaintiff's suit on the ground that the plaintiff was not entitled to 8-annas share of the rent from the defend-ants and with regard to the remaining 8-annas she failed to prove separate collection. 'The second group of appeals, is by the plaintiff-landlord; and as the two sets of appeal raise the same question they were heard together.
2. Before considering the points that arise in these cases it is necessary to give a brief history of the litigation. There was a putni under the seal zemindars held by two brothess Aghore Dutt and Sarat Dutt. Aghore died in 1876 leaving a widow Binodini. In 1877 Binodini made a gift of 8-annas share in the putni which she inherited to Sarat retaining some other properties for her own maintenance and use. In 1901 Sarat took a fresh pottah (for reasons not disclosed in the case) from 9-annas 12 gandas co-sharer landlord. In 1,908 he took another pottah from 3-annas 4 gandas co-sharer landlord. There was no fresh settlement in respect of the remaining 3 annas 4 gandas. In execution of rent decrees obtained by the co-sharer landlords the putni was sold and purchased by the plaintiff in July 1919. The decrees were obtained against Sarat but before the property was brought to sale Sarat died in April 1918. Benodini died in March 1919. On these facts the tenants contend that the plaintiff did not acquire the whole interest in the putni inasmuch as on Binodini's death Aghore's share vested in his reversioners and the sales did not pass their interest.
3. In the first set of appeals the learned Subordinate Judge allowed the plaintiff's appeals and decreed the rent suits on two grounds; first, that the tenants should not be allowed in a rent suit to introduce complicated questions of title and thus convert a simple suit for rent into a title suit; and as the learned Judge was of opinion that the plaintiff's purchase created the relationship of landlord and tenant as between the plaintiff and the defendants the plaintiff's suits ought to be decreed without entering, into the question whether or not she had acquired a right to the property. For this view he has relied upon the decision in the case of Lodai 'Mollah v. Kally Dass Roy 8 C. 238 : 10 C.L.R. 581 : 4 Shome L.R. 275 : 4 Ind. Dec. (N.S.) 152. As we understand this judgment in a way different from the way in which the learned Subordinate Judge has understood it, it is necessary to examine the effect of that decision. Field, J., in his learned judgment lays down the true scope of a suit for rent and the appropriate defences that may be raised by the tenants in such a suit. He mentions the different circumstances in which different defences may be taken one of such circumstances being where the plaintiff sues for rent on a derivative title. To such a suit of the defences as suggested by the learned Judge is that, the defendant may deny the circumstances from which the plaintiff alleges that the tenancy is inferrible or has been created by implication; and to elucidate this point the learned Judge observes that there may be denial of the facts which constitute the derivation or denial of the assignment. At page 244* of the report, there is the following pertinent observation: 'Where there has been no attornment (as in the present case) the plaintiff must prove his title as a condition precedent to establishing the ' relation of landlord and tenant between himself and the defendant; and if there be none of the other defences already referred to, this may be the only point to be decided.' Then the learned Judge proceeds to examine the English Law on the point and. comes to the conclusion that there is no authority for the procedure adopted by the Court, in the circumstances, of adding a third party to a rent suit for the purpose of determining the question of title raised, That case lays down the very sensible and' salutary principle that in a rent, suit where the defendant pleads jus tertii or right of a third party, the Court ought not to make such a third party a party in the suit and convert a suit for rent into a complicated title suit. The reasons given in support of this view are very cogent and need not be repeated here. It will be a misreading of the case if it is supposed to be an authority for the view that in, no case can the tenant plead title in a third person in a rent suit and in no case can such a question be decided in a suit for rent. The learned' Subordinate Judge presumes that by the plaintiff's purchase the relationship of landlord and tenant is established. We do not think that there is any authority for this presumption., If the only question in a shit for rent, as Field, J., observes in Lodai Mollah's case 8 C. 238 : 10 C.L.R. 581 : 4 Shome L.R. 275 : 4 Ind. Dec. (N.S.) 152 is whether there exists the relationship of landlord and tenant between the plaintiff and the defendant in order to determine this question there must be an enquiry into the plaintiff's title when it is derivative. To hold that such a relationship is established merely because the plaintiff alleges that he derives his title from a person to whom the tenants had attorned, is to beg the whole question. The case of Lodai Mollah v. Kally Dass Roy 8 C. 238 : 10 C.L.R. 581 : 4 Shome L.R. 275 : 4 Ind. Dec. (N.S.) 152 was considered and explained in the case of Rahimunnessa Bibee v. Mahadeb Das 7 Ind. Cas. 846 : 12 C.L.J. 428, Mukerjee, J., says as follows: 'We may also observe that as explained by this Court in the case of Lodai Mollah v. Kally Dass Roy 8 C. 238 : 10 C.L.R. 581 : 4 Shome L.R. 275 : 4 Ind. Dec. (N.S.) 152, the plaintiff cannot possibly maintain the position that the defendant is not entitled to question his title. As was pointed out by the learned Judges in the case last mentioned even where the plaintiff claims by a derivative title and the defendant has attorned to him, the defendant is not thereby estopped from showing that the title is really not in the plaintiff but in some other person.' That case is direct authority for the view we take and it must be understood that Lodai Mollah's case 8 C. 238 : 10 C.L.R. 581 : 4 Shome L.R. 275 : 4 Ind. Dec. (N.S.) 152 not only lays down that in a suit for rent a third party set up by the tenants should not be dragged to convert it into a title suit but it also holds that the question with regard to the plaintiffs right cannot only be raised but must be raised where it is denied by the tenant. This ground, therefore, on which the learned Judge bases his judgment fails. The second ground on which he founds his judgment is that the transaction between Sarat and Benodini was a family arrangement and that this deed of gift should not be considered to be void but only voidable. It will be necessary to consider this question in detail in connection with the other group of appeals.
