Skip to content


Krishna Mhatarba Temkar and anr. Vs. Baban Rambhau Temkar and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtMumbai
Decided On
Reported inAIR1945Bom24
AppellantKrishna Mhatarba Temkar and anr.
RespondentBaban Rambhau Temkar and ors.
Excerpt:
.....income is however just sufficient for her maintenance. for all these reasons, we cannot accept the finding of the learned judge that the surrender is bad, and we hold that it is a valid surrender by which the widow manjulabai completely renounced her right as a hindu widow in her husband's estate. 79 as well as in yeshwanta v......leaving a daughter thakubai who was the original defendant 1 but died pending the suit. the other widow manjulabai who is alive adopted the plaintiff on 23rd february 1937. she had a daughter at that time named dagadubai who was defendant 1a but who, after thakubai's death, became defendant 1. the plaintiff's natural father gangaram and defendants 2 to 6 are descendants of bambhati's two brothers and are thus his agnates. before the plaintiff's adoption in 1937, manjulabai had, on 8th june 1927, sold nearly half of the property, which she got from her husband, to defendants 2, 3, 4 and 5 for rs. 2500. dagadubai and thakubai had joined in passing that deed. thereafter manjulabai passed a document which is in the nature of a sale deed on 29th june 1929, in favour of her daughter dagadubai.....
Judgment:

Divatia, J.

1. This is an appeal by defendants 2 and 3 in a suit by the plaintiff to recover possession of certain properties on the ground that he was adopted as a son by one Manjulabai to her deceased husband to whom the properties belonged. The plaintiff's case in substance is that one Rambhau died in 1918 leaving two widows Deubai and Manjulabai. Deubai died in 1932 leaving a daughter Thakubai who was the original defendant 1 but died pending the suit. The other widow Manjulabai who is alive adopted the plaintiff on 23rd February 1937. She had a daughter at that time named Dagadubai who was defendant 1A but who, after Thakubai's death, became defendant 1. The plaintiff's natural father Gangaram and defendants 2 to 6 are descendants of Bambhati's two brothers and are thus his agnates. Before the plaintiff's adoption in 1937, Manjulabai had, on 8th June 1927, sold nearly half of the property, which she got from her husband, to defendants 2, 3, 4 and 5 for Rs. 2500. Dagadubai and Thakubai had joined in passing that deed. Thereafter Manjulabai passed a document which is in the nature of a sale deed on 29th June 1929, in favour of her daughter Dagadubai and step-daughter Thakubai. It purported to be a sale of all the remaining properties to them for Rs. 900 which were to be paid to her by annual instalments in the form of corn worth BS. 60 and clothes worth Rs. 15, that is, in all articles worth Bs. 75 every year during her life. The amount of Rs. 900 seems to have been fixed in the deed only for the purpose of stamp. Otherwise the liability to give articles worth Rs. 75 was to continue till her death. It is expressly stated in the deed that both the daughters had been made owners of the property thereby. Eight years thereafter the present plaintiff was adopted by Manjulabai and he now sues to recover possession of all the properties which belonged to his adoptive father on the ground that both the deeds, passed by Manjulabai in 1927 and 1929 were without consideration as well as legal necessity and were not therefore binding on him. The defence in substance was that both tie transactions were supported by consideration as well as legal necessity. It was further contended by the daughters that the deed of 3929 amounted to a valid surrender on the par of Manjulabai of the whole of the property in her hands at that time by which she completely renounced her interest in it and made them owners thereof, with the result that the subsequent adoption of the plaintiff by Manjulabai cannot divest the property of which they had already become owners before the adoption.

