Saiyid Fazl Ali, J.

1. This appeal arises out of a suit which was brought by the plaintiffs to recover possession of certain properties alleged to have been alienated by Mt. Loha, the mother of plaintiffs 1 and 2, and Mt. Budhni, their grandmother. Mt. Budhni was the widow of one Maheshdut and Mt. Loha was his daughter. Mt. Budhni succeeded to the properties left by Maheshdut on his death and on 11th September 1892 she executed a sale deed in respect of certain lands for a consideration of Rs. 701 in favour of two persons Uchit and Bachu who are the ancestors of defendants 8 to 13. Subsequently she surrendered 2 bighas odd kathas of bhaolikasht land in Mauza Pokhar Bhinda to the landlord. Later on, when Mt. Loha succeeded to the properties on the death of Mt. Budhni, certain persons claiming to be the agnates of Maheshdut raised a dispute as to those properties alleging that Maheshdut had died leaving a son, that Budhni had succeeded to the properties as his mother and not as the widow of Maheshdut, and that therefore upon the death of Budhni they were entitled to succeed to the properties. The dispute was referred to arbitration and the award of the arbitrators was that the properties should be divided into four shares one of which should go to Mt. Loha and the others to the descendants of the three brothers of Maheshdut, namely, Premdut, Shovak and Mayadut. The reversioners of Maheshdut thus took possession of three-fourths of the properties left by Budhni, and Loha remained in possession of the remaining one-fourth. The plaintiffs in this suit challenged the validity of (1) the sale deed executed by Mt. Budhni in favour of Uchit and Bachu in 1892; (2) the surrender made by her to the landlord of the lands in village Pokhar Bhinda, and (3) the arrangement arrived at between Mt. Loha and the persons claiming to be the reversioners of Maheshdut under which Mt. Loha parted with three-fourths of the properties left by Mt. Budhni. The Courts below have concurrently held against the plaintiffs and hence this second appeal.

2. Now, so far as the plaintiffs' case relates to the sale deed executed by Mt. Budhni in 1892, it is sufficient to state that both the Courts below have found that out of Rs. 701 which was the consideration for the sale deed, a sum of Rs. 001 was borrowed by Budhni for the purpose of performing the sradh of Maheshdut and the balance was required by her for her own maintenance. Both the Courts below have thus held that the alienation was justified by legal necessity and this being a finding of fact, cannot in my opinion be questioned in second appeal. The only ground upon which the learned Advocate for the appellants assailed the finding of the Courts below is that the sum of Rs. 601 was disproportionate to the value of the properties left by Maheshdut and it was contended that it should be held that in the circumstances of the case it was not necessary for Mt. Budhni to spend the excessive sum in performing the sradh of Maheshdut. This question however can hardly be gone into in second appeal, because the question as to what amount should have been spent on the sradh of Maheshdut is necessarily a question of fact and the finding of the Courts below is conclusive on the point.

3. The plaintiffs cannot also in my opinion impugn the surrender of bhaoli lands by Mt. Budhni in favour of the landlord, because they did not impaled in this suit the Maharaja of Darbhanga, the landlord of the village. It is obvious, that they cannot be allowed to question a transaction to which the landlord was a party in his absence. It appears that after the surrender the landlord settled the surrendered lands with defendants 8 to 13 or their ancestors, and if a decree is passed in favour of the plaintiffs in respect of these lands it will give rise to the anomalous situation that the decree not being binding upon the landlord who was no party to the suit, the landlord would be entitled to demand rent from defendants 8 to 13 even though they may be liable to be ousted under the decree passed in the present suit. It appears to me therefore that the decision of the Courts below so far as the two alienations made by Mt. Budhni are concerned must be affirmed. Passing now to the arrangement arrived at between Mt. Loha and the reversioners of Maheshdut, it may be stated that the lower appellate Court has found that in fact Maheshdut did not leave behind a son as was alleged by the reversioners, but it has also found that there was a genuine dispute between Mt. Loha and the reversioners and that the family arrangement which was arrived at in consonance with the views of the arbitrators to whom the dispute had been referred by both the parties was binding on the plaintiffs and in any event could not be questioned by them during the lifetime of Mt. Loha. It may be stated here that Mt. Loha had shortly before the institution of the present suit surrendered the entire estate in favour of her sons, plaintiffs 1 and 2, and thereupon plaintiffs 1 and 2 alienated a portion of the property to plaintiffs 3 and 4. Subsequently all these plaintiffs joined in bringing the suit which has given rise to this appeal.

4. A question arose before us as to whether the surrender made by Mt. Loha in favour of her sons was valid and bona fide, it being contended on behalf of the respondent that Mt. Loha continued to be in possession of the properties notwithstanding the surrender and that the alleged surrender was a malafide attempt on the part of Mt. Loha and her sons to get back the properties which had been alienated by her. It appears to me, however that it is unnecessary to decide this question because having regard to the state of authorities on the subject, even if the surrender was valid, the plaintiffs could not challenge the family arrangement between Mt. Loha and the reversioners of Maheshdut during the lifetime of Mt. Loha. Reference was .made on behalf of the appellants to the dissenting judgment of Page, J., in Prafulla Kamini v. Bhabani Nath, 1926 Cal 121 [LQ/CalHC/1925/335] = 91 IC 897 = 52 Cal 1018 [LQ/CalHC/1925/335] ; but as at present advised I feel inclined to agree with the view expressed by the Madras High Court in N. Sundarasiva Rao v. I. Viyyamma, 1925 Mad 1267 = 91 IC 401 = 48 Mad 933 [LQ/MadHC/1925/164] , and by the Allahabad High Court in Lachmi Chand v. Lachho, 1927 All 258 [LQ/AllHC/1926/249] = 100 IC 764 = 49 All 334. I would in the circumstances of the case affirm the decree of the Court below and dismiss this appeal with costs. It may be stated here that plaintiff 4 did not prefer an appeal from the decision of the lower appellate Court and it is not disputed that the appeal of plaintiff 3 has abated.

Rowland, J.

5. I agree. In my opinion the findings of fact arrived at by the Courts below are sufficient to dispose of this litigation. We cannot go behind the finding that the sale-deed of 1892 was for legal necessity, nor behind the finding that as between Loha and the agnates of Maheshdut there was a genuine family arrangement. As regards the kasht lands, provided that the surrender by Budhni and the re-settlement by the landlord with defendants 8 to 13 are genuinely independent transactions, the rights which accrued to the landlord by the surrender and were exercised by him in re-settling the lands cannot be challenged in any litigation to which he is not a party and it has not been found by the Courts below that the surrender and the re-settlement were a colourable device to transfer the lands from Budhni to defendants 8 to 13.