21 May 1954
Supreme Court


Case number: Appeal (civil) 108 of 1952






DATE OF JUDGMENT: 21/05/1954


CITATION:  1954 AIR  505            1955 SCR  467

ACT:    Hindu  law-Widow’s estate--Nature of-Whether anybody  has got  vested right in the estate during her  life-time-Actual reversioner-Whether    claims   through   the    presumptive reversioner preceding him.

HEADNOTE:     It  is a well-settled doctrine of Hindu law that  nobody has  a  vested right so long as the widow is alive  and  the eventual reversioner does not claim through any one who went before him.    The interest of a Hindu widow in the properties inherited by  her  bears  no analogy or resemblance  to  what  may  be described  as an equitable estate in English law  and  which cannot be followed in the hands of a bona fide purchaser for value without notice.  A Hindu widow has got only  qualified proprietorship  in  her estate which she can  alienate  only when  there is justifying necessity and the restrictions  on her  powers of alienation are inseparable from  her  estate. For  legal necessity she can convey to another  an  absolute title  to the property vested in her.  If there is no  legal necessity the transferee gets only the widow’s estate  which is  not even an indefeasible life estate for it can come  to an end not merely on her death but on the happening of other contingencies  like  re-marriage,  adoption,  etc.   If   an alienee  from  a Hindu widow succeeds in  establishing  that there  was  legal necessity for transfer, he  is  completely protected  and  it  is immaterial  that  the  necessity  was brought  about  by the mismanagement of  the  limited  owner herself.   Even if there is no necessity in fact, but it  is proved  that there was representation of necessity  and  the alienee  after making bona fide enquiries satisfied  himself as best as he could that such necessity existed, the  actual existence of a legal necessity is not a condition  precedent to  the  validity  of the sale.  Therefore if  there  is  no necessity in fact or if the alienee could not prove that  he made  bona  fide  enquiries  and  was  satisfied  about  its existence, the transfer is not void but the transferee would get  only the widow’s estate in the property which does  not in any way affect the interest of the reversioner.    Debi  Prasad  Chowdhury v. Golap Bhagat (I.L.R.  40  Cal.



721),  Rangasami Gounden v. Nachiappa Gounden (46 I.A.  72), Bajrangi  v.  Manokarnika  (35 I.A.  1),  The  Collector  of Masulipatam   v.  Cavaly  Venkata  (8  M.  I.A.   529)   and Hunoomanpersaud Pandey v. Musammat Babooee Munraj  Koonweree (6 M.I.A. 393) referred to.

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 108 of 1952.    Appeal from the Judgment and Decree dated the 29th March, 1950, of the High Court of Judicature at 468 Calcutta  in  Appeal from Original Decree No.  121  of  1945 arising  from the Decree dated the 22nd December,  1944,  of the Court of Subordinate Judge at Alipore, in Title Suit No. 70 of 1941.   N. C. Chatterjee (C.  N. Laik, D. N. Mukherjee and Sukumar Ghose, with him) for the appellants.   S. P. Sinha (B.B. Haldar and S. C. Bannerji, with him) for respondents Nos.  I to 3.    1954.   May 21.  The Judgment of the Court was  delivered by MUKHERJEA  J.-This  appeal, which has come before us,  on  a certificate  granted  by the High Court of  Calcutta,  under article  133(1) of the Constitution, is directed  against  a judgment and decree of a Division Bench of that Court  dated the  29th  March, 1950, affirming, on appeal, those  of  the Subordinate  Judge, Fourth Court, Alipore, passed  in  Title Suit.  No. 70 of 1941.    The  appellants  before  us  are  the  heirs  and   legal representatives of the original defendant No. 3 in the suit, which was commenced by the plaintiffs respondents to recover possession  of the property in dispute, on establishment  of their  title, as reversionary heirs of one  Haripada  Patra, after the death of his mother Rashmoni, who got the property in  the  restricted  rights  of  a  Hindu  female  heir   on Haripada’s  death.  To appreciate the contentions that  have been  raised  by  the parties to this  appeal  it  would  be necessary  to  narrate the material facts  in  chronological order.    The  property  in  suit which is premises  No.  6  Dwarik Ghose’s  Lane situated in the suburb of Calcutta  admittedly formed  part of the estate of one Mahendra Narayan Patra,  a Hindu inhabitant of Bengal, owning considerable  properties, who died on the 17th April, 1903, leaving him surviving  his widow  Rashmoni,  two infant sons by her, Mohini  Mohan  and Haripada  and  a grandson Ram Narayan by a  predeceased  son Shyama Charan.  Shyama Charan was the son of Mahendra by his first  wife,  who  died during his lifetime.   On  the  17th February,  1901, Mahendra executed a will by which  he  made certain religious and charitable dispositions and 469 subject.  to  them, directed his properties  to  be  divided amongst his infant sons Mohini and Haripada and his grandson Ram Narayan.  Ram Narayan was appointed’ executor under  the will.  After the death of Mahendra, Ram Narayan applied  for probate  of the will and probate was obtained by him on  the 6th   of  October,  1904,  Ram  Narayan  entered  upon   the management  of  the estate.  He  developed  extravagant  and immoral  habits  and soon ran into debts.  The bulk  of  the properties  were  mortgaged  to one  Kironsashi  who  having obtained  a decree on the mortgage applied for sale  of  the mortgaged  properties.  Thereupon Rashmoni on behalf of  her infant sons instituted a suit against the mortgagee and  the



