Subba Rao, C.J.
(1) As the reference was necessitated by the decision of a Division Bench of the Madras High Court ocnsisting of Mack and Krishnaswamy Nayudu JJ., in -- 'Venkateswarlu v. Challaiya, : AIR1953Mad551 (A), it will be convenient, at the outset, to scrutinise the facts of that case and the principles enunciated therein. The proved facts of that case are: The last male-holder, Pichayya, died 60 years prior to the suit, leaving the 20th defendant, a childless widow.
Defendants 1 and 2 were the sister's sons of Pichayya. The widow surrendered her husband's estate in favour of defendants 1 and 2, the nearest reversioners. To effectuate the transaction, the widow, Pichayya's sister and the mother of defendants 1 and 2 jointly executed a surrender deed in favour of defendants 1 and 2 conveying all the properties of Pichayya subject to the condition that the reversioners should pay the widow a sum of Rs.2,000/- towards her maintenance and for religious purposes.
Immediately after the execution of the surrender deed, the next reversioners and the remote reversioners divided the properties. On the same date, defendants 1 and 2 also executed a sale deed conveying 3 acres, 6 cents of land to the widow's brother D. W. 1 for a sum of Rs.3,000/-. Out of this, Rs.2,000/- was mentioned as having been received by defendants 1 and 2 to enable them to pay the widow the maintenance as provided under the surrender deed.
More than three years thereafter, D. W. 1 sold the said land to defendant 15, the widow's brother's son, for the same oonisderation. The learned Judges held, on the evidence, that the transfer in favour of D. W. 1 was for adequate consideration. On the aforesaid facts and on the findings of the learned Judges, the transaction might be supported on the basis of surrender, on the ground that the alienation by the next reversioners in favour of D. W. 1 was supported by consideration and, therefore, it was not a device to deivide the estate between the widow and the reversioners.
But the learned Judges went further and made observations, which would appear to revolutionalise the law of surrender as understood prior to the decision. At page 553, Krishnaswamy Nayudu J., posed the question to be decided as follows:
'Could an arrangement entered into between the nearest reversioners and the other reversioners and even a relation of the widow whereby the properties are divided among them to which the widow might be a consenting party invalidate the surrender where the widow herself does not retain any interest?'
At page 554, the learned Judge proceeded to state:
'The fact that not only she desire to be free from the trouble of administering the estate but also desires to provide for a relation for whom she has some affection and where the reversioner who will be entitled to the estate accedes to her request in deference to her wishes to make such a provision, cannot characterise the surrender asnot a 'bona fide' one.'
The earlier decisions of the Madras High court when cited, were distinguished by the learned Judge on the ground that the finding in those decisions was that the transactions, which they were considering, where benami transactions in the sense that the transfer by the reversioners in favour of a near relation of the widow was really for her benefit and the effect of it was a retention of a portion of the property in the widow by adopting the transfer in favour of the relatioin as a device to divide the estate.
The learned Judge derived support for his conclusion from the Commentary of Jimutavahana on the text of Narada and also from the commentary of Sri Krishna Tarkalankara on Dayabhaga.
(2) IN short, the learned Judge's conclusion was that, unless, at the time of the transaction, the property of the last male-holder was divided between the reversioners and the widow, it would not be a device to divide the estate. If there is a complete effacement of her interests in the property, according to the learned Judge, the fact that it was done pursuant to an arrangement to divide it between the reversioner and a nominee of the widow, would not affect the validity of the surrender, if the nominee was not a benamidar of the widow.
Mack J., in a short judgment accepted the reasoning and the conclusion of Krishnaswamy Nayudu J. The learned Judge's view was expressed in the following sentences:
'The one condition necessary for a surrender by a childless widow to be valid is as my learned brother has pointed but, that it should be 'bona fide'. It must not be a division of the estate between the widow and a reversioner in order that each should have premature and absolute powers of alienation over a portion.
To cite an extreme case, if a young widow and an elderly reversioner without children should agree between themselves to divide the estate and this agreement is embodied in the form of a surrender deed with reservation for maintenance, it would clearly be a mala fide transaction with the object of defeating the other reversioners.'
If the view expressed by the leaerned Judges was sound, the following transaction should be valid under Hindu law. A widow is in possession of her husband's estate to the extent of 100 acres. Pursuant to a previous arrangement between the widow the next reversioner and the widow's brother, a relinquishment deed is executed in respect of the entire 100 acres in favour of the next reversioner.
On the same day, the next reversioner makes a gift of 50 acres to her brother. This transaction, though in effect and substance is a device to divide the estate between the reversioner and the nominee of the widow, in the view of the learned Judge, it would be valid as a surrender as the widow effaces herself completely and her brother takes the property in his own right and not as a benamidar of the widow. The question is whether the said view is correct and whether such a view is supported by decided cases or by Hindu Law TExts.
