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Maru Vs. Hanso and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily;Property
CourtAllahabad
Decided On
Reported inAIR1926All413; 95Ind.Cas.543
AppellantMaru
RespondentHanso and ors.
Excerpt:
.....death that one behari lal was to enter into possession and enjoy the profits of the mouzahs. their lordships clearly meant that such a transfer was not an immediate transfer of the estate so as to amount to a surrender because it was to take effect not at once but after her lifetime. 6. this judgment clearly shows that their lordships had in mind that successive alienations can be validly supported if the cumulative effect of these is an alienation of the whole estate in favour of the next reversioner. their ships clearly re-affirmed their view in gounden's case air 1918 pc 196 and remarked that where a surrender of her whole interest in the whole estate in favour of the nearest reversioners takes place, the question of necessity in such circumstances does not fall to be considered. 7...........later on mt. hanso executed a deed of gift in 1916 with regard to the remaining half share in favour of bhartu and got bhartu's name recorded. on bhartu's death the names of defendants 2 to 4, his sons, were caused to be recorded in the revenue papers by mt. hanso. the plaintiff however asserted that in spite of the entry of the name of bhartu, mt. hanso herself remained in possession of the property. the contesting defendants denied that mt. hanso remained in possession of any portion of the property after the transfer and pleaded that the transfers amounted to a complete effacement of the hindu daughter's interest and surrender in law in favour of the defendants' father.2. the learned subordinate judge has found as a matter of fact that mt. hanso divested herself of all interests.....
Judgment:

Sulaiman, J.

1. This is a plaintiff's appeal arising out of a suit for a declaration that a deed of gift, dated the 28th March 1916, executed by Mt. Hanso, Defendant 1 (who has died during the pendency of the appeal) in respect of a moiety share of the property left by Ghasita, the paternal grandfather of the plaintiff, as also the transfer of the other half by mutation of names, were not binding on the reversioners. Ghasita was admittedly the last owner of the property and he died leaving three daughters. One daughter dies first. On her death names of the two surviving daughters, Mt. Sundar and Mt. Hanso, were recorded in the revenue papers in equal shares. Mt. Sundar died about 1897 and on her death it is admitted in the plaint that Mt. Hanso caused the name of Sundar's son Bhartu to be entered in the revenue papers in place of her name as against the half share in her possession. Later on Mt. Hanso executed a deed of gift in 1916 with regard to the remaining half share in favour of Bhartu and got Bhartu's name recorded. On Bhartu's death the names of Defendants 2 to 4, his sons, were caused to be recorded in the revenue papers by Mt. Hanso. The plaintiff however asserted that in spite of the entry of the name of Bhartu, Mt. Hanso herself remained in possession of the property. The contesting defendants denied that Mt. Hanso remained in possession of any portion of the property after the transfer and pleaded that the transfers amounted to a complete effacement of the Hindu daughter's interest and surrender in law in favour of the defendants' father.

2. The learned Subordinate Judge has found as a matter of fact that Mt. Hanso divested herself of all interests in the two portions of the property by two successive stages and that she did not remain in possession of the property after the transfers. The learned Judge has found that the entire effect of these transactions was that a legal surrender took place in favour of Bhartu. In the grounds of appeal before us the questions of fact are not challenged. It may, therefore be taken for granted that Mt. Hanso in her lifetime gave over possession of the half share standing in the name of Mt. Sander to Bhartu and put him in effective possession thereof intending that he should remain owner of it, and that subsequently she transferred the remaining half share which had remained in her possession in favour of Bhartu and put him in possession, It is not disputed that these two transfers covered the entire estate left by Ghasita. Nothing was reserved for herself by Mt. Hanso.

3. The only point urged before us is that in order to be valid as a complete surrender it is not only necessary that the surrender must be in respect of the entire estate but that it must also take effect simultaneously and at one and the same time. The contention is that if the entire estate is transferred in favour the next reversioner by successive steps, no legal surrender can take place. The learned vakil for the appellant relies on the case of Behari Lal v. Madho Lal Ahir Gayawal (1892) 19 Cal 238. The passage relied upon is as follows:

It was essentially necessary to withdraw her own life estate, so that the whole estate should get vested at once in the grantee. The necessity of the removal of the obstacle of the life estate is a practical check on the frequency of such conveyances.

4. The argument is that the use of the expression 'at once' by their Lordships indicated that the surrender must corns into effect by one single act. This contention cannot be accepted. Their Lordships had before them an ekrarnama under which the limited owner had declared that she should, till the and of her life, hold possession of the estate and that it was only after her death that one Behari Lal was to enter into possession and enjoy the profits of the mouzahs. Their Lordships clearly meant that such a transfer was not an immediate transfer of the estate so as to amount to a surrender because it was to take effect not at once but after her lifetime. The next case relied upon on behalf of the applicant is the case of Rangasami Gounden v. Nachiappa Gounden AIR 1918 PC 196. Their Lordship in that case approved of the statement of law made by Lord Morris in Behari Lal's case (1892) 19 Cal 238. But a careful perusal of that judgment really destroys the appellant's argument. It may be noted that in a previous case decided by their Lordships of the Privy Council, viz., Bajrangi Singh v. Manokarnika Bakhsh (1908) 30 All 1, successive sale-deeds executed by a Hindu widow with the consent of the reversioners, who were then alive, had been upheld by their Lordships. The language of the concluding portion of the Judgment was such as to lead some Courts to suppose that the consent of all the reversioners for the time being is absolutely sufficient and conclusively establishes the validity of such a transfer.

5. Their Lordships in Gounden's case AIR 1918 PC 196 referred to this previous case and explained it. At page 547, their Lordships pointed out that the Calcutta view had been affirmed against the Allahabad view, but the judgment did not particularize on what exact ground the allegation was supported. Chair Lordships then pointed out that in that particular case, viz.. Bajrangi Singh's case (1908) 30 All 1, the decision might possibly have been supported by either of the two grounds:

(1) Although there were three successive alienations they in cumulus amounted to an alienation of the whole immovable property, and (2) But apart from that the alienations were all made for purposes of ostensible necessity.

6. This judgment clearly shows that their Lordships had in mind that successive alienations can be validly supported if the cumulative effect of these is an alienation of the whole estate in favour of the next reversioner. This observation of their Lordships militates against the suggestion that no surrender can take place unless it be by one act. The subsequent case of Bhagwat Koer v. Dhanukdhari Prasad Singh AIR 1919 PC 75 is not directly in point. Lastly, reliance has been placed on the recent case of Man Singh v. Maharani Nawlakhbati AIR 1926 PC 2. And it is urged that no surrender can taken place unless it is supported by necessity. The case referred to is no authority for such a novel proposition of law. Their ships clearly re-affirmed their view in Gounden's case AIR 1918 PC 196 and remarked that where a surrender of her whole interest in the whole estate in favour of the nearest reversioners takes place, the question of necessity in such circumstances does not fall to be considered. The question of necessity arises when there is only a partial surrender or transfer.

7. On general principles also we see no good ground for holding that if a widow brings about a complete effacement of herself, with the result that the entire estate vests in the next reversioner, though the same might have been obtained by a process consisting of several stages, there is no legal transfer. In our Opinion therefore the appeal has no force and is dismissed with costs.


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