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Chukkapalli Venkateswarlu Vs. Kanyadhara Challaiya and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily;Property
CourtChennai High Court
Decided On
Case NumberAppeal No. 300 of 1948
Judge
Reported inAIR1953Mad551; (1953)IMLJ167
ActsHindu Law
AppellantChukkapalli Venkateswarlu
RespondentKanyadhara Challaiya and ors.
Appellant AdvocateK. Krishnaswami Iyengar and ;N.C. Raghavachariar, Advs.
Respondent AdvocateK. Kotayya and ;Y.G. Krishnamurthy, Advs.
DispositionAppeal dismissed
Cases ReferredRangappa Naik v. Kamti Naik
Excerpt:
family - right of adopted son - hindu law - owner of property died living behind widow - widow surrendered property in favour of defendant on account of receiving money from defendant on monthly basis - widow later adopted plaintiff - plaintiff claimed share in property - surrender appears to be conditional and valid - plaintiff not entitled to share in property. - - learned counsel addressed arguments on the first of these questions, since if the finding of the lower court is upheld by us, it would be unnecessary to decide as to the validity of the adoption since the suit being one for possession has to fail. though there are certain featuresthat can be gathered from the documentary and the oral evidence which would throw suspicion as to whether the transactions were not the result.....krishnaswami nayudu, j.1. the plaintiff, who is the appellant, sued in forma pauperis to recover the suit properties, which consisted of 23 items of lands and two houses belonging to one chukapalli pichayya as his adopted son having been adopted by his widow defendant 20 (achamma). chukkapalli pichayya died about 80 years prior to the suit leaving defendant 20 a childless widow. defendants 1 and 2 are the sister's sons of pichayya. the widow, defendant 20, purported to adopt p.w. 5, but that adoption was subsequently set aside by court. on 25-2-1940 she obtained an authorisation from two of the reversioners to adopt a son to her husband. but before any actual adoption took place, the widow surrendered her husband's estate in favour of defendants' 1 and 2, the nearest reversioners. on.....
Judgment:

Krishnaswami Nayudu, J.

1. The plaintiff, who is the appellant, sued in forma pauperis to recover the suit properties, which consisted of 23 items of lands and two houses belonging to one Chukapalli Pichayya as his adopted son having been adopted by his widow defendant 20 (Achamma). Chukkapalli Pichayya died about 80 years prior to the suit leaving defendant 20 a childless widow. Defendants 1 and 2 are the sister's sons of Pichayya. The widow, defendant 20, purported to adopt P.W. 5, but that adoption was subsequently set aside by Court. On 25-2-1940 she obtained an authorisation from two of the reversioners to adopt a son to her husband. But before any actual adoption took place, the widow surrendered her husband's estate in favour of defendants' 1 and 2, the nearest reversioners. On 28-2-1940 under Ex. A. 2 the widow and Pichamma, the sister of the deceased Pichayya and mother of defendants 1 and 2 jointly executed a deed of surrender in favour of defendants 1 and 2 conveying all the properties of Pichayya and the document mentions a payment of Rs. 2000 to the widow for her maintenance for her lifetime and for spiritual benefit to her husband and for offering Gaya pindams etc. Prior to this document it may be stated that by a deed of gift (Ex. B. 1) dated 26-2-1940 she had already made a gift of 2 acres of land to a temple. Immediately after the execution of Ex. A. 2, the surrender deed, defendants 1 & 2 and the other reversioners entered into a deed of settlement, Ex. A. 3, whereunder the properties of Chukkapalli Pichayya which were surrendered by the widow were divided as between defendants 1 and 2 and the other reversioners in certain proportions, the plaintiff's grandfather, who was one of the reversioners, also getting a share.

It is found that there was a sale deed by defendants 1 & 2 on the same date, namely 2-3-1940, Ex. B. 2 of the 3 acres and 6 cents of land to D.W. 1 for a sum of Rs. 3000 out of which Rs. 2000 is mentioned as having been received by defendants 1 & 2 to enable them to pay the widow the maintenance as provided under Ex. A. 2, the balance being the amount due under a prior transaction between defendants 1 & 2 and D.W. 1. More than three years thereafter on 30-9-1943, by Ex. B. 20, D.W. 1 sold the 3 acres and 6 cents of land, which he purchased under Ex. B. 2, to defendant 15 for thesame price of Rs. 3000. Defendant 15 is the brother's son of the widow. Prom a reading of Ex. B. 20, it is seen that the sum of Rs. 2000, which was paid by D.W. 1, as part of the sale consideration of Ex. B. 2 for payment of the sum provided under. Ex. A. 2 to the widow, was in fact borrowed by D.W. 1 from defendant 15 even on the date of Ex. B. 2 and that there was an arrangement between D.W. 1 and defendant 15 that if the amount is not repaid he should execute a conveyance of the property which he purchased under Ex. B. 2 to defendant 15. The recitals in Ex. B. 20 show that defendant 15 was the person who in fact paid the sum of Rs. 2000 which enabled defendants 1 and 2 to pay the widow as and for her maintenance.

