Parbati Kuer vs Baijnath Prasad Narain Singh and Another

Mohammad Noor, J.—The suit out of which this appeal arises relates to the properties of one Raghubans Narayan Singh who died in 1886, without any son, and was succeeded by his two-widows, Deo Murat Kuer and Birita Kuer. Deo Murat Kuer had two daughters, Bhagwat Kuer and Asturan Kuer, both being issueless. Birita Kuer had no issue. Mt. Deo Murat Kuer is dead, but. Birita Kuer is still alive. It is an admitted fact that the two widows came to some arrangement by which each took separate possession of a moiety of the estate of their husband with an understanding that each would have an absolute right unfettered by the other in the share which she got. In other words, instead of having a joint estate, they held, it in severalty. According to the plaintiffs there was also an oral agreement between them that the One would riot claim the right of survivorship in that portion of the estate which was held by the other. It seems that before her death Deo Murat Kuer, by a deed of gift, dated 19th April 1901, made a gift of some, if not of all the properties which she was in possession of, to her second daughter Asturan Kuer. This, as it appears, was done with the consent of the other daughter Mt. Bhagwat Kuer who was herself very rich through her husband. In this way Asturan Kuer came in possession of at least some of the properties of her father which were being separately held by her mother Deo Murat Kuer. Deo Murat died in 1916, and her co-widow does not seem to have claimed any of the properties in her possession on the ground of survivorship.

If there was any property which was not covered by the deed of gift, it was taken by her daughter Asturan Kuer. Asturan Kuer died on 16th December 1928, and a few days before her death, namely, on 12th December 1928, she executed a deed of absolute sale in respect of certain properties in favour of the appellant Dulhin Parbati Kuer. According to the plaintiffs this deed was for the benefit of her husband, defendant 1 Kumar Raghbe Surendra Sahi. This deed is the subject-matter of the present litigation. The plaintiffs, who are the two grandsons of Brij Bihari Singh, a brother of Brij Lal Singh, the father of Raghubans Narayan Singh, have instituted the present suit for recovery of possession of the properties covered by the deed of sale on the ground that they appertain to the estate of Kaghubans Narayan Singh and that they (plaintiffs) succeeded to them on the death of Asturan Kuer as the next reversioners of Raghubans Narayan Singh. They have characterised the deed of sale as fabricated, illegal and void. The plaintiffs'' case is that as by virtue of the mutual arrangement between the two widows of Raghubans Narayan Singh each gave up the right of survivorship in the share held by the other, on the death of one her share was to be dealt with as if the other did not "exist and therefore on the death of Deo Murat Kuer her daughter, Asturan Kuer, continued in possession of her properties as an heiress of her father, the other daughter Bhagwat Kuer raising no objection. They claim that in respect of that property succession opened on the death of Asturan Kuer and that the plaintiffs as the next heirs to Raghubans Narayan Singh have succeeded to those properties. They, therefore, seek possession of them by setting aside the deed of absolute sale executed by Asturan Kuer. They pray in the alternative that if for any reason the Court be of opinion that possession could not be decreed to them on account of Birita Kuer being alive, then it be declared that the deed of absolute sale, dated 12th December 1918, executed by Asturan Kuer in favour of defendant 2, was illegal and void and was ineffectual against the reversionary heirs to the estate of Raghubans Narayan Singh and a declaratory decree to that effect be passed. The learned Subordinate Judge has decreed the suit, holding that on the death of Asturan Kuer the plaintiffs were entitled to the immediate possession of that part of the estate of Raghubans Narayan Singh which was being held by one of his widows Deo Murat Kuer. He has held the deed of sale to be genuine and executed for love and affection, that no cash consideration passed and that it was in fact a deed of gift. The claim for mesne profits prior to institution of the suit was dismissed on the ground that the plaintiffs did not claim any specific sum. Defendant 2 has preferred this appeal. There is a cross-objection on behalf of the plaintiff-respondents which is directed against the finding of the learned Subordinate Judge that the deed of absolute sale was a genuine document and against the dismissal of the claim for mesne profits for the period prior to institution of the suit.

Only two points have been urged before us in appeal. One is that the plaintiffs are not entitled to immediate possession of any portion of the estate of Raghubans Narayan Singh, as one of the widows, Birita Kuer, is sitll living, and that the succession to the estate of Raghubans Narayan Singh has not opened. The only decree which the plaintiffs can get is a declaration that the deed of absolute sale would not be binding upon the reversioners of Raghubans Narayan Singh when the succession opens. The second point is that a portion of one of the villages in suit, namely, three annas 11 gandas 2 kauris 2 karants of Khosepur, tauzi No. 11374/6 was not a part of the estate of Raghubans Narayan Singh and was the personal property of Asturan Kuer and the plaintiffs are not entitled "to any relief in respect of it.

