Jiwan Singh v. Misri Lal BS650044
PRIVY COUNCIL

Before:-Lord Hobhouse, Lord Macnaghten, Lord Morris and Sir Richard Couch.

0 D/d. 14.11/ 07.12.1895

Jiwan Singh - Defendant

Versus

Misri Lal - Plaintiff

On Appeal from the High Court of Allahabad.

The respondent did not appear.

Solicitors for Appellant :- T.L. Wilson and Co.

Hindu Law - Sale by a Hindu Widow - Consent of nearest Contingent Reversioner - Evidence of Consent - Right of Actual Reversioner.

[Para ]

Where a Hindu widow sold through her husband's nearest contingent reversionary heir acting as her mokhtar a portion of her husband's estate, stating in the deed of sale that "the vendee has become an absolute owner of the share sold from the date of sale":--

Held, that, whatever the true construction of the deed, the High Court being of opinion that the transfer was limited to the widow's interest, there being no evidence of necessity, and the reversioner not having received any portion of the consideration, his consent to an absolute transfer was not sufficiently established, and that his grandson, being next reversionary heir when the succession opened, was entitled to eject the purchaser.

Appeal from a decree of the High Court at Allahabad (May 20, 1892) reversing a decree of the Sabordinate Judge of Aligarh (Dec. 7,1890).

The property in suit, one-third of mauza Begpur Kanjaula, belonged to one Kashi Ram, whose heir, at the death of his widow Gomti, was Meghraj, the father of the respondent, who sued to recover the same. The appellant was i possession as heir to his father, the purchaser of the property from Gomti, who sold it by a deed which purported to convey the absolute estate therein, and which was executed by Jaikishan Das, the grandfather of Meghraj, under a mooktarnamah in his favour granted by Gomti. Jaikishan was at the date of the deed the sole nearest reversionary heir of Kashi Ram. There was no evidence of necessity for the sale, nor of Jaikishan Das having received any portion of the purchase-money. The question at issue was whether under these circumstances the purchaser took the absolute estate of the deceased husband or the limited interest of his widow.

The Subordinate Judge held that the absolute estate passed. He said: "The sale to the defendant being for consideration, and having been effected through the agency and with the consent of Jaikishan Das, the plaintiff's ancestor, and the plaintiff's father having also his conduct admitted it, the plaintiff could not now say that it was confined merely to the vendor's life interest, or that it did not transfer an absolute title to the vendee. The rule of law laid down by the Privy Council in Raja Lakhi Debi v. Gokal Chandar Choudhry 13 Moore's Ind. Ap. 209 is, that in order to make valid the sale by Hindu widow of her husband's property, the consent of such of her husband's kindred, who are likely to be affected by the transactions, is necessary; and that there should be such a concurrence of the members of the family as would suffice to raise a presumption that the transaction was a fair one and justified by the Hindu law. Such consent may be proved, not only by the signature or attestation of the deed, but by the presence at, or knowledge of, the transaction followed by acquiescence, express or implied. All these elements are present in this case; for, at the time the sale was made, the plaintiff had not been born, and Jaikishan Das, his ancestor, who was the only person in the family likely to be affected by the transaction, not only attested it at the time, but also expressedly by his conduct acknowledged its validity afterwards, at the time the plaintiff to the present suit had not been born, and his ancestor's consent being sufficient, it could not now be questioned by him, and not only the plaintiff's ancestor, but his father also acknowledged the validity for the sale by the proceedings he took on Mussummat Gomti's death."