2. It may also be mentioned that the properties were subject to a usufructuary mortgage in favour of P.W. 5, and defendants 1 and 2 and others instituted O.S. No. 292 of 1941 on the file of the District Munsif's Court, of Tenali, for redemption and P.W. 5 in turn instituted O.S. No. 32 of 1942 on the file of the Subordinate Judge's Court of Tenali for a declaration that the surrender deed and the settlement were fictitious transactions not binding on him. There was a compromise, which was recorded in O.S. No. 292 of 1941, Ex. B. 7, on 2-8-1943, whereby the mortgagee was given about 3 acres in satisfaction of his mortgage. The widow was a party to the compromise and all the parties including the widow Achamma declared under the compromise that the surrender deed and the settlement deed were true and valid. Achamma was nearly 75 years at the time of the deed of surrender, and 5 years thereafter on 17-2-1945 she executed a deed of adoption, Ex. A. 1 in favour of the plaintiff evidencing the adoption of the plaintiff.

3. The plaintiff instituted the suit claiming to be entitled to the suit properties and alleging that the surrender deed executed by the widow in favour of defendants 1 and 2 was not valid. It is also alleged that it was the result of a conspiracy between the widow, defendants 1 and 2 the sister's sons and the nearest reversioners, and the other reversioners. that the surrender, settlement and the sale deeds, Exs. A. 2, A. 3, B 2 and B 20, though of different dates were the result of an arrangement between the parties to benefit defendant 15, who is the brother's son of the widow, with a portion of the property and also to benefit the other reversioners, though none of them were the nearest reversioners, and that being the result of such an arrangement, the surrender was not valid nor being bona fide.

4. The factum of the adoption was not disputed; but it was contended that the adoption was not valid as the widow had no authority from the husband and she had not even the consent of the nearest sapindas, and further that in any event the widow having surrendered her interest in her husband's estate in favour of defendants 1 and 2, the plaintiff, even though validly adopted, was not entitled to recover the suit properties. The trial Court held against the plaintiff on both these questions, found that the adoption was not valid and upheld the surrender.

5. That two questions that arise, therefore, for determination in this appeal are (1) whether the surrender is invalid for the reasons stated by the plaintiff and (2) whether the adoption is true and valid. Learned counsel addressed arguments on the first of these questions, since if the finding of the lower Court is upheld by us, it would be Unnecessary to decide as to the validity of the adoption since the suit being one for possession has to fail. Though there are certain featuresthat can be gathered from the documentary and the oral evidence which would throw suspicion as to whether the transactions were not the result of an arrangement between the widow and the reversioners as to the best way of disposing of the properties, we feel unable to agree with the appellant's contention that Exs. B. 2 and B. 20 are fictitious transactions brought into existence with a view to benefit defendant 15 by the widow setting apart a portion of her husband's property in favour of her brother's son. The reference in Ex. B. 20 to an agreement between defendant 15 and D.W. 1 the vendee under Ex. B. 2 as to the conveyance of this property in his favour, the circumstance that Ex. B. 20 was executed after the compromise in O.S. No. 292 of 1911 and the relationship of the parties are certain of the circumstances which are urged in support of the plaintiff's contention. But since a sum of Rs. 2000 had to be paid to the widow under the surrender deed and the major portion of the consideration of Ex. B. 2 being the said sum of Rs. 2000 was borrowed for the purpose and the person from whom it was borrowed now transpiring to be defendant 15 and not D.W. 1. neither Ex. B. 2 nor Ex. B. 20 can be held to be not supported by consideration. It is not suggested that defendants 1 and 2 secured the sum from other sources and paid the widow. We are unable, therefore, to hold that Ex. B. 2 and B. 20 are nominal transactions intended to benefit defendant 15. If the surrender is otherwise valid, the fact of the surrenderees disposing of the properties obtained by them under the deed of surrender in favour of third parties would not affect in any manner the validity of the surrender.

