1. Plaintiffs--apppellants sued to recover 9 items of property as the reversionary heirs of their maternal grandfather, one Avadhanulu, the original owner, on the death of the last life-estate holder Venkamma in September 1902. Avadhanalu died long ago leaving a widow and two daughters Buchamma, plaintiff's mother and Venkamma her sister. The widow who had the first life estate died in 1887. The properties had all been alienated after the death of the widow and during the lifetime of the daughters by the first defendant, the father of the plaintiffs, who acted as their guardian in doing so, Plaintiffs claimed that as these alienations were made before the properties had become theirs and were without necessity and authority, they were not binding on them.
2. Defendants other than the first pleaded, that the widow had with the consent of her two daughters surrendered the whole of her estate in favour of the first plaintiff and that the alienations by the father subsequently were partly for necessary purposes and partly for the benefit of the minors and were binding on them, and that their suit was barred by limitation under Article 44 of Sch. II of the Limitation Act. One of the alienations was a gift, and the donee pleaded that the property had already been gifted to her by Avadhanulu himself and that the deed of gift executed by the 1st defendant as guardian was only in recognition of the previous gift.
3. The Lower Courts found all the allegations of these defendants proved except that the subordinate Judge has not given a finding on the previous gift alleged: and they dismissed the suit.
4. Plaintiffs appealed to us, and contended first that the finding in favour of the surrender was not correct, because there was no surrender in fact, and if there was, it was not vaild in law. The surrender of the widow with the consent of the daughters is found as a fact by the Lower Court on the evidence in the case, and we must accept it in second appeal. Though it is true that there is no direct proof of any act of the widow from which the surrender could be inferred, there is other evidence for it and it is not possible to say that the finding is based on no legal evidence.
5. The validity of the surrender is attacked on two grounds, viz. (1) that the surrender was not of the whole estate and was not in favour of the nearest reversioner and (2) that it would only be made by a registered instrument and there was no such instrument in the present case. The conditions required for a valid surrender have been stated recently by this court on a consideration of the various authorities on this point in the case of Mulugu Kottayya v. Mudigondachandra Mowli Sastri : (1916)31MLJ406 . According to that case the surrender must be of the entire interest of the female holder who surrenders, and must be to the next reversioner, but it recognises that with the consent of the intervening life-estate-holders, if any, the surrender may be to the next male reversioner. The surrender may then be looked upon as a joint surrender by the widow and the other females. In this case the finding is that the two daughters consented to the surrender. There is no reason therefore to invalidate the surrender to the first plaintiff on the ground that his mother and her sister had a right to a life estate after the widow's death and before his reversion fell in.
6. In 1879 the widow had executed a deed of gift Ex. 2(A), by which she gave two items from her husband'd estate to her daughter Venkamma to be enjoyed by her for her lifetime in consideration of her past and future protection of her mother. It was argued that as the widow had parted with a fraction of her inheritance before the surrender, the surrender not being of the whole estate was invalid. The rule that the widow should surrender the whole estate means that she should reserve nothing for herself. She should surrender all her rights at the time of the surrender, and that was done in this case. It is not necessary to consider the effect of the surrender on Ex. 2(A); it may cease to have effect as a gift any longer. But suppose the widow had made a sale of a part of the estate for a purpose binding on the reversioners, that will not be a reason why she should not validly surrender the whole of the remaining estate. In the case of Bam Naresh Lal v. Sadhu Saran Lal (1915) 28 I.C. 585 a portion of the estate was given to certain parties and the balance was surrendered by the widow to the next reversioners and that surrender was upheld. The surrender in the present case therefore cannot be invalidated on this ground either.
7. The last objection taken was that the surrender required a registered instrument to effect it, as it was a transfer of immoveable property, viz., the widow's life estate, and that in the present case it was of a value of over Es. 100. Reliance was placed for this argument on the case in Bettireddi v. Bettireddi Tataya (1916) 84 I.C. 748. The appellants' argument is that the surrender was in effect a sale of property under Section 54 of the Transfer of Property Act or a gift under Section 122. It seems to me that this argument ignores the nature of surrender altogether. A surrender is not a conveyance of any rights by the widow to a reversioner but only an extinguishment of her rights, so that the rights of the reversioner under the Hindu law vest at once. The position is well explained in the judgment of Srinivasa Aiyangar, J., in the case already quoted in Mulugu v. Kotayya Mudvigondachandra Mouli Saitri : (1916)31MLJ406 . The reversioner gets the estate in his own right, and not because anything is conveyed to him by the widow, her surrender being tantamount to her civil death. His rights arise by the operation of the Hindu law. No rule of law is pointed out which requires a registered instrument for the extinction of the widow's rights. If there is a written instrument, it will no doubt require to be registered under Section 17 Clause 1(b) of the Registration Act. But where there is none, the surrender does not seem to become invalid thereby. In the case cited in Bettireddi v. Bettireddi Tataya (1916) 34 I.C. 748 their Lordships found that the transaction there amounted to a transfer of the widow's estate for a price paid of over Us. 100, and obviously that required a registered instrument as for a sale. The present is not a case of that nature but one of pure surrender or extinguishment of rights.
8. The surrender being upheld, it follows that when the first defendant as guardian of plaintiffs purported to alienate the properties in suit, they belonged to the first plaintiff. The first defendant as the father of the plaintiffs was their proper guardian during their minority.
9. The plaintiffs are therefore not entitled to succeed without setting aside the alienations by him : and following the ruling of this court in Ranga Reddi v. Narayana Reddi I.L.R. (1906) M. 423 and Madugula Latchayya v. Pally Mukkalinga 17 M.L.J 220 their suit must be held to be barred under Article 44 of the Limitation Act.
10. Plaintiff's suit also fails on the ground that the sales were for necessary purposes and for their benefit. This finding has not been contested before us. As regards the alienation under Ex, 4, it was found by the Munsif that it was only a recognition of the gift by Avadhanalu himself and that it was not open to plaintiffs to dispute it. It is true the Subordinate Judge has not given a finding on this point, but it is unnecessary to call for one as the suit fails on the ground of limitation as well.
11. A somewhat difficult question was argued before us, that even if the surrender was not established and in consequence plaintiffs had no title to the properties at the time of their alienation, nevertheless the sales would take effect when the reversion fell in and the plaintiffs got title, on the principle embodied in Section 43 of the Transfer of Property Act. There seems to be considerable difficulty in applying that principle in the case by reason of the prohibition contained in Section 6(a) of that Act against the transfers of mere expectancies, but in the view taken above it is not necessary to decide the point.
12. The second appeal fails and is dismissed with costs.
13. I concur.