To bind reversioners, a Hindu widow's alienation requires proof of legal necessity or the informed consent of the reversioners. Such consent must be established by positive evidence of an intelligent understanding and cannot be inferred from mere attestation or ambiguous acts.

Judgement

Consolidated Appeals from judgments and decrees of the High Court (March 11, 1909) affirming judgments and decrees of the Additional Subordinate Judge of Monghyr (June 22, 1906).

The consolidated suits were instituted by the respondents to recover their respective shares of certain lands as reversionary heirs of one Shyamal Singh, who died in 1842. On the death of Shyamal Singh, his widow Dulhin Nawab Kumari succeeded to the lands in suit for a Hindu widows estate. In 1877 she executed a mortgage of part of the property in favour of the first appellant Hari Kishen Bhagat, and in 1882 she executed in his favour a further mortgage, which covered the rest of the property. She also in 1889 executed in his favour a zarpeshgi patta (lease at a premium) of the whole property for eleven years. The mortgage of 1877 was attested by Raghubir Singh, the sole surviving brother of Shyamal Singh and at that time the next reversionary heir, also by Behari Singh, the son of one of Shyamal Singhs deceased brothers. The signature of the deed was made for the widow by Bajrung Sahai Singh, one of the respondents and the son of another deceased brother of Shyamal Singh; he also purchased the stamp paper upon which the deed was written. The mortgage of 1882 was attested by Bajrung Sahai Singh and signed in the widows name by Behari Singh. It was not witnessed by Raghubir. The lease of 1889 was witnessed by a son of Raghubir, a son of Behari, and by Bajrung Singh. At all the dates referred to there appeared to have been in existence other nephews of Shyamal Singh besides those mentioned above.

In 1893 and 1897 the first appellant obtained decrees upon the two mortgages respectively, and having brought the mortgaged properties to sale he purchased them himself. The widow died in 1900.

In 1904 the respondent Bajrung Sahai Singh and the respondents Kashi Pershad Singh and Earn Pershad Singh (the sons of Raghubir) commenced the present suits to recover their shares in the properties. They claimed that the mortgages and lease were not executed upon legal necessity and that the interest of the appellant under the purchases determined upon the widows death. The appellant pleaded, inter alia, that there had been legal necessity for the transactions and that they had been entered into with the knowledge, approval, and consent of the then reversionary heirs of Shyamal Singh. At the trial the mortgagee (defendant) gave verbal evidence that the two mortgages were arranged with him by Raghubir, Bajrung, and Behari, and with regard to that of 1877 he alleged that he told them that he would not make the loan unless they consented to the transaction.

The Additional Subordinate Judge heard the suits together. He held that upon their true construction the mortgages bound only the widows limited interest, and that it was only that interest which had been sold under the decrees. He also held that there was no such legal and. valid necessity as would bind the reversionary heirs and that the attestations by the reversioners were not intended as recognitions that more than the widows estate was bound. He accordingly made decrees in the plaintiffs (appellants) favour.

The High Court (Doss and Richardson JJ.) affirmed these decrees. It was held, inter alia, that no legal or valid necessity for the mortgages had been established, and that the attestation of the then reversionary heir to the mortgage of 1877 did not amount to consent, but that even if it could be taken as proving that he consented, that consent was not by itself sufficient to establish legal necessity, and that it was of no avail as corroborative evidence of necessity since there was no other evidence upon which any reliance could be placed. The learned judges also drew a distinction between a mortgage and a conveyance, holding that it was only in the case of the latter that the consent of the then next reversioner made the transaction binding upon the reversioners generally.

Dunne, for the appellant