mortgagor  and  got a declaration that the  mortgage  decree could not bind the infants’ shares in the properties left by their  father.  This judgment was given on the  31st  March, 1909.   On  the 13th August, 1909, the two  infant  sons  of Mahendra  to  wit Mohini and Haripada, by their  mother  and next friend Rashmoni, instituted a suit in the Court of  the Subordinate  Judge  at Alipore, being Title Suit No.  45  of 1909, claiming administration of the estate left by Mahendra as  well as partition and accounts on the basis of the  will left by him.  On the 14th of August, 1909, one Baroda  Kanta Sarkar,  Sheristadar  of the Court of  the  District  Judge, Alipore,  was appointed, with the consent of  both  parties, receiver  of  the estate forming the subject-matter  of  the litigation.  The receiver took possession of the  properties immediately  after this order was made.  The -management  by the  receiver,  as  it appears, was not  at  all  proper  or beneficial  to  the interest of the two  sons  of  Mahendra. Mahendra  himself  left  no debts and  whatever  debts  were contracted,, were contracted by Ram Narayan to meet his  own immoral and extravagant expenses.  The receiver however went on  borrowing  large  gums of  money  upon  ex-parte  orders received from the Court, the ostensible object of which  was to  pay off the debts due by Ram Narayan which were  not  at all binding on the plaintiffs.  Fearing that the longer  the suit  continued and the properties remained in the hands  of the receiver the more harmful it- would be to the  interests of the 470 minors,  Rashmoni  on behalf of the minors  compromised  the suit. with Ram Narayan and a Solenama was filed on the  13th June,  1910.   The terms of the  compromise,  in  substance, were, that the properties in suit were to be held in divided shares  between  the three parties and  specific  allotments were made in favour of each, the properties allotted to  the share of Haripada being specified in schedules Gha and  Chha attached  to  the  compromise  petition.   It  was   further provided that the receiver would be discharged on submitting his  final  accounts.   It may be mentioned  here  that  the property  which  is the subject-matter of the  present  suit was, under the Solenama, allotted to the share of  Haripada. On  the  very day that the compromise  was  filed,  Rashmoni applied  for discharge of the receiver.  The Court  made  an order  directing the receiver to submit his  final  accounts within  one  month,  or as early as  possible,  when  the  - necessary order for discharge would be made.  It was further directed that as the suit was disposed of on compromise  the receiver should discontinue collecting rents and profits due to  the  estate  from  that day.   This  order  however  was modified  by  a subsequent order made on 23rd June,  19  10, which  directed  that  the  receiver  was  to  continue   in possession of the estate until he was paid whatever was  due to him for his ordinary commission and allowances and  until the  parties deposited in Court the amounts borrowed by  the receiver  under  orders of the Court or in  the  alternative gave  sufficient  indemnity  for  the  same.   After   this, Rashmoni  on behalf of her minor sons filed  two  successive applications  before  the  Subordinate  Judge  praying   for permission  to raise by mortgage, of a part of  the  estate, the moneys necessary for releasing the estate from the hands of the receiver.  The first application was rejected and the second  was granted, after it was brought to the  notice  of the  Subordinate Judge that the receiver was  attempting  to dissuade  prospective lenders who were approached on  behalf of  Rashmoni,  to  lend any money to her.  On  the  16th  of January, 191 1, Haripada, the younger son of Rashmoni,  died