2. The material issues before the lower Court were as to whether the adoption laid been proved, and secondly, whether the sale deed of 1929 was a valid surrender under tie Hindu law with the result that the adopted son had no right to divest the property in to hands of the daughters as well as the vendees under the deed of 1927. As regards the fact of adoption there is no doubt on the evidence that it did take place. There is a deed of adoption passed four days later on 2Tth February and the evidence of the witnesses, Exs. 76 and 77 clearly 'establishes the factum of the plaintiff's adoption. A photograph of the persons present at the time of the adoption seems to have been taken after the ceremony was over, but unfortunately it could not be put in evidence as the photographer was ill. However, questions have been freely asked about persons who appear in the photograph in the course of the evidence. But apart from the photograph, there is sufficient and reliable evidence to justify the finding which the lower Court has arrived in support of the factum of adoption. We, therefore, agree with the finding on that point. The next question is about the effect of the deed of 1929. There is no doubt that the widow purported to convey therein the whole of the property which was with her at that time to her two daughters, and although the document purports to be a deed of sale, it amounts to a surrender of the estate which she possessed as a Hindu widow, and the learned Judge below has also taken it to be such. He is, however, of the opinion that it is not a valid surrender as the widow purported to retain her interest in the property by stipulating that the daughters should give her corn and clothes worth about Bs. 75 every year out of the income of the lands which did not exceed Es. 100 per year. According to him, this stipulation, even though it may be regarded as for a reasonable amount for her maintenance, was out of proportion to the income, and the deed was not therefore a bona fide surrender. He then discussed the evidence with regard to the legal necessity for passing the sale deed of 1927, and held that that sale deed was not supported by consideration as well as legal necessity. He was, however, of the opinion that if the deed of 1929 be regarded as a valid surrender by which the widow completely renounced her interest in her husband's estate, the question as to whether the sale deed of 1927 was supported by legal necessity would not arise and the plaintiff would not be entitled to challenge it. But having held that both the deeds were not binding against the adopted son, he passed a decree in his favour, and defendants 2 and 3 have now appealed to this Court.

3. As I have already stated we hold that the plaintiff has been adopted by Manjulabai as a son to her husband. The only question is whether the plaintiff, by virtue of his adoption, is entitled to recover property which has already been conveyed by Manjulabai to the defendants. Taking the deed of 1929 as a deed of surrender as the learned Judge has done, the important point to examine is whether the learned Judge below was right in holding that it is not a valid surrender because a large portion of the income of the lands conveyed has to be paid to the widow for her maintenance. In coming to the conclusion to which the learned Judge has done, he has relied upon a recent decision of this Court in Gangadhar v. Prabhudha A.I.B. 1932 Bom. 625 as well as on a decision of their Lordships of the Privy Council in Man Singh v. Nowalakhbati A.I.R. 1926 P.C. 2. As both these decisions turn upon the previous authorities of their Lordships of the Privy Council in Bhagwat Koer v. Dhaiuikhdhari Prashad Singh A.I.R. 1919 P.C. 75 and Sureshwar Misser v. Maheshrani Misrain A.I.R. 1921 P.C. 107 it is necessary to see first what has been established by these and also the later decisions of their Lordships. In Bhagwat Koer v. Dhaiuikhdhari Prashad Singh A.I.R. 1919 P.C. 75 it was held that the widow's agreement, in conjunction with her acceptance of maintenance, amounted to a complete reinquishment of the estate to the nephew who was the next reversioner. The conclusion to which their Lordships came has been enunciated as follows (page 271):.the execution of the two ekrarnamas, followed by the acceptance of 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.

4. In coming to that conclusion their Lordships affirmed the principle which they had laid down in another case, Rangasami Gounden v. Nachiappa Gounden A.I.R. 1918 P.C. 196 namely, that (page 271):

a Hindu widow can renounce the estate in favour of the nearest reversioner, and by a voluntary act efface herself from the succession as effectively as if she had then died. This voluntary self-effacement is sometimes referred to as a surrender, sometimes as a relinquishment or abandonment of her rights; and it may be effected by any process having that effect, provided that there is a bona fide and total renunciation of the widow's right to hold the property.