It is contended on behalf of the appellant that an arrangement between, the two widows to hold the estate of their husband in severalty will not, on the death of one, allow the heir of the husband to get possession of the properties held by her as long as the other widow lives. The only effect, even of surrender of the right of survivorship by the other, will ''be that the alienations of one cannot on her death be questioned by the other and the alienee will hold the properties till the other dies or, if one dies without alienation, her share will go to her heirs as if it was her stridhan and the heirs will hold it till the other widow died. The heirs of the husband cannot claim the properties of one as long as the other widow is alive.

Mr. Mullick relies upon the case of Kailash Chandra v. Kashi Chandra (1897) 24 Cal 339. The facts of the case, were that one Radhakrishna Chuckerbutty died, leaving a widow and three daughters Subhadra, Bishakha and Ganganeshwari. Subhadra was married to defendant 1. The widow and the three daughters remained joint with Radhakrishna''s brother who refused to part with the share of his deceased brother in favour of the three daughters. Later on the widow died; Bishakha, the plaintiffs'' mother, sued Kali Shankar for her share in her father''s lands, making the two daughters defendants. The suit was compromised. Each of the sisters got a third share in the lands that Kali Shankar gave up. Subhadra, who was in possession of one third, died without issue. Bishakha also died, and Ganganeswhari became a child less widow. The plaintiff, who was son of Bishakha, sued for possession of Subhadra''s share in the lands as heir of his maternal grandfather. Radhakrishna, defendant 1, who was husband of Subhadra, pleaded that, according to the terms of the compromise by which the three daughters got the lands, he was entitled to remain in possession of his wife''s share as it was her separate estate. The first Court gave the plaintiff a decree, but on appeal the lower appellate Court reversed that decree, holding that Hindu joint tenants such as widows or daughters, were incompetent to convert, by mere acts of their own, joint, estate into estates held in severalty, and that Ganganeshwari was consequently entitled to hold Subhadra''s share. In second appeal the High Court (Banerjee and Rampini, JJ.) held that the lower appellate Court was wrong in holding that under the Hindu Law of the Bengal school (it is conceded that in this respect there is no difference between the Bengal school and the Mitakshara) when several daughters take a joint estate, they are incompetent to convert that joint estate into estates in severalty. But on the question of succession to the property left by Subhadra, their Lordships said as follows:

How far they (that is the sisters) were competent to do so (that is to convert a joint estate into estates in severalty) and how far this arrangement would entitle the plaintiffs to succeed in the present suit are questions which remain, to be considered. Whilst taking this view of the compromise, we must, on the other hand, say that it does not, in terms, amount to a relinquishment by each daughter of her right of survivorship, so as to make shares allotted to the other daughters pass on to the reversionary heirs on their death. The petitions of compromise nowhere say that; but on the contrary, they distinctly provide that, upon the death of each daughter the properties taken by her, if not alienated by her in her lifetime, should go to her son, grandson, etc., that is to the heirs of her separate property which must mean stridhan, though the word stridhan is not used in the petitions. That being so, can it be said that though the compromise does not in terms entitle the plaintiffs to claim the estate left by Subhadra still the effect of the Hindu Law, which is to prevent the compromise from taking effect to its fullest extent, is to accelerate the succession of the plaintiffs who are the ultimate reversionary heirs at the present date in regard to the properties left by the deceased daughter? We are of opinion that this question must be answered in the negative.

Their Lordships held that the share of Subhadra would go to her heirs as if it was her stridhan, and not to the next reversioners of her father, that is, the plaintiff. Mr. Manohar Lal, who appears on behalf of the respondents, has contended that this case was decided on its own facts and is based on the terms of the compromise, because in the petition of compromise under which the three daughters took the property there was no mention that each relinquished her right of survivorship in the other''s property. He contended that their Lordships by implication held that had there been in the petition of compromise any provision that the one relinquished her right of survivorship in the share of another, the position would have been quite different and the share would have gone to the reversioner of their father. I do not read in the judgment of their Lordships any such finding even by implication. They certainly laid stress upon the fact that the terms of the arrangement under which the three daughters took the estate did not allow the plaintiffs to come in. Relinquishment of right of survivorship also cannot accelerate the opening of succession as I shall presently show. The next case to be considered is Ammani Ammal v. Periaswami Udayan 1924 Mad 75. That was also a case of two daughters. There is, however, no difference between daughters and widows as both of them take a life estate. There the two daughters, governed by the Mitakshara school, divided their father''s properties absolutely with a right to sale, etc., and stipulated that neither of them would have any right over the properties set apart for the other. One of the daughters alienated some of the items which had fallen to her share. After her death the sons of the other daughters sued as heirs of their grandfather for recovery of possession of the share from the alienees. It was held:

(1) That the document of partition was relinquishment of survivorship of the one in the share of the other;

(2) that, as heirs of the alienor, the plaintiffs had no locus standi to challenge her alienation;

(3) that, as reversioners of the alienor''s father, the plaintiffs could not maintain a claim for possession during the lifetime of the other co-tenant for life;

(4) that the agreement between the co-tenants for life as to the enjoyment of the estate, to which the plaintiffs were not parties, could not have the effect of accelerating their right to possession.

