JUDGMENT
Panigrahi, C.J.
1. This appeal raises a novel point of law, namely, whether the consent of a female reversioner to an alienation made by a limited owner is presumptive proof of legal necessity for the same.
2. The short facts are that Bidu, father of defendant 1 and Raghu, father-in-law of defendant 2, were brothers. Raghu died leaving him surviving his widow, Indu, and his son Hadi. Hadi died in the year 1940, leaving his widow Sarada, defendant 2. Defendant 2 and her mother-in-law Indu jointly executed a deed of saJe in favour of the plaintiff-appellant on 22-7-1942 conveying three and odd acres of land for Rs. 200/-/-. The plaintiff’s possession was disturbed by the first defendant and hence the suit (out of which the present appeal arises) was filed for confirmation of possession or recovery of possession in the alternative. Defendant 1 pleaded that he and Hadi were joint and that on Hadi’s death he succeeded by right of survivorship. He disputed the genuineness and validity of the sale in favour of the plaintiff and challenged it as a collusive and fraudulent transaction. The courts below found that Raghu and Bidu were divided and that the estate of Hadi had vested in his widow, Sarada (defendant 2) after his death. On the question of the validity of the alienation they found that it was supported by consideration only to the extent of Rs. 45/-/-.
The plaintiff’s prayer for declaration of his title and confirmation of possession was, in the circumstances, negatived by both the Courts below as the alienation in favour of the plaintiff was held not binding on defendant 1. The matter came up in second appeal to this Court and was heard, in the first instance, by Das C. J. and the point now argued before us was for the first time raised before him. It was contended before him that on the date of the alienation the mother-in-law (widow of Raghu) was the next presumptive reversioner and that since she had joined in the alienation she must be taken to have given her consent to the same which would, in law, raise a presumption in favour of the legal necessity for the alienation. The learned Chief Justice held that there was no authority for making a distinction between the consent of a male reversioner and that of a female reversioner, but as the point was not covered by any clear authority he referred the matter to a Division Bench. It has accordingly come up before us.
3. The power of a Hindu widow to alienate the estate of her husband to which she has succeeded has been dealt with in many decided cases and has given rise to different currents of judicial opinion. A widow can extinguish the estate of her husband by surrendering it in favour of the next reversioner or reversioners provided it is complete and absolute as it has been held that it amounts to an effacement of the widow herself by civil death and opens the estate to the nearest heirs of her husband. If the surrenderee or the reversioner conveys the estate to a third party he can pass an absolute title to the purchaser of the estate as the estate became his. If, on the other hand, the next reversioner gives his consent to an alienation by the widow why should not the same principle apply? That this is possible was suggested as early as in — Nobokishore v. Hari Nath Sarma’, 10 Cal 1102 (FB) (A). A direct alienation by the widow to a purchaser has also been sanctioned by a long line of judicial pronouncements on the ground that if it is supported by a legitimate purpose such as religious or charitable purpose which are supposed to conduce to the spiritual welfare of the husband, it is for legal necessity.
The necessity must, however, be proved and shall not be presumed. Even where there is lack of evidence of necessity, the alienation may be upheld on equitable grounds if the alienee proves that he has, in good faith, made appropriate enquiry and has satisfied himself that there was a case of true necessity. If the presumptive reversioner gives consent to the alienation the necessity for the alienation stands fortified, and such consent may be presumptive proof of necessity. In — ‘Collector of Masulipatam v. Cavaly Venkata Narrainapah’, 8 Moo Ind App 529 (PC) (B) their Lordships of the Judicial Committee observed:
“It on the other hand may be taken as established that an alienation by her which would not otherwise be legitimate may become so if made with the consent of the husband’s kindred. The exception in favour of the alienee, with consent, may be due to a presumption of law that when that consent is given, the purpose for which the alienation is made must be proper.”
