1. This is an Appeal by the Plaintiffs in a suit for declaration of title to immoveable property and for recovery of possession thereof. The Plaintiffs claim the disputed property as the reversionary heirs to the estate of their maternal uncle, Soshi Bhushan. The Defendant bases her title on a conveyance, executed on the 27th September 1871 by Aladdin, the mother of Sashi Bhushan, and by Harilal, the paternal uncle of Sashi Bhushan. Alhadini died on the 30th June 1907 and the present action was commenced on the 24th January 1908. The Defendant resists the claim on the ground that the sale by Alhadini was for legal necessity. She also asserts that the Plaintiffs have no title to the property as the sons of the sister of Sashi Bhushan. The Court of first instance overruled these objections and decreed the suit. Upon appeal, the District Judge has reversed that decision on the ground that as Harilal joined in the conveyance by Alhadini, the purchaser acquired an absolute title in the property conveyed. In support of this conclusion, the District Judge has relied on the case of Bajrangi Singh v. Monikarnika Baksh Singh L. R. 35 I. A 1: s. C. I. L. (R. B. ) All. 1 : 12 C. W. N. 74 (1907). On behalf of the Appellants, the decree of the District Judge has been assailed on two grounds; first, that he has erroneously assumed that Harilal was, at the time of the conveyance, the immediate reversioner to the estate of Soshi Bhushan; and, secondly, that even if it be assumed that Harilal was the immediate reversioner, his consent to the alienation did not pass an indefeasible title to the purchaser, inasmuch as the property conveyed formed a portion only of the estate of Soshi Bhushan. In our opinion, each of these contentions is well-founded and must prevail. In so far as the first point is concerned, it does not appear to have been alleged by the Defendant in the primary Court that the conveyance was operative as against the actual reversioners because it was executed with the assent of the then next reversioner. Consequently, the question, whether or not Harilal was the immediate reversioner at the date of the conveyance, was never put in issue between the parties. The Appellants, on the other hand, assert in this Court that if the question had been raised, they could have proved that, at; the time of the conveyance, there was a nearer reversioner to the estate of Soshi Bhushan, namely, their elder brother who died during the lifetime of Alhadini and did not consequently succeed to the estate of his maternal uncle. The decision of the District Judge is therefore open to the objection that it is based on an assumption which the Plaintiffs had no opportunity to controvert.
2. In so far as the second point is concerned, it has now been decided by a Full Bench in the case of Debi Prasad v. Golab Bhagut 17. C. W. N. 701 S. C. L. 499 (1913) that the decision in Nabo Kishore Sarma v. Hari Nath Sarma I. L. R. 10 Cal 1102 (1884) is restricted in its application only to cases where the limited owner, such as a Hindu widow, daughter, or mother, alienates the whole estate of the last full owner in her hands with the assent of the entire body of immediate reversionary heirs; in a case of this description the result of the alienation is the same as if the limited owner had accelerated the estate of the immediate reversioner by a relinquishment of her own interest. But this doctrine has no application to a case like the present, where a portion only of the estate in the hands of the mother of the full owner was alienated; the rule aid down in Nabo Kishore v. Hart Natk I. L. R. 10 CAL. 1102 (1884) cannot be applied here, and the decision to the contrary effect in Pulin Chandra v. Bolai Mundal I. L. R. 35 Cal. 939 : S. c. 12 C. W. N. 837 (1908) has been overruled by the Full Bench in Debt Prosad v. Golab Bhagut 17 C. W. N. 701 : s. c. 17 C. L. J. 499 (1913). In a case of this character, the assent of the reversioner merely furnishes evidence of the propriety of the transaction. The quantum of assent necessary to validate, beyond the lifetime of the limited owner, an alienation by her of a portion only of the estate with the assent of a reversioner, must depend upon the circumstances of each case. The ground upon which the District Judge has based his decision cannot consequently be supported, even if it be assumed that Harilal, at the time of the sale, was the immediate reversioner. The result is that this Appeal is allowed, the decree of the District Judge set aside and the case remanded to him in order that the Appeal may be reheard. The costs in this Court will abide the result.
