Lallubhai Shah, Kt., Acting C.J.
1. The facts which have given rise to this appeal are few and simple. One Gopal was the owner of the property in suit. He died leaving a widow named Venai and a daughter named Vithai. He also left a nephew. In March 1911 the widow conveyed the whole of her estate by way of gift to her daughter by a. registered deed. The daughter conveyed the whole estate absolutely to the widow on December 14, 1912. The daughter Vithai died in 1915 leaving a daughter Tai, who is the present defendant. Venai, the widow, gifted away the lands now in suit to her grand-daughter, the defendant, on April 6, 1916. The plaintiff, who is the nephew of Gopal, claims these lands as a reversioner. Venai died in November 1918, and the plaintiff filed this suit in April 1919 to recover the lands as a reversioner. The defence of the defendant was that the widow Venai completely and effectively surrendered her whole estate to the next reversioner, her daughter, in March 1911, that when the daughter Vithai conveyed back the lands in December 1912 to her, the widow got an absolute estate, and that therefore, the gift of the lands in suit by her in 1916 in favour of her grand-daughter was valid, and not liable to be questioned by the reversioner as an alienation made by the widow.
2. The trial Court decided in favour of the plaintiff holding that the result of the two transactions of March 1911 and December 1912 was that there was no surrender of the widow's estate, and that in effect the widow continued to hold the widow's estate at the date of the gift in favour of the present defendant. She was, therefore, held to be incompetent to convey any interest beyond her life-time, as there was no suggestion of any legal necessity in the case. Accordingly a decree was passed in favour of the reversioner.
3. In appeal, the learned Assistant Judge declined to treat the two transactions of 1911 and 1912 as part of one and the same transaction. He treated the transaction of March 1911 on its own merits, and came to the conclusion that thereby Venai effectively surrendered the widow's estate in favour of her daughter, the then next reversioner, and that she got back in 1912, not the original widow's estate, but a complete and absolute ownership over the lands which was vested in the daughter at that date. He was, therefore, of opinion that the gift of the lands in suit to the grand-daughter in 1916 by the widow was valid, and the reversioner had no right to challenge it. The suit was accordingly dismissed.
4. In the appeal before us it is contended that the transaction of 1911 should not be accepted as an effective surrender of the widow's estate in favour of the next reversioner, and that thesecond transaction of 1912, whereby the daughter conveyed back the properties to her mother, should be treated as evidence of the fact that the original gift in favour of the daughter was not intended to be an unconditional surrender of the estate. It is also pointed out, in view of the recital in the deed of 1912, that the sanction of the Collector in respect of some lands was believed to be necessary to give effect to the first conveyance, and that as that sanction was not obtained, the surrender evidenced by the first document could not be accepted as valid. In support of this contention reference has been made to the decisions in Hem Chunder Sanyal v. Sarnamoyi Debi I.L.R. (1895) Cal. 354; Challa Subbiah Sastri v. Palury Pattabfiiramayya I.L.R. (1908) Mad. 446 and Rangappa Naile v. Kamti Naik I.L.R. (1908) Mad. 366
5. It is needless, however, to examine those decisions in detail in view of the pronouncements of their Lordships of the Privy Council in Rangasami Gounden v. Nachippa Gounden (1919) L.R. 46 IndAp 72 : 21 Bom. L.R. 640 and in Sureshwar Misser v. Maheshrani Misrain . The following observations in Sureshviar Misser v. Maheshrani Misrain are pertinent to the point in the present case :
Now there are two conditions as there laid down which must be fu1 filled 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 Gounden's case, 'must be a bona fide surrender, not a device to divide the estate with the reversioner.'
6. Applying these two tests to the present case, it seems to u& clear that, in March 1911, the widow surrendered her whole estate in favour of the next reversioner. It is admitted that the lands and the house referred to in that document constituted the whole of her estate. It is not suggested that the surrender was partial. The second condition that it must be a bona fide surrender not a device to divide the estate with the reversioner also is fulfilled. It cannot be suggested in the present case that in 1911, when the widow was in bad health, and her widowed daughter was staying with her, it was intended to be merely a device to divide the estate with the reversioner.
7. The question of transfer of possession does not present any difficulty to our mind, because the widow and the daughter both lived together, and such transfer of possession as was possible and necessary under the circumstances was effected, It seems to us that looking to the transaction of 1911 alone for the moment, it was undoubtedly a good surrender.
8. It is argued, however, that the transaction of December 1912, must be taken as part of the name transaction, and that when the land was conveyed back to the widow, it was the original widow's estate that was restored, and not that the lands were S conveyed back to her absolutely as owned by the daughter at the time. We are not at all sure whether the widow's estate once effectively surrendered could be re-created. But that is not so much the question raised by the appellant. What we are asked to hold by the appellant is that the intention of the parties must be gathered from the recitals in the second document which would show that the first transfer was invalid. We do not think, however, that a document executed nearly a year and nine months after could be treated an part of the same transaction, and the recital in the document as to the absence of the Collector's sanction cannot be relied upon as proving either the necessity for such sanction, or the tenure of the land conveyed by the widow to her daughter. Under these circumstances, the second document cannot be read in the sense in which it is argued on behalf of the appellant it should be read by the Court; and it seems to us that the lower appellate Court was right in treating the document as a later and independent transaction conveying the estate, which it does purport to convey, namely, the absolute interest of the daughter in the lands. It that position is accepted, it follows necessarily that the gift by Venai in favour of her grand-daughter in 1916 was perfectly valid, and not liable to be challenged by the present plaintiff. We, therefore, affirm the derision of the lower appellate Court and dismiss the appeal with costs.