6. It is, however, further urged that the settlement deed between defendants 1 and 2 who are the nearest reversioners, and the other reversioners was the result of an arrangement entered into between them to which the widow was party, which settlement was contemplated prior to the execution of the surrender deed. No doubt, mention is made in Ex. A. 3 the settlement deed, as to the gift of 2 acres of wet land to the temple two days earlier than the date of the surrender deed and to an objection having been raised by the other reversioners as to the validity of the surrender. It is stated that as it was intended by the widow to adopt defendant 13 in pursuance of a deed of consent obtained by her on 25-2-1940 to make an adoption and as there were these disputes, there was a mediation and the mediators settled, that the surrender deed was executed bona fide and as per the advice of the mediators defendants 1 and 2 and the other reversioners divided the property. It is, therefore, urged that the surrender is not bona fide being the result of an arrangement whereby the property was divided as between the nearest reversioners and the other prospective reversioners as also defendant 15, the brother's son of the widow.

7. The Privy Council held in -- 'Rangasami Gounden v. Nachiappa Gounden', AIR 1918 P C 193 (A), that an alienation by a widow of her deceased husband's estate held by her may be validated if it can be shown to be a surrender of her whole interest in the whole estate in favour of the nearest reversioner or reversioners at the time of the alienation and that in such circumstances the question of necessity does not fall to be considered, but the surrender must be a bona fide surrender and not a device to divide the estate with the reversioner. Excepting getting a sum of Rs. 2000 for maintenance no portion of the property of her husband had been retainedby her and it has been consistently held that a reasonable provision by way of maintenance reserved to the widow does not affect the validity of the surrender; if it is in other respects unobjectionable. The fact, therefore, of a payment of Rs. 2000 from and out of the estate would not affect its validity in this case. The surrender should not be a device to divide the estate with the reversioner. The division that is prohibited is a division of the estate between the widow and the surrenderee, not any division of the property surrendered as between the surrenderee and others. It may be said in this case in view of the proximity of time between the surrender and the settlement, the settlement and the sale, namely, Exs. A. 2, A. 3 & B. 2, that in fact there has been a division of the estate between the nearest reversioners and the prospective reversioners. In the view we have taken of the effect of Exs. B. 2 and B. 20, we cannot say that it amounts to a division of the estate with defendant 15 also. Such a division of the estate between the nearest and the prospective reversioners of the husband is not what is contemplated by Lord Dunedin, who delivered the judgment of the Board in AIR 1918 PC 199 (A).

This is made clear by the same Law Lord in a later decision of the Judicial Committee in --'Sureshwar Misser v. Mt. Maheshrani Misrain', AIR 1921 PC 107 (PC) (B) where the dictum in AIR 1918 PC 198 (A) is repeated namely that the surrender must be a bona fide surrender not a device to divide the estate with the reversioners and it was held that a bona fide arrangement whereby a Hindu widow surrendered all right of succession to the immoveable property in favour of the nearest reversioner who in turn made over half the property to daughters cannot be stigmatised as a device to divide the estate between the surrendering lady and the nearest reversioner and cannot be taken exception to. The surrender would cease to be bona fide if such a device is adopted whereby the widow would secure a division of the property for her individual benefit.

8. It is not suggested in the present case that by the transfer of 3 acres and 6 cents of lands by defendants 1 and 2 in favour of the widow's brother's son the widow was personally benefited or she intended to retain any benefit in the sense that the sale of lands was a benami or colourable transaction brought about for the ultimate benefit of the widow, defendant 15 being only a benamidar. It is, therefore, a case where there has been a transfer of the widow's whole Interest in her husband's estate in favour of the nearest reversioners, the widow retaining nothing out of it. If that be the case could it be said that there has not been such self-effacement or renunciation by the widow as to constitute the giving up of her entire interest in her husband's properties? There can be no doubt that there has been such a renunciation. Could an arrangement entered into between the nearest reversioners and other reversioners and even a relation of the widow whereby the properties are divided among them to which the widow might be a consenting party invalidate the surrender where the widow herself does not retain any interest? That a surrender should be not only of her whole interest in favour of the nearest reversioner or reversioners but must also be bona fide, it appears to us, was for the first time laid down by Lord Dunedin in AIR 1918 PC 196. By 'bona fide' it must be understood that the transaction is a real transaction, not a colourable one, whereby there is not B complete renunciation or the re-linquishment of the widow's interest. Whatimpels a widow to surrender is not of any consequence.

