JUDGMENT
Richard Garth, C.J.
1. These suits were brought by two different plaintiffs to recover two several portions of the same property. They were dealt with by the Courts below in one judgment, the plaintiff’s claim being dismissed in each case by the Subordinate Judge, and decreed by the District Judge.
2. I propose to deal with one of the suits only, No. 529, and the same judgment will dispose of them both.
3. The plaintiff in that suit is Hari Das Sen. He claimed as the reversionary heir of one Kali Das Roy, and he says that his title accrued upon the death of one Monikornika, who was the daughter of Kali Das Roy. She died in 1879.
4. There is no doubt that the plaintiff was the reversionary heir of Kali Das Roy.
5. The defendants claim the property under two kobalas, dated the 25th Magh 1256 by which the property was conveyed to the predecessors of the defendants by a person named Kali Kishore Das, who was the son of Monikornika; and who, at the time when the conveyance was made, was the presumptive heir to the property; that is, if Monikornika had died at that time, he would have been the reversionary heir of Kali Das Roy.
6. The District Judge has decided that the defendant’s predecessors in title took nothing under these kobalas, because Kali Kishore had at that time merely a contingent reversionary interest in the property, and he afterwards died or disappeared; so that at the time of Monikornika’s death Kali Kishore was not forthcoming as the reversionary heir.
7. The learned pleader for the appellant has attempted to meet this difficulty in two ways.
8. In the first place he says that at the time when Kali Kishore executed these kobalas, he and Monikornika had brought a suit to recover possession of the property against several defendants, and amongst them, against the present plaintiffs; and as a decree was obtained by Kali Kishore and Monikornika in that suit against all the defendants, it must be taken as against the present plaintiffs that they had a joint interest in the property, or at any rate that Kali Kishore had some substantial interest in it at that time; and that the decree operated as a res judicata between the parties to establish such an interest.
9. But upon looking into the proceedings in that suit, we find it clearly shown that Monikornika was the person then entitled to the property as the daughter of the former owner, Kali Das Roy, and that Kali Kishore was her son; and there is nothing in the judgment to lead us to suppose that the Court intended to find a different state of things.
10. It is probable that Kali Kishore was made a party to that suit, because he had been put into possession of the property by Monikornika as her agent and manager, and it was thought advisable to make him a party in that character; or possibly he may have been made a plaintiff, because he was presumably at that time the reversionary heir; but in either case the mere fact of his being made a plaintiff, and recovering a decree against the present plaintiffs in conjunction with Monikornika, does not debar us from ascertaining in this suit what his and Monikornika’s respective interests really were.
11. Now it is clear that Kali Kishore had no interest in the property at that time, except a possessory interest as manager, and a contingent reversionary interest after Monikornika’s death. The decree, therefore, does not assist the defendants’ case.
12. The appellant’s pleader then relies upon another piece of evidence, a deed, which is called a deed of ratification, made to the defendant’s ancestors by Monikornika herself on the 8th of Assin 1263. By that deed Monikornika professed to ratify the kobala that had been made by Kali Kishore in 1256; and it is said that the ratification, coupled with the deed of 1256, had the effect of transferring the whole property absolutely to the defendants; and in support of this view we were referred to some authorities, and amongst others, to a case of Trilochun Chuckerbutty v. Umesh Chunder Lahiri 7 C.L.R. 571 decided by Morris and Prinsep, JJ.
13. In that case a Hindu widow, who had inherited her husband’s estate, conveyed away that estate by deed with the concurrence of the presumptive reversionary heir; and it was held, following a previous decision of Bayley and Markby, JJ., to which I shall presently refer, that the alienation made by the Hindu widow, with the concurrence of the reversioner, had the effect of passing the whole estate.
14. It would appear from the report that the learned Judges were at first disposed to think that the consent of the reversioner was not enough to pass the estate; but they seem to have considered themselves bound by the judgment in the case to which I hare referred.
15. That case was Mohunt Kishen Geer v. Busgeet Roy 14 W.R. 379 and it is necessary in determining how far” that case is binding upon us as an authority, to ascertain what the facts of it really were, and what was the ground of the Court’s decision.
16. In that case a Hindu widow, who had inherited certain property from her husband, had, in conjunction with the next reversionary heirs to that property, executed a conveyance to a purchaser; and Baylby and Markby, JJ., seem to have considered that such a deed operated to convey any estate which those persons by any arrangement amongst themselves had the power of conveying.
Markby, J.
17. In his judgment, after saying that the whole estate passed, observes: “To hold otherwise would only necessitate the adding of two or three words to the conveyance, because the widow may at any time surrender the property to the apparent next taker, who will then become absolute owner.”
