Abdur Rahim, C.J.
1. The answer to the question referred depends mainly upon the interpretation of the scope and effect of a recent ruling of the Judicial Committee in Rangasami Goundan v. Nachiappa Goundan I.L.R. (1918) M. 523 where the law on the subject of surrender and alienation by a Hindu widow has been authoritatively considered. They begin by pointing-out that these two classes of transactions are different in their nature and legal incidents. Surrender is described as 'an effacement of the widow--an effacement which in other circumstances is effected by actual death or by civil death--which opens the estate of the deceased husband to his next heirs at that date '. In another place it is stated to be a withdrawal of the widow's life estate so that the whole estate should get vested at once in the grantee thus approving of the proposition as stated in Behari Lal v. Madho Lal Ahir Gayawal I.L.R. (1891) Cal. 236 by Lord Morris that ' according to Hindu law the widow can accelerate the estate of the heir by conveying absolutely and destroying her life-estate.' Then their Lordships sum up the law in these words : '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'. It may be observed here that their Lordships speak of surrender as an alienation and in another place as a gift. But that in my opinion cannot be taken to obscure in any way the distinction between a surrender as defined above and an alienation of the whole or part of the estate on the ground of necessity. So far as this judgment of the Privy Council goes, I find no warrant for holding that, where a transaction is by way of surrender of the widow's whole interest in the whole estate in favour of the nearest reversioner and such surrender is bona-fide and not a mere device to divide the estate with the reversioner, it would not be valid in law simply because the deed of surrender makes a bona-fide provision for a reasonable maintenance and residence for the widow or widows making the surrender. On the other hand it seems to me that their Lordships intended to lay down that if the conditions mentioned by them were satisfied, that was all that was required for a valid surrender and any provision or benefit reserved for the widow not inconsistent with those conditions would not affect the legality of the transaction. Mr. A. Krishnaswamy Aiyar contends that the description of surrender as ' an effacement of the vidow which in other circumstances is effected by actual death or by civil death opening the estate of the deceased husband to his next heirs at that date, ' shows that any provision for maintenance and residence in favour of the widow surrendering her life estate is inconsistent with a proper surrender. But I fail to appreciate this argument. If the Privy Council had intended any such result I think they would have made it clear that reservation of any sort of benefit or provision for maintenance would vitiate a surrender. On the other hand all that they were prepared to lay down was that it must not be a device to divide the estate with the reversioner. The transaction which has given rise to this reference, it is conceded, is not such a device but a bona fide surrender. Ail that was argued was that the stipulation by the nearest reversioner in whose favour the surrender is made (which was a payment of a lump sum of Rs. 500 to one widow for her maintenance and an undertaking to maintain the other widow and to provide for their residence), though perfectly reasonable, was in itself sufficient to vitiate the surrender. As I said, this contention is not borne out by the judgment of the Privy Council. It is obvious that if it were to be accepted, if the law were that the widow surrendering her estate cannot stipulate for her maintenance, that would virtually be prohibiting surrenders in most of the cases, even though the widow be actuated by a bonafide desire to divest herself of the entire estate which she inherited from her husband in favour of the next heir.
2. Mr. Krishnaswami Iyer was not able to produce a single authority in support of his proposition. On the other hand, as far back as 1856 Sir James Colvile, then Chief Justice of the Calcutta High Court, laid down that a relinquishment of the inheritance by a widow in consideration of maintenance, in favour of the next heir was valid. See S. Jadamoney Dabee v. Mookerjee (1856) 1 Boulnois 120. It was not, so far as one can gather, for the first time that the law was so laid down in 1856. On the other hand it would appear from Lukhiprea Dassee v. Sheosoondari Dassee (1849) 5 S.D.A. 457 referred to by Sir James Colvile, that that was the Hindu law as understood for a long time. In Lalla Kundee hall v. Lalla Kalee Pershad (1874) 22 W.R 307 a surrender was upheld as a family arrangement in spite of a stipulation for maintenance. In Nobo Kishore Sarma Roy v. Hari Nath Sarma Roy I.L.R. (1884) Cal. 1102 the previous authorities appear to have been fully discussed including the case in S. Jadamoney Dabee v. Mookerjee (1856) 1 Boulnois 120. I find no suggestion in the judgment of Garth, C.J., or of Mitter, J., throwing doubt on what was laid down by Colvile, C.J., nor is there any doubt cast on that proposition in the elaborate judgments of Jenkins, C.J. and Mookerjee, J. in Debi Prosad Chowdhury v. Golap Bhagat I.L.R. (1913) Cal. 721 referred to with approval by the Privy Council in Rangasami Goundan v. Nachiappa Goundan I.L.R. (1918) Mad. 523. In this Court in Rangappa Naik v. Kamti Naick I.L.R. (1907) Mad. 366 it was laid down that a provision for maintenance does not vitiate a surrender and though their Lordships of the Privy Council in the recent case have said that they did not approve of 'a good deal of what was said' in that case. I cannot assume that they meant to hold that the High Court's ruling was bad on this particular point. That was also how the law was enunciated in Chinnaswami Pillai v. Appaswami Pillai I.L.R. (1918) Mad. 25 although the learned Judges following the Full Bench of the High Court in Nachiappa Goundan v. Rangaswami Goundan : AIR1915Mad1088 (which was the case in appeal to the Privy Council in Rangasarni Gonndan v. Nachiappa Goundan I.L.R. (1918) Mad. 523. laid down certain other propositions which were disapproved by the Privy Council. I may also mention that sitting with Oldfield, J., I had recently to consider the effect of the recent Privy Council ruling on this point and on the matter being more fully discussed on this occasion I am strengthened in my view that there is nothing in the judgment of the Privy Council to militate against what appears to me to have been always understood as the law namely that a reasonable stipulation for maintenance and residence does not affect the validity of a surrender provided it is a bona fide surrender of the entire interest of the widow in the whole estate and is not a mere device to divide the estate with the next reversioner. That is how I would answer the question under reference.
