John Beaumont, Kt., C.J.
1. This is a second appeal from a decision of the First Class Subordinate Judge of Ahmednagar. The suit was a suit by the plaintiffs for redemption of a mortgage made in 1880 in favour of defendant No. 1, or those through whom ho claims, and it is admitted that the right of the plaintiffs to redeem this mortgage depends upon the validity of a deed of gift or surrender made in 1884.
2. It appears that in 18S0 the then owner of the property, one Waman Phadnis, had died leaving a widow Lakshmibai, andLakshmibai on November 27,1880, executed the mortgage in suit. In 1884, on September 11, Lakshmibai executed in favour of her daughter Kusabai a deed of gift or surrender, which is Exhibit 74, upon the validity of which we have to adjudicate. The document in question provides that Lakshmibai makes a gift of her ancestral immovable estate in favour of her daughter, and then it is stipulated as follows:-
My daughter-in-law Annapurnabai husband's name Autuji Waman Phadnis and I are without husbands(i.e., widows) and our maintenance should be carried on. Therefore we both will raise crop in Survey Nos. 24/25 out of the numbers given in gift and maintain ourselves. If my daughter-in law desires to remain separate and to maintain herself, she will raise produce in Survey No. 25 and enjoy the same. But we both are not entitled to dispose of the said numbers. We are only entitled to enjoy the same, By virtue of the gift you are entitled to dispose of the same.
So that there is an exception from the surrender or gift of a right for the widow making the gift, and for a third party, namely, the widow of her deceased son, to maintenance, out of a particular part of the property,-the subject-matter of the surrender,-and the question which arises is whether that exception vitiates the surrender.
3. The right of a Hindu widow to surrender the estate which belonged to her husband to the next reversioner has been discussed in many cases. The general principle was considered and enunciated by the Privy Council in the case of Rangasami Gownden v. Nachiappa Gounden In that ease Lord Dunedin, delivering the judgment of the Board discusses the power of a Hindu widow to surrender her estate to the next reversioner and he says (p. 79):-.in any case it is settled by long practice and confirmed by decision that a Hindu widow can renounce in favour of the nearest reversioner if there be only one or of all the reversioners nearest in degree if more than one at the moment. That is to say, she can, so to speak, by voluntary act operate her own death.
He then goes on to point out that the surrender must be a surrender of the whole interest of the widow in the whole estate and he says that that is clear on principle, because the surrender operates as an 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, and he observes that there cannot be a widow who is partly effaced and partly not so. It is further laid down that the surrender must not be a mere device for dividing the estate between the widow and the reversioner.
4. That case is a clear authority for the proposition that the surrender by a widow must be a surrender of her whole estate in the whole of the property, but the widow's right to subsequent maintenance was not in any way considered. Mr. Limaye for the respondents contends that, although there is no express authority on the point, nevertheless it is the law that after a surrender by the widow to the nearest reversioner she is still entitled to maintenance out of the property, on the general principle of Hindu law that the person inheriting the property is liable to maintain those persons whom the late proprietor was legally or morally bound to maintain. I am disposed to think that Mr. Limaye's contention is correct. A widow who surrenders her whole estate and is treated quoad the estate as though she is civilly dead, is nevertheless in fact physically alive, and she must have something to live upon, I think, therefore, that the widow after surrender remains entitled to maintenance, and if the deed of surrender merely provides that she is to be entitled to maintenance, it does no more than express what the law would allow, and I apprehend there can be no objection to that. But if Rangasami Gounden's case stood alone, I should have thought that if the deed of surrender provided that the widow was to be entitled to maintenance of any specific amount, or to any specific part of the property by way of maintenance, that could not be said to be a total surrender of her total interest in the property and free from the vice of sharing the estate with the reversioner. Some difficulty, however, in reaching that conclusion seems to me to be occasioned by two later decisions of the Privy Council. The first one is Bhagwat Koer v. Dhanukhdhari Prashad Singh In that case there had been disputes relating to the family property, and in the year 1874 certain ekrarnamas, or agreements, were made under which the widow, Anandi Koer, in effect, admitted the right of the next reversioner to the estate, and he gave to her a certain share in part of the estate for maintenance, and their Lordships in dealing with the position say this (p. 271):-
The question is no doubt one of difficulty, but upon the whole their Lord-ships have come to the conclusion that the execution of the two ekrarnamas, followed by the acceptance for thirty years of maintenance under the terms of those documents, amounted to a complete relinquishment by Anandi Koer of her estate in favour of Mahabir....