18. It seems then that this judgment proceeded upon the ground that, in the view of the learned Judges who were parties to it, the conveyance operated, first as a surrender of the widow’s estate to the reversionary heirs, and then as an absolute conveyance by them to the purchaser of their interest in the property.
19. I confess that if the facts of the present case were substantially the same as those of the two cases I have mentioned, I should like to consider whether they were rightly decided; but it seems to me, that the facts here are very distinguishable.
20. There never was in this case, as it seems to me, any conveyance by the widow and Kali Kishore Das, which could operate in law as a surrender by the widow, and a conveyance of the reversionary interest, which Kali Kishore would have taken upon that surrender. And for this reason; because his kobala was executed in 1256, seven years before the deed of ratification by the widow.
21. At the time when he executed this conveyance it is clear that he had a mere contingent reversionary interest in expectancy; that being so, the ratification of that conveyance by the widow seven years afterwards could not have operated as a surrender of her estate, so as to change the effect of Kali Kishore’s previous deed, and make it enure as an absolute conveyance of the property. It seems to me that her deed could only amount to a conveyance of her interest.
22. Then the appellant’s pleader further argues that the subscribing witnesses to this deed of ratification were the plaintiffs themselves, and that as they signed the deed as subscribing witnesses, they must be taken to have consented to and to have known the effect of it.
23. I think that as a proposition of law that doctrine cannot be maintained. No doubt if parties subscribe a deed as witnesses, and there is evidence, or the circumstances of the case induce the Judge to believe that they knew what the contents of the deed were, the Judge is at liberty to infer that they were consenting parties to it.
24. But the inference so drawn by the Court would be an inference of fact; and we have no right to make such inferences on second appeal. We were referred to the case of Rajlakhi Debia v. Gokul Chandra Chowdhry 3 B.L.R. P.C. 57 in which the Privy Council, as I understand the report, distinctly say that the mere fact of a person attesting a deed is no evidence in itself that he consented to it, or knew its contents, and a passage has been also cited from Sugden on Vendors and Purchasers to the same effect.
25. I should have thought that no authority was necessary for such a proposition. It constantly happens that persons subscribe deeds as witnesses without having the least notion what they contain; and if people were to be held bound by any instrument which they so subscribe, it might be a dangerous thing to witness any other man’s signature.
26. No doubt in such a case as that of Matadeen Roy v. Mussoodun Singh 10 W.R. 293 to which we were referred, decided by Peacock, C.J., and Mitter, J., there would be strong ground for presuming knowledge of the contents of the deed, and consent to the deed being made.
27. That was the case of two brothers, who were co-sharers in a property; one of them conveyed the whole of that property, absolutely to a purchaser, and the other brother stood by, and was a subscribing witness to the deed. It does not appear what the other evidence in the case was; but both Courts below had inferred, as a matter of fact, that the brother who subscribed his name as a witness knew the contents of the deed, and was a consenting party to it; and all that Peacock, C.J., and Mitter, J., decided was, that they had no right to say, as a matter of law, that the inference which the lower Courts had drawn was wrong. It was an inference of fact which they, sitting in Special Appeal, had no ground for questioning.
28. But here we are asked to say that the District Judge was wrong in not drawing such an inference. We clearly should not be justified in saying anything of the kind.
29. It appears to me, therefore, that there is no sufficient ground for disturbing the judgment of the Court below. It may be that the justice of the case is with the defendants. It has been pressed upon us that the defendants have been in possession for a good many years; that they have given good consideration for the property; and that it is very hard that they should be ousted from it.
30. This may be all very true; but unhappily in the present state of the law we have no power to do full justice between parties in second appeal. We have only to decide whether, so far as we can see, the lower Appellate Court has been guilty of any error of law.
31. It seems to me that there is no ground for disturbing the lower Court’s judgment; and I think that this appeal, and also the appeal No. 581, should be dismissed with costs.
Field, J.
32. The property which forms the subject of these to appeals admittedly belonged to one Kali Das. The plaintiffs are the grandsons of Shiva Churn, the uterine brother of Kali Das. After the death of Kali Das and Kali Das’s widow, a suit was brought in 1252 by Monikornika, the daughter of Kali Das, and her son Kali Kishore, as joint plaintiffs, to recover certain property which included the properties forming the subject of the present litigation. Monikornika and Kali Kishore obtained a decree, and in 1253 took possession in execution of that decree. Subsequently, that is on the 25th of Magh 1256, Kali Kishore sold the property to defendants in the present case, and on the 8th of Assin 1263 Monikornika, who had not joined in the conveyance of 1256, gave to the defendant a letter of ratification.
