JUDGMENT
1. The property in suit in this case was alleged to be in the possession of one Alaka Dasi, who held a Hindu daughter’s estate in it. She sold half of the property to the then reversioner Krishna Charan Deb, and we are told that on the same day he executed an instrument in her favour which had the effect of giving her an absolute interest in the other half of the property. So the result of the two transactions was that she obtained an absolute interest in the one-half and Krishna Charan obtained an absolute interest in the other half of the property. The plaintiffs Nos. 1 and 2 claim partly, as purchasers from the heirs of Krishna Charan Deb plaintiffs Nos. 4 and 5, and partly as purchasers from defendant No. 3, the heir of Alaka Dasi. The defendants are purchasers from Alaka Dasi of a portion of the property in which she is said to have obtained an absolute interest by the deed of alienation executed in her favour by Krishna Charan Deb. The Courts below gave the plaintiffs, who sued for recovery of possession, a modified decree and the defendants appeal to this Court.
2. The first point that is taken on behalf of the appellants is that the sale to Krishna Charan was not a valid sale. With respect to this the Munsif relied on the case of Hem Chunder Sanyal v. Sarnamoyi Debi 22 C. 354 and held that Krishna Charan became the absolute owner of the 8 annas share in the property under his purchase from Alaka Dasi. The question does not seem to have been considered in the lower-appellate Court. In appeal an attempt has been made by the learned pleader for the appellant to distinguish between this case and the case cited. The case cited laid down that a widow may convey to the next’ reversioner or a third party with the consent of the next reversioner the whole or any portion of the estate and that the transferee acquires an absolute interest. It is argued that this goes beyond the decision in the Full Bench case of Nobo Kishore Sarma Roy v. Hari Nath Sarma Roy 10 C. 1102 on which the decision in Hem Chunder Sanyal v. Sarnamoyi Debi 22 C. 354 purports to be based. The learned pleader for the appellant concedes that a widow may convey the whole or a portion of the property to a third person with the consent of the next reversioner, but he argues that a widow cannot convey to the next reversioner himself. He concedes also that a widow can surrender to the” next reversioner the whole estate, but denies that she can surrender a portion. “No authority has been shown us why these exceptions should be made to the general rule laid down. It is argued that’ in the case of a sale to a third party the next reversioner in giving his consent is acting against his own interest, whereas if the sale is made to himself he is not so acting. But this is not the reason why sales of this nature to third persons are valid; and the fact that the next reversioner may not be acting against his own interest in sanctioning the sale to himself does not take this particular case outside the general rule.
3. It is not necessary to decide in this case whether a Hindu widow can relinquish a portion of the property left to her to the next reversioner, though the only case that has been cited to us as an authority for holding that she cannot do so, namely, Behari Lal v. Madho Lal Ahir Gayawal 19 C. 236 (P.C) : 19 I.A. 30 is not, in our opinion, at all applicable. All that that case lays down is that when a widow surrenders a property she must surrender her whole interest in it. It does not necessarily follow that she must surrender the whole property. We think, therefore, that the sale to Krishna Charan Deb is perfectly valid.
4. It is then argued that if that sale is regarded as valid the deed executed by Krishna Charan Deb in favour of the widow, which is part of the same transaction, must also be regarded as valid. On the other hand, reference has been made to the concluding portion of the decision in Hem Chander Sanyal v. Sarnamoyi Debi 22 C. 354 in which the learned Judges deal with the question whether the widow can sue to have her conveyance to the reversioner set aside on the ground that the conveyance to her by him being inoperative, was no consideration for her sale, and it is argued that if the sale by Krishna Charan was invalid there was no consideration for the sale to him. In dealing with these two points we have to begin with the assumption that the sale by Krishna Charan to the widow and by the widow to Krishna Charan were all part of the same transaction. This does not appear to have been pleaded in the Courts below. There is no mention in the plaint of the deed executed by Krishna Charan in favour of the widow, nor is it pleaded in the written statement. We are informed that both the documents purport to have been executed for a price, and the price in the two cases was different. There is nothing in the judgments of either of the two lower Courts to indicate that it was pressed upon them that the two deeds were one transaction and must stand or fall together, and we cannot in second appeal, therefore, hold that they were such a transaction. But unless we assume that these two instruments did form one transaction, the two arguments stated above fall to the ground.
5. These are the only points taken in appeal, and they all fail. The appeal must, therefore, be dismissed with costs.