The High Court, on the other hand, held as follows:-

The deed of September 17, 1863,"conveyed a one-third share out of twenty biswas in mauza Begpur Kanjaula to Kewal Ram, father of the defendant Jiwan Singh. There is not a word in the sale deed which is inconsistent with the transfer being limited to the life interest of the widow-vendor. There is no expression such as is usually employed, to intimate that an absolute title was conveyed. The price paid, Rs. 1500, the revenue of the share being Rs. 238, would point to the conclusion that it was the widow's life interest only that was conveyed. Rs. 1500 would hardly presented five years' purchase of the property. The defendant claimed that his father had bought an absolute title, and stated that the plaintiff was out of court by reason of the concurrence of his great-grandfather, Jaikishan Das, in the transfer. The issue raised were mainly, whether the defendant acquired only a life interest or an absolute right under the transaction of 1863, and whether the plaintiff was out of court by reason of Jaikishan Das's acquiescence in the transfer. There were other issues which the learned Subordinate Judge decided in favour of the plaintiff. The learned Subordinate Judge found-and his finding is not impeached in this appeal-that the transfer was made by Mussammat Gomti without any such necessity or other cause as would justify her in alienating more than her own life interest in her husband's estate. The Subordinate Judge found that she alienated it because she could not manage the property. If, then, the plaintiff is not bound by the acquiescence of his great-grandfather, and thus estopped from bringing this action, his claim is maintainable. On this issue the Court below found that the sale in question was made with the consent and acquiescence of Jaikishan Das, plaintiff's great-grandmother, who is found to have actively negotiated the sales and procured the execution and registration of the sale deed. It is found that he was subsequently a party to a deed in which the buyer, Kewal Ram, hypothecated this property as security for some money which he borrowed."

Further on the Court found "It is obvious that the transfer was not validated by the consent of all the persons having a right of expectancy in regard to kashi Ram's estate on September 17, 1863, and that the single member of the family, ho helped and assisted in the making of the transfer, is not shewn by a tittle of evidence to have consented to any transfer beyond the life interest of the widows.

Cowell, for the appellant, submitted that the deed of sale, which contained the declaration that Kewal Ram, "the vendee has become an absolute owner of the share sold from the date of sale," admitted of no other construction than it purported to convey the absolute estate. There was no evidence of necessity for the widow's alienation; but the transaction was effected by Jaikishan Das, who, as the reversionary heir solely entitled if the succession had then opened, had, on the authorities, power to bind all other contingent reversioners by his consent, or at least such of them, including the plaintiff, as might derive title through him as heirs to the widow's husband. His consent was evidenced by his execution of the deed under the mooktarnamah, his registration of it, and his receipt for the widow of the purchase-money; and the deed on its true construction effected the transfer of the absolute estate.

Lord Hobhouse :- The question is not so much what is the legal construction of the deed as what must Jaikishan be deemed to have consented to. It is a very stringent equity that is sought to be enforced against him arising out of an alleged consent.]

He consented to the express terms of the deed, which were that the purchaser should become absolute owner, and which the High Court must have overlooked when it said there was no expression to that effect. Jaikishan subsequently took a mortgage of the estate from the purchaser.

Lord Hobhouse :- The highest Court having taken that view of the deed, it is impossible to say that Jaikishan must necessarily have taken the opposite view, and to hold him and all other reversionary heirs bound accordingly.]

There is evidence of subsequent conduct both against Jaikishan and Meghraj showing that they consented to the transaction.

Case Referred :-

Raja Lakhi Debi v. Gokal Chandar Choudhry, 13 Moore's Ind. Ap. 209.

JUDGMENT

The judgment of their Lordships was delivered by

1895 Dec. 7

Sir Richard Couch :- The property in question in this appeal formerly belonged to one Sita Ram, who died leaving two sons, Baldeo Das and Jaikishan Das. Baldeo Das, the elder, died leaving a widow, Mussummat Nabbo, and an adopted son, Kashi Ram. The latter died without children, leaving a widow, Gomti, who thereupon took by inheritance the estate of a widow under the Hindu law. Nabbo, who took nothing, died in 1878, and Gomti died on March 8, 1880. Jaikishan Das had two sons, Bhabuti Ram and Kashi Ram, who was adopted by Baldeo Das. Bhabuti Ram, who survived his father, died in the lifetime of Gomti, leaving a son, Meghraj, who survived Gomti and died on May 22, 1881, leaving a son, the respondent Misri Lal. Consequently, on the death of Gomti, Meghraj became entitled as heir of Kashi Ram to possession of the property, which consisted of one-third of a mouzah called Begpur Kanjaula, pargana Koel.