The importance of the case for the present purpose is that their Lordships appear to have thought that the reservation of a right to maintenance out of part of the property does not prevent the surrender being a total surrender.
5. The point, however, is raised more distinctly in the next case to' which I wish to refer, the case of Sureshwar Misser v. Maheshrani Misrain In that case again there had been family disputes and a compromise was ultimately arrived at, the effect of which was that the widow surrendered her right in theimmoveable property of her husband to the next reversioner, and the reversioner agreed to give half of it to the daughters of the widow, who had a claim against it. The latter arrangement was in settlement of matters in dispute between the daughters and the reversioner, but it was provided that the reversioner and the daughters should each give a small portion of the land to the widow for maintenance. The decision of the Board was again delivered by Lord Dunedin. His Lordship refers to Rangaeami Gounden's case and he points out that (p. 237) 'there are two conditions as there laid down which must be fulfilled to make a surrender by the widow, with consent of the next heir (necessity being out of the question), valid. The first is that the surrender must be total, not partial The second is that the surrender, in the words of [Rangasami] Gounden's Case, must be a bona fide surrender, not a device to divide the estate with the reversioner.'' Dealing with the first point his Lordship says (p. 238): ' As regards the immovable property in which she had only a widow's interest the surrender here was total not partial.' He then discusses the second point as to whether the surrender was bona fide, and he comes to the conclusion that it was bona fide and part of a compromise of family disputes, and then he says (p. 238) :-
The conveyance of small portions of land to the widowed mother was un-objectionable, as it was only for maintenance
It is on those words that Mr. Limaye bases his case in the present appeal, The words appear to be used by his Lordship primarily in connection with the discussion upon the second question as to whether the surrender was bona fide or not, but they appear to me to have a substantial bearing upon the first question, and, inasmuch as the widow was to get part of the land for maintenance, I have some difficulty in seeing how the statement that the surrender was total and not partial was justified. I should have thought that if the widow was to retain a life interest in part of the land by way of maintenance, it could not be said that the surrender was other than partial,
6. The next case to which I would refer is a decision of a division bench of this Court consisting of Sir Norman Macleod and Mr. Justice Crump in the case of Rama Nana v. Dhondi Murari I.L.R. (1923) Bom. 678 : 25 Bom. L.R. 261 In that case there had been a surrender by a Hindu widow to her daughter with a stipulation that the daughter should maintain the widow as long as she lived. The actual provision was that the donee should go on looking after the arrangements of the donor's feeding, &c;, and should render service to her by way of looking after her comforts as she had been doing all along to the end of the donor's life. The Court there came to the conclusion that in view of the Privy Council's decision in Surreshwar Mieser's case such a stipulation was unobjectionable and that the surrender was valid. Sir Norman Macleod reached that conclusion, I think, with regret because at page 684 he says this:-
With the very greatest respect it would appear as if this deoiaion(i.e. Sureshwar Misser's case) has afforded a very wide scope for future litigation. It offers a temptation to next reversioners to induce young widows to surrender their life estate in return for maintenance, and it will be difficult to draw the line between a promise to pay maintenance, and an arrangement which is a device to divide the estate between the reversioner and the widow. If the real test is the complete surrender by the widow of the right to hold the property, the loss of the right acting as a deterrent against a too frequent use by widows' of the power of surrender so as to favour the next reveirsioner to the detriment of the more remote who still have a chance of being the nearest when the reversion falls in, it seems tome that if the widow is able to secure her maintenance, the forces operation on her mind to prevent her exercising her power of surrender have been rendered extremely small.
With respect, I agree with the learned Chief Justice in thinking that there is great danger of encouraging the next reversioner to make a bargain with a young widow to the detriment of later reversioners if she is to be entitled to make special arrangements for her maintenance. Mr. Justice Crump bases his decision entirely on the fact that the case is covered by the decisions of the Privy Council in Bhagwat Koer's case and Sureshwar Misser's case, but it is worth observing that in a later case, Sakharam Bala v. Thama I.L.R. (1927) Bom. 1019 : 29 Bom. L.R. 1571 Mr. Justice Crump seems to doubt whether the Privy Council in Sureshwar Misser's case really intended in any way to depart from what had been decided in Bangasami Oounden's case.