Dealing with the nature of partition between the two daughters, Venkatasubba Rao, J., said:

According to the Mitakshara School two or more daughters succeeding as heirs to their father take as joint tenants with rights of survivorship. It is well settled that they may effect a partition each daughter giving up her right of enjoyment over the properties allotted to the other daughter during the lifetime of the latter. The question then arises: can an arrangement be entered into by which each daughter may give up her interest not merely during the lifetime of the other daughter, but during the whole of the lifetime? It is difficult to see why such an agreement cannot be entered into. A and B inheriting their father''s estate partition the property. B agreeing that in regard to the property that falls to A she gives up not only her interest for the lifetime of A but also for her own lifetime in the event of her surviving A. Why should such an agreement not be valid? If the arrangement amounted to a mere partition, the result is that B would give up her right in the property that fell to the share of A only for the lifetime of A and B''s right to take by survivorship, the share that fell to A would be unimpaired. But if, to an arrangement amounting to a partition was super added the surrender by B of her right to take by survivorship, the effect would be to dispose of the entire interest of B in favour of A. For convenience I have, in the illustration referred to B''s disposal of her interest. It makes no difference whether we consider the case from the standpoint of A or B. The act of the nature referred to above on the part of either of the co-sharers amounts to an alienation of her interest in the property falling to the share of the other. Such an alienation, is both on principle and authority perfectly valid" and binding.:

As was pointed out in Sadalal Ammal v. Gomati Ammal (1912) 16 IC 428, if it is not denied that one of the joint tenants may part with her own life interest in favour of a stranger, it becomes difficult to imagine, why she may not part with it in favour of the other-joint tenant. In the above case the question in regard to two co-widows was under consideration. But on this point there is no difference between the case of widows and daughters and the principle is equally applicable to the case-on hand.

His Lordship then referred to the case of Ramakkal v. Ramasaini Naicken (1899) 22 Mad 522, and observed:

Ramakkal v. Ramasaini Naicken (1899) 22 Mad 522 is a very useful authority in this connexion. A Hindu died leaving two widows who divided his property by a partition deed under which each took possession of her share with powers, of alienation over the property comprised in it. Certain alienations were made by one widow who subsequently died. On the surviving widow claiming the whole of her husband''s property, including the portion alienated, it was held that a widow could alienate for her life any estate which came to her as such and that she could, therefore, enter into such a deed as would preclude her from recovering during her life property which she-had alienated to the full extent of such alienation, provided it did not extend beyond her life-interest.

I the plaintiff''s contention be accepted, it will follow that on the death of Deo Murat Kuer, if there had been no daughter, succession would have opened to the estate of Raghubans Narayan Singh to the extent of her share. In that case her alienation, if any, would have been void as against the reversioner. This is, exactly against what was held in Ramakkal V. Ramasaini Naicken (1899) 22 Mad 522. Mr. Manohar Lal has relied upon a single Judge decision of the Madras High Court in Minakshi Ayi v. Subramanian Chettiar 1930 Mad 175, for the proposition that one of the co-widows may give up her right of survivorship and then she will have no interest in the property of the other cowidow on her death. In my opinion this proposition is well established, but it does not follow that if, on the death of one widow, the other widow does not take her share by survivorship, it will go to the next reversioner of their husband.

In the above case the alienee of one of the widows successfully resisted the claim of the other and got possession of the property on the basis of an alienation by the former. The learned Judge held that by one widow relinquishing her right of survivorship the other had an absolute right to make a transfer of her divided share and that this could not be questioned by the former. Mr. Manohar Lal contended that when one of two widows relinquished her right of survivorship in favour of the other, partial succession would open on the death of the latter and her share would go to the next reversioner of their husband. No authority for this was placed before us and it seems that this proposition, if accepted, will lead to anomalous results. It will follow that succession to a man''s estate may open in respect of different properties on different occasions. If there are several widows and a partition took place between them and each relinquished her right of survivorship in favour of others, succession will open on the death of each one of them and different reversioners may succeed to different properties at different times. The next reversioner at the time of the death of one widow may not be living when the other widow dies and other persons may be the next reversioners at that time. When we pointed this out to Mr. Manohar Lal he realized the inevitable result of his contention and argued that the next reversioner at the time of the death of one of the widows and his heirs will hold the property only till the last widow died, and then the entire property would go to the reversioner who is the next of kin at the time of the death of the last widow. This will mean that the heirs of a deceased male will take the property not as an absolute owner but for a temporary period and this will create an estate which is unknown in the Hindu Law. The reason for the succession of widows is based upon the fiction that the husband survives in the body of his wife. Brahaspati says:

of him whose wife is not deceased, half the body survives. How should another take the property while half the body of the owner lives.

