Suhrawardy, J.:— The property in suit belonged to one Chandra Nath Chakravarti. He had two wives, Durga Sundari and Ambika, who survived him. By Durga he left a daughter Bharati, and by Ambika a daughter Tirtha Bashi. The plaintiffs are the sons of Bharati and defendant & is the son of Tirtha Bashi. Durga predeceased Ambika, and on the latter's death Chandra Nath's estate descended to his two daughters, but it actually was in possession of Tirtha Bashi. In 1298 B.S Ambika the last holder of the life estate, died, and in order to perform her funeral rites Golok, the husband of Tirtha Bashi, took a loan of Rs. 250 from Rup Chand Ghose, the predecessor of the principal defendants, by mortgaging the entire estate of Chandra Nath on behalf of his wife. In 1299 B.S a year after this transaction, Bharati came into the field and brought a suit against Tirtha Bashi and her husband to reoover joint possession of the property left by Chandra Nath. The suit was settled between the parties in 1893. Under the terms of the settlement Tirtha Bashi was to get nine annas share of the property and Bharati seven annas, the former having taken upon herself the debt incurred for the funeral expenses of Ambika. In 1899 Tirtha and her husband executed a bond in favour of Rup Chand Ghose by mortgaging the nine annas share of the property obtained by compromise in Bharati's suit. Bharati predeceased Tirtha who died in 1925. In 1927 the present suit was brought by the plaintiffs for their 5/6ths share in the nine annas share of Chandra Nath's property held by Tirtha Bashi, Defendant 4, who is entitled to the remaining 1/6th share, refused to join in the suit. Both the Courts below agreed in dismissing the plaintiff's Suit. The plaintiffs have appealed and raised several points before us.
2. It is argued in the first place, that according to the findings of the Courts below the consideration of the sale to the defendants in 1899 was the debt incurred by Golok in 1891, but the defendants should not be allowed to plead that was the real consideration. In Ex. D the deed of sale in favour of the defendants the consideration is said to be Rs. 200 paid in cash. The Courts below have found that the real consideration was not cash payment but discharge of the debt incurred by Golok in 1891, on behalf of his wife and renewed in 1891 by a bond executed by him and his wife. Mr. Roy Choudhury has strenuously argued that the Courts below should not have allowed the defendants to prove that the consideration, as stated in the document was not the real consideration, but there was some other consideration under Section 92 of the Evidence Act. It seems to have been settled by authority that it is permissible to prove that the consideration mentioned in the document was not the real consideration but something different. The leading case on the point is Hukum Chand v. Hiralal . [1878] 3 Bom. 159.: see also Lala Himmat Sahay Singh v. Lhenhellen . 1885 11 Cal. 486.. Section 92 of the Evidence Act, prohibits contradicting any of the terms of a document, provided by law to be reduced to the form of a document, by any oral agreement or statement. The consideration mentioned in a document is not one of the terms of the document, but it is the recital of a fact which can be contradicted or varied under proviso (i) to that section. It is next urged that there was no legal necessity for the sale to the defendants even if it were admitted that the consideration was the debt incurred for discharging the expenses of the funeral of Chandra Nath's widow. This point also seems to have been settled by authority. A daughter inheriting her father's property may alienate a portion of it for defraying the expenses of her mother's shradh: Sri Mohan Jha v. Brij Behari Missir . [1909] 36 Cal. 753 Golap Chandra Sarkar's Hindu Law, Edn. 6, p. 679.
3. The last point taken on behalf of the appellants is of some nicety. It is argued on the authority of the decision of the Judicial Committee in Gour Nath v. Mt. Gaya Kuar . A.I.R 1928 P.C 251 that the transfer by one of two joint tenants with right of survivorship even for legal necessity is void and inoperative. We do not think that the decision of their Lordships of the Judicial Committee has been correctly appreciated, and it lays down anything like what the appellants submit, viz., that such transfer is absolutely void. But looking into the findings of facts in this case it appears that the requirements of the law as laid down in that decision have been satisfied. It is there held that when the estate left by a childless Hindu is partitioned between his widows who are joint tenants with right of survivorship for the joint enjoyment of their life interest, a mortgage by one of them of a portion of the property, without the concurrence of the other, is not binding on the latter or the joint estate. On the question as to whether Bharati consented to the execution of the mortgage bond by Tirtha Bashi in 1894 and the subsequent sale, the learned District Judge has come to the following finding: It was appreciated by Bharati that the debt incurred in 1891 for the funeral ceremony of Ambika was a legal necessity and that if she wanted her full share in the estate she should have had to bear a portion of the debt. The suit by Bharati was accordingly compromised by giving nine annas of the property to Tirtha Bashi who took upon herself the liability for the entire debt and Bharati obtained seven annas of the property free from the debt incurred in 1891. In order to give effect to this compromise it was necessary to execute another bond in 1894, and Tirtha Bashi executed a mortgage bond in favour of the defendants mortgaging her nine annas share of the property in place of 16 annas mortgaged in 1891. All these circumstances therefore tend to a legitimate conclusion that Bharati consented to the dealings by Tirtha Bashi of the nine annas though there is no proof that she gave express consent. These findings in our opinion are quite sufficient to meet the requirements of the case. The learned District Judge in another part of the judgment says:
“There is thus ample admission of the debts by Bharati whose descendants the plaintiffs are.”
4. It is thus clear that Bharati in order to get rid of the debt, enabled Tirtha Bashi to pay it is by raising money by mortgage or sale of the share of her estate in her hand, and in fact the compromise was effected only to give effect to it. Their Lordships in Gour Nath's case affirm the principle enunciated long ago in the case of Bhugwandeen Doobey v. Myna Baee . 11 M.I.A 487 which was a case of voluntary transfer. It was there laid down:
“The estate of two widows who take their husband's property by inheritance is one estate. The right of survivorship is so strong that the survivor takes the whole property to the exclusion even of daughters of the deceased widow. They are therefore in the strict sense co-parceners and between undivided co-parceners there can be no alienation by one without the consent of the other.”
5. The principle is that as between coparceners or joint tenants the right of survivorship by one tenant cannot be destroyed by alienation by the other tenant.
6. The principle thus laid down would have been applicable if the present suit were brought by Bharati claiming possession of the entire estate as the surviving joint tenant. As I have stated, it is deducible from the findings of the Courts below that it was with Bharati's concurrence that the debt was incurred and the sale was made in order to discharge the debt. But it also seems to me that there must be some distinction between a case whore the surviving joint tenant brings a suit for possession against an alienee of the other joint tenant and a case brought by the reversioners after the death of the joint tenants. In Gour Nath's case their Lordships distinguished an Allahabad case and in that connexion remarked:
“It may be noted that the Allahabad case arose not between the survivor of the widows and the mortgagee but between the mortgagee and the reversioner after the death of both widows.”
7. The correct rule seems to be that one joint tenant cannot destroy the right of survivorship of another joint tenant by alienating any portion of the joint estate, but when the estate falls to the reversioner the question of transfer for legal necessity by a holder of the life estate, in order to pay off a just debt by alienating a portion of the estate, becomes pertinent. Whatever that may be the findings referred to above conclude this matter, and even on the principle as laid down in Gour Nath's case the respondents have succeeded in proving that the sale was for legal necessity and with the concurrence of Bharati.
8. It is also to be noted that the plaintiffs are not entitled to bring this suit for a 5/6ths share in the nine annas only while retaining exclusive possession of the seven annas share of their mother. This appeal is accordingly dismissed with costs.
Jack, J.:— I agree.
V.B/R.K
9. Appeal dismissed.