Patna High Court
Babu Hitendra Singha And Ors. vs Maharajahdihraj Sir Rameshwar Singh ... on 27 January, 1925
Equivalent citations: 88IND. CAS.141
JUDGMENT
1. This appeal has been referred to me under Section 98, of the C.P.C. for determination upon the two points of law upon which the learned Judges before whom the appeal came originally have differed in opinion. See 87 Ind. Cas. 849-[Ed.]
2. The points as formulated in the judgment of Mr. Justice Das are: first whether the present suit is maintainable by the plaintiffs, and whether it is barred by limitation, and secondly, whether on the interpretation of the heba-bil-ewaz, the fullest rights of ownership including the power to alienate the property were conveyed by Babu Durga Dutt Singh to his Wife.
3. The facts are fully recorded in the judgment of Mr. Justice Das and it is unnecessary to repeat them.
4. The argument before me was mainly directed towards the second point, and it will be convenient to deal with it first. It was conceded at the outset by Sir Benode Mitter who appeared on behalf of the appellants that if the heba-bil-ewaz passed all rights of ownership to the grantee the suit is not maintainable. Again it is not disputed that the instrument of 1876 conveves an estate of inheritance which would, after the death of the grantee, devolve upon her own heirs and not upon those of her husband as in the case of property inherited by a Hindu widow from, her husband. It is further conceded that if the grantee had been made a male or even a female under any personal disability there is nothing in the Hindu Law which would exclude the right of alienation incident to a grant of an estate of inheritance.
5. It is contended, however, that in determining the intentions of the grantor it must be taken that Durga Dutt Singh was well aware that a Hindu wife governed by the Mithila Law could not alienate immoveable property, the gift of her husband, and that presumbly his intention would be to transfer only such powers as the ordinary law recognized, and even if he erroneously supposed that the grantee might alienate the property with iris consent, this can make no difference in the present case if in fact, as now found, his consent did not validate the transaction.
6. The proposition contended for is stated in the judgment of the Judicial Committee in Moulvie Mohamed Shumsool Hooda v. Shewukram 22 W.R. 409 : 14 B.L.R. 226 : 2 I.A. 7 : 3 Sar. P.C.J. 405 : 3 Suth. P.C.J. 43 (P.C.) in these words: "In construing the Will of a Hindu, it is not improper to take into consideration what are known to be the ordinary notions and wishes of Hindus with respect to the devolution of property of Hindus. It may be assumed that a Hindu generally desires that an estate, especially an ancestral estate, shall be retained in his family; and it may be assumed that a Hindu knows that, as a general rule, at all events, women do not take absolute estates of inheritance which they are enabled to alienate." Bearing that in mind and having regard to all the expressions in the Will which must be taken together, their Lordships held in that case that the testator's intention was to grant to his deceased son's wife a life interest only with remainder to her two daughters who were also mentioned in the Will as heirs and maliks. This principle was again recognized by the Judicial Committee in Radha Prasad Mullick v. Ranee Mani Dassee 35 C. 896 : 10 Bom. L.R. 604 : 12 C.W.N. 729 : 18 M.L.J. 287 : 5 A.L.J. 460 : 8 C.L.J. 48 (P.C.). There is no doubt that the principle is one which must be given due weight. In both the cases cited, there were, however, indications in the Will itself that an interest for life only was intended to be given to the daughters with remainder over to other persons named. 80 clearly was this intention expressed in the later case that notwithstanding the provisions of Section 82 of the Indian Succession Act of 1865 which was applicable under Section 2 of the Hindu Wills Act of 1870 to the case in question, their Lordships were satisfied that only a restricted interest was intended to pass.
7. A somewhat similar principle is sometime expressed by saying that the law of the place where the contract is made is prima facie that which the parties intended or ought to be presumed to have adopted as the footing upon which they dealt and that such law ought, therefore, to prevail in the absence of circumstances indicating a different intention: see Lloyd v. Guibert 6 M.I.A 52 at p. 550 : Ind. Jur. (N.S.) 37 : 4 (sic) 228 : Suth. P.C.J. (sic).