The combined effect of these two decisions is that a widow can renounce her interest in her husband's property provided that the renunciation is a bona fide and total renunciation and that it is not invalid merely because she stipulates with the reversioner for the payment of her maintenance. Then in Sureshwar Misser v. Maheshrani Misrain A.I.R. 1921 P.C. 107 their Lordships again held that in a transaction of surrender the conveyance of small portions of land to the widow was unobjectionable as it was only for maintenance, provided there was a bona fide surrender of the whole estate. The next decision of their Lordships on this point was in Man Singh v. Nowalakhbati A.I.R. 1926 P.C. 2 In that case two widows had executed a deed by which they purported to surrender all their rights in the property to the two grandsons of their deceased husband, as next heirs, on the latter agreeing to pay to them Rs. 2000 per month for maintenance. This deed was passed without the consent of the Court of Wards which was in management of the estate. It was held on those facts that the alleged surrender was void under the Hindu law and also under the provisions of the Court of Wards Act. Their Lordships seem to have been of the opinion on the evidence that the stipulation that the grandsons were to pay to the widows rupees 2000 per month for maintenance was really a device to divide the estate with the reversioners, and they distinguished it from the case in Sureshwar Misser v. Maheshrani Misrain A.I.R. 1921 P.C. 107 where the widow was given only a small portion of the lands for maintenance. Thus, the principle that there can be a valid surrender even if a small portion of the property was reserved for maintenance was re-affirmed. The last case bearing on this point is Sitanna v. Virauna In that case there was a conveyance in favour of a daughter by a widow reserving only a few acres for her own maintenance, and their Lordships observed that it was not disputed before them that the conveyance by the widow of the rest of the property after reserving only a few acres for her own maintenance would have amounted to a surrender of her estate and accelerated the succession of her husband's next heir if he had been a man as held by the Board in Bhagwat Koer v. Dhaiuikhdhari Prashad Singh A.I.R. 1919 P.C. 75 and Rangasami Gounden v. Nachiappa Gounden A.I.R. 1918 P.C. 196 All these decisions are authorities for the proposition that it is open to a widow, while surrendering the whole of her estate to the next reversioners, to stipulate for her maintenance from the property in which she renounced her right. In this Court it has been held in Rama Nana v. Dhondi Murari A.I.R. 1923 Bom. 432 that where a Hindu widow surrendered her husband's estate to her daughter who was the next reversioner and who agreed to maintain the widow as long as she lived, and then the widow adopted a son, the latter was not entitled to question the surrender. The facts of that case very nearly resemble the facts of the present case, as here also it is the adopted son who comas after his adoption to challenge the deed of surrender. The learned Judge below however seems to be of the opinion that in the later case in Gangadhar v. Prabhudha A.I.B. 1932 Bom. 625 this Court took a different view. In that case the widow had surrendered her husband's estate to her daughter but had reserved a life interest in two fields for the intenance of herself and her widowed daughter-in-law. It was held that the transaction did not amount to a valid surrender, firstly, because the maintenance of the widow was made a charge on specific property, and secondly, because provision was also made for the maintenance of her daughter-in-law. None of those two circumstances are present in our case. There is no charge created in the widow's favour on either of the surrendered properties, and the provision for maintenance is made for the widow only. Reliance is, however, placed by Mr. Walavalkar on behalf of the respondent on the observations made by the learned Chief Justice that (p. 415)

if Rangasami Gounden v. Nachiappa Gounden A.I.R. 1918 P.C. 196 had'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'.

He has also relied upon another passage that (p. 421)

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... be a device for dividing the estate.

5. It must be stated, however, that the learned Chief Justice did accept the proposition that 'a widow who surrenders her whole estate and is treated quoad the estate as though she is civilly dead, was nevertheless in fact physically alive, and she must have something to live upon,' and that therefore the widow after surrender remains entitled to maintenance. A distinction was, however, sought to be drawn by the learned Chief Justice between a mere provision that the widow was entitled to be maintained and a provision that she was entitled to, maintenance of a specific amount or to any specific part of the property. But that distinction and the observations relied upon do not seem to have been necessary for the decision of the case, which was expressly placed on the two factors which I have stated above. Broomfield J. on the other hand, seemed to be inclined to think that if in that case which they were considering a provision had been made merely for the maintenance of the widow herself, i. e., one of the two survey numbers had been set apart for that purpose, it would have been very difficult to say that the case was not covered by the decision of the Privy Council in 47 I. A. 233. With respect I think that view is correct, and that the mere setting ajar of some income or some property for the purpose of maintenance should not affect the validity of the surrender provided that the amount of maintenance reserved was a reasonable amount. Broomfield J. rightly summarized the effect of the previous decisions to be that a provision for maintenance (If the widow by setting apart a portion of the estate for that purpose did not necessarily render the surrender invalid. We do not think that the proper test for determining the validity of a surrender is that the reversioner had merely to maintain the widow as against his agreeing to give a certain amount of maintenance to her from the income of the property. In fact it appears that in Sitanna v. Virauna the widow had reserved about six acres for her own maintenance, and it was not disputed before their Lordships that the reservation of this much land would have made the surrender invalid. The test of a reasonable amount of maintenance being reserved had been laid down by the Pull Bench decision of the Madras High Court in Angamuthu Chetti v. Varatharajulu Chetti A.I.R. 1920 Mad. 627 and that is also the test which Patkar J. approved of in Govindprasad v. Shivlinga A.I.R. 1931 Bom. 107. The decision in Man Singh v. Nowalakhbati A.I.R. 1926 P.C. 2 is not based on the ground that a specific amount was to be given to the widow for maintenance but it is based, as Broomfield J. has pointed out in Gangadhar v. Prabhudha A.I.B. 1932 Bom. 625 on the finding that the amount was unreasonably large. The learned Judge below has referred to a decision in Krishna v. Subbanna : AIR1929Mad611 in which it was held that if the profits of the whole of the property surrendered were reserved for the widow's maintenance the surrender would be invalid. We are not concerned in the present case with the reservation of the whole of the income, but even so the decision in that case seems to have been based mainly on the ground that the deed which the Court was then considering did not amount to a surrender at all. I may lastly refer to the latest case of this Court, viz., Haribhai v. Narayan A.I.R. 1938 Bom. 438 in which it has been held by Rangnekar J. following the previous Privy Council decisions, that a provision for the maintenance of the widow by reserving a small portion of the property did not affect the validity of the surrender as a whole.