(3) I shall, at this stage, notice the decisions cited at the bar forming landmarks in the development of the law of surrender to discover, if possible, the real principle underlying the doctrine.
(4) The first landmark of decisions bearing on this doctrine is -- 'Behari Lal v. Madho Lal, 19 Cal 236 (PC) (B), where in delivering the judgment of the Board, Lord Morris said:
'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.'
'Debi Prosad v. Golap Bhagat', 40 Cal 721 (FB) (C) contains a learned discussion on the subject. The judgment of Mukerjee J., is rather instructive. Though the question there ws whether an alienation by way of mortgage by a Hindu widow of a porton of the estate of her deceased husband without proof either of legal necessity or of reasonable enquiry and honest belief as to its existence but with the consent of the next reversioner for the time being, will be valid and binding on the actual reversioner, who is not the heir of the consenting party, the entire subject was convered. Mookerjee J. summarised the legal positioin at page 781 in the following proposition:
'1. When a Hindu widow has alienated, in whole or in part, the estate inherited by her from her husband, the transferee can establish a good title as against the reversionary heir after her death, if he proves that the alienation was made by her for purposes of legal necessity.
2. When a Hindu widow has alienated, in whole or in part, the estate inherited by her from her husband, the transferee can establish a good title as against the reversionary heir after her death, if he proves that he made proper and bona fide enquiry as to the actual existence of legal necessity and did all that was reasonable to satisfy himself as to the existence of such necessity.
3. When a Hindu widow has alienated, in whole or in part, the estate inheried by her from her husband, with the consent of the reversionary heirs, such consent may raise the presumption that the transfer was for legal necessity or that the transferee had made proper and 'bona fide' enquiries and had satisfied himself sas tothe existence of such necessity. The quantum of consent necessary to raise this presumption depends upon the facts of each particular case, and in all cases, the presumption raised by such concurrence on the part of the reversioners, in rebuttable.
4. When a Hindu widow has alienated her entire interest in the estate inherited by her from her husband with the consent of the whole body of persons entitled to succeed as immediate reversionary heirs, the transferee acquires a good title as against the actual reversionary heirs at the time of her death.'
(5) I find it difficult to appreicate the principle behind the fourth proposition laid down by the learned Judges. Indeed the learned Judge himself in the course of his judgment finds it difficult to sustain it on principle but accepts it an settled by previous decisons, particularly that of -- 'Nobokishore v. Harinath', 10 Cal 1102 (D) thelearned Judge observed at p. 779:
'If the matter were'res integra', I would without hesitation adopt the view that a sale by the widow of the entire inheritance to the then immediate reversioner does not possess the characteristics of a real relinquishment by her, as contemplated by Hindu Law-givers. A widow, who transfers the property for a consideratioin or retains an interest in the purcahse-money, cannot, by any stretch of language, be deemed to have relinquished her interest in the estate of her husband; the estate by her action has, in essence, only undergone a transformation and the immoveable property has been converted into money, which may be shuffled out of sight as land can never be'.
(6) If the alienation of the entire estate in favour of the reversioner for consideration was bad, I do not see how the alienation by a widow in favour of a third party, with the consent of the reversioner, would be in a better position. In that case also, the widow would only be converting immoveable property into cash. The transaction can only be supported on the principle that the widow and the reversioner together represent theestate and both of them can alienate it in favour of a third party.
But it is settled law that a reversioner has no interest except 'spes successionis' and that the widow only represents the entire estate. The Judicial Committee exhaustively considered the question in -- 'Rangaswamy Goundan v. Nachiappa Goundan', AIR 1918 Pc 196 (E). There, the mother of the deceased last male-holder executed a deed of transfer to one Ramaswamy Goundan, a nephew of herlat husband, who was then the next reversioner to her son.
The transferee enjoyed the properties under the deed till his death, when they passed to his nephew, defendant 1. The appellant, who was the actual reversioner along with defendant 1, filled the suit for recovery of his share in the property. The suit was decreed. In that connection their Lordships reviewed the entire law on the subject and summarised it as follows:
'(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 favour of the nearest reversioner or reversioners at the time of the allenation. In such circumstances, the question of necessity does not fall to be considered. But the surrender must be a 'bona fide' surrender, and not a device to divide the estate with the reversioner.
(2) When the alienation of the whole of 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 quarrel with the transaction will be held to afford a presumptive proof which ifnot rebutted by contrary proof, will validate the transaction as a right and proper one.'
