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Damodar Das Vs. Mt. Godawari and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtPunjab and Haryana
Decided On
Reported inAIR1949P& H391
AppellantDamodar Das
RespondentMt. Godawari and ors.
Cases ReferredKaruppa v. Mudali A.I.R.
Excerpt:
- sections 100-a [as inserted by act 22 of 2002], 110 & 104 & letters patent, 1865, clause 10: [dr. b.s. chauhan, cj, l. mohapatra & a.s. naidu, jj] letters patent appeal order of single judge of high court passed while deciding matters filed under order 43, rule1 of c.p.c., - held, after introduction of section 110a in the c.p.c., by 2002 amendment act, no letters patent appeal is maintainable against judgment/order/decree passed by a single judge of a high court. a right of appeal, even though a vested one, can be taken away by law. it is pertinent to note that section 100-a introduced by 2002 amendment of the code starts with a non obstante clause. the purpose of such clause is to give the enacting part of an overriding effect in the case of a conflict with laws mentioned with the.....1. this regular first appeal is directed against the decree made on 29th january 1946 by the senior sub-judge of delhi in a suit filed on 11th august 1944 by damodar dass, the plaintiff appellant, against the three defendants respondents for a declaration that the sale-deed dated 81st may 1944 registered on 20th june 1944 and executed by the defendant-respondent mt. godawari in favour of the defendant respondent jai narain in respect of a house in delhi fully described in the plaint was without consideration and valid necessity and was null and void and ineffectual as against the rights of the reversioners after the death of mt. godawari.2. the plaintiff damodhar dass is one of the brothers of one gopal sahai deceased, godawari (defendant 1) is the second wife and the surviving widow of.....
Judgment:

1. This regular first appeal is directed against the decree made on 29th January 1946 by the Senior Sub-Judge of Delhi in a suit filed on 11th August 1944 by Damodar Dass, the plaintiff appellant, against the three defendants respondents for a declaration that the sale-deed dated 81st May 1944 registered on 20th June 1944 and executed by the defendant-respondent Mt. Godawari in favour of the defendant respondent Jai Narain in respect of a house in Delhi fully described in the plaint was without consideration and valid necessity and was null and void and ineffectual as against the rights of the reversioners after the death of Mt. Godawari.

2. The plaintiff Damodhar Dass is one of the brothers of one Gopal Sahai deceased, Godawari (defendant 1) is the second wife and the surviving widow of Gopal Sahai. Moti Ram (defendant 3) who was a natural born son of one Lachhi Ram, the eldest brother of Gopal Sahai was on or about 22nd November 1937 adopted by Gopal Salmi as a son unto himself as evidenced by a registered deed of adoption. On or about 9th August 1939, Gopal Sahai had by his second wife Godawari a son who was subsequently named Bbup Singh. Gopal Sahai died on 6th June 1941leaving him surviving his widow Godawari, his adopted son Moti Ram and his natural born son Bhup Singh both of whom were then minors.

3. Shortly after the death of Gopal Sahai, to wit on 29th November 1941, Godawari filed a petition in the Court of the Senior Sub. Judge at Delhi praying for the grant of letters of administration to the estate of her husband Gopal Sahai. The Court appointed a local commissioner to make an inventory of the estate. On 31st January 1942 Godawari's petition, we are told, was returned to her for presentation in the proper District Court. Godawari, it appears, did not pursue that matter any further.