6. The learned Judge below has held that there was no bona fide surrender by Manjulabai of her entire estate in the property because she reserved to herself the bulk of the income of the property conveyed by her to her two daughters, although the income reserved was just sufficient for her maintenance. We think that in coming to that conclusion the learned Judge has failed to appreciate that the bulk of the income is however just sufficient for her maintenance. The proportion of the total income to the amount fixed for maintenance is not a conclusive test. Provided the amount fixed for the maintenance is a reasonable amount in the circumstances of the case, it would be a proper condition which would not render the surrender invalid whatever may be the total income or value of the property. We have no doubt that in the present case the reservation of the income of Rs. 75 per year, which is sufficient for bare maintenance, does not render the surrender invalid.

7. It is, however, contended on behalf of the respondent that the surrender is not a bona fide surrender and that it was really a device by the widow to share the property with her daughters. There is, in our opinion, nothing to show that it was such a device. At the time of the surrender the widow was about sixty-five years old. She was illiterate, and it is but natural that being of that age and unable to manage the lands, she might hand them over to the only two persons who were nearest to her. There is nothing whatever to show that in doing so she acted with any ulterior motive. In fact the plaintiff Was adopted about eight years after the deed of surrender and the evidence shows that the widow made the adoption on being persuaded to do so by the plaintiffs natural father Gangaram who had a quarrel at that time with his brothers and cousins who had purchased the property from the widow in 1927. The adoption was presumably the result of this quarrel, and the fact that the widow herself has not been examined nor has she appeared as the next friend of the plaintiff in the present case and that Gangaram has appeared as the next friend would show that she has been simply made use of by Gangaram in fighting against his cousins. There is therefore, in our opinion, no question of any mala fide motive on the part of Manjulabai at the time of passing the deed of surrender. For all these reasons, we cannot accept the finding of the learned Judge that the surrender is bad, and we hold that it is a valid surrender by which the widow Manjulabai completely renounced her right as a Hindu widow in her husband's estate.

8. The learned Judge has rightly observed that if the deed of surrender is valid it would not be necessary to consider whether the sale-deed of 1927 was executed for legal necessity. By the surrender, Manjulabai completely renounced all her rights as a Hindu widow in the property and her two daughters became its owners. The only persona who could have questioned the sale-deed were the reversioners and none else. The adopted son would have, in our opinion, no right to question it, because before the adoption the estate had completely passed to the reversioners. The general proposition that an adopted son, after a valid surrender on the part of the widow, has no right to any property in the adoptive family is established in Pandnrang v. Ishwar A.I.R. 1939 Bom. 79 as well as in Yeshwanta v. Antu A.I.R. 1934 Bom. 331 and Rama Nana v. Dhondi Murari A.I.R. 1923 Bom. 432. That being so, the plaintiff is not entitled to recover any of the suit properties. The decree of the lower Court in the plaintiff's favour is therefore reversed and the suit is dismissed with costs throughout.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //