Judgement

ACHHRU RAM, J. - This is an appeal from the decree of a Subordinate Judge of Amritsar by which he decreed the plaintiffs claim for a declaration to the effect that the hsale of a house situate in the city of Amritsar by Mt. Kesar Kaur deceased, the mother of Inderjit Kuar and Jagjit Kuar defendants 5 and 6, in favour of defendants 1 to 4 by means of sale deed dated 15th July 1944 for a consideration of Rs.20,000 would not affect the plaintiffs reversionary rights after the death of defendants 5 and 6.

2. The facts giving rise to this appeal may be briefly stated as follows. One Thakar Singh purchased the house in suit by means of sale deed dated 15th October 1931 from its original owner for a sum of Rs.4200. The original sale deed by means of which the house was purchased by the aforesaid Thakar Singh is exhibit P.W.2/1. The sale deed shows that at the time of the purchase the house consisted of two shops and a one and a half storeyed house. The aforesaid Thakar Singh died in the year 1933 leaving him surviving a minor son Jiwan Singh by name, a widow Mt. Kesar Kaur and three daughters, viz., defendants 5 and 6 and Mt. Harbhajan Kaur deceased. At the time of his death, only one of his three daughters, namely, Mt. Inderjit Kaur was married. The other two daughters were unmarried at that time. Jiwan Singh died about the year 1937 after having suffered from T.B. for a considerable time. In the same year Mt. Kesar Kaur married her second daughter Mt. Jagjit Kaur. The third daughter Mt. Harbhajan Kaur was married in the year 1940. On 6th October 1941, the aforesaid Mt. Kesar Kaur is said to have borrowed a sum of Rs.6000 on a pro-note from one Kishen Singh, the real brother of her sisters husband Nikka Singh, it being recited in the Pro-note that the sum borrowed was required for payment of debt due on account of the expenses incurred on the marriage of Mt. Kesar Kaurs daughter, for construction and completion of the house and for expenses in connection with the treatment of her daughter and herself. The original pro-note is Ex.D-7, the receipt of the consideration for the pro-note being Ex.D-6. On 1st June 1943 the aforesaid Nikka Singh and Mt. Kesar Kaur purport to have executed an agreement in favour of the aforesaid Kishen Singh by which agreement Nikka Singh undertook to stand surety for the repayment of the debt due to Kishen Singh in consideration of the latter granting the original debtor an extension of time by one year for the repayment of the loan. It was further recited in the agreement that within the aforesaid period of one year, Mt. Kesar Kaur would either transfer the house to the obligee under the pro-note or repay the money due to him on account of the principal and interest under the pro-note by the sale of the house to some one else, Nikka Singh undertaking to pay in case of default. On 5th July 1944 Mt. Kesar Kaur executed an agreement for the sale of the aforesaid house in favour of defendants 1 to 4 for a consideration of Rs.20, 000 out of which a sum of Rs.3000 purported to have been received in advance. The original agreement is Ex.D-1. In pursuance of this agreement the aforesaid Mt. Kesar Kaur executed a sale deed in respect of the house in favour of defendants 1 to 4 on 15th July 1944. Out of the balance of the consideration for the sale Rs.7250 were got paid to Kishen Singh creditor on account of principal and interest due on the footing of the pro-note mentioned above; Rs.4750 were received by the vendor at the time of the registration of the sale deed; and Rs.5000 were left with the vendees without interest to be received later. The original sale deed is marked Ex.D-2. The three daughters of Mt. Kesar Kaur, i.e., defendants 5 and 6 and their deceased sister Mt. Harbhajan Kaur also joined their mother in the execution of the sale deed. Mt. Harbhajan Kaur had contracted tuberculosis about six months after her marriage and being absent in Dalhousie under medical advice was unable to be present personally at the time of the execution and the registration of the deed. She was accordingly represented by her sister Jagjit Kaur defendant 6 as her special attorney, she having executed a special power of attorney Ex.D-5 in the latters favour. It was recited in the sale deed that the vendor had to borrow a sum of Rs.6, 000 from Kishen Singh for the construction and completion of the house and for the liquidation of the debts incurred by her on the occasion of the marriage of her daughter Harbhajan Kaur, the sum having swelled after the inclusion of interest, to Rs.7,250 which was to be paid by the vendees to the aforesaid creditor at the time of the registration. It was further recited that the balance of the sale consideration was needed by the vendor for her maintenance, for household expenses and for her treatment, she having been ill for over a year and having been advised by the Doctors to go to some hill station. The endorsement of the Sub-Registrar on Ex.D-2 shows that the sum of Rs.7,250 were in fact paid by the vendees to Kishen Singh at the time of registration.

3. Both Mt. Kesar Kaur and Harbhajan Kaur died within about two months of the execution and registration of the sale deed. The sum of Rs.5,000 that had been left with the vendees out of the sale consideration, to be received by the vendor later, is said to have been paid by the former to defendants 5 and 6, the daughters of the vendor on 24th September 1944 after the death of the latter and Harbhajan Kaur. This payment is evidenced by the receipt Ex.D-8 executed by the aforesaid defendants and attested by their respective husbands.

4. On 27th October 1944 the plaintiff, the real brother of Thakar Singh and the real uncle of the last male holder of the suit house brought the suit which has given rise to the present appeal, alleging that the impugned sale had been effected without any consideration and without any legal necessity. The suit was resisted by all the defendants. Defendants 5 and 6 pleaded that their mother had sold the house for consideration and for necessity, in order to pay off her debts incurred for the construction of the house and for meeting the expenses on the marriage of her daughters, as well as in order to meet the expenses on her own maintenance and treatment, with the consent of her daughters, and that the plaintiff had accordingly no right to sue. Defendants 1 to 4 pleaded, inter aria, that Mt. Kesar Kaur was the absolute owner of the suit house, the same having been reconstructed by her out of her own stridhan; that they had purchased the house after making proper enquiries and after satisfying themselves about necessity for the sale; that Mt. Kesar Kaur and her daughter Harbhajan Kaur needed money for their treatment for house hold expenses and for going to some hill station which the doctor had advised as an absolute necessity; that the full consideration had passed and the sale was for necessity; and that Mt. Kesar Kaurs daughters having assented to the sale the plaintiff whose chance of succession was very remote had no locus standi to maintain the suit.

5. On the above pleadings the learned Subordinate Judge framed the following issues:

"1. Is the suit speculative, and has the plaintiff no locus stanch to sue in the presence of defendants 5 and 6?

2. Was the sale-deed in favour of defendants 1 to 4 executed for due consideration and valid necessity?

3.Had Keser Kaur a right to sell the house even without necessity and was she an absolute owner of the house?

4. Relief?"

6. Issue 1 was decided against the defendants and it was held that the suit was not speculative and that the plaintiff had a locus stands to maintain the suit. On issue 2 it was held that a sum of Rs.3,000 had in fact been paid by the vendees to the vendor at the time of the execution of the agreement to sell, that Rs.4,750 had been received by the vendor in cash at the time of the registration, that a sum of Rs.7,250 was paid by the vendees to Kishen Singh also at the time of the registration and that a sum of Rs.5,000 was paid by the vendees to defendants 5 and 6 on 24th September 1941. The learned Judge held necessity proved only to the extent of Rs.5,000 out of the first two sums i.e., the sum received by way of earnest at the time of the execution of the agreement and the sum received in cash at the time of the registration. As regards the item of Rs.7,250 paid to Kishen Singh the learned Judge was of the view that the existence of the alleged debt had not been proved and that, accordingly the payment could not be held to have been made on account of any valid necessity. As regards the last item of Rs.5,000 the decision of the learned Subordinate Judge was that no necessity for the same had been proved to exist. Issue 3 was decided against the defendants and it was held that Mt. Kesar Kaur had only a life estate in the suit house. In the result, the plaintiff was granted a decree declaring that the sale would not affect his reversionary rights after the death of defendants 5 and 6. It may be noted that in the decree as passed even the sum of Rs.5,000 for which necessity had been held proved was not declared to be a valid charge on the suit house.