4. In those appeals the learned Subordinate Judge has found that at the time when the sale took place half of the putni had vested in the reversionary heirs of Aghore then in existence. It is not disputed that on Binodini's death the share of Aghore passed to his reversioners who are other than the heirs of Sarat. The learned Subordinate Judge has held that the deed of gift could not enure beyond the lifetime of Benodini and that it was not surrender of the widow's life-estate in favour of the reversioners. This view of the law has been challenged before us on the ground that the learned Subordinate Judge misinterpreted the deed of gift and should have held that it was a surrender of the life-estate of the widow to the reversioner and that it conveyed to Sarat a valid title to the 8-annas-share of Aghore. In support of this view reliance has been placed on the decision of their Lordships of the Judicial Committee in the case of Sureshwar Misser v. Maheshrani Misrain 57 Ind. Cas. 325 : 47 I.A. 233 : 48 C. 100 : 25 C.W.N. 194 : (1920) M.W.N. 472 : 39 M.L.J. 161 : 28 M.L.T. 154 : 2 U.P.L.R. (P.C.) 128 : 12 L.W. 461 : 18 A.L.J. 1069 : 41 C.L.J. 433. In that the reversioners had brought a suit against the widow to set aside the Will. The parties entered into a compromise under which the widow surrendered all rights of succession to the immoveable property to the plaintiff reversioner and the plaintiff transferred a portion of such property to the daughters and the plaintiff and the daughters each gave a small portion of the land to the widow for her life. This transaction was held by the Judicial Committee to be valid according to Hindu Law on the ground that there was a surrender of the entire property in which the widow had her life-interest to the reversioner and the subsequent transfer by the plaintiff of a portion of that property to the widow for her life did not affect the surrender by the widow of her life-estate. The ground upon which the surrender of the life-estate by the widow to the next reversioner is upheld is the principle of acceleration and the Judicial Committee followed the earlier decision of their Lordships in Rangasami Gounden v. Nachiappa Gounden 50 Ind. Cas. 498 : 46 I.A. 72 : 36 M.L.J. 493 : 17 A.L.J. 536 : 29 C.L.J. 539 : 21 Bom.L.R. 640 : 23 C.W.N. 777 : (1919) M.W.N. 262 : 42 M. 523 : 26 M.L.T. 5 : 10 L.W. 105 : 1 U.P.L.R. (P.C.) 66 (P.C.), In that case all the decided cases on the point were considered and the result of such consideration was formulated by their Lordships thus: '(I) An alienation by a widow of her deceased husband's estate held by her may be validated if it can be shown to be a surrender of her whole interest in the whole estate in favour of the nearest reversioner or reversioners at the time of the alienation. In such circumstances, the question of necessity does not fall to be considered. But the surrender must be a bona fide surrender, and not a device to divide the estate with the reversioner. (2) When the alienation of the whole or part of the estate is to be supported on the ground of necessity, the consent of the reversioner will be held to afford a presumptive proof which will validate the transaction as a right and proper one'. In Sureshwar Misser's case 57 Ind. Cas. 325 : 47 I.A. 233 : 48 C. 100 : 25 C.W.N. 194 : (1920) M.W.N. 472 : 39 M.L.J. 161 : 28 M.L.T. 154 : 2 U.P.L.R. (P.C.) 128 : 12 L.W. 461 : 18 A.L.J. 1069 : 41 C.L.J. 433, the law is thus summarised: 'Now there are two conditions which must be fulfilled to make a surrender by the widow, with consent of the next heir (necessity being out of the question), valid. The first is that the surrender must be total, not partial. The second is that the surrender must be a bona fide surrender, not a device to divide the estate with the reversioner'. It is therefore, incumbent upon the plaintiff to prove that the transaction between Binodini and Sarat in 1877 was a complete surrender by Binodini of her life-interest in all the properties left by her husband to Sarat who was admittedly the next reversioner. This leads us to an examination of the document on which this contention is founded.
