1. The plaintiffs are the appellants. They sued for possession of certain properties as reversioners to the estate of one Gangaraju whose widow Sitamma died in March 1924. The widow had by a registered document (Ex. 1), dated 30th October 1906, surrendered the properties to her pre-deceased daughter's son, one Venkatarayudu (or Venkanna). This Venkatarayudu also happened to predecease the widow and the plaintiffs have thus become the actual reversionary heirs to the estate. Defendant 1 is the widow of Venkatasayudu and she relied on the deed of surrender as a defence to the claim of the plaintiffs as reversioners. The validity of this deed of surrender was attacked before the Court of first instance on three grounds : (vide para. 14 of the 1st Court's judgment) viz. (1) that it was not a bona fide document, (2) that it was not a complete surrender of all the properties inherited by her from her husband and (3) that Venkanna was a minor on the date of the surrender and did not accept it.
2. Both the Courts below have overruled the first objection and it has not been pressed before me. They overruled the third ground also and even that has not been Seriously pressed before me, because, apart from any doubt as to whether Venkanna was or was not a minor at that time, there is no rule which prevents a surrender being made in favour of a minor reversioner, and as pointed out by the lower appellate Court, there is nothing particularly onerous about the surrender deed by reason of which its validity may remain in suspense till the minor attains age. It merely reproduces the legal obligation which the daughter's son would be under, even if he succeeds as heir, to pay off the debts, if any, of Gangaraju. Mr. Raghava Rao's main argument was therefore directed to ground No. 2 of the objections taken before the first Court. The discussion in paras. 16, 17 and 18 of the first Court's judgment will show that there were several defects in the scheduled Ex. 1, but both the Courts have found that, notwithstanding these defects, the daughter's son was put in possession of all the properties that were actually in the enjoyment of the widow. They have also accepted the reason given on behalf of the defendant for including Survey No. 260/3-A instead of No. 345 in the surrender deed, notwithstanding the exchange which had taken place during Gangaraju's lifetime. It therefore remains only to deal with the argument advanced before the lower appellate Court for the first time and repeated here, that the widow had made certain alienations and this circumstance made her incompetent to surrender the estate to the next reversioner.
3. With reference to surrenders made by widows after they have alienated portions of the husband's estate questions have been raised in three ways : (1) it has sometimes been contended that as a result of surrender the surrenderee could recover the alienated property even during the lifetime of the widow if the alienation was not binding on the estate. The balance of authority is against this view though so recently as in Prafulla-Kamini Roy v. Bhawani Nath Roy 1926 52 Cal 1018 there has been a difference of opinion in the Calcutta High Court; (2) another line of argument has been that unless the surrenderee is also given a right to impeach the alienation by including that property in some way in the surrender arrangement, the surrender will be invalid. In the very nature of things this consideration can apply only to alienations which are or which could be shown to be invalid and not binding upon the estate. In a case in Krishna Varamma v. Hanumantha Rao 1933 MWN 1010 the learned Judges (Pandalai and Curgenven, JJ.) would appear not prepared to accept even this contention independently of any question whether the alienation was valid or invalid. They say:
When it is said that the surrender must be of the entire property, it means the entire property then in the possession and enjoyment or control of the family.
4. It is unnecessary for the purposes of this case to express any opinion upon this line of argument. It may be urged in its favour that, if in some way the right to impeach the invalid alienation does not pass to the surrenderee, there may result the anomaly that the surrenderd properties will go to the surrenderee and the right to impeach the invalid alienation may go to the actual reversioner after the widow's death. A possible answer to this is that by the mere fact of up-holding the surrender the reversion is wholly cut off, so that the surrenderee will, by implication of law, also get the right to impeach the alienation after the widow's death. I prefer to leave this line of argument there.
