Divatia, J.:—
This is a plaintiff's appeal in a suit to recover possession of certain property as reversionary heir of one Manjula.
The suit property belonged originally to one Vakuji and the plaintiff is a separated brother of Vakuji, who died leaving Manjula as his widow. She had a daughter named Goja, who was married to one Dnyanu in 1913. On July 10, 1913, Manjula, who was in possession of the property as a Hindu widow, made a deed of gift in favour of her daughter Goja and Goja's husband Dnyanu. Goja was a minor at that time and therefore the gift was made to her through her guardian and husband Dnyanu. It is clear that this gift was a joint gift in favour of these two persons. She says in the deed of gift that she had selected Dnyanu as her son-in-law according to her choice and had brought him to her house, and then with reference to both the donees she proceeds:—“As you are looking well to my maintenance and I am sure will also look after the same in the future, and as I have no other affectionate relative except you, and as my property is bound to go to you by right of heirship after my death, taking all these facts into consideration I give the following property as gift to you both.” Soon after the execution of this gift-deed Dnyanu died in 1915 and Goja died in 1917 during the lifetime of Manjula, who died in 1918. The plaintiff, who is the reversioner living at the time of Manjula's death, seeks to recover possession of this property on the ground that the deed of gift made by Manjula was void and not binding against the plaintiff, that it did not vest the property either in Goja or in her husband Dnyanu. The property is in the possession of Goja's minor daughter, and she being a daughter's daughter of Vakuji, would not have any claim to this property in preference to the plaintiff who is the next male reversioner.
Both, the lower Courts have dismissed the suit on different grounds. The trial Court was of opinion that the deed of gift was a gift of the whole property in possession of Manjula, and, therefore, must be regarded as a valid surrender by a Hindu widow in favour of the next reversioner living at that time, namely, Goja, and it held on the authorities that the gift can be regarded as a gift to the daughter of the whole property, as an acceleration of her right as reversioner, and a simultaneous gift with the consent of the reversioner to her husband Dnyanu, and on that basis the transaction was a valid one, and that therefore Goja's daughter was entitled to the property on her death. The Appellate Court has realised the difficulty of that view, because in order that the doctrine of acceleration and simultaneous implied consent may apply, it is necessary that the reversioner herself must give consent to the gift in favour of a third party. But here Goja was a minor incapable of giving her consent, and she was represented by the very person in whose favour the consent was to be given, viz., her husband, and therefore for this double reason, it was difficult to maintain the position that the transaction was valid on the ground of surrender in favour of the reversioner and consent by the reversioner in favour of an alienation to a stranger. But the Appellate Court has confirmed the decision of the trial Court on a different ground, and that ground is that although the son-in-law Dnyanu is joined in the deed of gift and is expressly stated to be a joint donee, still the facts and the circumstances show that the widow Manjula intended to give this property to her daughter Goja alone, and that the son-in-law Dnyanu who was living as ghar javai in the house, was joined only as a formal party with no intention of giving any property to him, and it is on that ground alone that the learned Judge has held this deed to be a valid deed, as a surrender by the widow of her whole interest in the property in favour of her daughter, no interest whatever attaching to the son-in-law. Goja thus became the absolute owner of the whole property, and on her death her daughter became her heir in preference to the plaintiff.
It is against this decree of the Appellate Court that the present appeal has been filed, and it is contended that decree is wrong because the deed of gift expressly makes both the donees as joint donees, that Dnyanu, the son-in-law, was not intended to be only a formal party, and that the doctrine of consent would not apply because Goja was a minor. It has been contended on the other hand for the respondent that the intention of the woman must be to benefit her daughter Goja alone, because in the body of the document she says that “my property is bound to go to you by right of heirship,” and that would refer to the daughter Goja alone and not to the son-in-law. But I think this would be ignoring the other expressions in this deed in which it is clearly stated that both those persons were joint donees and that the son-in-law was also intended to benefit by this deed, because as expressly stated in this document, he was looking well to the maintenance of the widow and she was sure he would also look after her in future. I think, therefore, that this document is a joint deed of gift in favour of the daughter as well as the son-in-law. Besides, the Appellate Court, to my mind, has made out a new case in favour of the defendant. In the written statement it was conceded that Goja as well as Dnyanu were both donees under the deed of gift, and that they remained in possession of the property till the death of Manjula. I think, therefore, that this case, on which the lower appellate Court has mainly proceeded, was not only not the case of the defendant, but being one which is against the plain terms of the deed of gift itself, must be discarded, and that deed must be taken to be a joint deed of gift.