4. In the meantime on 4th October 1941i Sagar Mal, another brother of Gopal Sahai, applied under the Guardians and Wards Act to the Court of the Senior Sub-Judge of Rohtak for getting himself appointed guardian of the persons and properties of both Moti Ram and Bhup Singh. Godawari contested that application. Eventually on 20th January 1942 a compromise was arrived at between Sagar Mai and Godawari and filed in that case. Shortly put, the agreement was that both Sagar Mal and Godawari would jointly act as guardians of both the minors, with the following allocation of duties, namely that Godawari would be the sole guardian of the person of Bhup Singh, and get Rs. 90 per month for the maintenance of Bhup Singh and herself and Sagar Mal would be the guardian of the person of Moti Ram and get Rs. 45 per month for his upbringing, that Moti Ram would have 1/8 share and Bhup Singh would have the remaining 2/3 share in the estate of Gopal Sahai and that the estate would be managed by Sagar Mai who would furnish security to the satisfaction of the Court. After this compromise was arrived at and before the same was filed in Court Bhup Singh died on 6th June 1942 and eventually on 23rd June 1942 Sagar Mal'B application was dismissed.

5. On 7th August 1942, Godawari applied before the Senior Sub-Judge of Rohtak for the issue of a succession certificate in respect of some assets belonging to the estate of her hus. band Gopal Sahai and to the estate of her son Bhup Singh. This was opposed by Moti Ram who had also filed a similar application for grant of a certificate to himself. On 31st August 1942 the Court ordered the issue of a succession certificate in favour of Godawari in respect of two-third share of those assets. Moti Ram preferred an appeal before the District Judge of Karnal, There were also some other disputes between Godawari and Moti Ram regarding mutation of names in the revenue records. Eventually on 17th November 1942 all disputes and differences between the parties were composed and certain terms of compromise arrived at between the parties. These terms of compromise have been exibited in the present case and marked Ex. p-1,

6. By Clause 1 of those terms it was agreed that the succession certificate granted to Godawari would be cancelled and a succession certificate would be granted to Moti Ram, and that Godawari had given up all her rights in the estate of her husband Gopal Sabai which would be enjoy, ed by Moti Ram. Clause 2 recorded that Godawari had taken only one house in Delhi of which she would be the absolute owner with full power of alienation without any interference on the part of Moti Ram and that Moti Ram would also pay to her a sum of Rs. 4000 in cash and effect repairs to the Delhi house and in default pay another sum of Rs. 1000 to Godawari. Clause 3 gave to Moti Ram right to recover all outstandings of the business and other assets of Gopal Sabai whether in British India or in States. Clause 4 was in the following terms:

Except the above mentioned house and the sum of Rs. 4000 which Mt. Godawari is to receive from the aforesaid Moti Ram, she has been left no right of any kind, by way of maintenance or any other way in the estate of Gopal Sahai deceased. She has given up all the rights in favour of the aforesaid Moti Ram.

In the penultimate paragraph of the terms of compromise it was provided that a proper deed in respect of the ownership of the Delhi house taken by Mt. Godawari would be drawn up and registered by 23rd November 1942 at the cost of Moti Ram.

7. Pursuant to the aforesaid compromise and to give effect thereto Moti Ram on 20th. November 1942 executed a deed of gift (Ex.D15) in favour of Godawari in respect of the Delhi house which was valued for the purposes of stamp at Rs. 6,500. It was recited in that deed that that house was owned and possessed by Moti Ram absolutely and that he had made a gift of it to Godawari and it was provided that thenceforth the latter would be absolute owner of that house with full powers of alienation at her own desire. On 30th November 1942 Godawari executed a deed of relinquishment (Ex. P.W. 2/3) in favour of Moti Ram. After reciting the fact of adoption, of Moti Ram, the birth of Bbup Singh, the death of Gopal Sahai and that of Bhup Singh and the various litigations between herself and Moti Rani and the ultimate compromise Godawari relinquished all her claim to the immovable proper, ties valued at Rs. 59.191-3 and shown in the list attached to that deed in favour of Moti Ram and recorded the fact that she had been left

no connection or concern with the property left by my husband L. Gopal Sahai deceased and my real son Bhup Singh deceased, shown in the attached list.

