JUDGMENT 1. The Plaintiff is the auction-purchaser of the lease-hold interest of one Bundey Ali in Mouzahs Dhusri and Khandey, which was brought to sale on the 23rd October 1895, in execution of a money-decree obtained by one Gopi Sahu against the heirs of Bundey Ali; and he brought this suit to recover possession of these Mouzahs from the Defendant No. 1, the proprietor of the nine annas share of the Ticarry Raj, and also to have it declared that the Defendant had no right to the possession of the Mouzahs or to interfere with the possession of the Plaintiff therein, until the expiry of the lease to Bundey Ali, i.e., up to 1317 Fusli. There are also prayers for mesne profits and costs. It appears that the grandmother of the Defendant No. 1, Maharani Rajrup Koer, who was then a widow of Maharajah Ram Kissen Singh Bahadur, with the consent of Maharani Radheswari Kishori Koer, mother of the Defendant No. 1, granted a zurpeshgi lease on the 26th Bhadro 1288 F.S. (corresponding to the 4th September 1881) to Bundey Ali, a pleader, in consideration of services rendered by him to the Raj in certain litigations. The lease was for a period of twenty-nine years, from 1289 to 1317 F.S. of Mouzah Dhusri, Pargana Atri, Survey No. 47, appertaining to Lot Atri, Pargana Atri, Zillah Gaya, at a rental of Rs. 2,495-12 including cesses, up to 1298 and from 1298 to 1317 at a rental of Rs. 2,521-12, on receipt of Rs. 575-4 as zurpeshgi, bearing no interest, on condition that the said amount should be set off against the rental of 1317 F.S. At the time the lease was granted, the present Defendant No. 1 was not born and his mother was the next heir. The Defendant No. 1 was born in Assin 1291. This lease is alleged to have covered Mouzahs Dhusri and Khandey. When the lease was granted, these two Mouzahs were under lease to one Buldeo Singh, a man of the locality, and his lease ran up to 1297. It was, therefore, agreed that Bundey Ali receive the rent from Buldeo Singh up to the date of the expiry of his lease and that afterwards he should take possession of the two Mouzahs. It was, therefore, agreed that Bundey Ali receive the rent from Buldeo Singh up to the date of the expiry of his lease and that afterwards he should take possession of the two Mouzahs. Between the granting of the lease and 1296, Maharani Rajrup Koer and her daughter both appear to have died; and the management of the minor's estate had been taken over by the Court of Wards, Mr. Ogilvy being appointed as manager. In 1297 when Bundey Ali wished to take possession of the two Mouzahs, he was opposed by Buldeo Singh, who further alleged that Mouzah Khandey was not included in the lease granted to Bundey Ali and that it formed part of the seven-anna estate, and not of the nine-anna estate of the Raj. Proceedings were instituted before the Collector between the seven-anna and nine-anna proprietors; and, on the 30th June 1891 the nine-anna proprietors were registered in respect of the Mouzah Khandey in place of the seven-anna proprietors. It also appears that at the same time proceedings in the criminal Court between Bundey Ali and Buldeo Singh arose out of the dispute. Meanwhile on the 29th December 1890 Mr. Ogilvy, as manager of the estate of Defendant No. 1, executed an ekrarnamah in which he expressly admitted that Mouzahs Dhusri and Khandey formed one village, that Khandey had no separate and independent existence of its own and that the two villages had been leased to Bundey Ali by the lease of the 4th September 1881. Also in 1889 Mr. Ogilvy, as manager, had brought a suit against Bundey Ali for arrears of rent which had accrued between 1293 and 1296, amounting to Rs. 5,351-11-3 and obtained a decree on the 25th February 1890. One year's time was allowed to the Defendant in that decree to pay off the debt. On the 23rd October 1895 the lease-hold interest of Bundey Ali in the two Mouzahs was brought to sale in execution of a money-decree obtained against his heirs by Gopi Sahu and was purchased by the Plaintiff. These facts are practically undisputed. 2. One year's time was allowed to the Defendant in that decree to pay off the debt. On the 23rd October 1895 the lease-hold interest of Bundey Ali in the two Mouzahs was brought to sale in execution of a money-decree obtained against his heirs by Gopi Sahu and was purchased by the Plaintiff. These facts are practically undisputed. 