1. The property in dispute in this appeal is property at one time belonging to Bhagwan Singh. To this property some nine years ago Mt. Anari Kunwar, his widow, succeeded and came into possession of the same. On the 13th of April, 1909, Mt. Anari Kunwar and with her Mt. Jamna Kunwar, who was at that time, had the succession opened out, the next-reversioner, executed a deed of gift in favour of Ramhit Singh and Phirae Singh. In this deed of gift they set themselves out as being entitled to and in possession, of the property in dispute and they transferred the whole of their property in favour of the aforesaid Ramhit Singh and Phirae Singh. Ramhit Singh and Phirae Singh alleged that they came into possession and are in possession of the property in dispute; they add, however, that upon the death of Mt. Anari Kunwar, the patwari of the village made a report and had the name of Mt. Jamna Kunwar entered and their names removed. They applied to the Revenue Court for correction of this mistake, but in vain. Thus they were forced to come into the Civil Court and to ask that a decree might be passed in their favour declaring that they are in proprietary possession of the property in dispute and if this be not found proved by the Court below, that a decree awarding possession in their favour may be passed.
2. In the written statement the execution of the deed of gift was denied. It was said that Ramhit Singh and Phirae Singh persuaded Mt. Anari Kunwar and Mt. Jamna Kunwar that they were better able to manage the zemindari property left by Bhagwan Singh, that the deed which was executed was understood by the two ladies to be merely a power-of-attorney conveying the right to Ramhit Singh and Phirae Singh to manage the estate. Jamna Kuawar said that the ladies had all along been in possession of the property in suit ever since the death of Mt. Anari Kunwar.
3. The Court of first instance dismissed the claim; it held that the fraud alleged by Mt. Jamna Kunwar was not proved, that execution of the deed of gift by the two ladies was established and that Mt. Jamna Kunwar had at the time of executing the deed only a right in expectancy which she could not legally transfer. The deed, therefore, under which Ramhit Singh and Phirae Singh sued conferred no title upon them.
4. The case was taken to the Court of the District Judge of Jaunpore. The view taken by that learned Judge was that the deed of gift was a deed properly and duly executed by the ladies with knowledge of what they were doing, that no fraud in this matter had been proved to the satisfaction of the lower Appellate Court. It went on to hold that the deed of gift was “not to a stranger, it was to the reversioners in expectancy, who would have been next reversioners” in the event of Bhagwan's mother pre-deceasing his widow. The mother was perfectly competent to relinquish her expectation of the life-interest, and by her doing so the plaintiffs became next reversioners and the widow, became ipso facto competent to gift the property or to be more exact to surrender her life-interest therein. It accordingly allowed the appeal and decreed the plaintiffs' claim for possession. There was a third defendant, who, it held, was unnecessarily impleaded, but we are not concerned with him in this appeal.
5. Mt. Jamna Kunwar has come to this Court and raised six pleas attacking the judgment of the lower Appellate Court. The sixth plea was not argued. Of the remaining pleas four attacked the deed of gift on the grounds that (1) it was not proved that the defendant had any independent advice, (2) that the gift had never been given effect to and the plaintiffs not having obtained possession under the deed cannot now sue for possession, (3) that the defendent had no interest in the property in suit on the date when the deed of gift was executed and the deed conveyed no title to the plaintiffs, (4) that the gift of the defendant was a gift of an expectancy and was invalid. The fifth plea raised was that the plaintiffs Were estopped from bringing the present suit. No argument was addressed to the Court on this last plea.
6. It is found by the lower Appellate Court that Mt. Jamna Kunwar knew what she was doing when she executed the deed of gift. It is a finding of fact and if there was any necessity I agree that finding of fact is a proper and right finding.
7. My attention was directed in the course of the arguments to the written statement. Paragraph 16 of that statement says that Mt. Jamna Kunwar and Mt. Anari Kunwar had been all along in possession of the property in dispute since the death of Bhagwan Singh and since the death of Mt. Anari Kunwar, Jamna Kunwar had alone been in possession; the plaintiffs had never been in possession of the property. The lower Appellate Court has also held that the plaintiffs never have been in possession. Viewed then from the standpoint taken by Mt. Jamna Kunwar in the written statement, the deed of gift was a deed of gift of the property in dispute executed by her when in possession of the property, by whatever means that possession was obtained. The deed was a deed executed by Mt. Anari Kunwar then in possession of her deceased husband's estate and assented to by Mt. Jamna Kunwar, the next reversioner, in favour of the present plaintiffs who were then reversioners and now are the next reversioners.
8. A great deal of argument was addressed to the Court upon the ground that when Mt. Jamna Kunwar executed the deed of gift, she was trying to effect a transfer of a right in expectancy. Such transfer is forbidden by the Transfer of Property Act and in consequence, it was urged, conveyed no title of any kind to the plaintiffs. It seems to me that this is practically an attempt to get this Court to look at the transaction from a wrong point of view. In Ramphal Rai v. Tula Kuari (1), a Full Bench of this Court did hold that the consent of the heir-presumptive to an alienation was not sufficient to defeat the rights of a more remote reversioner. The view taken by this Court was considered by their Lordships of the Privy Council in Bajrangi Singh v. Manokornika Bakhsh Singh (2). Their Lordships, however, held that the view taken by this High Court in the former case “is at variance with the principle itself, and is not in accordance with the practice in other parts of India in which the Mitakshara Law prevails.” They considered that the Allahabad High Court was trying to establish an unnecessary limitation upon the widow's power of alienation. They preferred to follow the view taken in Radha, Shyam Sircar v. Joy Ram Senapati (3), where it was held “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.”
9. In the present case Mt. Jamna Kunwar was the next heir-presumptive; she beyond all doubt consented to the transfer and is no longer entitled to oppose the same.
10. I agree with the lower Appellate Court that when the deed was executed and under the circumstances in which it was executed, Mt. Anari Kunwar could surrender her life-interest in the estate, if Mt. Jamna Kunwar consented to the transfer. I accordingly dismiss this appeal with costs, which in this Court will include fees on the higher scale.
11. Appeal dismissed.