JUDGMENT
1. Defendant No. 1 is the appellant. The plaintiff respondent Hari Ram Mahto brought the suit giving rise to this appeal for a declaration that the sale deed dated the llth of November, 1947 (Ext. C) by Mosmt. kgesri, widow of the last male holder, was without consideration or legal necessity and hence not binding on the plaintiff. The .plaintiff.claimed reversionary right to institute the suit for the above declaration, being the grandson of Mahadeo Mahto, husband of Mosmt. Jagesri. It may be stated that the sale deed in question was executed both by Mosmt. Jagesri and her daughter Mosmt. Pankalia, mother of the plaintiff and daughter of Mahadeo Mahto.
2. The suit was decreed by the Trial Court and defendant No. 1, the vendee under Ext.’C, preferred an appeal to this Court against the decision of the Trial Court. The appeal, being First Appeal No. 73 of 1950, was dismissed by a learned single Judge whereupon the present appeal under Letters Patent has been filed. The judgment of the learned Single Judge dismissing the appeal was delivered on the 12th August, 1958.
3. Learned counsel for the appellant has raised a number of questions before us and cited authorities in support of each one of his contentions. In our opinion, however, it is not necessary to refer to them all in view of the fact that this appeal can be disposed of conclusively by taking into consideration the death of Mosmt. Jagesri. She died on the 30th July, 1960, during the pendency of this Letters Patent Appeal in this Court. On the 25th August, 1960, the Registrar passed an order that Jagesri (respondent No. 1) was dead and her heir respondent No. 3, Mosmt. Pankalia, her daughter, was already on the record. This has given rise to a situation which is altogether new in course of Ihis litigation.
I have already mentioned that Ext. c, the sale deed, in favour of the appellant was executed both by Mosm. Jagesri, the widow of Mahadeo Mahto, and Mosmt. Pankalia, his daughter. After the death of Mosmt. Jagesri, Mosmt. Pankalia would succeed as the heir of Mahadeo Mahto. if, however, this event had taken place prior to the passing of the Hindu Succession Act 1956 (Act 30 of 1956), the suit of the plaintiff as the grandson of Mahadeo Mah’to would still be maintainable inasmuch as the daughter would be only a limited heir under the Hindu law. After the passing of the Hindu Succession Act, 1956, however, the daughter would succeed as an absolute heir and any property to be inherited by a Hindu female would be held to be an absolute interest. In that view of the matter, the suit by the plaintiff would not be maintainable inasmuch as if the plaintiff could succeed, he would do so after the death of the mother as an heir and not as a reversioner; Section 15 of the Hindu Succession Act having already terminated the status of re-versioners’ as such under the Hindu law.
4. Mosmt. Pankalia, therefore, could be entitled to challenge the alienation made by her mother Mosmt. Jagesri in view of the Full Bench decision of this Court in Harakh Singh v. Kailash Singh, AIR 1958 Pat 581 (FB) and the decision of the Supreme Court in Gummalapura Taggina Matada Kotturuswami v. Setra Veerawa, AIR 1959 S C 577.
Mosmt. Jagesri having parted with her interest in the property, which was in her possession, would not be entitled to take advantage of Section 14 and in terms ot the same decisions the reversioner or the heir of the last male holder would be competent to challenge the validity of the alienation, if it be not justified by legal necessity. In that case, Mosmt. Pankalia no doubt would be a person competent to bring the suit but not the plaintiff. Mr. srivastava for the plaintiff respondent has urged that it should be held that the suit by Hari Ram Mahto as the daughter’s son of Mahadeo Mahto was a suit of a representative character on behalf of all the reversioners including his mother Mosmt. Pankalia, and in that view, Mosmt. Pankalia might be transposed to the category of the plaintiff. She is already on record here and only a formal order of transposition of herself from the category of the defendant to that of the plaintiff would be necessary and nothing more. We are, however, unable to accede to this prayer because when deciding whether in the circumstances of this case Hari Ram Mahto can be taken to have instituted the representative suit on behalf of the reversioners or not, which is a doubtful proposition, it has to be borne in mind that even assuming that it is so, to permit Mosmt. Pankalia to be transposed to the category of the plaintiff would introduce a new cause of action altogether. It is so because Mosmt. Pankalia is a co-executant of the sale deed (Ext. C) along with her mother Mosmt. Jagesri. She being a co-executant, although at the time of the execution of the sale deed her interest in the vended property was in the nature of spes succes-sionis and nothing more, still she would be prima facie bound by the recital.
