JUDGMENT
Woodroffe and Carnduff, JJ.
1. The first plaintiff claims an estate called taluk Chakai, originally the property of one Tikait Dharam Narain Singh. He claims to be the great great grandson of Raghubir Singh, the second son of Tikait Dharam Narain Singh. The last male holder of the property was one Tikait Garabh Narain Singh, who died while a minor and who was the great grandson of Jagarnath Singh, the eldest son of Tikait Dharam Narain Singh. A pedigree is attached to the pleadings. It is alleged that the family is governed by the Mitakshara and that the property is impartible. Tikait Fateh Narain, the father of Garabh Narain, died on the 18th April, 1863, leaving three wives. A posthumous son was born in July 1863, Garabh Narain above mentioned. On the latter’s death his mother, Tikaitni Durga Kumari, succeeded as his heir and died on the 15th May, 1907. During her life time certain alienations were made in favour of the predecessor of the defendant, the Maharajah of Gidhour. The first plaintiff claims to be entitled’ to these properties on the ground that Durga Kumari had a limited interest only and that the transfers were not for legal necessity and were not transfers of the estate itself, to which he lays claim on the ground that lineal primogeniture applies to this estate and that he is the eldest representative of the eldest line of Tikait Dharam Narain Singh.
2. The first plaintiff associated with himself the second and third plaintiffs, Bhairo Singh and Tirbhuban Singh. These persons are nearer in descent to Dharam Narain Singh; but they are members of junior lines, and the plaint alleges that they have executed deeds of relinquishment, in favour of the first plaintiff, of any right they might claim, though in fact they had no right except to maintenance. The suit commenced on the 6th March, 1908, and on the 24th August, 1908, Tirbhuban asked that his name should be removed from the category of plaintiffs, and he was accordingly made a defendant on the 25th August. On the 18th December, 1908, he applied to be made a plaintiff again. The Court has held that lineal primogeniture applies, that according to this rule the first plaintiff is entitled to the estate, and that the alienations were not made for legal necessity. Decree has, however, been given him conditionally on his paying certain sums, amounting to Rs. 40,000 odd, which the lower Court holds are a charge on the estate. The defendant Maharajah has appealed, and the two questions which we have; to decide are: (1) whether the first plaintiff, Chandi Prasad Singh, is the heir-at-law, and (2), if so, whether the transfers under which the Maharajah claims are binding on the inheritance.
3. On the 22nd April, 1863, after Fateh Narain’s death and before the birth of his son, his three widows applied to the Collector for the registration of the estate in their names. Before such application and the birth of the son there had been an agreement between the widows that the three should hold the estate.
4. Against this application, the first plaintiff’s father, Durga Prasad Singh, put in a petition of objection, dated 21st May, 1863, which is of some importance. He appears there to have alleged that the application by the widows was adopted to deprive him of his rights, that as the next of kin he was heir, and that he, Nagar Singh and Harnath Singh were ready to apply for mutation of names according to the usage of the family. The objection was heard and on the 3rd July, 1863, the widows’ names were directed to be entered. From an extract from the police diary of Chakai, dated 2nd March, 1866, it appears that one Kashi Nath Upadhyaya, alleging himself to be a servant of Durga Kumari, stated: – “My employer has only a Pi brother-in-law, Durga Prasad Singh, who lives in commensality with her as her next heir, and, except the said Durga Prasad Singh, there is no other rightful heir who could look after the estates, etc. Therefore my employer has this day appointed the said Durga Prasad Singh to look after the estates and manage the court and village affairs, and afterwards she will make him her mukhtear and the malik of the entire estate with all powers. I have, therefore, come by the order of my employer to give information.” This entry, it will be observed, is in conflict with the alleged statements in the petition of objection already referred to. On the 5th November, 1868, Durga Kumari brought a suit against her co-widows and Durga Prasad Singh for recovery of possession of two-thirds of the property, of which she alleged she had been dispossessed at the instigation of Durga Prasad Singh. The latter in his written statement took objection that the suit was undervalued as the taluk Chakai (now said to be worth ten lakhs) was worth two lakhs and the two ghatwali estates Rs. 50,000; and that the claim for confirmation was not entertainable, as one-third of the property was not in the possession of the plaintiff. He then claimed the estate on the ground that he was a member of a joint Mitakshara family with the last holder. No mention was made of custom. The co-widows set up an ekrarnamah by which all three widows were to remain in possession, and they declared that, with the consent of all of them, Durga Prasad had been installed on the gaddi and was about to have his name registered when the plaintiff left the house at the instigation of a servant, named Ahlad Pandey, who is mentioned in the eighth, para of the plaint in this suit. In these suits both Nagar Singh and Harnath Singh intervened, claiming to be entitled to possession jointly with Durga Prasad, as alleged to have been admitted by him in the petition for mutation of names to which we have referred. They denied that he had been installed as Tikait. The Court, by its judgment dated 23rd March, 1869, holding, that the plaintiff’s title to sue as heir was established, stated that the next question was whether Durga Prasad was joint in food and estate with the plaintiff’s husband and as such entitled to succeed by survivorship. The Court found that he was not so joint, and also that he had not received tilak from the widows and that the ekrar did not bind the plaintiff. The suit was, therefore, decreed. On appeal to the High Court the decree was, on the 5th January, 1870, affirmed.
5. This Court then found that the estate was not held jointly. It pointed out that the appellant had attempted to give evidence that there was a family custom excluding females, but it disallowed the raising of that issue as it had not been pleaded. Subsequently Durga Prasad brought a suit on 25th December, 1870, for possession, alleging the custom of lineal primogeniture excluding females. This suit was dismissed by the Subordinate Judge as res judicata, on the 29th December, 1871, and the judgment was affirmed by this Court on 6th June, 1873. This Court then held that no family usage or Kulachar, either excluding females or giving the preferential right of succession to direct descendants or the eldest male heir, had been proved. It also held that the prior decision as between the parties established that the plaintiff had never been joint in estate with the last proprietor. An appeal was preferred by the present appellant’s father against the decision of this Court to the Privy Council, which dismissed the appeal on the 17th May, 1878. The judgment of the Judicial Committee deals with two claims of the then plaintiff, the first being his claim to succeed to the estate on the death of Garabh Narain on the ground that the latter’s mother was not entitled according to the Mitakshara law and the custom of the family to succeed as heiress of her son, and the second claim being for a declaration that a deed (one of those attacked in this suit), which he had executed in favour of an ancestor of the present respondent, was void as against reversionary heirs. The Judicial Committee, without going into they facts, held that the first claim was res judicata. As regards the second claim the Judicial Committee, also without going into the facts, refused for the reasons stated by them to grant; a declaratory decree with respect to the deed executed in favour of the present appellant’s ancestor. Their Lordships while abstaining from expressing any opinion on the findings of the High Court, stated that they left it open to all parties thereafter to raise the question as to the family custom set up by the plaintiff and that their decree would not be res judicata as to the first and second issues of fact.
