1. One Sadu Pandu died on 30-5-1914, leaving behind him a widow by the name of Janma. On 25-1-1916, Jamna executed a document relinquishing in favour of the next reversioners of her husband all the property left by her husband. The property consisted of both watan and non-watan lands. The next reversioners were defendant 1 and Sakharam, the father of defendants 2, 3 and 4. On 15-6-1938, Jamna adopted the plaintiff. On 31-1-1946, the plaintiff filed a suit to recover from defendants 1 to 4 the lands belonging to Sadu Pandu in their possession. The trial Court gave a declaration to the plaintiff that he was the validly adopted son of Sadu Pandu, but refused to give him relief with regard to the lands in possession of defendants 1 to 4, holding that there was a valid surrender in their favour by the widow. An appeal was preferred to the District Court. The lower appellate Court took the view that inasmuch as the surrender by the widow comprised not only non-watan lands but also watan lands and as she had not taken the consent of the Collector before she surrendered these lands to the next reversioners, the surrender was invalid, and taking that view the lower appellate Court decreed the plaintiff's suit as a whole. The defendants came in second appeal to this Court. The matter came before Gajendragadkar and Vyas JJ. and the learned Judges have referred to a Full Bench two questions. One is,
'Is the relinquishment of watan properties resulting from a Hindu widow's surrender valid in view of the provisions of Sections 5(1) and 7 of the Watan Act?'
The second is:
'If prior to his adoption a valid surrender has been effected by his adoptive mother, can the subsequently adopted son divest the property which has already vested in the surrenderees?'
2. It is important to note that in the written statement defendants 1 to 4 relied for their title upon the document of 25-1-1916. Apart from this document no reliance was placed on any other fact which would confer title upon the defendants. Therefore, if the plaintiff as the adopted son is to be deprived of the properties belonging to his adoptive father, he could only be deprived provided the defendants establish their title on the strength of that document. Turning 1o that document, the widow points out that she has no issue, that she has come of age and she did not feel it proper to remain without marrying a husband, and she expressed her intention to marry. She points out that after the marriage the next reversioners would get her right in the property, and therefore she says that on the day on which she executed the document of her own accord and voluntarily she has relinquished in favour of the next reversioners all her right in the property of her husband. The document ends up by saying that this writing is therefore duly passed for relinquishment of her right. It is clear, therefore, that the document constitutes a relinquishment by the widow of the property which came to her as her husband's widow in favour of the next reversioners. The document docs not record any previous transaction. The relinquishment is by the document itself. The title, if any, which is conferred upon the defendants is only by this document and not by any other act of the widow.
Prima facie, one would have thought that this document would require registration. It extinguishes the right of the widow in the property with which this document deals, and the Registration Act requires registration of such a document. If the document requires registration and has not been registered, obviously it cannot be admitted into evidence. If that be the position, then 110 further question arises for our determination because, as pointed out, if the whole of the defendants' case depended upon this document and if their title rested upon this document, if the document is not admissible in evidence, the defendants must be held to have failed to prove their title. But it is possible, as very fairly pointed out by Mr. Gokhale, that as the document was executed in 1916 a question may arise as to the value of the property dealt with by this document. If the value was in 1916 less than Rs. 100, then the document would not require registration. We will, therefore, consider the questions submitted to us on the assumption that the document was admissible in evidence and will now proceed to consider what is the position, assuming the defendants are entitled in law to rely on this document.
3. The principles underlying the doctrine of surrender in Hindu law were considered by a Full Bench of this Court in -- 'Natvarlal Punjabhai v. Dadubhai Manubhai', : AIR1950Bom55 and it was pointed out in the judgment that the basic principle of surrender is the destruction by the widow by her voluntary act of her life interest in her husband's estate. It was further pointed out that the act of transfer or the act of conveyance is a subsidiary thing to which the same importance cannot be attached as the destruction of the. life estate. Mr. Thakore's contention is that when there is a surrender by a Hindu widow of her estate, it does not constitute a conveyance or transfer, and therefore if the document constitutes a surrender by a Hindu widow, we should not consider what the effect would be if the widow had transferred the property to the next reversioners. In our opinion, that is not the correct reading of the Full Bench decision. It is true that that judgment emphasises the real nature of surrender and it points out that it is brought about by the widow effacing herself. It must follow as a necessary corollary that it is open to a Hindu widow to destroy her life estate, to efface herself, and to remove herself as the impediment which she constitutes between her husband's estate and the next reversioners, without executing any document of transfer of conveyance. If she does that, and as soon as she does that, the succession opens and the next reversioners would succeed to the estate of her husband as effectively as if she had physically died.
But she may adopt a different course. She may choose to transfer or convey or alienate all the property which she received from her husband by a document to the next reversioners. Even so, the question would have to be considered whether the transfer constitutes a valid surrender under Hindu law. But what would then have to be considered is not a question of succession, but a question of transfer. In this case it is clear that the defendants are not relying on succession. It is not their case and it is nowhere stated in the written statement that on the Hindu widow Jamna effacing herself, the succession opened and they succeeded to the estate of her husband. On the contrary, they rely for their very title, as already pointed out, upon the document of relinquishment. Therefore, what we have to consider in this case is not a case of succession by the next reversioners on the succession opening by the widow effacing herself, but a case where a widow has transferred the property of her husband and the next reversioners relying on that alienation or transfer as constituting a surrender by the Hindu widow and they being entitled to the property which was conveyed to them.
