Alladi Kuppuswami, J.
1. The plaintiff in O. S. 43/64 District Court East Godavari Rajahmundry is the appellant. He is the daughter's son of one Mr. Venkatramanayya who died on 8-2-1891 leaving behind him his widow, Rukminamma and has two daughters, Venkata Hanumayamma and Ramaseetamma. Venkata Hanumayamma died in 1929 and Rukminamma died on 18-3-1932. On the death of Venktaramanayya his widow Rukminamma became entitled to a woman's estate in his properties and on her death, as the daughter, Venkata Hanumayamma, had predeceased her, Ramaseethamma such proceeded to the properties. She died on 8-2-1955. After her death, the plaintiff filed the suit claiming that he was the reversioner to the Estate of Venkataramanayya. His case was that he had a younger brother Venkataramana Rao who died on 17-6-1964 before the reversion opened and therefore he alone was entitled to the properties. During the lifetime of Rukminamma, Venkata Hanumayamma, and Ramaseethamma, several alienation's were made in respect of several items of properties. All the alienees who were in possession of different items of properties were added as defendants. Their main contention was that the suit was barred by limitation. According to them on 4-12-1934 Ramaseethamma who was then in possession and enjoyment of the properties as the sole female heir of Venkataramanayya executed a registered surrender deed in favour of the nearest reversioners, namely, the plaintiff and his brother for a consideration of Rs. 1,000/- towards her maintenance for lifetime. The properties surrendered included those that were already alienated by Rukminamma and her two daughters. In regard to some of the alienations, the plaintiff who was then a minor was also a party being represented by his father and guardian. As the surrender was made in 1934 it was contended that the right to sue for recovery of possession of all the properties accrued to the plaintiff even on that day itself and as the suit was filed on 5-12-1964 more than 30 years after the date, the suit was barred by limitation. The alienations were also sought to be supported on the ground that they were for legal necessity or for the benefit of the estate or were made for pious and charitable purpose.
2. The learned District Judge held that there was a valid surrender as contended by the defendants by Ramaseethamma in favour of the plaintiff and his brother who were the nearest reversioners under the surrender deed dated 4-12-1934. He therefore held that the reversion to the estate of the last male owner, Venkataramanayya opened on 4-12-1934 when the surrender deed was executed and not on 8-2-1955 when Ramaseethamma died. In the result he held that the suit was barred by limitation. He found that all the properties except items 56 and 57 formed part of the estate of Venkataramanayya. He dealt with the validity of the several alienations made in favour of the defendants or their predecessors-in-title and gave his findings. He held that the alienations in respect of items 1 to 43 and 116 of the plaint schedule are not valid and binding upon the reversion. Regarding alienation of items 1, 53, 54 and 55 he held that they were subsequent to the filing of the suit and were hit by the rule of lis pendens. It is unnecessary for us to set out in detail the findings on the several issues as we are of the view for the reasons to be given presently that the decision of the Court below that the suit is barred by limitation is correct.
3. In this appeal preferred by the plaintiff Sri Venkatapathi Raju, learned counsel for the appellants contended that the surrender deed, Ex. A-32 executed by Ramaseethamma in favour of the plaintiff and his brother is not valid. He submitted that it is admitted and it was found by the Court below that by that time, several items of property had been alienated either by Rukminamma, the widow or one or other of the two daughters. He therefore submitted that any surrender made after alienations of a part of the property have been effected cannot be said to be a surrender of the entire estate belonging to the last male-owner and unless the surrender by a limited owner is of the entire estate, the surrender cannot be valid. In any event he contended that as some of the alienations have been held in this very suit itself to be not binding upon the estate, they continued to form part of the estate of the last male Venkataramanayya and therefore the surrender was not of the entire estate. He also drew our attention to a judgment on O. S. 25/38. Sub-Court, Eluru in which the question of the validity of the surrender deed, Ex. A-32 had to be considered and in which it was held that the surrender was only nominal and was not intended to be acted upon. He submitted that in view of this judgment, it must be taken in these proceedings also, that the surrender was nominal and was not intended to be acted upon and hence the reversion opened only on the death of Ramaseethamma on 8-2-1955. In answer to this last submission it was argued by Sri Bapi Raju, learned counsel for the respondent that the suit O. S. No. 25/38 was a collusive one and the judgment in those proceedings is not binding on the parties to the present suit. He submitted that on the basis of the evidence in this suit, it was clear that the surrender was valid and had to be given effect to.
