1. We may mention one further contention which was urged by Mr. Shah at one stage which seemed to us to make it possible to dispose of this appeal. Mr. Shah's contention was that the Deputy Nazir as the guardian of Punjabhai was appointed on 29th November 1924, and he went into possession of the property in 1925. In 1929 Punjabhai attained majority. When Punjabhai died in 1931 the Deputy Nazir was appointed as the guardian of the property of defendants 1 and 2. The learned Judge has held, in our opinion rightly held, that from 1925 the Deputy Nazir for Punjabhai was in possession of half the share of the property claimed by the plaintiffs adversely to Kashibai. There can be no doubt that the possession of the Deputy Nazir for Punjabhai was adverse, because in the order made on 29th November 1924, in face of Bai Kashi's contention that Punjabhai was not entitled to the whole of the estate left by Mathurbhai, the Court appointed the Deputy Nazir the guardian of Punjabhai of the whole property left by Mathurbhai. Apart from that in Suit No. 183 of 1926 in the written statement filed by the Deputy Nazir he denied the right of Kashibai except to the extent of maintenance as the widow of the joint family. Therefore there can be no doubt that the possession of the Deputy Nazir both on behalf of Punjabhai and on behalf of defendants 1 and 2 was in assertion of a title hostile to that of Kashibai and was a clear denial of Kashibai's title. Therefore, as we said, we agree with the learned Judge that it has been established in this case that Punjabhai and defendants 1 and 2 were in possession of the property adversely to Kashibai. Therefore, it is clear that the defendants can set up adverse possession against Kashibai. If Kashibai was claiming possession of the property as a limited owner, undoubtedly her claim would be defeated by the defendants having perfected their title at least against the widow. But the question is whether in view of the deed of surrender the succession has been accelerated and whether plaintiffs 1 and 2 are entitled to recover possession of the property from defendants 1 and 2 prior to the death of Kashibai. Mr. Shah contends that so long as Kashibai is alive, adverse possession is as much a defence against Kashibai as against the plaintiffs. Mr. Shah says that on 30th January 1941, the title of the defendants having been perfected Kashibai had no property which she inherited as Shankarbhai's widow which she could surrender to plaintiffs 1 and 2, and therefore the deed of surrender had no operation whatever. It is also contended that, even assuming that the deed of surrender is read as such, it is not open to plaintiffs 1 and 2 to get possession from defendants 1 and 2 so long as Bai Kashi is alive, and this contention is based on the principle that an alienation made by a widow prior to the deed of surrender cannot be challenged by the surrenderee during the life-time of the widow. On the other hand, Mr. Patel contends that the deed of surrender, inasmuch as Kashibai has divested herself of all the interest she had in her husband's estate, is a good and valid deed of surrender which results in the effacement of Kashibai and in the acceleration of succession to her husband's estate, and Mr. Patel says that if that be the correct position in law, then the plaintiffs are as much entitled to challenge an alienation by Bai Kashi as they would have been if Kashibai had died a natural death; and therefore adverse possession which might have been available to defendants 1 and 2 against Kashibai is no longer available to defendants 1 and 2 on the civil death of Bai Kashi on executing the deed of surrender on 30th January 1941. The view put forward by Mr. Patel seems to be in conflict with the decision of the Division Bench of this Court in Sakharam Bala v. Thama 51 Bom. 1019 : A. I. R. 1928 Bom. 26 which has been approved of in a later decision in Jeka v. Jivi 39 Bom. L. R. 1072 : A. I. R. 1938 Bom. 37. It may be necessary to constitute a Full Bench to consider whether these two decisions are correct especially in view of the contrary view taken by the Calcutta High Court. But the whole question becomes academic if the plaintiffs fail to prove the execution of the deed of surrender and therefore we have allowed this particular question to stand over till after the trial Court has sent us the findings on the two issues which we have framed. We, therefore, send back the two issues for decision and we ask the trial Court to expedite its decision on these two issues. Both the parties will be at liberty to lead evidence on these two issues. The findings to be returned within two months.)
2. After the findings of the trial Court were received by the High Court, the appeal was heard by a Full Bench consisting of Chagla C. J. and Weston and Dixit JJ.
Judgment of Full Bench.
1. [His Lordship after dealing with the evidence led on the issues sent down and accepting the findings of fact arrived at by the lower Court, proceeded:] Now, the widow has given evidence and she has stated that she surrendered the whole of the estate and did not retain any portion of it with herself. Having disposed of these two issues, the question still remains, which we left unanswered when we delivered our interlocutory judgment, as to whether the result of defendants 1 and 2 having perfected their title by adverse possession against the widow was to make the deed of surrender ineffective and inoperative, and also the second question as to whether, even if the deed was valid, whether the plaintiffs were entitled to possession of the property immediately or they had to wait till the physical death of the widow.