On February 7, 1890, Misri Lal, then a minor, by his guardian brought a suit against the appellant Jiwan Singh, who was in possession of the property, to recover possession of it and mesne profits.

The defence in the written statement was that, after the death of Kashi Ram, Jaikishan Das sold the property to Kewal Ram for Rs. 1500, and a deed of sale in respect of it was executed by Jaikishan Das on behalf of Nabbo and Gomti under his supervision, and registered by his special power of attorney dated September 17, 1863; that Gomti adopted one Ranchhore Das as her son with the consent of Jaikishan Das; that the adopted son became the possessor of the property and money left by Kashi Ram; that a dispute arose between Gomti and Ranchhore Das which was compromised by part of the property left by Kashi Ram being taken by Gomti, part by Ranchhore Das, and the remainder being presented to Sri Maharaj Parsotum Dasji; and that, after the death of Goniti, Meghraj brought a suit on a bond which was given to Gomti under the compromise, and did not claim the property in the possession of Ranchhore Das and Gusain Parsotam Das. There was no proof of the adoption and no evidence of any legal necessity for the sale. The defence must rest upon the effect of the deed of sale and the conduct of Jaikishan with regard to it. The deed admitted in evidence for the plaintiff purported to be made by Nabbo and Gomti and to sell one-third share of the village Beghur Kanjaula, with all the rights and interests pertaining thereto, for Rs. 1500; it stated that the vendors "put the vendee in possession of the share sold instead of us like ourselves "; and that "the vendee has become an absolute owner of the share sold from the date of sale." It was signed as follows: "Mussummat Gomti, Lambardar, wife and Mussummat Nabbo, pattidar, mother of Kashi Ram, heirs of Kashi Ram; by the pen of Jaikishan Das sarbarakar and mukhtar." It is dated September 17, 1863; and there was a power of attorney of the same date from Nabbo and Gomti to Jaikishan authorising him to execute the deed and get it registered, which he did. Gomti only had an estate in the property; Nabbo had none. If the effect of the deed was to pass only the estate which Gomti had as widow, Misri Lal would be entitled to recover possession. Upon the evidence in the suit the question appears to their Lordships to be, Was it so clear that more than Gomti's beneficial estate in the property--the estate which she might have sold if there had been a legal necessity for it--passed by the deed, that Jaikishan Das must be taken to have consented to its passing? The Subordinate Judge who dismissed the suit does not appear to have considered this question. He seems to have assumed that this estate would pass. When the case came before the High Court on appeal the two Jearned judges were of opinion that only the estate of the widow passed by the deed. In the judgment they say: "There is not a word in the sale deed which is inconsistent with the transfer being limited to the life interest of the widow-vendors. There is no expression such as is usually employed, to intimate that an absolute title was conveyed....the single member of the family, who helped and assisted in the making t of the transfer, is not shown by a title of evidence to have consented to any transfer beyond the life interest of the widows." This view of the transaction is supported by the fact that there is no evidence that Jaikishan Das received any part of the Rs. 1500 or was in any way benefited by or had any inducement to concur in a sale which would destroy his right as the apparent reversionary heir. Their Lordships do not think it is necessary for them to give any opinion upon the construction of the deed. The opinion of the High Court which has been quoted is conclusive that it cannot be so clear that the whole estate passed by the deed that Jaikishan Das must be taken to have consented to its passing. The answer to the other part of the defence is that Jaikishan Das was no party to the compromise in June, 1871, and that Meghraj's claiming on the death of Gomti the share of the property which she took under it is not inconsistent with the claim in this suit, but the contrary. It was necessary for the appellant to displace the title by inheritance of Misri Lal by satisfactory proof that the whole estate, and not only the estate of Gomti as widow, was sold to Kewal Ram. He has failed to do this; and their Lordships will humbly advise Her Majesty to affirm the decree of the High Court in favour of the respondent and dismiss the appeal.

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