7. Defendants 1 to 4, the vendees, feeling aggrieved from the decree of the learned Subordinate Judge have come up in appeal to this Court.

8. From the summary of the pleadings given above it will be observed that the defendants distinctly pleaded that the impugned sale had been made by Mt. Kesar Kaur with the consent of her three daughters. That it had in fact been made with their assent has been abundantly proved at the trial and indeed is not disputed. The learned Subordinate Judge has not considered nor does he appear ever to have been called upon to consider, the effect of this assent on the validity of the sale. Before us it has been contended that the daughters of the vendor, being sisters of the last male holder, were, in consequence of-the provisions of Act II (2) of 1929, his next presumptive reversioners at the time of the sale, that their assent to that sale by itself is presumptive evidence of necessity for the same; and that in the circumstances the sale must be upheld unless the plaintiff is able to show that he has rebutted the presumption.

9. The law on the subject is summed up in Mullas Hindu Law, 1946 Edn. at p.191 and in Maynes Hindu Law at p.793.

10. The relevant passage in Mullas book reads as follows:

"When the alienation of the whole or part of the estate by a Hindu widow or other limited heir is to be supported on the ground of legal necessity, then if such necessity is not proved aliunde and the alienee does not prove inquiry on his part and honest belief in the necessity, the consent of such reversioners as may fairly be expected to be interested to dispute the transaction will be held to afford a presumptive proof which, if not rebutted by contrary proof, will validate the transaction as a right and proper one.

Mere consent of the next reversioner does not validate an alienation; it is only of evidential value. It is no conclusive proof of the existence of legal necessity. It raises a presumption of the existence of legal necessity. As the matter rests in presumption only, the actual reversioner at the widows death is not precluded from questioning the alienation, but the burden lies upon him to show that there was no legal necessity for the alienation. When he adduces no evidence to rebut the presumption he must fail."

The relevant passage in Maynes book reads as follows:

"The question whether the consent of reversioners will validate an alienation by a widow or other limited owner which is not justified by any legal necessity has had a long history, marked by fluctuations of opinion It is now well settled that when the alienation of the whole or part of the estate is to be supported on the ground of necessity, then if such necessity is not proved aliunde and the alienee does not prove inquiry on his part and honest belief in the necessity, the consent of such reversioners as might fairly be expected to be interested to dispute the transaction will be held to afford a presumptive proof which, if not rebutted by contrary proof, will validate the transaction as a right and proper one. The true view is that consent of the reversioners does not by its own force give validity to the alienation but is only of evidentiary value. It raises a presumption that the transaction was a fair one and one justified by Hindu law.... As the consent of reversioner raises a presumption only, it is open to any reversioner other than the consenting reversioner to prove that in fact there was no necessity for the alienation. Its only effect is to shift the burden of proof which originally was on the alienee to the reversioner."

In both the treatises, however, are to be found other passages which appear to indicate that the application of the above rule is attracted only where the consenting reversioner happens to be a male and that consent given by a female reversioner who would herself get merely a life estate in case she is found to be the actual reversioner at the time succession opens out cannot be said to give rise to any presumption about the necessity for, or the propriety of transfer by a widow. The following passage occurs at p.193 of Mullas book:

"The consent of a female reversioner cannot be regarded as affording the slightest presumption that the alienation was a justifiable one. The reason is that by Hindu law all women are supposed to be in a state of dependence."

In Maynes book the following passage occurs at page 795.

"Where the next reversioner is a female, as for instance, a daughter or a mother, her consent alone cannot be regarded as affording the slightest presumption that the alienation was a justifiable one, whether she has only a limited estate or an absolute estate as in Bombay.The case of the latter must be different as the reason for the rule itself is the limited nature of a womans estate and the general dependence of women is no ground where they take absolutely."

11. After a careful examination of all the relevant authorities including those noted in the footnotes under the above two passages, I have reached the conclusion that there are no grounds at all for making any distinction between the cases of male and female reversioners in considering the effect of their consent to an alienation by a life holder.

12. The question of the effect of the consent of the next presumptive reversioner to an alienation by a Hindu widow was first considered by their Lordships of the Judicial Committee in Collector of Masulipatam v. Cavaly Venkata Narrainapah, 8 M.I.A. 529: (2 W.R. 61 P.C.). It was held there that an alienation by a widow which would not otherwise be legitimate may become so if made with the consent of her husbands kindred. It was pointed out that the exception in favour of alienation with consent might be due to presumption of law that where consent is given, the purpose for which the alienation was made must be proper.

13. The question next arose before the Privy Council in Raj Lukhee Dabea v. Gokool Chunder, 13 M.I.A. 209: (3 Beng.L.R. 57 P.C.). In this case analienation by a widow was sought to be set aside by an adopted son, adopted subsequently by a co-widow pursuant to power conferred on her by her deceased husband. The deed of transfer had been attested by one Juggut Ram who was said to be a collateral of the husband of the alienor. The alienation purported to have been made for the liquidation of the husbands debts. No evidence was, however, led to prove this fact. The suit was accordingly decreed by the Sudder Dewani Addalat. On appeal the decision of the Dewani Addalat was in the first instance affirmed by the High Court and the vendees appeal dismissed. Later, however allowing an application for review, the said Court permitted the vendee to produce additional evidence. The vendees agent Khadim Ali, examined as a witness, gave some details as to the debts which were said to have been discharged out of the consideration for the impugned alienation. Accepting his evidence, and relying on the attestation of the deed of transfer by Juggat Ram as corroborative of such evidence the High Court set aside the decree passed by the trial Court in the plaintiffs favour and dismissed his suit. The decision of the High Court was, however, reversed by their Lordships of the Privy Council and the decree of the Sudder Dewani Addalat was restored. Their Lordships did not find it possible to endorse the view of the High Court about the implications of the attestation of the deed of transfer by Juggat Ram. They held that merely by reason of his having attested the deed, Juggat Ram could not be deemed to have concurred in the alienation evidenced thereby, specially in view of the complete absence of any plea as to the transfer having taken place with his concurrence. They further held that, there being no evidence at all to show that Juggat Ram was the nearest reversioner of the last male holder, his concurrence, even if established, could not possibly affect the decision of the case. In dealing with the question of the effect of the concurrence of the next reversioner in an alienation by a life holder, their Lordships observed as follows at page 228 of the report:

"Their Lordships do not mean to impugn those authorities which lay down that a transaction of this kind may become valid by consent of the husbands kindred, but the kindred in such case must generally be understood to be all those who are likely to be interested in disputing the transaction. At all events, there should be such a concurrence of the members of the family, as suffices to raise a presumption that the transaction was fair one and one justified by Hindoo law."