2. Now, with regard to the first point, the argument advanced by Mr. Thakor is this. He says that by the fact of defendants 1 and 2 perfecting their title by adverse possession, the widow was left with no property which she could transfer by the deed of surrender to the plaintiffs. His contention is that the doctrine of surrender requires that the widow must have some property which she can convey to the next reversioners. In my opinion, this contention is based upon a fallacy and the fallacy lies in this that Mr. Thakor looks upon a surrender in Hindu law as a mere transfer of the widow's interest in the property to the next reversioner. What is the true doctrine of surrender is now no longer a matter of doubt or dispute. The Privy Council in two decisions have clearly and carefully enunciated that doctrine and the best thing will be to turn to the Privy Council decisions and gather what the true doctrine of surrender is according to Hindu law. The first decision of the Privy Council on this point is Behari Lal v. Madho Lal 19 I A. 30 : 19 Cal. 236 . In that case their Lordships stated that according to Hindu law the widow can accelerate the estate of the heir by conveying absolutely and destroying her life estate. Mr. Thakor puts greater emphasis on the expression 'conveying absolutely' rather than upon what follows, viz., 'destroying her life estate.' And then their Lordships go on to say : 'It was essentially necessary to withdraw her own life estate so that the whole estate should get vested at once in the grantee.' As I shall presently point out and as the later decisions of the Privy Council make it clear, the basic principle of surrender is the destruction by the widow by her voluntary act of her life interest in her husband's estate. The act of transfer or the act of conveyance is a subsidiary thing to which the same importance cannot be attached as the destruction of the life estate. Or, to put it in other words, the widow constitutes an impediment or obstruction between the last full owner and the next full owner, and she by a voluntary act of hers removes that impediment by surrendering the whole of the estate which has come to her from her husband. The next decision of the Privy Council is Rangasami Gounden v. Nachiappa Gounden 46 I. A. 72 : A.I.R. 1918 P. C. 196. The judgment of the Board in that case was delivered by Lord Dunedin, and he points out that the foundation of the doctrine of surrender has been sought in certain texts of the Smritis, and at p. 80 the judgment states :
'As already pointed out, it is the effacement of the widow--an effacement which in other circumstances is effected by actual death or by civil death -- which opens the estate of the deceased husband to his next heirs at that date.'
Therefore, what the Privy Council is again emphasising in this decision is that it is the effacement of the widow which is brought about by the surrender, and they also draw an analogy between effacement by surrender and effacement by actual death or by civil death. Mr. Thakor has attempted to make a distinction between the various ways in which a Hindu widow can efface herself. She can do so by adopting a son to her husband; she can do so by becoming an ascetic and giving up this world; she can do so by remarrying, and of course--and there she has no choice--she should be effectively effaced by her own death. But, according to Mr. Thakor, when she surrenders the whole of her estate to the next reversioner, what she is doing is not comparable to what comes about by her physical death or by adoption or by her renouncing the world. In principle I fail to see any distinction between these different forms of effacements. Basically they are the same and they result in the same consequences. The result is that her life estate or the widow's estate is destroyed and the impediment which she constitutes is also removed. Then there is the recent judgment of the Privy Council in Vytla Sitana v. Marivada Virana , and there is a passage in the judgment of Sir John Wallis, who delivered the judgment of the Board, which refers to the doctrine of surrender. That is to be found at page 207 :
'But though the doctrine of surrender by a widow has undergone considerable development in recent years, it must be remembered that the basis of it is the effacement of the widow's interest, and not the ex facie transfer by which such effacement is brought about.' Nothing can be clearer than this enunciation of the law.
3. Mr. Thakor has relied in support of his argument on a decision of this Court in Sakharam Bala, v. Thama 51 Bom. 1019 : A.I.R 1928 Bom. 26. A Division Bench consisting of Sir Amberson Marten C. J. and Crump J. considered the effect of two deeds of gift executed by a Hindu widow, one in favour of her nephew and a later one in favour of her daughter and reversioner. Subsequently she adopted the plaintiff and the plaintiff sued to recover possession of the property from the widow and her daughter, and the question that arose for determination was whether there was a proper renunciation by the widow in favour of the reversioner, and the Court held that the plaintiff was entitled to succeed inasmuch as, by executing the earlier deed in favour of the nephew, the widow had put it out of her power to surrender her whole interest in the estate in favour of her daughter, the nearest reversioner. With very great respect to the learned Judges who decided this case, although they attempted to guard themselves against importing the principles of English law of property in deciding questions under Hindu law, when we turn to the judgment of the learned Chief Justice we find that he has ultimately based his judgment on an analogy which he draws with English law, because at p. 1023 this is what the learned Chief Justice says:
'But in so tar as one follows the analogy of life estates, it would be perfectly clear that if a tenant for life assigns his life interest to A, then he would be unable to surrender that life interest to the next remainderman. There could be, as far as the English law is concerned, no merger either in law or equity.'