It will be noticed that the consent of the reversioners is not proof of necessity but that it only raises a presumption that the alienation is made for a proper purpose. This view was reiterated by the Privy Council in — ‘Bijcy-gopal v. Girindra Nath’, AIR 1914 PC 128 (C). There was, however, a sharp cleavage of opinion on the point among the High Courts in India. The view of the Calcutta and Madras High Courts was that if the consent of the reversioner at that time had been obtained to that alienation, the eventual reversioner could not challenge the transaction. The Allahabad High Court, on the other hand, had laid down that where the necessity was not proved ‘aliunde’ then the consent of any number of reversioners would not bind the reversioner who possessed that character at the death of the widow and who had not himself been one of the consen-ters: See — ’10 Cal 1102 (FB)’ (A), — ‘Radhashyam v. Joyram’, 17 Cal 896 (D); — ‘Marudamuthu v. Srinivasa Pillai’, 21 Mad 128 (E).
The Allahabad view was considered by the Privy Council in — ‘Bajrangi Singh v. Manakarnika Bakhsh Singh’, 35 Ind App 1 (PC) (F) but was not approved. In that case the sales were upheld on the ground that the same had been effected with the consent of the next reversioners. The Privy Council had again to consider this conflict of opinion and the matter was finally set at rest by their pronouncement in — ‘Rangaswami v Nachiappa’, AIR 1918 PC 196 (G). The result of the consideration of the decided cases was summarised thus:
“When the alienation of the whole or part of the estate is to be supported on the ground of 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 reversioners as might fairly be expected to dispute the transaction will be held to afford a presumptive proof which, if not rebutted by contrary proof, will validate the transaction as a right and proper one.”
Their Lordships pointed out that an alienation by a widow is not a void contract. It is only voidable. If, therefore, the party who has the right to complain did something which showed that he treated the alienation as good he would lose his right of complaint. This is based on the general equitable doctrine common to all systems that one cannot approbate and reprobate.
4. It was pointed out by learned counsel that in all these cases the consenting reversioner was a male and that the cases can be distinguished on that ground. The argument is that if the next reversioner happens to be a female she would herself be entitled only to a limited estate and that her consent to the alienation will not raise the presumption of necessity which is permissible in the case of a male reversioner. It is necessary to discuss a few decided cases which apparently support this view.
5. The earliest case on the point that I have been able to find is — ‘Varjivan Rangji v. Ghelji Gokaidas’, reported in 5 Bom 563 (H). That was a case where the validity of an alienation made by a widow named Achrat and her daughter, Bai Vakat, was challenged by some distant heirs of the last male holder who were entitled to succeed in the event of the daughter predeceasing the mother without issue. In that case the daughter, Bai Vakat, had died before her mother. Sargeant J. observed:
“Nor can the mere concurrence of Bai Vakat, albeit the nearest in succession (haying regard to the state of dependence in which all women are supposed by Hindu law to have their being) be regarded as affording the slightest presumption that the alienation was a justifiable one.”
It was recognised in that case that if the daughter had survived her mother the plaintiffs would have been nonsuited as the daughter would have succeeded to a full estate. But the only ground given by their Lordships for rot giving effect to the sale on the ground of the consent of nearest reversioner was the supposed dependence of Hindu women. I am unable to appreciate what the supposed dependence of a Hindu woman has to do with her consent to part with her reversionary interest in an estate. In any event, I am not prepared to hold that Hindu society has remained static or that Hindu women have remained in the condition in which they were in 1880 when that case was decided. During the last half a century or more Hindu women have taken rapid strides in their progress towards equality with men, and it would be fantastic to suggest that they should be deemed to have been kept in perpetual dependence as was enjoined by the ancient Hindu law. I would refer to a later case of the Bombay High Court in — ‘Vinayak v. Goyind’, 25 Bom 129 1. Jenkins C. J. while referring to the earlier case of — ‘Varjivan’ (H) observed:
“If consent of a female reversioner would not validate the sale the absence of consent (which was the case before His Lordship) was absolutely immaterial.”
His Lordship pointed out that:
“the value of consent and its effective results must be measured by reference to all the circumstances of the case.”
