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.