Therefore, the basis of this judgment is that the widow having transferred her life interest to an outsider, she could not surrender that life interest to the reversioner who was the remainderman. So long as the life interest was outstanding, the remainderman could not take advantage of the life interest. But what the learned Chief Justice overlooked was that the result of the surrender was the destruction of the life estate itself and the effacement of the widow as the holder of that life estate, and therefore, although in terms of English law there could be no assignment or no conveyance of the life interest, that life interest having already been conveyed to the nephew, there could certainly be under Hindu law the very destruction of that life interest; and after this judgment the Privy Council, as I have already pointed out in Vytla Sitana v. Marivada Viranna , has emphasised the fact that the basic notion of a surrender is not the ex facie transfer but the effacement of the widow. Therefore, in our opinion, the judgment delivered by that Bench did not correctly represent the law, and in any case, after the recent decision of the Privy Council it is clear that that case was wrongly decided. Therefore, the mere fact that antecedent to the deed of surrender the widow has alienated the property does not preclude her from surrendering her life estate to the nest reversioners, nor does it prevent the reversioners from being entitled to succeed as the heirs of the last full owner. I should again like to emphasise that a surrender by a Hindu widow according to Hindu law is not so much a transfer or an assignment of her life interest to the next reversioners as a renunciation in favour of the next reversioners. The significance of renunciation is very different from the significance that attaches to the conception of a transfer or an assignment.
4. Now turning to the next contention as to whether assuming that the widow was entitled to surrender her life estate in favour of the next reversioners even though others had completed their title with regard to that estate by adverse possession, are the plaintiffs entitled to possession of these properties or must they wait till the death of the widow Apart from authority I find it difficult to understand why, if the adopted son is entitled, as undoubtedly he is, to obtain possession immediately on his adoption, the next reversioner is bound to wait till the death of the widow. If once we accept the principle that a surrender means the effacement of the widow and has the same consequence as her physical death, then in principle there is no reason why the next reversioner should not be entitled to obtain possession immediately on the surrender being executed by the widow even as he is entitled to possession as soon as the widow dies. There is no decision of this Court on this question. The High Court of Calcutta has taken one view and the two other High Courts, the High Court of Allahabad and the High Court of Madras, have taken a contrary view. The High Court of Calcutta considered this question in Prafulla Kamini Roy v. Bhabani Nath Roy 52 Cal. 1018 : A. I. R. 1926 Cal. 121. The question came before Walmsley and Page JJ. The two learned Judges differed, and I will refer to the judgment of Page J. because it so happens that the view expressed by that learned Judge came ultimately to be adopted by the High Court of Calcutta. The learned Judge points out from reference to the Privy Council and other authorities as to what is the true principle underlying the doctrine of surrender, and then he says that the only reason why the next reversioner should be denied possession on the surrender taking place and should be compelled to wait till the death of the widow is an argument of convenience, and with respect he rightly points out that when the law is clear there is no room for an argumentum ab inconvenienti, and he emphasises the fact that he sees no harshness in the application of the Hindu law on the subject. The learned Judge observes (p. 1039):
'Why should the Court extend special protection to an alienee from a Hindu widow, and none to an alienee from a minor Upon what principle of fairness or equity ought the Court to favour the interests of an alienee to the detriment of the rights of the reversioners I can see none. In my opinion, a person who is minded to enter into a business transaction with a Hindu widow must be taken to know the law, and to be aware of the restricted power of alienation which a Hindu widow possesses.'
Mr. Thakor says that when an alienee takes from the widow he may contemplate the widow adopting, he may contemplate the possibility of the widow dying a natural death, but he does not contemplate a widow surrendering the whole of her estate to the next reversioners. Of course, one cannot enter into the minds of alienees, but I do not see any reason why they should contemplate a part of the Hindu law and not the whole of it. This case was followed and the law was finally settled by a later decision of the Calcutta High Court in Ram Krishna v. Kousalya Mani Dasi : AIR1935Cal689 . That is a judgment of Mitter and Narsing Rao JJ. and in that case the Calcutta High Court accepted and followed the view propounded by Page J. in the case to which I have referred.