In that case, the daughter’s son Venkatesh was the only male reversioner in existence and he had consented to the transaction though his mother, Bhima Bai, had not consented. It was held that the consent given by Venkatesh sufficed to validate his grandmother’s alienation as the consideration for the sale was utilised for Venkatesh’s marriage. Ranade J. held that the assent of Venkatesh represented both the assent of himself and Bhima Bai as their interests were common in this matter. It would, therefore, appear that Ranade J. did not make any distinction between the consent of a male and that of a female reversioner. In a later case of the same High Court reported in –‘Malik Sahib v. Mallikarjunappa’, AIR 1914 Bom 187 (J) the widow of the last male holder sold the suit properties with the consent of her daughter and the daughter’s husband filed a suit, after the death of his wife, for recovery of possession of the land alienated by the widow Irawa. Their Lordships negatived the plaintiff’s claim on the ground that the legal point was completely covered by the authority of — ’35 Ind App 1 (PC)’ (F), in which their Lordships of the Judicial Committee had observed that:
"Ordinarily the consent of the whole body of persons constituting the next reversioner should be obtained though there may be cases in which special circumstances may render strict enforcement of this rule impossible." But the earlier Bombay view was referred to with approval, by Maclean C. J. in --'Bipin- behari v. Durga Churn', 35 Cal 1086 (K) which was decided five years after -- 'Malik Sahib's case' (J). In that case also, an alienation had been made by a widow with the consent of her daughters. Maclean C. J. said: "I do not think that the consent, even if any there were which is not found, of these two purdanashin women whose position of dependence is so well recognised in India, could have any such effect." Das J., however, put it on a different footing and observed: "If the widow had made a gift of the property to her daughters, the effect of the transaction would have been to accelerate the contingent limited estate of her daughters and not to reduce it into an estate in possession. It would not have conferred on them any larger estate than the limited and qualified estate to which they would have succeeded had they survived the widow. It would not have conferred on them an estate transmissible to their own heirs."
All these cases were decided before the Privy Council decision in –‘AIR 1918 PC 196 (G)’ which laid down a general rule of evidence in favour of the alienation if the reversioner who may be expected to quarrel with the transaction gives his consent to it.
6. The Allahabad High Court however relied on the earlier Bombay and Calcutta decisions, and in — ‘Mohammed Nuh v. Brij Behari Lal’, AIR 1924 All 939 (L) it was held that the presumption would not arise when the reversioners who joined in the transfer were ladies or lifeholders. No reason is given for this distinction made in the case of a female reversioner. This case, however, can easily be distinguished on the facts as their Lordships point out that
“the presumption is not strong in the present case because Brij Behari was in existence at the time of the transfer and the daughters of Badam Kunwar were young at the time and capable of bearing children who would ultimately be full owners of the property in suit.”
It would appear, therefore, that their Lordships declined to draw the presumption of necessity on account of the fact that the daughters who were the next reversioners were young at the time of giving their consent and that a son of one of the daughters, namely, Brij Behari, was in existence and his consent had not been taken.
7. I am therefore unable to discover any
authority either in the Hindu law texts or in
the reported cases, for making a distinction
between the consent of a male reversioner and
that of a female reversioner. It must be remembered that the principle laid down by their
Lordships of the Privy Council in — ‘AIR 1918
PC 196’ (G) is a rule of evidence which is
applicable both to males and females and there
is no apparent reason for applying that rule
differently in the two cases. The ancient Hindu
law has undergone several changes and has
been considerably modified by rules of justice,
equity and good conscience so as to suit changing conditions. As their Lordships of the
Judicial Committee observed in — ‘Waghola
Rajsangji v. Sheik Masluddin’, 14 Ind App 89
(PC) (M):
“In point of fact the matter must be decided by equity and good conscience, generally interpreted to mean the rules of English law, and made applicable to Indian society and circumstances.”
