KRUSHNA BEHERA Vs. FAKIR MAHAKUD

JUDGEMENT

(1.) THIS appeal raises a novel point of law, namely, whether the consent of a female reversioner to an alienation made by a limited owner is presumptive proof of legal necessity for the same.

(2.) THE short facts are that Bidu, father of defendant 1 and Raghu, father -in -law of defendant 2, were brothers. Raghu died leaving him surviving his widow, Indu, and his son Hadi. Hadi died in the year 1940, leaving his widow Sarada, defendant 2. Defendant 2 and her mother -in -law Indu jointly executed a deed of saJe in favour of the plaintiff -appellant on 22 -7 -1942 conveying three and odd acres of land for Rs. 200/ -/ -. The plaintiff's possession was disturbed by the first defendant and hence the suit (out of which the present appeal arises) was filed for confirmation of possession or recovery of possession in the alternative. Defendant 1 pleaded that he and Hadi were joint and that on Hadi's death he succeeded by right of survivorship. He disputed the genuineness and validity of the sale in favour of the plaintiff and challenged it as a collusive and fraudulent transaction. The courts below found that Raghu and Bidu were divided and that the estate of Hadi had vested in his widow, Sarada (defendant 2) after his death. On the question of the validity of the alienation they found that it was supported by consideration only to the extent of Rs. 45/ -/ -. The plaintiff's prayer for declaration of his title and confirmation of possession was, in the circumstances, negatived by both the Courts below as the alienation in favour of the plaintiff was held not binding on defendant 1. The matter came up in second appeal to this Court and was heard, in the first instance, by Das C. J. and the point now argued before us was for the first time raised before him. It was contended before him that on the date of the alienation the mother -in -law (widow of Raghu) was the next presumptive reversioner and that since she had joined in the alienation she must be taken to have given her consent to the same which would, in law, raise a presumption in favour of the legal necessity for the alienation. The learned Chief Justice held that there was no authority for making a distinction between the consent of a male reversioner and that of a female reversioner, but as the point was not covered by any clear authority he referred the matter to a Division Bench. It has accordingly come up before us.

(3.) IT was pointed out by learned counsel that in all these cases the consenting reversioner was a male and that the cases can be distinguished on that ground. The argument is that if the next reversioner happens to be a female she would herself be entitled only to a limited estate and that her consent to the alienation will not raise the presumption of necessity which is permissible in the case of a male reversioner. It is necessary to discuss a few decided cases which apparently support this view.