MOTI RAIJI Vs. LALDAS JIBHAI

JUDGEMENT

(1.) There are only two ways, we think, in which a Hindu widow in the enjoyment of the normal widow s estate can convey a greater interest than that which she herself has, the one is by acceleration, the other by alienation for legal necessity. In the present case, limiting the contest to the appellant, defendant No. 2, and the plaintiffs, there can be no question of legal necessity. Both have pleaded at various stages that the original alienation by the widow Bai Lala, of the year 1893 was without consideration. It does not lie, therefore, in the mouth of the plaintiffs now to contend that that alienation was for legal necessity.

(2.) The only question remaining to be answered is whether as a result of the alienation of 1893, the widow accelerated her estate in favour of the plaintiffs. In order to make what follows clearer, we shall briefly state the material facts upon which this question arises.

(3.) Bai Lala, the widow of one Raiji, was left in possession of a widow s estate in all his property. He died leaving no issue.. In 1893, Bai Lala mortgaged the whole estate to one Bechar for a sum of about Rs. 3,500, Almost immediately the plaintiffs who claimed to be the next reversioners, and in the course of all subsequent proceedings appear to have been admitted to be so, brought a suit to set aside this alienation on the ground that it was a hollow transaction, and that the widow had received no consideration. The suit was, en the face of it, premature, since at that time it may be doubted whether the plaintiffs had any locus standi. But with that we are not now concerned. What actually happened was that the matters in dispute were referred to arbitration, and an award was given by the arbitrators out of which all the subsequent rights of the parties inter se are held to have flowed. That award was not brought into Court or converted into a decree, but it has been confirmed, to some extent at any rate, by a decree of this High Court in the year 1911. In effect the award ordered that the plaintiffs should be allowed to redeem the estate mortgaged to the defendant No. 1 Bechar for a sum of Rs. 1700, and that on this being done Bechar was to convey the mortgaged estate, not to the original mortgagor Bai Lala, but to the plaintiffs, and that Bai Lala was to surrender all her right, title and interest in it, and that thereupon the plaintiffs in turn were to give to Bai Lala a house and eighteen bighas of land out of the estate so reconveyed to them by Bechar, for her life as maintenance. The award fixed the term within which the plaintiffs were to pay Rs. 1,700 to the original mortgagee Bechar, and that term ended with Magsar 1894. Such were the terms of the award. Nothing was done upon it for many years, and it appears that the mortgagee Bechar sub-mortgaged the property to one Desai for a sum which we will state roughly at Rs. 1,000. Under that mortgage Bechar attorned to his mortgagee Desai, and at a very much later period Desai actually brought a suit to recover one year s rent from Bechar and got a decree. That was somewhere in the year 1907 long before which the other transactions had occurred which we will now mention.