On 30th November 1912, Moti Ram also paid Rs. 6,000 in cash to Godawari as evidenced by the latter's receipt (Ex. P.W. 2/2). After the deed of gift and the deed of relinquishment had been executed and Moti Ram paid Rs. 5,000 the terms of compromise were filed in the District Judge's Court on 30th November 1942 and the District Judge ordered that the succession certificate issued in favour of Godawari be cancelled and a succession certificate be issued in favour of Moti. Ram, The terms of compromise between Godawari and Moti Ram were, therefore, fully implemented on both sides.

8. It appears that on 15th November 1943 one Tirloki Nath obtained an award against Godawari for the sum of Rs. 15,975. On 25th November 1943 Tirloki Nath initiated proceedings in the Court of Senior Sub-Judge at Delhi for filing the award and making it a rule of Court. On 17th December 1943 the Court passed a decree (Ex. D-2) for Rs. 15,975 to be paid in certain instalments with a default clause as therein mentioned. Apparently Godawari failed to pay even the first instalment and Tirloki Nath, the decree-holder, sued out execution and on 27th March 1944 attached the Delhi house.

9. It was during the pendency of the above-mentioned execution proceedings that Godawari on 31st May 1944, sold the Delhi house by means of a deed of sale (EX. D-17) to Jai Narain, defendant 2. It was recited in the deed that Godawari had got the house under a deed of gift from Moti Ram, that she had absolute right to alienate the same, that the house had been attached by Tirloki Nath in execution of his decree under which Rs. 16,468 8-0 was then due, that she had other debts to pay, that she had no other source out of which to pay the decretal amount and that an execution sale might not bring in an adequate price. Godawari acknowledged having received the full consideration money in the manner therein mentioned, namely Rs. 1,000 in advance for purchase of stamp, Rs. 16,462-8-0 retained by the vendee for payment to the decree-holder and Rs. 22,537-8 0 to be paid before the registration officer. The registration endorsement shows that Rs. 22,537-8 0 was paid in cash before the registration officer. Rupees 16,462,. 8-0 was paid to Tirloki Nath as acknowledged by him by his receipt dated 3rd June 1944 (Ex. D-18). It is this deed of sale which is assailed by the plaintiff Damodar Dass who, on 11th August 1944, as a remote reversionary heir of Gopal Sahai and Bhup Singh filed the suit out of which the present appeal has arisen.

10. The cause of action laid in the plaint may now be shortly stated. It is alleged that the Delhi house, being the property in suit, belonged along with other properties to Gopal Sahai. Gopal Sahai had made a will whereby he gave 1/3 share of his entire estate to his adopted son Moti Ram defendant 3 and the remaining 2/3 to-his son Bhup Singh; that on the death of Gopal Sahai on 6th June 1941 his estate devolved on Moti Ram and Bhup Singh in the Bhares specified in the will, although the properties remained un partitioned; that after Bhup Singh's death his 2/3rd share devolved on Godawari; that thereafter disputes arose between Moti Ram and Godawari; that on 17th November 1942 a compromise was arrived at whereby Godawari was to give up all rights to the estate of Gopal Sahai and to get only the Delhi house and a sum of Rs. 5,000: that the compromise was simply a device to partition the estate; that Godawari bad only a life interest in the Delhi house which she received on partition; that Moti Ram was not competent to vest absolute right in the property in Godawari; that the sale by Godawari to Jai Narain, defendant 2, was without consideration and valid necessity and was not binding on the reversioners; that Moti Ram, the nearest reversioner, had by his acts disentitled himself from bringing a suit and that accordingly the plain, tiff as a remote reversioner had filed the suit. The relief prayed for is a declaration that the sale deed is null and void and ineffectual against the reversioners.