4. It is admitted that several items of properties had been alienated prior to the surrender deed, Ex. A-32 but in the surrender deed it is expressly recited that the properties surrendered include not only the properties then existing but those that were also alienated by Rukminamma and her two daughters and the plaintiff during his minority represented by his father as guardian as also the properties which were acquired as accretions of the estate in the name of the plaintiffs father. This is admitted in para 8 of the plaint. In those circumstances it is clear that the property which was the subject matter of the surrender comprised the entire estate of Venkataramanayya including the properties alienated before surrender. But it is argued by Sri Venkatapathi Raju that when once some property had already been alienated, even if the surrender deed recites that it is included in the surrender deed, in truth and in effect the properties are excluded from the purview of the surrender deed and hence the surrender cannot be of the entire estate. In support of his contention that any surrender executed after some of the properties are alienated is invalid, he relied upon the decision of the Madras High Court in Vijayaraghavachariar v. Ramanujachariar, AIR 1929 Mad 37. When the widow purported to surrender the estate she did not and could not surrender the whole of her husband's estate, as the previous alienations were her own acts and she could not get rid of them. To that extent she was unable to surrender the whole of the estate and therefore the surrender which she purported to make was invalid. A different view has however been expressed by the Supreme Court in Natvarlal v. Dadubhai, : 1SCR339 . The actual question which the Supreme Court had to decide was whether the reversioner in whose favour a surrender deed had been executed by the widow could recover possession of the properties from a person who had obtained title by adverse possession against the widow. The Supreme Court considered in detail the law on the doctrine of surrender. In para 9, the Supreme Court observed as follows (at page. 66 of AIR) :-
'As surrender conveys nothing in law and merely causes extinction of the widow's rights in her husband's estate, there is no reason why it should be necessary that the estate must remain with the widow before she could exercise her power of surrender. The widow might have alienated the property to a stranger or some one might have been in adverse possession of the same for more than the statutory period. If the alienation is for legal necessity, it would certainly be binding upon the estate and it could not be impeached by any person under any circumstances. But if the alienation is not for legal necessity, or if a squatter has acquired title by adverse possession against the widow, neither the alienation nor the rights of the adverse possessor could affect the reversioner's estate at all. These rights have their origin in acts or omissions of the widow which are not binding on the husband's estate. They are in reality dependent upon the widow's estate and if the widow's estate is extinguished by any means known to law, e.g., by her adopting a son or marrying again, these rights must also cease to exist. The same consequences should follow when the widow withdraws herself from her husband's estate by an act of renunciation on her part.'
In view of this clear pronouncement of the Supreme Court we have to accept Mr. Bapiraju's submission that the decision in Vijayaraghavachariar v. Ramanujachariar, AIR 1929 Mad 37 cannot be regarded as good law in so far as it says that a widow who had made previous alienations is not entitled to surrender the whole estate and therefore the surrender which she purported to make is invalid. It is also significant to note that the Madras High Court relied upon the decision of the Bombay High Court in Sakharam v. Thamma, AIR 1928 Bom 55 and it was this decision which was the subject-matter of appeal in Natvarlal v. Dedubhai, : 1SCR339 . At para. 59 dealing with Sakharam v. Thamma, AIR 1928 Bom 26 it was observed that 'the mere fact that antecedent to the deed of surrender the widow has alienated the property does not preclude her from surrendering her life estate to the next reversioners, nor does it prevent the reversioners from being entitled to succeed as the heirs of the last full owner. They therefore held that the judgment in Sakharam v. Thamma, AIR 1928 Bom 26 did not correctly represent the law. In arriving at that decision they also relied upon the decision of the Privy Council in Vytla Sitana v. Marivada Viranna, AIR 1934 PC 105 where it was held that the basic notion of a surrender is not the ex facie transfer but the effacement of the widow. In Mayne's Hindu Law (11th Edition. page. 790 at para. 791) it is pointed out that the view that where the alienation made by the widow was for the purposes not binding on the estate, it would be reservation of a benefit to the widow so as to make the surrender invalid is opposed to authority as well as to principles.
5. In view of the above state of law we cannot accept the contention of Sri Venkatapathi Raju that the surrender was invalid because the limited owners had made alienations of certain properties before the execution of the surrender deed. There might have been some force in this submission if no reference at all was made to those properties in the surrender deed in which case it might have been argued that those properties were not included in the surrender. But in this case it is admitted in the plaint that the surrender deed is in respect of all the properties including the properties that had been alienated earlier.