(7) It will be apparent from the aforesaid observations that the Judicial Committee made a clear distinction between a surrender and an alienation for necessity. The widow should relinquish her entire interest in the whole estate in favour of the nearest reversioners and it should be 'bona fide' in the sense that it is not a device to divide the estate. In regard to alienation, they rightlypointed out that the consent of the reversioners is only a presumptive proof of necessity. Adverting to the case of 'Nobokishore (D)' their Lordships observed at page 199:
'The judgment went upon the principle of surrender, and it might do so for the surrender there was of the whole estate, but it is worthy of notice that the order or reference showed that the alienation was ostensibly on the ground of necessity, so that it might havebeen supported on the ground to be mentioned under the second head above set forth.'
(8) These observations indicate that the conclusion arrived at in the case of 'Nobokishore (D)' could be sustained on thesecond principle enunciated by the Judicial Committee.
(9) The Privy Council again reiterated the same principle in subsequent decisions. In -- 'Mt. Bhagwat Koer v. Dhanukhari Prasad Singh', AIR 1919 PC 75 (F) their Lordships after referring to AIR 1918 PC 196 (E), pointed out at pp. 78-79:
'In that case it is settled by long practice and confirmed by a series of decisions that a Hindu widow can renounce the estate in favour of the nearest reversioner, and by a voluntary act efface herself from succession as effectively as if she has then died. This volutnary self-effacement is sometimes referred to as a surrender, sometimes as a relinquishment or a absondonment of her rights; and it may be effected by any process having that effect, provided that there is a 'bona fide' and total renunciationj of the widow's right to hold the property.'
They proceeded to state at page 79:
'It is true taht the documents were drawn up on the fotting, not of a surrender of an acknowledged right, but of an admission that the right did not exist, but in substance and disregarding the form, there was a complete self-effacement by the widow which precluded her from assering any further claim to the estate.'
(10) It is, therefore, clear that once there is a complete renunciation of the widow's right to hold the property, the substance of the transaction, bringing about that result, is important and not its form. The same view was again repeated by the Judicial Committee in -- 'Sureshwar Misser v. Mt. Maheshrani Misrain', AIR 1921 PC 107 (G). Lord Dunedin, after referring to AIR 1918 PC 196 (E) laid down the following two condtions for the validity of a surrender. The first is that the surrender must be total, not partial.
The second is that it must be a 'bona fide' surrender and not a device to divide the estate with the reversiones. Their Lordships also explained the words 'a device to divide the estate' in the following manner:
'Now their Lordships do not doubt that to make an arrangement such a device, it is not necessary that the lady surrendering should take part of the property directly. An arrangement by which the refersioner as a consideration for the surrender promised to convey a portion of the property to a nominee or nominees of the lady surrendering, might well fall under the descriptiion of a device to divide the estate. It is here that the fact of the arrangement being a compromise becomes of importance'.
(11) This decision, therefore, is authority for the position that a device to divide the estate need not necessarily be between the reversioner and the widow, or between the reversioner and a third party, who is a benamidar of the widow. But the words are comprehensive enought to take in a device to divide the properties between the reversioner and the nominee of the widow, though the widow does not get any direct benefit under it.
If the second arrangement mentioned in the decision was intended to refer only to an arrangement to divide the estate between the reversioner and the benamidar of the widow, the words 'might well fall under the description of a device to divide the estate' would be inappropriate, for, in every case, such an arrangement would fall under the main head. The observatioins can certainly be supported on principle.
The surrender to be valid shall be in favour of the next reversioner of reversiones. The entire succession opens out. If the device adopted gives in substance to the next reversioner a portion of the entire estate of her last male-holder, this will be defeating the object of the surrender itself. Though the widow in law effaces herself, succession does not, in fact, open out in respect of the entire property.
(12) In 'Mumma Reddy v. Durairaj Naidu', : 2SCR655 (H), the properties belonged to one Narayanapa. Narayanappa died leaving him surviving his wife Chenchamma and a daugter Venkatanarasamma. Venkatanarasamma was married to one Rangayya. Before the death of Chenchamma she executed a release deed in favour of her daugter Venkatanarasamma and her son-in-law Rangayya under which the entire estate of Narayanappa was given to them. After the death of Venkatanarasamma, the next reversioners filed the suit for recoveryof the properties alienated by Venkatanarasamma and Rangayya.
The question was whether release deed operated as a valid surrender. The Supreme Court held that the document did not operate as a valid surrender. At page 111 Mukherjee J., made the following observations:
'The effacement may be effected by any process and it is not necessary that any particular form should be employed. All that is required is that there should be a 'bona fide' and total renunciation of the widow's right to hold the property and the surrender should not be a mere device to divide the estate with the reversioners. (Vide -- 'Rangaswamy Goundan v. Nachiappa Goundan', (E) ).