11. As was to be expected Moti Ram did not appear to contest the suit. The suit was contest-ed principally by the purchaser Jai Narain (defendant 2). In his written statement Jai Narain did not dispute the correctness of the pedigree table showing the relationship between the plaintiff and the defendants Godawari and Moti Ram or that the property in suit belonged to Gopal Sahai. He did not admit that Gopal Sahai had made any will. He alleged that on Gopal Sahai's death Moti Ram became the owner of the property left by the deceased. It is not quite intelligible how, in view of the fact that Bhup Singh was alive at the death of Gopal Sahai, the latter's estate would devolve on Moti Ram alone. He denied the allegations of want of consideration or absence of legal necessity. He questioned the plaintiff's right to maintain the suit.

12. In the additional pleas set forth in the written statement, Jai Narain contended that Godawari was the absolute owner of the property in suit, that Godawari was indebted to Tirloki Nath who had obtained a decree against her and had actually attached the property and that in order to save herself from loss arising out of a forced court sale Godawari had sold the property to him for Rs. 40,000 which was paid in full, arid that accordingly the sale was for consideration and for legal necessity. He pleaded that Moti Ram had made a valid gift to Godawari who became the full owner of the property and that at any rate the compromise was between the widow and the immediate reversioner and was in the nature of a family settlement which was prudent, reasonable and binding upon the whole body of reversioners. He also raised a plea of estoppel against the plaintiff and other reversioners baaed on a notice given, by him to them before the sale and their failure at that time to object to the sale.

12. Godawari also filed a written statement in the suit. She also admitted that the property in suit belonged to Gopal Sahai Shedid not deny that Gopal Sahai had made a will fixing the shares of Moti Ram and Bhup Singh. Her case was on Gopal Sahai's death his estate devolved on both his sons Moti Ram and Bhup Singh and on her and that on Bhup Singh's death she became the owner of Bhup Singh's share as well. She pleaded that she was the absolute owner of the property in suit, that the compromise was effected to avoid all disputes and was a bona fide settlement made at the instance of all relatives including the plaintiff. She maintained that the sale was for valuable consideration and was effected for legal necessity in the circumstances detailed in her additional pleas. The plaintiff put in a replication to Jai Narain's written statement generally denying the allegations therein.

14. On the pleadings the following issues Were raised:

1. Whether the plaintiff has a right to sue? (2) Whether the sale in dispute was made for legal necessity (3) Whether the sale of the property in dispute by defendant 1 in favour of defendant 2 is invalid and not binding on the reversioners? (4) To what relief is the plaintiff entitled?

15. The learned Subordinate Judge upheld the plaintiff's right to maintain the suit as a remote reversioner under the Hindu law and his decision of issued in favour of the plaintiff has not been questioned before us. On issue 2 the learned trial Judge held that the sale was for valuable consideration and that there was legal necessity for the sale to the extent of Rs. 17,462-8-0 made up of Rs. 6162-8-0 paid to her attaching decree-holder and creditor and Rs. 1,000 paid to her for purchasing the stamps for the sale deed. As to issue 3 the learned Judge stated that the issue had not been properly framed and pointed out that no issue had been framed as to the plea of Godawari becoming the absolute Owner of the property by virtue of a bona fide family settlement which the plaintiff as reversioner had no right to challenge and as to the alleged will. After stating that nevertheless the parties went to trial on both the points the learned Judge proceeded to decide them. He held on the evidence that the alleged will had not been established and that accordingly Gopal Sahai's estate devolved on his two sons under the Hindu law as on intestacy. Following a ruling of the Oudh Court reported in Mi. Lakhpati v. Rameshwar Misra A.I.R.1931 Oudh108, the learned Judge came to conclusion that on Gopal Sahai's death his estate devolved on his two sons who were joint and that on his (Bhup Singh's?) death the whole estate vested in Moti Ram by right of survivorship and accordingly Moti Ram as the sole owner was competent to make an absolute gift of the Delhi house to Godawari and the latter as such absolute owner could sell the same to Jai Narain. The learned Judge then put the matter in a slightly different way namely that Moti Ram became absolute owner by right of survivorship, that Godawari put forward a claim as a widow, that there were protracted litigations which eventually were settled upon the terms that a small portion of the estate should go to Godawari and the major portion would be kept by Moti Ram that the estate was worth several lakhs of rupees and that out of that by way of family settlement Godawari only got a small house in Delhi and that such a family settlement was valid. In the result he answered issue No. 3 in the negative and against the plaintiff and accordingly dismissed the plaintiff's suit. The plaintiff has now come up on appeal before us.

