BAKHTAWA Vs. BHAGWANA

JUDGEMENT

(1.) The main question raised in this appeal is similar to that which was decided by a Pull Bench of this Court in the case of Ramphal Rai V/s. Tula Kuari 6 A. 116 (F.B.). It was in that case decided that a gift, by a Hindu widow, who succeeded to the separate estate of her deceased husband, of such estate, is not valid and does not create a title which cannot be impeached by the remoter reversioner because it has been made with the consent of the next reversioner. In the case before us, Musammat Kauli, who was the widow of one Kallu, made a gift of property, which belonged to her deceased son, Bhulan, in favour of the defendant, Bakhtawar, the son of Musammat Bharno, a cousin of Kallu. This gift was made with the consent of Jasram who is the nearest reversionary heir to Bhulan. The gift is impeached by the plaintiffs who are remoter reversioners.

(2.) It is contended before us that the ruling in Ramphal Rai V/s. Tula Kuari 6 A. 116 (F.B.) must be taken to have been overruled by the decision of their Lordships of the Privy Council in the case of Bhujrangi Singh V/s. Manokarnika Bahksh Singh 35 I.A. 1 : 30 A. 1 : 3 M.L.T. 1 (P.C) : 12 C.W.N. 74 : 9 Bom. L.R. 1348 : 6 C.L.J. 766 : 5 A.L.J. 1. In that case a Hindu widow, without legal necessity and without the consent of the reversionary heirs, executed deeds of sale of successive portions of her husband's estate to her son-in-law. Afterwards deeds of relinquishment for valuable consideration, ratifying the sale-deeds and agreeing1 not to dispute their validity, were executed by all the nearest reversionary heirs, being the only living reversioners in the line of the common ancestor of themselves and the deceased owner of the estate. It was held that the consent of these persons was sufficient and binding on their descendants and that it was immaterial that it was given after the execution of the sale-deeds. This was a case of sales and not a case of a gift and cannot be deemed, therefore, to govern the present case. In the course of their judgment their Lordships of the Privy Council criticise the judgment in Ramphal Rai V/s. Tula Kuari 6 A. 116 (F.B.) and rejected the rule laid down by this Court, namely, "that in order to validate an alienation by a Hindu widow of her deceased husband's estate for purposes other than those sanctioned by the Hindu law, it must have the consent of all those among his kindred who can reasonably be regarded as having an interest in questioning the transaction." They agreed with the High Court of Calcutta that "ordinarily the consent of the whole body of persons constituting the next reversion should be obtained, though there may be cases in which special circumstances may render the strict enforcement of this rule impossible." Applying that rule they held in agreement with the Judicial Commissioner that the consent to the sales of six reversionary heir s; there being no other reversionary heir living at the time of the transfers superior or equal in degree to those reversioners, was sufficient. In the judgment they expressed their unwillingness to extend a widow's power of alienation beyond its present limits. It does not appear to us that this decision of their Lordships can he treated as overruling the decision in Ramphal Rai V/s. Tula Kuari 6 A. 116 (F.B.), the transaction in which case was a gift, and not a sale for consideration. We think, therefore, that the Court below rightly decided this question.

(3.) It is further contended that the plaintiffs being remote reversionary heirs are not entitled to maintain a suit to have the gift made by Musammat Kauli questioned. There is no force, we think, in this contention. Jasram, the nearest reversionary heir, by consenting to the gift and concurring in the act, of Musammat Kauli, has precluded himself from disputing the validity of the impeached gift. Consequently the plaintiffs as next presumable reversioners would be entitled to sue. In the case of Rani Anand Kunwar V/s. The Court of Wards 8 C.L.R. 381 : 6 C. 764 : 8 I.A. 14, their Lordships of the Privy Council at page 772 observe: "it cannot be the law that any one who may have a possibility of succeeding on the death of the widow can maintain a suit of the present nature, for, if so, the right to sue would belong to every one in the line of succession, however, remote. The right to sue must in their Lordships opinion be limited. If the nearest reversionary heir refuses without sufficient cause to institute proceedings, or if he has precluded himself by his own act or conduct from suing, or has colluded with the widow or has concurred in the act alleged to be wrongful, the next presumable reversionary heir would be entitled to sue".