John Wallis, C.J.
1. This is an appeal from the judgment of,, the Subordinate Judge of Cocanada in a suit brought by the plaintiff as the next reversioner of the last male owner Surya Rao to recover the suit properties which formed part of the estate of the last male owner.
2. The position is somewhat a curious one because these properties were purchased by the defendants in a court auction under decrees obtained against the plaintiff himself. The last male owner left a mother and two sisters and the present plaintiff is the grandson of the elder sister. The mother in 1870 transfered a third of the estate she inherited from her son to each of her two daughters reserving a third for herself.
3. Then at a later stage after the death of her two daughters the widow executed another deed, Ex. I, by which she surrendered the one-third that she had previously reserved for herself to her two grandsons, each being the son of one daughter, in equal shares. This was in 1890. The widow survived till 1907. In the meantime the whole estate of the last maleowner was inherited by the two grandsons of whom the plaintiff's father was one. The plaintiff's father incurred debts and it was in respect of these debts that decrees were obtained and the suit properties were brought to sale and purchased by the defendants. Now that plaintiff, on the death of the widow, has succeeded as next reversioner to the share of the last male owner, he seeks to invalidate these Court sales on the ground that they were made pursuant to alienations by the mother of the last male owner for purposes which were not binding and that they are not binding upon him.
4. Now the decision of this question depends on the question whether the widow made an effective surrender of her estate to the plaintiff's father and his cousin who were the next reversioners in 1890, when she parted with her remaining third. At that time, these two, the plaintiff and his cousin, were in possession of all the estate of the last male owner except this one-third. After the surrender of this one-third they were in possession of the whole of the last male owner's estate and the widow retained no further interest in it. The widow had entirely effaced herself and her rights in favour of the next reversioner.
5. Now it has been suggested that this surrender was bad because there were two distinct surrenders, each of a part of the inheritance. What was necessary to bring this doctrine of surrender into effect was that the widow should part with the whole of the interest ; it does not matter whether if was done by one single act or by a number of successive acts. In Nachiyappa Goundan's case 36 M.L.J. 439 the Privy Council suggested that the defects of the earlier decision in Sajrangji Singh v. Manoknrnika Baksh Singh I.L.R. 30 All . I might be expLalned on the ground that these alienations in cumulo amounted to an alienation of the whole of the irnmoveable property. That is very much what has happened here. There has been an alienation of the whole estate by successive steps.
6. Objection is taken to the last surrender because it provides that the estate is to continue to be registered in her name but the whole beneficial interest was in her grandsons and we think that there is no substance in,this objection.
7. An objection has also been taken to the validity of the surrender, because in Ex. I, the plaintiff and his cousin undertook to discharge the debts set out in Ex. I to the extent of about one lakh and fifty thousand rupees. Now the evidence is that this estate had been involved in three expensive litigations, in the first of which the title of the last male owner was challenged. The first of these litigations dates so far back as 1870 and it seems very probable to say the least, that the bulk of this indebtedness was incurred in connection wi'th these litigations ; but however this might be, there can be no doubt that those debts existed, and I think also that the creditors would have claimed that they were binding upon the estate. But, even if they were not, the question arises whether an undertaking by the reversioner to discharge the existing debts of the widow would invalidate an arrangement of this kind. Each case must be judged on its own circumstances and the test we have to. apply has been Laid down by the Privy Council in three recent cases beginning with Rangaswami Gounden v. Nachiyappa Gounden I.L.R. (1918) Mad. 523 Choudhury Sureshwar Misser v. Mussamut Maheshrani Misrain (1919) 39 M.L.J. 161 and Bhagwat Koer v. Dhanukdhari Prasad Singh 37 M.L.J. 513. In Rangasivami Gounden v. Nachiyappan Gounden I.L.R. (1918) Mad. 523. their Lordships say that '' an alienation by a widow of her deceased husband's estate held by her may be validated if it can be shown to.be a surrender of her whole interest in the whole estate in favour, of the nearest reversioner or reversioners at the time of the alienation. In such circumstances the question of necessity does not fall to be considered. But the surrender must be a bona fide surrender, not a device to divide the estate with the reversioner. The same test has been repeated in the later case and at present all that we have to see about the recent absolute surrender is whether it was a bona tide surrender or a mere device to divide the estate with the reversioner. Now applying that test in the present Jcase, I can see no reason whatever for holding that this final surrender by the widow in 1890 was not a bona fide surrender or was in: any sense a device for the purpose of dividing the estate with the reversioner.
8. Some argument has been addressed to us as to whether the alienations made by a widow for the purposes which are not binding on the estate are affected by such surrender. It has been held in Subbamma v. Subramaniyam I.L.R. (1915) Mad 1035 . that they are not, whereas a contrary opinion has been expressed in ariunrepored case, C.M.A. No. 322 of 1919. Speaking for myself, I see no reason to depart from the ruling in Subbamma v. Subramaniyamn I.L.R. (1915) Mad 1035. but it is unnecessary to express any; final opinion on the question.
9. The appeal fails and is dismissed with costs.
10. As regards, C.M.A. No. 322 of 1919, it does not seem to me to be necessary to attempt to define the extent to which after the argument just concluded I should adhere to the decision if the same point were again before me. For the present case it is sufficient that there is nothing in the widow's conduct which has in any respect prejudiced the ultimate reversioner jn any way irreconcilable with the widow's undoubted right to make a surrender in favour of the person who is reversioner at some earlier date to the prejudice of the person who would otherwise be entitled to the estate on her death. The doctrine of surrender appears to rest upon no text and it may therefore, as I understand it, be given effect to in any way consistently with the principle on which it is based, that principle being that the widow's effacement of herself at once opens the succession in favour of the reversioner on the date of such effacement. In such a case as the present, when the remainder of the widow's estate has already reached his hands there can be no unfair prejudice to anyone, if we regard the surrender to him as covering not merely the estate particularly conveyed but also the whole estate over whichPthe widow had control, the remainder of which is already in his possession.