Allahabad High Court
Abdulla And Ors. vs Ram Lal And Ors. on 9 November, 1911
Equivalent citations: (1912)ILR 34ALL65
JUDGMENT Chamier J.. 1. Dudh Nath and his brother Bhola Nath each owned a nine pie share in a village. Bhola Nath died childless about 25 years ago, leaving a widow Phul Kunwar who took possession of his share. In 1898, Phul Kunwar transferred that share by deed of gift to her sister's son Dwarka Prasad. Dudh Nath joined in the deed. Dwarka Prasad ten years later sold the share to the appellants for Rs. 1,342. Dudh Nath died a few years ago and was succeeded by the respondents, who were his heirs. They brought this suit in 1909, praying for a declaration that the deed of gift of 1898 was not binding on them as the presumptive reversionary heirs of Bhola Nath. The Munsif dismissed the suit holding that Dudh Nath and Bhola Nath were joint in estate, consequently Phul Kunwar had no interest which she could transfer to her nephew. On appeal the Additional Judge held that Dudh Nath and Bhola Nath had separate interests--a finding which must be accepted by this Court in second appeal--and, following the decision of this Court in Bakhtawar v. Bhagwana (1910) I.L.R. 32 All. 176 that the deed of gift was not binding upon the respondents notwithstanding that Dudh Nath who was at the date of the deed the presumptive reversionary heir of his brother had joined in the gift. 2. The appellants rely upon the decision of their Lordships of the Privy Council in the case of Bajrangi Singh v. Manokarnika Bakhsh Singh (1907) I.L.R. 80 All. I.L.R. 35 I A. 1 as establishing the rule that a transfer of her husband's estate by a Hindu widow is binding on the person who becomes entitled to the estate on the death of the widow, if the person who is presumptive reversioner at the date of the transfer joins with the widow in making it, whatever the nature of the transfer may be. The respondents rely upon the decision of this Court in Bakhtawar v. Bhagwana (1910) I.L.R. 32 All. 176 where it was held that the decision of the Privy Council did not apply at all to the case of a gift by a widow. 3. In the case before their Lordships of the Privy Council there had been several sales of portions of her husband's estate by a Hindu widow, the alienations taken together amounting to the transfer of the whole estate. Their Lordships begin by referring to previous decisions of the Board in Collector of Masulipatam v. Cavaly Vencata Narrainapah (1861) 8 Moo. I.A. 529 and Raj Lukhee Dabea v. Gokool Chunder Chowdhry (1869) 13 Moo. I.A. 209 as establishing principle that an alienation by a Hindu widow which would not otherwise be legitimate may be validated by the consent of her husband's kindred, and they observe that upon the practical application of the general principle there had been much discussion in the High Courts in India. They disapprove of the view expressed by this Court in Ramphal Rai v. Tula Kuari (1883) I.L.R. 6 All. 116 that the consent of the person who was presumptive reversioner at the date of the alienation cannot make the alienation binding upon the person who turns out to be the actual reversioner at the widow's death. Next they refer to three decisions of the Calcutta and Madras High Courts in which the view taken was that as it was established law that a widow could surrender her estate to the next reversioner it followed that she could alienate it with his consent without any legal necessity. Lastly, their Lordships quote a decision of the Bombay High Court in which Jenkins, C.J., while disapproving the Calcutta view that the widow's interest was a life estate, the surrender of which to the next reversioner accelerated his estate, came to the conclusion that an alienation by a widow otherwise than for legal necessity may be validated by the consent of the reversioners, but the consent of the reversioners must be of such kindred, the absence of whose opposition raises a presumption that the alienation is a fair and proper one. After this review of the cases their Lordships say "the principle being thus admitted by the High Courts in India, the question of quantum of consent necessary only remains...They (their Lordships) agree with the High Court of Calcutta 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." 4. If their Lordships affirmed the correctness of the Calcutta view, we must hold that even a gift of the whole estate by a Hindu widow (the Calcutta High Court have always confined their rule to transfers of whole estates) is binding upon the actual reversioner, if made with the consent of the person who was presumptive reversioner at the date of the gift. If, on the other hand, their Lordships approved of the Bombay view, we should hold that the consent of the presumptive reversioner does not validate a gift, as in the present case, of the whole estate to a relation of the widow, for such consent cannot lead to the inference that the transfer was a fair and proper one. In the case of Pilu bin Appa Nalvade v. Babaji bin Naru Mang (1909) I.L.R. 34 Bom. 165 Scott, C.J. and Batchelor, J. held that the principle according to which a widow's alienation may be validated by the consent of the presumptive reversioner is ordinarily limited to transfers for consideration and cannot be extended to gifts where there is no room for the theory of legal necessity. They evidently considered that the decision of the Privy Council had not touched the previous Bombay rulings on the subject. 5. In Ramkrishna Kuppuswami v. Tripurabai (1911) 13 Bom. L.R. 940 Scott, C.J. and Rao, J. after referring to the decision of the Privy Council in Bajrangi Singh v. Manokarnika Bakhsh Singh (1907) I.L.R. 30 All. 1 held that the consent of the next reversioner was not always sufficient in every case to validate an alienation by the widow. This Court, as already stated, has held that the decision of the Privy Council in that case does not apply to a gift by a widow. 6. I am not satisfied that their Lordships of the Privy Council intended to accept the Calcutta view and reject the Bombay view. Had that been their intention, they would, I think, have expressed themselves in different language. It is to be noticed that in the case before their Lordships the presumptive reversioners, being in the fourth degree, and other reversioners in the fifth degree of relationship to the widow's husband had consented to the alienation. The appellants are described as claiming through two reversioners in the fifth degree (a view which it is difficult to reconcile with some other decisions). If the consent of all the reversioners in the fourth degree was sufficient, it is not clear why their Lordships referred at all to the consent given by the reversioners in the fifth degree. It is to be noticed also that the Judicial Commissioners had definitely rejected the Calcutta view, yet their Lordships did not say that they were wrong in so doing. They agreed with the Judicial Commissioners that the consent proved was sufficient. 7. On the whole, I think, that there is sufficient reason for holding that their Lordships' decision was not intended to reject the Bombay view which was the view taken by the Judicial Commissioners in the case before them. If the Bombay view is to prevail, it is clear that the consent given by Dudh Nath is of no value. He was an old man who had really no interest in the property and no prospect of succeeding to it. With or without such consent the gift to the widow's sister's son cannot by any process of reasoning be held to be a legitimate transaction. I would dismiss this appeal with costs. Karamat Husain, J.
8. I agree.