6. From about this date until 1907, when Tikaitni Durga Kumari died, the latter held undisputed possession of the property. The question of prior possession will be dealt with hereafter. After her death and on the 6th March, 1908, this suit was instituted challenging the validity beyond her interest of the alienations mentioned in the plaint. Paragraphs 17 and 18 of the pleadings expressly base the plaintiff’s title on the existence of an alleged family custom of lineal primogeniture. A title is not put forward based on the existence of a joint Hindu Mitakshara family and therefore on the passing of the property by survivorship to the plaintiff. The Subordinate Judge does not deal with the question whether the plaintiff was joint with the last holder, but has held that, apart from the evidence and on general principle, the plaintiff is entitled to succeed, and, secondly, that the evidence establishes the existence of the family custom set up in the plaint. The title of the plaintiff having been thus established, the Subordinate Judge has held that, subject to what is hereafter stated, the existence of legal necessity for the loans and private alienations in question has not been proved, nor had it been proved that the appellant’s ancestor acted upon enquiry made in good faith and representations reasonably believed as to the existence of such necessity; and that the widow’s interest only passed by the Court-sale at which the appellant’s ancestor purchased two annas share of the estate in dispute. The exception above mentioned to this finding is that the lower Court has held that Rs. 2,800 out of the consideration for the first kabala was for legal necessity and that the appellant was entitled to a charge upon the estate for the sum of Rs. 38,134-5-4 in respect of the transactions mentioned in the concluding paragraphs in this judgment. It is not necessary now to go into this matter, to which we will recur in dealing with the cross-objections. The Subordinate Judge therefore decreed possession to the first plaintiff (the claim of the other plaintiffs being disallowed) subject to payment of the sums mentioned. Against this decision the defendant Maharajah has appealed and the two questions we have to determine are, as we have already said, firstly, whether the first plaintiff is the heir-at-law and so entitled to maintain the suit, and, secondly, if §p, are the transfers which he impugns, binding on the inheritance?
7. Upon the first point it is admitted that the result of the reported decisions is that, where impartible property passes by survivorship from one line to another, it devolves not on the co-parcener nearest in blood, but on the nearest co-parcener of the senior line. But it is contended that, in order that this rule should be applied, there must be a joint family upon which the principle of survivorship may operate. It is conceded that, if the family were joint and the property impartible and the claim of the plaintiff had been based on co-parcenary, then in that case the plaintiff would be the hem tit-law. But it is contended in the first place, that the plaint bases the plaintiff’s title on family custom and not on the ordinary law applicable to a Mitakshara joint family, and, secondly, that the first plaintiff’s father was not in fact joint with the last male holder and that the decision of the High Court (5th January, 1870), in Durga Kumari’s suit of 1868 that the estate was not held jointly is res judicata. It is then contended that the plaintiff’s case must depend on the proof of the alleged family custom which he asserts, that on failure of such proof the succession would be governed by the law relating to succession to separate property, and that on the facts the first plaintiff is in this case excluded.
8. If then the plaintiff establishes the family custom alleged, or if he is not precluded from establishing and does establish that his father was joint with the last male holder, then he establishes his title to sue. If, on the other hand, the family custom is not proved and the plaintiff is precluded either by res judicata or by his pleading from showing (or if not so precluded) does not show, that the family was in fact joint, then he fails to establish his title. There was no issue in the lower Court as to jointness. learned Counsel for the respondent has, however, substantially placed his case on the proof of the alleged custom. The first issue, therefore, is whether the family custom has been proved.
9. It is admitted that the family is governed by the Mitakshara. Though the judgment of the lower Court states that it was also admitted that the property was impartible and that succession was governed by custom, it has been sought to be contended here that no family custom could or did exist in the family. It is said that the estate was originally a ghatwali tenure, which in 1779 was settled in mokarari after resumption, the date of which is not known. It is argued, therefore, that no custom could exist as the estate then first came into the family as prior thereto it was merely attached to the office of ghatwal and did not belong to the family. It is contended that, the origin of the estate being thus known, no ancient custom could be proved. The plaintiff in his deposition stated that Chakai was originally ghatwali, though now and from ancient times a zemiridari. He says “he does not know how long ago it was ghatwali.” The Collectorate rubakari of September, 1878 (Ex. R.R.), describes Har Narain as a ghatwal, and gives the date of settlement of the estate. The document speaks of liar Narain as ghatwal, but there were ghatwalis other than Chakai. From the judgment of the High Court of 6th June, 1873, it appears that, though the case was argued on the assumption that the estate was originally ghatwali, the Court was of opinion that part only of the property was ghatwali. Apart from the question whether this evidence is sufficient to establish that the Chakai estate was originally ghatwali, with the consequences flowing therefrom, we are of opinion that, though this is a case of ejectment, it is not open to the appellants to say that the custom – of impartiality did not exist.
