Judgement Consolidated Appeals from judgments and decrees of the High Court (March 11, 1909) affirming judgments and decrees of the Additional Subordinate Judge of Monghyr (June 22, 1906). The consolidated suits were instituted by the respondents to recover their respective shares of certain lands as reversionary heirs of one Shyamal Singh, who died in 1842. On the death of Shyamal Singh, his widow Dulhin Nawab Kumari succeeded to the lands in suit for a Hindu widows estate. In 1877 she executed a mortgage of part of the property in favour of the first appellant Hari Kishen Bhagat, and in 1882 she executed in his favour a further mortgage, which covered the rest of the property. She also in 1889 executed in his favour a zarpeshgi patta (lease at a premium) of the whole property for eleven years. The mortgage of 1877 was attested by Raghubir Singh, the sole surviving brother of Shyamal Singh and at that time the next reversionary heir, also by Behari Singh, the son of one of Shyamal Singhs deceased brothers. The signature of the deed was made for the widow by Bajrung Sahai Singh, one of the respondents and the son of another deceased brother of Shyamal Singh; he also purchased the stamp paper upon which the deed was written. The mortgage of 1882 was attested by Bajrung Sahai Singh and signed in the widows name by Behari Singh. It was not witnessed by Raghubir. The lease of 1889 was witnessed by a son of Raghubir, a son of Behari, and by Bajrung Singh. At all the dates referred to there appeared to have been in existence other nephews of Shyamal Singh besides those mentioned above. In 1893 and 1897 the first appellant obtained decrees upon the two mortgages respectively, and having brought the mortgaged properties to sale he purchased them himself. The widow died in 1900. In 1904 the respondent Bajrung Sahai Singh and the respondents Kashi Pershad Singh and Earn Pershad Singh (the sons of Raghubir) commenced the present suits to recover their shares in the properties. They claimed that the mortgages and lease were not executed upon legal necessity and that the interest of the appellant under the purchases determined upon the widows death. In 1904 the respondent Bajrung Sahai Singh and the respondents Kashi Pershad Singh and Earn Pershad Singh (the sons of Raghubir) commenced the present suits to recover their shares in the properties. They claimed that the mortgages and lease were not executed upon legal necessity and that the interest of the appellant under the purchases determined upon the widows death. The appellant pleaded, inter alia, that there had been legal necessity for the transactions and that they had been entered into with the knowledge, approval, and consent of the then reversionary heirs of Shyamal Singh. At the trial the mortgagee (defendant) gave verbal evidence that the two mortgages were arranged with him by Raghubir, Bajrung, and Behari, and with regard to that of 1877 he alleged that he told them that he would not make the loan unless they consented to the transaction. The Additional Subordinate Judge heard the suits together. He held that upon their true construction the mortgages bound only the widows limited interest, and that it was only that interest which had been sold under the decrees. He also held that there was no such legal and. valid necessity as would bind the reversionary heirs and that the attestations by the reversioners were not intended as recognitions that more than the widows estate was bound. He accordingly made decrees in the plaintiffs (appellants) favour. The High Court (Doss and Richardson JJ.) affirmed these decrees. It was held, inter alia, that no legal or valid necessity for the mortgages had been established, and that the attestation of the then reversionary heir to the mortgage of 1877 did not amount to consent, but that even if it could be taken as proving that he consented, that consent was not by itself sufficient to establish legal necessity, and that it was of no avail as corroborative evidence of necessity since there was no other evidence upon which any reliance could be placed. The learned judges also drew a distinction between a mortgage and a conveyance, holding that it was only in the case of the latter that the consent of the then next reversioner made the transaction binding upon the reversioners generally. Dunne, for the appellants. Both Courts in India found that there was no legal or valid necessity for the mortgages. The learned judges also drew a distinction between a mortgage and a conveyance, holding that it was only in the case of the latter that the consent of the then next reversioner made the transaction binding upon the reversioners generally. Dunne, for the appellants. Both Courts in India found that there was no legal or valid necessity for the mortgages. The facts, however, as to the attestation and signature coupled with the verbal evidence showed that they were made with the knowledge and consent of the reversioners, including that of Raghubir, who was the sole next reversioner at the time of their execution. His attestation of the mortgage of 1877 is under the circumstances conclusive that he consented to that transaction. The authorities establish that where the next reversioner consents to an alienation by a Hindu widow there is a presumption of law that it was made for legal necessity and the transaction is binding in the absence of fraud or some other