5. The decisions to the contrary are to be found in Sundarasiva Rao v. Viyyamma : AIR1925Mad1267 . It is important to note the extreme view that the Madras High Court has always taken on this question. Till the Full Bench decision in Vaidyanatha Sastri v. Savithri Ammal 41 Mad. 75 : A.I.R. 1918 Mad. 469 , the Madras High Court took the view that even an adopted son was not entitled to immediate possession on adoption, but had to wait till the death of the widow; and in Sundarasiva Rao v. Viyyamma : AIR1925Mad1267 , Krishnan J. who delivered the judgment of the Bench, quite frankly concedes that the Courts are justified, in recognising the right of surrender by the widow, to impose conditions on her power based on considerations of justice, equity and good conscience. With very great respect, if the Hindu law is clear, I fail to see where the power of the Court arises in altering the law from considerations of justice, equity and good conscience. Nor am I at all satisfied, as I have pointed out earlier, that any considerations of justice, equity and good conscience arise in these cases in favour of alienees who take property from a limited owner and with notice of the limitations which the law imposes upon transfer of property by a limited owner. And Krishnan J. further points out that surrenders are effected for the purpose of defeating alienees, and because of this till the surrenderer dies, her acts could not be questioned by the surrenderee, and that according to the learned Judge seems to be a just and equitable rule. If that is so, why not impose the same limitation on a widow adopting She may adopt in order to defeat an alienee. But no one has ever suggested that such a limitation should be placed upon the power of the widow to adopt in the interest of justice, equity and good conscience. The Allahabad High Court in Lachmi Chand v. Lachho : AIR1927All258 has taken the same view as the Madras High Court. In the first place, Boys J. who delivered the judgment of the Bench consisting of Sulaiman J. and himself, states in his judgment at p. 339 that it was important to bear in mind steadily that the whole doctrine of surrender was a creation of judicial decision, and it was unknown to the Hindu law. With very great respect, this is entirely due to a misapprehension. The doctrine of surrender is definitely founded upon Hindu texts and Mookerjee J. pointed this out in a learned judgment in Debi Prosad v. Golap Bhagat 40 Cal. 721: 19 I.C. 273 . The learned Judge states at p. 771 that
'the theory of relinquishment is foreshadowed in the Dayabhaga, Chap. XI, Section 1, para. 59, where Jimutavahana laid down that the persons who would be the next heirs on failure of prior claimants, succeed to the residue of the estate remaining after her use of it, upon the demise of the widow in whom the succession had vested, in the same manner as they would have succeeded if the widow's right had never taken effect.'
Then the learned Judge quotes the Sanskrit text and translates it as follows : 'If her right ceases or never takes effect;' and the learned Judge points out that these words are comprehensive enough to include, not merely the case of the death of the widow, but all cases where her right cases; in other words, the reversioners take the estate, not merely when the widow dies, but also when her title is extinguished, for instance by renunciation, remarriage or the like. Therefore, the case of surrender would be a similar case to the case of renunciation or remarriage, in each one of which cases title of the widow would he extinguished. I may also point out that the Privy Council paid a compliment to the judgments of Sir Lawrence Jenkins C. J. and Mookerjee J. delivered in this case, when their Lordships came to consider this case in Rangasami Gounden v. Nachiappa Gounden 46 I. A. 72 : A.I.R. 1918 P. C. 196 because at p. 79 of the judgment their Lordships say that their Lordships wish to acknowledge how much they have been assisted by the lucid and able judgments of Jenkins C.J. and Mookerjee J. in that case, which, though expressed in terms which are not identical, are in substance the same. Then, going back to the Allahabad case, Boys J deliberately, with respect, imports into the doctrine of Hindu law principles which, according to him are essential to the prevention of fraud, and, therefore, the learned Judge says that the widow cannot by making a surrender defeat the rights created by herself and creation of which was within her authority, and the reversioner cannot claim on the basis of the surrender to defeat such rights. The learned Judge says he is entitled to import this doctrine because the principle of surrender itself is the result of judicial decisions. I, therefore, with very great respect, would not follow either the Madras High Court or the Allahabad High Court in the view that they have taken as to the rights of the next reversioner on a surrender being effected by a Hindu widow. I would prefer to take the same view as the Calcutta High Court has taken.
6. The result, therefore, would be that we must hold that the deed of surrender executed by the widow in this case was a valid deed notwithstanding the fact that defendants 1 and 2 had perfected their title against the widow by adverse possession, and we must also hold that the plaintiffs are entitled to immediate possession. That is the view which the trial Court took. (The rest of the judgment is not material to the report.)