1. This was a suit brought by the plaintiff to recover possession of the property in suit as the adopted son of Shivlingappa who died leaving his widow Dyatnavva, and throe daughters Mallavva, defendant No. 2, Patrevva, defendant No. 3, and Shidavva, defendant No. 4 The plaintiff, the son of Mallavva, was adopted by Dyamavva in 1921.
2. On June 23, 1914, the widow Dyamavva passed a deed of gift, Exhibit 86, in favour of the three daughters in respect of survey Nos. 12 and 13. The deceased left in addition to the two survey numbers a house and some moveables. On the same day a deed of maintenance, Exhibit 83, was passed by the three daughters in favour of the widow reconveying one half of the bigger and more valuable survey No. 1.2 to the widow, and a sale-deed, Exhibit 41, was passed by three daughters in respect of half the survey number in favour of the father of defendant No. 1. The husbands of the three daughters passed a deed of consent, Exhibit 39, in respect of the deed passed by the daughters in favour of the father of defendant No. 1.
3. The learned Subordinate Judge held that the plaintiff's adoption was proved, and that there was a complete surrender of the widow's estate in favour of the next reversioners, and by virtue o the sale-deed, Exhibit 41, the alienee got a valid title to the suit property, and therefore, dismissed the plaintiff's suit.
4. On appeal, the learned Assistant Judge held that the surrender was not in respect of the whole property as Exhibit 86, the deed of gift, did not include the house and the moveables, and further, by virtue of the reconveyance of half of the survey No. 12 for the maintenance of the widow, the surrender was more illusory than real and was a device to divide the estate, and disagreed with the view of the learned Subordinate Judge that the daughters entered into the transaction as benamidars of the mother.
5. It is urged on behalf of the appellant, the purchaser from the widow, that there was a valid surrender by reason of the documents Exhibits 86, 83 and 41, and that the provision for maintenance in favour of the widow did not affect the validity of the surrender, and that oven assuming that it was not a valid surrender, the deed of gift, Exhibit 86, and the sale-deed, Exhibit 41, in favour of defendant No. 1, formed one transaction, and that the sale was in effect a sale by the widow with the consent of the reversioners, and reliance is placed on the decision in the case of Muhammad Salid Khan v. Kunwar Darshan Singh ILR (1927) All. 75 : 21 Bom. L.R. 640.
6. The first question, therefore, is whether the deed of gift, Exhibit 86, in favour of the three daughters together with the reconveyance of half of the bigger and more valuable survey No. 12 in favour of the widow by the deed of maintenance Exhibit 83, operated as a valid surrender of the widow's estate. In Rangasami Gounden v. Nachiappa Gounden it was held 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 time, that is to say, she can, so to speak, by voluntary act operate her own death, and that the surrender of the widow's estate is really 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 nest heirs at that date. Their Lordships of the Privy Council, after the discussion of the cases bearing on the point, laid down the result as follows (p. 84):-
(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. (2.) When the alienation of the whole or part of the estate is to be supported on the ground of necessity, then if such necessity is not proved aliunde and the alienee does not prove inquiry on his part and honest belief in the necessity, the consent of such reversioners as might fairly be expected to be interested to dispute the transaction will be held to afford a presumptive proof which, if not rebutted by contrary proof, will validate the transaction as a right and proper one.
7. The surrender, therefore, must be of the whole estate and a partial surrender would be invalid.
8. It is urged on behalf of the appellant that though the sale-deed did not include the house and the moveables the widow had already made a gift with regard to the moveables and the house. in favour of one of the daughters. The learned Subordinate Judge has not considered the question with regard to the moveables, but with regard to the house he held that the widow had made a gift of the house to the eldest daughter. The lower appellate Court came to the conclusion that the house and the moveables were excluded. The evidence with regard to the moveables is not very satisfactory. The gift of the house, which was worth more than Rs. 100, could not be effected except by a registered document, and the title would remain in the widow even if she had judge an oral gift in favour of the daughter. Adiveppa, Exhibit 71, proves that the plaintiff is in possession of the house and half of the lands. The surrender, therefore, was not of the whole estate and would be invalid on the ground that it was partial and not complete.