Their Lordships, adverting to the nature of the presumption, definitely stated that it was not a presumption of law. They went on to say:

"Such consent is an element to be taken into consideration, and deserving of considerable weight, in the estimation of all the evidence of the transaction,"

14. In Nobokishore Sarma v. Hari Nath, 10 Cal. 1102, a Full Bench of the High Court of Calcutta went to the extent of laying down that a transfer by a widow with the consent of the next presumptive reversioner for the time being is absolutely binding on the actual reversioner or reversioners found entitled to succeed at the time of the succession opening out. The decision of the Full Bench proceeded on the ground that inasmuch as a widow could accelerate the succession of the next reversioner by relinquishing her life estate in his favour, she could also validly transfer the property to a third party with the consent of such reversioner. The learned Judges constituting the Full Bench appear to have been of the view that a transfer by a widow with the consent of the next presumptive reversioner is to be treated as a dual transaction i.e. relinquishment by the widow in favour of such reversioner and a transfer by the latter in favour of the third party. The proposition laid down in the above Full Bench judgment was re-affirmed in a later judgment of the same Court in Radha Shyam V. Joy Ram, 17 Cal. 896 wherein it was pointed out that in order to have the effect given to it by the Full Bench the consent must be on the whole body of persons constituting the next reversion.

15. In Maruda Muthu v. Srinivasa Pillai, 21 Mad. 128: (8 M.L.J. 69), a Full Bench of the High Court of Madras endorsed the view taken by the High Court of Calcutta in the Full Bench judgment already adverted to.

16. In Vinayak Vithal v. Govind Venkatesh, 25 Bom. 129: (2 Bom. L.R. 820), however, a Division Bench of which the main judgment was written by Sir Lawrence Jenkins, C.J. struck a discordant note and held that the consent of the persons interested to oppose the transaction evidences its propriety, if not its actual necessity, but that it did not, as was envisaged by the High Court of Calcutta, completely validate the transfer. It was pointed out that the view taken by the learned Judges had in a measure the sanction of the Privy Council, reference being made to the observations quoted above from Collector of Masulipatam v. Cavaly Venkata Narainapah, 8 M.I.A. 529: (2 W.R. 61 P.C.) and Rajlukhee Dabea v. Gokool Chunder, 13 M.I.A. 209: (3 Beng.L.R. 57 P.C.).

17. In Bajrangi Singh v. Manokarnika Bakhsh Singh, 30 ALL. 1: (35 I.A. 1 P.C.), their Lordships of the Judicial Committee had again to consider the effect of the consent of the next presumptive reversioner to an alienation by a life-holder. In that case the widow in possession of her husbands estate had sold the whole of the estate to the husband of one of her three daughters by means of several sale deeds, each relating to a separate parcel of the property. Some time after the execution of the sale-deeds she procured an instrument from all those who could, at the moment, claim to he the nearest reversioners of her husband by which they, evidently on receipt of some consideration, gave their consent to the various sales by means of which she had transferred the property to her son-in-law. The consenting reversioners, however, predeceased the widow. Those having, under the custom found to be applicable to the parties tribe, the right to succeed on the widows death sued to avoid the transfer. Their Lordships, reversing the decision of the High Court setting aside the sales, dismissed the plaintiffs suit and upheld the sales on the ground that the same had been effected with the consent of the next presumptive reversioners and could not be successfully challenged by the persons found to be the actual reversioners at the time of the estate falling into possession. Their Lordships did not, however, indicate whether, as had been held by the Calcutta High Court in Radha Shyam Sircars case, (17 Cal. 896) the consent of the next reversioners had, per se, the effect of completely validating the impugned sales or, as had been held by the High Court of Bombay in Vinayak Vithal Bhange v. Govind Venkatesh Kulkarni, 25 Bom. 129: (2 Bom. L.R. 820) and appeared also to me more or less implicit in their own pronouncement in Collector of Masulipatam v. Cavcaly Venkata Narainapah, 8 M.I.A. 529: (2 W.R. 61 P.C.), and Raj Lukhee Dabea v. Gokool Chunder , 13 M.I.A. 209 (3 Beng.L.R. 57 P.C.) such consent only evidenced the propriety of, if not also the necessity for, those sales; although it does seem that the conflicting views taken by the Courts in this country on the subject were actually before their Lordships. At p.21 of the report their Lordships observed as follows:

"Their Lordships agree with the High Court of Calcutta ( Radha Shyam v. Joy Ram, 17 Cal. 896) that ordinarily the consent of the whole body of persons constituting the next reversion should be obtained, though there may be cases in which special circumstances may render the strict enforcement of this rule impossible."

18. In Abdulla and others v. Ram Lal, 34 ALL. 129: (12 I.C. 601), the Bombay view was followed in preference to that accepted in Calcutta.

19. In Pilu v. Babaji, 34 Bom.165:(4 I.C.584) and Ramkrishna Kuppuswami v. Tripurabai, 12 I.C. 529: (13 Bom. L.R. 940), the High Court of Bombay reaffirmed the view taken in the earlier judgments of that Court.

20. The situation thus created was that there came to exist a very sharpe cleavage of opinion between the four High Courts then existing in the country. The view taken in the Calcutta and Madras High Courts was that consent given by the sole next presumptive reversioner, or by all such reversioners, where there were more than one of them, to an alienation by a widow completely validated such alienation so as to make it binding on whosoever may be the person or persons entitled to succeed at the time of the widows death, whereas, according to the view taken in Bombay and Allahabad, such consent was only to be regarded as presumptive evidence of the propriety and the validity of the alienation, it being open to the actual reversioner to avoid the alienation if he could rebut the presumption and could show that there was in fact no necessity for the alienation and further that the alienee had not made proper enquiries and had not reasonably satisfied himself as to the existence of any necessity for the alienation. This difference of opinion continued till 1913 when the matter was reconsidered by a Full Bench of five Judges of the Calcutta High Court presided over by Sir Lawrence Jenkins in Debi Prosad v. Golap Bhagat, 40 Cal. 721: (19 I.C. 273). In that case Rani Radha Chodhurani, widow of one Shib Nag Chandi, had mortgaged a part of the property inherited by her from her husband to one of the defendants for Rs.7000 with the consent of her daughters son who then was the next presumptive reversioner but who predeceased his grandmother. The person who was the actual reversioner at the time of the widows death sued to set aside the mortgage. The first Court held necessity to have been proved for the mortgage. However, quite apart from necessity, it also upheld the mortgage on the ground of its having been effected with the consent of the next presumptive reversioner. The plaintiff appealed to the High Court. When the appeal was heard, the Bench hearing the same reversed the decision of the first Court on the question of necessity. On the question of the effect of the consent of the next presumptive reversioner at the time of the mortgage, the correctness of the view till then held by the High Court of Calcutta on the subject having been challenged, the Bench referred the following question for decision to a Full Bench:

"Is the alienation, by way of mortgage by a Hindu widow of a portion of the estate of her husband without any proved legal necessity but with the consent of the next reversioner for the time being, valid and binding on the actual reversioner who is not the heir of the consenting reversioner?"

21. The case was argued on both sides by counsel whose names shall always remain to be conjured with by the Judges as well as by the profession in this country, viz., Sir S.P. Sinha who eventually rose to be Lord Sinha and by Doctor Sir Rash Behary Ghose. The former who appeared on behalf of the plaintiff appellant contended that where the alienation is not of the whole estate to or with the consent of the next reversioner, but of a portion of the estate with such consent, the consent of the reversioner is merely a piece of evidence and does not per se validate the alienation. In effect ho supported the Bombay view in preference to the view of the Calcutta High Court Doctor Rash Behary Ghose who represented the respondent alienee contended that, apart altogether from the question of legal necessity, an alienation by a widow with the consent of the next heir must, as had already been held by the Court, on that ground alone, be regarded as valid, it being wholly immaterial whether the transfer was of the whole or a part of the property. He urged that the Court was bound to presume that a transaction entered into by a widow with the consent of the next heir was a legitimate transaction and that it was not correct that such consent furnished merely presumptive evidence of the transfer being for necessity or of the transferee having made bona fide inquiry before taking the transfer. The learned Chief Justice after a review of the more important decisions on the subject, including, of course, all the Privy Council decisions, returned the following answer to the question that had been referred to the Full Bench:

"The mortgage will be valid and binding on the actual reversioner if the presumption of legal necessity or inquiry and honest belief raised by such consent is not rebutted by more cogent proof."

The other members of the Full Bench concurred with the learned Chief Justice although they added short notes of their own to his judgment. At pages 752 and 753 of the report the learned Chief Justice thus summed up what he considered to be the law applicable to the subject:

"The result, then of the authorities binding on us appears to me to be this. To uphold an alienation by a widow of her deceased husbands estate where she is his heir it should be shown: (i) that there was legal necessity, or (ii) that the alienee, after reasonable enquiry as to the necessity, acted honestly in the belief that it existed, or (iii) that there was such consent of the next heirs as would raise a presumption, either of the existence of necessity, or of reasonable enquiry and honest belief as to its existence, or (iv) that there was consent of the next heirs to an alienation capable of being supported by reference to the theory of the relinquishment of the widows entire interest and consequent acceleration of the interest of the consenting heirs.

Where any one of the first three positions is established, the alienation may be of the whole or any part of the husbands estate; but whore the fourth alone is proved then the alienation must be of the whole."

Harington, J. observed as follows at page 760 of the report:

"I think the principle on which an alienation by the widow with the consent of the next reversioner is to be supported is that it raises a strong presumption that at the time of the alienation the persons then interested in preventing the alienation were unable to dispute its propriety, or, in other words, that circumstances existed which enabled the widow in accordance with the rules of Hindu law to alienate the estate so as to destroy the interest which might in future descend on the next reversioners as heirs to her deceased husband. The presumption is a very strong one; and though not absolutely irrebuttable, evidence to rebut it would not affect the validity of the transaction, if it were established that the mortgagee or purchaser had given valuable consideration, and had acted bona fide, believing, on the faith of such consent, that circumstances justifying the alienation existed."

22. In Bijoy Gopal v. Girindra Nath, 41 Cal. 793: (AIR (1) 1914 P.C. 128), their Lordships had to deal with the question of the validity or otherwise of an ijara or lease for sixty years, granted by a widow about 11 years before her death, of several villages which she had inherited from her husband to the reversioners of the latter in varying proportions. It was found that from the bulk of the property so disposed of by her she had been forcibly dispossessed by one of those reversioners, and, although she had got a decree for the recovery of such property after a very protracted litigation extending over several years, she had not been able to get effective possession of that property; that some others had squatted on and were claiming an adverse title to other parcels of her land; and that it was in these circumstances that she had found herself compelled, after consultation with most of the next reversioners, to grant the impugned ijara to which no objection was taken by any of the persons having the right to object during the period of eleven years for which she lived after having granted it. Their Lordships, while upholding the ijara on the ground of its being binding on the reversioners who had, after the death of the widow, sued to avoid it, as a family arrangement, made the following observations which were, of course, of wider and more general interest:

"It has always been a feature of Hindu law as administered by this Board to attach great weight to the sanction by expectant reversioners of an alienation of property by a Hindu woman as affording evidence that the alienation was under circumstances which rendered it lawful and valid."

23. In Rangaswami Gounden v. Nachiappa Gounden, 42 Mad. 523: (AIR (5) 1918 P.C. 196), their Lordships were called upon to deal directly with the question of the effect of the next presumptive reversioners consent to an alienation by a widow and to decide which of the two conflicting views on the subject adverted to above was correct.

24. In that case a widow who was the mother of the last male holder had transferred some property to her husbands nephew who was then the nearest reversionary heir. After the transferees death the plaintiff and the transferees two nephews became reversioners of equal degree. The latter sold some items of the property to the plaintiff. After the death of the widow, the plaintiff sued for possession of one half of the property which, before the transfer had belonged to her, challenging the validity of the transfer, The defence was that by the transfer of the property to her husbands nephew the widow had simply accelerated the latters succession by surrender of her own life estate in such property and that the transfer was otherwise also valid in view of the plaintiffs own consent thereto as evidenced by his having purchased a part of the suit property from the legal representatives of the original transferee. In dealing with the question of the effect of the consent by the next presumptive reversioner to an alienation by a Hindu widow Lord Dunedin who delivered the judgment of their Lordships approved the decision of the Full Bench of the High Court of Calcutta in Debi Prosad v. Golap Bhagat, 40 Cal. 721: (19 I.C. 273), as laying down the correct law on the subject and observed at p.536 of the report as follows:

"The result of the consideration of decided cases may be summarized thus: (1) An alienation by a widow of her deceased husbands estate held by her may be validated if it can be shown to be 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, 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, then, if such necessity is not proved aliunde and the alienee does not prove inquiry on his part and honest belief in the necessity, the consent of such reversioners as might fairly be expected to he interested to quarrel with the transaction will be held to afford a presumptive proof which, it not rebutted by contrary proof, will validate the transaction as a right and proper one."

25. By their above decision, their Lordships finally set at rest the controversy and the cleavage of judicial opinion that had been in existence on the subject. The effect of this decision, as also of the decision of the Full Bench in Debi Prosad v. Golap Bhagat, 40 Cal. 721: (19 I.C. 273), which their Lordships had approved, was to accept the view put forward by Sir S.P. Sinha in arguing the last mentioned case. According to that view, the rule as to the next presumptive reversioners consent to an alienation by a Hindu widow furnishing presumptive proof of the propriety and validity of such alienation was to be regarded merely as a rule of evidence, based on considerations of prudence, and not a rule of Hindu law, based on any texts. All subsequent decisions of the Courts in this country seem to fully recognize this necessary implication of their Lordships decision.

26. In Muhammad Said Khan v. Darshan Singh, 50 ALL.75: (AIR (14) 1927 ALL. 835), the transfer by a Hindu widow of a portion of her husbands estate to the next reversioner, purporting to surrender her interest therein, and the sale thereof by the transferee the next day to a third party, were held to amount to a transaction of sale by the widow to such third party, with the consent of the next reversioner, which, in the absence of proof of want of necessity, was upheld as valid. At page 80 of the report the following observations are to be found in the judgment of the Division Bench:

"The consent of a reversioner is no conclusive proof of the existence of legal necessity. It raises a presumption of the existence of such necessity."

Reference is then made to Debi Prosad v. Golap Bhagat, 40 Cal. 721: (19 I.C. 273) and Rangaswami Gounden v. Nachiappa Gounden, 42 Mad. 523: (AIR (5) 1918 P.C. 196) and the judgment goes on at page 81:

"In view of this statement of the law it follows that the defendant, even though he did not prove the actual existence of any legal necessity or any bona fade inquiry as to the necessity by him, or even an honest belief on his part that such necessity existed, has nevertheless discharged that burden, in the first instance, by proving consent of Hori Singh, and that the transaction would be binding on the reversioners until they led cogent evidence to the contrary."

