RAMES CHANDRA CHAKRABARTI Vs. SASI BHUSAS UPADHAY

JUDGEMENT

(1.) This is an appeal by the plaintiffs in a suit for recovery of possession of land with mesne profits upon declaration of title. The disputed property admittedly belonged to one Mahim Chandra Chakra barti, and upon his death, which took place on the 27th June 1892, passed to his widow Monmohini, who died on the 2?th October 1915. The plaintiffs are the four sons of Umesh Chandra Chakrabarti, the brother of Mahim Chandra Chakrabarti, who died in 1908, and they claim the estate of their uncle as reversionary heirs after the death of their aunt The defendant is the son of Annapurna, a sister of Mahim and Umesh, and claims title to the property by purchase under a conveyance executed on the 16th June 18y5 by Monmohini and Umesh. The Subordinate Judge has held that the plaintiffs have failed to prove that the conveyance does not operate against them and has dismissed the suit. On the present appeal, the substantial point for investigation is, whether the conveyance in favour of the defendant has passed to him a title operative against the plaintiffs as the reversionary heirs to the estate of their paternal uncle.

(2.) We may observe at the outset that the circumstance that the conveyance in favour of the defendant was executed jointly by the widow and the then next reversioner did not by itself create in his favour an indefeasible title. This is conclusively settled by the decision of the Full Bench in Debi Prosad Chowdhury v. Golap Bhagat 19 Ind. Cas. 273, 40 C. 721; 17 C. W. N. 701; 17 C. L, J. 499 (F. B.). where it was ruled that the transferee acquires a good title as against the actual reversionary heir, if the widow has alienated her entire interest in the estate inherited by her from her husband, with the consent of the whole body of persons entitled to succeed as immediate reversionary heirs: Gopeswar Misra v. Gopini Baishnabi 21 Ind. Cas. 200; 17 C. W. N. 1062; 19 C. L. J. 18. and Shyamadas Roy v. Radhika Prosad *. This view has now received the .47 Ind. Cas. 853: 22 C. W. N. 846; 29 C. L. J. 24,approval of the Judicial Committee in Eangasami Oounden v. Nachiappa Gounden (4)**. In the case before us, the conveyance covers a portion of the estate of Mahim Chandra inherited by his widow consequently, the defendant can successfully resist the claim, only on proof of legal necessity or such bona fide enquiry as entitles him to protection from a Court of Equity.

(3.) It is well settled that in a suit of this description, instituted for recovery of property alienated by a Hindu widow in possession of her husband s estate, the burden of proving that there was legal necessity or bona fide enquiry rests in the first instance on the person who claims title from the widow Amar Nath Sah v. Achan Kuar19 I. A. 196; 14 A. 420 (P. 0.); 6 Sar. P, C. J. 197; 7 Ind. Dec. (N. s.) 637., Maheshar Baksh Singh v. Ratan Singh 23 I.A. 57; 23 C.766 (P.C.); 7 Sar. P. O.J. 19; 6 M. L. J. 127; 12 Ind. Dec. (N. s.) 508., Bhagwat Dayal Hinghv. Debi Duyal Sahu (7), Nanda Lai v. Jagat Kishore Acharjya (8) and brij Lal v. Inda Kunwar (9). Recitals in deeds as to the existence of such necessity cannot by themselves be relied upon for the purpose of proving the assertion of fact which they contain the existence of necessity must be substantiated by evidence aliunde: Brij Lai v. Inda Kunwar23 Ind. Cas. 715 (P. C.); 36 A. 187; 18 C. W. N. 649; 26 M. L. J. 442; (1914 M. W. N. 405; 15 M. L. T. 395; 19 C. L. J. 469; 12 A. L. J. 495; 16 Bom, L.R. 352; 1 L. W. 794., Nanda Lai v.Jagat Kishore Aeharjya 36 Ind. Cas. 420; 44 0. 186; 24 0, L. J. 487; 20 M. L. T. 335; 3i M. L. J. 663; (1916) 2 M, W. N. 386; 4 L. W. 458; 18 Bom. h. E. 868; 14 A, L, J. 1103; 1 P. L. W. 1; 21 0. W. N. 225j 10 Bur. h. T. 177:431. A. 249 (P. 0.).and Banga-sami Gonndm v. Nachiappa Oounien50 Ind. Cas. 498; 46 I. A. 72; 36 M. L. J. 493, 17 A. L. J. 636; 29 0. L. J. 539; 21 Bom. L. E. 640s 23 C. W. N. 777; (19,9) M. W. N. 262; 42 M. 528; 26 M. h. T. 5;10 L. W. 105 (P. C.). Where, however, the alienation is made with the concurrence of or jointly with the then next reversioner, a presumption arises in favour of the validity of the transaction. The exact nature of this presumption was described in the case of Debi Prosaa Choudhry v. Golap Bhagat (1). The consent of persona who are the guardians of the widow and are, as the next possible takers of the estate, most deeply interested in its preservation, indicates the propriety of the transaction but the presumption is not conclusive and is rebuttable. This follows from a long series of decisions of the Judicial Committee which were reviewed by the Fall Bench and also from the later decisions in Bijoy Gopal Mukerji V. Girindra Nuth Mukerji 23 Ind. Gas. 162; .41 C. 793; 18 C. W. N. 673; 19 C. L. J. 620j 27 M. b. J. 123; .10 M. L. T. 68; (1914) M. W. N.430; 1 L. W. 533; 16 Bom. L.R. 425;12A. L. J.711 (P.C.) and Rangi-sami Guunden v. Nachiappa Gounden (4). As the consent of the reversioners, who, in the words of Lord Dunedin in the case last mentioned, might fairly be expected to be interested to quarrel over the transaction, thus affords a presumptive proof of the propriety of the transaction, the circumstances under which the consent was given must be carefully scrutinised, and , if it transpires that the transaction was in essence a device to divide the estate with the reversioner, his consent must manifestly lose its probative force. Let us now test the evidence in the light of these principles.