6. Sri Venkatapathi Raju however submitted that even apart from the properties alienated there are a few items of properties which were not included in the surrender deed. This aspect has been considered in detail in Paras 61 to 69 of the judgment of the Court below. It was submitted that the last male-owner had Ac. 3-30 cents of land situate in Satyavada village and this was not included in the surrender. The learned Judge after referring to the circumstance that the property in the village of Satyavada was not mentioned as one of the items of property in Ex. A-56, the account book maintained by Venkataramanayya, also, observed that the plaintiff could not produce any document to show that he was the original owner of the lands of Satyavada village. He also referred to the written statement of the plaintiff and his brother in O. S. 22/1935 on the file of the Additional Subordinate Judge's Court. Rajahmundry wherein they admitted that all the properties belonging to the estate of Venkataramanayya were surrendered under the surrender deed. It was also observed that the plaintiff admitted in his examination that he was present when the surrender deed was executed and in the surrender deed there is a recital that all the properties have been surrendered. The learned counsel for the appellants has not been able to place any material before us to dislodge the finding of the Court below that Venkataramanayya had no lands in Satyavada village. Apart from this it is well settled that omission to include a small portion of the whole property due to ignorance or oversight does not affect the validity of the surrender when it is otherwise bona fide. Vide Gopal Singh v. Ujagar Singh : 1SCR86 .
7. It was contended that the surrender deed, Ex. A-32 was held to be a collusive and nominal document in O. S. 25/1938 sub-court, Eluru and that decision is binding upon the parties in this suit. That suit was filed by Ramaseethamma for a declaration that the surrender deed executed by her was collusive and nominal. By that time the plaintiff and his brother had sold some properties covered by the surrender deed jointly and severally. Those properties are items 54, 55, 69, 72 to 87, 90 part of items 91, 92, 95 and 112 to 115 of the plaint A-Schedule, but the alienees were not made parties to that suit even though properties were in their possession. The defendants to the suit were the plaintiff and his brother only. They filed a written statement (Ex. B-30) on 12-10-1938 and the suit was disposed of on 17-11-1938 within four months from the date of its institution. The defendants in that suit namely, plaintiff and his brother did not adduce any evidence though the plaintiff admits that he was present during the trial. This circumstance would clearly show that the suit was a collusive one. Apparently it was a device for getting back the properties which had been alienated by the plaintiff and his brother. The learned counsel for the respondent drew our attention to Ex. B-128, the written-statement filed by Ramaseethamma in an earlier suit, O. S. 3/1935 D. M. C. Ramachandrapuram. In that she clearly stated that she had made a bona fide surrender of the entire estate to the plaintiff and his brother on 4-12-1934 and that she had no interest in any of the properties surrendered by her. In another suit, O. S. 32/1935 Additional Sub-Court, Rajahmundry Ramaseethamma filed a written statement, Ex. B-129 in which also she stated that having become old she could not manage the properties herself and therefore made the surrender in favour of the plaintiff and his brother. In spite of these two documents which were available to the plaintiff and his brother when Ramaseethamma filed O. S. 25/38 Sub-Court, Eluru, they did not disclose them and did not adduce any evidence, either oral or documentary and allowed the suit of Ramaseethamma to be decreed. Having regard to all these circumstances, the Court below held that O. S. 25/38 Sub-Court, Eluru was a collusive suit engineered by the plaintiff and his brother. We are in entire agreement with this finding of the Court below. The judgment and decree in that suit is not binding on any of the parties in this suit and the question whether the surrender is valid or not has to be considered afresh on the evidence adduced in this suit. We have already held agreeing with the Court below that the surrender was true and valid.
8. In view of the surrender deed the reversion opened on the date of surrender itself and the suit for recovery of possession had to be filed by the plaintiff within 12 years from the date - vide Venkateswara Rao v. Venkatasiva Rao, AIR 1957 Andhra Pradesh 945 and Veeraju v. Venkayya, : AIR1960AP222 . As it was filed only on 5-12-1964, more than thirty years after the date of the surrender the suit was rightly held to be barred by limitation by the Court below.
9. In this view it is not necessary for us to consider the various other issues that have been dealt with by the Court below. In the result the appeal is dismissed with one set of costs against all the contesting respondents. The appellants will pay the Court-fee on the memorandum of appeal.
10. Appeal dismissed.