and his interest devolved upon his mother as his heir  under the  Hindu  law.  On the 28th January, 1911,  the  following order was recorded by the Suborainate Judge: 471     "The  receiver has filed a statement showing the  amount as  due  to him up to the end of the. current  month.   This claim amounts to Rs. 20,950-2-6 pies only.  The parties  may deposit the sum on or before the 1st February next in  Court and on such deposit the receiver will be discharged and  the possession of the estate of late Mahendr Narayan Patra, will be made over to the parties."      On  the very same day Mohini exectued a  mortgage  (Ex. M-1) in favour of one Suhasini Dasi by which he hypothecated the  properties  allotted to his share and also  his  future interest  as reversions to the share of Haripada, to  secure an advance of Rs. 30,000.  The loan was to carry interest at the  rate of 18% per annum.  One thing may be  mentioned  in connection with this mortgage, and that is, that amongst the properties  included  in the mortgage were  two  properties, namely,  premises No. 15/1 and 16 Chetlahat Road, which  had already been sold and to which the mortgagor bad no title at the date of the mortgage.  On the 1st February, 1911, Mohini deposited  in Court the sum of Rs. 2,0,950-2-6  pies,  being the amount alleged to. be due to the receiver and the  Court by an order passed on that date directed the release of  the estate from the hands of the receiver.  After the estate was released a petition was filed on behalf of the plaintiffs on the  15th February, 1911, praying that the loans said to  be contracted  by  the receiver should not be paid out  of  the money deposited in Court, as these borrowings were made  not for  the protection of the estate but only for the  personal benefit  of the defendant, Ram Narayan, and to pay  off  his creditors.   It was contended that the loans raised  by  the receiver were not raised in good faith, after proper  notice to  the  plaintiffs but on the strength of orders  which  he obtained   ex-parte  from  the  Subordinate  Judge   without disclosing  the  material  facts.   This  application.   was rejected by the Court on the 23rd February,1911.  After this order was made,the plaintiffs put in a petition praying that payment  of  the  moneys,  due to  the  creditor-  with  the exception  of  what  was necessary to pay  off  one  of  the creditors,  named  Rakhal  Das Adhya,  be  stayed  till  the following Monday 472 as the plaintiffs wanted to move the High Court against  the order  of the Subordinate Judge mentioned above.  The  Court granted  this  prayer  and on the 2nd  of  March  following, orders were received from the High Court directing that  the moneys were to be detained in Court pending further  orders. The  High Court made order on the plaintiff ’s  petition  on the  29th May, 1911.  The learned Judges were very  critical of  the  appointment  of the Sheristadar  of  the  Court  as receiver  of the estate and in no measured terms blamed  the Subordinate  Judge for passing ex-parte, orders for  raising loans  on  the  applications of  the  receiver  without  any investigation  at  all and the receiver also  for  borrowing money not for the benefit of the estate but for the personal benefit  of  Ram  Narayan, the defendant.   The  High  Court directed a full and proper investigation of the accounts  of the receiver by a Commissioner and a Vakil of the High Court was  appointed for that purpose.  The Commissioner  after  a protracted  enquiry submitted his report which was  accepted by  the  High Court.  Under the final orders passed  by  the High  Court not only were the plaintiffs held not liable  to pay any money to the receiver but the receiver was  directed



