Citation Codes

Equivalent Citations

citation codes

Case Number

Cross Appeals Nos. 176 and 180 of 1880

Judges

Sir Charles Sargent
Kt.
Mr. Melvill, J.

Acts

section 8 of Act VIII of 1859.The defendants 3, 4, 5, 6, 7, 8, and 9
section 205 of Act VIII of 1859.
Limitation Act of 1871,

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Smart Summary

Judgment Summary — Sargent, J.

Factual and Procedural Background

The plaintiffs are described as the grandsons of the second cousins of one Narotam Shevakram. Narotam died leaving a widow, Bai Achrat, and a daughter, Bai Vakhat. The daughter predeceased the widow; Bai Achrat died on 17 June 1865, having survived her daughter. The suit seeks possession of one house and six fields (survey Nos. 219, 233, 237, 331, 761 and 762).

The defendants raised multiple defenses by written statement. The first defendant alleged, among other points, that the suit was barred by the Statute of Limitations; that the widow and daughter sold the fields and house to him on specified Poush Sud dates and that he had expended money on the property; and that the plaintiffs, though aware of the sales, had not objected. Defendant No. 2 pleaded purchase of the house from the first defendant on a stated Poush Sud date, expenditure on improvements, plaintiffs' knowledge and non‑objection, and that the suit could not be maintained under section 8 of Act VIII of 1859. Other defendants pleaded purchases from defendant No. 1 or long possession of particular fields.

The Subordinate Judge decreed possession of all the fields to the plaintiffs (with an order for Rs.51 to be paid to defendant No.10 in respect of a mortgage alleged to exist on field No.331) and ordered Rs.381 to be paid by defendants 1 and 2 for the house. Three appeals (Nos. 167, 175 and 176 of 1878) were preferred: by defendant No.10, by the plaintiffs, and by defendants No.1 and 2 respectively.

On appeal the District Judge (i) in appeal No.167 found the mortgage alleged over field No.331 not proved and disallowed a right to redeem; and (ii) in appeals 175 and 176 held that the plaintiffs' claim was barred as to fields 761, 762 and 331 but not as to the house and the other fields, also holding that neither the house nor the fields were sold for a necessary purpose. The District Judge decreed the plaintiffs possession of fields Nos. 219, 233 and 237, awarded Rs.381 instead of possession of the house, and disallowed recovery of the other fields. The plaintiffs and defendants 1 and 3 then appealed to the High Court.

Legal Issues Presented

Whether the plaintiffs' claim was barred by the Statute of Limitations, and whether the plaintiffs' right of action fell under No. 142 of the Limitation Act of 1871.
Whether the conveyances executed by the widow, Bai Achrat, and her daughter, Bai Vakhat, were valid under Hindu law — in particular, whether their joint conveyance, or the widow's sole conveyance, could be set up as an indefeasible title against the heirs who succeeded on the death of the widow.
Whether the joining of the daughter (the then nearest apparent heir) in the deed made the sale absolute and beyond challenge by subsequent heirs.
Whether the field No. 331 was subject to a valid mortgage and, relatedly, whether long possession by defendant No.10 barred recovery.

Arguments of the Parties

Plaintiffs' Arguments (as advanced before the Court)

The plaintiffs contended that the daughter's joining in the conveyance made no difference because her interest at the time of sale was only a contingent remainder (contingent on surviving her mother), which never vested as she predeceased the widow.
They argued that the consent of the daughter (the next reversioner) was insufficient to validate a sale by the widow; such consent could at best be strong evidence of necessity but was rebuttable by contrary proof. Counsel relied on authorities and text‑book passages (e.g., Mayne) to show that all heirs seemingly interested should join to validate a sale.
The plaintiffs relied on the proposition that female succession under Hindu law is not regular succession and therefore the position of women entails special limitations on their power to alienate inherited immovable property.