10. The whole of the previous litigation assumed it. In their judgment of 17th July, 1878, the Privy. Council say that the property must be taken to be joint ancestral property, although impartible. The written statement of the Maharajah in the previous litigation assumes the custom of impartibility, though he alleged that this custom had reference solely to the sons of the body of the deceased proprietors. The plaint in this suit alleges the custom, and the written statement does not deny impartiality, but the rule of inheritance according to lineal primogeniture. No issue was raised on the point now argued, and the evidence was not directed to it. Had this been done, it would have been necessary to enquire as to which properties were ghatwali, and then whether any property was originally held by the family, which was not ghatwali. If such were the case, the family custom might, even if there had also been ghatwalis, have operated as regards such other properties, and, if it so operated, it would have also governed the succession of the ghatwali properties after resumption on resettlement. The point taken by the appellant would only be made out, if it were shown that the family never at any time possessed any property, other than ghatwali tenures, in respect of which the alleged custom could have existed and upon which it could have operated. It is true that the plaint refers only to Chakai, Nowdiha and Chandwari as the immoveable properties of the family. But this statement is made merely as regards the state of affairs at the date of the death of Fateh Narain in 1863. Further, we must accept the recorded statement in the judgment that the impartibility of the estate was admitted. It cannot be impartible except by custom. We hold, therefore, that the estate was an impartible estate governed by the Mitakshara law and custom. The next question is, therefore, whether, being impartible, the rule of succession to it is by lineal or ordinary primogeniture. The oral evidence on this point is all one way and is given by the adult members of the family, an agnate, the guru and the family priest, and as to the custom of similar gaddis in this part of the country. It is supported, for what it is worth, (for it is to be observed that the Court held the witness not competent in examination-in-chief) by the evidence of the defendants’ witness Jayjayram Ray, who in cross-examination spoke to the custom of succession. All classes of persons have been called who might be supposed to know of the custom. It is to be here observed that the remaining property which belongs to the estate, is now in the sole possession of the plaintiff, and it is not to be supposed that he would be permitted to retain such sole possession unless there were such a custom as that to which these witnesses depose. It was set up as far back as 1870, though not expressly referred to in the litigation immediately preceding this date. No instance of collateral succession has been proved, the succession of Loke Narain and Dharam Narain being of lineal, and not collateral, succession. Such instances would, no doubt, have strengthened the evidence; but they are not absolutely necessary, particularly whereas here the dispute is not between members of a family as to what its custom is, but between the family on the one hand and a stranger. The Subordinate Judge has adverted to portions of the oral evidence which did not appear to him satisfactory but, notwithstanding this, he has accepted that evidence as substantially true. We do not think that he has done so merely because (as argued) he considered that the evidence spoke only to a rule which, apart from such evidence and according to the reported decisions, would govern the case. The evidence, being, as it is, wholly unrebutted, we accept it. As regards the holding of the estate after the death of Fateh Narain by the three widows and not by the eldest, the explanation given is that this was by agreement among the widows. Garabh Narain then succeeded, and, on his death, Durga Kumari took, not as widow, but as heiress of her son, it not being established that there was any rule excluding females. The chief objection which has been urged is based on the petitions of Nagar Singh, Harnath Singh and Durga Prasad. As regards the two former, we find that, in the previous suit, the High Court (6th June,. 1873), refused to place any reliance on these petitions, which were not filed in that suit until 6 months after the evidence was closed and in fact only the day before the Subordinate Judge gave judgment: nor can we rely thereon. Neither Nagar Singh nor Harnath Singh were parties to this suit in which they intervened with their petitions with the object apparently of supporting the then plaintiff’s case.
11. The allegation in the previous suit was that Nagar Singh had colluded with the plaintiff. The petition states that the petitioners had an equal right with Durga Singh, and that the latter had admitted this in a petition in the case for mutation of names. As regards the latter petition, it was suggested during the course of the argument that the words “and Nagar Singh and Harnath Singh the cousins, etc., of the said Tikait” have been interpolated. Reference has been made to’ the use of words “my right,” “harass me” and “justice done to me,” which must, it is said, refer to Durga Prasad alone. Standing by themselves, the words used are, however, ambiguous, being capable of being translated in the plural. It is said that the words “your servant (fidwi) therefore begs to file this petition” indicate the singular. This, however, may be explained by the fact that it was Durga Prasad alone who was filing the petition. This case of interpolation should have been put in the evidence. We, however, sent for the original document and have inspected it. It does not appear to show any sings of interpolation and appears, on its face, to be genuine. But it is not easy “see how it came to be made; for, if the estate were impartible, Durga Prasad, Nagar Singh and Haranath Singh could not all be entitled. The two either excluded Durga Prasad, or he them. Further, Parasnath was equally entitled, if they were. Nor is it apparent why, if Nagar and Harnath were objecting, they did not themselves petition. And, if Durga Prasad was protecting his rights, why did he go out of his way to bring in the alleged rights of others. Next, if he were in fact setting up these others as entitled with himself his other statements are inconsistent with such an assertion. For this petition of, Durga Prasad is dated 21st May, 1863, and from the proceedings of the Collectorate less I than two months later, dated the 3rd July, 1863, it appears that he had stated, not that he and the others were jointly entitled, but that the nearest relation became the heir, and that he was the heir, It is a singular circumstance that with: so short a period two such different cases should have been set up. The alleged statements in the petition are further inconsistent with the information given at the police station on the 2nd March, 1866, to which reference has already been made. While it may be admitted that this petition of Durga Prasad goes, for what it is worth, against the plaintiff’s case, it is by no means sufficient to outweigh the oilier evidence.
12. We hold, therefore, that the family custom alleged has been proved, and that the plaintiff’s title has been established. We, however, may here point out that, even if the first plaintiff’s title had not been established, we have, as parties to the suit, the person who would admittedly, on failure of the proof of his title, have been entitled to succeed and were joint plaintiffs with him. These persons have released their rights (if any) in favour of the first plaintiff. It has been held that these documents did not operate as conveyances. If they did so operate, then the first plaintiff’s right to sue is established notwithstanding failure to prove his own right of succession. If they did not so operate (though under the circumstances it is ,not necessary to determine the point), then we should have been disposed, in order to do justice in the case (for further litigation by the “co-plaintiffs to assert their title would be barred), to accede to the application made to us that, in the event of our holding that the title of the first plaintiff had not been made out either in his own right or by virtue of the alleged transfers to himself, we should act under the provisions of Order XLI, Rule 33, of the Civil Procedure Code, or (if that rule be held to be inapplicable) that the co-plaintiffs (Tribhuban’s sons) might have leave to appeal against the decree. If, as is admittedly the fact, one or other of the plaintiffs is entitled by succession, it does not seem to. us to be right that the suit should be dismissed because the first of the plaintiffs alone had failed to make out a title, particularly when, as the result of our so holding, the right of the co-plaintiffs (who, if the first plaintiff were not joint with the last male holder, would, on failure of the first plaintiff’s case, be entitled) was thereby barred. It is, however, unnecessary to pursue this point further as we hold on the evidence that the first plaintiff, and not Tribhuban’s son, is, by virtue of the family custom he has established, entitled to succeed to the estate.