7. The matter then came again before the Privy Council in the case of Man Singh v. Nowlakhbati In that case two joint widows made a surrender to the next reversioners who agreed to pay the widows Us. 2,000 per month for maintenance, and the Board held that the agreement was void under Section 60 of the Court of Wards Act, But they also held that it was void under the general Hindu law, and in that connection discussed Rangasami Oounden's case and Sureshwar Misser'a case. The Board first set out the general principle established in Rangasami Oounden's case in the actual words of that decision, and point out that in Sureshwar Misser'a case the Board affirmed that pronouncement of the law, and then the effect of Sureshwar Misser's case is stated in these terms (p. 23):-
A family compromise was agreed to, and in performance of it the widow surrendered all her rights of succession to the immovable property, and the plaintiff the next reversioner and her daughters gave her for her life a small portion of the land for her maintenance. The Board held that the compromise was a bona fide surrender of the estate, and not a device to divide it with the next reversioner, the giving of a small portion of it to the widow for her maintenance not being objectionable, and consequently that the transaction was valid under the principles laid down by the Board in Rangasami Gounden v. Nachiappa Gaundm.
8. It is, I think, clear from that decision that the Privy Council did not regard Sureshwar Misser'a case as in any way infringing the general principle laid down in Bangasami Oounden's case, and their Lordships treat the observations as to maintenance as referring to the bona fides of the transaction as to compromise. Reading the two cases together it seems to me that the general principle established in Bangasami Gounden's case is that the surrender by a widow to the next reversioner must be of her whole interest in the whole estate and must not be a device for dividing the estate with the reversioner, and that Sureahwar Misser'a case imposes on that general principle a qualification that a surrender by a widow of her estate as part of a bona fide compromise is not rendered objectionable merely by stipulation that the widow is to retain a small part of the estate for maintenance. Mr. Rao has argued that the : principle upon which that exception is based only applies where there is a compromise. He points out that a widow has a general power to make a proper compromise on behalf of the estate as a whole, and not merely in respect of her own interest. Whether that argument be sound or not, both Bhagwat Koer's case and Sureshwar Misser's case were in fact cases of compromise, and as in my view they engrafted an exception upon the general principle, I think that we ought not to apply these cases to a case in which the facts are not similar.
9. Now, in this case there was clearly no compromise. Moreover, there is this special feature about the case, that the reservation of a right of maintenance was not only for the widow but for a third party, viz., her daughter-in-law, Mr. Limaye says that the daughter-in-law would also be entitled bylaw to maintenance. That may be so, but neither the widow nor the daughter-in-law was entitled to the particular form of maintenance which was stipulated for in this document, viz., a right of maintenance out of particular survey numbers. Cases like Rama Nana v. Dhondi Murari to which I have referred and the later decision of this Court in Anna v. Gojra : AIR1928Bom333 seem to me to stand on a different footing, as in these cases there was merely a provision that the widow should be maintained, which gave her no more than the law would imply. Here the stipulation for maintenance out of a particular part of the property seems to me to infringe the general principle that the surrender must be a surrender of the total interest of the widow in the whole estate.
10. We were referred also to a decision of a full bench of the Madras High Court in Angamuthu Chetti v. Varatharajulu Chetti I.L.R. (1919) Mad. 854 F.B. In that case two widows surrendered their estate to the next reversioner on the terms that one of them should receive Rs. 500 in lieu of maintenance, and the other should (receive) maintenance out of part of the property. The Court held that the arrangement was valid, notwithstanding Rangasami Gounden's case. I should myself have arrived at a different conclusion It seems to me that the payment to one widow of a lump sum in lieu of maintenance illustrates in a pointed manner the essential fact that any bargain as to special maintenance converts the transaction into a sale. There being no question of necessity, a sale by a widow to the reversioner must, I think, be a device for dividing the estate. For these reasons I think that the appeal must be allowed with costs.
