1. One of the issues in the case was whether the plaintiff was estopped from questioning the alienation in favour of the defendants under Exhibit I. The District Munsif found this issue in favour of the plaintiff but the District Judge's finding on the point cannot be said to be satisfactory. But before stating the points on which we think, we ought to have a clearer finding, it is necessary that we should state the effect of the rulings, as we understand them, as to what would constitute estoppel under circumstances like those of the present case, preventing the reversioner claiming the estate on the death of a Hindu widow from questioning an alienation made by the widow with the consent of the person who was the next reversioner at the time the consent was given. The law, as laid down by the Judicial Committee in Bajrangi Singh v. Manokarnika Bakhsh Singh 30 A. 1 : 3 M.L.T. 1 : 12 C.W.N. 74 : 9 Bom. L.R. 1348 : 6 C.L.J. 766 : 5 A.L.J. 1 :17 M.L.J. 605 : 35 I.A. 1 is that if the next reversioner, either at the time of the alienation or after such alienation, consents to, or ratifies, the transaction, such transaction cannot be re-opened by the person who happens to be the nearest reversioner at the time of the widow's death. The consent of the person entitled to the reversion would by itself validate the alienation apart from any question of legal necessity. If the person, who was not the next reversioner at the time of the alienation, would be estopped by the conduct of the next reversioner, there can he no question but that the latter would be estopped by his own conduct. So far the law is clear and has not been doubted, at least in this Presidency. See Rangappa Naik v. Kamti Naik 31 M. 366 : 18 M.L.J. 3099 : 3 M.L.T. 355. But it is argued on behalf of the plaintiff (the respondent in this appeal) that the ruling of the Privy Council must be understood as being applicable only to cases in which the alienation by a widow was made for consideration though not for legal necessity. There seems to us to be no warrant for this argument. No doubt, the Bombay Courts interpret the decision of the Privy Council to mean that the consent of the next reversioner should be treated only as evidence of legal necessity. See Pitu Appa v. Babaji Naru 34 B. 165 : 11 Bom. L.R. 1291 : 4 Ind. Cas. 584. But this, as we have said, is not the view of the law which has found favour in this Presidency.
2. It is next argued on behalf of the respondents that, according to the law as laid down by the learned Chief Justice and Sankaran Nair, J. in Bangappa Naik v. Kamti Naik 31 M. 366 : 18 M.L.J. 3099 : 3 M.L.T. 355 and again by the learned Chief Justice and Miller, J., in Muthuveeru Mudaliar v. Vythilinga Mudaliar 32 M. 206 : 5 M.L.T. 122 : 19 M.L.J. 88 : 3 Ind. Cas. 476 alienation by a widow of a portion only of her husband's estate without justifying necessity would not be validated by consent of the next reversioner. On the other hand, Wallis, J., in the first case propounded a different view. We propose, therefore, not to decide this question of law at present as we have no finding of the lower Appellate Court on the point.
3. As regards the findings of the learned District Judge on the question of consent or ratification, he says there is no evidence of consent on the part of the plaintiff. In this he is wrong. For instance, there are the statements in Exhibit V that the plaintiff had been given some land by the widow so that he might perform her funeral obsequies, the recital in that document that the widow had already sold the lands comprised in patta No. 13 to the father of the 1st defendant and the fact that the document purports to be attested by the plaintiff. No doubt, the plaintiff denies having attested the document but the District Judge has not found whether Exhibit V was attested by the plaintiff or not. There is also the alleged fact that the plaintiff exchanged some of his own lands with land sold to the defendant in addition to the circumstances alluded to by the District Munsif in his judgment. It is for the District Judge to say whether he believes the evidence relied on to prove consent on the part of the plaintiff and what weight he would attach to the evidence and to the circumstances we have just mentioned. All that we are pointing out to the learned Judge is that there is evidence from which he might infer, if he so chooses, consent on the part of the plaintiff. We must, therefore, ask the District Judge to return a revised finding on the question whether the plaintiff gave his consent to, and ratified, the sale to the defendants and, if so, when. He will also find whether at the time of the consent or ratification the widow had divested herself of all or practically all the estate. The findings should be submitted within six weeks and seven days will be allowed for filing objections.
4. In compliance with the order contained in the above judgment, the District Judge of Chingleput submitted the following FINDING.
5. The first issue on which I am asked to return a finding is "whether the plaintiff gave his consent to, and ratified, the sale to the defendants; if so when." No doubt, the original appeal against the. District Munsif's judgment was preferred by the plaintiff, but the second appeal to the High Court was preferred by the defendants, and in the present proceedings, I think both the form and the matter of the issue throw the burden of proof on the defendants. I am of opinion they have failed to discharge this burden and find the issue against them.
Comments