Defendants' Arguments (as advanced before the Court)

Defendant No.1 alleged the suit was barred by limitation, asserted purchases from the widow and daughter on specified dates, and that he had spent money on the property; he also pleaded that plaintiffs knew of the sales and took no objection.
Defendant No.2 asserted purchase of the house from defendant No.1, expenditure on improvements, plaintiffs' knowledge and non‑objection, and cited section 8 of Act VIII of 1859 to challenge maintainability.
Defendants 3–9 asserted they had purchased various fields from defendant No.1; defendant No.10 asserted long possession of field No.331 and denied any title in the widow or daughter.
Counsel for the purchasers relied on a line of Calcutta High Court decisions (e.g., Collychund Dutt v. John Moore, Pratap Chunder Roy v. Shreemutty Joy, Gour Hurri Dutt v. Radha Gobind Shah, Raj Bulluth Sen v. Oomesh Chunder Rooz and Sham Soonduree v. Shurut Chunder Dutt) to contend that a conveyance by a widow joined by the next reversioner can create a complete and unassailable title against subsequent heirs.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Ram Shevuck Roy v. Sheo Govind Sahu	Held by Calcutta High Court that a Hindu widow takes with her husband's estate the power of alienation; a conveyance by her gives a good title subject to superior claims of the husband's heirs alive at her death.	Cited by the Subordinate Judge as authority that widow may have power to alienate; the High Court considered it among authorities but applied the broader rule about concurrence of heirs and the need to prove legal necessity where appropriate.
Madhvb Chunder Hajrah v. Gobind Chunder Banerji	Where sale by a widow on alleged necessity was attested by then next heirs, such attestation is not conclusive but is strong proof of good faith.	Noted as illustrating that attestation by interested parties is strong evidence but not conclusive; the Court treated such attestation as rebuttable evidence on the question of necessity.
Kali Mohun Deb Roy v. Dhananjoy Shah	Consent of then reversioner to a sale by a widow is strong presumption of necessity, rebuttable only by proof of fraud, collusion or absence of necessity.	Recognised as authority for the presumption created by reversioner consent; the Court observed the presumption is rebuttable and distinguished other cases where facts differed.
Jwalanath v. Kulu	Agra High Court held that where daughter colludes with widow in transfers of divided property, subsequent reversioners can maintain suit to set aside the transfer.	Adduced to support the proposition that collusive transfers joined in by a daughter may be open to challenge by heirs; Court cited it in that context.
Rajlakhi Debi v. Gokal Chundra Chowdhry (Privy Council)	Recital in a deed by a widow that alienation was necessary is not by itself evidence; attestation by relatives does not import concurrence; transaction may become valid by consent of husband's kindred, but such kindred must be those likely to be interested in disputing the transaction and concurrence must suffice to raise a presumption that the transaction was fair and justified by Hindu law.	The Court treated this Privy Council ruling as laying down the controlling principle as to which members of kindred must concur to render a widow's alienation indefeasible; applied it to hold that the plaintiffs (heirs presumptive) were entitled to dispute the sale.
Gour Hurri Dutt v. Radha Gobind Shah	Division Bench of Calcutta held that a reversionary interest may be sold in execution of a decree.	The Court noted this Division Bench ruling but preferred to follow a later Full Bench decision of the same Court (Ramchandra Tantra Das v. Dharmo Narayan Chuckerbutty) where the Full Bench held otherwise; accordingly the Division Bench decision was not followed.
Mohunt Kishen Geer v. Busgeet Roy	Division Bench held that a Hindu widow in possession and the apparent next taker, by joining in one conveyance, can make a complete title.	The Court distinguished the facts of that case from the present matter (noting that in that reported case the claimant claimed through the reversioner who joined) and therefore did not treat it as controlling here.
Ramchandra Tantra Das v. Dharmo Narayan Chuckerbutty (Full Bench)	Full Bench of Calcutta held that an heir expectant's interest (expectant on death of a widow in possession) is a mere contingency and not property, and thus not liable to attachment and sale under section 205 of Act VIII of 1859.	The Court gave precedence to the Full Bench ruling over a conflicting Division Bench decision (Gour Hurri Dutt) and relied on that hierarchy in assessing arguments about reversionary interests and their alienability.
Vijidrangam v. Lakahuman (High Court of Bombay)	Held that as to stridhan acquired by inheritance (immovable property), a woman's power of alienation must be limited.	The Court accepted this line of reasoning as supporting the proposition that the daughter (Bai Vakhat) was not capable of giving an absolute consent that would validate the sale.
Gunga Pershad Kur v. Shumbhoonath Burmun	Authority cited on the irregularity of female succession under Hindu law and the differing rationale from male succession.	Referred to by plaintiffs' counsel and noted by the Court in support of the argument that female succession and alienation rights are subject to limitations.
Collychund Dutt v. John Moore	Case where reversioners joined the widow and the alienation by her was held valid; heirs of the reversioner were held bound by her act.	Relied upon by defendant counsel to argue validity of the conveyances; the Court considered it but found that its facts and the broader authorities required a different conclusion in the present case.
Pratap Chunder Roy v. Shreemutty Joy	Relinquishment by a widow in favour of reversioners; relinquishment in favour of second reversioners held valid if made with consent of first reversioners.	Placed before the Court by defendant counsel as supporting the validity of transfers made with consent; the Court referenced it as part of the line of authority advanced for validation.
Raj Bulluth Sen v. Oomesh Chunder Rooz	Calcutta Court case holding that a grant by a Hindu widow made with consent of the next reversioner was valid and created a title not impeachable on widow's death.	Cited by defendant counsel; the Court noted this authority among those asserting that consent of the next reversioner can validate a sale, but applied Privy Council guidance on who must concur.
Sham Soonduree v. Shurut Chunder Dutt	Authority affirming that a grant by a widow with consent of next reversioner could be valid.	Used by defendant counsel as part of the supporting line of cases; the Court reviewed this line but reached its conclusion based on the need for concurrence of those likely to be interested.
Cossinath Bysak v. Hurroosondree Dossee (Privy Council)	Privy Council held that consent of heirs will render valid an alienation by a widow under circumstances otherwise unjustified.	The Court recognised this Privy Council holding as establishing the broad principle that consent of heirs can validate a widow's alienation; it then examined which heirs' consent is necessary following later Privy Council guidance.
Raj Lukbee Dabea v. Gokool Chunder Chowdhry (Privy Council)	Privy Council laid down that the "kindred" whose consent can validate such a transaction must generally be those likely to be interested in disputing it; there should be such concurrence as suffices to raise a presumption the transaction was fair and justified by Hindu law.	The Court treated this decision as laying down the principle to determine whose concurrence is required. It applied that principle to hold that the plaintiffs, as heirs presumptive and persons likely to be interested in disputing the sale, could challenge the alienation despite the daughter's assent.