It wouldbe clear from the principle underlying the doctrine of surrender that no surrender and consequent acceleration of estate can possible be made in favour of anybody except the next heir of the husband. It is true that no acceptance or act of consent on the part of the reversioner is necessary in order that the estate might vest in him; vesting takes place under operation of law. But it is not possible for the widow to say tht she is withdrawing herself from her husband's estate in order that it might vest in somebody other than the next heir of the husband.
In favour of a stranger, there can be an act of transfer but not one of renunciation. The positionis not materially altered if, as has ahppened in the present case, the surrender is made in favour of the next heir with whom a stranger is associated and the widow purports to relinquish the estate in order that it might vest in both of them.
So far as the next heir is concerned, there cannot be in such a case a surrender of the totally of interest which the widow had, for she actually directs that a portion of it should be held or enjoyed by somebody else other than the husband's heir. As regards the stranger there can be no question of renunciation, the transaction at the most may be evidence of an intention to confer a bounty on him, though such intention is not clothed in proper legal form.'
(13) It will be apparent from the aforesaid observations that a surrender can validly be made of the entire estate in favour of the next reversioners. A relinquishment of property by a widow in favour of a reversioner and a stranger is not valid in law because the entire estate was not relinquished in favour of the next reversioner. Reliance is also placed upon this decision in support of the proposition that a transfer in favour of a reversioner of the entire estate and a transfer by the reversioner therafter of a part of the estate in favour of a stranger are valid. At page 112, the learned Judge made the following observtions:
'It would be quite consistent with established principles of law if the, widow relinquishes her interests in the husband's estate and the reversioner in whom the estate, vests transfers the estate eitherin whole or in part to another person. If the transfer is of the entire estate, the two transactions may be combined in one document and the widow and the reversioiner might jointly transfer the whole estate to a stranger but the implication in such cases must always be that the alienee derives his title from the reversioner and not the widow.
The extension of this doctrine in the class of cases of which '10 Cal 1102 (D)' may be taken as the type, seems to be rather far-fetched and somewhat anomalous. In these cases, the effect of the immediate reversioners giving consent to the alienation of the whole estate by the widow to a stranger has been to import a double fiction; the first is the fiction of a surrender by the widow in favour of the consenting reversioner and the second is the fiction of a transfer by the latter to the alienee, although both fictions asre contrary to the actual facts'.
(14) The learned Judge then proceeds to criticise the view expressed in -- 'Nobokishore v. Karinath', (D), but for the purpose of the decision, its correctness was assumed. His lordship left open the question with the remark:
'It may be necessary for this Court at some time or other to reconsider the whole law on this subject.
It is clear from the aforesaid observations that the Supreme Court doubted the correctness of the decisioin in -- 'Nobokishore v. Harinath', (D). I have already expressed by view that the said decisioin cannot be sustained on any logical principle. Reliance was placed on the aforesaid observations by the learned counsel for the appellant in support of his contentiion that the Supreme Court endorsed the view that an alienation in favour of a reversioner and a subsequent alienation by him in favour of a stranger would be valid in law, irrespective of any other considerations.
It must be pointed out that the Supreme Court, in making the aforesaid observations, was not considering the question, whether if such alienations were part of a scheme to divide the estate between the reversioners and the widow's nominee, they would be valid or not. The observations, therefore, must be confined to a case where the alienations are not part of any scheme to divide the estate.
If there was a 'bona fide' relinquishment of the widow's interest in the entire property in favour of the next reversioner, the next reversioner, who becomes the owner would certainly be at liberty to alienate the said property to whomsoever he liked. The Supreme Court did not say anything more than that.
(15) Mukerjee J., again, in a subsequent decision in -- 'Natwarlal v. Dadubhai', : 1SCR339 (I), considered the law of surrender elaborately and restated it in clear terms at page 66. The relevant part of his Loredship's observations may usefully be extracted:
The whole doctrine of surrender is based upon this analogy or legal fiction of the widow's death. the widow's estate is in interposed limitation or obstruction which prevents or impedes the course of succession in favour of the heirs of her husband. It is open to the widow by a volunatary act of her own to remove this obstruction and efface herself from the husband's estate altogether.
If she does that, the consequence is the same as if she died a natural death and the next heirs of her husband then living step in at once under the ordinary law of inheritance.'
His Lordship then cited the following passage from Lord Dunedin in 'AIR 1918 PC 196 (E)', with approval.
