SHEO PARGASH OJHA Vs. KESHO PRASAD SINGH

JUDGEMENT

(1.) I have had the advantage of reading the judgment prepared by my brother Tudball and I fully agree with it. There is nothing which I may profitably add without repeating what he has said.

(2.) Having regard to the recent pronouncements of their Lordships of the Privy Council which my learned colleague has quoted at length, it must be held that a suit by a reversioner for setting aside an alienation made by a Hindu widow in possession is brought by him in a representative capacity, that is, as representing the whole body of reversioners, for the protection of the estate. A decree in such a suit is, there fore, binding, not only between the reversioner who brought the suit and the transferee, but also as between the whole body of reversioners on the one hand and the transferee or his representative in title on the other. This is so, not because one reversioner must in that case be deemed to claim through another, but because the reversioner who sues represents the others and Explanation VI of Section 11 of the Civil P. C. comes into operation. In the Full Bench case of Bhagwanta V/s. Sukhi (1899) I.L.R. 22 All. 33 all that was held was that one reversioner did not claim through another. There are, no doubt, certain observations of the learned Chief Justice in his judgment in that case which are favourable to the appellant, but they cannot be followed in view of the opinion recently expressed by their Lordships of the Privy Council, The whole question has been fully discussed by my learned colleague and all that I need say is that I agree with him. In these circumstances we must dissent from the decisions in which a contrary view has been held and must rule that it is not open to the appellant to dispute the correctness of the decision in the former case and to show that the mortgage made by the widow was for valid necessity.

(3.) Speaking for myself, I am inclined to hold that the sale which took place at the instance of Kishan Prasad was a sale of the rights and interests of the widow such as they were declared to be in the suit of the reversioners decreed before the sale. No doubt the property was described to be the share of the husband held by the widow, but as before the sale it was held, as between Kishan Prasad and the reversioners, that the mortgage by the lady could not enure beyond her life, and as the property was put up for sale in enforcement of the mortgage after the decree, the mortgagee must be deemed to have caused only the life-interest of the widow to be sold. If this view is correct, the interests acquired by the purchaser at the auction sale came to an end with the death of the window and the appellant has no longer any right in the property. From either point of view, there fore, the appeal must fail in regard to the zamindari property in dispute.