13. The title of the first plaintiff having been thus established, we proceed to deal with the question whether the transfers by or through Durga Kumari bind the estate, of which he is the heir. The transactions which are impugned in the suit are as follows. On the 5th September, 1870, Durga Kumari sold 6 annas of taluk Chakai to the appellant’s ancestor for Rs. 85,000. The recital to the Kabala states that large sums of money were owing on mortgages to the appellant’s ancestor and to one Saheb Ram Ray and other bankers. The former mortgages which are in evidence, are dated the 20th October, 1868, 11th April, 1869, 11th August, 1869, 22nd December, 1869 and 11th April, 1870, for the sums of 8,025, 5,000,. 5,000, 8,000, and 10,000 rupees, respectively, making in all Rs. 36,025. These mortgages recite that money was required to defray debts due to mahajans, Government revenue, a decree due to Lala Darshan Lal, expenses relating to ghatwali cases in the Sudder Court and Privy Council, and to meet personal necessary expenses. On these mortgages at the date of the conveyance there was due Rs. 40,670-15-0 to the appellant’s ancestor, the Maharaja Sir Jaimangal Singh Bahadur, for principal and interest. The balance, which was paid in cash, went it is said, to discharge debts due to the other creditors. The second transaction, dated the 5th September, 1876, was a sale in execution against Durga Kumari. This and the third transaction, a conveyance, dated the 4th October, 1877, are connected with others which Durga Kumari had with one Nawab Lutf Ali. The latter had lent to Durga Kumari the sum of Rs. 47,000, on three mortgages, dated the 24th March, 1871, 2nd June, 1872, and 4th February, 1873, for the sums of 10,000, 20,000, and 47,000 rupees, respectively. These mortgages recite that money was required to meet expenses, of litigation in the suit brought by Durga Singh, the case of one Bhanjan Bhagat pending in the Calcutta High Court, a decree due to Msst. Thakurani Anandu Koeri, monies due on bonds to one Madho Singh and Raja Lilanand Singh in respect of High Court costs in a litigation relating to mahal Nowdiha, etc., and necessary expenses. The Maharajah gave the mortgagee a letter of security in respect of these mortgages. Ex-parte mortgage-decrees were obtained on these mortgages, two of which were subsequently set aside, but decrees, dated 17th January, 1876, were passed on the re-hearing against the mortgagor and personal decrees against the guarantor. Two annas of the taluk was then sold in execution and the Maharajah purchased this share on the 5th September, 1876, for the sum of Rs. 11,170. As this sale did not satisfy the Nawab’s mortgage-decrees, in respect of which it is alleged about Rs. 55,000, remained unpaid, Durga Kumari on the 4th October, 1877, sold 4 annas of the same taluk to the Maharajah for the sum of Rs. 56,000, which, in terms of the mortgage, was to be returned by the lender for the satisfaction of the Nawab’s claim.
14. These payments are shown in the appellant’s account books (Exh. M, N, O). These transactions disposed of 12 annas of the taluk to the Maharajah. The remaining 4 annas was disposed of as follows. On the 9th June, 1879, Durga Kuinari executed in favour of the Maharajah’s benamidar a mokarari lease of the remaining four annas, and thereafter, on the 5th February, 1881, sold for Rs. 8,000, the malikana or proprietary right to the Maharajah, who thus became proprietor of the whole 16 annas of the taluk. The mokarari lease; recites the reasons for its execution to be that Durga Kumari was a pardanashin, who could not make proper arrangements for management and collections; that she had always to borrow money to pay Government Revenue; and that she was in need of money to pay rent to Rajah Lilanand under a mokarari held by her tinder Mm. The reasons for the subsequent sale of the malikana are stated to be a debt on account of rent in arrears in respect of a mahal held under Rajah Lilanand, a debt due in the execution case of one Man Singh, other debts, and expenses of pilgrimage. As regards one of the mouzas of the taluk – Tinghara – it appears that Durga Kumari, on the 26th November, 1870, made a brahmottar of it in favour of one Ahlad Pandey. As this was subsequent to the conveyance of the 5th September, 1870, the transaction was operative only to the extent of 10 annas, but thereafter Ahlad Pandey got from the Maharajah the remaining 6 annas. The entire 16 annas was then sold to the appellant on the 20th June, 1897. The case as regards this for the respondent is that Durga Kumari could not make the gift, so that Ahlad Pandey took nothing and conveyed nothing to the appellant. The appellant contends that, if his transfers stand good, then he is entitled in any event to 6 annas of the mouzu and is not affected by the fact that his ancestor permitted Ahlad Pandey to retain possession of that portion. The property conveyed in lakhiraj brahmottar is stated in the deed executed in 1870 to yield a profit of Rs. 150 a year. It will he observed that Durga Kumari thus borrowed between the years 1870 and 1881 a sum exceeding Rs. 1,60,000 and had during the last year alienated the most substantial portion of the estate, the remaining properties being of comparatively insignificant value. It is for the appellant to establish either that there was legal necessity in fact for these large borrowings or that from sufficient enquiries made he honestly believed that there was such necessity. It has been argued that the onus upon the appellant is lightened by reason of the lapse of time. But lapse of time does not affect such a matter except in so far as it might give rise to a presumption of acquiescence or save the appellant from adverse inferences arising from the scanty proof offered. In the present case there was admittedly no acquiescence. On the execution of the first mortgage in favour of the Maharajah in 1868, Durga Prasad objected. This he did again on the execution of the first conveyance in 1870, and he subsequently brought a suit which went to the Privy Council, challenging its validity. In his petitions, dated 22nd October, 1868 (Exh. 27) and 15th October, 18,70 (Exh. 26), he alleged that there was no necessity. These objections and the suit should have put the Maharajah fully on his guard, the more particularly as had been pointed out by the Judicial Committee in the suit of 1870 that the evidence was very conflicting as to the necessity for even the first conveyance. The Maharajah then lent the money and purchased the properties at his own risk and should have taken care to obtain and preserve proper evidence of legal necessity if it existed. The appellant has not even in this suit produced all the evidence which might have been produced, such as his collection papers. And even if, he had, it would not avail him unless such evidence were sufficient to establish the fact, the onus of proving which is undoubtedly upon him. The state of affairs as regards the property at the death of Fateh Narain (and much the same state of affairs prevailed at the death of Garabh Narain) was as follows. The lower Court has found, – and this has not been contested before us, – that the allegation that a large sum in cash was made over to Durga Kumari, has not been made out. The immoveable properties consisted of taluk Chakai and two ghatwalis, Nowdiha and Chandwari. The first property was of an area of some 28 square miles and 61,981 bighas. According to the evidence of the appellant’s witness, Choa Lall, there were about 80 to 32,000 bighas of jungle and hill country. The parties are at variance as to the income derived from the immoveable property. The evidence shows that each of the ghatwalis yielded an income of about Rs. 2,000; that is Rs. 4,000 from the two. According to the appellant’s evidence the income of Chakai must have been about Rs. 8,000. His witness Choa Lall says that 6 annas of the property was sold to the Maharajah for Rs. 85,000 at thirty years’ purchase. This gives an income of Rs. 2,833 