'It is settled by long practice and confirmed by decisions that a Hindu widow can renounce in favour of the nearest reversioner if there be only one or of all of the reversioners nearest in degree if more than one at the moment. That is to say, she can, so to speak, by voluntary act operate her own death.'
(16) Again in repudiating the suggestion that there could be any such thing as a partial surrender, his Lordship observed:
'As already pointed out, it is 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 next heirs at tht date. Now there cannot be a widow, who is partyly effaced and partly not so'.
(17) It is also well-settled that a surrender, if otherwise bona fide would not depend for its validity on the motives operating on the mind of the widow. Venkatasubba Rao J. in -- 'Subbalakshmi v. Narayana Ayyar', AIR 1934 Mad 535 (J), brought out that idea in clear terms at page 536. The lerned Judge observed:
'First, a surrender, to be valid, must be of the surrenders whole interest in the whole estate in favour of the nearest reversioner or reverioners at the time of the alienation; a surrender being an affacement of the widow, and, it being impossible to conceive of a widow, who is partly effaced, and partly not so, a partial surrender, although absolute as to the part conveyed, cannot under the Hindu Law be effectual.
Secondly, a surrender must be 'bona fide', i.e., there must be no device to divide the property between the lady and the reversioner, it being equally fatal to the transaction whether the benefit is directly taken by the lady or by her nominees subject, however, to the proviso, that the giving a small portion to the surrendering widow for her maintenance is unobjectionable;.....................
The transaction must be 'bona fide'in the sense that the widow retains no benefit either directly or indirectly, i..e., there must be a complete relinquishment; if in the guise of a surrender, the widow enlarges her own estate in regard to a part, the so-called surrender will not be upheld. I do not think there is any warrant for importing a third and further condition, namely, that the motives operating on the mind of the widow must be of a religious or spiritual character'.
(18) With great respect, I entirely agree with the exposition of law so clearly made by the learned Judge. The argument of the learned counsel, if I may say so, mixes up the motives of the widow and the 'bona fide' nature of the transaction. There cannot be any dispute that the motives of the widow are irrelevant. Yet a surrender cannot be 'bona fide' if the transaction is a clock to divide the estate between the reversioners of the widow or her nominee.
Such a transaction is not a real effacement of the widow's interest in favour of the next reversioners. By that process, she would be giving some property to the reversioner and the rest to her nominee. Though the form was adopted, in effect it was a device to divide the estate.
(19) Another decision strongly relied upon by the learned counsel for the appellant reqires consideration. It is a deicision of a Division Bench of the Madras High Court in -- 'Subbiah Sastry v. Pattabhiramayya, 31 Mad 446 (K). There, a widow conveyed the whole of her limited estate the next reversioner in consideration of an undertaking by the reversioner that he would reconvey a portioin of such property to a person named by the widow.
When the title of such reversione and that of the person to whom the property was reconveyed in pursuance of such an agreement was questioned, the learned Judge held that the surrender was vlaid. This was a decision given prior to the decision of the Judicial Committee in AIR 1918 Pc 196 (E)'. On the facts, it is manifest that the arrangement was really a device to divide the estate between the reverisoners and the nominee of the widow.
In my view, the decision would have been otherwise if the learned Judges had dealt with it after the Privy Council decision. When a similar case arose after the Privy Council decision, another Division Bench of the Madras High Court, consisting of Ayling and Odgers JJ. held in -- 'Kotaya v. Veerayya', AIr 1924 Mad 177 (L), that such an arrangement was bad, being a device to divide the estate.
There a widow gifted all the immoveable properties left by her husband in equal shares to her own sister's son and the son of one of her husband's brothers; keeping for herself a right to enjoy a small portion for her maintenance and got a deed from her husband's brothers releasing their reversionary right in favour of the donee and gave in consideration therefor a pronote for Rs.1,200/-.
Thelearned Judges held that it was a device to devide the estate between the reversioners and the widow, and as such, ti was an arrangement, which cannot be held to be a 'bona fide' surrender with the assent of the reversioners. to which effect can be given.
(20) So too, in -- 'Krishmaurthy v. Seshayya', AIR 1944 Mad 439 (M); Lakshmana Rao and Happel JJ. refused to accede to a simiarl argument now advanced before us. There, a transaction was brought about under the colour of a surrender by which the widow purported to surrender her entire estate in favour of her nearest reversioner and the said reversioner made alienations in favour of persons, who are found to be benamidars for her brother's son.
It was held that the surrender was not 'bona fide', but was a device to divide the estate by which the next reversioner gave part of the estate to another in order that the reversioner might get the remainder 'in praesenti' and therefore, not valid.
