Chandra Reddy, C.J.
1. The question that is posed by this appeal directed against the judgment of our learned brother, Anantanarayana Ayyar, J., in S. A. No. 676 of 1957 under clause (15) of the Letters Patent, filed with his leave, is whether a surrender in favour of a remote reversioner is void or voidable at the instance of the nearest reversioner.
2. The facts of the ease, which are not in dispute, lie within a narrow compass and may be stated as follows: The Respondent, the widow of one Basavayya, executed a deed of surrender on 9-4-1949 in favour of her husband's paternal uncles, who are not the nearest rcversioners, the presumptive reversioner being her mother-in-law, in respect of all the properties left by her husband, i.e., Ac. 4-10 cents. Within a few days thereof, i.e., on 21-4-1949, the surrenderees (defendants 1 and 2) settled Acres 2 out of the properties upon the widow with absolute rights and put her in immediate possession thereof.
3. For reasons which are not apparent and with which we are not concerned, the widow, i.e., the surrenderer filed a suit for recovering the remaining property impeaching the surrender as ineffective for the reason that it was made in favour of persons who are the remote reversioners.
4. The action was opposed by the appellants, inter alia, on the grounds that the surrender being voidable and not void ab initio, it could be questioned only by the presumptive reversioner and not by the widow and that the document was operative so far as she was concerned.
5. These defences did not prevail with the trial Court which took the view that the surrender was ineffectual and consequently the surrenderer, i.e., the widow, was entitled to treat it as of no effect and take possession of the properties. In the result, the trial Court granted a decree to the plaintiff as prayed for.
6. The appeal taken by the defendants to the Subordinate Judge's Court proved unsuccessful.
7. The second appeal to this Court also shared the same fate. However, our learned brother, Anantanarayana Ayyar, J., granted leave under Clause (15) of the Letters Patent.
8. The conclusion of our learned brother is challenged before us by Sri Srirama Sastry, learned Counsel for the appellants, on the argument that the surrender could not be treated as absolutely ineffective but it is voidable at the instance of the presumptive reversioner. The learned counsel urges that there is no basis for treating it as void either in the texts of Hindu Law or in decided cases.
9. In support of this contention, he calls in aid the following passage from Raghavachariar's Hindu Law (Fourth Edition) occurring at p. 560 :
'A surrender in favour of remoter reversioner with the consent of the nearer reversioners is to be considered as a double surrender and held valid.'
10. On the basis of this remark, what is argued by the learned counsel for the appellants is that if a surrender in favour of remoter rcversioners could be validated by the consent of the nearer reversioners, that could only be on the assumption that the surrender is merely voidable against the nearer reversioner and not ab initio void. What is ab initio void could not be validated by another person proceeds the argument of Sri. Srirama Sastry. In support of the above remark, reliance is placed on some decisions of the Privy Council and of the Madras High Court. But we do not think that any of those pronouncements lend colour to the proposition contained in the passage quoted above.
11. It is true that in Chinnaswami Pillai v. Appaswami Pillai, ILR 42 Mad 25: (AIR 1919 Mad 865), a surrender in favour of a daughter's son with the daughter's consent was upheld by the Madras High Court but that is not a case of a subsequent consent. It was a case where the wife and the only daughter of the deceased surrendered their interests in the estate of the deceased in favour of the daughter's son under a deed executed by both of them. In those circumstances, the Division Bench upheld the surrender in the view
'that a surrender by a widow with the consent of the next female heir to the secondary male heir could be treated as a joint surrender by both and that such a joint surrender might be treated as a surrender by the widow to the next female heir which vested the property in the next female heir for a moment and an immediate surrender of the property so vested for a moment in the next female heir by the latter to the next male heir, the result being to Vest an absolute title in the secondary male heir.'
The situation envisaged in the cited case is not analogous to' the surrender being validated by the subsequent consent of the presumptive reversioner. That was a case where the surrender was treated as a joint one by both. That situation is quite dissimilar to the case put forward by the appellant.