As Mayne has pointed out, this metaphor may be faulty, as if the husband lives even the sons cannot succeed, but nevertheless the Hindu Law never contemplates that the heirs of the husband can come in and take the property as long as a single widow survives. The only way in which a widow or widows can accelerate succession is if she, or, if there are more than one, all of them efface themselves and absolutely surrender their life estate. The law in this respect has been very clearly laid down. The surrender must be of the entire estate, and not in favour of any particular individual. There must be their civil deaths before the reversioners of their husband can come in.

The result of the examination of the case-law on the subject seems to me to lay down the following proposition: If more than one female joint life tenants succeed to an estate, they may divide their life tenancy and hold portions of the estate separately if they like and this arrangement will continue till their life. In other words, they may convert the joint estate into estates held in severalty. One or more of them may relinquish her or their right of survivorship in that portion of the estate which is held by the other. In that case if one dies, the estate in her possession will not revert to the other who has relinquished but will go to her heirs as if it was her stridhan, and if she alienates any portion of the estate the alienee will continue in possession of the estate till the death of the last Survivor. The joint tenant who has surrendered her right of survivorship cannot question the succession or alienation. The inevitable result therefore is that succession will not open till the last survivor is dead. I am therefore of opinion that the plaintiffs have not succeeded to the estate of Raghubans Narayan Singh and they cannot succeed while Birita Kuer is alive, and that Mt. Asturan Kuer did not take the property as an heiress of her father but by virtue of the gift from her mother and if she succeeded to any property after her mother''s death, she did so as an heiress of her deceased mother, as in case of relinquishment of her right of survivorship by Birita Kuer, the share in possession of Deo Murat Kuer became, for all practical purposes, her stridhan to be inherited by her heirs who were entitled to hold it as long as Birita was alive.

The evidence of Birita Kuer having given up her right of survivorship is however, not very satisfactory and had the decision of the case rested upon the fact of surrender, I would have had no hesitation in holding that the relinquishment has not been proved. The story depends entirely upon the evidence of two witnesses which is to the effect that each widow orally gave up her right of survivorship in the share allotted to the other. No doubt, inference of such relinquishment can be drawn from the fact that on the death of Deo Murat Kuer, Birita Kuer did not interfere with Asturan''s possession of the property. Birita Kuer has been examined in this case. She says that she was contemplating a suit. This statement of hers is not satisfactory but it may be that she did not like to question the possession of Asturan Kuer out of love and affection for her and especially on account of the reason that Asturan was not looked after by her husband and had to fall back for her living on her mother and perhaps Birita Kuer did not like to deprive her of the means of her livelihood. On the whole, I am of opinion that the surrender of the right of survivorship by Birita Kuer has not been clearly established. The onus was upon the plaintiffs which they have not properly discharged. I do not, however, wish to pursue this matter further, as in my opinion, it makes no difference. I have come to the conclusion that in spite of the relinquishment of the right, of survivorship, the plaintiffs have not succeeded to the properties.

The next point urged by Mr. Manohar Lal was that assuming that the property of Raghubans Narayan Singh which came into the possession of Deo Murat Kuer, became her stridhan on her death it was inherited by Asturan Kuer for her life and then it fever bed to the next-of-kin of her father and in that view the plaintiffs had succeeded to the properties on Asturan Kuer''s death. In my opinion, this is not so according to the Hindu Law, because Birita Kuer is a sapinda of her husband, and on the death of Asturan Kuer, when the property reverted to the 5 next-of-kin (sapinda of her father), it; devolved upon Asturan Kuer (Birita Kuer): see Bai Kesserbai v. Hunsraj Morarji (1906) 30 Bom 431. Mr. Manohar Lal contended that the decision there was based upon Vyavahara Mayukha which, is of special application in Bombay But their Lordships of the Judicial Committee observed:

If the case rested on the Mitakshara alone their Lordships are of opinion that the appellant would be entitled to succeed.

Then their Lordships quoted a passage from the Mitakshara, Ch. 2, Section 11, Placita 8, 9 and 11, of which placitum 11 is of importance, which runs thus:

of a woman dying without issue as before stated and who had become a wife by any of the four modes of marriage denominated Brahma, etc. ... the (whole) property, as before described, belongs in the first place to her husband. On failure of him it goes to his nearest kinsmen (sapindas) allied by funeral oblations. But in the other forms of marriage, called Asura. etc. ... the property of a childless woman, goes to her parents, that is, to her father and mother.