(21) There are innumerable unreported decisions of the Madras High Court decided after 'AIR 1918 PC 196 (E)', wherein surrenders were held to be invlaid when the parties resorted to such devices to divide the estate between the reversioners and the widow or her nominee.
(22) The settled law on the subject may, therefore, be summarised as follows: A widow can efface herself to accelerate succession. In that event, same legal consequences will flow as if she were dead. The succession opens and the next reversiones will inherit the property as they would on her death. It is, therefore, inherent in the doctrine that the relinquishment should be in respect of the entire property for the benefit of the entire body of next reversioners.
The said result can be effected by any process. The form is immaterial but the substance matters. Though in form the transaction purports to give the entire property to the next reversioners, if it is a clock to cover a pre-arranged plan of partition between the widow and the reversioners, it would not be valid for the simple reason that the entire estate of her husband was not made avilkable to the reversioners.
So too, if the surrender is effected purusant to a scheme of partition between the reversioiners and the nominee of the widow, it would be had for two reasons. It was a device to divide the estate between the widow's nominee and the reversioner. It would also be invalid because in substance the entire property was not given to the invesioner but a part of it to the reversioner and the other part to her nominee.
The result would be inconsistent with her self-effacement, for, on her self-effacement, the reversioners should got the enitre property. In either case, it would not be a 'bona fide' surrender to the entire estate to the, nearest reversioners. If the surrender is 'bona fide', i.e., if it is in effect and substance a complete self-effacement of the widow in the sense that succession to the entire property opens to thereversioners, the motives operating on the mind of the widow would be irrelevant.
It may be the widow intends to escape the responsibility of her wordly affairs. It may be that she wants to favour some reversioners, who happen to be the next reversioners at the time of the surrender. It may also be that she prefers to live a peaceful life with maintenance, instead of troubling hereself with the onerous duties of managing the properties.
There may be many other reasons for her self -effaceent. But whatever her motives may be or whatever form she may adopt, there must be a real sefl-effacement of the widow. The argument of the learned counsel for the appellant that, if once the widow 'bona fide' goes out of the picture, whoever may take the property the surrender must necessarily be 'bona fide' if I may say so, only emphasies one aspect of the surrender. He ignores the correlative aspect that the relinquishment should be in favour of the nearest reversioner.
If a widow relinquishes all her interest in favour of a person other than the reversion it is obviously invalid. It would equally be invalid if the relinquishment was in part in favour of the reversioner and in part in favour of a stranger. In this context the 'bona fides' of the transaction as distinguished from the motives of the widow would be relevant. If the widow, pursuant to an arrangement, relinquishes all her property in favour of the reversioner, under an arrangement that the reversioner should alienate a portion of it in favour of her nomine, though in form the transaction complies with the conditions of surrender in substance it is not, for the entire property is not given to the reversioner but a portion of it was given to a stranger.
Nor is the fact that a reversioner may ignore the wishes of the widow after taking the property of much relevance, for we are only concerned with a case where the arrangement was given effect to. I, therefore, hold that the wide observations of Mack and Krishnaswamy Nayudu JJ., are not supported by precedent.
(23) Nor can I say that the view expressed by the learned Judges has any basis in textual authority. The doctrine of surrender has no basis in Hindu Law Texts. It is really a juge-made doctrine. The relevant texts are given by Mookerjee J., in '40 Cal 721 (FB) (C). They are the texts of Katyayana, Vyasa and Narada quoted by Jimutavahana in the Dayabhaga, Chapter XI S. 1, Paras. 56, 60 and 64 : They are :
'Let the childless widow, preserving unsullied the bed of her lord, and abiding with her venerable protector enjoy with moderation the property until her death. After her let the heirs take it'.
'For women, the heritage of their husband, is pronounced applicable to use. Let not women on any account make waste of their husband's wealth.'
'When the husband is deceased, his kin are the guardians of the childless widow. In the disposal of the property and care of herself, as well as in her maintenance, they have full power. But, if the husband's family be extinct or contain no male, or be helpless, the kin of her own father are the guardians of the widow if there be no relations of her husband within the degree of a sapinda'.
The this may be added S. 1, para 59, Chap. XI of Dayabhaga wherein Jimutavahana says that the persons, who would be the next heirs on failure of prior claimants, succeed to the residue of the estate remaining after her use of it, upon the demise of the widow in whom the succession had vested, in the same manner as they would have succeeded if the widow's right had never taken effect. As the words 'if her right ceases or never takes effect' are comprehensive enough to take in also cases other than dealth when her interest ceases, it has been held that the principle of surrender has been fore - shadowed by Jimutavhana.