16. Mr. Daya Krishan Mahajan who has argued this appeal' on behalf of the appellant with considerable ability first challenges the findings of the trial Court on issue No. 2 and urges that consideration or legal necessity has not been proved at all. We have gone through the evidence carefully and are satisfied that the full consideration money was paid by Jai Narain. (Their Lordships then discussed the evidence on the point and came to the following conclusion:) On a consideration of the evidence as a whole we are in agreement with Mr. Mahajan that the finding of the trial Court on issue No. 2 cannot be supported. In our judgment no legal necessity for the sale has been established at all.

17. Issue No. 2 being thus decided against the defendants and legal necessity being out of the way, on what other grounds, if any, can this sale be upheld? The learned trial Court held that Moti Ram became the owner of the property in suit by right of survivorship. It will be remembered that the plaintiff's case that the property belonged to Gopal Sahai was not disputed-by either of the contesting defendants. It was no body's case that the property was ancestral in the hands of Gopal Sahai. There is no reason to assume as has been done by the learned Judge, that Moti Ram and Bhup Singh constituted a joint family so as to entitle Moti Ram to get the property by right of survivorship on the death of Bhup Singh. These questions have not been put in issue and there has not been any investigation on that line. The case proceeded on the footing that the property was Gopal Sahai's self-acquired property and had on his death devolved on his two sons in defined shares and that Moti Ram and Bhup Singh represented by his mother were at arm's length ever since Gopal Sahai's death. By the arrangements arrived at in the' guardianship matter to which reference has already been made Moti Ram and Bhup Singh had denned shares. Godawari as guardian of Bhup Singh was getting Rs. 90 per month and Sagar Mal as guardian of Moti Ram was getting Rs. 45 per month, that is to say the two minora were getting the maintenance in the proportion of 2 to 1. Then we find that succession certificate was issued to Godawari in respect of 2/3 of the estate. All these facts appearing in documents seem to point to a severance of the joint status of Moti Ram and Bhup Singh and to some extent to militate against the theory of their constituting a joint family. Even if these facts may not be sufficient to conclusively prove separation, it is quite clear the learned Judge has founded this part of his decision on assumptions not warranted by the evidence and has in effect made out a case for the contesting defendants which neither of them even hinted at in their respective written statements and which indeed is, if anything, contrary to their case. Learned Counsel for the respondent Jai Narain has not sought to support this part of the judgment of the lower Court.

18. Learned Counsel for Jai Narain, however, has contended that the compromise which had been come to by and between Moti Ram and Godawari may well be supported as a bona fide surrender of her interest in the whole estate and that a reservation of, a small benefit for her maintenance in the shape of a small house and Rs. 5,000 does not vitiate that surrender. It is well established on highest authority that ah alienation by limited heir of the estate inherited by her will be upheld if it be shown to be a surrender of Her whole interest in the whole estate in favour of the nearest reversioner at the time of the alienation and is a bona, fide surrender and not a mere device to divide the estate with the reversioner. See Bangasami Gounden v. Nachiappa, Gounden A.I.R.1918 P.C.196. The principle of this decision was applied by the Judicial Committee in the case of Mt, Bhagwat Koer v. Dhanuhdhari A.I.R.1919 P.C.75, with the following observations:

The power of Hindu widow to surrender or relinquish her interest in her husband's estate in favour of the nearest reversioner at the time has often been considered and was fully dealt with by the Board in the recent case of Rangasami Gounden v. Nachiappa Gounden A.I.R.1918 P.C.196. As pointed out in that case, it is settled by long practice and confirmed by a series of decisions that a Hindu widow can renounce the estate in favour of the nearest reversioner, and by a voluntary act efface herself from the succession as effectively as if she had then died. This voluntary self-effacement is sometimes referred to as a surrender, sometimes as a relinquishment or abandonment of her rights; and It may be effected by any process having that effect, provided that, there is a bona fide and total renunciation of the widow's right to hold the property. In the present case there was indeed no formal surrender by the widow of her estate; but there was an express agreement, binding upon her, that for considerations which appeared to her sufficient she would abandon the claim which at the time she tad a good right to make and would have no right, claim or demand in respect of the estate of her late husband. It is true that the documents were drawn up on the footing, not of a surrender of an acknowledged right, but of an admission that the right did not exist; but in substance, and disregarding the form there was a complete self-effacement by the widow which precluded her from asserting any further claim to the estate. The question is no doubt one of difficulty, but upon the whole their Lordships have come to the conclusion that the execution of the two ekrafnamas, followed by the acceptance for thirty years of maintenance under the terms of those documents amounted to a complete relinquishment by Anandi Koer of her estate in favour of Mahabir, and accordingly that the title of Mahabir's representatives is establishment and the plaintiff's action should have been dismissed on this ground.

It will be noticed that the acceptance of main, tenance under the same agreement was not considered as vitiating the surrender and in a sense the principle of the Goundan case A.I.R.1918 P.C.196, was to some extent extended. The matter was again considered by the Judicial Committee in the case of Sureshwar Misser v. Mt. Maheshrani Misrain A.I.R.1921 P.C.107. In that case a Hindu died leaving an infant son, a widow and four daughters and having provided by his will that upon the death of his son without issue his daughters would succeed to his, immovable property. The son having died without issue the daughters took possession under the will. The son's next reversioner having sued the widow and the daughters to set aside the will a compromise was arrived at under which the rights under the will were given up, the widow took absolutely the moveable properties to which she was in any case entitled under the Mithila School of Hindu Law, the widow surrendered all rights of succession to the immovable property and the plaintiff who by that surrender became entitled to the immovable property as the next reversioner transferred half of it to the daughters and the plaintiff and each of the daughters gave a small portion of the land to the widow for her life. The plaintiff having died the persons who became the next reversioners sued for a declaration that the compromise and the transfers in pursuance of it were inoperative. It will be noticed that by one and the same compromise the widow surrendered but got, apart from the moveables, a portion of the immovable property for her life and yet it was held that the compromise was a bona fide surrender and not a device to divide the estate, the giving of email portions of the estate to widow for her maintenance not being 6'bjeetionable. The extension of the Goundan case A.I.R.1918 P.C.196, was firmly established in this case. Indeed the two last mentioned decisions may be regarded as having engrafted a qualification on the rule laid down in the Goundan case A.I.R.1918 P.C.196. The same principles were enunciated by the Judicial Committee in Man Singh v. Nowlakhbati A.I.R.1926 P.C.2, although on the facts of that case the surrender was held invalid both under the Hindu law and the Court of Wards Act. The last decision of the Judicial Committee on this subject will be found in Sitanna v. Vtranna A.I.R.1934 P.C.106). In Gangadhar Narayan v. Prabuddha Vasudeo A.I.R.1932 Bom.625, a Bench of the Bombay High Court consisting of Beaumont C.J., and Broomfield, J., expressing the view that the qualification imposed by the later decisions of the Judicial Committee on the principles of Goundan's case A.I.R.1918 P.C.196, was illogical and anomalous declined to apply the later cases mentioned above to the case before them on the ground that these cases were cases of compromise. Mr. Mahajan has relied upon the observations of the learned Chief Justice of Bombay in that case that

if the case of Rangasami Goundan A.I.R.1918 P.C.196, stood alone I should have thought that if the deed of surrender provided that the widow was to be entitled to maintenance of any specific amount, or to any specific part of the property by way of maintenance, that could not be said to be a total surrender of her total interest in the property and free from the vice of sharing the estate with the reversioner.

and the observation lower down that:

the payment to the widow of a lump sum in lieu of maintenance illustrates in a pointed manner the essential fact that any bargain as to special maintenance converts the transaction into a sale. There being no question of necessity, a sale by a widow to the reversioner must, I think, be a device for dividing the estate.

