1. The facts material to the point arising in this second appeal are briefly these: One Shivlingappa died leaving a widow, Chinava, and two daughters Nilava and Gangava surviving him. The widow made a gift of the property inherited by her from her husband to Nilava on the 8th December 1910. She subsequently adopted the present plaintiff on the 14th December 1911.
2. The plaintiff sued to recover the property given to Nilava by way of gift from her heirs, who were the defendants. The defendants contended that Nilava had acquired an absolute and indefeasible title to the property before the adoption.
3. The trial Court held that the gift was not binding on the plaintiff and decreed the plaintiff's claim. The lower appellate Court confirmed the decree of the trial Court.
4. The point raised in the appeal before us relates to the validity of the gift.
5. It is not disputed that the alienation by way of gift cannot be supported on the ground of legal necessity.
6. It is urged, however, on behalf of the appellants that the gift being of the entire estate of the widow in favour of one of the two next reversionary, it accelerates the estate of the next heir and is valid on that ground. It is also contended that the gift was made with the consent of the other next reversioner Gangava.
7. On behalf of the respondent it in urged that the gift does not relate to the entire estate of the widow, that Gangava never consented to the gift, that the consent of a female reversioner cannot be treated as a valid consent, and that the gift in favour of one of the two reversioners cannot be supported on the ground of the acceleration of the reversion.
8. It is clear that Mr. Desai's contention as to the entire estate not being the subject-matter of the gift must be disallowed. In the lower Courts the case has been dealt with on the footing that the gift related to the entire estate of the widow. The provision in the deed of gift as to the maintenance of the widow is not obligatory, and it does not detract from the gift. It is clear that for the purpose of this case the deed must be taken to relate to the whole of the widow's estate.
9. As regards the consent of Gangava, it is clear that it was not pleaded in the lower Courts. The plea raised in the lower Courts was that Nilava alona was the next revorsioner. That plea has been disallowed, and it is common ground now that the next reversioners at the date of the gift were the two daughters. The alleged consent is supported by the statement of Gangava ; but the trial Court disbelieved her altogether, and it was not suggested in the lower appellate Court that the view of the trial Court was wrong. The contention as to Gangava's consent must be disallowed, and Mr. Mulgaokar's argument as to the validity of the gift must be considered on the footing that Gangava did not consent to the gift.
10. It seems to me that the surrender of the entire estate of the widow in favour of one of the two persons constituting the next reversion without the consent of the other cannot be accepted as valid.
11. In Behari Lal v. Madho Lal Ahir Gyawal (1801) L.R. 19 IndAp 30 their Lordships of the Privy Council observe as follows :-'It may be accepted that, according to Hindu law, the widow can accelerate the estate of the heir by conveying absolutely and destroying her life-estate. It was essentially necessary to withdraw her own life-estate, so that the whole estate should get vested at once in the grantee. The necessity of the removal of the obstacle of the life-estate is a practical check on the frequency of such conveyances.' As I understand these observations, the withdrawal of the life-estate must be effective in order to accelerate the reversion. In my opinion there can be no effective withdrawal of the life-estate in favour of one of the heirs without the consent of the other. It would be open to the reversioner, who is not a consenting party, to sue to have the alienation of the entire estate without legal necessity declared as inoperative beyond the widow's life-time. It is clear that the right of the non-consenting reversioner cannot be prejudiced by such an alienation. In this case though the widow purported to convey her whole estate to Nilava, there was no effective withdrawal of the whole of her life-estate. Assuming that the gift would be valid as to a moiety, so far as Nilava's reversionary interest is concerned, the conveyance would have no effect for the purposes of acceleration, as the whole estate would not vest in Nilava. In the absence of the consent of Gangava it is clear that the gift in favour of Nilava cannot be supported as accelerating the reversion. The life-estate of the widow is not destroyed by such a conveyance.
12. In this view of the case it is not necessary to consider, and I wish not to be understood as expressing any opinion as to (a) whether a gift of the entire estate of the widow in favour of one of the two next reversioners with the consent of the other would be valid as accelerating the reversion; (b) whether the consent of a female roversioner can be treated as a valid consent like the consent of any male reversioner; and (c) whether any absolute conveyance in favour of the next reversioners involving a withdrawal by the widow of the whole of her life-estate is binding upon a subsequently adopted son.
13. I would, therefore, dismiss the appeal and confirm the decree of the lower appellate Court with costs.
14. The question in this second appeal is whether a Hindu widow entitled as such to her deceased husband's immoveable property can validly alienate the same or any part thereof to one of two reversioners voluntarily and without the consent of the other reversioner, so as thereby to deprive a subsequently adopted son of the right he would otherwise have to one moiety of the property in question. I say one moiety advisedly because by the footnote to the notice of appeal the appellants now limit their claim to one moiety of the property and do not now dispute the right of the adopted son to the other moiety.
15. The alienation relied on by the appellants is the deed, Exh. 18. It was, I think, a voluntary alienation without consideration, and no question of legal necessity arises. It was in favour of only one of the two reversioners, viz., Nilava, through whom the appellants claim : and it is clear on the findings of fact in the Courts below that the consent of the other reversioner Gangava was not obtained to it, nor was Gangava in such a superior financial position as to admit of its being argued that Nilava was the sole reversioner.