11. Appeal allowed. Decree of the trial Court restored with costs throughout.
1. The material facts in this case are these: One Waman Phadnis who died sometime before November 1880 left an estate consisting of thirteen lands measuring 231 acres 32 gunthas in the village of Kashti, He was succeeded by his widow Lakshmibai, who on November 27,1880, mortgaged nine of the said lands measuring 150 acres 24 gunthas, On September 11, 1884, Lakshmibai executed a deed of gift, Exhibit 74, in favour of her daughter Kusabai. By this deed she purported to convey to her daughter the whole of the property which she had inherited from Watnan subject to a provision for the reservation of two survey numbers for the maintenance of Lakshmibai herself and her daughter-in-law Annapurnabai. The suit which has given rise to this appeal was a suit to redeem the mortgage to which I have referred and it was brought by the heirs of Kusabai. Objection was taken that they were not entitled to redeem, and that depends on the question whether the gift deed Exhibit 74 was a valid surrender according to Hindu law. If it was, the plaintiffs are entitled to radeern the mortgage; if it was not, the equity of redemption would belong to Waman's reversioners who are different people altogether. The trial Court held that there was no valid surrender. The Court of first appeal held that there was. The gift deed Exhibit 74 was impeached on the ground of the provision for the maintenance of Lakshmibai and her daughter-in-law.
2. The essentials of a valid surrender have been discussed in several recent cases : Bangaaami Gounden v. Nachiappa Gounden Bhagwat Koer v. Dhanukhdhari Prashad Singh Sureshwar Misser v. Maheshrani Misrain ; Man Singh v. Nowlakhbati Rama Nana v. Dhondi Murari I.L.R. (1923) Bom. 678 : 25 Bom. L.R. 361 SaJcharam Bala v. Thama I.L.R. (1927) Bom. 1019 : 29 Bom. L.R. 1571 Anna v. Gajra : AIR1928Bom333 Govindprasad v. Shivlinga : (1930)32BOMLR1482 ; and Angamutku Chelti v. Varatharajulu Chetti I.L.R. (1919) Mad. 854 F.B. All these cases have been considered by the learned Chief Justice, The effect of them appears to me to be that a provision for the maintenance of a widow by setting apart a portion of the estate for that purpose does not necessarily render a surrender by the widow invalid. Although in Rama Nana v. Dhondi Murari and Anna v. Gojra there were merely personal agreements to maintain the widow and no particular portion of the estate was set apart or charged with the maintenance, the ruling of the Privy Council in Sureshwar's case cannot be evaded on that ground, for there there was an assignment of particular portions of the estate for the maintenance of the widow, Mr. Rao who appears for the appellant has contended that such a provision for the maintenance of the widow is only permissible when the surrender is part of the compromise of a dispute. He has drawn a distinction between the powers of a widow to compromise a family dispute as representing the estate and her power of surrender of the widow's estate only. In Mulla's Hindu Law, seventh edition, paragraph 192, p. 206, the powers of a widow to compromise are stated as follows :-
Where a widow or other limited heir enters into a family arrangement, or into a compromise which involves an alienation of the estate, the reversioner who has been a party to and has benefited by the transaction is precluded from questioning the alienation ; and so are his descendants.
But at the foot of the paragraph it is stated that in the case of a family arrangement it is not necessary in order to bind the reversioner that there should have been any previous dispute as to the rights of the parties, and in support of that statement the case of Pokhar Singh v. Dulari Kunwar I.L.R. (1930) All. 716 is cited. It is, therefore, not clear that a distinction can be drawn between the power of a widow to compromise a dispute and her power to make a family . settlement when there is no dispute. It so happens that both in Bhagwat Koer's case and Sureshwar Misser's case there were disputes and the surrender was part of a compromise, but it is doubtful, I think, whether that fact affected the view which the Privy Council took on the provision for maintenance. At page 238 of the judgment in Sureshwar's case Lord Dunedinsaid that the fact of the arrangement being a compromise was of importance on the question whether the transaction was a bona fide one. The provision for maintenance, however, was separately dealt with, and as to that his Lordship said no more than this, that the conveyance of small portions of land to the widowed mother was unobjectionable as it was only for maintenance. The question whether the judgment in Sureshwar's case was based on the fact that there was a compromise was discussed but not decided by this Court in Sakharam Bala v. Thama. Again, in Man Singh v. Nowlakhbati, the fact that there was a compromise was referred to but the decision as regards the provision for maintenance appears to me rather to have been based upon the unreasonableness of that provision. Maintenance had been allowed at the rate of Rs. 2,000 a month; that was held to be inconsistent with a valid surrender and the decision in Sureshwar's case seems to have been distinguished on the ground that there was a gift only of a small portion of the land for maintenance which was unobjectionable. The area of the land assigned for maintenance in that case was 100 bighas. In Govindprasad v. Shivlinga Patkar J. accepted the view that what has to be considered is the reasonableness of the provision for maintenance-whether there is a bona fide intention to provide for the maintenance of the widow or whether under the disguise of a provision for maintenance there has been really a division of the estate. I am inclined to think myself that if in the present case a provision had been made merely for the maintenance of Lakshmibai herself, that is to say, one of the two survey numbers had been set apart for that purpose, it would have been very difficult to say that the case is not covered by the decision of the Privy Council in Sureshwar Misser's case. I have mentioned already that the area of the whole estate was 231 acres 32 gunthas; the area of the two survey numbers assigned for the maintenance of Lakshmibai and Annapurnabai was 21 acres 29 gunthas and 21 acres 2 gunthas respectively.