to pay a sum of Rs. 6,708 to the plaintiffs.  The plaintiffs were  also  to-receive  Rs. 4,084 from  the  defendant,  Ram Narayan.   The  defendant  was  to pay  Rs.  19,124  to  the receiver and the receiver wag made personally liable for the loans that he had incurred.  This order was made on the 23rd July, 1913.     In the meantime while the investigation of accounts were going on under orders of the High Court, Rashmoni,  together with her son Mohini executed a security bond -(Ex.  E-1)  on the  1st  August, 1911, and it is upon the legal  effect  of this  document  that the decision of this  case  practically depends.   By  this  security bond, which  was  executed  in favour of Suhasini Dasi, the mortgagee in the mortgage  bond of  Mohini,  Rashmoni  purported  to  hypothecate  all   the properties  that she got as heir of Haripada, as  additional security  for  the loan of Rs. 30,000  already  advanced  to Mohini  under  the  mortgage.  As  is  stated  already,  two properties  situated at Chetla were included in the mortgage of 473 Mohini  although they were already sold.  The security  bond recites  that the mortgagee having discovered this fact  was about  to Institute legal proceedings against the  mortgagor and   it  was  primarily  to  ward  off   these   threatened proceedings  and remove any apprehension from the  minds  of the  mortgagee  about the sufficiency of the  security  that this  bond was executed.  It is further stated in  the  bond that  the estate of Haripada in the hands of his mother  was benefited  by the deposit of Rs. 20,950 in Court  by  Mohini Mohan out of the sum of Rs. 30,000 borrowed on the  mortgage and  that Mohini had spent the remaining amount of the  loan towards  clearing certain debts of Rashmoni herself  and  to meet  the  litigation and other expenses of  both  of  them. Mohini  died  soon after on the 8th of  November,  1911.  On October  13, 1917, Suhasini instituted a suit for  enforcing the mortgage and the security bond against Rashmoni and  the heirs of Mohini. preliminary decree was passed on compromise in  that suit on the 24th September, 1918, and on  the  25th July,  1919, the decree was made final.  The decree was  put into  execution and on the 15th September, 1919, along  with other properties, the property in dispute was put up to sale and it was purchased by Annada Prasad Ghose for Rs.  13,500. On  the  14th  November, 1919,  Bhubaneswari,  wife  of  Ram Narayan, as guardian of her infant sons filed a suit,  being Title  Suit No. 254 of 1919 against Suhasini,  Rashmoni  and Annada  attacking  the  validity  of  the  mortgage   decree obtained  by  Suhasini  as well as  the  sale  in  execution thereof.   The  suit ended on the 6th July,  1921,  and  the plaintiff  gave up her claim.  On September 5, 1922,  Annada Ghose borrowed a sum of Rs. 10,000 from Sarat Kumar Das, the original defendant No. 3 in, the suit and the father of  the present   appellants  and  by  way  of  equitable   mortgage deposited  with the lender the title deeds of  the  property No.  6,  Dwarik Ghose Lane.  On the  14th  September,  1925, Annada sold the property by executing a conveyance in favour of the mortgagee Sarat Kumar Das for a consideration of  Rs. 15,500.  On the 8th June, 1939, Rashmoni died.  About a year later on July 15, 1940, the three sons of Ram Narayan, who 61 474 are  the reversionary heirs of Haripada after the  death  of Rashmoni,  commenced  the present suit in the Court  of  the Subordinate Judge at Alipore claiming to recover  possession of  the property on the allegation, that the  security  bond executed by Rashmoni not being supported by legal necessity,



the  sale  in  execution  of the mortgage  as  well  as  the subsequent  conveyance  in favour of Sarat Kumar  Das  could pass  only  the right, title and interest  of  Rashmoni  and could not affect the reversionary rights of the  plaintiffs. Several  other persons were impleaded as parties  defendants and  a  number of issues were raised with which we  are  not concerned  in this appeal.  What concerns us in this  appeal is  the dispute between the plaintiffs on the one  hand  and defendant  No.  3 on the other and  this  dispute  centered. round three points, namely,     (1)Whether  the  security bond (Ex.   E-1)  executed  by Rashmoni along with Mohini was executed for legal, necessity and  was therefore binding on the reversioners, of  Haripada after the death of Rashmoni ?    (2)Whether the fact that Mohini, who was the  presumptive reversioner  at  that  time,  joined  with  his  mother   in executing  the  security bond would make it binding  on  the -,actual  reversioner after the death of Rashmomi?  In’  any event  if  such  consent  on the  part  of  the  presumptive reversioner  raised  a presumption of legal  necessity,  was that  presumption  rebutted  in  the  present  case  by  the evidence adduced by the parties ?    (3)Whether the title of defendant No. I was protected ,he being  a stranger purchaser who had purchased the  -property from the purchaser at an execution sale after making  proper enquiries and obtaining legal advice ?    The trial Judge by his judgment dated the 22nd  December, 1944,  decided all these points in favour of the  plaintiffs and  decreed  the suit.  On appeal by the defendant  to  the High  Court, the decision of the trial Judge  was  affirmed. The  heirs of defendant No.3 have now come up to this  Court and  Mr. Chatterjee appearing in support of the  appeal  has reiterated  all the three points which were urged on  behalf of his clients in the Courts below. 475 On  the  first  point  both  the  Courts  below  have   held concurrently,  that there was absolutely no legal  necessity which  justified  the  execution of  the  security  bond  by Rashmoni in favour of Suhasini.  Mr. Chatterjee lays  stress on the fact that it was a matter of imperative necessity for both  the plaintiffs to get back the estate of their  father from  the hands of the receiver as the debts  contracted  by the receiver were mounting Up day after day.  It is  pointed out  that  on the 28th January, 1911, the Court had  made  a peremptory order to the effect that the properties could  be released  only if the plaintiffs deposited Rs. 20,950  annas odd on or before the 1st February next.  In order to  comply with  this  order  Mohini had no other  alternative  but  to borrow- money on the mortgage of his properties and this  he had  to do before the 1st February, 1911.  It is  true  that because of the unfortunate death of Haripada only a few days before,  Rashmoni could not join in executing  the  mortgage but she, as heir of Haripada, was really answerable for half of the money that was required to be deposited in Court.  It is  said  that this was not a mere moral  obligation  but  a legal  liability  on the part of the lady, as  Mohini  could have  claimed  contribution  from her  to  the  extent  that Haripada’s  estate  was  benefited  by  the  deposit.    The execution  of  the  security  bond  therefore  was  an   act beneficial  to  the estate of  Haripada.   The  contentions, though  somewhat plausible at first sight, seem to us to  be wholly  without  substance.  In the first  place  the  money borrowed by Mohini or deposited by him in Court did not  and could  not benefit Haripada’s estate at all.  As was  found, on investigation of accounts, under orders of the High Court