4. Therefore, 'in limine', what we have to consider is whether it was competent to the Hindu widow to transfer the property to the next reversioners. If transfer by her is prohibited by any law, then the question as to whether that transfer constitutes a valid surrender under Hindu law does not arise at all. Before we come to the question as to whether it constitutes a valid surrender under Hindu law, what we have to consider is whether the transfer itself is a valid transfer. Therefore, the correct approach to this case would be to consider whether when the Hindu widow Jamna executed the document on 20-1-1916, and relinquished the property in favour of the next reversioners, she was prohibited by any law from doing so. As pointed out, the property that she relinquished in favour of the next reversioners comprised both watan and non-watan land, and it is not disputed by Mr. Thakore who appears for the defendants that as far as watan land was concerned there was a prohibition as contained in Section 7 of the Watan Act.
If there was a prohibition, then the document could not possibly amount to anything more than a purported or attempted transfer or conveyance by the widow in favour of the next reversioners. In law the transfer could not take effect, it never became effective, and no title passed to the defendants. If the transfer never became effective, if no title passed to the defendants, the question as to whether on the transfer taking place it constituted a valid surrender under Hindu law does not at all arise. Mr. Thakore says that when a Hindu widow surrenders her estate and effectuates that surrender by a transfer, the Question of prohibition against the transfer under any law does not arise at all. In our opinion that contention is untenable. Mr. Thakore has not been able to draw our attention to any authority which lays down that proposition. Far from it, there is a clear decision of the Privy Council which lays down the contrary proposition.
5. In -- 'Man Singh v. Nowlakhbati', AIR 1926 PC 2 (B) the Privy Council was considering a case almost identical with the case with which we are considering. In that case two widows of a Hindu were in possession of his property and they were declared to be disqualified proprietors under the Court of Wards Act, 1879. These widows, without the sanction of the Court of Wards, executed a deed by which they purported to Surrender all their rights in the property to the two grandsons of the deceased husband who were the next reversioners. Under Section 60, Court of Wards Act there was a prohibition upon a ward from alienating the property while he continued to be the ward of the Court, and the Privy Council held that the surrender was void both under Hindu law and also as contravening Section 60, Court of Wards Act, and that the transaction was ineffectual to vest the property In the grandsons. Mr. Thakore has made a very valiant attempt to distinguish this decision of the Privy Council. What Mr. Thakore says is that in this particular case the surrender itself was bad according to Hindu law because the widow did not surrender the whole of the property which came to her from her husband. Mr. Thakore says the decision of the Privy Council would have been different if the surrender had been a valid surrender. It is impossible for us to accept this contention, because the judgment of the Privy Council makes it perfectly clear that the Privy Council held that the deed executed by the two widows was void by reason of Section 60, Court of Wards Act and it would have been void whether the surrender under Hindu law had been a valid surrender or not a valid surrender. As a matter of fact, the Privy Council points out at p. 21 that the crucial issue in the case was, 'is the deed of surrender valid having regard to the provisions of Section 60 of the Court of Wards Act,' and they go on to observe that if it was found that that deed was in contravention of that section, the plaintiff's suit must fail and the appeal must fail and that it was not necessary for their Lordships to consider any other issue. Having decided this they then proceeded to consider whether the surrender was a valid surrender under Hindu law looking to the various authorities which had considered the question of surrender. If Mr. Thakere's contention was sound, the Privy Council would not certainty have said that if the deed contravened Section 60, Court of Wards Act it was unnecessary to consider any other issue. If notwithstanding the prohibition under Section 60 it was competent to a Hindu widow to surrender the estate, if the surrender was valid under Hindu law, then the issue which the Privy Council considered would not have been sufficient to dispose of the appeal. It would have been the duty of the Privy Council further to consider whether the surrender was valid under Hindu law or not. But the Privy Council emphatically says that the issue with regard to Section 60 was the crucial issue, that it disposed of the whole matter, and that it was unnecessary to consider any further issue. Therefore, in our opinion, it is clear from this decision of the Privy Council that if a Hindu widow attempts to transfer any property to the next reversioners, and if that transfer is void by reason of any law, no title is conferred upon the transferees, even though she may have an intention to make a valid surrender under Hindu law. In this case Jamna attempted to transfer by the document of 25-1-1916, the watan lands. Such a transfer was prohibited by reason of Section 7 of the Watan Act. Therefore, the transfer made by her to the extent that it related to watan lands was a void transfer, and Mr. Thakore concedes that if we hold that the transfer of watan lands was bad, he cannot possibly contend that he is entitled to succeed on the ground that there was a valid surrender in favour of his clients under Hindu law.
6. With regard to the second question sent to us, in our opinion it is unnecessary to consider that question. That question can only arise provided there is a valid surrender, and that question may come for decision when we have a case of a surrender which is not affected by a transfer rendered void by reason of the Watan Act. Even with regard to the second (sic)estion, a widow may surrender the property of her husband by self-effacement without executing any conveyance or without transferring the property. That would result in the succession opening and the next reversioneis succeeding to the estate of her husband. She may choose to bring about the surrender by executing a conveyance or a transfer. Different considerations would apply to these two different cases. It may be said that in the first case it is a case of succession and no question of alienation arises. In the second case it would be undoubtedly a case of alienation, and the question would be whether it is a lawful alienation, and if it is a lawful alienation, whether the adopted son can divest the transferee of the property which has come to him by a lawful alienation made by the widow. These raise very interesting questions, but as these questions cannot possibly arise in this case, we do not think it right to answer the second question submitted to us.
7. We, therefore, answer the first question in the negative, and we send the matter back to the Division Bench which heard this second appeal for disposal according to law.
8. Answer accordingly.