invalidating circumstance Collector of Masulipatam v. Caraly Vencata Narrainapah ((I860) 8 Moo. Ind. Ap. 529.); Raj Luckhee Dabea v. Gokool Chunder Chowdhary (( 1869) 13 Moo. Ind. Ap. 209.); Bajranghi Singh v. Manokarnika Bakhsh Singh. {( 1907) L. R. 35 Ind. Ap. 1.) The view of the High Court that the consent of the reversioners cannot validate a mortgage as opposed to a conveyance is erroneous Debi Prosad Chowdhury v. Golap Bhagat. (( 1913) I. L. R. 40 Calc. 721.) That case, however, is in conflict with the decision of the Board in L. R. 85 Ind. Ap. 1 in treating the presumption as rebuttable. [Lord Dunedin. Their Lordships require to hear counsel for the respondents only as to the mortgage of 1877.] Lowndes, for the respondents. The evidence did not establish that Raghbir’s consented to the mortgage. The Subordinate Judge found that the oral evidence was absolutely unreliable. Raghubirs consent cannot be inferred from his being an attesting witness, as there was no evidence that he thought that the deed bound more than the widows limited interest. The Subordinate Judge held that it had no wider effect, and Raghubir may well have thought the same. The deed did not purport to be made with the consent of the kindred or of the next reversioner. [Raj Lukkee Dabea v. Gokool Chunder Chowdhry (13 Moo. Ind. Ap. 209.), Jiwan Single v. Misri Lal (( 1895) L. R . The Subordinate Judge held that it had no wider effect, and Raghubir may well have thought the same. The deed did not purport to be made with the consent of the kindred or of the next reversioner. [Raj Lukkee Dabea v. Gokool Chunder Chowdhry (13 Moo. Ind. Ap. 209.), Jiwan Single v. Misri Lal (( 1895) L. R . 23 Ind. Ap. 1.), and Sham Sunder Lal v. Achhan Kunwar (( 1897) L. R. 25 Ind. Ap. 183.) were referred to.] In any case, even if Raghubir consented, that consent would not validate a mortgage made without legal necessity. The principle under which the concurrence of the next reversioner may validate a conveyance depends upon the widows power to surrender to him, but that principle cannot apply in the case of a mortgage where the widow remains in possession. The distinction is clearly drawn in Behari Lal v. Madho Lal Ahir Gyawal. (( 1891) L. R. 10 Ind. Ap. 30.) There was no proof of the general concurrence of the kindred, and that, in any case, only raises a rebuttable presumption that there was necessity Debi Prosad Chowdhury v. Golap Bhagat. (I. L. R. 40 Calc. 721.) Dunne replied. The judgment of their Lordships was delivered by MR. AMEER ALI. The question for determination in these appeals relates to the validity, as against the reversioners, of certain sales held in execution of decrees obtained on mortgages effected by a Hindu widow, who had succeeded to her husbands estate on his death without leaving any issue. Shyamal Singh, the husband, died in 1842, and the widow, Dulhin Nawab Kumari, held the properties which form the subject of the present litigation until the transactions the validity of which is challenged in these suits. The first mortgage was executed by Nawab Kumari in favour of the defendant, appellant, on November 26, 1877, in respect of three of the properties in her possession. On July 11, 1882, she mortgaged the rest of the properties to Bhagat for a further loan and in 1889 she gave him what is usually called in India a ticca patta of the shares of Shyamal Singh in all the mauzas save one. Under this usufructuary lease the defendant obtained possession of the shares covered by it. On July 11, 1882, she mortgaged the rest of the properties to Bhagat for a further loan and in 1889 she gave him what is usually called in India a ticca patta of the shares of Shyamal Singh in all the mauzas save one. Under this usufructuary lease the defendant obtained possession of the shares covered by it. In 1893 Bhagat brought a suit against Nawab Kumari on the mortgage of 1877 and in execution of the decree on that bond purchased the three properties to which it related. In 1897 he obtained a decree on the bond of 1882, in execution of which he himself purchased again the remaining properties held by the widow. He thus obtained possession of all the shares in the different villages which Nawab Kumari had inherited from her husband for a widows estate. Nawab Kumari died in 1900, and the plaintiffs, who are Shyamal Singhs brothers sons, and whose reversionary right to his estate, though questioned in the first Court, is not disputed now, brought the present suits to recover possession of the properties held by Bhagat under the execution sales of 1893 and 1897, their main contention being that neither the mortgages executed by Nawab Kumari nor the sales thereunder affected more than her interest which ceased on her death. Hari Kishen Bhagat is the principal defendant, but his sons have been impleaded in both actions, as they are joint in estate and living in commensality with him, and are, therefore, necessary parties. The main defence to the plaintiffs claims was that the mortgages were effected by the widow for valid and legal necessity under the Hindu law, and, further, that they were concurred in by the reversioners, and that consequently the defendants by virtue of the sales in question acquired the interests of the widow as well as theirs. It is to be remarked that in neither of the mortgage suits were the reversioners made parties. At the time when the bond of 1877 was executed