3. Since I had prepared the above opinion the judgment of the Privy Council in the consolidated appeals from Bengal Nos. 100 of 1916 etc. delivered by Viscount Cave on 30th June 1919 (not yet reported in the Law Reports) has come to my notice. It certainly confirms the view of law I have expressed. In that case in the course of certain proceedings under the Succession Certificate Act instituted by the adopted son of one of three Hindu brothers alleging that they were joint in estate, the widow of one of the brothers also claimed his estate alleging that they had divided an agreement was arrived at by which in consideration of certain property being allotted to her for maintenance during her life she gave up all her rights in favour of the adopted son. Their Lordships held that the agreement which was subsequently acted upon amounted to an effective surrender. It does not appear that the surrender was even attacked on the ground that it was made in consideration of the widow being given a certain portion of the estate for her maintenance during her life; in any case the Privy Council had no hesitation in upholding the surrender in spite of such a provision. They say : ' 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 had 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 document was 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 ekrarnamas, 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 established and the plaintiff's action should have been dismissed on this ground.'
4. The reservation in favour of the widow of a right to maintenance is a common term in surrenders; and it is not necessary to explain or justify it as proposed by Mr. K. Srinivasa Aiyangar for respondent, with reference to any fiction of a revival, when her separate property passes from her, of the right she would have enjoyed, if no such property had ever been in question and the family had been joint. It is a sufficient reason for allowing the validity of a surrender notwithstanding the inclusion of provision for the widow's maintenance that she cannot be supposed to make a surrender so comprehensive as to deprive herself entirely of the means of subsistence. Yet that except in the rare cases in which she has or has means of earning separate income, would be entailed by acceptance of appellant's argument. No doubt the widow has been described in some authorities as operating by the surrender her physicial or civil death. But those, as Sadasiva Aiyar, J., held in Chinnaswami Pillai v. Appaswami Pitted I.L.R. (1918) Mad. 25 are 'loose expressions which can mean only that the reversioner succeeds in such a case as if the widow died at the moment of surrender ' and should not be pressed as embodying the law in all their implications.
5. As the judgment just delivered shows, there is very little authority dealing directly with the matter; but, so far as it goes, it is in respondent's favour. We have moreover been shown no decision, in which the inclusion of a bona fide provision for maintenance was regarded as invalidating a surrender; and the negative inference is strong, since, if the contrary view had been tenable, it would have afforded a clear and immediate ground of decision in the majority of the cases in the reports. The contention that a surrender cannot be valid, unless it is literally of the whole estate and reserves no benefit to the widow whatever, has been supported by reference to the latest comprehensive exposition of the law on the subject, the judgment of the Judicial Committee in Rangaswami Goundan v. Nachiappa Goundan (1918) I.L.R. 42 Mad. 623. (P.C.) and certainly according to it the surrender must be of the whole estate. But it is material that in that case the widow retained or received more than a mere right to maintenance, since she was also allowed possession of certain Mittah lands; and, as the latter fact was a sufficient foundation for the conclusion against the validity of the transaction as a surrender, there is no reason for assuming that the effect of the stipulation for maintenance was considered or influenced the decision. It is indeed clear that the widow's acceptance of some benefit was not regarded as inconsistent with her effacement or the total withdrawal of her estate, which was held essential to the validity of her surrender since reference was made in the course of the judgment to the necessity for the surrender being ' bona fide and not a mere device to divide the estate with the reversioner', requirements which would be meaningless, if the widow's right to receive anything were denied in toto. And this interpretation is confirmed by the fact that in a very recent decision, received since the argument on the present reference, Bhagwant Koer v. Prashad Singh (1919) P.C.A. 100 the Judicial Committee proceeding statedly in conformity with Rangaswami Goundan v. Nachiappa Goundan I.L.R. (1918) M. 528 and reiterating the necessity for a bona fide and total renunciation by the widow of her right, held that such a renunciation was effected by a document, under which she was to hold certain land for life for her maintenance, that being the sole stipulation for her benefit. The surrender, which the law recognises, is, as I understand these decisions and as the language used in the later suggests, a surrender of the estate held by the widow as such; and it will not be the less total owing to a reservation in her favour of a right of maintenance, to which she was not previously entitled as widow, even if that right be secured on part of the property comprised in her widow's estate.
6. It is conceded that the provision for residence must stand or fall with that for maintenance. I. concur with the learned Chief Justice in answering the question referred in the negative.
Seshagiri Aiyar, J.
7. The question for decision may be examined from three stand points. Firstly, with reference to the recent decision of the Judicial Committee in Rangaswami Goundan v. Nachiappa Goundan I.L.R. (1918) M. 523 secondly, with reference to the theory of surrender apart from decided cases; and thirdly with reference to decided cases.
8. Mr. Krishnaswamy Aiyar's attempt was, in the main, directed to showing that the pronouncement of the Judicial Committee leaves Indian Courts no option in the matter. The judgment has been ably commented upon. The Board had before them a case which was not essentially one of surrender. They had mainly to deal with the proposition whether the consent of a reversioner to an alienation was conclusive proof of its binding character. Incidentally they referred to the distinction between surrender and alienation. In dealing with these matters they roughly classified them under three heads; (a) surrender proper; (b) indirect surrender and (c) alienation. As regards alienation they held that the consent of the immediate reversioaer was only presumptive proof of its validity. In this connection they point out that the principle is an offshoot of the theory of surrender which alone is referred to by the Smrithi writers. As regards surrender itself, they say :--' The surrender must be a bona-fide surrender not a device to divide the estate with the reversioner.' As regards indirect surrender they seem inclined to hold that where the widow in possession alienates to a stranger and the consideration wholly passes into the hands of the immediate reversioner the transaction may be regarded as one of surrender.
9. The learned vakil for the appellant relied upon certain expressions in the judgment, for the broad proposition that there should be no element of quid fro quo in effecting the surrender. The expression 'civil death' and ' effacement ' must be taken to have been used figuratively qua the estate surrendered. I am clear that it was not the intention of Lord Dunedin that these words should be understood as suggested in this court. Reading the whole judgment it is apparent that, the noble Lord thought that to make a surrender effectual, it must comply with the following requirements. (1) It must be to the nearest reversioner; (2) there must be no reservation; and (3) it should be done bonafide and not as a device to effect a bargain between the widow and the reversioner. Mr. Krishnaswamy Aiyar wanted to import a fourth condition, namely entire absence of consideration. I do not think there is anything in the judgment to support this suggestion. As I said in the order of Reference, and suggested at the course of hearing, a provision for maintenance does not in the least affect the spiritual character of the surrender. The commonest instance of a bona fide surrender is where a religiously inclined widow seeks relief from the worries of temporal management of her estate and retires to a place of pilgrimage like Benares; she would then surrender the whole of her property to the next reversioner. But she will have to live even in Benares. Any provision made for her maintenance there would not, in the least, derogate from the completeness of the surrender. Therefore, in my opinion, if a transaction is exfacie, in substance, and in intention, a surrender which reserves no portion of the property to the widow, the fact that the surrenderee agreed to provide for the maintenance of the surrenderor should not vitiate the transaction.
10. Since this case was argued the judgment of the Judicial Committee in Bhagwant Koer v. Prashad Singh (1919) P.C.A. 100 from the Calcutta High Court has been circulated to us. That decision makes it clear that a provision for maintenance would not affect the validity of a surrender. In the judgment of the Board the passage quoted by the learned Chief Justice makes it clear that if the provision for maintenance is bona fide and reasonable, the transaction will be upheld.