Court's Reasoning and Analysis

The High Court proceeded in two interconnected strands: limitation and the substantive validity of the conveyances under Hindu law.

On limitation: The Court observed that the right of action claimed by the plaintiffs, as persons entitled by inheritance to possession on the death of the widow, fell squarely under No. 142 of the Limitation Act of 1871 (the statute to be applied). For that reason the Court considered the lower Court wrong in concluding any part of the plaintiffs' claim was barred. Separately, the Court noted that the plaintiffs did not appeal against the District Judge's factual finding in appeal No.167 concerning the alleged mortgage on field No.331; that factual finding was non‑appealable and, in any event, without a proved mortgage the long possession of defendant No.10 barred recovery of that particular field.

On the substantive question of the validity of the sale by the widow and the daughter, the Court analysed whether the joining of Bai Vakhat (the daughter and then nearest apparent heir) could render the conveyance indefeasible as against the persons who became entitled on the widow's death. The Court emphasised two points drawn from the authorities:

It is established that consent of heirs can render valid an alienation by a widow which would otherwise not be justified; and
The crucial question is who are the heirs whose consent suffices — the Privy Council had explained that those "kindred" must generally be all those likely to be interested in disputing the transaction, and there should be such concurrence as suffices to raise a presumption the transaction was fair and justified by Hindu law.

Applying those principles, the Court found that Bai Vakhat's interest at the time of sale was contingent on her surviving her mother, a contingency that did not realize because she predeceased the widow. Her joinder, therefore, could at best evidence the concurrence of the then nearest apparent heir but could not by itself supply the concurrence of all persons likely to be interested in disputing the transaction. The plaintiffs, being heirs presumptive at the time of the sale and thus clearly persons likely to be interested in disputing it, were entitled to challenge the sale. The Court also accepted the subsidiary submission (drawing on Bombay High Court authority) that a woman's power of alienation in inherited immovable property is limited, reinforcing the view that the daughter's consent could not be treated as conclusively validating the sale.

