1. This is the appeal of Khawani Singh, who was a defendant in a suit brought by Chet Ram and others for the purpose of obtaining a declaration that a certain document, dated 7th February 1914 and registered on 10th February 1914, and which was executed by Musammat Uda Kuar in favour of Khawani Singh, is null and void and ineffectual as against them after the death of Musammat Uda Kuar. It appears from a pedigree, which is to be found in the first paragraph of the plaint, that one Mansa Ram had four sons, Badam Singh, Lalji, Bakhti and Khushali, Musammat Uda Kuar, the lady who executed the document which forms the subject-matter of this suit, is the widow of Lalji, Khawani Singh who is the appellant in the present case is the son of Badam Singh, and, therefore, nephew of Uda Kuar's deceased husband. The plaintiffs in the case are the descendants of Bakhti and Khushali, the other two sons of Mansa Ram. The case set out in the plaint was to the effect that Lalji, the husband of Musammat Uda Kuar, had died about thirty years before the suit leaving Musammat Uda Kuar in possession of his estate as a Hindu widow. It was claimed, therefore, that having this estate she had no right to make the transfer of the property which was evidenced by the document referred to in the plaint. It was further stated in the plaint that all the declarations made by Musammat Uda Kuar in this document of transfer were untrue statements. It appears from the document itself that Musammat Uda Kuar declared that the property which she was purporting to dispose of had been joint property held by her deceased husband and the father of Khawani Singh. The plaintiffs' case was that this property was the separate property of Lalji, which was held by his widow as a limited estate which a Hindu widow possesses. The defence raised by Khawani Singh was that the plaintiffs could not maintain the suit. In the eleventh paragraph of the written statement a further plea was taken that Khawani Singh and his father had been living jointly with Lalji, husband of Musammat Uda Kuar. In the 12th paragraph of this written statement it was pleaded that the property in suit had been bought by Lalji in his own name out of the joint family funds. Fourteenth paragraph of the same document sets out that the plaintiffs were not reversioners. In the last paragraph of the written statement a ground is taken that even if Badam Singh and Lalji were found to be separate in estate, the deed of relinquishment simply operated as an acceleration of the succession in favour of Kbawani Singh. There can be no doubt on the pedigree set up in the plaint that on the assumption that Lalji was a separate owner of the property in suit. Khawani Singh is at the present time a nearer reversioner of Lalji than any of the plaintiffs.
2. The principal matter to be considered is that of the interpretation of the deed of 7th February 1914 printed at page 1 A. According to the construction put upon this document by the Court below there was no transfer at all on the part of Musammat Uda Kuar. The learned Subordinate Judge came to the conclusion that as a matter of fact Lalji, the husband of Musammat Uda Kuar, had been separate from the rest of his family, and this finding, we may say, is not contested here in appeal. He went on to point out that in drawing up this document Musammat Uda Kuar professes to be dealing with joint family property. She did not profess to deal with it as having been the separate estate of her deceased husband and so the Subordinate Judge came to the conclusion that the document would not operate as transfer of any interest in favour of Khawani Singh; for if the property, as has been declared to be in the said document, was joint property there could be no transfer of it made by this lady Uda Kuar. The consequence was that the Subordinate Judge decreed the suit. In appeal here it is contended that the Court below has placed a wrong interpretation upon the terms of this document. According to the argument of the learned Counsel who supports the case for the appellant, this document amounts in one view to a total surrender of the interests of Musammat Uda Kuar in this property. We must take it now for the purpose of disposing of the case that the property was in fact the separate property of Lalji. Unfortunately, however, for this argument of the appellant, we find that in this document of transfer executed by Musammat Uda Kuar a certain area consisting of 21 bighas 10 biswas of land was reserved from the operation of the deed. It is not for us to inquire where the property so reserved has since gone to. We have only to look to the deed as we find it on the record. It being found that a portion of the property was reserved from the operation of the deed, the clear inference is that Musammat Uda Kuar did not surrender the whole of the widow's estate in favour of Khawani Singh. The doctrine of surrender has been laid down by their Lordships of the Privy Council in the case of Behari Lai v. Madho Lai Ahir Oayawal 19 C. 236 : 19 I.A. 30 : 6 Sar. P.C.J. 83 : 9 Ind. Doc. (N.S.) 639. It is true that since that case has been decided, the various Courts in India have taken different views as to what is meant by a particular passage in the judgment of Lord Morn's in which he has laid down the principle that there must be a surrender of the entire estate. The Calcutta High Court has taken the view that the Rule laid down by their Lordships of the Privy Council means nothing more than that the widow is bound to divest herself of all her interest in the particular portion of the estate which she is transferring. Other High Courts on the contrary have held that the judgment of the Privy Council intends to lay down a much wider rule, namely, that the widow is bound to withdraw from the entire estate which she holds so as to accelerate succession in favour of the nearest reversioner. In this connection we may refer to the decision of the Bombay High Court in Pillu Appa Nalvade v. Babaji Naru Manj 4 Ind. Cas. 534 : 34 B. 165 : 11 Bon L.R. 1291. and the judgment of the Madras High Court in the case of Marudamuthu Nadan v. Srinivasa Pillai 21 M. 128 : 8 M. L. J, 69, 7 Ind Doc. (N.S.) 417. A similar view, we may observe, has been taken in the Punjab Chief Court. The balance of authority is certainly in favour of the proposition that there must be complete surrender of the widow's estate in order to accelerate the vesting of the estate in the nearest reversioner. Accepting this view, we hold that in the present instance there not having been a complete withdrawal from the estate of Lalji by Musammat Uda Kuar, the document in suit cannot be said to have vested the estate of Lalji in the appellant Khawani Singh. Then it has been contended that Khawani Singh being the nearest reversioner, this transfer will take effect on the principle which is laid down by the Privy Council in the case of Bajrangi Singh v. Manokarnika Bakhsh Singh 80 A. 1 : 3 M.L.T. 1 : 12 C.W.N. 74 : 9 Bom. L.R. 1348 : 6 C. L.J. 766 : 5 A. L.J. 1 : 35 I.A. 1 : 17 M. L.J. 605 : 11 O.C. 78. namely, that a transfer made with the consent of the nearest reversioner will take effect as against the more remote reversioner. That rule, as we understand, is applicable to cases of transfer for consideration. It has not been extended, so far as we are aware, to a case where a transfer has been made by way of gift. Further, if the transfer be with the consent of the nearest reversioner, it takes effect because it affords evidence of the propriety of the transaction; in other words, it justifies the transaction on the ground of legal necessity. It cannot, we think, be said that the consent of the beneficiary himself is such a consent as would give rise to any such presumption. In either of these views it appears to us that the appellant here is not entitled to rely upon this document as being a transfer in his favour and to claim that the estate of the deceased Lalji has, vested in him. We are of opinion that the plaintiffs were entitled to the declaration sought, and we, therefore, dismiss this appeal with costs.