It is interesting to note that another Bench of the Bombay High Court in the later case of Krishna v. Baban Rambhau : AIR1945Bom24 , has expressed the view that those observations of Beaumont, C.J. were not necessary for the decision of the-case before him. Be that as it may, Goundan's case A.I.R.1918 P.C.196, does not stand alone and we cannot overlook the later decisions of the Judicial Committee which have undoubtedly engrafted some qualifications which, though anomalous according to Beaumont C.J., or even illogical as Mr. Mahajan contends, are pre-eminently humane and certainly beneficial to the limited owners. In any case the decision of Beaumont C.J., has no application to the case now before us because hero there was in fact a compromise between the par-ties. What we have to see is whether the com-promise was a bona fide surrender and whether the gift of the Delhi house can be regarded as a reasonable provision for the maintenance of Godawari. The proportion of the value of the whole estate to the value of the benefit reserved will ordinarily be a fair test of the validity of the surrender but in some cases, as pointed out by Divatia, J. in Krishna v. Baban Rambhau : AIR1945Bom24 , (supra), if the amount fixed for maintenance is a reasonable amount in circumstances of the case, having regard to the status of the family, the prevalent cost of living and other factors, it is apprehended that such reservation, even if the proportion of its value of the whole estate be somewhat high, will not vitiate the surrender.

19. Mr. Mahajan urges that in this case Godawari did not surrender her whole interest in the whole estate because the deed of relinquishment did not include this Delhi house at all. This argument appears to us to be founded on a very narrow view of the surrounding circumstances. The compromise (Ex. P-1), the deed of gift (Ex. D-16) and the deed of relinquishment (Ex. P.W. 2/3), obviously formed part of one and the same transaction. The fact that though the compromise was effected on 17th November 1942 it was not filed in Court until after it had been fully implemented by the deed of geift, the deed of relinquishment and the payment of Rs. 5,000, on 30th November 1942 clearly shows that they were intended to be one transaction. They must, therefore, in the circumstances, be read together. So read, we have no doubt, they clearly establish that Godawari completely effaced herself qua the estate of Gopal Sahai or Bhup Singh subject to the reservation in her. favour of some benefit in the shape of the Delhi, house and Rs. 5,000 in cash.

20. Learned Counsel for the appellant next urges that the decisions of Judicial Committee only permit a provision for maintenance for life but here the gift of the Delhi house was not for life only but conveyed the absolute estate which will enure beyond the life of Godawari and will be capable of being passed on to her stridhan heirs if she did not dispose of it earlier in her own life. The argument is certainly attractive but we are not convinced that on ultimate analysis it can stand. It is conceded that a provision for maintenance will not vitiate the surrender. Therefore, a provision for maintenance at rupees so much per month, provided the amount is reasonable, is unobjectionable. If to avoid the botheration of periodical payment on the part of the reversioner and the risk of non-payment on the part of the surrendering limited heir they agree to pay a lump sum as the capitalised value of the maintenance, we do not see how such an arrangement can be taken exception to. Such an arrangement for payment of lump sum was upheld in the case of Gopal Das v. Shri Thakurji : AIR1936All422 . If a lump sum payment in lieu of maintenance is permissible within the meaning of the decisions of the Judicial Committee we cannot see why the absolute gift of a small immovable property in lieu of maintenance will not be squally permissible. The question was considered by a Bench of the Madras High Court in the case of Karuppa v. Mudali A.I.R.1921 Mad.681 at. p. 682. Paragraph 1 of the headnote is obviously wrong or a misprint. There we find the following observations:

The next question is whether the fact that she got an absolute estate in the land which she got for her maintenance and in Rs. 500 given to her would render the surrender invalid. In the case of widows entitled to maintenance it is open to them to get properties absolutely in lieu of their claims and there is no reason why a surrender by a widow should be invalid where she bargains for an absolute estate in a portion of the estate for her maintenance so long as the lands allotted to her for maintenance are not in excess of her requirements for maintenance and the transaction is otherwise fair. No authority is cited for the view that the reservation for maintenance which would under the decision of the Privy Council in Bhagwat Koer v. Dhanukdhari Prashad Singh A.I.R.1919 P.C.75 be valid should be only of a life estate.

21. The above observations appear to us to be quite logical and we respectfully agree there, with. The case of Appaswami v. Thavarmal A.I.R.1939 Mad.830, relied on by Mr. Mahajan does not appear to us to be of any assistance to the appellant. There the compromise by the limited heir was not with the next reversioner at all and therefore the main condition of a valid surrender was absent in that case. Further, we are inclined to think that in that case the value of the properties retained by the surrendering limited heir was not at all commensurate with the requirements of her maintenance but was in fact far in excess of It. In Srinivasalu Chetty v. Munisami Chetty A.I.R.1943 Mad.378, the finding was that there was in reality a division of the estate and the limited heir was given a share absolutely. The two last mentioned decisions of the Madras High Court may be supported only on the special facts found therein and do not appear to us to affect the reasonings underlying the observations made in the earlier case of Karuppa v. Mudali A.I.R.1921 Mad.681, quoted above.

22. Mr. Mahajan points out that there is nothing on record to show that the Delhi house and Rs. 5000 were given to Godawari by way of maintenance, The circumstances, he urges, clearly point to the conclusion that these properties were given to her as a consideration for what was in effect a sale by her of the estate to the next reversioner. We are unable to accept this argument. That at the time of the com-promise the question of Godawari's maintenance was present before the minds of the parties is amply borne out by Clause (4) of the compromise quoted above which provided that Godawari should have no further claim for maintenance. Heading the terms of the compromise as a whole we are satisfied that the gift of the Delhi house and of Rs. 6000 was in reality in the nature of a provision for her maintenance and is not tantamount to a consideration for sale.

23. Finally, learned Counsel for the appellant urged that the value of the properties given to Godawari was far in excess of her requirements for maintenance and was indeed a substantial part of the estate. It is pointed out that the value of the properties mentioned in the deed of relinquishment was la little over Rs. 59,000 whereas the value of the Delhi house alone was fixed at Rs. 6,500. Mr. Mahajan, however, over, looks that the estate of Gopal Sahai consisted of business which had stock in trade and considerable outstandings. Indeed according to the evidence of Moti Bam himself the value of the estate left to him was several lakhs of rupees. It is true the Delhi house fetched an income of Rs. 45 to Rs. 70 per month but having regard to the status of the family and the extent of the properties left by Gopal Sahai a monthly sum of Rs. 70 does not appear to us a sufficient maintenance for Godawari. On a consideration of the evidence on record we are satisfied that the compromise was a bona fide one and amounted to a surrender which is valid under the Hindu law, as explained by the Judicial Committee and that the reservation of the benefit in favour of Godawari in the shape of an absolute gift of the Delhi house and of Rs. 5,000 in cash was in the nature of a provision for her maintenance and it was, in the circumstances, a reasonable provision and was not in excess of her requirements and that such reservation does not vitiate the surrender. In this view of the matter Godawari, as the absolute owner of the Delhi house was competent to sell the same to Jai Narain and the plaintiff has no right to question the validity of the sale. The result, therefore, is that this appeal must be dismissed with costs and we order accordingly.


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