JUDGMENT Sinha, J.
1. This is an appeal by defendant l, Mt. Masitunnissa, arising out of a suit for a declaration that the sale made by Mt. Renka Kuer on 28th March 1938 in her favour is not binding upon the plaintiffs. The relationship of the parties to this litigation, barring the appellant, who is a stranger purchaser, will appear from the pedigree set forth below:
CHET RAM _______________________|______________________ | | Khader Mal (died 15-3-1904) Tola Ram = Mt. Paran Kuer = Mt. Khushali _______|______________________________________________ | | | Jamna Kuer Renka Kuer (deft. 2) Durga Kuer (deft. 3). | = Brij Mohan dead) | Lal (husband) ____________________|__________________________ | | | Mahesh Chander Kailash Chander Harish Chander (plff. 1). (plff. 2). (plff. 3).
2. It appears that Khader Mal was a very substantial man and he left a considerable fortune on his death. Mt. Paran Kuer made a will on 1st November 1911 in favour of her three daughters in respect of a number of properties including a two biswansi odd share, which she said, she had inherited from her husband, and a two biswa odd share which she claimed to have purchased from a man named Zahir Uddin. Mt. Paran Kuer died in 1912 and, soon after, Mt. Renka Kuer brought a suit against her two sisters, Jamna Kuer and Durga Kuer for possession of the entire estate. She laid this claim on the allegation that she was the only unmarried daughter among the three daughters of Paran Kuer and that the entire estate, was the estate of her father, Khader Mal, and she alone was therefore entitled to it in preference to her two sisters. The suit was dismissed by the learned Subordinate Judge on a finding that the claim was barred by limitation. On appeal, a Bench of this Court, by its judgment of 31st July 1917 set aside the decree of the learned Subordinate Judge and decreed the suit with respect to a portion of the property. This Court divided the property into two sets, property (a) and property (b). The High Court took the view that Mt. Renka Kuer, as the unmarried daughter of Khader Mal, was entitled to the entire estate of Khader Mal, that is, the property mentioned in list (a) appended to the plaint. With regard to the property (b) it held that that was the stridhan property of the lady, Mt. Paran Kuer and she had devised it equally in favour of her three daughters and the plaintiff was therefore entitled to a one-third out of that list. After the decision of the High Court, Mt. Renka Kuer remained in possession of the entire property which was treated by the High Court as the property belonging to her father and, of one-third of the share which was treated by it as the stridhan of Mt. Paran Kuer. About August 1936 Mt. Jamna Kuer sold her one-third share out of the property in list (b) to Mt. Masitunnissa. Mt. Renka Kuer then brought a suit for preemption, Suit No. 67 of 1937. The litigation ended in a compromise on 16th August 1937. The terms of the compromise are somewhat strange. Renka Kuer went to Court to bring back to the family the property lost to it by the conduct of Jamna but instead of recovering the lost property she lost even her, own share which had been decreed to her by the High Court, with the result that, on 28th March 1938 Renka Kuer sold her own share for a sum of Rs. 1577-8-0 to Mt. Masitunnissa, the defendant-appellant before us. As a result of this compromise Mt. Masitunnissa retained the share which had passed to her from Mt. Jamna Kuer and also acquired the share of Mt. Renka Kuer.
3. The present suit was brought in 1939 by the three sons of Mt. Renka Kuer, Mahesh Chander, Kailash Chander and Harish Chander, for a declaration that the sale deed of 28th March 1938 executed by their mother was not binding upon them, inasmuch as their mother had only a life interest in the entire property and the sale was not justified by legal necessity. The learned Munsif framed a number of issues and finally dismissed the suit on the ground, principally, that, in the lifetime of Mt. Jamna Kuer and Mt. Renka Kuer the plaintiffs had no right to bring the suit. He also held that with regard to the property in dispute Mt. Renka Kuer acquired from her mother an absolute estate and the plaintiffs could not challenge the sale.
4. Against this decree the plaintiffs went in appeal. The learned Additional Civil Judge disagreed with the finding of the learned Munsif on the question of estoppel. He held that Mt. Jamna Kuer had refused to challenge the alienation and Mt. Renka Kuer had, by her conduct, incapacitated herself from bringing any action. He therefore came to the conclusion that the plaintiffs had a right to challenge the alienation made by their mother. The learned Civil Judge held further that the property in suit was the stridhan property of Mt. Paran Kuer but he also held that even if Mt. Paran Kuer could be treated as its absolute owner the will executed by her on 1st November 1911, in favour of her daughters passed only a life interest. On the question of legal necessity he did not accept the defendant's case. In his view, the property left by Khader Mal was ample and the resources of Mt. Renka Kuer were quite enough to meet the marriage expenses of plaintiff 1, for which purpose the sale is alleged to have been made. The defendant came in second appeal to this Court. The appeal originally came up for hearing before a learned Single Judge who deemed it necessary to send down some issues before finally deciding the appeal. The issues sent down by him were these:
(1) Whether the 2 Biswa odd share in patti Zahir Uddin, Antuia, which was conveyed by the sale of 28th March 1938 can be regarded as the property of Khedar Mal?