for the 6 annas and Rs. 4,720 for the 10 annas, or Rs. 7,533 for the whole. This would make the total rental about Rs. 12,000, and would show that the income tax return at Rs. 8,000 was an undervaluation, apart from the fact that income tax would not be payable on kamat land cultivated by the proprietors. For the respondent it is contended that the income from the immoveable property was, over Rs. 24,000. It is urged, in the first place, that it is not likely “that thirty years’ purchase would be paid for property in the hands of a Hindu widow alleged to be out of possession, and that fifteen or twenty years’ purchase would be the proper figure, which would make the rental of 6 annas Rs. 4,500 and of the whole 10 annas Rs. 12,000. In addition there is evidence that there were several khamars and the income derived from kamat land 5 or 6,000 rupees a year. There, it is said, income was derived from phalliar, bankar, etc. The plaintiff has produced a jamabandi of Chakai for the year 1277. This shows a total jama of Rs. 18,755-1-0. The appellants allege it to be a forgery. If it were, it is not likely that the janna would have been limited as stated in the document. The witness Nundo Lall says that it is the writing of his father, who was in the employ of Durga Kumari. His evidence is, no doubt, in many respects unsatisfactory, but we are not prepared to say that it is false when he speaks to his father’s writing. For the document is in general accord with the oral evidence, and (this we consider important) the appellant, though admittedly in possession of evidence which, if produced, might show it to be false, has not produced such evidence. He is now in possession of the entire property and has been in possession of 6 annas since the year 1870; but he has not produced his collection papers, and no reason has been given in the evidence why he has not done so. The explanation given in argument, that it might be that the Maharajah was not willing to disclose the increased value of the property, is in part at least disposed of by the evidence of Choa Lall, who says Hint the jamabandi as regards to 6 annas has only slightly increased by 400 or 500 rupees since the purchase by the Maharajah. His oral evidence that the income of the 6 annas is only Rs. 2,000 is opposed to his evidence that Rs. 85,000 was paid for it on the basis of thirty years’ purchase, Ram Prasad Singh, who is stated to know the income, is not called, and no explanation is given of this or the non-production of the collection papers. In Exh. R.R., a collectorate rubakar of 4th September, 1876, the kham or gross produce of Chakai is stated to be Rs. 6,717-8-41/4. This figure, which is said to have been derived from the proprietors’ jamabandi papers, is so greatly below the estimate of the amin (Rs. 37,688-6-81/4) as not to be reliable, though the latter may be au over-estimate. The income-tax was, no doubt, assessed in 1870, on an income from zemindari of Rs. 8,000. Apart from the possibility of under-valuation of income, it appears from a Government Resolution (Calcutta Gazette, p. 768, Jan.-June, 1869) that deduction was allowed for Government revenue, for collection charges, and for interest payable on mortgages. The assessment would also not include profits, not being rental, arising from kamat land. The conclusion at which we arrive, is that the income has been undervalued in the appellant’s argument and that it amounted at least to Rs. 18,000 odd, as stated in the jamabandi, if it was not more. But then it is said that, whatever was the income of the estate, Durga Kumari was kept out of possession from either 1865 or 1868, until the conclusion of the litigation in the Privy Council in 1878. Particular stress is laid by the appellant on the evidence of the plaintiff’s own witness, Gur Prasad Upadhayaya, who in cross-examination stated that Durga Kumari got possession 8 or 10 years after the death of Garabh Narain, that is, in 1873-5, and that during litigation no collections were made. This evidence falls short of establishing the case that possession was not had until the decision of the Privy Council in 1878. It does not appear to us to be reliable in itself, and it is not borne out by the other evidence in the case, including that of the appellant’s own witnesses. Gur Prasad Upadhyaya is the family purohit of the Tikaits of Chakai, and was called to prove the alleged family custom. In cross-examination, he spoke to the question of possession. His evidence is vague and that of a person, who does not appear to have competent knowledge on the point, and it is at variance with that given for the defendant, who relies on it.
15. The facts, as regards possession, appear to be as follows: On the death of Fateh Naraiu on 18th April, 1863, his widows appear to have been in possession. They applied for registration of their names in April, 1863, and Durga Prasad’s objection thereto was overruled. When the posthumous son Garabh Narain was born in July, 1863, he became entitled to the estate and during his life time there was no subject-matter for dispute. He died in April, 1865. After his death (when exactly, is not quite clear) disputes arose, and some time before November, 1868, Durga Kumari left, or was driven out of, the family dwelling house and went to Nagri, and on the 5th of that month she instituted a suit against her co-widows and Durga Prasad. According to the plaint in that suit she was in possession of one-third of the property. This was denied by Durga Prasad. The finding in that suit was that she was in possession of that share. Judgment was given in her favour in the lower Court on 23rd March, 1869. This decree was confirmed by the High Court on the 5th January, 1870. On the 5th September of the same year, she sold 6 annas of taluk Chakai to the Maharajah. In January, 1871, writ of possession was taken out. By the purchase, the Maharajah became a co-owner with Durga Kumari in undivided shares. Whatever may be said as to the difficulty of Durga Kumari, a Hindu widow surrounded by hostile relations, getting possession, there can be no question bit that the Maharajah, a powerful local zemindar, could not have been kept out of the enjoyment of an estate of which he had purchased a 6 annas share. There are other circumstances apart from recitals in documents, upon which great stress should not be laid. Durga Prasad’s suit in 1870, alleged, that he had been ousted from possession by Durga Kumari. In the bond executed by Durga Kumari in favour of Sidhnath in 1874, the executant purported to make over possession. He attempted to take it, but failed. If, however, she had not been in possession, she could not have prevented it. In 1873 application was made for partition of the estate. The partition proceedings went on during 1873 and 1874, and show that collections were being made. Grants were given to Durga Kumari’s pleaders in payment of their fees, and also to Ahlad Pandey. There is no record of civil or criminal proceedings as., regards possession. According to appellant’s, witness Choa Lall, Durga Kumari obtained possession of 10 annas of the property, 8 or 10 months after getting the decree dispossessing Durga Singh and Lalit Kumari, having previous to suit been in possession of one-third, though in re-examination he qualifies this statement by saying that the possession was nominal only. If the Maharajah was in possession of his undivided share, then we think his vendor must have been. If he was not in possession, his books and papers could have been produced to show that no collections we re made. It is not, however, likely that the Maharajah, who the purchaser (it is said for full value) of 6 annas of the property in 1870, was or could have been kept out of possession; nor is it likely that he remained content with a merely nominal possession. The conclusion at which we arrive, is that, though the possession of one-third of the estate between 1868 and 1870 may have been ‘precarious, possession was obtained about the year 1870 both by Durga Kumari and her vendee, the Maharajah. Then, as regards debts, these are said to be of two kinds, ancestral debts incurred by Loke Narain and Fateh Narain and amounting to 35 to 36,000 rupees, and debts due to bharnadars or usufructuary mortgagees, which are said to have amounted to not less than Rs. 20,000 besides decretal amounts. The debts of all kinds due from the estate on the death of Fateh Narain are said to have amounted to Rs. 60,000. The proof as to both classes of debts and generally as to legal necessity practically rests on the evidence of the witness Choa Lall. We may say at once that we cannot accept this witness’s evidence. He was a servant of both the former Maharjah and Durga Kumari, whose service, it is alleged, he entered with a view to furthering the Maharajah’s designs on the estate. Ahlad Panday was also a servant of both parties and is alleged to have been the chief instigator of these transactions, so far as Durga Kumari was concerned. Choa Lall is now a servant of the appellant, and he admits in cross-examination that he will lose his service if the case goes against his master. His evidence is put forward to prove practically the whole case on this issue. Apart from the question whether the witness is telling the truth as he believes it (he has been disbelieved by the Judge) he himself stated that the evidence given by him as to the alleged necessity for the loans was given after looking into the bonds and that previous to that he had no recollection, further than this he admits that he entered into the service of Durga Kuinari only some 5 or 7 days before she left the family dwelling house at a time when he was, as we have stated, also a servant of the Maharajah. The only documentary evidence (and that the Judge has accepted) is a decree in favour of Kirat Chand for Rs. 2,800. As regards the recitals in the five bonds, in favour of the Maharajah, there are general statements that debts are due to mahajans, but with the exceptions noted, it is not stated when, by whom, for what purpose the alleged debts were incurred, their amount, or the names of the creditors. The debt of Darshan Lall (mentioned in the bond of 25 Cheyt 77) appears from the petition of the creditor not to have been an ancestral debt. The conveyance of the 6 annas mentions the name of Saheb Ram Hoy, but there is no documentary evidence of his debt, though it is said, he obtained a decree. This absence of details in the recitals is the more remarkable in that the evidence for the defendant is that the Maharajah made due enquiry and in the course of the enquiry demanded documentary evidence, that lists were prepared, which were made over to him but are not forthcoming, and that details were written in his rokar books, which are not produced. The mortgage bonds of Lutf Ali Khan do not mention ancestral debts. No doubt, in the suit of Durga Prasad, Durga Kumari, in her written statement, alleged that her husband had died, leaving debts to the extent of Rs. 60,000, but this statement was made at a time when her conveyance to the Maharajah was being impeached and in support of it in a joint defence by herself and the Maharajah, the purchaser. Beyond the existence of the decree in favour of Kirat Chahd, we hold that the existence of the alleged ancestral debts has not been established. Then it is said, that certain bharnas or usufructuary mortgages were paid off. The evidence of Choa Lall, the defendant’s witness, is that some of these were registered and that the Maharajah demanded that, when paid off, they should be returned to him. No bharna or copy of a bharna has been produced, and no explanation has been given of this circumstance. Although it is alleged, that large portions or the whole of Chakai were in possession of bhamadars no mention of bharna is to be found in any of the bonds or conveyances executed, except the alleged bond in favour of Sidh Nath Singh, the subject of the cross-appeal. But if there were such debts, the recital in this bond is contrary to the evidence that all these debts were paid off prior to 1870 by moneys borrowed from the Maharajah. According to the witness Ghanshyam Pandey, Ahlad Pandey got back all the mortgages. This man had been, as was Choa Lall, in the service of the Maharajah. Though the evidence is that the Maharajah required these documents he is unable to say whether Ahlad Pandey made them over to the Maharajah. In this connection we may observe that Choa Lall says that, on being asked for a loan, the Maharajah made enquiries by “asking creditors, seeing papers, as well as copies of decrees. As to the decrees in execution, enquiries were made by asking the mahajan decree-holders, and about instituting civil suits pleaders and mukhtiars were consulted.” Except, however, as stated, no such decree-holders have been called or papers or decrees produced. We hold that the existence of these bharnas has not been” established. Then it is said that expenses were incurred in the litigation relating to the ghatwalis. There is no evidence what the litigation was, what stage it had reached, what expenses were incurred, or what was reasonably required. That 13 or 14,000 rupees were paid for obtaining a korari settlement of the ghatwali mehals depends on the the testimony of Choa Lall alone, who says that, of this sum, Rs. 7,000 was paid away in bribes to Rajah Lilanand’s amlahs, Rs. 4,000 to Raja Lilanand himself, and Rs. 2,000 to his son. Though the bribes would not, of course, so appear, the payment to the Rajah should appear in the mokarari deed. But this has not been produced. We cannot rely on Choa Lall’s evidence alone, either as regards this matter or the alleged necessities of Durga Kumari. Then it is said that the expenses were incurred in the course of the litigations which took place between Durga Kumari and Durga Prasad. That there were such litigations is a fact, and expenses must have been incurred. But it is not sufficient to establish these two facts. It must be shown that the expenses could not have been made from the income of the estate, that they were reasonable, and what they were. The evidence is of a very vague character and practically depends on Choa Lall, whose testimony, we agree with the Subordinate Judge in not accepting. Choa Lall says that 6 to 7,000 rupees was spent in Durga Kumari’s suit in the lower Court and 8 to 9,000 rupees in the High Court; that 8 to 9,000 rupees was spent in defending Durga Prasad’s suit in the lower Court and 20,000 in the High Court. There is no evidence as to expenses incurred in the appeal to the Privy Council. There is no documentary evidence in support of all these vague statements, and such evidence as there is available shows that they are not correct. The appellant’s own witness, Tarini. Prasad, states that Durga Kumari’s cost of litigation in the two suits at Bhagalpur must have extended to 2,000 rupees. As regards pleader’s fees, the decree of the Subordinate Judge of the 23rd March, 1869, in the first suit, shows that two pleaders appeared for the then plaintiff, whose costs were Rs. 1,935-9. Two pleaders appeared on appeal to the High Court, where the costs allowed “were Rs. 183-2-4. The decree in the second suit is not on the record. Two pleaders appeared in it for Durga Kumari, and these same two pleaders with another appeared for the Maharajah, who was a co-defendant. The defence was a joint one, and, if Durga Kumari had been properly advised, she would have left the Maharajah, who was the party really interested, to fight the case. In the High Court the same counsel and pleaders appeared for both the Maharajah and Durga Kumari. The evidence of Choa Lall as regards the pleaders employed appears to be untrue. He mentions some “names which are not to be found in the documents, and says that Gopal Babu was a pleader for Durga Kumari and received Rs. 120 a day, whereas the record shows that he was a pleader for Narain Kumari. Even if this witness were trustworthy, we should have considered his evidence to be under the circumstances too vague.
16. Apart from this, the moneys alleged to have been borrowed from Lutf Ali for the purposes of litigation (the legal necessity for which has not been proved) were admittedly obtained in the first instance by the Maharajah’s own servants and brought to his residence at Pashanda. It is, no doubt, alleged by Choa Lall that it was there made over to Durga Kumari. But this we are not disposed to believe. The Maharajah was interested himself in the second suit, in fact the only party interested, and he had given his personal security for the loan. It is not likely that it was made over to Durga Kumari, who might then have refused to part with it and left the Maharajah to find the funds’ for the litigation which impeached his purchase from her. Under these circumstances, it was further incumbent on the Maharajah to show the disposal of the money over which we think he kept control. It is possible that some portion went towards the expenses of Durga Kumari; but what portion does not appear, and no accounts of the cost of the litigation are produced.
17. As regards Bhanjan Bhagat’s litigation, no decree or other papers are produced. What was the amount of the decree or costs is not stated.
18. Then some vague evidence is given as to the expenses for wages of servants and living expenses of a quite valueless character. The argument on this head is merely speculative. The living expenses have been fixed at 250 rupees a month, though no one has said so, and the total estimate on this head is dependent on the assumption that Durga Kumari was out of possession till 1878, a matter with which we have already dealt. It appears to us to be quite clear that the defendant has failed to establish legal necessity, in fact, for the transactions is suit. As regards the mokrari, learned pleader for the appellant admitted in appeal that he could not support it or the subsequent sale of malikana in so far as the conveyance was concerned, but he claimed to be entitled to a charge for the sum of Rs. 8,000, which, he says, he actually paid for the Mialikana. Of this sum, Rs. 6,000 is alleged to have been paid to one Manrup under a decree, though the particulars of his debt are not proved, and the evidence given on this point is of a conflicting and unsatisfactory character. The balance of Rs. 2,000 is said to have been taken to meet litigation expenses and expenses of pilgrimage. What litigation expenses does not appear, and as this was in 1881 when the litigations spoken to were all over and very considerable sums had, it is said, been received for the same alleged purpose, the evidence does not appear to be true. We hold that that the defendant-appellant is not entitled to any charge on this account.
19. As regards the purchase at the auction sale in 1876, the sum paid was Rs. 11,170, though the proper price was at least Rs. 28,000. The sale certificate has not been produced. There is nothing to show that the Maharajah purchased more than a life-interest. The decree was a decree of the Patna Court, and the property was in Monghyr. It was a money-decree passed in Patna on the ground that the money was repayable in Patna. We hold that this Court-sale was not binding on the plaintiff.
20. Lastly, as regards the brahmottar gift to Ahlad Pandey made “for the purpose of propitiating malignant planets.” The value of the property so dealt with appears from Ex. P., by which it was sold to the Maharajah in 1897, to be Rs. 11,000. The grantee was not a purohit of Rajbansi Rajputs, but of Sudras, and he appears to have come over to Durga Kumari from the employment of the Maharajah with a view to securing her property for the latter. The gift was made almost immediately after she had sold 6 annas to the Maharajah, who had his eye on the property, and apparently it was Ahlad’s reward for having arranged the sale. From the jama hharach (Ex. 7a-7d) of the Maharajah it appears that the latter paid the fee for the registration of the deed of gift. Sahebram, a connection of Ahlad, living with Durga 3 Kumari, is also shown by the same accounts to have received a reward of Rs. 1,000. Though Tikaitni had at this time power of disposal over only 10 annas, the other 6 having already been disposed of to the Maharajah, the latter ratified the grant as regards his 6 annas. Choa Lall was a witness to the deed of gift; so also was Sarman Pandit, to whom shortly after another deed of gift is made likewise “for the propitiation of malignant planets.” It has been contended that the deed of gift to Ahlad Pandey was for a pious purpose, and that a Hindu widow may alienate small portions of the estate for such a purpose even though not conducive to the spiritual welfare of the deceased husband. We need not discuss the law on this point as, on the facts, we are of opinion that, even if the gift to the agent of this lady had really been made for the purpose declared in the document, she was not, regard being had to the value of the property, entitled to alienate it. It is to be observed that she did this at a time when (according to the appellant) she was in such poor circumstances that she had had to sell 6 annas of the estate to repay her borrowings. We have ourselves held that no necessity has been established to justify the sale. In no case under the circumstances was this gift justified so as to be binding on the reversioners.