It was so held in the case of Sharm Sineh v, Hakim Gurcharan Singh, AIR 1950 EP 1, that when a person who has not actually succeeded to the property joins in the execution of the sale deed along with a person who is in rightful possession of the property for the time being, even if that be as a limited owner, the effect of execution of the sale deed by the person entitled to succeed to the property after the death of the principal executant would give rise to a presumption that the recitals contained in the document are true, and if no rebutting evidence to the contrary be led, the mere fact of entering into the execution along with another person by the next reversioner will validate the transaction as a right and proper one. This decision obviously rests on the principle of estoppel in the sense that if the next reversioner executes a document which contains a recital that there is legal necessity for executing the deed of transfer and the next reversioner signs trip document, it is obvious that the transferee agrees to enter into the transaction not merely on the representation of the vendor in possession, but also on the representation of the co-executant without which he might hesitate to enter into the transaction. In that view of the matter, the above pro-position has been rightly laid down in this as well as in Sahu Madho Das v. Mukand Ram, (1955) 2 SCR 22 ; ((S) AIR 1955 SC 481), Dhiyan Singh v. Jugal Kishore 1952 SCR 478 at p. 488 : (AIR 1952 SC 145 at p. 148), Kalishankar Das v, Dhirendra Nath, AIR 1954 SC 505, Paremeshwaribal v. Raghavendra, AIR 1919 Bom 141. The following passage in Mulla’s Hindu Law (10th Edition) is also relevant and may be Quoted :
“183 (1) When the alienation of the whole or part of the estate by a Hindu widow or other limited heir is to be supported on the ground of legal necessity, then if such necessity Is not proved aliunde and the alienee does not prove inquiry on his part and honest belief in the necessity, the consent of such reversioner as may fairly be expected to be Interested to dispute the transaction wilt be held
to afford a presumptive proof which, if not rebutted by
contrary proof, will validate the transaction as a right and proper one.
* * * * * * (2) x x x x x
Where the next reversioner is a female, as, for instance, a daughter, her consent alone is not sufficient to validate an alienation, whether she takes a limited estate, or an absolute estate as in Bombay. In such a case the consent both of the female reversioner and the immediate male rever-sioner is necessary to validate the alienation. But though her consent alone would not validate the transaction so as to bind the reversion, it would preclude her from impugning the validity of the alienation on the principle stated in Section 191.”
Thus, in the absence of rebutting evidence by the person
entitled to challenge the validity of alienation, there would be necessary inference in law that the co-executant interested in the spes successionis would not be entitled to challenge the statement made in the sale deed. Acting upon the ratio decidendi of these decisions and the above statement of law, it follows that Mosmt. Pankalia, who is a co-executant under Exhibit C, is bound by the recital therein and
that the sale deed would be taken to have been executed for legal necessity. If, therefore, Mosmt. Pankalia is bound by that recital and she is now a full owner under the Hindu Succession Act being an heir of Mahadeo Mahto, and the suit of Hari Ram Mahto, the grandson of Mahadeo Mahto, not being maintainable as he has ceased to have any right as a reversioner to bring the suit, the result would be that the property would lie where it should be in terms of Exhibit C, the sale deed, under which the title had been acquired by the defendant appellant Gobardhan Mahto as a vendee.
In this view of the matter, the only plea open to Mosmt. Pankalia is one of fraud, if any. If the prayer for transposition is allowed, it will introduce a new cause of action altogether. It may well be that Mosmt. Pankalia is bound by the fact that she did not herself challenge the validity of the sale deed on the ground of fraud or non-passing of consideration. Mr. Srivastav contends that the points should be left open in clear terms if the orayer for transposition is not allowed so that Mosmt. Pankalia may be competent to institute another suit and the present decree may not operate to her prejudice in the subsequent litigation. We are unable to accede to this prayer. All that we can say is that the prayer for transposition cannot be allowed and the suit of Hari Ram Mahto must be dismissed in so far as it is a suit by a reversioner for a declaration that the sale deed (Ext. C) was not binding upon him. We shall, however, refrain from making any observation as to what right, if any, is available to Mosmt. Pankalia, if she is advised to bring another suit. It may well be that the present judgment and decree would stand in her way and the suit might be dismissed on this very ground. It may as well be that on a proper consideration the present judgment may not stand in her way so far as the cause of action would be based on any other legitimate ground available to her. We are, therefore, unable to accede to the prayer that we should make any clear observation as desired by Mr. Srivastav on behalf of the plaintiff respondent.
5. It is enough to say that in view of the considera-tiqns mentioned above, the suit of the plaintiff cannot now succeed.
6. The appeal, therefore, is allowed, the judgment and
decree passed by the learned single Judge are set aside and
the plaintiff’s suit is dismissed. In the circumstances of the case, however, the parties will bear their own costs thorough out.