2. It is, however, further alleged on behalf of the Defendant that in 1891, in consequence of Bundey Ali's inability to obtain possession of the two Mouzahs from Buldeo Singh and in consequence of the arrears of rent which had accumulated, he surrendered his lease of Mouzahs Dhusri and Khandey and took instead a lease of Mouzah Mondoul on the same terms. The Raj took possession of Dhusri and Khandey, and Bundey Ali took possession of Mondoul and was in possession for one year. Being unable to manage that property he gave it up to the Raj in 1892 and the Defendant has since been in possession. 3. The Plaintiff claims to be entitled to the possession of the two Mouzahs Dhusri and Khandey under the lease granted to Bundey Ali, while for the defence, the right was disputed of the Maharani Rajrup Koer to grant a lease beyond the period of her own lifetime; and it was contended that the lease of the 4th September 1881 expired on her death. It was further contended that Bundey Ali surrendered all his rights in Dhusri and Khandey under that lease by accepting lease-hold rights in Mouzah Mondoul under a subsequent arrangement in 1891, and that he had afterwards surrendered Mondoul and relinquished all his rights under the lease, and the Plaintiff had in fact purchased nothing at the auction-sale. 4. The Subordinate Judge has written a somewhat confused judgment, but his findings appear to be as follows: He held that the lease granted by Maharani Rajrup Koer with the consent of the next heir then living, who was a female, namely, her daughter Maharani Radheswari Kishori Koer, is not binding on the heir subsequently born, namely, the present Defendant who was the heir at the time of her death. But he held that the lease on that account was not void but voidable, As by the ekrarnamah of the 29th December 1890 Mr. But he held that the lease on that account was not void but voidable, As by the ekrarnamah of the 29th December 1890 Mr. Ogilvy, as manager of the Defendant No. 1, admitted the validity of the lease, and as he had previously sued Bundey Ali and obtained a decree against him for arrears of rent on the basis of that lease, he held that the lease was confirmed by that document and the Defendant during his minority could not question its validity. He further held that the lease covered Dhusri only and not Khandey, and that Mr. Ogilvy by the ekrarnamah in question had no power to confer any rights on Bundey Ali in respect of Khandey. He next found that under the arrangement, referred to on behalf of the Defendant, Bundey Ali took Mondoul in exchange for Dhusri and Khandey under the lease and was in possession of that village for 1299 and that he afterwards surrendered it. But he has held that when Bundey Ali surrendered his rights over Mondoul, then his rights in Dhusri revived by reason of the fact that there was no written and registered deed of exchange of the rights in the two Mouzahs, as required by sec. 118 of the Transfer of Property Act. And, in support of his view, he relied on the provisions of sec. 119 of the same Act. He accordingly gave the Plaintiff a decree for possession of Dhusri only, subject to the liability to pay rent according to the terms provided in the lease. 5. The Plaintiff has appealed to this Court in respect of the relief refused by the lower Court and the Defendant has filed a cross-appeal against the decree. 6. The case has been argued in this Court on either side on practically the same lines as those followed in the Court of first instance. It will be convenient to take each point separately and to dispose of it before proceeding to the next. 7. 6. The case has been argued in this Court on either side on practically the same lines as those followed in the Court of first instance. It will be convenient to take each point separately and to dispose of it before proceeding to the next. 7. The first question for consideration is whether the widow Maharani Rajrup Koer had power to grant, with the consent of her daughter Maharani Kadheswari Kishori Koer, the next heir and reversioner, a lease for a period extending beyond her lifetime, which would be valid against the present Defendant who was the next heir at the time of her death; in other words, whether the lease granted to Bundey Ali by her expired on her death. The grounds upon which the reversioner's consent to the alienation of the property by a widow has been held to make such alienation valid appear to be, first, that his consent is evidence of the necessity justifying the alienation; and, secondly, that the reversioner by consenting to the alienation would be estopped from questioning its validity afterwards. In this case no question of necessity for the lease appears to arise as it was granted of favour in consideration of some professional services rendered by the lessee in the previous litigation. The