1. The only question argued in this appeal relates to the validity of the surrender made by Marayee by .v document dated 9-9-1931, in favour of her son-in-law and the sister's son of her husband. There were also other questions raised before and decided by the trial Judge, but they are not reiterated in this Court. The suit properties admittedly belonged to one Muthu alias Pacha Goundern. He died in 1903 leaving his widow Marayee. She also died on 20-5-1954. Plaintiffs 1 and 2 are Mutnu's paternal grandfather's sons, who were all divided and claim to be the reversion is to his estate. Nataraja Gounden the husband of the first defendant, who is his third wife, was doubly related to Muthu, both as his sister's son as well as his son-in-law. Nataraja Goundem died in 1948, leaving the first defendant, his first two wives, one of them the daughter of Muthu, having predeceased him. Sinnu Goundan, the second plaintiff, died pending the suit and his legal representatives, plaintiffs 3 and 4, were brought on record. On the death of Marayee, the first two plaintiffs, as reversioners to the estate of Muthu, claimed the suit properties on the ground that the surrender made by Marayee was invalid for several reasons. Most of the other defendants are alienees either from Nataraja Gounden or his widow, the: first defendant. The Court below found that the surrender was valid and in that view dismissed the suit.
2. Sri Mohan Kumaramangalam for the appellants confined his arguments to an attack on the validity of the surrender deed on two grounds. One of them is that the fact that under the surrender deed a charge was created securing payment to Marayee of an annuity of a sum of Rs. 500, towards her maintenance showed that there was no complete divestment of the entire estate of her husband. The second ground is that having regard to the bulk of the properties and the income therefrom a provision in the surrender deed for an annuity to Marayee at Rs. 500 is unreasonable and that this betrayed an intention on her part to divide the properties substantially ;n, that form between herself mi the surrenderee. Learned counsel made it clear that he did not question the propriety of the judgment of the trial judge on any other ground. It may be mentioned that in the plaint no precise case was put forward as to the reasonableness of the provision for maintenance. The plaint merely asserted that almost the entire income from the properties was made available to Marayee for the rest of her life and the surrender made by her was, therefore, not of the entire estate. Nevertheless we have allowed the counsel to argue on the question of reasonableness and we shall consider this question presently.
3. The surrender deed starts with a recital how the surrenderee was related to Marayee and how due to her inability to manage the properties belonging to her husband, he was assisting her in the management and why she desired to hand over the properties even then to the next reversianer so that she could worship God peacefully till her lifetime. The deed then proceeds to say that Marayee surrendered all heir rights in the entire properties belonging to her husband in favour of Nataraja Goundan as, the nearest reversioner and then and there handed over possession thereof to him. The deed makes the intention of Marayee further clear by the following words:
'As I have made absolute surrender of the entire properties belonging to my husband, you yourself shall hold and enjoy the said properties with all the rights independently from this day. I shall have no right in the said properties.'
Then follows the provision providing for her maintenance. It says that the surrenderee shall pay Marayee during her lifetime a sum of Rs. 500 per year towards her maintenance before the specified date and that to default of such payment she shall have the right to collect the sum from and out of the properties surrendered with interest. The deed further provides that the properties mentioned in the schedule thereto shall be charged with the amount of maintenance payable to her.
4. A Hindu widow, who has succeeded to the estate of her husband, is entitled to efface herself and surrender the entire estate, thereby accelerating succession to her husband. Such a surrender should be in favour of the nearest reversioner to the estate of her husband. It is also necessary for the surrender to be valid that it is of the entirety of the husband's estate, and bona fide without any idea of dividing by means of the surrender the estate in any form between the surrendering widow' and the surrenderee. This is well settled by a number of decided cases, including particularly Rangaswami Gounden v. Nachiappa Goundan, 46 Ind App. 72 : AIR 1918 PC 196, Mt. Bhagwant Koer v. Dhannukdhari Prasad Singh, 46 Ind App 259 : AIR 1919 PC 75, Sureshwar Misser v. Maheshrani Misrain, 47 Ind App 233 : AIR 1921 PC 107, Angamuthu v. Varatharajulu, AIR 1920 Mad 627 : ILR 42 Mad 854 and V. Kondamma v. V. Seshamma, AIR 1957 AP 156. It is also equally recognised by courts including the Privy Council to the requisite that the entire estate should be surrendered, there is an exception, namely, that a provision for maintenance or setting apart a part of the husband's properties for that purpose does not necessarily derogate from the completeness of the surrender. As authority for this proposition reference may be made to 46 Ind App 259 : AIR 1919 PO 75, 47 Ind App 233 : AIR 1921 PC 107, AIR 1920 Mad 627 : ILR 42 Mad 854 and AIR 1957 AP 156.
5. Learned counsel for the appellants did not and could not question the correctness of these principles of law governing surrenders by Hindu widows of their husbands' estates. But his argument is that a surrendor in terms here in question namely creating a charge over the entire properties of her husband for payment of the annuity to the widow, Marayee, is not covered by the exception we referred to and clearly shows that she did not surrender the entirety of her husband's estate. No direct authority bearing on the point has been brought to our notice by either side. We have, therefore, to decide the question in the light of those cases, which recognised the exception in favour of a maintenance provision or setting apart a part of the husband's properties for that purpose, and of the principles which may be gathered from them. There is very little textual authority governing the Hindu law of surrender and the law relating to it is largely evolved by judges. The crux of surrender lies in a .fiction that the widow effaces herself voluntarily, thereby suffering, so to speak, a civil death, with the result that succession to the estate of her husband is accelerated by the process. The question, therefore, was naturally asked that if the effect of surrender was that, how could there be a provision for maintenance or a part of the husband's properties be set apart for that purpose. In AIR 1920 Mad 627 : ILR 42 Mad 854, Seshagiri Aiyar J. Provided the answer in these words:
'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 inert surrender the whole of her property to the next reversion; 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 ex facie, in substance and in intention a surrender which reserves no portion of me property to the widow, the fact that the surrenderee agreed to provide for the maintenance of the surrenderer should not vitiate the transaction.'
