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Sakharam Bala Nikam Vs. Thama Bala Nikam - Court Judgment

LegalCrystal Citation
SubjectFamily;Property
CourtMumbai
Decided On
Case NumberSecond Appeal No. 798 of 1925
Judge
Reported inAIR1928Bom26; (1927)29BOMLR1571
AppellantSakharam Bala Nikam
RespondentThama Bala Nikam
DispositionAppeal allowed
Excerpt:
.....to the earlier gift the widow had put it out of her power to surrender her whole interest in the estate in favour of her daughter who was the nearest reversioner.;rangasami gounden, nachiappa gounden (1918) l.r. 46 i.a. 72, s.c. 21 bom. l.r. 640, followed. - - 5. we have been referred to various authorities, but none of them appear to be precisely on all fours with this case, although one in prafulla kamini roy v. but in so far 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. if, on the other hand, the surrender was by a of his life interest to the remainderman, then it would follow that the life interest would ordinarily..........council it is not an interest which can be specifically described in terms of western law as a life estate or any other particular estate. but in so far 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. if, on the other hand, the surrender was by a of his life interest to the remainderman, then it would follow that the life interest would ordinarily be merged in the reversion, as is shown in the well-known taxing case of attorney-general v. beech. [1899] a.c. 53 (cf. halsbury, vol. xiii, p. 187).6. if then, in the present case, the.....
Judgment:

Amberson Marten, C.J.

1. In this case a Hindu widow Thama defendant No. 1 passed two deeds of gift, viz., (1) on September 23, 1918, Exhibit 23, in favour of Rama, and (2) on August 20, 1921, Exhibit 20, in favour of her own daughter and roversioner Sau, defendant No. 2. Then on January 22, 1922, she Adopted the plaintiff. The present contest is between the daughter Sau claiming under the deed of gift of August 1921, Exhibit 20, and the plaintiff, the adopted son. The trial Court decided in favour of the adopted son. The lower appellate Court decided in favour of the daughter. The adopted son appeals.

2. The daughter bases her claim on this that there was a valid surrender by the deed of August 1921 of the mother's life interest in favour of the daughter and reversioner, whereby the reversion became accelerated and the life interest of the widow extinguished. On the other hand it is contended by the adopted son that the widow could not in August 1921 pass her whole interest in the property because she had already purported to convey it to Rame by the earlier deed of gift of 1918.,

3. The question, therefore, becomes one of law as to what are the essential conditions to enable a Hindu widow effectually to surrender her interest to the reversioner. Now fortunately their Lordships of the Privy Council have laid down the essentials to such a surrender in Rangasami Gounden v. Nachiappa Gounden , 21 Bom. L.R. 640, where it is stated (p. 84): .

The result of the consideration of the decided cases may be summarized thus : (1) An alienation by a widow of her deceased husband's estate held by her may be validated if it can be shown to be a surrender of her whole interest in the whole estate in favour of the nearest reversioner or reversioners at the time of the alienation. In such circumstances the question of necessity does not fall to be considered. But the surrender must be a bona fide surrender, not a device to divide the estate with the reversioner.

4. In my judgment, having regard to the earlier deed, Exhibit 23, of September 1918, the widow had put it out of her power to surrender her whole interest in the whole estate in favour of the nearest reversioner. It is true that by that earlier deed there was a small portion of the property that was not conveyed to Rama, viz, some two acres, so we are told. But apart from those two acres, the whole estate consisting, we are informed, of some eighteen acres and % house, was conveyed to Rama, who was her nephew.