consent was given by the only reversioner who was alive at the time the lease was granted and would no doubt be binding as against her. The question arises how far that consent can bind the Defendant No. 1 who was born subsequently and who at the time of the death of the Maharani was her next heir. The case of Nobohishore Sarma Roy v. Hari Nath Sarma Roy ILR 10 Cal. 1102 (1884) to which we have been referred and the cases quoted by the Subordinate Judge in his judgment which are fully discussed in the Tagore Law Lecture for 1879, p. 372 et seq., seem to indicate that alienation by a widow with the consent of the next male heir, would conclude a person not a party to that consent, who upon the death of the widow is the actual reversioner, from asserting his title to the property. In this case, however, the next reversioner, who gave consent to the lease, was a female, and it would seem to be open to doubt whether such a consent would render a lease valid as against the next male heir. But it is not necessary, in our opinion, to determine that point in this case, for we find here that after the death of the widow and the succession of the Defendant No. 1 to the property, his manager on his behalf under the ekrarnamah of the 29th December 1890 directly confirmed the lease and had previously thereto sued Bundey Ali on the basis of it, for recovery of rent of the two Mouzahs. Such confirmation in our opinion is sufficient to render the lease valid as against the Defendant No. 1, at least during his minority. The question, perhaps, is not of much importance as the learned pleader for the Defendant has conceded that lease granted by the lady to Bundey Ali, may be taken to be one which was granted in the ordinary course of the management of the estate and so to be valid as against her heirs. 8. The next point raised is whether the lease included both the Mouzahs Khandey and Dhusri We think it is clear from the description given of Dhusri and Khandey in the ekrarnamah of the 29 th December 1890 and the description of the property leased to Bundey Ali given in the lease of the 4th September 1881, that the lease included Khandey; and, after the distinct admission to that effect, made by the manager, in the ekrarnamah, we do not think it is now open to the Defendant to dispute it. If, as the manager stated in that document, Khandey has no separate and independent existence of its own and it has always been treated in the Raj sherista as one with Dhusri, we think it is idle now to contend that the lease did not cover that Mouzah, whether it had a separate survey number or not. We are unable to follow the argument of the Subordinate Judge on that point. We are unable to follow the argument of the Subordinate Judge on that point. The manager in his ekrarnamah merely admitted the facts which are borne out by the conduct of the parties, that is to say, the whole proceedings for the registration of the name of the Defendant, as proprietor of Khandey, after Buldeo Singh had disputed his right to that Mouzah, and the execution of the ekrarnamah admitting that Khandey was included in the lease. We do not think that it can be urged that the manager exceeded his powers by making the admission under the ekrarnamah or that by it he included in the lease anything which was previously excluded therefrom. We may observe that this point was not raised in the written statement or in the issues; and the evidence is all on one side to prove that the two Mouzahs were treated as one and were leased out as one to Bundey Ali. 9. But the real point on which the determination of the case depends, in our opinion, is whether at the time of the purchase by the Plaintiff, Bundey Ali had any lease-hold rights in Dhusri and Khandey at all. 10. The Subordinate Judge has relied on the evidence of Mr. Ogilvy to prove that Bundey Ali in consequence of the opposition offered by Buldeo Singh to his taking possession of Dhusri and Khandey and in consequence of his having fallen into heavy arrears for rent, gave up his rights under the lease in Dhusri and Khandey and his possession; and, in lieu thereof took over the village of Mondoul, on the same terms. The Raj took possession of Dhusri and Khandey after his relinquishment and has been in possession ever since. This, too, is admitted by Amiruddin, son of Bundey Ali, and the same two witnesses as well as Bishen Lal, a patwari of Mondoul, and the two other witnesses examined for the Defendant, depose to the fact that Bundey Ali took possession of Mondoul and was in possession for 1299. After that, Bundey Ali's heirs relinquished Mondoul and the Raj took