8. But after all the intention is primarily to be gathered from the words of the instrument itself and the application of this and similar doctrines although they must be given due weight must not be allowed to overrule the clear indications of intention to be gathered from the words of the document. Perhaps it may not be out of place to repeat here what was said by Lord Justice Turner in delivering the judgment of the Judicial Committee in Sreemutty Soorjeemoney Dassee v. Denobundoo Mullick (1866) 1 Q.B. 115 at p. 122 : 6 B. & S. 100 : 35 L.J. Q.B.74 : 13 L.T. 602. The case was one of the construction of Will, "in determining that construction" said the learned Lord Justice "what we must look to, is the intention of the testator. The Hindu Law, no less than the English Law, points to the intention as the element by which we are to be guided in determining the effect of a testamentary disposition; ~nor so tar as we are aware, is there any difference between the one law and the other as to the materials from which the intention is be collected. Primarily the words of the Will are to be considered. They convey the expression of the testator's wishes but the meaning to be attached to them way be affected by surrounding circumstances and where this, is the case those circumstances no doubt must be regarded Amongst the circumstances thus to be regarded, is the aw of the country under which the wills made and its dispositionsarg to be carried out It that law has attached to particular words' a particular meaning, or to a particular disposition a particular effect, it must be is sumed that the testator, in the dispositions which he has made, had regard to that meaning or to that effect, unless the language of the Will or the surrounding circumstances displace that assumption.
9. In applying these principles to testamentary and other forms of gift, the Courts of India appear to have inclined from time to time towards two extremes, one view being that a gift of an estate of inheritance to Hindu wife did not pass the right of alienation except when conferred by express words the other that such a gift T gave the right of alienation except when expressly excluded.
10. I think it may be "gathered from the decisions of the Judicial Committee that neither of these views quit correctly of presses the proper rule of construction in such cases. In Surajmani v. Rabi Nath 25 A. 351 : A.W.N. (1903) 66 the High Court at Allahabad following earlier decisions of the same Court had a that under the Hindu Law testamentary gift of immoveable property by a husband to his wife although made in terms creating an heritable estate did not confer upon her any power of alienation unless such power was given by express words in the instrument. The High Court considered that in the absence of such express power it must be presumed that as regard I power of alienation the testator intended that she should be under the same restrictions as the Hindu Law imposes upon a widow in the case of property inherited from her husband. On appeal to His Majesty in Council their Lordships overruled the decision and held that where full proprietary rights are clearly grander over the property this conferred the power of alienation unless there was something in the context or the surrounding circumstances showing a different intention, and the fact that the donee was a woman was not in that case sufficient in itself to impute a different intention: see Surajmani v. Rabi Nath Ojha 35 I.A. 17 : 30 A. 84 : 5 A.L.J. 67 : 12 C.W.N. 231 : 18 M.L.J. 7 : 10 Bom. L.R. 59 : 7 C.L.J. 131 : 3 M.L.T. 144 (P.C.). It is important to remember that that case, although it applied to a Will made after the year 1870, did not come within the operation of Section 2 of the Hindu Wills Act of that year and Section 82 of the Indian Succession Act had, therefore, no