27. In Thakur Prasad v. Mt. Dipa Kuer, 10 Pat. 352: (AIR (18) 1931 Pat. 442), Dhavle, J. has observed as follows at p.362 of the report:

"A reversioners consent does not by itself operate to validate an alienation by a Hindu widow but is only presumptive evidence that the alienation was proper. But the value of consent and its effective results must, as Sir Lawrence Jenkins, C.J. observed in Vinayak v. Govind, 25 Bom. 129: ( 2 Bom. L.R. 820), be measured by reference to all the circumstances of the case. The reversioners consent derives its value from the fact that he has an interest in preventing improper alienations."

Similar observations are to be found in Bajrang Bahadur Singh v. Rameshar Bux Singh, 12 Luck. 684: (AIR(24)1937Oudh0189) and Ramamurty v. Bhimasankararao, I.L.R. (1938) Mad. 688: (AIR (25) 1938 Mad. 433).

28. It is true that in all the cases noticed above, the consenting reversioner or reversioners happened to be males. In view, however, of the rule as to the effect of the consent of the next presumptive reversioner or reversioners to an alienation by a widow as finally enunciated by their Lordships of the Judicial Committee in Rangaswami Gounden v. Nachiappa Gounden, 42 Mad. 523: (AIR (5) 1918 P.C. 196) and as, of course, now fully recognized by all the Indian High Courts, I do not consider that it can and should make any difference in the matter of the operation of that rule, except perhaps as regards the strength of the presumption about the validity or the propriety of the alienation, that the next presumptive reversioner or reversioners whose consent is relied on as a defence to an action brought to impugn an alienation by a widow is or are a male or males who, in case of his or their being the actual reversioner or reversioners at the time of the widows death, would succeed to a full estate, or a female or females who would only succeed to a life estate. One could understand a different rule being applied to the latter case if the legal effect of the consent was to be, as was at one time the view taken by the Calcutta and the Madras High Courts, to place the anlienation on the same footing as if it had been effected by the reversioner or reversioners personally after the widow had accelerated such reversioners or reversioners succession by surrender of her own life estate in favour of such reversioner or reversioners, and thus to render it wholly unchallengeable. In that case it might be contended, quite reasonably, that if the next presumptive reversioner or reversioners whose consent was pleaded, as validating the alienation, could, being a female or females, succeed to no more than a mere life estate in case the widow had surrendered her own life estate in her or their favour, the alienation even, if treated as one effected by such reversioner or reversioners, had to be proved to have been effected either for valid necessity or after the requisite inquiry about the existence of such necessity, before it would be held to be binding on the entire reversion. This was indeed the View taken in Bepin Behari v. Durga Churn, 35 Cal. 1086: (8 C.L.J. 120). In that case a widow who had, at the time, three daughters, one of whom was a childless widow, made analienation. One of the daughters predeceased her mother leaving two daughters. Within a year of the widows death, the third daughter also died leaving her surviving one son and one daughter. The son of this third daughter brought a suit for possession of the property sold by his grand-mother by setting aside the sale. The sale was sought to be supported on the ground of having been made with the consent of the daughters. The Court held that the alleged consent had not been proved. However, it further held that even assuming for a moment that the daughters had in fact given their consent to the sale, in the circumstances of the case no presumption of law could be raised that the purpose for which the alienation had been made was proper so as to pass an absolute and indefeasible estate to the alienee. In coming to this conclusion the following observations were made which are to be found at p.1090 of the report:

"The reversionary estate of the daughters at the date of the alienation was of a limited and qualified character, and was contingent upon their surviving the widow. If the widow had made a gift of the property to the daughters, the effect of the transaction would have been to accelerate the contingent limited estate of the daughters, and to reduce it into an estate in possession. It would not have conferred on them any larger estate than the limited and qualified estate to which they would have succeeded had they survived the widow. It would not have conferred on them an estate transmissible to their own heirs. For the same reasons, if the widow had, with the concurrence of the daughters, alienated the property in favour of a stranger, the alienee would not have taken any larger estate than the limited and qualified estate of the widow or of the daughters, for the alienee cannot have a larger estate than that possessed by the alienors, and the coalition of the estate of the widow with that of the daughters not having the effect of amplifying the quantum of the resultant estate."

29. Once, however, it is conceded as seems to be implicit in the judgments in Debi Prosad v. Golap Bhagat, 40 Cal. 721: (19 I.C. 273) and Rangaswami Gounden v. Nachiappa Gounden, 42 Mad. 623: (AIR (5) 1918 P.C. 196) and in the cases subsequently decided by the Courts in this country that the consent of the next presumptive reversioner or reversioners is to give rise merely to a presumption, varying in strength according to the circumstances of each case, as to the validity or propriety of the alienation, on the ground that it is not generally to be believed that such reversioner or reversioners have altogether unreasonably acted in a manner prejudicial to their own interests, and have accepted an alienation which has they so chosen, they were able to prevent or to dispute and avoid, no distinction can, on principle, be made between the cases where the consenting reversioners are males and those in which such reversioners happen to be females. Ordinarily, even a female reversioner will be loathe to destroy her chances of succession to the property, although as a mere life tenant, by agreeing to a transfer of such property by the widow, in possession except where she genuinely regarded it as necessary. Much more loathe she will be to do so if she has reasonable expectation of passing the property on to her own children or descendants. There can, in the circumstances, be no good reason not to apply the same rule to analienation by the widow made with her unequivocal consent. Of course, the strength of the presumption as to the validity or the propriety of the transfer must vary according to the surrounding circumstances in each case and that also regardless of the sex of the consenting reversioner. For example, if in a particular case the consenting reversioner though a male is found to be so thoroughly dependent on the alienating widow as to have practically no volition of his own, the presumption of validity attaching to the alienation made with his consent must, indeed, be very slight, almost negligible, and capable of being rebutted very easily. There may be another case in which the consenting reversioner though a female is possessed of exceptional intelligence, has independent advice and independent means, and, either has got or can reasonably expect to get children to whom the property would naturally pass on her death. In such a case the presumption about the validity and the propriety of the transfer by the widow must necessarily be particularly strong.

30. The passage to be found at p.193 of Mullas book which has been quoted in extenso and which appears to lay down a contrary rule purports to be based only on the authority of Varjiwan Rangji v. Ghelji 5Bom. 563, where analienation by a widow with the assent of her daughter who, however, predeceased her mother was held not to be binding on the actual reversioner at the time the succession opened out on the death of the widow. It must be observed that in Bombay a daughter succeeds to a full estate. There does not, therefore, appear to be any a priori ground for making any distinction between a consent given by her to analienation by a widow and a consent given to such alienation by a male reversioner. The grounds on which the Bench dealing with the case based their decision are thus stated in their judgment at p.571 of the report

"In the present case the plaintiffs, although distant heirs, were the heirs presumptive of Narotam at the time of the sale, entitled to succeed in the event of Vakhat dying before her mother without issue, and, as such, clearly interested in disputing the sale. Nor can the mere concurrence of Bai Vakhat, albeit the nearest in succession, (having regard to the state of dependence in which all women are supposed by Hindu law to have their being) be regarded as affording the slightest presumption that the alienation was justifiable one."