possession. The learned Advocate-General has argued that it is clear from Mr. Ogilvy's note attached to the written statement in the case that he had no personal knowledge of the facts connected with the transactions between Bundey Ali and the Ticcari Raj. After that, Bundey Ali's heirs relinquished Mondoul and the Raj took possession. The learned Advocate-General has argued that it is clear from Mr. Ogilvy's note attached to the written statement in the case that he had no personal knowledge of the facts connected with the transactions between Bundey Ali and the Ticcari Raj. We are unable, however, to hold that the note goes so far as this. We take it to mean that he had no personal knowledge of what went on in the mofussil. The learned Advocate-General has pointed out that while in the written statement Mr. Ogilvy says that Mondoul was given to Bundey Ali in September 1891, it is clear from the report which he sent to the Collector of Gaya on the 9th April 1892 and the order passed thereon by the Collector on the 3rd June 1892, that the arrangement was only under consideration in 1892 on Mr. Ogilvy's proposal, and that Bundey Ali could not therefore have taken possession of Mondoul in September 1891. It is contended that no reliance at all can be placed upon the evidence of Bishen Lal, the so-called patwari of Mondoul, or on the receipts which he filed as his evidence and the receipts purport to show that Bundey Ali was in possession of Mondoul up from the end of 1891, which could not have been the case as the arrangement had not then been sanctioned by the Commissioner. It is argued that Bahadur, nephew of Bundey Ali, who was examined for the Plaintiff is a witness of truth and that the Subordinate Judge has erred in discrediting him,--and that he proves that Bundey Ali did not surrendered his lease of Dhusri and Khandey and never was in possession of Mondoul. It is further argued that the Raj could not have exchanged with Bundey Ali the leasehold rights in Mondoul for his rights, under his lease, in Dhusri and Khandey without executing a deed duly registered as required by sec. 118 of the Transfer of Property Act, and as no such document was ever executed, Bundey Ali's rights in Dhusri and Khandey under the lease continued, and the view taken by the Subordinate Judge is substantially correct. 11. We are unable to accept this view. No single question was asked to Mr. 118 of the Transfer of Property Act, and as no such document was ever executed, Bundey Ali's rights in Dhusri and Khandey under the lease continued, and the view taken by the Subordinate Judge is substantially correct. 11. We are unable to accept this view. No single question was asked to Mr. Ogilvy which might have enabled him to explain the apparent inconsistency between his evidence as to the dates of the arrangement with Bundey Ali and his taking possession of Mondoul and the date of the report to the Collector. It seems to us not impossible that Mr. Ogilvy might have carried out the arrangement before he made the report. At all events he with Amiruddin, son of Bundey Ali, and all the other witnesses for the defence depose to the fact that Bundey Ali was in possession of Mondoul under the arrangement in 1299; and there is only the evidence of Bahadur on the other side :--This man Bahadur was a hanger on or laid of Bundey Ali with no fixed pay. He does not appear to be a person on whose evidence much reliance can be placed. He is prepared to go so far as to say that Bundey Ali got possession of Dhusri and Khandey from 1297, though there can be no doubt from the other evidence that Bundey Ali failed to overcome the opposition offered to his taking possession by Buldeo Singh. We agree, therefore, with the Subordinate Judge in his finding that Bundey Ali gave up his right in Dhusri and Khandey under the arrangement with the manager and took over the village in Mondoul. But we are unable to accept the view that this arrangement would amount to an exchange such as is contemplated by sec. 118 of the Transfer of Property Act. There was no mutual transfer of ownership between the two parties. Certain lease-hold rights in Mouzahs Khandey and Dhusri were given up, and certain lease-hold right in Mondoul was given instead. Whether or not that arrangement could have been carried out by parol agreement so as to bind both parties, it is not necessary in this case to determine. There was no mutual transfer of ownership between the two parties. Certain lease-hold rights in Mouzahs Khandey and Dhusri were given up, and certain lease-hold right in Mondoul was given instead. Whether or not that arrangement