12. The learned counsel for the appellants next referred to us a passage in Mulla's Hindu Law (12th Edition) at page 282 which is in these words:
'An alienation by a widow of her husband's estate without legal necessity or an invalid surrender is not altogether void, but only voidable by the next reversioner. He may affirm it, or he may treat it as nullity.......'
To substantiate this statement, the author relied on paragraph 185 of the same book which deals with the effect of alienation made without legal necessity and without consent of next reversioner.
13. First of all, it is not clear as to what he had in mind when he talked of an invalid surrender. Further, a surrender cannot be equated to an alienation for all purposes. If it was meant to imply that an invalid surrender of any description is not altogether void, we have to demur to that rule.
14. We will presently show that a surrender in favour of a remoter reversioner is not permitted in Hindu Law and, therefore, it is as if it is non est.
15. A surrender is the relinquishment by the widow of her interest in the husband's estate having the effect of accelerating the interest in favour of the next heir of her husband. It is only an effacement of the widow's estate or a civil death brought about by herself.
16. It was observed by the Judicial Committee in Sitanna v. Viranna, ILR 57 Mad 749 : (AIR 1934 PC 105).
'that the basis of the doctrine is the effacement of the widow's estate and not the ex facie transfer by which such effacement is brought about. The result merely is that the next heir of the husband steps into the succession in the widow's place.'
17. Thus, the surrender does not convey anything in law to the reversioner, the only effect of it being that the widow's estate intervening is merely extinguished and the reversioner comes in in his own right earlier.
18. As observed by Mukherjea, J. (as he then was) in Natwarlal Punjabhai v. Dadubhai Manubhai, : 1SCR339 :
'The reversioner does not occupy the position of a grantee or transferee, and does not derive his title from her (the widow). He derives his title from the last male-holder as his successor-in-law and the rights of succession are opened out by the act of self-effacement on the part of the widow which operates in the same manner as her physical death.
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'It is the self-effacement by the widow that forms the basis of surrender and not the ex facie transfer by which such effacement is brought about'
19. His Lordship approved of the observations of the Division Bench of the Madras High Court in Venkatarayudu v. Narayana, ILR (1941) Mad 551, at p. 557: (AIR 1941 Mad 430 at p. 431) as to the true nature and effect of a surrender by a Hindu widow of her husband's estate. It was observed :
'It is settled that the true view of surrender under the Hindu Law is that it is a voluntary act of self-effacement by the widow having the same consequences as her death, in opening up the succession to the next heirs of the last male owner. The intermediate stage is merely extinguished and not transferred and the law then steps in to accelerate succession so as to let in the next reversioner. The surrender conveys nothing in law: it is purely a self-effacement which must of necessity be complete: for, as the Privy Council has said, there cannot be a widow partly effaced and partly not, just as there cannot be a widow partly dead and partly alive. The fiction of a civil death is thus assumed when a surrender takes place; and when the reversioners come in they come in in their own right as heirs of the last owner and not as transferees from the widow.'
20. It is thus clear that it is permissible for the widow only to make a surrender in favour of the presumptive reversioner, the concept underlying the surrender being that she brings about a self-effacement to enable the presumptive reversioner to Step into her place. By voluntary effacement, the widow makes the succession open earlier than by her physical death. But, if the surrender is made in favour of a person who is not entitled to succeed to the estate of last male owner, it is as if there was no surrender in law at all. If that were so, the surrender in favour of a remote reversioner is really void and not voidable at the instance of the presumptive reversioners.
21. This is the view taken by a single Judge of the Madras High Court in S.A. No. 1899 of 1947 (un-reported) which is in consonance with the judgment of the Supreme Court in Nagi Reddy v. Durairaja Naidu, : 2SCR655 and : 1SCR339 .
22. For these reasons, we find that the judgment under appeal cannot be successfully impugned.
23. In the result, the appeal is dismissed, but there will be no order as to costs.