Sir John Edge, C.J and Tyrrell, J.:— This is an action for possession of a four-anna share and for mesne profits.
The case of the plaintiff is that one Dharam Kuar, the Hindu widow of Lachman Singh, on the 25th March, 1879, with the consent of her daughter Peari Kuar, a defendant, made a gift of an eight-anna zemih-ciari share to Peari Kuar's son Himmat Singh, and that on the 26th July, 1879, Himmat Singh, having obtained [409] possession, sold a four-anna share of the eight annas to the plaintiff for Rs. 7,700. The plaintiffs applied in 1880 or 1881 for mutation of names. That application was successfully resisted by Himmat Singh's son Mathura Singh. Mathur's Singh was the original defendant in the action. After the commencement of the action, Peari Kuar, Himmat Singh's mother, and Bhawani Singh, a son of Peari Kuar and brother of Himmat Singh, were made defendants. It is here admitted on the arguments that Peari Kuar did in fact consent to the gift which was made by Dharam Kuar, and not only consented to the gift by Dharam Kuar of her life interest but also of the life interest of Peari Kuar. It could not have been contended on the evidence in this case that Peari Kuar did not consent to that extent. We have before us the written statement which was filed by Peari Kuar in the case of Modho Singh on 25th July, 1879. That statement, as explained by Peari Kuar's evidence, is conclusive on the point, and corroborates the statement contained in the deed of gift of March, 1879: Dharam Kuar died in September, 1879. On these facts it has been contended that the only interest which passed under the deed of gift to Himmat Singh was the life interest of Dharam Kuar, and that the consent of Peari Kuar to the gift made by her mother would not affect Peari Kuar's interest. It has also been contended that there could be no gift by Peari Kuar of her reversionary interest; as she could not give possession of the property at the time of the gift in 1879. The Subordinate Judge found in favour of the defendant on the ground that Dharam Kuar had no power to make the gift, and that Peari Kuar was not competent to give her consent if in fact she had done so, and he relied in support of that finding in law on the case of Ramphal Bai v. Tula Kuari. The case there, was one in which another reversioner was impeaching a gift made by a Hindu widow in possession with the consent of her then next reversioner. That case would no doubt have a bearing on the present, if it were necessary for us to decide, whether or not the plaintiffs became entitled to more than the life interests of Dharam Kuar and Peari Kuar. In this case we have only to consider whether the plaintiffs were entitled to possession and to the mesne profits claimed, and we are invited only to consider [410] that question. We have not here to consider who will be the person entitled to the four annas share on the death of Peari kuar. That is a question which we leave to be decided in a further action when the time comes. We are of opinion that it is quite clear that a Hindu widow in possession can, with the consent of a reversioner, make a valid gift, which will operate so far as the interest of the widow and that of the consenting reversioner, in this case Peari Kuar, are concerned. It appears to us that is the principle to be found in the judgment in the Privy Council case of Rany Srimuty Dibeah v. Rany Koond Lhuta, and in the judgment of the Privy Council in Kooer Goolab Singh v. Rao Kurun Singh. The judgment of this Court in Sia Dasi v. Gur Sahai and in the judgment of the Calcutta High Court in Raj Bullubh Sen v. Oomsh Chunder Rooz support the view of the law which we hold.
There is uncontradicted evidence here that the sale-deed of the 26th July, 1879, was a genuine sale-deed and that the consideration therein mentioned passed. We find as a fact that the sale of 26th July, 1879, was a genuine sale, and that the consideration mentioned in the sale-deed passed.
The plaintiffs are entitled to the possession of the four annas share at least for the life-time of Peari Kuar; they are also entitled to mesne profits as against Mathura Singh, defendant, from the commencement of the suit to the date of our decree. We decree accordingly, and we direct an enquiry under s. 212 of the Code of Civil Procedure to be made by the Subordinate Judge as to the amount of mesne profits and direct him to report to us, when we will make further orders. The appeal so far will be allowed with costs. We make no declaration as to the title of the rights of the parties at the death of Peari Kuar.
Appeal decreed.