Sadasiva Aiyar, J.
1. The defendants 1 and 3 are the appellants. The suit was brought on a mortgage bond executed to the plaintiff by a Hindu widow (the 1st defendant). The bond is dated 15th May 1902. On the 16th February 1913 the 1st defendant executed the surrender deed Ex. I in favour of her husband's reversionary heir (the 3rd defendant). This suit was brought on the 20th September 1911 and it was during the pendency of the suit that this relinquishment deed Ex. I was executed. The suit was posted for trial for the 16th February 1912. Then there were five more adjournments and the 6th adjourned hearing date was 7th February 1913. Then the defendants made a request for another adjournment to 7th March 1913 and between these two dates (7-2-13 and 7-3-13) the surrender deed was executed in favour of the next male reversioner the 3rd defendant by the widow the 1st defendant on the 16th February 1913. In the written statement dated 25th October 1911 however, paragraph 5, there is an allusion to a surrender by the first defendant to the minor 3rd defendant. The surrender mentioned in the written statement must therefore relate to an alleged prior oral surrender. The date of that oral surrender is not mentioned in the written statement which was filed more than a month after the suit was filed. That the surrender whether oral or written was deliberately intended in order to defeat the plaintiff's claim to bring the life interest of the 1st defendant in the property to sale for recovery of the plaintiff's mortgage amount cannot in my opinion be disputed and was seriously disputed by the appellant's learned Counsel. The Lower Courts held that the surrender could not defeat the right of the plaintiff to get a mortgage decree for sale of the 1st defendant's life interest as the transfer of that interest by way of security to the plaintiff had taken place in 1902 while the alleged oral surrender was at the end of 1911 and the written surrender deed, Ex. I was in 1913.
2. Mr. B. Narasimha Rao, the earned Counsel for the appellants has raised two contentions in the memorandum of second appeal. The first contention is that the mortgage document itself was invalid as it had not been proved that it was attested by two persons who saw the executant execute it. This contention however was not pressed at the arguments before us and there is nothing in it as the writer who is also an attestor see Radhakishen v. Fateh Ali Ram I.L.R. (1898) A. 532 as to the treating the writer as an attestor for the purpose of Section 59 of the Transfer of Property Act and another attestor have proved the actual execution of Ex. A.
3. The remaining contention might be stated in the words of the 6th to 9th grounds of the appeal memo, as follows:
6. The Lower Courts were wrong in holding that the plaintiff could have a decree against the life estate of the 1st defendant notwithstanding relinquishment in favour of the next reversioner, the 3rd defendant, which has the effect of extinguishing her estate in the eye of Hindu Law.
7. The Lower Courts erred in holding that the relinquishment conveyed only the 1st defendant's equity of redemption.
8. The Lower Courts should have held that relinquishment is equivalent to civil death and that under Hindu Law the next reversioner takes the entire estate unfettered by any invalid alienations made by the widow.
9. The mortgage having been found to be not binding on the reversioners and the relinquishment having been found to be valid, the Lower Courts have held that the 3rd defendant was entitled to the estate in his own right as if the widow had died and the plaintiff's suit should have been dismissed.
4. In Sreeramulu v. Kristamma I.L.R. (1902) M. 143, a Hindu widow after having sold one of her husband's properties adopted a son. The son sued to recover the property from the possession of the purchaser on contentions very similar to those raised by the 6th to 9th grounds of appeal above set out. Just as Mr. Narasimha Rao contended before us that by the surrender the widow's estate as such ceased to exist and was not available to the plaintiff mortgagee any longer for the purpose of his security, so it was contended in that case that by the adoption the adoptive mother's estate as widow-heir of her husband came to an end and could not be availed of 'by the prior purchaser from her to advance a claim on his part to remain in possession during the widow's lifetime. Sir Bhasyam Aiyangar J. (at page 148) begins the discussion of the. question by stating that the question is really one of 1st impression and presented great difficulty. Then he quotes authorities for showing that a Hindu widow-heir had an absolute right to the fullest benefit in her husband's property for her life and that she has a personal right therein which she can exercise at her will and pleasure, by giving, selling or transferring the estate to another for her own life 'or, speaking more accurately, for the term of widowhood.' Next, he says that if the alienation was not for any necessary purpose, it will still carve out in favour of the alienee an estate during her widowhood which cannot be defeated by a subsequent adoption. He treats it as clear though he does not say so in so many words that her widowhood does not come to an end by the adoption and that it lasts till her death, unless of course she re-marries and Act. 15 of 1856 applies. At page 155 he says: 'A person dealing with a widow reasonably calculates that the alienation will hold good, at any rate, during her lifetime, and except of course in the rare case of a remarriage, this will be ensured by the conclusion herein arrived at even when an adoption takes place subsequent to the alienation.' Then the conclusion finally arrived at was that notwithstanding the adoption which put an end to her right as heir to all her husband's property, that is, though the adopted son inherited the adoptive father's property so as to put an end to the widow's right as heir, the property he has inherited could not include the rights already alienated by the widow, the effect of the alienation lasting during her lifetime. Mr. Justice Davies fully concurred in that view. In the case Singaram Chettiar v. Kalyanasundaram Pillai (1914) M.W.N. 735. Wallis, C.J. and Hannay, J. made the following observations. 'In this state of things the defendants contended that the effect of the proceedings in the suit above mentioned was to vest the equity of redemption of the mortgaged property in the mortgagee, at any rate for the lifetime of the widows or the survivor of them. This contention is raised in paragraph 6 of the written statement and is covered by the issues but is not dealt with by the Subordinate Judge, whether from oversight or because it was not strongly pressed before him. But it appears to afford a conclusive answer to the present suit as it seems clear that a widow cannot relinquish her widow's estate to the reversioner affecting the validity of the alienations made by her before such relinquishment which though not binding on the reversioner were binding on her for life. And the result is that during the lifetime of the surviving widow, the equity of redemption remains vested in the defendants as the assignees of the mortgagee and that the present suit is premature.'