5. We have been referred to various authorities, but none of them appear to be precisely on all fours with this case, although one in Prafulla Kamini Roy v. Bhabani Nath Roy I.L.R. (1925) 52 Cal. 1018 comes close to it, There unfortunately the learned Judges differed in their opinion, and consequently I take it that so far as that High Court is concerned, the matter must be regarded as an open question. That was not a case of adoption. It was a case where a widow had made a gift of a part of her estate to T, and had subsequently purported to surrender the whole of her estate to her next reversioner. It was held by Mr. Justice Page that the reversioner became immediately entitled to recover possession of the property given to T, and that his right in that behalf was not postponed until after the widow's death. Mr. Justice Walmsley took the opposite view. Now I quite appreciate the observations which Mr. Justice Page has made there as to the nature of a Hindu widow's interest. As has been pointed out by their Lordships of the Privy Council it is not an interest which can be specifically described in terms of western law as a life estate or any other particular estate. But in so far 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. If, on the other hand, the surrender was by A of his life interest to the remainderman, then it would follow that the life interest would ordinarily be merged in the reversion, as is shown in the well-known taxing case of Attorney-General v. Beech. [1899] A.C. 53 (Cf. Halsbury, Vol. XIII, p. 187).

6. If then, in the present case, the widow has parted with the property so far as she can-to the extent at any rate of her estate or interest as a widow-then it would seem to be erroneous to say that notwithstanding that she can still surrender that whole interest to the reversioner. I quite appreciate that a widow's interest may be determined in various ways: by her natural death, by her re-marriage, by adoption, or by a valid surrender. But if it is to be a surrender, then it is essential that she should comply with certain conditions. It seems to me that here she does not comply with those conditions, as she has put it out of her power so to do by an earlier document.

7. Under those circumstances I arrive at the conclusion that the decision of the learned trial Judge was correct, and that it ought to be restored.

8. There is another point, viz., that the second deed contains a provision for the maintenance of the widow, and so is not an absolute surrender, and that it cannot possibly be said that this was a case of compromise by a widow or anything of that sort, as was the case in Sureshwar Misser v. Maheshrani Misrain . I, however, do not think it necessary in this case to go into that question; but would only refer to a subsequent case in the Privy Council of Man Singh v. Nowlakhbati, 28 Bom. L.R. 841 and a decision of our own Court in Rama Nana v. Dhondi Murari, I.L.R. (1923) 47 Bom. 678 25 Bom. L.R. 361 Personally I express no opinion on that point.

9. In the result, I would hold that this appeal ought to be allowed, and the judgment of the trial Judge restored, with costs here and of the lower appellate Court.

Crump, J.

10. I agree with the judgment now pronounced by the learned Chief Justice, and upon the first point 1 do not desire to add anything, for the ground of my decision is precisely that which has already been stated.

11. Upon the second question as to whether the provision in the second deed for the maintenance of the widow would make the surrender inoperative, I also agree that it is unnecessary for the purposes of this case to pronounce any decision. But I will only say this much that it seems to me a matter of some doubt whether their Lordships of the Privy Council in Sureshwar Misser v. Maheshrani Misrain intended to differ from what had been said in the previous decision in Rangasami Gounden v. Nachiappa Gounden 21 Bom. L.R. 640, or indeed to distinguish that decision upon the question of the effect of the provision for maintenance in a deed of this description. In the former of these cases, Sureshwar Misser v. Maheshrani Misrain, it is said that the provision of a small portion of the land for the maintenance of the widow was not objectionable, and it is that principle which we find is applied by this Court in Rama Nana v. Dhondi Murari I.L.R. (1923) 47 Bom. 678 25 Bom. L.R. 361, a decision to which I was a party. Whether it is correct to say that in Sureshwar's case the judgment upon that point rested upon the fact that there was a compromise, is a matter upon which I feel some doubt. The question of compromise was no doubt discussed by their Lordships of the Privy Council in that case, but, as I understand it, it was rather upon the point whether the surrender was or was not bona fide, or a device to divide the estate between the widow and reversioner. But, as I have already said, it is unnecessary in the present case to specifically decide that point, because I am quite clear from the first ground that the decision should be as stated by the learned Chief Justice.

12. Appeal allowed. Decree of trial Judge restored. Respondents to pay costs of this appeal and in the lower appellate Court.


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