later  on,  nothing at all was due to the  receiver  by  the estate  of Haripada or Mohini.  On the other hand, both  the brothers  were entitled to get a fairly large sum  of  money from the receiver.  The trial Judge found that there was  no urgent  necessity to borrow money for releasing  the  estate and in fact it was Mohini who acted in hot haste to  execute the mortgage, his only object being to get the properties in his own hands.  It may be, that it was not possible to  know the actual state 476 of  affairs  with  regard to the’  receiver’s  accounts  and consequently  it  might well have been  thought  prudent  to borrow money to ward off what was considered to be a  danger to   the  estate.   This  might  furnish  some   excuse   or explanation  for  Mohini’s  borrowing  money  on  the   28th January, 191 1, but that could not make the act of  Rashmoni in  executing  the security bond, seven  months  after  that event,  an  act of prudent management on her  part  dictated either  by legal necessity or considerations of  benefit  to the estate of her deceased son’ In the first place it is  to be  noted-that the total amount borrowed by Mohini  was  Rs. 30,000  out  of which Rs. 20,950 only were  required  to  be deposited  in Court.  The recital in the security bond  that the  rest  of  the money was spent by,  Mohini  to  pay  off certain  debts  of  Rashmoni herself and also  to  meet  the litigation  and household expenses of both of them has  been held  by  the Subordinate Judge to be false.   It  has  been found  on facts that Rashmoni had no occasion to  incur  any debts  either  for  litigation expenses  or  for  any  other purpose.   But the most important thing that  would  require consideration  is the state of things actually  existing  at the  time when the security bond was executed.  Even if  the release  of the estate was considered to be desirable,  that had  been already accomplished by Mohini who borrowed  money on  his own responsibility.  The utmost that could  be  said was  that  Rashmoni  was bound to reimburse  Mohini  to  the extent that the deposit of money by Mohini had benefited the estate of Haripada.  The High Court has rightly pointed  out that Rashmoni did not execute the bond to raise any money to pay  off her share of the deposit and in fact  no  necessity for  raising money for that purpose at all existed  at  that time.  As has been mentioned already, by an order passed  by the  High Court on the revision petition of Mohini  and  his mother against the order of the Subordinate Judge dated  the 23rd February, 191 1, the whole amount of money deposited in Court  on the 1st, February, 191 1, with the exception of  a small  sum that was paid to a creditor, with the consent  of both parties, was detained in Court.  The High Court dispos- ed of the revision case on 29th May, 1611, and directed 477 investigation  into  the  accounts  of  the  receiver  by  a Commissioner  appointed by it.  As said already,  the  Court passed  severe strictures on the conduct of the receiver  as well as of the Subordinate Judge and plainly indicated  that the  moneys borrowed by the receiver were borrowed  not  for the  benefit  of  the plaintiffs at  all.   Undoubtedly  the accounts  were still to be investigated but  what  necessity there  possibly could be for Rashmoni to execute, after  the High  Court had made the order as stated above,  a  security bond  by  which she mortgaged all the properties  that  were allotted to Haripada in his share as an additional  security for  the  entire loan of Rs. 30,000 no portion of  which  be defied  the estate of Haripada at all?  In our  opinion  the only  object of executing the security bond was  to  protect Mohini  who  was threatened with legal  proceedings  by  his