5. Mr. B. Narasimha Rao contended that these observations were obiter dicta and that even if they were not they were made without the learned Judges having had the benefit of a discussion of that question by the learned vakils who argued that case. I cannot treat the observations as obiter as the decision in that case which dismissed the plaintiff's suit and reversed the Lower Appellate Court's decree was fully rested on those observations. Again, I cannot hold on the strength of the reports of the arguments in an unauthorised report Singaram Ghettiar v. Kalyanasundaram Pillai (1914) 26 I.C. 1, that Rangachariar and Muthia Mudaliar who appeared for the appellants in that did not argue the question. Mr. Narasimha Rao then relied upon the case in Ramakrishna v. Tripurabai I.L.R. (1908) B. 88, in which Chandavarkar, J. criticises Sir Bashyam Iyengar's Judgment in Sriramulu v. Kristamma I.L.R. (1902) M. 143, and dissents therefrom. That learned Judge preferred to follow the decisions of his own High Court, the decision in Lakshmanan Bhau Khopkar v. Radha Bai Govinda Rau and Bahiru I.L.R. (1887) B. 609, and Moro Narayanan Joshi v. Balaji Raghunath I.L.R. (1894) B. 809 both on the ground of stare decisis and also as being the sound Hindu Law. On the ground of stare decisis I would similarly prefer to follow the opinion of the four learned Judges of this Court in preference to the current of Bombay decisions and as regards the Hindu Law also, I would hold that a widow has got the power to alienate her estate so as to enure during her lifetime notwithstanding any event which may happen after the alienation see segu Chidambarama v. Sareddi Hussainammah 29 M.L.J. 546 (1915) M.W.N. 577.
6. As I ventured to state in a recent Full Bench case the true and more ancient Hindu Law is in my opinion being gradually restored in many respects by the decisions of the Privy Council. We have seen that the rule of survivorship introduced by modern medieval Hindu Law and the rule of the sons having a legal right to question the debts and alienations of their father have been altered in favour of alienees and creditors for value by the decisions of the Privy Council. The artificial medieval doctrine of a widow having no full power of alienation and the consequent doctrine superimposed by the Bengal lawyers on this doctrine namely, the doctrine of acceleration of the reversion through a surrender by the widow of her rights as her husband's heir (the second doctrine having been adopted for South India also by the Madras High Court) cannot, in my opinion, be pushed to the extent to which Mr. Narasimha Rao wishes that they should be extended, namely so as to defeat the claims of alienees for value who as Sir Bashyam Aiyengar said in Sreeramulu v. Kristamma I.L.R. (1902) M. 143 were entitled to be protected in their reasonable expectation that they obtain a transfer valid for the widow's life except in the rare case of re-marriage. Mr. Narasimha Rao argued that as re-marriage puts an end to her estate so as to effect even her prior alienees, a surrender should also have the same affect. But re-marriage puts an end to her widowhood while surrender or adoption does not put an end to her widowhood. (I wish to state however that I reserve my opinion even on the question whether her re-marriage though it puts an end to her widowhood will affect the right of the alienee to enjoy the alienated interest during her lifetime though Section 2 of Act 15 of 1856, literally construed is in support of (Sir Bashiyam Aiyangar's opinion). If the survivorship doctrine and if the son's right by birth doctrine are made powerless against the equities and rights of attaching creditors and alienees for value, I do not see any reason why the surrender doctrine (which is not less artificial than the above two) should be made to affect alienees for value.
7. Mr. Narasimha Rao conceded that a widow who makes a surrender to the reversioner can stipulate for a right to be maintained out of the husband's property during her lifetime and this shows that she does not become civilly dead by the surrender nor does she cease to retain the status of widowhood.
8. In the result I would dismiss the second appeal with costs.
9. I agree. The theory that change of status of an assignor or a surrender by such assignor can invalidate legal rights obtained by an assignee is in my opinion so contrary to equity and good conscience that it should not be accepted by courts of this country whatever the ancient Hindu Law on the subject was. The proposition entails a defeasance of an assignee's title by a collusive alienation made with intent to benefit third parties by subsequent assignment Vide Challasubbiah Sastri v. Palury Pattabhiramayya I.L.R. (1908) M. 446 and by a collusive acceleration made with intent to defraud such assignee. It operates not only against the property which she has inherited but also against property purchased out of savings and added to the inheritance, but subsequently alienated. It affects persons not governed by the personal law of Hindus and might injure minor assignees or alternatively their guardians who acted in perfect good faith. There is no reason or principle why alienations for life already made should not enure, and the rest of the estate merge into the reversion and I decline to accept any contention of the reversioner's right beyond this. This appeal will be dismissed with costs.