But the texts do not expressly give any specific indication of the doctrine of surrender. Indeed. Mookerjee J., in the case already cited : 1SCR339 (1), clearly states to the same effect at page 65 :
'The law of surrender by a Hindu widow as it stands at present, is for the most part, judgemade, law, though it may not be quite correct to say that there is absolutely no textual authority upon which the doctrine could be founded, at least, impliedly. So far as the Dayabhaga law is concerned, its origin is attributed to Jumutavahana's commentary on the well know text of Katyayana, which describes the interests of a childless widow in the estate left by her husband and the rights of the reversioners after her death.
While commenting on Katyayana's text, Jimutavahana lays down that the persons who should be the next heirs on failure of prior claimants, would get the residue of the estate after her use on the demise of the widow in whom the succession had vested as they would have succeeded if the widow's rights were non-existent or destroyed (in other ways).'
(24) Though Jumutavahana indicates that the right may be destroyed in other ways, he does not expressly state, as I have already pointed out, that a surrender is one of the modes by which her estate can be put an end to. In any view, even if the doctrine cam implidly be gathered from the commentary of Jimutavahana, the incidents of the surrender are not laid down in any of the texts. The decisions of the various High Court and those of the Judicial Committee evolved the theory of surrender.
It is now firmly established that to be a valid surrender, there must be self-effecement of the widow, leaving open the succession in the same way as it would be it she were dead. The process of surrender is equated to that of her death. But, the learned Judges in : AIR1953Mad551 (A)', engrafter on that doctrine another theory which, according to them, was supported by the Hindu Law Texts.
Krishnaswamy Nayudu J., in his judgment mentioned the following texts in support of his conclusion that a widow can make gifts with the consent of the reversioners and then proceeded to state that the relinquishment of her interest coupled with gifts to strangers with the consent of reversioners would, in law amount to a valid surrender. At page 555, the learned Judge says :
'With reference to this text of Narada, his (Jimutavahana's) commentary is that 'in the disposal of property by gift or otherwise, she is subject to the control of her husband's family, after his decease, and in default of sons and with their consent she may bestow gifts on the kindred of her own father and mother. Dayakrama-Sangraha, a commentary on the Dayabhaga of Sri Krishna Tarkalankara Chapter 1, S. 2, refers to Katyayana and Narada's texts and commenting upon them states in para 7 :
'On these (Sapindas daughter's sons, sister's sons, maternal uncles of her husband) and on the others should she bestow presents and not on the members of the family of her own father while these persons are living for then the specification of paternal uncles and the rest would be superfluous. With their consent however, she may make gifts to the kindred of her own father and mother as declared by Narada. .......................... In the disposal of property that is by gift etc., the wife is liable to the control of the family of her husband after the death of her husband and on failure of sons so it is declared in the Dayabhaga.' 'Emphasis is laid on the texts on the parental position occuped by the nearest reversioners, who are considered to be the guardians of the widow and are expected to protect her interests and guide and direct her in dealing with the properties of her husband'.
(25) From the aforesaid passages, the learned Judges held that a widow can make gifts on her kindred with the consent of her reversioners. There has never been a decided case in this part of the country supporting gifts of immoveable property by a widow in favour of her kindred relying on the aforesaid texts. Under Hindu Law, a widow can alienate part of her estate for necessity, or for the benefit of the estate.
She is also permitted as a qualified owner to make gifts of reasonable extents of properties in connection with the marriage of her daughter. She is also authorised to make similar gifts for the spiritual benefit on her husband, or, in connection with the obsequies of her deceased husband. But, there is no decided case where a general power is given to a widow to make gifts of parts of her huband's estate with the consent of the reversioners.
Even in the case of alienations for necessity or for purposes binding on the estate, the reversioner's consent 'proprio vigore' does not validate the transaction but it raises a presumption that the alienation was for a purpose binding on the estate. In the words, of Lord Dunedin, consent does not give force 'per se' but is only of evidentiary value. Mayne in his Treatise on Hindu Law. Edn. 11, at page 782, states :
'But where the alienation is without consideration and is therefore in form or in substance a gift, the reversioner's consent cannot possibly be held to be one in respect of an alienation for value for purposes of necessity and the transaction therefore cannot stand in spite of the consent.'
(26) If in the case of alienations for consideration, consent was only of evidentiary value, it cannot validate gifts 'per se'. At the most, counsent may be a presumptive proof that the gift was made for purposes bining on the estate. On principle, such a power cannot be recognised. It implies that the reversioners have a vested remainder, so that with their consent, the widow can make a gift of property.
But, it is well-settled that a reversioner has only a 'spes successions' and has no right 'in praesenti' to convey any interest to third parties. His consent, therefore, though it may estop him, cannot validate a gift if it is not within the power of the widow to make such a gift.