Then the question is whether this deed is Valid. It is clear that under the Hindu law a widow is entitled to accelerate the vesting of the property in favour of the next reversioner, provided she effaces herself by surrendering the whole of the property in her possession as a widow at that time in favour of the next reversioner. With regard to an alienation in favour of a stranger and not to the reversioner, the position is that if the alienation in favour of a stranger is made either by the widow and the reversioner jointly, or with the consent of the reversioner, then it is a good alienation whether it is only of a part or of the whole of the property. If it is an alienation without consideration in favour of the next reversioner, it must, in order to be valid, amount to a surrender and the surrender must be of the whole of the property in her possession. Next comes the case of an alienation in favour of a stranger alone, or both the reversioner and the stranger. If it is a complete alienation to a stranger without consideration or legal necessity and without the consent of the next reversioner, then the transaction is clearly bad in law; but if the widow and the next reversioner join together in transferring all her rights in the whole property in favour of a stranger, then according to the authorities such a transaction would be good on the principle that as the reversioner has become an executant party to the deed, the property must be taken to have been surrendered to the reversioner, who must be deemed to have made a simultaneous alienation of the property in favour of the stranger, and what could have been done by two separate documents could be done by one document. On this principle, in a very recent case of this Court, Yeshwanta v. Antu, where a Hindu widow, who had inherited her husband's estate, and her daughter, who was the next reversioner, jointly passed a deed of gift of the entire estate in favour of a third person, and subsequently the widow adopted the plaintiff, who sued to set aside the alienation, it was held, dismissing the suit, that the transaction was valid as it could be treated as a surrender by the widow, plus a gift by the next reversioner. So far the position in law is quite clear.
But what would be the case where the reversioner herself is a minor and is represented, as in the present case, by the very person to whom the property is to be deemed to have been alienated? So far as I have been able to see, there is no reported case on such facts, but I think the principle upon which the cases have proceeded establishes that it is only when you can spell out a consent on the part of the reversioner for an alienation in favour of a third party, that it can be said that the transaction would be valid in law. No such consent can be implied where the reversioner is a minor and therefore incapable of giving consent. But here there is a further difficulty and that is that the minor is represented by her husband who himself is the person to whom the property is deemed to have been given on behalf of the minor. So that it is the case of a guardian alienating the property in his own favour. Such a transaction cannot be supported on the ground of interest of the reversioner herself, because it is clear that even if a minor's consent is to be implied, it can be so only if it is for her benefit, and when the property is gifted away, as in this case it has been done, at least jointly in favour of a stranger, that is clearly an alienation which is adverse to the interest of the minor.
I may also point out here the difference between the two modes of transferring. The widow and the next reversioner may join together in passing a deed in favour of a stranger. If in that case the reversioner is a major, the transaction would be valid. But if he is a minor, though represented by a guardian, I do not think it can be said that the transaction is a surrender to the reversioner, and then again an alienation by the reversioner in favour of a stranger, because the consent required is the consent of the reversioner himself. But even assuming for the sake of argument that in such a case the consent of the guardian would be regarded as the consent of the minor, still the position would be different where, as in the present case, the transaction is entered into not jointly by the widow and the next reversioner, but by the widow alone in favour of the reversioner and a stranger. In the former case the alienation is wholly in favour of the stranger, while in the latter case the alienation is a joint alienation in favour of a reversioner as well as a stranger, and in so far as it is even a partial alienation in favour of the stranger, it is adverse to the interest of the reversioner. If the reversioner were a major, then possibly it may be argued that the reversioner consents to at least some property being given to the stranger, but where the reversioner is a minor, and still more where the alienation is in favour of the guardian of the minor himself, I do not think it can be said that the transaction is valid, because it is neither in the interest of the minor reversioner nor with his consent.
I think, therefore, that the transaction in this case is not valid, and that the defendant does not take any interest under it, and that after the death of Goja and her husband the property remained in the hands of Manjula as a Hindu widow, and as on the death of Manjula in 1918 the plaintiff was the next reversioner, he would be entitled to succeed to it.
The decree of the lower appellate Court is, therefore, reversed, and the plaintiff is declared entitled to the reliefs which he has sought, namely, the possession of the property and mesne profits, as prayed for. There will be an inquiry into the amount of mesne profits to be awarded. The appellant is entitled to his costs throughout.
Decree reversed.
J.G.R