6. I he other two Judges, who were Parties to the decision in that case, gave no particular basis to the exception, but unmistakably recognised the exception. In AIR 1951 AP 156 Viswanatha Sastri J. speaking on penair of a Full Bench of the Andhra High Court gave the basis for the exception as custom. The learned Judge observed:
'There has been some looseness in the discussions as to the legal basis of such an arrangement but if, as appears to be the case, the reservation of a right of maintenance in favour of the surrendering widow is a common term in surrenders and has been uniformly enforced, it is not necessary to explain or justify it with reference to any fiction of a revival of the right of maintenance which lay dormant so long as the widow was in possession of tier husband estate as his heir. It is sufficient to hold that custom sanctions such arrangements.'
The learned Judge went on:
'Inasmuch as such arrangements are against the strict and logical view of the nature and effect of a surrender, the custom has to be confined within the limits recognised by precedents.'
Relying on the last observation' of Viswanatha Sastri J. learned counsel for the appellants contends that what ever justification there may be for the exception in the shape of a provision for maintenance including setting apart a part of the husband's properties for that purpose, the exception should not be extended to cover a charge, especifially over the entirety of the husband's properties for maintenance to the surrenderor. He says that such a charge, which operates as a clog over the whole of the estate, does in effect reserve to the surrenderor a substantial part of that estate in herself, so that the surrender can hardly be described as of the whole of the husband's estate. The point, no doubt, is of some difficulty and nicety, but upon a careful consideration, we are of the opinion that we cannot accept this contention. Once it is recognised that a provision for maintenance or setting apart a portion of the husband's properties for the surrenderor to enjoy for maintenance can be made, we do not see any reason why on principle a charge created, be it over the entirety of the husband's properties for securing due payment of the maintenance, should make a difference. In our view, whether a surrender is of the entirety of the husband's properties is one of intention which has to be gathered from tile surrender deed itself. We have before us the surrender deed which is unmistakable in its terms and as to its Intention. The surrenderor made it quite explicit by using clear words that she intended to divert herself of the entirety of her husband's estate. There is no indication in the deed of any intention to reserve any part of her husband, estate to herself and give up only the rest of the properties to the surrenderee. In our judgment the exception we have referred to should on principle be held to cover the case of a charge as in this case. Not withstanding the charge, we hold, agreeing with the trial Court, that the surrender by Marayee was of the whole estate of her husband.
7. The second ground of attack on the validity of the surrender is as we said, relates to the reasonableness of the maintenance. There is no question that, if the provision for maintenance is held to be unreasonable, the surrender cannot stand. To clear the ground, it may also be mentioned that the bona fides of the surrenderor in surrendering the properties are not in, question at least before us. But what is stated is that the amount of maintenance compared to the extent of the properties and the income therefrom is so large that it in effect operates, undo' cover of a provision for maintenance as a division of the properties between the surrenderor and the surrenderee, so than looked at from the point of view the surrender is not bona fide. Since unfortunately the point in that form had not been taken in the plaint, no precise issue was raised and apparently for that reason no evidence had been directed at the trial as to the precise extent of the lands owned by Muthu and the income therefrom. But such evidence as there is on record shows that the extent of the land is somewhere between 77 and 86 acres, of which 6 acres 94 cents are garden lands and the rest dry lands. The properties of the husband also included a house. About 50 acres of land would appear to have been leased out on a rent of Rs. 1000 per annum. Four acres, it is not clear whether they are dry or garden, were under the personal cultivation by the widow. The income, according to the evidence on the side of the plaintiff, would be about Rs. 1200 including the rental income; but, according to the trend of cross-examination of some of the defendants, would be about Rs. 2500. We think that the income from the properties should be somewhere between the two figures and we are inclined to estimate it at Rs. 2000 per annum. The provision for maintenance at Rs. 500 per annum works out at one-fourth of the annual income of the properties.
8. I he question them is how is the point of reasonableness to be approached; is it from the stand-point of the minimum requirements of subsistence or of the quantum of income from the estate of the surrenderor's husband. In our opinion, whether it is the one or the other will depend upon the circumstances. Where the income is not large, the first test will be appropriate. That appears to have been the approach made by the Bombay High 'Court in Krishna Mhatarba v. Baban Rambhau, : AIR1945Bom24 , with which we are in respectful agreement. There, the income from the properties of the surrenderor's Husband was found to be Rs. 100, but the surrender made provision for payment to the surrenderor of Rs. 75 as her maintenance. The learned Judges considered this provision as reasonable and upheld the validity of the surrender. In the circumstances, therefore, we are of the view that the provision in favour of Marayee for payment of Rs. 500 as her maintenance is reasonable. We are aware that the provision was made as early as 1931, and that maintenance provided, having regard to the then rupee value, was Liberal But that does not mean, in all the circumstances of the case, that it was not reasonable.
9. The result is the appeal fails and is dismissed but with no costs.
10. C.R.P. 304 of 1961: The trial court dismissed the suit with one set of costs. There were several detainments and it is stated that the main argument and the burden or the trial was undertaken By the first defendant ,who is the petitioner in this Court. On that ground, it is and that a separate set of costs must have been granted to her. We do not agree. She had a summon case along with the alienees, who were defendants, and it the other defendants did not address any separate argument, it was because no repetition was caned for. We see no reason to interfere with the order made by the court below. the revision petition is dismissed but with no costs.