The High Court concluded that the Court below was wrong to hold any part of the plaintiffs' claim barred (except as to field No.331 for the reasons above), and that the conveyances could not be sustained as valid without proof of legal necessity. On the house, while the widow alone had conveyed, the Court held plaintiffs were entitled to the house subject to recoupment to defendant No.2 of the moneys actually expended by him in rebuilding the house. On costs and execution the Court specified directions to be implemented in execution of the decree.

Holding and Implications

Core ruling: The High Court varied the decree of the Court below and directed that the plaintiffs be put into possession of all the fields except field No. 331, and be put into possession of the house upon payment to defendant No. 2 of the moneys actually expended by him in rebuilding it. The Court ordered that the first and other defendants (except defendant No.10) pay the plaintiffs' costs throughout, and that the plaintiffs pay defendant No.10 the costs of the second appeal. The Court concluded with the formal words: "Decree accordingly." (i.e., the decree was varied in the manner stated).

Implications:

Direct effect on the parties: Plaintiffs obtain possession of all fields except No.331 and obtain the house subject to payment to defendant No.2 of actual rebuilding expenditure; defendant No.10 keeps field No.331 as the mortgage/factual situation and long possession prevented recovery; costs were apportioned as above.
The Court applied established Privy Council authority to determine which members of the husband's kindred must concur to render a widow's alienation indefeasible, thereby affirming that mere concurrence of the nearest apparent heir (especially where that heir's interest was contingent) may be insufficient to validate a sale against other heirs who are likely to be interested in disputing it. The judgment did not purport to create a new general rule beyond application of those authorities to the facts before it.

This summary is confined to the content and reasoning contained in the provided opinion and does not add or infer facts beyond that text.

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Varjivan Rangji v. Ghelji Gokaldas

Sargent, J.:— The plaintiff's in the suit are the grandsons of the second cousins of one Narotam Shevakram, who died leaving a widow, Bai Achrat, and a daughter, Bai Vakhat. Bai Achrat died on the 17th June, 1865, having survived her daughter. The object of the suit is to recover possession from the defendants of one house and six fields, survey Nos. 219, 233, 237, 331, 761, and 762.

The first defendant contended by his written statement—

1. That the suit was barred by the Statute of Limitations.

2. That the fields were sold to him by the widow, Bai Achrat, and her daughter for a necessary purpose on Poush Sud 12 of Samvat, 1916, and that he thus bacame the lawful owner of them.

3. That the house was sold to him by the widow, Bai Achrat, for a necessary purpose on Poush Sud 1st, Samvat, 1921.

4. That the plaintiffs, though aware of the fact of the sales to him, took no objection to the same.

5. That he had spent Rs. 624-11-31/3 on the property,

Defendant No. 2 by his written statement states—

1. That he purchased the house from the first defendant on 13th Poush Sud, 1923, and has spent Rs. 1,400 on improving it.

2. That plaintiffs had full knowledge of his purchase and of the improvements, and never objected.

3. That the suit could not be maintained under section 8 of Act VIII of 1859.

The defendants 3, 4, 5, 6, 7, 8, and 9 by their joint written statements state—

1. That defendants 3 and 4 purchased the fields Nos. 233 and 237 from defendant No. 1.

2. That defendants 5, 6, and 9, and defendants 7 and 8 purchased fields 761 and 762 from first defendants in equal shares.

Lastly, defendant No. 10 says that field 331 has been in his possession for a very long time, and that neither the widow or daughter had any right to it. The Subordinate Judge decreed possession of all the fields to plaintiffs on the payment, as regards field 331, of Rs. 51 to defendant No. 10 due on a mortgage created by Narotam, and also ordered that they should be paid Rs. 381 by defendants 1 and 2 for the house. Against this decree three several appeals—Nos. 167, 175, 176 of 1878—were preferred by the defendant No. 10, the plaintiffs and defendants Nos. 1 and 2 respectively. In appeal 167 the District Judge found that it was not proved that Narotam, through whom the plaintiffs claim, mortgaged field No. 331 to defendant 10, and he disallowed their right to redeem.