creditor  for having included a nonexistent property in  the mortgage bond.  Rashmoni certainly acted at the instance  of and  for  the  benefit of Mohini and  she  might  have  been actuated by a feeling of Maternal affection to save her  son from  a  real  or imaginary danger.  But by  no  stretch  of imagination  could  it be regarded as a prudent act  on  the part  of  a Hindu female heir which was  necessary  for  the protection  of the estate of the last male holder.   In  our opinion  the view taken by the Courts below is quite  proper and  as  a  concurrent  finding of fact  it  should  not  be disturbed by this Court. The second point urged by Mr. Chatterjee raises the question as  to  whether the fact of Mohini’s joining his  mother  in executing  the  security  bond would  make  the  transaction binding  on the actual reversioner, Mohini being  admittedly the  presumptive reversioner of Haripada at the date of  the transaction.   We  do  not think that  there  could  be  any serious  controversy  about  the law  on  this  point.   The alienation  here, was by way of mortgage and so no  question of  surrender  could  possibly  arise.   Mohini  being   the immediate  reversioner  who joined in the execution  of  the security  bond  must  be deemed to  have  consented  to  the transaction.  Such consent may raise a presumption that  the transaction  was for legal necessity or that  the  mortgagee had acted therein after proper and bona flde enquiry and has 478 satisfied himself as to the existence of such  necessity(1). But  this. presumption is rebuttable and it is open  to  the actual  reversioner to establish that there was in  fact  no legal  necessity and there has been no proper  and  bonafide enquiry  by the mortgagee.  There is no doubt that both  the Courts  below  have proceeded on a correct view of  law  and both have come to the conclusion upon a consideration of the evidence  in  the case that the presumption  that  arose  by reason  of  the  then reversioner’s giving  consent  to  the transaction  was  rebutted  by  the  facts  transpiring   in evidence.    Mr. Chatterjee placed considerable reliance upon  another document which purports to be a deed of declaration and  was executed  by  Ram Narayan on the 5th of October,  1918.   At this time Mohini was dead ’and Ram Narayan was the immediate reversioner  to the estate of Haripada and by this  deed  he declared  inter alia that the debts contracted  by  Rashmoni were for proper and legal necessity.  This deed purports  to be addressed to Bangshidari Ghosh and Keshav Dutt, two other alienees  of the properties of Mohini and Haripada and  does not amount to a representation made to the auction purchaser Annada  Prasad  Ghose  or  to  the  father  of  the  present appellants.  In fact they had not come in the picture at all at  that  time.  At the most it can be regarded only  as  an admission  by a presumptive reversioner and cannot have  any higher  value  than  the consent  expressed  by  Mohini  who figured as a co-execuitant of the security bond.  It  cannot bind  the  actual reversioner in any  way.   Mr.  Chatterjee attempted  to  put forward an argument on the  authority  of certain   observations   in   the  case   of   Bajrangi   v. Monokarnika(2)  that as the present appellants are the  sons of  Ram  Narayan the admissions made by their  father  would bind  them as well.  It is true that there is a  passage  at the end of the judgment in Monokarnika’s case(1) which lends some  apparent  support  to the contention  of  the  learned counsel.   The  concluding words in the  judgment  stand  as follows: (1)Vide  Debi  Prosad Chowdhury v. Golap Bhagat,  I.L.R.  40 Cal.  721 at 78I.  Approved of by the judicial Committee  in



