JUDGMENT
1. The plaintiff sued as the reversionary heir of one Ramnarain Shukul for a declaration that a deed of gift executed by Manbasi Kuer, widow of Ramnarain Shukul, in favour of one Sabhapat Pande, is void as against the plaintiff The property gifted is partly the property of Ramnarain Shukul and partly property obtained by pre-emption by the widow. The suit was decreed by the Munsif, but in appeal the Subordinate Judge held that the plaintiff was entitled to a decree only in respect of that portion of the property which belonged to Ramnarain. As to the other half he held that although it would have been considered to be an accretion to the husband's estate if the widow had died without making any disposition of it, the fact that the widow had actually disposed of it in her lifetime shows it to have been her own exclusive property, and the transaction as to this portion of the property cannot be challenged by her husband's heirs, We have been asked in second appeal to consider that there is in this, case a presumption that the acquisition made by the widow must be regarded as an accretion to her husband's estate. It is not disputed that any profits which may accrue to a widow during her possession of her husband's estate become her siridhan, and can be used by her to acquire property for herself, but in certain reported cases a presumption has been drawn that the acquisitions so made are to be treated as accretions to the husband's estate unless she indicates a contrary intention. The first case cited is that of Isridat Koer v. Hansbutti Koerain 10 O 324 : 10 I.A. 150 : 4 Sar. 459 : 13 C.L.R. 418 : 7 Ind. Jur. 557 (P.C.) in which it was held that where a widow invested the unexpended income of her husband's estate and alienated the property so purchased together with the original estate of her husband for the purpose of changing the succession, the accretion was dearly established. In the present case the property acquired by the widow by pre-emption was an undivided share in the same property in which she had already acquired the undivided share of her husband. She treated the two properties as one and gifted them to her brother's son. In a later case Sheolochan Singh v. Saheb Singh 14 C. 387 : 14 I.A. 63 : 5 Sar. 1 : 11 Ind. Jur. 231 (P.C.) their Lordships took the view that where a widow invests the income derived from her husband's property in the purchase of other property, prima facie:
it is the intention of the widow to keep the estate of the husband as an entire estate and that the property purchased would prima facie be intended to be an accretion to that estate.
2. Both these cases appear to us to favour the appellant's claim. That the property acquired by the widow was acquired from the savings of her husband's estate is in our opinion a finding of fact of the courts below, and it is clear that she treated the property so acquired as one with the property received from her husband, and alienated the property so united in such a manner as to' defeat the claim of the reversioner. In the latest ruling of their Lordships of the Judicial Committee which has been reported in Nabakishore Mandal v. Upendrakishore Mandal 65 Ind. Cas. 395 : A.I.R. 1922 A.L.J. 22 : (1922) M.W.N. 95 : 26 C.W.N. 322 : 35 C.L.J. 116 : 42 M.L.J. 253 : 24 Bom. L.R. 346 : 15 L.W. 417 : 30 M.L.T. 234 : 3 P.L.T. 311 (P.C.) there is a passage which may in our opinion be quoted with advantage in the present case:
There remains only the transaction which was entered into later on 5th May 1895. That was entered into by the survivor of the two widows, Prasanna Kumari. The alleged justification for this depends on different considerations. It is said that the property sold had been acquired by the widow out of her stridhan, and that consequently she was quite free to deal with it as she thought best. Now there can, their Lordships think, be no doubt that whatever stridhan she possessed was due to the accumulated savings from the income of the property which she receive from her husband's estate, and though it is true that when that property had been received it would be possible for her so to deal with it that it would remain her own yet it must be traced and shown to have been so dealt with and in this case there is no sufficient evidence of this having been done. Further, in this particular case it appears that part, at least, of the property had been purchased from the tenants of the estate itself. This does not mean that the inheritance had been so acquired, but that owing, it may be, to difficulties which had arisen in connection with the occupiers, their tenant rights had been bought in part by the release of the arrears of rent and in part by a payment of cash, and having so acquired their interest. It was her property which they had formerly occupied which was sold under the kobala of 5th May 1895. If that be the true transaction no question could arise about the right of the widow in connection with her stridhan, because the tenant rights so acquired would be an obvious accretion to the husband's property, which if it were possible for her to segregate, would require some more unequivocal act for the purpose than anything to be found in this evidence.
3. We consider that in the present case it is proper to hold that the widow when. She acquired by pre-emption a second undivided share of the property and added it to the undivided share of her husband which she already possessed, was making, in the words of their Lordships, "an obvious accretion to her husband's property, "and even if we consider the subsequent alienation to a stranger to be an indication that at the time of the alienation she did not wish to treat the property so united as being her husband's estate we are still met with the difficulty that the alienation was not made until seven years after the purchase of the property by pre-emption. We do not consider in the circumstances of this case that the fact that the widow made such an alienation in her lifetime is any proof that when she made the purchase she had no intention of making an, accretion to her husband's property, and as a matter of fact she herself stated that she made the purchase and the transfer in. pursuance of her husband's wishes, indicating thereby, that she did not wish to treat the property so acquired as her stridhan. The Subordinate Judge was in error in supposing that the matter can be decided simply on the finding that the widow is still alive but so far as the question of presumption goes, we have been referred to a ruling of their Lordships of the Judicial Committee reported in Rajah of Ramnad v. Sundara Pandiyasami Tevar 49 Ind. Cas. 704 : A.I.R. 1918 P.C. 156 : I.A.64 : 42 M. 581 : 17 A.L.J. 153 : M.L.J. 164 : 23 C.W.N. 519 : 29 C.L.J. 551 : 25 M.L.T. 400 : 21 Bom. L.R. 885 : (1919) M.W.N. 511 : 10 L.W. 322 : (P.C.) in which, their Lordships suggest that there is authority for holding that the presumption may be the other way and this view has been taken by the Madras High Court in several cases, notably that of Ayiswaryanandaji Saheb v. Sivaji Raja Saheb 92 Ind. Cas. 928 : A.I.R. 1926 Mad. 84 : 49 M. 116 : 49 M.L.J. 568.
4. That was a case in which the ladies who made the purchase had not been in possession of the corpus of the estate, and as the learned Judges held, there was consequently no room to presume the widows' intention to make them accretions to their husband's estate, and the decision of the Privy Council on which they relied Rajah of Ramnad v. Sundara Pandiyasami Tevar 49 Ind. Cas. 704 : A.I.R. 1918 P.C. 156 : 46 I.A. 64 : 42 M. 581 : 17 A.L.J. 153 : 36 M.L.J. 164 : 23 C.W.N. 549 : 29 C.L.J. 551 : 25 M.L.T. 400 : 21 Bom. L.R. 885 : (1919) M.W.N. 511 : 10 L.W. 322 (P.C.) appears to us to determine the true method in which this question must always be solved. Their Lordships observed:
At the outset it is a presumption and it is a question of fact to be determined if there is any dispute whether a widow has or has not so dealt with her property.
5. We take this principle as our guide. We have no doubt that when the widow, acting as she says at her husband's wish, rounded off the property which she had received from him by acquiring another portion of the same estate, she intended the property so acquired to be treated as an accretion, and her subsequent transfer to one who was no heir of her husband involving as it does an unlawful transfer of her husband's own estate to a stranger, does not disprove the widow's intention at the time of the purchase. Indeed the authority of their Lordships of the Judicial Committee may, as we have shown above, be cited to indicate that such a transfer proves rather than disproves the widow's intention to make an accretion to the estate of her husband. In our opinion the plaintiff m the suit was entitled to the decree which he sought. We accordingly set aside the decree of the lower Appellate Court and allow the appeal with costs and restore the decree of the court of first instance.