11. An examination of the texts on which the theory of surrender has been built, leads to the same conclusion. Mr. K. Srinivasa Aiyangar in his very interesting argument drew attention to the fact that excepting Yagnavalkya and Vishnu none of the Smrithi writers recognised the right of a Hindu widow to a share in the joint family property. The two Smrithi writers apparently gave expression to the prevailing sentiment at the time they wrote. When the texts were commented upon, two theories were propounded. Vignaneswara held that the texts should be confined to awarding property only where the husband had become divided from the rest of the family. His view was that the theory of survivorship should not be prejudiced by granting a share to the widow. Jeemutha Vahana did not agree with this interpretation. He held that the share should be allotted whether the family was divided or undivided. At the same time he gave expression to a sentiment which has since assumed large proportions. The unpretentious words in Chapter 11, Section 1, paragraph 59 'if her right ceases or never takes effect the residue of the estate is taken in the same manner as they (reversioners) would have succeeded if the widow's right had never taken effect' have led to all the trouble. As I understand the position, both Vignaneswara and Jeemutha Vahana were trying to placate male opinion against the innovation by Yagnavalkya and Vishnu. Both of them wanted to put limitations upon the texts. Jeemutha Vahana apparently thought that by enabling the widow to give up the estate he would expound the text in a manner not very unacceptable to persons who have been accustomed to the belief that woman have no share in the joint family property. However that may be, there is no doubt that the prevalent idea was that by surrender the widow would gain spiritual benefit, and that for this end she should walk out of the estate as if the property still belonged to the undivided family and as if her husband had never become divided from the rest. As Subramania Aiyar, J. pointed out in Marudamuthu Nadan v. Srinivasa Pillai I.L.R. (1899) M. 128 the principle enunciated by Jeemutha Vahana has been applied to cases governed by Mitakshara. The conclusion I come to is that the theory that by the operation of surrender the widow secures for herself at least as much right as she would have had, had she never taken the property by inheritance is inferable from the language of Jeemutha Vahana. It follows from this that any provision for maintenance would be perfectly legitimate and would not offend the doctrine of surrender. This is the view which underlies the decision of Chief Justcie Colvile in S. Jodamoney Dabee v. S. Mooherjee (1856) 1 Boulnois 120 although Mr. Justice Jackson was of a different opinion. Colvile, C.J. refers to Lukhiprea Dasee v. Sheosoondari Dasse (1849) 5 S.D.A. 457 in support of his view, and this undoubtedly must have been in the mind of Mr. Justice Mitter when he says in Ganga Pershad Kur v. Shumbhoonath Burmun (1874) 22 W.R. 393 that relinquishment brings in the normal rule of succession.
12. Lastly turning to decided cases, it seems to me that the weight of authority is against the contention of Mr. Krishnasawmy Aiyar. In Marudamuthu Nadan v. Srinivasa Pillai I.L.R. (1899) M. 128 it was held that the surrender must be absolute and complete. Sriramulu Naidu v. Andalamal I.L.R. (1849) M. 145 which was very much relied on was really a case of a device by the widow to get advantages for herself and for her dependants in the guise of a surrender. The observations in Muluga Kotayya v. Mudigonda Chandramowli Sastri (1916) 31 M.L.J. 412 that there should be no benefit for the widow except possibly for maintenance is purely obiter and was not a considered pronouncement. On the other hand Mr. Justice Sadasiva Aiyar in Chinnasawmi Pillai v. Appasami Pillay I.L.R. (1918) M. 25 lays down explicity that an obligation to maintain does not vitiate a surrender. One of his reasons for the conclusion is that the surrenderor would have otherwise a right to be maintained. The statement is in accordance with the decision in Raghunath Singh v. Kura Kumari 38 Ind.Cas. 167 but I think there is force in the contention of the learned vakil for the appellant that the surrenderor can have no legal claim against the surrenderee at least in cases of surrender of her husband's self-acquired properties. But this criticism of one of the reasons for the opinion does not affect the main conclusion. In Challa Subbiah Sastri v. Paduri Pattabhiramayya I.L.R. (1907) Mad. 446 an absolute surrender which was followed by a reconveyence was held good. In Appeal No. 162 of 1916, the learned officiating Chief Justice has put the theory of surrender on the ground that the widow by walking out of the estate is practically restoring the property to the joint family. In Pilu v. Babaji I.L.R. (1909) Bom. 165 there was a reservation of the estate which was held to vitiate the surrender. In Nobakishore Sarma Roy v. Hart Nath Sarma Roy I.L.R. (1884) Cal. 1012 although the case was one of alienation and observations relating thereto may be open to exception, having regard to the recent pronouncement of the judicial Committee, Garth, C.J., referred to surrender as if all that is necessary is that there should be completeness and bona fides. In Behari Lal v. Madho Lal Ahir Gayawal I.L.R. (1891) Cal. 236 there was no conveyance of estate at all but only the right of management. It was held by the Judicial Committee in that case that the transaction cannot be supported as a surrender. The observations of Mookerjee, J., in Debi Prosad Chowdhury v. Golap Bhaghat I.L.R. (1913) Cal. 721 are really in favour of the view that a bona fide reservation for maintenance would not affect the validity of a surrender. Therefore the authorities do not lend support to the contention advanced by the learned vakil for the appellant. I agree in the answer given by the learned Officiating Chief Justice.