33. Now the first question which we have to consider is, what did Monikornika and Kali Kishore obtain by the decree of 1253.
34. It has been contended that they obtained an absolute and complete title to the property, and that we cannot go behind their decree in order to determine what their interest under the decree really is.
35. I think that it is not necessary to go behind the decree. Upon the language of the decree itself, it appears to me clear that Monikornika and Kali Kishore obtained nothing more than the interest to which they were entitled under the ordinary Hindu law.
36. The decree recapitulates the contents of the plaint, sets out the fact of Kali Das’s death and the death of Kali Das’s widow, and proceeds to allege that Monikornika and Kali Kishore are in consequence the rightful owners (Nagdar malik) according to the Shastras.
37. Now, according to the Shastras, the right of property which they possessed was a life interest, so far as Monikornika was concerned, and reversionary right, so far as Kali Kishore was concerned. It, therefore, appears to me that they acquired, by the decree, not an absolute interest, which entitled them to dispose of the property at their will and pleasure, but such an interest as Hindu law confers upon persons in their position.
38. In the conveyance of 1256 reference is made to the decree; and in the subsequent letter of ratification, the decree is again referred to; and it appears to me (no question of purchase for valuable consideration without notice being raised) that what the purchaser under the conveyance of 1256 and the letter of ratification of 1263 took was the interest which Monikornika and Kali Kishore acquired under the decree of 1253, that is, their interests under ordinary Hindu law.
39. It has been contended that this case ought to be decided upon the principle laid down in the cases of Mohunt Kishen Geer v. Busgeet Roy 14 W.R. 379; Raj Bullubh Sen v. Oomesh Chunder Roy I.L.R. 5 Cal. 44; and Trilochun Chukerbutty v. Umesh Chunder Lahiri 7 C.L.R. 571; the principle that is that a conveyance by the widow and the immediate reversioner is a good conveyance of the absolute title, even as against any reversioner who, not being the next reversioner at the time of the conveyance, subsequently, by the death of a nearer reversioner, became entitled to the property upon the death of the widow.
40. It appears to me that this case can be properly distinguished from the principle upon which the cases just cited were decided., Were it otherwise, with the greatest respect for the learned Judges who decided these cases, I am, as at present advised, by no means satisfied of the soundness of that principle. It may well be contended that although the presumptive reversioner may make a good conveyance of his own reversionary right, he cannot grant away the reversionary right of another and more remote reversioner who may possibly derive title through another and different line of descent. It is not necessary, however, on the present occasion to pursue this, question further, because, in the cases now before us, there has been no conveyance executed by Monikornika, the widow, and Kali Kishore, the presumptive reversioner, jointly.
41. But then it is contended that the effect of the conveyance of 1256, taken with the subsequent letter of ratification, is really the same as if the widow and the presumptive reversioner joined in conveying the property.
42. It appears to me that this is not so. It would have been possible for the widow to retire in favour of the next reversioner, and if that had occurred Kali Kishore would have become the owner of the property, and might have conveyed an absolute interest therein. But there is no suggestion that this ever took place, and all that Kali Kishore could convey in 1256 was his own reversionary interest, and when Monikornika granted the letter of ratification in Assin 1263, it appears to me that the only effect this could have was to ratify the conveyance; so far as regarded her own life interest, which she had obtained under the decree to which the letter of ratification expressly refers.
43. There was, then, a valid transfer of Kali Kishore’s reversionary interest, which subsequently by his civil death became valueless; and there was a valid conveyance of the widow’s life interest; but that act which upon the authority of the cases already noticed could have made these two coalesce so as to create an absolute ownership in the property never took place. Neither did Monikornika retire in favour of Kali Kishore, nor did Monikornika and Kali Kishore at the same time execute a joint conveyance.
44. It has then been contended that inasmuch as the letter of ratification of 1263 was witnessed by Hari Das and Rutneswar, the plaintiffs in the present cases, they are estopped from saying that the letter taken with the previous conveyance had not the effect of transferring an absolute interest.
45. Now, in the first place, it has been pointed out by my Lord that the Judge in the Court below has found against this contention on the question of fact. He has found that Hari Das and Rutneswar are not estopped by the contents of that letter. In the next place, supposing that they were well aware of the contents of that letter, in the view that I have already taken, that letter merely amounted to a ratification of the transfer of the life interest, and the fact of Hari Das and Rutneswar ratifying by their attestation the transfer of the widow’s life interest, cannot estop them from claiming the property upon the widow’s death, when they become the immediate reversionary heirs entitled to possession.
46. For these reasons it appears to me that the view taken by the Judge below is correct, and that these appeals must therefore be dismissed with costs.
