1. This second appeal is preferred by the plaintiff against the decree and judgment of the learned Subordinate Judge of Erode in A. S. No. & of 1957, in so far as they are against him. The suit was to recover a certain sum of money due under a promissory note Ex. A. 1 dated 16-3-1952, and executed by the first defendant. The second defendant is the daughter of the first defendant and had in her favour a deed of surrender, Ex. B. 1, dated 22-4-1954, and executed by her mother, in respect of certain properties which the first defendant was in possession of as the widow of her husband and certain other properties which belonged to the first defendant as her stridhanam properties. The first defendant denied the execution of the promissory note and also the consideration therefor. The defence of the second defendant was that the suit being on a promissory note, she was not a proper party to the suit and that in any case she could not be made liable for the debt due under the suit promissory note. As against this plea the case for the plaintiff was that the second defendant was in the nature of a universal donee and that, therefore, she would be liable for the debts of the first defendant.
2. Both the lower courts found that the suit promissory note was executed by the first defendant and that it was supported by consideration. The trial Court further found that the second defendant was a universal donee and as such was liable to pay the suit debt to the extent of Ammapalayam lands in her hands, which constituted the stridhana properties of the first defendant. On appeal the learned Subordinate Judge considered that the 2nd defendant was not a universal donee and that, therefore, no decree could be passed against her in the suit. The aggrieved plaintiff has preferred this second appeal.
3. Before me, the learned counsel for the appellant urged that the lower appellate court went wrong in its view that the 2nd defendant is not a universal donee. The ground on which the lower appellate Court held that the second defendant was not a universal donee was this. The properties involved in Ex. B. 1 consisted of the first defendant's widow's estate and of the Ammapalayam lands which were her stridhana properties. Ex. B. 1 purported to be a surrender in favour of the 2nd defendant of the said properties. So far as the surrender of the widow's estate by the first defendant to the second defendant is concerned, it cannot be regarded as a transfer or a conveyance of the widow's estate; it could not therefore be said that there was any gift in favour of the 2nd defendant as regards the widow's estate. In this view the learned Subordinate Judge thought that since there was no gift in favour of the second defendant of the whole of the donor's properties including the widow's estate, Ex. B. 1 did not constitute the second defendant as a universal donee. The learned counsel for the appellant attacks this view of the lower Appellate Court on the ground that it is wrong to say that the first defendant was the owner of those properties which she was in possession of in her capacity as the, widow of her husband. Ho contends that the property inherited by the first defendant from her husband cannot be said to be property which she owns and that therefore, such property would not come within the scope of the words 'the donor's whole property' in Section 128 of the Transfer of Property Act If this contention is accepted, it would of course follow that the second defendant is a universal donee, inasmuch as there was a gift by the first defendant of her entire stridhana properties, viz. Ammapalayam lands in favour of the second defendant. But it seems to me that the contention of the learned counsel that the widow is not the owner of the properties which she inherited from her husband is unsound.
4. It is now well settled that a widow or other limited heir is not a tenant-for-life, but is the owner of the property inherited by her, subject to certain restrictions on alienation, and subject to its devolving upon the next heir of the last full owner upon her death. That was held in Bijoy Gopal v. Krishna Mahishi Debi, I.L.R. Cal 329 : 34 Ind App 87 . As stated by the Privy Council, in another case, the widow's right in her husband's estate is in the nature of a right to property and that her position is that of owner, though her powers in respect of the property may be limited. The widow, therefore, is undoubtedly the owner of the property which she has inherited from her husband. But only the ownership is subject to the limitations imposed by her personal law. The widow is entitled to alienate the properties of her husband in her hands by way of sale or mortgage for binding purposes. This could only be on the basis that she owns the properly, though subject to certain limitations under the personal law. The learned counsel for the appellant is, therefore, not right in his contention that the widow cannot be considered as the owner of the property which she inherited from her husband.