application. In that case also the decision of Mitter, J., in Kollany Koer v. Luchmee Pershad 24 W.R. 395 was cited with approval. The High Court at Madras on the other hand appears in more recent decisions to have inclined towards the opposite extreme. In Ramachandra Rao v. Ramachandra Rao 52 Ind. Cas. 94 ; 42 M. 283 : 36 M.L.J. 306, a case of a testamentaiy gift to a Hindu wife, it was held by Seshagiri Ayyar, J., that the earlier decisions of the same High Court in Bhujanga Ram v. Ramayamma 7 M. 387 : 8 Ind. Jur. 238 : 2 Ind. Dec. (N.S.) 853 and Nunnu Meah v. Krishnasami 14 M. 274 : 5 Ind. Dec. (N.S.) 102, must be deemed to have been overruled by the decision of the Judicial Committee in Surajmani's case 35 I.A. 17 : 30 A. 84 : 5 A.L.J. 67 : 12 C.W.N. 231 : 18 M.L.J. 7 : 10 Bom. L.R. 59 : 7 C.L.J. 131 : 3 M.L.T. 144 (P.C.), and that unless there is an express or implied qualification to the contrary the donor must be deemed to have conveyed all that he was possessed of in the property granted, including the power of alienation. The words of the grant in that case were: "Out of the remaining property my adopted son shall be entitled to enjoy one half of the property. Out of the remaining half my two wives shall take half-and-half". I do not wish to be understood either as questioning the propriety of that decision or expressing concurrence with it, I merely wish to point out that on appeal to the Judicial Committee where the decision was overruled upon another point, their Lordships, although it was not necessary for them to determine the effect of the deed of gift, at the same time thought, expedient to issue a note of warning as some misapprehension appeared to them to exist in the High Courts in India as to the effect of certain decisions of the Board and notably that of Surajmani v. Rabi Nath Ojha 35 I.A. 17 : 30 A. 84 : 5 A.L.J. 67 : 12 C.W.N. 231 : 18 M.L.J. 7 : 10 Bom. L.R. 59 : 7 C.L.J. 131 : 3 M.L.T. 144 (P.C.). Lord Buckmaster in delivering the judgment of the Judicial Committee says: "In the case referred to, Surajmani's case 35 I.A. 17 : 30 A. 84 : 5 A.L.J. 67 : 12 C.W.N. 231 : 18 M.L.J. 7 : 10 Bom. L.R. 59 : 7 C.L.J. 131 : 3 M.L.T. 144 (P.C.), when originally heard before the High Court, it had been stated that under the Hindi Law in the case of a gift of immoveable, property to a Hindu widow, she had no power to, alienate unless such power was expressly conferred. The decision of this Board did no more than establish that that proposition was not accurate, and that it was possible by the use of words of sufficient amplitude to convey in the terms of the gift itself the fullest rights of ownership, including, of course, the power to alienate, which the High Court had thought required to be added by express declaration. In that case it is true some comparison is drawn between the gift to a widow and the gift to a person not under disability, but that was not the foundation of the decision, which depended entirely upon the wide meaning to attributed the words in which the gift to the widow was clothed. More recent decisions of this Board in Sasiman Chowdhurain v. Shib Narayan Chowdhury 66 Ind. Cas. 193 ; 26 C.W.N. 425 : 15 L.W. 434 : 42 M.L.J. 492 : 30 M.L.T. 242 : 20 A.L.J. 362 ; 35 C.L.J. 427 ; 24 Bom. L.R. 576 ?: (1922) M.W.N. 368 : 49 I.A. 25 : (1922) A.I.R. (P.C.) 63 : 1 Pat. 365 : 3 P.L.T. 133 (P.C.) and Bhaidas Shivdas v. Bai Gulab 65 Ind. Cas. 947 : 26 C.W.N. 129 : 15 L.W. 412 : 20 A.L.J. 289 : 42 M.L.J. 385 : 49 I.A. 1 : 35 C.L.J. 314 : 24 Bom. L.R. 551 : 46 B. 153 : (1922) A.I.R. (P.C.) 193 (P.C.) do, nothing but repeat this same proposition in other words." See Ramachardra Rao v. Ramachandra Rao 67 Ind. Cas. 408 : 49 I.A. 129 : 30 M.L.T. 154 : 26 C.W.N. 713 : 45 M. 320 : 35 C.L.J. 545 : 16 L.W. 1 : (1922) M.W.N. 359 : (1922) A.I.R. (P.C.) 80 : 20 A.L.J. 684 : 43 (sic) (P.C.).
