PILU APPA NALWADE Vs. BABAJI NARU MANG

JUDGEMENT

(1.) In this second appeal the facts are these. One Appa died in or about the year 1899 leaving two widows, Kondai and Chima, and a daughter by Chima, namely, the second defendant. The second defendant has a son, Narayan. In February 1903 the two widows made a deed of gift of four-fifths of their husband's property in favour of the second defendant, reserving the other fifth for their own maintenance. In October 1904 Kondai adopted the plaintiff, who is the son of Appa's separated nephew.

(2.) The question is whether the plaintiff is bound by the alienation made prior to his adoption. The gift was consented to by the defendant No. 2, the actual donee, and by her son, Narayan. The Court below have accepted this consent as a sufficient consent on behalf of the reversioners likely to be interested in disputing the gift, and upon this ground have dismissed plaintiff's suit. But we are of opinion that this ground cannot serve to sustain the decree.

(3.) The general principle which prohibits a Hindu widow's alienation of immovable property otherwise than for legal necessity is, no doubt, relaxed in cases where the consent of the whole body of persons constituting the next reversion has been obtained; see the judgment of the Judicial Committee in Bajrangi Singh v. Manokarnika Bakhsh Singh 9 Bom. L.R. 1348; 6 C.L.J. 766; 12 C.W.N. 74; 3 M.L.T. 1; 5 A.L.J. 1. which refers with approval to the decision of this Court in Vinayak Vithal V/s. Govind Venkatesh 2 Bom. L.R. 820. Now in Vinayak's case 2 Bom. L.R. 820 the reason of the relaxation, as the law has always been understood in this Presidency, is referred to this principle, that the consent of the persons who would be interested in disputing the transfer affords good evidence that the transfer was in fact made for justifying cause, that is, for legal necessity. If that is the reason of the rule, it is clear that its operation must ordinarily be limited to transfers for consideration, and cannot appropriately be extended to voluntary transfers by way of gift, where there is no room for the theory of legal necessity. We may add that we have been referred to no case where the Courts have applied the rule to a gift.