Gounden v. Gounden, 46 I.A. 72, 84. (2)  35 I.A. 1. 479    "The  appellants  who  claim through  Matadin  Singh  and Baijnath  Singh must be held bound by the consent  of  their fathers."    But the true import of this passage was discussed by  the Privy  Council  in their later  pronouncement  in  Rangasami Gounden  v.  Nachippa Gounden(1) and it was  held  that  the words  referred  to above should I not be construed  to  lay down  the proposition that such consent on the part  of  the father would operate proprio vigore and would be binding  on the  sons.  This proposition, Their Lordships observed,  was opposed both to principle and authority, it being a  settled doctrine of Hindu law that nobody has a vested right so long as the widow is alive and the eventual reversioner does  not claim  through anyone who went before him.  As the  sons  of Ram  Narayan  claim as heirs of Haripada and  not  of  their father, the admissions, if any, made by the latter could not in any way bind them.  This contention of the appellant must therefore fail.    The   third  and  the  last  contention  raised  by   Mr. Chatterjee is that in any event his client is a stranger who has bona fide purchased the property for good  consideration after making due enquiries and on proper legal advice and be cannot  therefore be affected by any infirmity of  title  by reason  of the absence of legal necessity.  In  our  opinion the  contention  formulated in this form really  involves  a misconception of the legal position of an alienee of a Hindu widow’s property.  The interest of a Hindu widow in the pro- perties inherited by her bears no analogy or resemblance  to what may be described as an equitable estate in English  law and  which  cannot be followed in the hands  of  a  bonafide purchaser  for value without notice.  From very early  times the  Hindu  widow’s estate has been described  as  qualified proprietorship with powers of alienation only when there  is justifying necessity, and the restrictions on the powers  of alienation  are inseparable from her estate (2).  For  legal necessity she can convey to another an absolute title to the property  vested in her.  If there is no  legal  ’necessity, the  transferee  gets only the widow’s estate which  is  not even an (1)  46 I.A. 72 at 83-84. (2)  Vide  The Collector of Masaulipatam v. Cavaly  Venkata, S.M.I.A. 529, 480 indefeasible  life  estate  for it can come to  an  end  not merely   on  her  death  but  on  the  happening  of   other contingencies  like  re-marriage,  adoption,  etc.   If   an alienee  from  a Hindu widow succeeds in  establishing  that there  was  legal necessity for transfer, he  is  completely protected  and  it  is immaterial  that  the  necessity  was brought  about  by the mismanagement of  the  limited  owner herself.   Even if there is no necessity in fact, but it  is proved  that there was representation of necessity  and  the alienee  after making bona fide enquiries satisfied  himself as best as he could that such necessity existed, then as the Privy Council pointed out in Hunooman Persaud Panday’s  case (1)  the  actual  existence of a legal necessity  is  not  a condition  precedent  to  the validity  of  the  sale.   The position therefore is that if there is no necessity in  fact or  if  the alienee could not prove that he made  bona  fide enquiries  and  was  satisfied  about  its  existence,   the transfer  is undoubtedly not void but the  transferee  would get  only the widow’s estate in the property which does  not



affect in any way the interest of the reversioner.  In  this case the alienation was by way of mortgage.  The finding  of both  the Courts below is that there was no legal  necessity which  justified  the execution of the security  bond.   The mortgagee also could not prove that there was representation of  the  legal necessity and that she satisfied  herself  by bona fide enquiries that such necessity did exist.  On ’this point the, finding recorded by the High Court is as  follows :    " In the present case, there is no scope for an  argument that  there  was such representation of legal  necessity  or that  on  bona fide enquiry the  alienee  satisfied  herself ’that  there  was such a necessity, for as  I  have  already pointed  out the security bond itself states that it was  in consideration  of benefits already received and with a  view to  induce  Suhasini  to  forbear  from  proceeding  against Mohini,  that  the  bond was being executed.   There  is  no representation in the bond that the alienation was made with a view to securing any benefit to the estate or to avert any danger  to the estate or for the purpose of any other  legal necessity.  Whatever enquiries the appellants may have made (1) 6 M.I.A, 481 would  be  of no avail to them when the  alienation  is  not binding  on the whole estate but only on the woman’s  estate of Rashmoni." In  our  opinion the view taken by the High Court  is  quite proper.   On  this finding the security bond  could  operate only  on  the  widow’s estate of Rashmoni and  it  was  that interest alone which passed to the purchase. at the mortgage sale.   The  subsequent transferee could not claim  to  have acquired any higher right than what his predecessor had  and it  is  immaterial whether he bona fide  paid  the  purchase money  or took proper legal advice.  The result is  that  in our opinion the decision of the High Court is right and this appeal must stand dismissed with costs.                                          Appeal dismissed.