Their Lordships then proceeded:

There can be no reasonable doubt that according to the Mitakshara definition of sapinda husband and wife are sapindas to each other.

I am therefore of opinion that Birita Kuer has succeeded to the stridhan property of her step-daughter Asturan Kuer. The result of my finding is that the plaintiffs are not entitled to a decree for possession. They are however entitled to a declaration that the deed of gift executed by Asturan Kuer in favour of defendant 2, Dulhin Parbati Kuer, so far as it relates to the estate of Raghubans Narayan Singh, will not be binding upon the, reversioners when the succession opens on the death of Birita Kuer. It is however contended on behalf of the respondents that at any rate the plaintiffs are entitled to immediate possession in respect of 8 gandas odd share of Khosepur, which has been separately mentioned in the plaint. The history of this share is that 1 anna 12 gandas odd share of this village belonging to the estate of Raghubans Narayan Singh was sold for arrears of cess and purchased by the plaintiffs. Birita Kuer, one of widows, and Asturan Kuer who had succeeded to the other widow Deo Murat Kuer, instituted a suit for recovery of that share. This suit ended in a compromise and the plaintiffs re conveyed half of the share sold, namely 16 gandas odd to Birita Kuer and Asturan Kuer jointly under a sale deed, dated 14th July 1921 (Ex. 1-J). The plaintiff, respondents contend that under the terms of this deed, which conveyed only a life estate to Birita and Asturan, they are entitled to get possession of half of the vended property, namely 8 gandas odd, which was the share of Asturan Kuer in the vended property.

The learned Subordinate Judge seems to have accepted this contention as he considered the point to have been conceded on behalf of the defendant-appellants. The defendants however appealed against the whole decree and they do not concede that under the terms of the deed, as it stands, the plaintiffs are entitled to get these 8 gandas on the death of Asturan Kuer. I am not in a position to say what was the statement made by the Advocate on the basis of which the learned Subordinate Judge thought that the point was conceded. No note of it has been taken. As a matter of fact that written statement did make no concession and asked the entire suit to be dismissed. I have gone through the deed and in my opinion the contention of the plaintiffs has no foundation. The deed created a joint estate in favour of the two ladies Birita Kuer and Asturan Kuer, and it cannot be construed to mean that on the death of each one of them her share, which in fact is not defined in the deed, would revert to the vendor. The plain meaning of the deed seems to be that it was for their joint lives, and in case of the death of one, the other will continue to hold it till her death. This seems to me to be the correct interpretation on account of the fact that what was sold was the right, title and interest of the ladies in the estate of Raghubans Narayan Singh. Nothing is sold in execution of a certificate sale except the fight, title and interest of the judgment-debtor. The ladies being the judgment-debtors, what, was sold was their right, title and interest and the same was reconveyed to them by this deed with the effect that they regained what was lost to them on account of the certificate sale. I am therefore of opinion that the plaintiffs are not entitled to a decree for possession even in respect of this 8 gandas odd share.

The next point urged in the appeal is that the plaintiffs are entitled to no relief, not even to a declaration, in respect of 3 annas 11 gandas 2 kawris and 2 karants, of village Khosepur, touzi No. 11374-6. It appears that this village belonged to Brij Lal Singh, (father of Raghubans Narayan Singh) and his brothers. Brij Lal Singh Jagannath Singh and Brij Bihari Singh (grandfather of the plaintiffs) had 4 annas 13 gandas 1 kauri and 1 ka, rant making up a total of 14 annas. Another brother Jain Singh had the remaining 2 annas. It appears that the family had to fight a case about the boundary of Khosepur and the entire expense of the litigation was borne by Raghubans. Narayan Singh and the three1 sons of Brij Behari Singh two of them being the fathers of plaintiffs 1 and 2, respectively, and they had to pay mesne profits, also. In consideration of this, under some, arrangement Jain Singh and Jagannath Singh gave up their respective shares in the village in favour of Raghubans Narayan and the sons of Brij Bihari Singh, and thus Raghubans Narayan Singh got 8 annas of the village and the other 8 annas became the property of the three sons of Brij Behari Singh. In consequence of this arrangement on the death of Raghubans Narayan Singh, the heirs of Jain Singh, who held 2 annas share of the village, executed a sale-deed of that share in favour of the two widows of Raghubans Narayan Singh and the fathers of plaintiffs 1 and 2 (Ex. 1.) The share of Jagannath Singh also remained in possession of Raghubans Narayan Singh and the sons of Brij Bihari, and after the death of the former his share came in possession of his two widows. All these facts are clearly mentioned in paras. 12 and 13 of the plaint showing that 8 annas of the village was the property of Raghubans Narayan Singh and therefore, on his death each of the widows got 4 annas of it. These facts are not specifically denied in the written statement of the defendants.