31. With the utmost respect to the learned Judges who delivered the above judgment, I fail to see how the plaintiff in the suit giving rise to the appeal before them could be regarded as the heir presumptive of the last male holder at the time the impugned alienation took place. As observed by their Lordships themselves, he could not have succeeded on the widows death if the daughter had survived her and his chances of ever inheriting the property left by the widow would have completely vanished if the daughter had left any issue. The real ground given by their Lordships in support of their decision appears to be that all women are supposed under the Hindu law to be in a state of dependence. I have no hesitation in recognizing, as I have also said before, that if the female reversioner whose consent is relied on as a defence to the suit brought to impugn an alienation made by a life holder is in fact living in a state of dependence on the latter and can be regarded as having no volition of her own, her consent, being, in the circumstances no more than a consent of the alienating widow herself, can quite legitimately be disregarded as giving rise to no presumption as to the validity or propriety of the alienation. However, the question whether the consenting reversioner was or was not living in such a state of dependence must in each case be a question of fact to be determined with reference to the facts of that case. I refuse to subscribe to the proposition that, a woman is always to be regarded as being in a state of dependence, regardless altogether of the actual conditions of her life, simply because in the text books a woman has been enjoined to remain in a state of perpetual tutelage, just as I would refuse to subscribe to the proposition that a male can never be in a state of such dependence on another as to give rise to an inference that he has no volition independent of the latter, merely because there is no text to that effect. If the presumption as to the validity or the propriety of an alienation made by a widow with the consent of the next presumptive reversioner is, as indeed by snow it is fully recognized, merely a rule of evidence, based on considerations of prudence, the strength of the presumption varying according to the circumstances of each case, and does not derive its authority from any textual provision, the question whether consent in any particular case can be held to be of no evidentiary value by reason of its not being a voluntary or a free consent must be determined on the evidence led or circumstances disclosed in that case and not on any a priori grounds. It seems to me that the learned Judges, who decided the above mentioned case, allowed their judgment to be influenced by the consideration that according to the text books, a woman was supposed to be in a state of perpetual dependence because till then, it had not yet been reused that the presumption arising from the consent of the next presumptive reversioner to an alienation by a life holder was merely a rule of evidence, having its origin in considerations of prudence and not a rule based on any text of Hindu law. Indeed, it seems that the contention before them was not at all that by reason of the consent of the daughter the alienation by the widow should be presumed to have been made for necessity. The contention which appears to have been pressed on the alienees behalf, on the other hand, was that the alienation was as a matter of law, binding on the plaintiff by reason of its having been assented to by the daughter. In the circumstances, it is not surprising that the learned Judges called into service the texts as to a woman being always supposed to be in a state of dependence. Their anxiety not to accept the consent of a female reversioner, even though, according to the law as prevailing in their Presidency, she, on succeeding, would get a full, and not merely a life estate, as having the effect of placing an alienation by a life holder wholly beyond the reach of the entire reversionary body is understandable. Now that it has been finally settled that the consent of the presumptive reversioner to such analienation is to have no such effect, their view cannot, any longer, be said to hold good or be regarded as a binding authority. In the present state of the law, just as such consent can do no more than give rise to a presumption that legal necessity did exist for the alienation or that, at least, the alienee had, before taking the alienation, satisfied himself, after due enquiry, that such necessity did exist, the utmost that can be said is that, in determining the strength of the presumption, and in assessing the value of the evidence produced to rebut the presumption the fact of the consenting reversioner being a female is a relevant consideration. It has, however, to be remembered in this connection that whatever may have been the position of the females in Hindu society at the time the judgment in Varjivan Rangji v. Ghelji, 5 Bom. 563, was delivered, that society has, since then made very considerable progress, and that even if, at that time, it was permissible on grounds of prudence to presume that a female in a Hindu family lived almost invariably in a state of dependence, no such presumption can be made to day, at any rate in case of families which have had the advantage of modern education, It may be noted that in the passage to be found at p.795 of Maynes book which has been quoted above the learned editor does not find himself able to accept the Bombay decisions on the subject as correct and has definitely expressed the opinion theft the general dependence of women can be no ground at all for not attaching the presumption of validity or propriety to an alienation made by a widow with the consent of a female reversioner in places where such reversioner takes the estate absolutely.

32. The authorities relied on in support of the propositions embodied in the relevant passage in Maynes book as mentioned in the foot note are as follows: Mehani v. Durgachurn, 35 Cal. 1086: (8 C.L.J. 120); Hari Dasi v. Bidhumukhi Dasi, 35 C.L.J. 66: (AIR (9) 1922 Cal. 38); Pilu v. Babaji 34 Bom. 165: (11 Bom. L.R. 1291); Varjivan Rangji v. Ghelji, 5 Bom. 563, Vinayak Vithal V. Govind, 25 Bom. 129: (2 Bom.L.R. 820); Mahomed Nuh v. Brij Beharilal, 46 ALL. 656: (AIR (11) 1924 ALL. 939); Ratna Chettiar v. Narayanaswami Chettiar, 26 M.L.J. 616:(AIR (1) 1914 Mad. 64) and Chidambara Reddiar v. Nallammal, 33 Mad. 410: (5 I.C. 164). Reference has already been made to the ratio decidendi of Mehani v. Durgachurn, 35 Cal. 1086: (8 C.L.J. 120) and it is quite obvious that that ratio decidendi can no longer hold good. In view of the later pronouncements of the Calcutta High Court and of their Lordships of the Judicial Committee adverted to above this decision must be regarded as having become obsolete.

33. In Hari Dasi v. Bidhu Mukhi Dasi, 35 Cal. L.J. 66, also reported as AIR (9) 1922 Cal. 38: (68 I.C. 795), all that was held was that although a reversioner under the Hindu law has no present interest in the property left by the deceased, such reversioner whether male or female, is substantially interested in the protection or devolution of the estate, and as such, is entitled to appear and be heard in probate proceedings relating to such estate. It was further held that if the immediate reversioner is a female, the male reversioner in the second or third degree, as the case may be, is entitled to be heard in such proceedings, and that where the immediate reversioner has rendered it impossible for herself, by her own conduct, to maintain an application under S.50, Succession Act, successfully, the application may be made by her sons who, as the ultimate reversioners, are unquestionably proper parties to the probate proceedings. I fail to see how this judgment can have any relevancy to the question which we are considering.

34. I have already dealt with the decision in Varjivan Rangji V. Ghelji, 5 Bom. 563. The judgment in Pilu v. Babaji, 34 Bom. 165: (4 I.C. 584), is clearly irrelevant because the alienation in that case was a gift and not a transfer for consideration. It has been held, and quite rightly, that a consent by the next presumptive reversioner to a gift by a life-holder cannot give rise to any presumption as to the validity or the propriety thereof, and cannot attract the application of the rule laid down by the Judicial Committee in Rangaswami Gounden v. Nachiappa Gounden, 42 Mad. 523: (AIR (5) 1918 P.C. 196).

35. In Vinayak Vithal v. Govind, 25 Bom. 129: (2 Bom. L.R. 820), the question which actually arose before their Lordships was whether the consent by the next presumptive reversioner completely validated the alienation by a widow as had been held in Calcutta or could be regarded merely as furnishing presumptive proof of the validity or the propriety of such alienation. Incidentally, a question was raised whether such presumption should not arise where the alienation had been assented to, not by the next presumptive reversioner who was a female, but by a male reversioner entitled to the estate after the said female reversioner. The facts which gave rise to the appeal before the High Court were that one Govind Bhagwant had died leaving him surviving a widow Radhabai, a sister Bhimabai and the latters son Venkatesh. The transfer which formed the subject-matter of the litigation had been effected by Radhabai with the consent of Venkatesh. No consent of Bhimabai, the mother of the latter had, however, been obtained. Both Bhimabai and Venkatesh predeceased the widow. Venkateshs son brought a suit to recover possession of the property alienated by setting aside the alienation and was met with the plea that the consent of his father to the impugned alienation was presumptive proof of the validity of the alienation. On the plaintiffs behalf it was contended that his fathers consent to the alienation was of no avail in view of the fact that it was the latters mother who was the next immediate reversioner whose consent had not been obtained. It was in dealing with this contention of the plaintiff, and in holding that in spite of Bhimabais consent to the alienation not having been secured the consent of the plaintiffs own father who would have succeeded to the estate after the death of his mother was sufficient to bind the plaintiff and to defeat his suit that Sir Lawrence Jenkins, C.J. and Ranade, J., who wrote separate judgments, referred to the judgment in Varjivan Rangji v. Ghelji, 5 Bom. 563 and observed that if according to the view taken in that judgment the consent of the plaintiffs grandmother could not have validated the sale the absence of such consent could not be taken into consideration for the purpose of destroying the effect of his own fathers consent. These observations do not appear to me to be more than mere obiter dicta, and I am unable to regard them as containing the considered opinion of their Lordships on the subject which we are at present considering.