5. The document divides the properties left by her husband into two Schedules ka and kha. As to the properties mentioned in Schedule ka, the lady made a gift of the 8-annas share of the putni on the following terms: 'You have from this day become entitled to half the share left by my husband in the properties mentioned in Schedule ka empowered to make a gift or to sell and enjoy the same down to your sons, grandsons, etc.' With reference to the property of Schedule kha, the following terms are inserted in the document: 'Out of 211 bighas 2 cottas and 10 chittacks of rent free lands of Schedule kha leaving aside your half share of 105 bighas 1 cotta 5 chittacks I shall keep in my possession my own half share, 105 bighas 1 cotta and 5 chittacks for the period of my life for pious and religious purposes as well as for my maintenance.... Out of the income of half the properties of Schedule (kha) which remains in my possession, I shall so long as I live perform pious and religious works. If owing to disagreement with you I separate from you I shall not be competent to claim maintenance from you. ' Even if I do the same it will be entertained.... After my death these rooms as well as half the properties of kha which are left in my possession would belong to you.... After my death you, down to your sons and grandsons, etc., will enjoy my half share in the proper-ties of Schedule kha being entitled to sell, make a gift or otherwise to alienate the same ' There are other expressions also to the same effect. Beading this document as a whole it is manifest that the transaction was a gift by the lady of her one-half share in the putni to Sarat retaining Aghore's 8-annas share in certain properties mentioned in Schedule kha. The gift, therefore, was not a surrender of the whole life-interest in the whole estate as laid down by the Judicial Committee in the cases cited above. It was a surrender of apart of Aghore's estate, the other part was to come to the possession of the reversioners after the death of the lady; such a surrender is not valid according to law and it vested no title in Sarat. But at the same time it could not be questioned so long as the lady was alive: on her death admittedly some other persons have succeeded to Aghore's share in the putni. The conclusion we come to is that by the deed of gift of 1877 Sarat did not acquire an absolute title to Aghore's share and the sale of the putni which took place after his death in execution of the decrees against him with his widow as representing his estate on the records did not pass any interest beyond his share in the putni.
6. The next question that' calls for decision is the second ground in which the learned Subordinate Judge in the first group of cases allowed the plaintiff's suits. We cannot uphold the view taken by the learned Judge that the deed of gift of 1877 was in the nature of a family arrangement. A family arrangement requires some consideration and under the guise of a family arrangement a party cannot enter into a 'transaction which he is not under the law competent to do and which may be beyond his disposing power. It is not suggested that after Aghore's death the re was a difference between Sarat and Bindoini which was settled by the deed of- gift, an unilateral disposition. As a matter of fact recitals in the deed show that Binodini and Sarat were living together and Binodini was under the protection of Sarat.
7. The question that really requires consideration is whether the alienation in favour of Sarat was voidable at the instance of the reversioners or whether it terminated with the life of Binodini. It has been laid down by the Judicial Committee in the case of Bejoy Gopal Mukerji v. Krishna Mahishi Debi 34 C. 329 : 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. 34 I.A. 87 (P.C.), that an alienation by a Hindu widow is not absolutely void but is prima, facie voidable at the election of the reversioners who may affirm it or treat it as a nullity without the intervention of the Court or may retify it. It is, however, argued by the tenants that the principle of Bejoy Gopal's case 34 C. 329 : 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. 34 I.A. 87 (P.C.) is available to transferees for value and does not extend to volunteers and that the gift in favour of Sarat became inoperative after the death of Binodini and in support of this view reliance is placed upon the case of Khawani Singh v. Chet Ram 37 Ind. Cas. 86 : 39 A. 1 : 14 A.L.J. 972, where the law is expounded as follows: 'That a transfer made by a Hindu widow with the consent of the nearest reversioner will take effect as against the more remote reversioner, is applicable to cases of transfer for consideration. It has not been extended to a case where a transfer has been made by way of gift.' The same view was taken in the case of Pilu Appa Nalvade v. Babaji Naru Mang 4 Ind. Cas. 584 : 34 B. 165 : 11 Bom.L.R. 1291, where the law is thus enunciated: 'The operation of the principle which prohibits a Hindu widow's alienation of immoveable property otherwise than for legal necessity is relaxed in cases where the consent of the whole body of persons constituting the next reversion has been obtained...is ordinarily limited to transfers for consideration and cannot be extended to voluntary transfers...where there is no room for the theory of legal necessity. It should not be extended to cases where the widow has made only a partial relinquishment of the estate.' This principle is based on the theory that the widow can sell the property in which she has acquired a widow's estate only for legal necessity. In the case of a gift the hypothesis of legal necessity does not exist and, therefore, she has no right, of alienation of such property. The result of these authorities is that a gift made by a Hindu widow even in favour of the next reversioner, if it does not amount to a complete surrender of the widow's estate, is not valid according to Hindu Law. The gift in the, present case, therefore, was invalid and did not pass any title to Sarat. It might have been operative during the lifetime of Binodini but after her death it ceased to have any legal effect. This disposes of all the points raised before us by the parties. The result of the view we take of the questions argued before us that the plaintiff is not entitled to recover rent in respect of the 8-annas share of the putni belonging to Aghore.
8. In the above view the first group of appeals must be allowed, the decrees of the lower Appellate Court are set aside and the plaintiff's suit dismissed with costs. The second group of appeals fails and is dismissed with costs.
9. I agree.