5. A third position suggested by the decision in Vijiaraghavachariar v. Ramanujachariar 1929 55 MLJ 859 and the one pressed before me by Mr. Raghava Rao is that after making the alienation the widow becomes incompetent to make a surrender because she could not in that situation put the surrenderee in possession of the entire estate of her husband. I must point out that in Vijiaraghavachariar v. Ramanujachariar 1929 55 MLJ 859 the learned Judges refer to the fact that one of the alienations by the widow had been found by a Court of law invalid as against the reversioner, even before the surrender was made. Similarly, in the case in Sakharam Bala v. Thama Bala 1928 51 Bom 1019 relied on by the learned Judges, there had been an earlier gift deed which prima facie will be inoperative after the widow's lifetime. If I may follow the mathematical way of stating the thing adopted by Sadasiva, Ayyar J., in Chidambaramma v. Hussainamma 1916 39 Mad 565 wherever there is a voidable alienation of her husband's estate by a Hindu widow the legal estate vested in her may be said to become divided into two estates : (1) the alienated estate enjoyed by the purchaser during her lifetime and (2) the reversionary estate to be enjoyed after her lifetime. So far as the latter interest is concerned there is no question of the widow reserving it to herself, but so far as the former interest is concerned a Court of law may be justified in refusing to give effect to the surrender when the widow has converted a portion of her interest in her husband's estate into its money value and retains the benefit thereof. Mr. Raghava Rao, however, relies upon the language used by the learned Judges in Vijiaraghavachariar v. Ramanujachariar 1929 55 MLJ 859 as supporting the broad contention that, independently of any question of the validity or otherwise of the alienation as against the reversion, the moment a Hindu widow alienates any portion of her husband's estate she becomes thereafter incapable of exercising the right of surrender.
6. I am unable to agree that either the decision relied on or anything in the observations of the Privy Council dealing with the doctrine of surrender justifies this extreme contention. What their Lordships of the Privy Council emphasise in insisting upon the widow's self-effacement, the surrender being of the entirety of the estate, is that there should be nothing like an attempt to reserve a portion of the estate for herself, either directly or indirectly. A widow could easily continue to retain a benefit for herself by going through a form of alienation of a portion of the property and it is in that sense that I suggested already that where the alienation is not for purposes binding on the estate it may amount to reservation of a benefit to the widow within the intent of the Privy Council cases. But where certain portions of the property which the widow inherited from her husband have ceased to be part of the husband's estate altogether, having been alienated for a justifiable purpose, as for instance, the discharge of the husband's debts, there is no question of the widow retaining any benefit for herself. I put it to Mr. Raghava Rao whether if the creditor brought a suit for recovery of her husband's debt and sold away a portion of her husband's estate in execution, he would be prepared to contend that the widow thereafter could not surrender the remainder of the estate. Though he would not commit himself to any answer, he was not prepared to go so far and preferred to draw a distinction between the voluntary acts of the widow and involuntary alienations. But in the attempt to understand the principle laid down in the Privy Council cases, I do not think that a distinction between voluntary and involuntary alienations is the true test.
7. 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. Judging the present case in the light of the above test, there is nothing to suggest that the alienations said to have been made by the widow were made for purposes not binding on the estate. There is a slight verbal error in the statement in para. 4 of the lower appellate Court's judgment, ' that admittedly certain properties were sold by the widow for no necessity '. What was admitted was that certain properties had been sold by the widow. This is spoken to by D. W. 1 himself in his chief examination. He there states that the sales were to plaintiff 1 and to plaintiff 2 or to a Chetty and that the sales were for the discharge of her husband's debts. Nothing was put to him in cross-examination to suggest that the sales were not for the discharge of the husband's debts. The plaintiff 1 recalled and examined plaintiff 2 and some other witnesses after the defence evidence had been closed. Even then no attempt was made to suggest that the statement as to the sales having been made for the discharge of the husband's debts was not true. In these circumstances the learned District Judge was justified in holding that the surrender was not invalid by reason' either of the non-inclusion of the alienated property or by reason of any incapacity of the widow to make a surrender after making alienations for binding purposes. This second appeal therefore fails and it is dismissed with costs.