11. The effect of these decisions appears to me be that there is nothing in the Hindu Law which prohibits a woman, whether wife or window, from acquiring an absolute estate in property including the power of alienation. If words of grant are used importing the transfer of full proprietary rights, then effect must be given to them irrespective of the sex of the grantee. It may appear, however, from the context or from the surrounding circumstances that a limited power of disposal was intended to be conferred, even where an estate of inheritance is granted. Where ambiguity exists in the document itself or where the words are not of sufficient amplitude to confer full powers of alienation it is legitimate to assume that. the grantor had in mind the ordinary disability which the Hindu Law attaches to a woman's rights over property and this may (sic) considered in determining the intention (sic) where an estate of inheritance is (sic).
12. But where words are used which in their context express an intention of transferring full rights of ownership, it seems to me that the other principles of interpretation relied on are of minor importance and should not be allowed to restrict the natural meaning of the words.
13. Before considering the interpretation of the document, I desire to point out that I am bound by the findings already come to by the learned Judges who heard the appeal, in so far as they are agreed. I do not, therefore, propose to discuss the question whether under the Mithila Law as expounded in the Vivada Chintamani, the property was alienable during the husband's lifetime and with his consent. Whether the learned Judges were agreed that the heba-bil-ewaz was a gift or a sale is perhaps not altogether free from doubt. Mr. Justice Das held a clear view that the transaction was a gift. Mr. Justice Foster thought that it was rather an-act of gratitude than a sale for value and says: "In spite of its form it seems to me to be reasonable to regard this transfer of the Laheri property as in substance a gift (dattam) within the meaning of the Hindu Texts" but he adds "unless of course it is an absolute grant".
14. I have some difficulty in seeing how the nature of the transaction could depend upon whether it was an absolute or a restricted grant. I think what the learned Judge probably had in mind was that the ordinary Hindu Law would not prevail over absolute grant carrying a power of alienation, and not that the quality of the estate granted would affect the nature of the transaction. If full rights of ownership were transferred it would not matter whether the transfer was effected by gift or by sale. In either case the right of alienation would subsist. I think, however, I ought to assume that the learned Judges were agreed that the transaction was one of gift, and, whatever my own views on the subject may be, I must hold that on the terms of the reference I am precluded from he-opening the point. This question arose a argument in discussing the intention of he grantor in connect to with what may be called the surrounding circumstances. It was urged by Mr. Hasan Imam on behalf of the respondents that Durga Dutt Singh would never have transferred the property to his wife in the form of a heba-bil-eivas, which text book writers appear to agree carries with it, the incidents of a sale, if he really intended the Hindu Law restraining alienation in the case of a gift to a wife to apply. Mr. Justice Foster appears to accede to this argument, although, as I have stated, he eventually agreed that it was a gift. It was also argued that although it has now been decided that the instrument is one of gift it does not follow that Durga Dutt Singh took the same view some 50 years ago when he transferred the property to his' wife, and, therefore, the presumption which would arise in the case of a gift either disappears or is materially weakened.
15. In the same connection it was also argued on behalf of the respondents that in all the cases in which the principle enunciated in Shamsool Boodas case 22 W.R. 409 : 14 B.L.R. 226 : 2 I.A. 7 : 3 Sar. P.C.J. 405 : 3 Suth. P.C.J. 43 (P.C.), has been applied, the Hindu Law applicable was well-known and established, and knowledge thereof might well be imputed to the person making a disposition of his property, whereas in the present case it does not follow that the law now laid down after a critical examination of the texts was so universally acknowledged in 1876 as to carry any presumption that the grantor was then aware of it. It is argued that even if it be, clearly stated in the Vivada Chintamani, and it appears to be so; that a wife cannot at her pleasure alienate immoveable property given to her by her husband, the finding that she cannot do so even with his consent during his lifetime and in order to pay his creditors is arrived at rather as an inference drawn from the text of Bachaspati Misra than from any direct prohibition therein contained, and that there has hitherto been no decided case in which the Mithila Law. has been so expounded. The question then arises how far it would be safe in the present case to presume that Durga Dutt Singh in effecting the transfer was aware of the restraint on alienation imposed by the Mithila Law, as now expounded, upon a wife during her husband's life-time with his consent and for the purpose of satisfying his creditors. I am not sure that it would be safe to presume more than this, namely, that the grantor was aware that in the Mithila country a wife could not at pleasure dispose of the property given to her by her husband. Sir Binode Mitter contended that, even then, the husband's consent would not make the alienation valid if in fact the law prohibits it even with his consent. I quite agree but the question is not, for this purpose, What the law is, but how far it can be presumed that the grantor was aware of it and intended the transaction to be governed by it.