5. Where a person owns two sets of properties, in one of which he has got only a limited interest, and in the other he has an absolute interest, & when he makes a gift of only one of them involving a transfer thereof to the donee, obviously the donee cannot be considered to be a universal donee so as to make him liable under Section 128 of the Transfer of Property Act for the debts due from the donor,
6. It is also equally settled that a surrender by a widow of her widow's estate does not involve any transfer of property. It is unnecessary to cite decisions for this proposition. In the case of surrender by a widow of her interest in her husband's properties, what really happens is that by the surrender she merely effaces herself with the consequence that the succession to her husband's property is accelerated. By reason of the surrender, she suffers a civil death as it were with the result that the reversioner at once becomes entitled to the property as the heir of her husband. In that process there is no transfer of property involved any more than in a case of succession to property. In this case as the first defendant owned not only the widow's estate but also her stridhana properties and Ex.B. 1 could only be regarded as a transfer of the stridhana properties and not of the widow's estate, the second defendant cannot be considered to be a universal donee. Ex. B. 1 is a transfer of only the stridhana property and the 2nd defendant as the heir to her late father succeeded to the properties covered by the widow's estate by reason of the surrender by the first defendant. The gift, therefore, did not consist of the donor's whole property within the meaning of Section 128 of the Transfer of Property Act. If the second defendant is not a universal donee, as has been held by the lower appellate Court with which I agree, no decree can be passed against her in this suit. In this view the second appeal must fail.
7. But the learned counsel for the appellant next contended that under Section 6 of Madras Act V of 1954 and Section 7 of Madras Act I of 1955, every transfer of immovable property made by a debtor entitled to the benefit of Section 3 or Section 4 of the Act V of 1954, after 1st October, 1953, and before the complete discharge of his debt, shall be presumed in any suit or other proceeding with res7pect to such transfer, until the contrary is proved, to have been made with intent to defeat or delay the creditors of the transferor, and that in view of these provisions the plaintiff is entitled to ignore Ex. B. 1 and proceed against the properties covered by it. This point was specifically taken in the plaint and also traversed in the written statements of the defendants. But no specific issue on the point appears to have been settled by the trial court. Nevertheless, while considering issue 3, viz., whether the second defendant is a universal donee of the first defendant, the trial court observed in passing that 'in respect of the Ammapalayam lands, if it is found to be the stridhana property of the first defendant, it will fall under the mischief of Madras Act I of 1955.' The trial Court proceeded to say that there was no need for it to consider the question in more detail since the second defendant was found to be a universal donee of the first defendant, and, therefore, she was bound to discharge the debts incurred by the first defendant. The Lower Appellate Court did not, however, deal with this point. It does not appear that any evidence was let in by the defendants to rebut the presumption contained in Section 6 and Section 7 of Madras Act V of 1954 and Act I of 1955 respectively. The question is whether at this stage it is necessary to send back the matter to the trial court for giving an opportunity to the parties to adduce further evidence and deciding the contention based on the above statutory provisions. It seems to me that in the circumstances of this case this course is unnecessary. The presumption under Section 7 of Madras Act I of 1955 will have to be noticed in any suit or other proceeding with respect to the property in question. Whether the present one is such a suit need not also be decided here at this stage. But inasmuch as the point has been raised in the pleadings and no decision on its merits has been arrived at by the lower courts, I think the best course is to leave the point at large and allow the plaintiff to raise and have it decided, if necessary, in proceedings in execution of the decree. It shall not be taken that the point has been decided in the suit but will be left Open for decision in such execution proceedings.
8. Subject to the above observations, the second appeal fails and is dismissed but in the circumstances there will be no order as to costs.
9. There is a Memorandum of cross-objections filed by the first defendant. In view of the findings of the lower courts that she executed the promissory note and that it is supported by considerations, there are no merits in the Memorandum of cross objections. It is dismissed but with no costs. No leave.