In Appeals 175 and 176 the District Judge found—

1. That the claim was barred as regards fields 761, 762, 331, but not as regards the house and the other fields.

2. That the house and fields were not sold for a necessary purpose to the first defendant.

3. That the plaintiffs are the grandsons of the second cousins of Narotam Shevakram and decreed possessions to be given up to the plaintiffs of fields 219, 233, 237; but that plaintiffs should recover Rs. 381 from first or second defendant instead of the house. From this decree in Appeals Nos. 175 and 176 the plaintiffs and defendants 1 and 3 now appeal.

[The judgment then proceeds as follows to dispose of the point of limitation raised by the plaintiffs:—]

At the hearing the plaintiffs claimed the right to appeal against the decision of the Court below in Appeal 167. Two objections, however, are fatal to this claim. In the first place, they have not filed an appeal against that decision; but, in any case, the finding of the Court below, respecting the mortgage, was on a question of fact, and, therefore, not apealable; and there being no mortgage, the right to recover field No. 331 was clearly barred by the long possession defendant No. 10 had enjoyed of the field. Passing to the other fields in question it is not in dispute that they, together with field No. 331, already disposed of, were sold to the first defendant by the widow, and conveyed to him by an instrument bearing date 12th Poush Sud, 1912, to which both the widow and her daughter were conveying parties. The present suit is brought by the plaintiffs, as the persons entitled by inheritance to the possession of the lands on the death of the widow, to recover the fields. And their right of action, as such, clearly, thorefore, falls under No. 142 of the Limitation Act of 1871, which is admittedly the Act to be applied. The Court below was, therefore, in our opinion, wrong in holding that any part of the plaintiffs' claim was barred.

But the main point argued before the High Court, and upon which the judgment proceeded, was whether the conveyance by the widow, Achrat, and her daughter were valid by the Hindu law. Upon this point the Subordinate Judge made the following observations:—

“I now come to the second ground of the plaintiff's objection to the deed of sale, namely, that the fact of Bai Vakhat being a party to that deed does not alter the character of the transaction, and that it does not do away with the obligation on the defendant No. 1 to prove that Bai Achrat was under a legal necessity to sell the property, and that the sale was a bona-fide one.

“In Ram Shevuck Roy v. Sheo Govind Sahu it was held by the Calcutta High Court that a Hindu widow takes with her husband's estate the power of alienation; and conveyance made by her gives a good title, liable only to the superior claim of such of her husband's heirs as may be alive at the time of her death; and, in a case where certain landed property in the possession of a Hindu widow was sold on the alleged ground of necessity, and the execution of the deed of purchase was attested by the then next heirs, it was held by the said High Court that the assent implied in such attestation was not conclusive in law as to the necessity for the sale, though the fact of persons most interested in contesting such a sale being called in to execute the deed is the strongest possible proof of good faith on the part of the purchaser (Madhvb Chunder Hajrah v. Gobind Chunder Banerji(2)); and in the case of Kali Mohun Deb Roy v. Dhananjoy Shah it was ruled that the consent of the then reversioner to a sale by a Hindu widow, though not binding evidence on the present heir, is strong presumption of the existence of necessity at the time of sale, to be rebutted only by proof of fraud and collusion, or of the absence of necessity(3). In Jwalanath v. Kulu(4) the Agra High Court held that where a daughter was colluding with the widow in making transfer of divided property, the plaintiffs, the next reversioners after the daughter, were competent to maintain the suit to have the transfer declared null and void; and in the case of Rajlakhi Debi v. Gokal Chundra Chowdhry(5) the Judicial Committee of the Privy Council ruled that a recital in a deed of sale, by a Hindu widow, of her deceased husband's property, setting forth that the alienation was necessary for the purpose of paying his debts, is not of itself evidence of such necessity; nor does the attestation of a relative import his concurrence. Such a transaction may become valid by the consent of the husband's 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 ought to be such a concurrence of the members of the family as suffices to raise a presumption that the transaction was a fair one, and justified by Hindu law. From the above rulings it may well, I think, be laid down that a sale by a Hindu widow, though assented to by the reversioner, who predeceased the widow, may, for want of proof of legal necessity for the same, be set aside at the instance of the heir of her husband who succeeds her on her death, and that the fact of the then reversioner assenting to the sale can only be considered as a piece of evidence to prove the necessity, but liable to be rebutted by stronger evidence on the other side.