9. Even assuming that the house and the moveables were already disposed of by the widow and the surrender was of the whole of the estate which remained with the widow, the question arises whether the view of the lower appellate Court that the surrender was more illusory than real and was a device to divide the estate by reason of the deed of gift, Exhibit of, and the deed of maintenance, Exhibit 83, is proper under the circumstances of the present case. In Angamuthu Chetti v. Varutharajidu Chetti ILR (1919) Mad. 851 it was held that a reasonable provision of 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. The provision of maintenance in that case was the payment of a limited sum of K?. 500 to one of the widows, and an undertaking to maintain the other widow and to provide for their residence. In Rama Nana v. Dhondi Murari ILR (1923) 47 Bom. 678 : 22 Bom. L.R. 477, where a Hindu widow surrendered her husband's estate to her daughter who was the next reversioner and who agreed to maintain the widow, and subsequently adopted a son, it was held that the adopted son was not entitled to question the surrender and that the surrender was valid. There was in that case a personal agreement to maintain the widow. It would, therefore, follow that a reasonable provision for maintenance would not affect the validity of a surrender. In Bhagwat Koer v. Dhanukhdhuri Prashad Singh (1919) L.R. 40 IndAp 259 : 23 Bom. L.R. 477 it was held that the widow's agreement together with her acceptance of maintenance amounted to a complete relinquishment of the estate. The provision for maintenance in that case was the allotment of certain property for her maintenance during her life-time. It does not appear clear whether the property allotted for maintenance formed part of the property of the husband and if so whether it exceeded a small portion of it. In Sweshwar Misser v. Maheshrani Misrain , was held that the compromise in that case was a bona fide surrender of the whole estate and not a device to divide the estate with the next reversioner, the giving of small portions to the widow for maintenance being unobjectionable. The same view was accepted in Man Singh v. Nowlakhbati . In Anna v. Gojra : AIR1928Bom333 the surrender was considered valid in spite of the provision for the maintenance of the widow,
10. It would, therefore, appear from the decided cases that the test for deciding the validity of a surrender in case of a provision for maintenance is whether it is a reasonable provision for the maintenance of the widow or whether it is a device to divide the estate, In the present case the deceased left two survey numbers, survey No. 12 measuring twenty-five acres and another survey No. lit measuring only one acre. The deed of gift comprised both the survey numbers, but half of the bigger survey No. 12 is reconveyed to the widow to be enjoyed by her for life for her maintenance. Having regard to the evidence in the case, I am not prepared to differ from the view of the lower appellate Court that the surrender in this case was more illusory than real and was a mere device to divide the estate.
11. In Beharl Lai v. Madho Lai Ahir Gyawal (1891) L.R. 19 IndAp 30 Lord Morris observed (p. 32):-
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 surrender, according to the decision of the Privy Council in Rangasami Gounden v. Nachiappa Gounden, is 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 nest heirs at that date. The partition, therefore, of the property by which half of the bigger survey number was given to the widow for life and the rest of the estate was given in gift to the three daughters, in my opinion savours of a device to divide the estate, and cannot be considered to be a reasonable provision for maintenance of the widow.
12. I think, therefore, that the surrender by the widow is invalid.
13. The next argument on behalf of the appellant is that the deed of gift, Exhibit 86, and the sale-deed, Exhibit 41, formed one transaction and though the sale was by the daughters in favour of the father of defendant No. 1, it was in effect a sale by the widow with the consent of the reversioners. In Muhammad Salid Khan v. Kunwar Darshan Singh ILR (1927) All. 75, where a widow executed a deed of transfer of a portion of the property of her husband in favour of her next reversioner and next day the transferee sold the property, it was held that the whole transaction was really one and amounted to a transfer by the widow with the consent of the next reversioner, and could not be upset unless the plaintiff proved that there was no legal necessity for the transfer or that the consent of the reversioner had been obtained by fraud.