3. But in the present case there is this further point that provivision is made not for the maintenance of the widow only but for the maintenance of her daughter-in-law also. In Sureshwar's case their Lordships of the Privy Council assigned no reason for holding that the provision for maintenance was unobjectionable except that it was a conveyance of small portions of land for maintenance only, but the report of the case quotes a passage from the High Court judgment under appeal where Fletcher J. said referring to the provision by which 100 bighas had been set apart for the widow's maintenance (p. 235):-
This can in no way be considered as a reservation or restoration of the widow's estate that the defendant No. I formerly enjoyed in the property. The life estate in the 100 bighas is essentially different from the widow's estate which the defendant No. 1 formerly enjoyed, For example, if a case of legal necessity arose the defendant No. 1 would not be at liberty to mortgage the 100 bighas and the course of succession thereto is different from what it would have been if the defendant No. 1 had retained her estate as a Hindu widow. I think that) under the terms of the compromise and the deed of relinquishment the defendant No. 1 effectually relinquished and destroyed her estate as a Hindu widow.
I think it is possible that considerations of that kind may have influenced the judgment of their Lordships of the Privy Council, In Angamuthu Chetti v. Varatharajulu Chetti it was held by a full bench that a reasonable provision for maintenance and residence in favour of a Hindu widow does not affect the validity of a surrender by her of her husband's estate to the nearest reversioner provided it is a bona fide surrender of the entire interest of the widow in the whole estate and is not a mere device to divide the estate with the nearest reversioner. Abdur Rahim Ag. C.J. said at page 831 that it appeared to him that that had always been understood to be the law and at page 860 he said:-
It is obvious that if it were to be accepted, if the law were that the widow surrendering her estate cannot stipulate for her maintenance, that would virtually be prohibiting surrenders in most of the cases, even though the widow be actuated by a bona fide desire to divest herself of the entire estate which she inherited from her husband in favour of the next heir.
On the other hand, the law in Bombay appears to have been different. In Adiveppa v. Tontappa I.L.R. (1919) Bom. 285 : 22 Bom. L.R. 94 it was held that any consideration was sufficient to change the nature of the transaction from an acceleration, that is a surrender, to an alienation. This case was not considered by the Privy Council in the cases to which reference has been made, though it has been held to be impliedly overruled in Rama Nana v. Dhondi Murari, In any case it is clear, I think, that the sanction accorded by the Courts to provisions for the maintenance of the widow must be regarded as somewhat anomalous. It is not easy to reconcile such a provision strictly with the requirement that there should be a complete effacement of the widow. It must be considered as an exception to the rule and in my opinion should not be extended. A provision such as we have here for the maintenance of a person other than the widow is certainly inconsistent with the doctrine that the surrender must be total, I think an arrangement of this kind undoubtedly savours of a device to divide the estate. If the widow was permitted to stipulate not only for her own maintenance but for the maintenance of other persons also out of the estate it would be very difficult to know where to draw the line. In Adiveppa v. Tontappa, Macleod C.J. said (p. 260):-
It seems to me that if there in any consideration for the gift by the widow of her life-estate that must prevent it taking effect as an acceleration, and must turn the transaction into an alienation. That seems to me a sound logical principle to act upon, because if we were to enter into a discussion as to whether this consideration was so small that we should overlook it, then that would open the door to all sorts of discussions in later Cases as to the quantum of consideration. It seems preferable to say at once that any consideration is sufficient to change the nature of the transaction from an acceleration to an alienation.
In my opinion, though the decision in this case cannot be reconciled with the ruling of the Privy Council in Sureshwar's case, the reasoning has great force when we are asked to approve of a material extension of the exception which has been grafted on the general rule. For these reasons I agree with the learned Chief Justice that the appeal should be allowed and the decision of the trial Court restored.