the nearest reversions to Shyamal Singh was his sole surviving brother, Raghubir Singh. After him stood Raghubirs sons, of whom there were several, and the sons of two other brothers, Bhupal and Jagrup, who were dead at the time. At the time when the bond of 1877 was executed the nearest reversions to Shyamal Singh was his sole surviving brother, Raghubir Singh. After him stood Raghubirs sons, of whom there were several, and the sons of two other brothers, Bhupal and Jagrup, who were dead at the time. Among these nephews of Shyamal Singh the names of Behari, the only son of Bhupal, and of Bajrung Sahai, a son of Jagrup and a plaintiff in one of the present actions, should be particularly mentioned, as they figure in the transactions in question. In the instrument of 1877 the name of the widow is written by Bajrung Sahai Singh. He also appears to have purchased the stamp paper on which the bond is inscribed. Among the witnesses to the document are Raghubir and Behari. The name of the widow in the mortgage of 1882 appears to be written by Behari Singh, and one of the witnesses to this bond is Bajrung Sahai. On the lease of 1889 Nawab Kumaris name is written by Modenarain, a son of Raghubir, and the witnesses are Ram Pershad, another son of Raghubir, Bishan Pershad, one of the sons of Behari, and Bajrung Sahai, who also appears to have identified the lady to the registrar. Both the Courts in India have found that, so far as the ticca patta of 1889 is concerned, the debt contracted thereunder has been satisfied out of the usufruct of the properties covered by the lease. The points for determination in these appeals depend on the transactions of 1877 and 1882 respectively. The law relating to the dealings of a Hindu widow with her husbands estate which devolves on her in default of issue is now too well settled to need a prolonged consideration. To be valid as against the reversioners, or to affect their reversionary rights, a charge created by a Hindu widow or an alienation effected by her can be supported only by proof aliunde that such debt was contracted or such alienation was made for valid and legal necessity, and the onus of establishing such necessity rests heavily on the person who claims the benefit of transactions with a Hindu widow or other females taking similar estates. The requirement of the law may, however, be fullilled by proving the consent or concurrence of the reversioners to the transactions. The requirement of the law may, however, be fullilled by proving the consent or concurrence of the reversioners to the transactions. In the present cases the trial judge in a careful and well-considered judgment held that the defendants had failed to prove any valid and legal necessity for the mortgages executed by the widow. This view has been affirmed on appeal by the High Court of Calcutta, and there being thus a concurrent finding of fact by the two Courts in India, that subject is now out of the region of discussion. Both the Courts have further held in effect that the part taken by the reversioners with respect to the transactions in question did not amount to a consent to bind their interests. In view of the facts and circumstances of the case, their Lordships have no hesitation in expressing their concurrence with the conclusion at which the Courts in India have arrived. The trial judge has carefully examined the phraseology of the two instruments, and he is of opinion that their language is fully consistent with the fact that the interest of the widow alone was intended to be charged. Nor is there anything to show that the reversioners who helped her to raise the loans understood it otherwise. There is no evidence that they benefited from the transactions, or that so far as they were concerned there was any need for the mortgages. Their Lordships think that when a " stringent equity," to use Lord Hobhouses expression in the course of the argument in Jiwan Singh v. Misri Lal (L. R. 23 Ind. Ap, 1.), arising out of an alleged consent by the reversioners is sought to be enforced against them, such consent must be established by positive evidence that upon an intelligent understanding of the nature of the dealings they concurred in binding their interests ; and that such consent should not be inferred from ambiguous acts or be supported by dubious oral testimony such as appears to have been relied upon in this case. In Raj Lukhee Dabea v. Gokool Chunder Chowdhry (13 Moo. Ind. Ap. In Raj Lukhee Dabea v. Gokool Chunder Chowdhry (13 Moo. Ind. Ap. 209, at p. 228.) this Board refused to affirm the proposition that mere attestation by a relative necessarily imports concurrence, and they added that when the consent of the husbands kindred is relied upon for the validity of alienations effected by the widow " the kindred in such case must generally mean all those who are likely to be interested in disputing the transaction. At all events there should be such a concurrence of the members of the family as suffices to raise a presumption that the transaction was a fair one and one justified by Hindu law." The observations of the Board in that case seem to their Lordships to apply with particular force to the facts of the present case. Their Lordships are of opinion that the judgments appealed from are right and ought to be affirmed, and that these appeals ought to be dismissed with costs, and they will humbly advise His Majesty accordingly.