16. It was also argued by Mr. Hasan Imam for the respondents that the subsequent action of Durga Dutt Singh in joining in the mortgage transaction was in itself a strong indication that when he made the gift in 1876, he did not intend the property to be inalienable even with his consent. I think, however, it would be highly dangerous and hardly legitimate to interpret his intentions in 1876, by reference to his conduct 14 years later when the considerations which then influenced him may have been entirely different. He has not been charged and no question of estoppel by his conduct arises. I have referred to these matters somewhat fully out of respect to the learned Counsel who argued them at some length, but in the view I take of the meaning of the heba-bil-eivaz it is not necessary to determine how far the presumption of intention contended for by the appellants is affected by the considerations mentioned. I should be prepared to hold, if necessary, that there are circumstances present in this case which tend to weaken the presumption which, speaking generally, arises in such cases. I refer more particularly to the form in which the transfer took place and the fact that a substantial consideration passed from the donee to the donor as indications that Durga Dutt Singh may, after all, not have had in mind the restraint on alienation in the case of gifts to a wife when he transferred the property. I do not, however, wish to base my decision upon the strength or weakness of the presumption in the present case and it is unnecessary to discuss it further, for giving full weight to the principle enunciated in the cases already cited, there was, in my opinion, in the heba-bil-ewaz a clearly expressed intention to transfer full rights of ownership including the right of alienation.
17. The document begins by describing Durga Dutt Singh as the proprietor malik of the Laheri property, It then recites that a decree obtained against him by his creditor for Rs. 51,582 is in course of execution in the Court of the District Judge and that the property in suit and another' property of his have been advertised for, sale on the following day; that he has tried and failed to raise the money and as the sale will entail loss of both the milkiat properties, having taken the sum stated above from his wife, he makes heba-bil-ewaz to her of his share in Taluka Laheri "with trees fruit bearing and non fruit bearing and ahar and pokhar and reservoir and tank and kutcha and pucca wells and sair and salt sairs and houses occupied by tenants and all my zemindari rights which upto now have (or has) been in my possession without the co-partnership of anyone". It then recites that he has paid off the sum due under the decree and got the property released from sale and put the Musammat in possession and directs that by becoming possessed of the property she should spend the produce with sons 'generation after generation, and the declarant, his heirs and representatives shall have no concern in demanding the subject of the heba or the consideration money from the Musammat or her heirs and representatives. It is admitted that the words " with sons generation after generation" used in their context convey an estate inheritance. There is no restrain either express or implied, on alienation but on the contrary all the zemindari rights are transferred by the donor. The zemindar is the proprietor and the zemindari rights are proprietary rights. I cannot accept the view of my brother Das that the words " and all my zemindari rights add nothing to the words immediately preceding them or that they must be construed by reference to the ejttsdtm generis rule. The preceding words, as he truly observes, appear to be specific items of property but they are of a corporeal nature such as trees, wells, etc. whereas the zemindari rights are intangible 'or incorporeal and not of the same genus. I can hardly believe that such words would have been used had they been intended merely as descriptive of the preceding category. It would have been sufficient to say "and other things" or similar words if; that were the meaning. The learned? Judge appears, to have had a difficulty in holding that abstract rights could be the subject of gift or could, be possessed, I confess I do not share the difficulty. In connection with this point some discussion arose before me in argument as to the word which is rendered "have" in the expression "which up to now have been in my possession without the co-partnership of any one". Mr. Kasan Imam said the word in the original document which was translated by him in Court and taken down " by the learned Judge was "has" and not "have" and that either he had made a slip in dictating the translation or he had not been properly understood. I do not think the question is one of material importance; but to set the matter at rest I sent for the translator who originally translated document as it appears at page 7 of Part III of the record. It seems that in the original the word is "has" and as matter of syntax it must be governed by the