It is however said that by the sale deed (Ex. 1), dated 15th June 1893, which the heirs of Jain Singh executed in favour of the two widows, the consideration of which was some money due to Ragbubans Narayan Singh from Jain Singh, the widows got an absolute right in half of the share covered by the deed as the money belonged to them absolutely. Regarding the half share of Jagannath, which was in possession of Raghubans Narayan Singh it was urged on behalf of defendants that the widows came in possession of it by adverse possession and therefore got absolute right in it also. The fact that 8 annas'' of the village belonged to Raghubans Narayan Singh was not seriously disputed by the appellant before us, and I see no reason to differ from the finding of the learned Subordinate Judge in this respect." Mr. S.M. Mullick however urged that out of the four annas, which came to be possessed by Deo Murat Kuer, 3 annas 11 gandas odd was sold up and ceased to be the estate of Raghubans Narayan Singh. It was purchased by Asturan Kuer in her own rights and she was an absolute owner of it. Mr. Mullick relied upon two sale deeds, one from Sagar Mal, dated 4th March 1910 (Ex. B) which is for 3 annas 1 ganda odd, and the other from Ajodhya Prasad in favour of Ramgobind Pathak and Asturan Kuer, dated 19th April 1906 (Ex. C). Ramgobind was apparently benamidar for the other widow Birita Kuer.

I shall take up the second deed first. It seems that Ajodhya Prasad had purchased 1 anna share in execution of a certificate against Ram Prasad Narayan Singh and Kishundeo Narayan Singh for a sum of Rs. 40 and sold it for Rs. 68 to Asturan Kuer and Ramgobind. The fact seems to me to be that the property was sold in execution of a certificate against persons who had no interest in the property. Surajdeo was the son of Jain Singh who had already transferred his interest to the two widows and to the plaintiffs'' fathers. Therefore Ajodhya Prasad having realised his position sold the properties to those to whom they really belonged, Birita taking it in the name of Ramgovind and Deo Murat in the name of her daughter Asturan. The sale deed is of no effect, and when this was pointed out to Mr. Sushil Madhab Mullick he did not press his case in respect of this 10 gandas share. He however pressed it in respect of the remaining 3 annas 1 ganda odd share, claimed under a sale deed executed by Sagar Mal who had purchased it in execution sale under the following circumstances:

It appears that one Bishunpur Akha, etc., in Pargana Saresa in the District of Darbhanga, which belonged to the estate of Raghubans Narayan Singh and his cosharers, was sold for arrears of revenue and was purchased by one Sagar Mal. The two widows, along with other co-sharers of the village including Harihar Prasad Singh, father of plaintiff 1, and Kishori Saran Prasad Singh, plaintiff 2, instituted a suit for setting aside that sale. The suit was decreed by the first Court, but was dismissed with costs by the High Court on the ground that the illegality on which the sale was questioned was not mentioned in the grounds of appeal before the Commissioner. Sagar Mal got a decree for costs and mesne profits. In execution of that decree he got sold and purchased 6 annas 2 gandas odd share belonging to the two widows, the share of each widow being 3 annas 1 ganda odd, and then Sagar Mal sold half of the share, namely 3 annas odd: under Ex. B, dated 4th March 1910 to Asturan Kuer. Sagar Mal himself seems to have purchased the property on 22nd April 1902. It is contended on behalf of the appellant that by virtue of the sale in execution of the decree against the two widows the 6 annas odd share ceased to be a part of the estate of the deceased Raghubans Narayan Singh and that Asturan Kuer who purchased it got an absolute right in it Mr. Mullick has contended that even'' if it be assumed, of which there is no evidence, that the purchase by Asturan Kuer was benami for Deo Murat Kuer herself, she had an absolute right in that property which passed on her death to her daughter Asturan Kuer. This leads us to the consideration of the nature of the decree in execution of which the property was sold and purchased by Sagar Mal and the right which was acquired in it by Asturan Kuer or by Deo Murat Kuer if Asturan Kuer was a benamidau for her.

That there was a decree of Sagar Mal is admitted by the plaintiff in his plaint. From the plaint and the judgment of the High Court in the revenue sale case which are exhibits in the suit, it is clear that the two widows along with the father of one plaintiff and another plaintiff himself and other co sharers of the village had instituted a suit for setting aside a revenue sale of the family property and getting back its possession and that the suit though decreed by the trial Court was dismissed with costs by the High Court. The plaintiffs in their plaint say that Sagar Mal had a money decree in execution of which he purchased this property. There is nothing to show that there was any decree of Sagar Mal against the two widows other than the decree in connexion with the setting aside of the revenue sale. No doubt, the defendant has not been able to produce a copy of the sale certificate or of the execution proceeding as the record has been destroyed; but oral evidence has been given to show that Sagar Mal had a decree of about Rs. 14,000 against the two widows. The defendant''s witness No. 7 Sheodeni Pathak deposes as follows:

Raghubans Narain and the plaintiffs''s ancestors had properties in paragana Saraisa. It was sold for arrears of revenue and Sagar Mall and Unkar Mull purchased it. There was a suit by Harihar Prasad and the widows which they lost in High Court; Sagar Mal and Unkar Mull got a decree for Rs. 12,000 as costs and mesne profits on restitution. There was no other suit between the widows and Sagar Mal. Sagar Mal caused Khosepur to be sold and purchased it himself. He returned the shares to the respective maliks. Asturan Kuer also purchased. Bach purchased according to his respective share. Ajodhya Prasad also purchased share for arrears of embankment cess. Asturan Kuer and Ram Govind Pathak purchased the share half and half.

I leave aside the purchase of Ajodhya Prasad, which I have already dealt with. It is clear from the evidence of this witness on which there has been no cross-examination that the only decree of Sagar Mal against the two widows was for costs and mesne profits in respect of the property which was sold for the arrears of revenue and that it was in execution of that decree that Sagar Mal purchased 6 annas odd of Khosepur belonging to the two widows and then he reconveyed it to them according to their respective shares, the share of Deo Murat Kuer having been conveyed to Asturan Kuer. That the suit was a bona fide suit to get back a portion of the estate of Raghubans Narayan Singh, which was lost by virtue of the revenue sale, cannot be disputed. One of the plaintiffs of this suit and the father of another plaintiff were also the plaintiffs in that suit. The suit was fought up to the High Court. It is also clear that in execution of the decree for costs and mesne profits in respect of that property Sagar Mal caused Khosepur to be sold. Mr. Manohar Lal contended that there was nothing to show that what was sold was the estate of Raghubans Narayan Singh and not only the life interest of the two widows. In my opinion, what was sold in execution of that decree depends upon the nature of the decree itself Two questions therefore arise. One is, was the estate of Raghubans Narayan Singh in Khosepur sold in execution of the decree; or in other words, was the decree against the two widows a decree against them personally or a decree against them as representing the estate of Raghubans Narayan Singh, and the second is, did it become again a part of the estate of Raghubans Narayan Singh when Asturan Kuer or Deo Murat Kuer purchased it?

It is settled law that in carrying out litigation regarding the estate of her husband, a widow represents the estate and the decree obtained against her is binding upon the reversioners, provided that the litigation is honest and is fairly conducted. Mayne (Edn. 9, p. 950) referring to the position of a judgment obtained against a widow, says:

The rule of res judicata as indicated in Section 11, Civil P.C., is not strictly applicable to such cases, but the principle itself has been held to apply so as to bind reversioners by decision in litigation fairly and honestly conducted, given for or against Hindu females who represent the estate in such litigation. The question in each ca3e will be whether the estate was properly represented by her. She might have been labouring under a personal disability or an estoppel. But unless a decision itself was given on a ground personal to herself it will not any the least be binding on the reversioners.

In the case before us the widows along with their other co-sharers brought the suit ''to regain a portion of their husband''s estate which was lost on account of the revenue sale. It appears from the judgment of the High Court that she had a good ground to have the sale set aside but lost the suit on account of technical defect. In my opinion the decree obtained by Sagar Mal for costs and mesne profits was a decree?which could have been realised from the estate of Raghubans Narayan Singh. In Ramkishore Chuckerbutty v. Kallykanto Chuokerbutty (1881) 6 Cal 479, where a Hindu widow had instituted a suit to recover some property of her husband, which was dismissed with costs, it was held that as the widow did not seek to recover any interest personal to her and that she contracted the judgment-debt in the effort to recover her husband''s estate to which her husband''s heir would have succeeded the decree for costs was binding upon the estate of her husband and the decree-holders were on her death entitled to execute the decree against the legal representatives of her husband. In Braja Nath Pal v. Jogeswar Bagchi (1909) 1 IC 62, where a Hindu widow sought to set aside a sale of her husband''s property, and the plaint, for want of jurisdiction in the Court where the suit was instituted, was returned for presentation to proper Court, and costs were awarded against the widow, it was held that the costs could be realised from the estate of the husband, and, when the decree was executed and property sold, the sale was not only of the limited interest of the widow but of the entire estate.