(2) What title and interest Mt. Renka Kuer had in the said share which was conveyed by, the said sale?
(3) Whether the plaintiffs are entitled to seek any declaration with regard to that property?
It must, however, be mentioned that the learned Single Judge was of opinion that part of the property which was covered by the will, belonged in absolute estate to Mt. Paran Kuer. The case came up for decision finally before him and he deemed it necessary to refer it to a Bench of two Judges. The case has been argued at considerable length with great ability on both sides. We have gone through the whole evidence ourselves very carefully and have come to our independent judgment. The first question which falls for consideration is as to the nature of the estate held by Mt. Paran Kuer. It is no doubt true that in the will there is a recital that part of the estate belonged to her husband, whereas the rest of it was owned by her in her own right. This recital in the will is not binding upon the plaintiffs and they are entitled, in this litigation, to show, by independent evidence, what the precise character of the estate in the hands of Mt. Paran Kuer was. One witness has been examined by them named Sattu Mal. He is a relation of the family. In fact, he is the plaintiffs' uncle. He says that Khader Mal had left considerable cash and it was with that cash that Mt. Paran Kuer had made the purchase of the properties specified in list (b) from a man named Zahir Uddin. There is absolutely no rebutting evidence on the defendant's side on whom after all did the burden of proof lie. Besides, it appears from the evidence on-the record--which was considered by the learned Civil Judge--that after the death of Khader Mal the lady applied for succession certificate and she was allowed a certificate with respect to a number of properties belonging to the deceased including some cash. If that is soand it must be held to be so then in the absence of any evidence in rebuttal, the property acquired by Mt. Paran Kuer must be deemed to be an accretion to the estate of the husband. At p. 171, Section 177, Mulla's Hindu Law, Edn. 9, the point in controversy has been dealt with as below:
The estate inherited by a widow from her husband may be enlarged otherwise than by savings from the income. Thus it may be enlarged by action of Government, or by compromise with the superior owner, or otherwise. In such cases the enlarged estate is still a widow's estate.
5. In this view of the case, the property must be deemed to be an accretion to the estate of the husband and Mt. Paran Kuer had limited rights over it. The case may be considered from yet another point of view. Assuming for the sake of argument that the property in dispute was Mt. Paran Kuer's personal acquisition, it will not retain its character as her stridhan if she did not intend to keep it separate from the estate of the husband in her hands. It has been held by their Lordships of the Privy Council in Naba Kishore v. Upendrakishore ('22) 9 A.I.R. 1922 P.C. 39 that it is for the party, who says that the widow kept her self, acquisition separate from the husband's estate, to prove that it was so. The manner in which the lady dealt with both the items of property is clearly borne out by the recitals in the will itself. There is no intention on her part to keep the two sets of property separate. We find that she was anxious that her daughters should come in possession of the entire property and all the distinction between the different classes of property should be obliterated. We must, therefore, treat this case as an ordinary case in which the alienation can stand only if justified by legal necessity.
6. The question of legal necessity is singularly free from any complication. The burden of proving justification for an alienation by a limited owner, must always rest on the shoulders of the transferee, the more so, when, as in this case, the transaction has not assumed a straight course but a very tortuous course indeed. But the case does not rest merely on presumptions. The lower appellate Court has distinctly found that Mt. Renka Kuer had sufficient property and ample funds in her hands and there was absolutely no justification for the alienation in question. This is a finding of fact and we must accept it in second appeal. We, therefore, agree with the Court below in holding that the defendant has not succeeded in resisting the plaintiffs' claim and we must, therefore, dismiss this appeal.
7. The question of costs, however, has presented some difficulty. The history of the property, the recitals in the will as also the manner in which she treated it, might have raised a bona fide belief in the mind of the appellant that Paran Kuer's was an absolute estate which she had passed to her daughters and that the applicant would not be called upon to prove legal necessity for the sale. We, therefore, think that this is a fit case in which the parties should bear their own costs throughout.
8. In the result we dismiss the appeal but direct the parties to bear their own costs throughout.