earlier words "my share etc. in Taluka Laheri" and not to the zemindari rights and other matters mentioned. This reading would no doubt obviate the difficulty felt by Mr. Justice Das. It was further argued on behalf of the respondents that the reference to the heirs and representatives of the grantee indicated an intention to grant an alienable estate as the word "representatives" would include assigns who were not heirs. The word translated "representatives" is qaim-moqaimian which literally means "those who stand in another's place "and is correctly translated "representatives". I believe the word "representatives" when used in an English conveyance has a technical meaning and includes executors or administrators but not assigns. However, this may be, I am not aware that the word qaim-moqaimian is a term of art in such a document in India. But it is clear that the expression coming as it does in what amounts to a covenant for quiet enjoyment cannot add anything to the extent of the grant. It might possibly throw some light upon the earlier part of the document if there were any ambiguity; but even assuming that it includes "assigns" the use of such a word would not indicate an absolute power of alienation, for it is admitted that in certain events, such as legal necessity the grantee might alienate. I do not think any importance can be attached to the use of the word.
18. It was argued on behalf of the appellants that the words directing the grantee to spend the produce indicated that she was given the usufruct only. These wordsare coupled with the word " with sons generation after generation" which admittedly passed an estate, of inheritance. But it is not suggested that the sons who followed after would be in any way restrained from alienating the property. Moreover although the grantee was directed to spend or enjoy the produce the enjoyment was that of a person having full rights of ownership which were also conferred. Such words are not uncommonly used in India in conveyances which transfer an heritable and alienable estate. An instance will be found in the case of Lalit Mohun Singh Roy v. Chukkun Lal Roy 24 I.A. 76 : 24 C. 834 : 1 C.W.N. 387 : 7 Sar. P.C.J. 155 : 12 Ind. Dec. (N.S.) 1224. The words used there were "my nephew...becoming on my death my sthalabhishikta and becoming owner (malik) of all my estates and properties etc., shall...enjoy with son, grandson, and so on in succession the proceeds of my estate."
19. Lord Davey in delivering the judgment of the Board said: "Nor was it disputed that the words of gift to the appellant were such as to confer on him also an heritable and alienable estate. The words 'become owner (malik) of all my estates and properties' would, unless the context indicated a different meaning, be sufficient for that purpose even without the words "enjoy with son, grandson and so on in succession", which latter words are frequently used in Hindu Wills and have acquired the force of technical words conveying an heritable and alienable estate". So far as lam aware such words have never been interpreted as restricting the full rights of ownership conferred in an earlier part of the instrument of grant.
20. In my opinion the heba-bil-ewaz was intended to and did pass an heritable and alienable estate and the words used were of sufficient amplitude for that purpose.
21. If this view of the meaning of the document is accepted it is admitted that the suit is not maintainable. But as this case may go before a higher Tribunal I propose to express shortly my opinion on the question of maintainability and limitation on the assumption that an unrestricted power of alienation was not conferred.
22. The plaintiff who obtained possession of the property after their mother's death in 1901 and remained in possession until the 14th December 1908, when they were dispossessed by the Maharaja, would in the ordinary course have 12 years from that date in which to sue for recovery of possession under Article 142 of the Schedule to the Limitation Act. The suit was instituted in July 1918, within the period of limitation. But it is contended that they were barred by Section 47 of the C.P.C. as they ought to have raised the question of their mother's right to alienate when they were substituted in her place in the execution proceedings. As pointed out by Mr. Justice Das the application made by them to set aside the sale on the ground of irregularity under Section 311 of the old Code although purporting to be an application under Section 244 also, did not in fact raise any question coming under the latter section and did not cover the point now raised. In my opinion it-was not open to the appellants to raise the question in those proceedings. The Executing Court is bound to execute the decree and could not apart from fraud consider whether the decree ordering sale of the property was one which the Trial Court ought rightly to have passed. The representatives of the mortgagor could not successfully re-open the question which if it were open at all should have been urged before the Trial Court.
