1. This is an appeal from the judgment of Mr. Justice Varadachariar in Second Appeal No. 338 of 1931. The facts have been clearly set out in the judgments of the lower Courts and in the judgment of our learned brother and need not be repeated. Mr. Ch. Raghava Rao for the appellants who were the plaintiffs in the suit has contended again before us that the surrender by Sitamma in favour of her daughter's son now deceased who was the husband of the first defendant was invalid. This is put upon two grounds. In the first place, it is said that the surrender was only partial because the deed of surrender executed by Sitamma, Ex. 1, did not contain Survey No. 345, an item of land got in exchange by Gangaraju himself before he died. Ex. 1 contains Survey No. 260/3-A which was the survey number given up by Gangaraju when he obtained Survey No. 345 in exchange. Since one item of the estate of the husband was not surrendered by the widow, it is contended that the surrender as a whole was invalid. The other ground is that admittedly, the widow Sitamma had made alienations by way of sale of other portions of the estate of her husband which came to her after his death and that she thereby became incompetent to make any surrender in favour of the nearest reversioner. Our learned brother, Varadachariar, J., found against the appellants' contention and hence this Letters Patent Appeal preferred with the leave of the learned Judge.
2. With regard to Survey No. 345, our learned brother made a slight slip when he stated that both the lower Courts had accepted the reason given on behalf of the defendants for including in the surrender deed Survey No. 260/3-A instead of Survey No. 345. The learned District Judge said that the explanation given on behalf of the defendants might be true or might not. He did not expressly accept the explanation. We agree however with Mr. Lakshmanna for the respondents that this slight mistake in the judgment of our learned brother is not a matter of any importance. Ex. 1 shows that the widow Sitamma meant to surrender in favour of her daughter's son the whole of her husband's estate remaining in her control. There is evidence that Survey No. 345 also was handed over to her daughter's son and that he remained in enjoyment of it thereafter. We see no reason to suppose that this transfer of possession to Sitammal's daughter's son was not made in pursuance of the widow's intention to surrender her husband's estate. This is a point of fact, and since we think that it is clear beyond the possibility of any doubt, we cannot accept the suggestion made on behalf of the appellants that this question should be remanded to the lower appellate Court for a finding.
3. With regard to the other contention that the widow became incompetent to make a surrender because she had already alienated certain portions of the estate of her husband in her hands, we cannot accept it. Our learned brother has dealt very fully with the matter and we agree with his reasoning-and with his conclusion. The only case which tends to support the position taken by Mr. Raghava Rao in this appeal is that of Vijiaraghavachariar v. Ramanujachariar : AIR1929Mad37 In that decision, Phillips and Odgers, JJ., referred to the decision of the Privy Council in Rangaswami Goundan v. Nachiappa Goundan (1918) 36 M.L.J. 493 : L.R. 46 IndAp 72 : I.L.R. 42 Mad. 523 and proceeded to apply the principle. They said:
To apply this principle it is clear that when the widow purported to surrender her estate she did not and could not surrender the whole of her husband's estate so as to efface herself entirely. The previous alienations were her own act and she could not get rid of them. To that extent she was unable to surrender the whole of the estate and therefore the surrender which she purported to make is invalid.
4. This they said was the view taken in Sakharam Bala v. Thama I.L.R. (1927) 51 Bom. 1019. It is necessary however to point out, as our learned brother Varadachariar, J., did, that in the case of Vijiaraghavachariar v. Ramanujachariar : AIR1929Mad37 , it was admitted that at any rate one of the alienations made by the widow before she purported to surrender her husband's estate to the nearest reversioner had been found to be invalid, and in the Bombay case, the widow after first purporting to make a gift of practically the whole of her husband's estate proceeded thereafter to purport to surrender the whole of it to the nearest reversioner including the property already gifted away by her. It is obvious that those facts are very dissimilar from the facts in this case. Here it has never been contended that the alienations made by Sitamma were invalid and not binding upon the reversioner. Mr. Raghava Rao suggests indeed that this point also ought to be referred to the lower Courts for a finding, but we are clear that there is no necessity to do that. There is evidence on behalf of the defendants that the alienations made by Sitamma were made in order to discharge her husband's debts. This was not contradicted and the witnesses who gave it were not cross-examined on the point. We therefore hold that it is a question of fact which is concluded. Those alienations being valid, we think our learned brother Varadachariar, J., was undoubtedly right in holding that those items of property ceased to be part of the estate of Sitamma's husband in her hands. That being so, we fail to see why those alienations should render her incompetent to make a surrender of the whole of her interest in what remained of her husband's estate. As our learned brother put it:
Wherever any portion of what was once the estate of the husband has ceased legally to belong to it, by reason of an alienation binding upon the estate the conception of the entirety of the estate to be surrendered must reasonably be applied only to the existing estate.
5. We do net think that there is anything in the observations of their Lordships of the Privy Council to support the view that where an alienation by a widow has been made for purposes binding upon the estate of the reversioners the widow becomes incompetent to surrender the whole of her interest in what remains. Their Lordships, as our learned brother pointed out, have laid emphasis upon the necessity for the surrender of the whole interest of the widow. Particularly, they lay stress upon the necessity for seeing that the widow is not carrying out a mere devise to divide the estate between herself and the reversioner and is not reserving for herself any interest in the estate. These requisites are completely carried out in the case before us. Sitamma undoubtedly surrendered everything, retaining nothing for herself. For these reasons, this appeal must be dismissed with costs.