“It is argued by Mr. Desaibhai, on behalf of the defendant No. 1, that Bai Vakhat, the then reversioner, having been joined by Achrat in the conveyance, it becomes absolute, and cannot be questioned by the person who succeeds the widow on her death; and in support of his argument he relies upon the rulings of the Calcutta High Court in Gour Hurri Dutt v. Radha Gobind Shah and in Mohunt Kishen Geer v. Busgeet Roy.

“In Gour Hurri Dutt v. Radha Gobind Shah it was ruled, by a Division Bench of the Calcutta High Court, that a reversionary interest may be sold in execution of a decree; but a Full Bench of the same High Court has ruled, in Ramchandra Tantra Das v. Dharmo Narayan Chuckerbutty, that the interest of an heir expectant on the death of a widow in possession is such a mere contingency that it cannot be regarded as property, and, therefore, is not liable to attachment and sale under section 205 of Act VIII of 1859. There being thus a Full-Bench ruling of the same High Court, the decision of a Division Bench of that High Court cannot be followed.

“In Mohunt Kishen Geer v. Busgeet Roy it was held, by a Division Bench of the Calcutta High Court, that a Hindu widow in possession and the apparent next taker, by joining in one conveyance, can make a complete title; but the facts, as reported, do not seem to me similar to those of this case. In the case referred to, the suit was brought by a person claiming through the reversioner, who was a party to the conveyance; it was, therefore, unjust and inequitable to hold that a representative of the reversioner was at liberty to contest the validity of the purchase by a stranger who took all possible precaution in purchasing the property. Again, the ruling of the same High Court in Kali Mohan Deb Roy v. Dhananjoy Shah does not seem to have been overruled in deciding the case of Mohunt Kishen Geer v. Busgeet Roy. It must, therefore, I think, be distinguished from the present case.

“It is urged, on behalf of the plaintiffs, that, even if it be supposed that the consent, by the then reversioner, to a sale, by a Hindu widow, of moveable property makes the sale absolute, Bai Vakhat was not capable of giving such a consent, and he relies upon the ruling of the High Court of Bombay in Vijidrangam v. Lakahuman, wherein it has been held that as to stridhan acquired by inheritance (so far as it consists of immoveable property) a woman's power of alienation must be limited. I think this argument is good. If a woman, who has inherited the immoveable property of her father, cannot alienate at her mere caprice, there are equally strong, if not stronger, reasons for holding that she cannot, at her mere caprice, give an absolute consent to the sale, by her mother, of immoveable property of her husband.

“Under the above considerations I hold that the fact of Bai Vakhat being a party to the deed of sale does not alter the nature of the transaction, and that the said deed of sale cannot be held valid without proof of necessity.”

In appeal to the District Judge he held, as has been stated in the part of the High Court's judgment given above, that the plaintiff's claim was barred as to three of the six fields, and that neither the house nor any of the fields was sold under legal necessity; and he decreed that the plaintiffs should recover possession of fields Nos. 219, 233, and 237, but not of the others, and that, as regards the house, he should recover from the first and second defendants Rs. 381.

Nanabhai Haridas (Government Pleader) for the original plaintiffs.—The main question involved in these appeals is whether the widow Achrat made valid alienations. The fields were conveyed by her and her daughter, Vakhat; the house was conveyed: by her alone. I submit that this fact of the daughter joining with her mother makes no difference, for she possessed only what, in the English law, would be called a contingent remainder which by her death before her mother never became vested in her. In the case of Mohunt Kishen Geer v. Busgeet Roy it was, no doubt, held that a Hindu widow in possession and the next apparent taker, by joining in one conveyance, could make a complete title, but that was a case in which the claimant claimed through the reversioners. Here the plaintiffs claim adversely to the nearest reversioners. On the point of the consent of heirs which, under certain circumstances, validates a sale by a widow, I would draw attention to the remarks at page 568 of Mayne's Hindu Law, and the authorities cited there. They show that all the heirs seemingly interested must join in giving the consent. The position of a woman is, under the Hindu law, one of dependence; and the consent of a daughter, albeit she is the next reversioner and heir, is insufficient to validate her mother's alienation. As the Subordinate Judge has held, it can be, at best, but strong evidence to prove that legal necessity existed for the alienation, and it is liable to be rebutted by stronger evidence to the contrary. The succession of females, according to the Hindu law, is not regular succession. The theory of spiritual benefit to the manes of the ancestor, upon which the succession of males is based, has no application to the case of female succession: Gunga Pershad Kur v. Shumbhoonath Burmun.