23. Next it was contended that the suit was barred by Section 11 of the C.P.C. It is pointed out that the appellants claim under their mother as her heirs. They are not reversioners taking as heirs of their father subject to the life interest in their mother, nor are they remainder men taking under their father's Will. Primarily, therefore, they would be bound by the acts of their predecessor-in-title as well as by any decree obtained against her. But in truth it can hardly be said that the mother in this case represented the estate for all purposes so as to bind those who succeeded her. Ex-hypothesi she had no power of alienation. In this respect her question is very like that of a Hindu widow taking by inheritance. She could no more bind the estate in the hands of the heirs by an alienation than a Hindu widow inheriting from her husband could bind the reversioners. She assumed a power which the law denied her. She could not transfer a good title to the mortgagee. If the mortgage was not binding upon the heirs, then as Long as their possession was not disturbed (hey could, I think, ignore it and treat it as non-existent. Being in possession they were under no obligation to assert their title by a declaratory suit or to sue for possession. Does it then make any difference that a mortgage-decree was passed in favour of the mortgagee. I think not. The mortgagor did not and could not in that suit plead her disability, she could not degroate from her grant, and the question was neither substantially or at all in issue within the, meaning of Section 11 of the C.P.C. nor could the inalienability be made a ground of defence in that suit within the meaning of Explanation IV of the section.
24. It is contended, however, that a decree against a Hindu widow can bind even the reversioners taking as heirs of her husband and a fortiori her own heirs must be bound. Katama Natchiar v. Raja of Shivagunga 9 M.I.A. 539 at p. 604 : 2 W.R.P.C. 31 : Suth. P.C.J. 520 : 2 Sar. P.C.J. 25 : 19 E.R. 843 and Risal Singh v. Balwant Singh 48 Ind. Cas. 553 : 45 I.A. 168 : 40 A. 593 : 28 C.L.J. 519 : 24 M.L.T. 361 : 9 L.W. 52 : 23 C.W.N. 326 : (1919) M.W.N. 155 : 36 M.L.J. 597 : 21 Bom. L.R. 551 (P.C.) were relied on in support of the argument. But in both those cases the question for decision had arisen and been determined in the previous suit to which the widow was a party and all the pleas available to the reversioners had been taken by her and after a fair trial had been determined against her.
25. In the present case I think the principle followed by their Lordships of the Judicial Committee in Bijoy Gopal Mukerji v. Krishna Mahishi Debi 34 C. 329 : 34 I.A. 87 : 5 C.L.J. 334 : 11 C.W.N. 424 : 9 Bom. L.R. 602 : 17 M.L.J. 154 : 2 M.L.T. 133 : 4 A.L.J. 329 (P.C.) is applicable. That case, it is true, was a case of alienation by lease by a Hindu widow followed by a suit by the reversioners after her death to recover the properly; but the ground of the decision was that the alienation was not binding on the reversioners who could, therefore, treat it as a nullity without first seeking the intervention of the Court to set it aside and I think the same principle is applicable to the heirs whom the alienation did not bind. Nor do I consider that the fact that a decree has been passed against the mortgagor in the present case can give the transaction any more binding force if the mortgagor's power of alienation was not in question before the Court which passed the decree.
26. I agree, however, that if contrary to the view just expressed, it is necessary to set aside the decree before the present suit is maintainable, the period within which the decree could be set aside has long since passed and the suit in that case could not proceed. In my opinion, however, on the assumption that the right of alienation did not exist the suit is maintainable and is not barred by limitation.
27. The result of my findings is that the suit fails and the appeal should be dismissed.
28. Let the matter be referred to the Bench who originally tried the appeal for final disposal on the question of costs.