21. We hold that no legal necessity in fact has been proved and we now pass to the question whether the Maharajah is protected by the enquiries he is alleged to have made. It appears from the evidence that the Maharajah’s property surrounds on all sides that in suit and that he had a mind to purchase the latter. This is the evidence of his witness Choa Lall. When troubles arose in the respondents’ family, we find servants of the Maharajah going over to, and taking employment with, Durga Kumari. These persons were, in fact, purporting to serve two masters. They or some of them go over with their mistress to the Maharajah to borrow money on the security of the property which the Maharajah wished to purchase. The departure of Durga Kumari from the family dwelling-house is followed by the first bond of 20th October, 1868. In November of that year she filed her suit alleging that she had been dispossessed of two-thirds of the property only. A decree was obtained in” four months, and the litigation was concluded in 14 months. Shortly thereafter Durga Prasad brought his suit. This litigation went on till 1878, and during this time all the transactions in suit took place except the mokarari. The result of this was that the lady, in the course of defending her husband’s estate was deprived entirely of its most valuable possession. After the first of the transfers to the Maharajah, Ahlad Pandey and others appear to have been rewarded. Though we do not rest our judgment on this point, we doubt whether Durga Kuiuari knew what was being done by Ahlad Pandey in her name. The Judge has found that the full price was paid for the first conveyance, and, if this be so, good value was given for the conveyance of 1877; and this circumstance is relied on to show that the Maharajah was buying the inheritance. This, though a circumstance in his favour, is obviously insufficient by itself; for otherwise every transaction with a Hindu widow for full value would be valid. On the other hand an obviously insufficient sum was given for the moltarari at a time when there was admittedly no litigation. Even according to the appellants’ estimate, the income of a 4 annas share of Chakai would be worth. 15 or 1,600 rupees, yet the rental was only 500 rupees, of which half was payable for revenue. Then shortly afterwards even that is taken over from Durga Kumari for Rs. 8,000, of which only Rs. 2,000 is said to have been paid in cash. This property, according to the appellant’s own valuation (as set upon the first 6 annas sold), was worth Rs. 56,000. The purchase of the 2 annas at the auction sale in 1876, was also very much under value. In the result, by these various transactions the Maharajah, who in the evidence is stated to have been a clever man of business, obtained possession of the whole of the estate, which was in the centre of his own property, and which he had all along a mind to purchase. It is necessary to refer to these circumstances both as bearing upon the question of the likelihood and the nature of the enquiry made and because it has been represented on the appellant’s behalf that the Maharajah only came forward out of motives of kindness to assist a persecuted woman, and with the same object gave his personal security for loans made for expenses of a litigation in which he was the party really interested. Nextly, it is to be generally observed that the Maharajah was from the very commencement put on his guard that the next reversioners challenged the validity of his transactions with Durga Kumari. The evidence as to his alleged enquiry is as follows: Madho Singh says that the Maharajah did not make enquiries through him or in his presence, but that Ahlad Pandey used to give lists of the expenses required mentioning the purposes for which they were required. These lists were all with the Maharajah, but after execution of the documents “were not cared for.” Mosaheb Lall says that the Maharajah enquired of Ahlad Pandey and Ghanshyam, who were his own servants, and of Durga Kumari; that he did not make any other enquiry at any other place; and that he did not consult the heirs. Enquiry should be of the creditors and heirs, not merely of debtor, who wants to borrow and as regards whom, the question arises of the right to borrow. This evidence is obviously insufficient. Joy Earn Ray, moreover, contradicts it and says that besides enquiry of the servants mentioned, including Choa Lall, Durga Kumari’s father and several others were consulted. Ghanshyam says that enquiries about the creditors were not made of the creditors themselves, but of Ahlad Pandey and that list and accounts were given to the Maharajah which have not been produced. In this connection we may mention that the evidence is that money for maintenance was lent on chittas and purjahs which were put before the Maharajah but which also have not been produced. Tarini Prasad, the retained pleader of the Maharajah, states that he was not consulted. Choa Lall in general conformity with the rest of his evidence, carries the case further than all the other witnesses. He says, contrary to the other evidence, that the amlas of the Maharajah were sent to make enquiry and that enquiries were made of the creditors themselves. Papers and copies of decrees were inspected. Decree-holders were consulted as also pleaders and mukhtears. These documents are not produced, nor are any of the creditors examined, nor are the decrees recited in the bonds. He says, further, that the Maharajah himself personally made enquiry. If this witness were a trustworthy one, we should be disposed to say that he gave evidence as to what he thought must have-been done and not as to what he personally knew had been done. But we do not believe his evidence for the general reasons already stated and, further, because it is not in accordance with the rest of the evidence on this point. We agree with the learned Subordinate Judge in disbelieving the defendant’s evidence on this part of the case. He has not, in our opinion, established that he made a sufficient or bond fide enquiry and that he did all that was reasonable to satisfy himself of the existence of the legal necessity alleged.
22. We now proceed to deal with the cross-appeal. It relates to the sum of Rs. 38,134-5-4, upon the condition of payment of which the property in suit has been decreed to the plaintiff. The learned Subordinate Judge has considered that the appellant is entitled to a charge on the estate for this sum. The facts on this point are as follows: Durga Kumari on the 30th January, 1874, executed a mortgage in favour of one Sidh Nath Singh; a son-in-law of Durga Prasad. Right annas of taluk Chakai were mortgaged for one lakh. Of this sum, it is alleged, that Rs. 35,000 was advanced. Sidh Nath attempted “to take possession and brought rent suits against certain tenants, but failed. Having occasion to borrow money himself Sidh Nath executed a mortgage in favour of the banker, Dhunput Singh. By this mortgage he mortgaged this bond and other properties. Dhunput Singh brought a suit against Sidh Nath and got himself appointed receiver therein. As such receiver, he, in 1892, brought a suit against Durga Kumari and the Maharajah (who had then acquired and was in possession of 16 annas of the property) to recover the moneys alleged to be flue on mortgage to Sidh Nath. At this time, as already stated, the whole of 16 annas of Chakai was with the Maharajah, and Durga Kumari had no I interest therein. The suit was contested by the Maharajah, and Durga Kumari filed a written statement in which she stated that Sidh Nath Singh had procured the bond from her by fraud. She denied that she had received the sum of Rs. 35,000 or any sum whatever. Dhunput Singh, however, obtained a decree against the Maharajah, who then appealed to the High Court. In this Court the case was compromised upon the terms of the Maharajah taking over Sidh Nath’s bond in consideration for the sum of Rs. 38,134-5-4, paid by him to Dhunput Singh. Under these circumstances the Subordinate Judge has held that the payment by the Maharajah must be held to be one that benefited the estate, although he then made it to protect his own interest. In so holding, the Subordinate Judge was, we think, in error. The Maharajah was at the most (if he was that) an assignee of Sidh Nath’s bond. That being so, it is not sufficient to show that the Maharajah paid Dhunput Singh, but it must be shown that Sidh Nath lent the money, and that he lent it for purposes of legal necessity. The payment by the Maharajah can only be said to have benefited the estate if Sidh Nath’s mortgage was valid and for legal necessity. If Sidh Nath had himself sought to enforce the mortgage against the reversioner after the widow’s death, he would have had to prove legal necessity. There is no evidence of such necessity. On the contrary the Maharajah’s own evidence negatives the possibility of its existence, because the reason given as to the necessity in Sidh Nath’s bond are debts which, according to the appellant’s case, had been already paid off. The result, therefore, is that the appeal of the Maharajah is dismissed with costs, and the respondent’s cross-objections, except as to Kirat Chand’s debt (Rs. 2,800), succeed with costs.