In such a power is recognised in the widow, it would be destructive of the doctrine of self-effacement involved in the process of surrender ; she could make a gift of some properties to strangers and the rest to reversioners ; she could make gifts of properties to her relatives with the consent of the presumptive reversioners for the time being and thus act to the detriment of the real reversioners.
I cannot, therefore, hold that a widow has got unrestricted power to make gifts of immoveable property forming part of her husband a estate in favour of her relatives with the consent of the presumptive reversioners.
(27) On authority, as well as on principle, the interpretation put on the word 'bona fide' by Mack and Krishnaswamy Nayudu JJ., is not supportable. If accepted, it will enable the widow and the reversioners in collusion to divide the estate between the reversioners and her nominees. It will destory the whole doctrine of surrender.
(28) I, therefore, answer the question formulated in the negative. Such a relinquishment is not valid in law.
Bhimasankaram, J .
(29) I agree with the answer to the question referred to us should be in the negative. The doctrine of surrender, as I understand it, embodies the legal fiction by which an alienation by a Hindu widow of the totality of her estate in favour of the nearest reversioner then in existence is validated. Such an alienation is regarded as a voluntary self-effacement of the widow, renuntiation of all worldly affairs by her being considered b Hindu society as proper and even commendable.
It should be remembered that in the normal course the estate goes to whosoever may happen to be the nearest heir of her husband at the moment of the widow's death. That being so, the effect of surrender may be and ofter is to vest the estate in somebody other than the person. who, but for the surrender, would be the heir. The law therefore, necessarily subjects an alleged act of surrender to zealous scrutiny.
The surrender canot be of only a part of the widow's estate ; nor can it be in favour of the actual reversioner for the time being and some other or others who, in the eye of law, are strangers.
Both the conditions are in the nature of guarantees that the widow is acting properly and that she is not trying to alter the normal course of devolution of the estates in order to benefit a particular reversioner or a relative or a favourite of her own. It is true, as has been pointed out by my Lord the Chief Justice that the motive of a widow as such is irrelevant ; because where the effect of her act is total renuciation of her estate in favour of the nearest of her husband's heirs, the objective test of her 'bona fides' is satified.
The law is not interested in the processes of her mind but in the result of what she does. It is in this light that the requirement as to her 'bona fides' stressed by Lord Dunedin must be considered. If there is an agreement between the widow and the reversioner before the act of surrender that the latter should give a part of the estate given up by her to a nominee of hers, it is impossible to say that the surrender is 'bona fide', though there may be a deed evidencing a transfer of the whole of the estate in favour of the reversioner in the first instance followed later by a gift by the reversioner in favour of the widow's nominee.
What the widow is not permitted to do during the subsistence of her estate cannot be permitted to be done at the moment of the determinnation of her estate by a a voluntary self-effacement. When the normal course of devolution of property is affected by a legal fiction-equating the widow's voluntary withdrawal from worldly cares with her death, it is the duty of the Courts to see that the fiction is not extended to cases other than those coming within the four corners of the doctrine which is derived from the fiction.
The law should not be astute to validate a doubtful transaction Except in cases decided before the ruling in AIR 1918 PC 196 (E) I cannot find any support for the view expressed in : AIR1953Mad551 (A).
I cannot agree that the requirement as to 'bona fides' on the part of the widow is satisfied when she herself reserves no further interest in the estate and that it does not matter it the renunciation so called results in a division of the estate between the reversioner and a favourite of hers. If that position is recognised as valid, it would, in most cases, be a mere matter of bargain between the reversioner and the widow as to how much out of the estate the latter is prepared to give to the object of her bountry.
It seems to me futile to go back to the ancient texts in support of any such inroad upon the doctrine of surrender. In the first place, there is no clear basis at all in the old texis for what has been described by the Supreme Court as Judge-made law. In the second place, as pointed out by my Lord the Chief Justice, it has never been recognised in this part of the Indian Union that the widow has power to make a gift, however small, to her kinsmen out of her husband's estate.
What the law prohibits directly cannot be permitted to be done indirectly. The invalidity of a transaction cannot be got over by resort to an expedient. It is of course conceivable that a reversioner, who has taken over the estate after an act of 'bona fide' self-effacement by the widow, may at some latter point of time, at the request of the widow, be induced to make gift out of what is vested in him to one or more of the relatives of the widow. But that case would be entirely different from a case where the whole transaction is no more than a contrivance for parcelling out the estate between the husband's and the widow's kinsmen or favourites.
Satyanarayana Raju, J .
(30) I agree with my Lord the Chief Jusitice.
(31) Answer in negative.