Rachhpal Singh, J.
1. This is a defendants' second appeal arising out of a declaratory suit instituted by the plaintiffs-respondents. The pedigree set up by the plainitiff-respondents which is to be found at p. 24 of the paper-book has been held to be proved by the lower appellate Court. Jageshar was the last male owner of the property in respect of which the suit which has given rise to this appeal was instituted. Defendant 1, Mt. Jagrani, is the widow and defendant 2, Mt. Dulra, is the daughter of Jageshar. Gaya Pande and Chhedi Pande, plaintiffs-respondents, are the next male reversioners of Jageshar. This finding of the lower appellate Court is one of fact and cannot be challenged in second appeal.
2. Mt. Jagrani executed a mortgage deed on 8th February 1912, in favour of one Deoki. On 21st June 1920 she executed a deed of gift in favour of Mt. Dulra and one Kamta, who is the son of Mt. Dulra's husband's brother. The plaintiffs-respondents instituted a suit to obtain a declaration that these two deeds were null and void as against them. So 'far as the deed of mortgage, dated 8th February 1912, is concerned, the lower appellate Court held that the claim of the plaintiffs for obtaining a declaration was not within limitation. This finding of the lower appellate Court has been challenged by the plaintiffs-respondents, who have filed cross-objections. I am of opinion that the decision of the lower appellate Court on this point is correct and there is no force in the cross-objection filed by the plaintiffs-respondents. The plaintiffs ought to have sued within a period of six years from the date on which the mortgage deed in suit was executed by Mt. Jagrani, as Article 120. Limitation Act, is applicable to the case, and as this was not done, it was rightly held by the Court below that the suit, so far as this mortgage deed was concerned, was not within limitation.
3. The next question for consideration is whether the finding of the learned Subordinate Judge as regards the deed of gift of 1920 is correct. The learned Subordinate Judge has held that the deed of gift executed by Mt. Jagrani in favour of Mt. Dulra and Kamta. amounted to a surrender of her husband's estate to the next presumptive reversioner and therefore Mt. Jagrani should be taken to be civilly dead. He has come to the conclusion that the estate at the date of the suit was held in its entirety by Mt. Dulra and therefore the suit was governed by Article 125, Limitation Act. I am of opinion that the view taken by the learned Subordinate Judge that the deed of gift which Mt. Jagrani had executed in favour of her daughter and Kamta amounted to a surrender of her husband's estate is not correct. It was a transfer made by her in favour of Mt. Dulra and also in favour of Kamta who was a stranger. It cannot be said that it amounted to a surrender. In the deed of gift she did not say that she was surrendering the estate. The learned Subordinate Judge has relied on a ruling of the Calcutta High Court, reported in Abhoya Pada v. Ram Kinkar AIR 1926 Cal 228. The facts of that case were different. There a complete surrender had been made by the lady in favour of the next reversioner. The other persons, in whose favour the surrender was made, were also reversioners, but they were somewhat remote. In the case-before us the transfer is made in favour of Mt. Dulra her daughter, and also Kamta, who is a complete stranger. It is open to Kamta, if his claim, is challenged by Mt. Dulra in the lifetime of the donor, to say that he got the estate from the donor and so it cannot be said that there was a surrender in favour of Mt. Dulra. This being the case, the suit is governed by Article 120, Limitation Act. The plaintiffs should have instituted a suit to obtain a declaration that the deed in favour of Mt. Dulra and Karnta was null and void against them within a period of six years. Article 125 has no application to the case before us. I an) therefore of opinion that the claim of the plaintiffs was barred by limitation in respect of this deed of gift as well.
4. I would therefore allow this appeal, set aside the decree passed by the learned Subordinate Judge in respect of the second relief about the deed of 21st June 1920 and dismiss the plaintiffs' suit in toto with costs in all the Courts. The cross-objections should also be dismissed.
5. I agree with my learned brother in the order he proposes to pass in this appeal. I would like to make an observation as regards the view taken by the Calcutta High Court in Abhoya Pada v. Raw.Kinkar AIR 1926 Cal 228. The facts of that case, as given in the judgment, were that a Hindu widow executed a deed styled 'nadabipatra' in favour of her husband's brother and 3 sons of a predeceased brother of her husband. It appears that the deed was in favour of the presumptive heir, namely, the brother and three remoter reversioners, namely, the nephews. After the death of the widow, her husband's brother instituted a suit for recovery of possession of the entire property denying the rights of his nephews detived from the deed executed by the widow. The learned Judges construed the deed to imply a surrender in favour of the presumptive heir, namely, her husband's brother, and a transfer of half by him to the three nephews. Looking at the transaction from that point of view, the learned Judge's held that the deed amounted to a surrender. The material portion of the deed is not quoted in the judgment nor have we been able to ascertain the meaning of the word 'nadabipatra.' It might have been a case in which the deed contained words of disposition in favour of the presumptive heir in the first instance and an assignment by him. of half to the nephews; but if the learned Judges meant, as their observation in the penultimate paragraph of the judgment of Gumming, J., indicates that in every case where a transfer is made in favour of the next reversioner and a third person jointly the trans-faction amounts to a surrender in favour of the presumptive heir and an assignment by the latter of half to the other, I regret I am unable to endorse that proposition of law. In case of a transfer jointly to two or more persons, each takes a definite interest in the property from the transferor. One transferee does not derive his title from his co-transferee.
6. An important test, in my opinion, is whether the presumptive heir can apart from any estoppel arising from his conduct, eject his co-transferee in the lifetime of the widow. If he has no such right there can be no doubt that there was no surrender in his favour so as to vest the entire property in him. If may be that in a given case the understanding between the widow on the1 one hand and the presumptive heir on the other was that he should be considered to be the sole transferee and that he would allow another person to share the property with him in consideration of the surrender made by the widow. If such an agreement on the part of the presumptive heir is established, the presumptive heir may be estopped from disputing the title of the other man; but such an arrangement between the widow and the presumptive heir cannot be presumed in every case in which a Hindu makes a transfer in favour of the presumptive heir and another. It is a question of fact, which must be established in every case in which an arrangement of that kind is alleged. In the case before us, the widow executed, what is on the face of it, a deed of gift in favour of Mt. Dulra and Kamta. Each took under the gift of the widow's estate. There is no suggestion that there was any arrangement between the donor and Mt. Dulra. who was the presumptive heir, that in consideration of the surrender the latter would allow Kamta to have an equal share in the property. Kamta claims, and is entitled to claim, half the property deriving his title directly from the widow and not from Mt. Dulra. In this view, I am in entire agreement with my learned brother in holding that the gift did not amount to a surrender in favour of Mt. Dulra and that Kamta should be considered to be transferee of half of the property from Mt. Dulra. That being so, the period of limitation applicable to a declaratory suit by the plaintiffs' respondents who impugn the deed of gift, is that provided for by Article 120 and not Article 125, Schedule 1, Limitation Act.
7. The appeal is allowed with costs in all the Courts and the cross-objection of the plaintiffs stands dismissed with costs.