36. In Mahomed Nuh v. Brij Beharilal, 46 ALL. 656: (AIR (11) 1924 ALL. 939), the transfer had been made by the widow with the consent of her three daughters and some distant collaterals. The minor son of one of the three daughters was in existence at the date of transfer who, on attaining majority instituted the suit to set aside the alienation. The headnote in this judgment is certainly as follows:

"Held that the consent of the persons having only alife interest in the property sold and of distant reversioners was not sufficient to validate the sale, when there was in existence a person who, after the determination of the life interests, might be foil owner of the property."

A reference to the discussion at p.659, however, shows that the headnote is misleading. At the aforesaid page we have got the following observations:

"Next we come to the question of legal necessity and how it is to be considered. It was first argued that there was a presumption of legal necessity as the three daughters of Badam Kunwar and the distant reversioner were parties to the deed. The presumption, however, is not strong in the present case because Brij Bihari was in existence at the time of the transfer and the daughters of Badam Kunwar were young at the time and capable of bearing children who would ultimately be full owners of the property in suit."

It is obvious from the above observations that the learned Judges did not lay down that where consenting reversioners are females the consent of the next presumptive reversioners to analienation by the widow is not to be treated as presumptive evidence of necessity for the alienation. Only in the peculiar circumstances of the case, their Lordships held the presumption not to be strong. That is, however, an entirely different matter. As I have already observed, the question of the relative strength of the presumption has in every case to be decided with reference to the surrounding circumstances.

37. In Chidambara Reddiar v. Nallammal, 33 Mad. 410: (5 I.C. 164), all that was held was that the presence of a female is no bar to the maintainability of a suit by the next immediate reversioner to contest a transfer by a widow. There is not a word in the whole of the judgment from which any inference can reasonably be drawn that their Lordships meant to lay down that the consent of a female reversioner to analienation by a widow is not to be regarded as furnishing presumptive proof of the necessity for, or the propriety of the alienation. This subject in fact is not adverted to at all.

38. The judgment in Ratna Chettiar v. Narayanaswami Chettiar, 26 Mad. L.J. 616: (AIR (1) 1914 Mad. 64), also appears to have nothing to do with the subject at present under discussion. It deals merely with the question of the right of remoter reversioners to take part in the proceedings taken under the Wills Act for seeking directions of the Court in the matter of the construction to be placed on a will where nearer reversioners who were females were not interested in questioning the disposition which formed the subject-matter of the controversy. In effect, this judgment only reiterates the proposition which had been laid down in Chidambara Reddiar v. Nallammal, 33 Mad. 410: (5 I.C. 164) and which was later on also accepted in Hari Dasi v. Bidhumukhi Dasi, 35 C.L.J. 66: (AIR (9) 1922 Cal. 38).

39. After a review of all the relevant authorities I feel driven to the conclusion that merely by reason of the consenting reversioners being the sisters of the last male-holder who could not in any event succeed to more than a life estate, we cannot refuse to give effect to the rule laid down in Rangasami Goundens case, 42 Mad. 523: (AIR (5) 1918 P.C. 196) and must regard that consent as furnishing presumptive proof of the impugned sale being for necessity, unless of course we find that the presumption is destroyed by reason of the consent having been given under circumstances which show that it could not be a voluntary or a free consent. No such circumstances have been shown to exist. On the other hand, the facts disclosed on the record so far from having the effect of destroying the presumption appear to lend further and additional strength thereto. All the three daughters had been married before the sale. One of them had been married for over 15 years and had two daughters. Her husband was a Sub-Inspector of Police. The second daughter, a matriculate, was married about 7 years before the sale. Her husband was a Prosecuting Sub-Inspector and her father-in-law a Superintendent of Police. Both of them were quite young and could reasonably expect to survive their mother and to have male issue. The third daughter who was married four years before the sale was undoubtedly suffering from tuberculosis but it is reasonably clear that she gave her consent to the sale with the express approval of her husband because the power of attorney Ex.D, which was executed by her in favour of her sister Mt. Jagjit Kaur in order to enable her to join, on her behalf, in the execution of the sale deed was attested by her husband.

40. It was contended by the learned counsel for the respondent that the consent of the daughters in the present case was a purchased consent which must be regarded as wholly ineffective to give rise to any presumption as to the validity or the propriety of the sale, and reliance was placed on the following passage occurring at p.796 in Maynes Hindu Law:

"The fact that the reversioner gave his consent for a consideration or that he was benefited by the transaction will not apparently prevent his consent from being presumptive proof of legal necessity On the view which was overruled in Rangaswami Gounden v. Nachiappa Gounden, (42 Mad. 523: AIR (5) 1918 P.C. 196) that consent renders an alienation valid, this would be correct. But on the truer view that it only raises a presumption that the transaction was a fair one and one justified by Hindu law, the consent of the next reversioners, where it is purchased: for a consideration, cannot be evidence of the propriety of the transaction as against the actual reversioner any more than a purchased consent will be evidence of the propriety of an adoption."

It is, however, impossible to regard the consent in the present case as a purchased consent within the meaning of the concluding portion of the above passage. At the time the sale took place, defendants 5 and 6 did not derive any benefit, nor could they have any reasonable expectation of deriving any benefit, therefrom. It was merely the accident of their mother having died within less than a couple of months of the sale that enabled them to get the sum of Rs.5000 which was the unpaid portion of the sale price.

41. It was also urged by the learned counsel for the respondent that if we take the view that the consent of her three daughters to the sale by Mt. Kesar Kaur is to be regarded as presumptive evidence of the said sale being for necessity, we must, in view of the re-allocation of the onus, remand the case in order to enable him to lead evidence to rebut the presumption. I see no force at all in this contention. The initial onus of proving the sale to be for necessity was rightly placed on the vendees and I do not propose to re-allocate the onus at all. What I feel inclined to hold is that the initial onus which rested on the vendees must be deemed to have been shifted to the plaintiffs as soon as the former had proved that the impugned sale had been made with the consent of the next presumptive reversioners and shall be deemed to have been effectively discharged unless we can discover any evidence which can be held to be sufficient to rebut the presumption arising on proof of such consent. It was contended that neither the counsel for the plaintiff in the trial Court realised nor the counsel for the defendants in that Court urged that the consent of Mt. Kesar kaurs daughters to the impugned sale was or could be regarded as presumptive proof of necessity.That can, however, hardly be any ground justifying the request for a remand.

42. Coming now to the merits of the sale, in view of what I have said above, the consideration of the question has to be approached with an angle of vision different from the one applied by the lower Court. We have to see not whether the sale has been proved to be an act of necessity but whether it has been shown not to be so.