The Privy Council deduced the principles from the law of gifts and applied them to the law of wills and pointed out in -- 'Jotecdromohun Tagore v. Ganendromchun Tagore', Ind App Supp. Vol. 47 (PC) (N) that it is "the duty of a Tribunal dealing with a case new in the instance to be governed by well established principles and the analogies which have heretofore prevailed in like cases." This is also the view of the ancient Hindu law-givers. Brihaspati says that the decision in a doubtful case is by four means. Dharma refers to moral laws or rules of justice, equity and good conscience. Kautilya states in his Arthasastra that whenever the sacred law is in conflict with Dharma, Nyaya or King's law based on Equity or reason, the latter shall be held to be authoritative. If neither reason nor equity warrants the continuance of a distinction, the foundations of which have been removed, it is the duty of Courts to adopt new principles from life at one end, while retaining old ones from history at the other. When the law itself presents a choice and when it is a question whether the one or the other principle is to be applied, it is necessary that our preference should lie in favour of that principle which is consistent with the existing trends of society.
In modern society Indian women have occupied positions of responsibility and trust. They have been receiving western education in ever increasing numbers and their economic dependence is slowly, but surely, being mitigated. In such circumstances, it would be unjust–if not absurd–to attribute incapacity to them as reversioner, to surrender their estate, merely because of certain archaic views based on the supposed dependence of Hindu women, with reference to conditions obtaining more than half a century ago. I am, therefore, not disposed to give effect to an artificial distinction sought to be created in the application of a rule of evidence. The same view has been taken by the East Punjab High Court in –‘Sharm Singh v. Gurcharan Singh’, AIR 1950 EP 1 (O) where Achhru Ram J. has reviewed the decisions at length.
8. Moreover, the facts of this case are clearly in favour of the appellant’s case. The recitals of necessity given in the sale deed are : arrears of rent, discharge of a prior mortgage debt by Hadi, discharge of a debt due to one Bhuban, and maintenance of the two widows. The debt due to Bhuban amounting to Rs. 80/-/- was disbelieved by both the Courts below and we are bound by their concurrent finding. So far as arrears of rent and the prior mortgage-debt by Hadi and the maintenance charges of the two widows are concerned, we see no reason to disbelieve the plaintiff’s case. There is evidence that the lands sold are of very poor quality and the price per acre is said to be Rs 15/- to Rs. 20/-. It is also in evidence that defendant 1 has already sold away his share of the lands to meet his necessary expenses.
In these circumstances it is reasonable to suppose that the widows had no other alternative but to dispose of the lands, in order to discharge the existing debts and meet their maintenance charges. Hadi could not pay the rent due on his holding and therefore the landlord obtained a decree for arrears of rent and put the property to sale for Rs. 15/-/-. He had also mortgaged the lands for Rs. 30/- borrowed for meeting the maintenance charges. In these circumstances, it is clear that there was legal necessity for the alienation, and it could not have been avoided. Apart, therefore, from the consent of Hadi’s mother the alienation is supported by consideration to the extent of Rs. 120/-/-. The first defendant appears to have made no attempt whatsoever to rebut the presumption of necessity arising from the consent given by Hadi’s mother. But we are satisfied, on the facts, that the alienation is supported by legal necessity and must be upheld. The plaintiff has, however, failed to prove that he had discharged the alleged debt due to Bhuban to the extent of Rs. 80/-/-. While, therefore, we would uphold the alienation we would direct the plaintiff to deposit in Court this sum of Rs. 80/-/- which is not proved to have been paid to the vendor. It is alleged that the second defendant has left the family and has remarried. She is, therefore, not entitled to the amount due from the plaintiff. The result will therefore be that defendant 1 as the reversioner of her deceased husband Hadi will be entitled to this sum.
9. We would, therefore, allow this appeal and direct that the plaintiff shall have a decree for declaration of possession, or in the alternative for recovery of possession, as prayed for in the plaint. He must deposit a sum of Rs. 80/-/- (Rupees eighty only) in Court within four months from this date. In default of the deposit being made the first defendant shall be at liberty to recover the same by execution in the lower Court. The plaintiff shall also have proportionate costs of this appeal,
Narasimham, J.
10. I agree.