16. What then was the legal effect of the deed, Exh. 18 ?. I assume in favour of the appellants, but without deciding the point, that the adopted son could in law be defeated by a prior surrender made by the widow to both the then reversioners and with their joint consent. On what basis then can a surrender by a widow be validated where there is no legal necessity, but the reversioners' consent According to the judgment of Sir Lawrence Jenkins in Vinayak v. Govind I.L.R. (1900) Bom. 129 : 2 Bom. L.R. 820, which was quoted by the Judicial Committee in Bajrangi Singh's case (1907) L.R. 35 IndAp 114 : 9 Bom. L.R. 1348 the basis on which the validity of such a surrender rests is a matter of controversy, for the Calcutta Courts appear to favour the view of acceleration, but the Bombay Courts prefer the view that consent evidences the propriety of the transaction,, if not its actual necessity. According to Pilii v. Babaji I.L.R. (1909) Bom. 165 : 11 Bom. L.R. 1291 no voluntary transfer by way of gift can be valid, for there is no room for the theory of legal necessity. I need not however consider whether this latter decision can be reconciled with the decision of the Privy Council in Bajarangi Singh's ease but will assume in favour of the appellants that it cannot be.
17. If then the validity of the alleged surrender in the present case depends on the consent of the reversioners, the appellants are out of Court, for Gangava did not consent to the alienation in favour of her sister Nilava; and it is not, and indeed could not be, suggested that there were any special circumstances hero which would make it impossible strictly to enforce the rule that ordinarily the consent of the whole body of persons constituting the next reversion should be obtained : see Bajrangi singh's case. It is, therefore, unnecessary to consider and I express no opinion on the question which was discussed in Pilu v. Babaji as to whether the consent of the female reversioners alone could suffice.
18. If on the other hand the appellants base their case on acceleration as in fact they did before us, then they have other difficulties to contend with. In the first place as Sir Lawrence Jenkins says in Vinayak v. Govind I.L.R. (1900) Bom. 129 : 2 Bom L.R. 820 'It is impossible not to feel some difficulty as to this doctrine : (viz., acceleration) for it would seem to rest on the application to a Hindu widow's estate of the English doctrine of the merger of a particular estate, with a result that the devolution of a property according to law is influenced by the acts of those who are simply in the possible lino of succession'. Personally I share the difficulty in seeing how a widow can by a voluntary deed vest the estate of a contingent reversioner to the prejudice of an after-born reversioner where the contingency in question depends on the reversionor surviving the widow. I will however again assume in favour of the appellants but without deciding the point that the doctrine of acceleration is applicable in Bombay.
19. Turning then once more to the deed, Exh. 18, it is clear that, on the face of it, it purported to convey the whole property to Nilava. But I fail to see how such an alienation could accelerate the interests of the other reversioner Gangava, for the deed does not purport to be, and was not intended to be, a surrender in favour of Gangava of any portion whatever of the property. Appellants' pleader was unable to advance any real argument in favour of that proposition, and in my judgment it is unsound.
20. We accordingly come to the last point, viz, that the deed operated as an acceleration of Nilava's contingent moiety. This was the only point seriously urged before us in the brief argument for the appellants. The answer to it is, I think, simple, viz., that the widow would thus retain her interest in the other moiety. Accordingly the alleged surrender would not satisfy the restriction laid down by the Judicial Committee in Behari Lal v. Madho Lal Ahir Gyawal (1891) L.R. 19 IndAp 30 and requoted in Bajrangi Singh's case, viz., that the surrender should be absolute and complete and that the whole limited estate should be withdrawn, a restriction that would guard againt the injurious result which would follow if the rule were not so qualified. That restriction negatives, I think, an acceleration of a fraction of the estate, and I may refer to Radha Shyam Sircar v. Joy Ram Senapati I.L.R. (1890) Cal. 896 Pilu v. Babaji I.L.R. (1909) Bom. 165 : 11 Bom. L.R. 1291, Debi Prasad Chowdhary v. Golap Bhagat I.L.R. (1913) Cal. 721 find Moti Raiji v. Laldas Jebhai I.L.R. (1916) Bom. 93 : 18 Bom. L.R. 954 in support of the view I take. I, however, express no opinion as to whether Moti Raiji v. Laldas Jebhai can be entirely reconciled with the decision of the Privy Council in Bajrangi Singh's case. Apart from authority this restriction appears only reasonable for at the date of the deed, Exh. 18, it would seem unfair to deprive Gangava without her consent or even her knowledge of her contingent interest in Nilava's moiety. Further, if a partitionis to be effected out of Court, the consent of all should prima facie be obtained. In the present case I gather that Nilava predeceased her mother. Apart then from the adoption Gangava might in certain contingencies have succeeded to the whole property.
21. In the result, therefore, I would hold that the deed, Exh. 18, was inoperative against the subsequently adopted son. Consequently in my judgment the appeal fails and ought to he dismissed with costs. I should perhaps add that as Gangava is not a party to this action, she will not technically be bound by its result.