could have been carried out by parol agreement so as to bind both parties, it is not necessary in this case to determine. The failure on the part of the Raj to execute a fresh lease, if such were necessary, to give Bundey Ali rights under the lease of Mondoul would not however in our opinion amount to such a deprival of his rights as would entitle him to a declaration, under sec. 119 of the Transfer of Property Act, that his rights in Dhusri and Khandey revived. The evidence to our mind is clear that Bundey Ali surrendered his lease-hold rights and his possession over Dhusri and Khandey to the Raj and that the Raj took possession. The Subordinate Judge has held that when Bundey Ali relinquished his lease-hold right in Mondoul, his lease-hold rights in Dhusri and Khandey revived, because no deed was executed and registered to complete the exchange, and apparently, because he considered that under sec. 119 of the Transfer of Property Act, Bundey Ali was entitled to the return of Dhusri and Khandey when he surrendered his rights in Mondoul. We cannot accept this view. This is not, in our opiniou, a case falling within the provisions of that section. Bundey Ali was not deprived of the enjoyment of the lease-hold rights in Mondoul; for, according to the evidence, he voluntarily surrendered them. It has not been contended that any formal surrender by deed was necessary; and the authority which has been quoted in Imambandi v. Kamleswari ILR 14 Cal. 109 (1886) is sufficient to show that no such deed was necessary. Bundey Ali had previously voluntarily surrendered his lease-hold rights in Dhusri and Khandey and he took the lease-hold rights in Mondoul instead. By the first surrender, he relinquished his rights in the two villages and by the second he relinquished his rights in Mondoul. 109 (1886) is sufficient to show that no such deed was necessary. Bundey Ali had previously voluntarily surrendered his lease-hold rights in Dhusri and Khandey and he took the lease-hold rights in Mondoul instead. By the first surrender, he relinquished his rights in the two villages and by the second he relinquished his rights in Mondoul. He thus, in our opinion, surrendered all his rights as lessee under the lease, and thereby determined the lease granted to him on the 4th September 1881, As this surrender and determination of the lease had taken place before the sale at which the Plaintiff made his purchase and as the Raj was then in possession, we find, differing from the Subordinate Judge, that the Plaintiff did not acquire any lease-hold rights over Dhusri and Khandey and he is, therefore, not entitled to possession of these two Mouzahs or to any other of the reliefs claimed against the Defendant. 12. It has been further suggested that if by the arrangement in 1891 a new contract between the parties was substituted for the old one, then secs. 62 and 64 of the Contract Act would apply, and as the Raj had to execute a deed necessary to give Bundey Ali rights under the new contract but failed to do so, Bundey Ali was entitled to claim restoration of the rights under the old contract: and, in support of this view, the cases of Sorolah Dossee v. Bhoohun Mohun ILR 15 Cal. 309 (1888), Nundo Kiskore v. Ram Sookhee ILR 5 Cal 215 (1879) have been referred to. But in this case the Raj placed Bundey Ali in possession of Mondoul. Bundey Ali never claimed to be entitled to rescind the new arrangement by reason of any failure on the part of the Raj to carry out its part of the new arrangement, but he voluntarily relinquished his rights under the new arrangement. We do not think that under such circumstances, this contention can be accepted. 13. We may add that from the fact that the purchase was made by the Plaintiff after the Raj had for four years at least been in possession of Dhusri and Khandey, and that the rights were purchased for a sum of Rs. We do not think that under such circumstances, this contention can be accepted. 13. We may add that from the fact that the purchase was made by the Plaintiff after the Raj had for four years at least been in possession of Dhusri and Khandey, and that the rights were purchased for a sum of Rs. 295 only, it appears to be clear that the purchase was merely speculative, and that the purchaser had no real belief in the existence of any valid rights subsisting in the heirs of Bundey Ali at the time of his purchase. For the above grounds we direct that the appeal be dismissed with costs and the cross-appeal be decreed with costs, the result being that the judgment and decree of the Subordinate Judge are set aside and the suit is dismissed with costs.