43. From the evidence of the plaintiff himself, it appears that when Thakar Singh died in November 1933, all that he left was a deposit of Rs.4,000 in the Peoples Bank of Northern India, life policies of the value of Rs.10,000 to Rs.15,000, the house in dispute and jewellery worth about Rs.3,000. The plaintiff claims to have been in quite close touch with his deceased brother and admits even to have received financial assistance from him from time to time. On his own showing he possessed quite accurate and lull information about the affairs of his brother and he has not even suggested that after the latters death his widow could have got anything more than that has been specifically mentioned by him.

44. It is an indisputable fact that Jiwan Singh, the last male holder of the house, son of the aforesaid Thakar Singh, died of tuberculosis four years after the death of his father i.e., in 1937. In the same year Mt. Jagjit Kaurs marriage was celebrated. The suggestion on the part of the defendants is that by 1940 when Mt. Kesar Kaur celebrated the marriage of her third daughter she had no substratum left and that for meeting the expenses of that marriage, and also for the reconstruction of the house, she had to incur debts. The suggestion does not appear be unreasonable in view of the circumstances disclosed on the record. As we have already seen, at the time of her husbands death, Mt. Kesar Kaur had two unmarried daughters and an ailing son, besides herself, to support. Her only son was suffering from tuberculosis and suffered from that disease for quite a number of years. His treatment must have required considerable expenditure. She then had to celebrate the marriage of her daughter who was married in a rich family, i.e., to the son of a Superintendent of Police who was a member of the Indian Police. There can be no reasonable doubt that the marriage must have been quite an expensive proposition. Mt. Jagjit Kaurs education also must have entailed some expenditure because as we have already seen she is a Matriculate. After all, besides the jewellery, even accoroing to the plaintiffs own showing, Mt Kesar Kaur had not got more than between Rs.14, 000 and Rs.19,000 even if we assume that she was able to get from the Peoples Bank of Northern India which was in liquidation the entire amount of the deposit. For four years after the death of her husband she had to maintain herself, her two daughters and her son and also to meet the expenses of the treatment of the said son. During the next three years she had to marry one of the two daughters and to maintain herself and her third daughter. There is nothing unreasonable in the suggestion that whatever had been left to her husband was consumed by her during the above period. It is not suggested that she had any appreciable income from any source. According to the evidence led by the defendants the income did not amount to more than Rs.10 or Rs.12 per mensem derived from the rent of the suit property. The plaintiff has given the figure of her income of Rs.30 per mensem but has not given any details. It was, in the circumstances, quite natural for her to incur debts to meet expenses in connection with the marriage of her third daughter. Unfortunately for her that daughter also contracted tuberculosis only within six months of her marriage. There is evidence of Mt. Jagjit Kaur and her husband and also of some doctors to the effect that the expenses on her treatment and nursing had to be met by her mother. There does not apparently seem to be any reason not to believe this evidence. Mt. Kesar Kaur herself, according to the said evidence, was not in too good health and had often to consult doctors, get injections and resort to other treatments. It also became necessary to remove Mt. Harbhajan Kaur to Dalhousie and the evidence of Mt. Jagjit Kaur is that, after the sale, Rs.1000 on one occasion and Rs.2700 on another occasion were sent through her to her mother to Mt. Harbhajan Kaur for expenditure at Dalhousie. This part of the evidence also, there does not seem to be any good reason to disbelieve. Some expenditure, even according to the plaintiffs own statement, was incurred on effecting repairs to the house. The plaintiff puts the figure at Rs.600 or Rs.700 while according to the evidence of Mt. Jagjit Kaur a sum of Rs.1500 had to be borrowed for the purpose. It is not suggested that there was any other source from which all these expenses could have been met by Mt. Kesar Kaur. In the circumstances, there does not seem to be any reasonable doubt as to the latter being in a necessitous condition and having been compelled by her circumstances to sell the house.

45. The learned Sub-Judge, while holding that a sum of Rs.7250 was paid by the vendees to Kishen Singh at the time of the registration, has also held that there was in fact no debt due to Kishen Singh at the time and that the pronote executed by Mt. Kesar Kaur in the year 1941 was fictitious. However, after consideration of the relevant material, I do not find it possible to endorse this view of the learned Sub-Judge. In the first place, we have the fact that Mt Jagjit Kaur and her husband have both admitted that the debt evidenced by the pro-note was a genuine debt and had in fact been incurred. It is true that Mt. Jagjit Kaurs husband is the daughters son of Nikka Singh, the real brother of Kishen Singh. However, I do not consider that to be sufficient to justify the assumption that the two have given false evidence when they say that the debt had in fact been incurred by Mt. Kesar Kaur. They certainly have no connection with the vendees and there does not appear to be any reason why they should now perjure themselves to help them. Apart from that, we have the admitted facts that in 1940 Mt. Kesar Kaur had actually celebrated the marriage of Mt. Harbhajan Kaur and had also, about the same time, incurred some expenditure on the repairs to the house. As we have already seen, whatever she got from her husband had been already consumed by her. In the absence of any indication as to any other source from which she could have met the expenses incurred on the marriage of her daughter, on the repairs to her house and on her own treatment and that of her daughter, it can reasonably be believed that all these expenses were met by raising loans, and that, eventually, a sum of Rs.6000 had to be borrowed from Kishen Singh for the liquidation of those debts. It has to be observed that in 1943, about a year before the execution of the sale-deed, an agreement was executed by Mt. Kesar Kaur and Nikha Singh in favour of Kishen Singh on a stamp paper whereby the latter undertook to be liable as a surety, for the formers debt due to Kishen Singh. This agreement is sufficient guarantee as to the pronote being in existence at least at the time it was executed. The fact that the house was not sold for a year after the execution of this agreement is an indication of the agreement itself being a. genuine transaction. If it had been executed merely for the purpose of creating evidence one would naturally expect the sale-deed itself to be executed soon after its execution.

46. It is true that for the sum of Rs.5000 which was left with the vendees by the vendor no necessity was recited in the sale-deed and none has been proved to have existed at the time the sale-deed was executed. However, if it otherwise appears that the sale itself was an act of necessity, it cannot be held to be otherwise merely because actually no necessity existed for a fraction of the sale consideration. The house sold was by no means a big one. Ifs dimensions as given in the sale-deed of 1931 when the same had been purchased by Thakar Singh are 10 yards x 12 yards, with a frontage of 9 yards only. At any rate, it has not been suggested that it was possible for Mt. Kesar Kaur to sell a smaller portion of the house for the amount actually required by her i.e., for Rs.15, 000. Having regard to all the facts mentioned above, I am clearly of the opinion that not only the presumption as to the sale having been made for valid necessity arising from the fact of the said sale having been assented to by the next presumptive reversioners for the time being has not been rebutted but that from the proved facts this presumption receives additional support. In the circumstances, I am of the opinion that the learned Sub-Judge was not right in setting aside the sale. I would accordingly accept this appeal and setting aside the decree passed by the learned Sub-Judge in the plaintiffs favour would dismiss his suit. In view, however, of the circumstances of the case, I would leave the parties to bear their own costs in the lower Court as well as this Court.

47. KAPUR, J. - I agree and would like to add that time has come when the view of the perpetual dependence of women must be re-examined. Speaking for myself, I am unable to agree to this view being correct in the present state of Hindu society. I would be prepared to say that this view of the womens position should be taken to be obsolete and in each case it has to be decided as to what is the strength of the presumption that would arise.

Appeal allowed.