14. It is not necessary to go into the question whether the view taken by the Allahabad High Court should be followed, for the facts proved in the case of Muhammad Sdid Khan are wanting in the present case. In that case there was clear evidence that the widow intended to sell the property and the next reversioner was prepared to consent to the alienation, and both took legal advice in pursuance of which the two documents, the gift to the reversioner and the sale by the reversioner to the alienee, came into existence. It is not suggested in the present case that the consideration for the sale-deed went into the hands of the widow, On the other hand, Patreva, Exhibit 28, deposed that the consideration of Bs. 2,000 was divided among the three daughters, and it was suggested in the cross-examination of Adiveppa, Exhibit 71, that the husbands of the three daughters distributed the sale price amongst themselves The maintenance deed, Exhibit 83, passed by the daughters conveying one half of survey No. 12 to the widow is indicative of an intention to effect a surrender of the widow's interest in favour of the daughters, and militates against the theory that the widow intended to alienate the property with the consent of the daughters. The receipt of the consideration money by the daughters and not by the widow completely destroys the theory of the alienation by the widow with the consent of the reversioners. The main case presented in both the lower Courts was that the widow surrendered her estate to the daughters who in their turn sold the property to the father of defendant No. 1. It may be pertinent to observe that in case of an alienation by the widow the receipt by her of the consideration for the alienation is difficult to be reconciled with the theory of the complete effacement of the widow which is necessary to constitute a valid surrender. Sir Lawrence Jenkins in Debi Prosad Chowdkwy v. Golap Bhagat ILR (1913) Cal. 721' observes (p, 151):-
But if logic is to have any place, the alienation so sanctioned must be of the entire estate. How far it can be said that the doctrine of acceleration eon-sequent on relinquishment applies where the widow retains on interest in the purchased price, or the sale is little more than a change of investment, it is difficult to any ; the cases do not refer to this.
In the written statement it was never contended that the alienation by the daughters was an alienation by the widow in favour of the father of defendant No. 1. In the written statement defendant No. 1 contended that the dfuighters being the full owners sold the property to his father. The learned Subordinate Judge did not raise any issue on the point, but in the course of the judgment observed that the daughters were renlly berami for the widow, and the sale was by the widow herself with the consent of the next reversioners. The alienation in this case was not by the widow, but the widow passed a deed of gift in favour of the daughters and the daughters passed a deed of sale in favour of the father of defendant No. 1, The daughters had no right as reversioners to sell the property.
15. The lower appellate Court found that there was no legal necessity for the sale-deed and that the alienee did not make proper inquiry as to the existence of such necessity. In Vinayak v. Govind ILR (1900) 25 Bom. 129 : 2 Bom. L.R. 820 it was observed by Eanade J. (p. 140) :-
Apparently the Bengal view of surrender or release has been approved also by the Allahabad High Court..., but not in Bombay, where the view taken by the Privy Council has been followed and the assent of all such reversioners is necessary as establishing the propriety and fairness of the alienation.
16. If the present sale-deed had been passed by the widow in favour of the alienee with the consent of the daughters, the consent of the reversioners would have given rise to the presumption of legal necessity and the alienation would have been binding on the adopted son unless the presumption of legal necessity was rebutted by more cogent proof. The circumstances in the present case are quite different. The widow purported to make a gift of the whole property in favour of her daughters. In fact she intended to effect surrender of the widow's estate in favour of the next reversioners and the daughters purported to sell the property to a stranger. The attempted surrender in favour of the daughters, in my opinion, is invalid as it was a device to divide the estate. The alienation by the daughters in favour of the father of defendant No. 1 is only in respect of a portion of the estate inherited by the widow and does not comprise the whole estate. It appears, therefore, that even the view of the Calcutta High Court in Debi Prosad Ckoudhury v. Golap Bhagat, which is based on the surrender of the widow's estate or acceleration of the reversionary interest and which would validate an alienation by the widow of the whole of the estate inherited by her by virtue of the consent of the reversioner-a view not accepted by Jenkins C. J. and Ranade J. in Vinayak v. Govind, as applicable to this Presidency-would not be tenable in the circumstances of the present ease. If the alienation of the portion of the estate in favour of the father of defendant No. 1 had been made by the widow, the consent of the reversioners would have given rise to a presumption that the alienation was justified by necessity and was a proper one, but the alienation in the present case is not made by the widow, and the alienation by the reversioner during the lifetime of the widow would not convey any interest in the property to the purchaser.
17. On the whole, I think that the view taken by the lower appellate Court seems to be correct, and this appeal must be dismissed with costs.