The following authorities were also referred to:—

West and Buhler, 120; 2 MacNacghten's Hindu Law, 309; Cunningham's Digest of Hindu Law, 128; 2 Norton's Leading Cases, 626.

Gokaldas Kahandas for defendant No. 1, Ghelji, and his vendee defendant No. 3, Bhagvandas.—I submit that the conveyance, by the widow and her daughter, as well as that by the former alone, is valid: Collychund Dutt v. John Moore. In that case, where the reversioners had joined the widow, the alienation by her was held to be valid, and the heirs of the reversioner were also held to be bound by her act. Pratap Chunder Roy v. Shreemutty Joy was a case of relinquishment by a widow in possession in favour of reversioners; and it was further held there that a relinquishment in favour of second reversioners was also valid if made with the consent of the first reversioners. In the case of Gour Hurri Dutt v. Radha Gobind Shah the Court went so far as to hold that a reversionary interest could be sold in execution of a decree. Even so late as 1878 the Calcutta Court held in Raj Bulluth Sen v. Oomesh Chunder Rooz that a grant by a Hindu widow made with the consent of the next reversioner was valid, and created a title which could not be impeached, on the death of the widow, by the person who, but for such grant, would be entitled as heir of her husband. That affirmed the railing in Sham Soonduree v. Shurut Chunder Dutt. I, therefore, submit that the sales, both of the house and fields, were good, and the original as well as the subsequent vendee acquired good title.

Shantdram Narayan, for the vendee of the house, relied on the authorities cited by Mr. Gokaldas.

Pandurang Balibhadra for the original defendant No. 10.

The judgment of the High Court then proceeded to deal with the above point.

Sargent, J.:— Passing to the merits of the case, as the Court below has found that the sale of the fields was not for a necessary purpose, the validity of the first defendant's title under the conveyance of 12th Poush Sud, 1912, and that of the eight defendants claiming through him, depends upon the question whether the widow and daughter of Narotam Shevakram could convey an indefeasible title as against the persons who (the daughter having died before her mother) became entitled to the property as the next heirs of Narotam on the death of the widow. As Bai Vakhat's interest in the fields at the time of the sale was contingent on her surviving her mother, which she failed to do, her joining in the conveyance could (if at all) only operate to give validity to it as importing the concurrence of the then nearest apparent heir of Narotam to the alienation in question.

Now, it may be taken as well established that the consent of heirs will, render valid an alienation by a widow under circumstances which would otherwise not justify it. It was so held by the Privy Council as far back as the case of Cossinath Bysak v. Hurroosondree Dossee; but the question, who are the heirs whose consent will thus render the alienation indefeasible, has led to much conflict of decision. The principle, however, upon which that question is to be answered has, we apprehend, been laid down by the Privy Council in the case of Raj Lukbee Dabea v. Gokool Chunder Chowdhry. Their Lordships say: “They do not mean to impugn the authorities, &c., which lay down that a transaction of this kind may become valid by the consent of the husband's kindred, but the kindred in such cases 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 a fair one, and one justified by Hindu law.” 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 a justifiable one. On both these grounds, we think, the plaintiffs are entitled to succeed. With respect to the house, the plaintiffs are clearly entitled to it on recouping the second defendant what has been actually expended by him in rebuilding it. The decree must, therefore, be varied by directing that the plaintiffs be put into possession of all the fields, except No. 331, and also of the house on payment, by plaintiffs to second defendant, of the moneys actually expended by him in rebuilding it, the same to be determined in execution of the decree, and by directing that the first and other defendants (excepting the tenth defendant, Abheram Nathuram,) do pay plaintiffs their costs throughout. Plaintiffs to pay to defendant No. 10 the costs of the second appeal.

Decree accordingly.

Varjivan Rangji v. Ghelji Gokaldas

Judgment Summary — Sargent, J.

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Plaintiffs' Arguments (as advanced before the Court)

Defendants' Arguments (as advanced before the Court)

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Varjivan Rangji v. Ghelji Gokaldas

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