In Lalji Sahaya Singh v. Kurki Jha (1909) 2 IC 654, where the widow had taken possession of property as a part of her husband''s estate and she was ejected therefrom, it was held that the decree for mesne profits was on the widow''s death binding on the reversioner. A similar view was taken in Dinomoni Chaudhrain v. Elahidad Khan 7 CWN 678. In Risal Singh v. Balwant Singh 1918 PC 87 the Judicial Committee of the Privy Council held that a decree against the widow in a suit in which she sought to set aside the adoption by her of a son on the ground that she had no authority from her husband was binding on the reversioner notwithstanding the personal estoppel which bound the widow. Mr. Manohar Lal, on the other hand, relied upon the case of Nafar Chandra Pal v. Kamini Kumar Lahiri (1912) 16 IC 205, where a widow did not give up possession of a darpatni after it was sold and a decree for mesne profits was passed against her. It was held that it was a personal decree for her tortious act, and not as representing the estate of her husband. This case, however, is not applicable to the present one. Here, the widow, when the sale was set aside by the trial Court, got back possession of the property under a decree which was set aside by the High Court. The property of which she took possession washer husband''s property. It cannot be said that in regaining under a decree of the Court possession of her husband''s property which was lost, she was committing any personal tortious act. Mr. Manohar Lal also relied upon the case of Roy Mukhan Lal v. Stewart (1872) 18 WR 121. That case also, in my opinion, has no application. There the question was whether a debt incurred by a widow for litigation to recover the property of her husband was on the widow''s death binding upon the reversioners of the husband. It was held that it was not. In the case before us the widow carried on litigation apparently, without incurring any debt, from the income of the estate. She was made liable for costs, and mesne profits. Under the circumstances I think she could not be personally liable for the mesne profits.

The next question for consideration is the effect of the sale of the property by Sagar Mal. If it was really purchased by Asturan Kuer herself no question arises. The property became her stridhan. Assuming, however, that the property was purchased not by Asturan Kuer but by Deo Murat Kuer herself and she took it in the name of her daughter, the question is whether it became the personal property of Deo Murat Kuer. It is settled law that the widow has got an absolute right over; the income of the estate, and if she acquires any property, from the saving of that income, it is optional with her either to keep the property separate from the estate or mix it up with it. The proposition seems to have been fully discussed by their Lordships of the Judicial Committee in the case of Ishri Dutt Kuer v. Hansbutti Koerain (1884) 10 Cal 324 and this proposition is not disputed. In this case if she purchased the property she did so in the name of her daughter thereby clearly indicating that she was going to keep it as a separate property. It cannot be argued that the widow Deo Murat Kuer got the property fraudulently sold and purchased it herself to make it her own personal property. The decree was a bona fide one and re-sale by Sagar Mal was about eight years after the auction-sale at which he had purchased. Perhaps Sagar Mal did not think it worth his while to keep the property.

Apart from this, in this particular case, it seems that a very large part of the consideration money payable to Sagar Mal was paid by mortgaging this very property. Asturan Kuer purchased the property from Sagar Mal on 4th March 1910 and mortgaged the share on 20th March 1910, Ex. B (1). In Sriram Jankiji Birajman Mandir v. Jagdamba Prasad 1921 All 11, a widow in possession of her husband''s estate acquired certain property through the exercise of the right of pre-emption. The price was paid by raising money by the mortgage of the pre-empted property. It was held that in the absence of evidence of a contrary intention of the widow the property did not form part of her husband''s estate. In Nirmala Sundari Devi v. Deva Narayan Das 1927 Cal 868, a female life estate-holder (mother) had purchased a property from the surplus income of the estate in the benami name of another. There it was held that the onus of proving that it was not treated by her as her separate property was upon him who alleged it to be so. In the case before us there is no evidence of such intention; rather the circumstances are against its being made a part of the estate. I am therefore of opinion that 3 annas 1 ganda was the personal property of Asturan Kuer as it had ceased to be the estate of Raghubans Mariryan Singh on account of the sale at which Sagar Mal purchased it; and even if it was purchased by Deo Murat Kuer, she did not include it in the estate and kept it separate and that it was inherited by Asturan Kuer. The result is that the appeal mainly succeeds and is partly allowed. The plaintiff''s suit in respect of the possession of the property and mesne profits will be dismissed. They will get a declaration that the deed of sale which the lower Court held to be a gift, dated 12th December 1928, executed by Babui Asturan Kuer in favour of defendant 2 will not be binding upon the reversionary heirs of Raghubans Narayan Singh, except in so far as it relates to 3 annas 1 ganda 2 kowris 2 karants of Khosepur out of 3 annas 11 gandas 2 kowris 2 karants, tauzi No. 11374-6. The plaintiffs'' suit in respect of this share will be entirely dismissed. The cross-appeal which relates to mesne profits is dismissed. Coming to the question of costs, though the plaintiffs have succeeded in obtaining a decree of declaration, the defendant has successfully resisted their claim for possession. Under the circumstances the parties should bear their own, costs in the lower Court. The appeal has however in the main succeeded and the appellant will get her costs in this Court, the respondents bearing their own costs.

Agarwala, J.

I agree.