Judgment

BOSE J.: These appeals arise out of two suits which were heard together along with two other suits with which, we are not now concerned. All four raised the same set of questions except for a few subsidiary matters. They were tried together and by common consent the documents and evidence in the various cases were treated as common to all. They were all governed by one common judgment, both in the first Court, and on appeal. The defendants appeal here.

2. The plaintiff, Mukand Ram, is common to all four cases. He sues in each suit as the reversioner to one Pandit Nanak Chand who was his maternal grandfather. The family tree is as below : The plaintiffs rights as reversioner accrued on Har Devi s death on 10-9-1919. But before this came certain alienations which the plaintiff challenges in the present suits. The suits were filed on 8-9-1931.

3. The plaintiff s case is that the properties in the four suits belonged to Nanak Chand who died on 23-7-1856 leaving a widow Mst. Pato and three daughters, Maha Devi, Durga Devi and Har Devi. On his death, his widow Mst. Pato succeeded. She died in January 1875 and the estate then went to the three daughters. Of them, Durga Devi died in 1888, Maha Devi in 1912 and Har Devi 1919.

4. In Civil Appeal No. 92 of 1950, the challenge is to a mortgage effected by Durga Devi on 3-3-1887 in favour of Sahu Bitthai Das. The mortgagee sued on his mortgage obtained a decree and in execution purchased the properties himself. The plaintiff s case is that Durga Devi only had a life estate and as there was no necessity, the mortgage and the subsequent auction purchase do not bind him.

5. In Civil Appeal No. 94 of 1950 there are two alienations, both sales. The first, dated, 23-9-1918, was by Pyare Lal (son of Durga Devi) in favour of Shyam Lal, son of Mulchand: (This is not the Shyam Lal who was Pyare Lal s brother). The vendee later sold the properties to the first and second defendants on 5-3-1927. One of the venderes, the first defendant, is still another Shyam Lal: Shyam Lal son of Harbilas.

6. The other sale was by Brij Lal s guardian on behalf of Brij Lal, Brij Lal then being a minor. It was on 25-11-1919 in favour of Chheda Lal. The first and second defendants pre-empted this sale after a fight in Court and took possession under the decree which they obtained.

7. The plaintiffs case is that Har Devi was alive at the date of the first sale and as the reversion had not opened out Pyare Lal had no power to sell. In the case of the second sale, the reversion had opened out but Brijlal being more remote than the plaintiff got no title, so that sale is also bad.

8. The defendants case is that the properties in these two suits (as also in the other two suits with which we are no longer concerned) did not belong to Nanak Chand and formed no part of his estate; they belonged exclusively to Mst Pato as part of her personal estate.

9. On 22-1-1864 Mst. Pato executed a document which she called a deed of agreement but which if it is anything at all, is a will. There are no other parties to it and she purports thereby to dispose of her properties after her death. The defendants in Civil Appeal No. 92 of 1950 have called it a will. After saying that she will remain in possession and occupation as long as she lives, Pato says that after her death her three daughters will be the owners and will either remain in joint possession or will divide the estate in equal shares and, in that event, will take possession of their respective shares and will be the "owners" of them

10. But before she died Pato made another disposition of her estate during her life time in the year 1875 which, of course, abrogated the will. This was done orally. The defendants say that this was a family arrangement in which each of the three daughters was given certain properties absolutely so that each became the absolute owner of whatever fell to her share. Pato also gave properties to each of her four grandsons who were then living, namely Kan