9. In -- 'Challa Subbiah Sastri v. Palury Pattabhiramayya', 31 Mad 446, it was held that where a widow conveys the whole of her limited estate to the next reversioner in consideration of an undertaking by such reversioner that he would reconvey a portion of such property to a person named by the widow, the conveyance is valid and is not vitiated by such agreement and the title of such reversioner and mat of the person to whom the property is reconveyed in pursuance of such agreement cannot be impeached by other reversioners. Sankaran Nair J. observed:

'It is difficult to see how the validity of a. surrender by a widow which stands on a higher footing can therefore be affected by her motives or by any such conditions that may be imposed by her as referred to above. Further, there is nothing in the reason of the law to support this contention. Supposing this succession is accelerated by the widow becoming a sanyasi or remarrying, can it be contended that the actual reversioner at the time of her death is entitled to claim the property on the ground that her renunciation of the world or remarriage was made in order to vest the property in a favourite presumptive reversioner, or that it was made under arrangement by which he was to convey a portion of the property to another? On her renunciation of the world, or remarriage, the Hindu law vests the property in the reversioners and it is not the less his property because he has promised the widow to give a portion of that property to some stranger who himself could not enforce that agreement.'

The motives of a widow in renouncing and transferring her husband's estate in favour of the nearest reversioner, whatever they may be, should not be taken into account in determining the validity of the surrender. What has to be looked into is only her capacity to renounce and a complete effacement of her interest in favour of the nearest reversioner.

10. This principle as to motive being immaterial in Judging whether a transaction of surrender is valid or not is still good law. In --'Subbalakshmiammal v. Narayana Aiyar : AIR1934Mad535 , Venkatasubba Rao J. expresses his agreement with the dictum of Sankaran Nair J. in the above referred case that the validity of a surrender does not depend upon the motive of the widow, though the learned Judge is of the opinion that the actual point decided upon in that case must be treated to have been overruled in view of the subsequent Privy Council decision in AIR 1913 PC 195 (A). In the course of the judgment while referring to that decision the learned Judge observed as follows:

'Their Lordships of the Judicial Committee in AIR 1913 PC 193 (A) and explain clearly what is meant by the expression 'bona fide' used in this connection. The transaction must be bona fide in the sense that the widow retains no benefit either directly or indirectly, i.e., there must be a complete relinquishment; if in the guise of a surrender, the widow enlarges her own estate In regard to a part, the so-called surrender will not be upheld. I do not think there is any warrant for importing a third and further condition, namely, that the motives operating on the mind of the widow must be of a religious or spiritual character. In regard to adoptions by widows accord-ing to the Bombay Courts the motive is irrelevant, but the law, as administered in this presidency, makes the motive material. There being no authority declaring that the motive of the surrendering widow has any bearing, I should, for my part, be disinclined to introduce an uncertain and puzzling element, making it incumbent upon the Courts to embark upon an enquiry, often difficult and fruitless, as regards the motive for the transaction.'

What is, therefore, understood by 'bona fide' is that the surrender must not be a ruse to secure for the widow, an interest in her husband's property which she is not entitled in law, that is retaining any benefit under it after purporting to renounce it in favour of the nearest reversioner. The surrender must be complete and effective and not colourable and nominal. If the transaction of surrender is a relinquishment of her entire interest in her husband's property and if such relinquishment is in favour of the nearest reversioner and so long as it is not in any way indicated that the arrangement evidenced by thesurrender between the widow and the reversioners allows a benefit to accrue to the widow excepting a provision for maintenance, it must be held that that should be sufficient to stand the test of a valid surrender. It is difficult to say what generally influences or impels a widow to relinquish her property in favour of her husband's next of bin, that is, the nearest reversioners.

It is in exceptional cases that such a renouncement arises out of a conviction on the part of the widow to renounce not only her husband's estate but also the world and become a sanyasin. But apart from it cases have occurred where Hindu widows have relinquished their interests for various reasons; mainly if the widow is of a retiring disposition, being a woman she would like to be relieved of the management of the estate and to hand over the estate to the nearest reversioner being content with a suitable provision for maintenance. There are cases where along with a suitable provision for maintenance she may desire that a near relation of hers may also be provided for. These are considerations which generally weigh with a Hindu widow to renounce her estate. The fact that not only she desires to be free from the trouble of administering the estate but also desires to provide for a relation for whom she might have some affection, and where the reversioner who will be entitled to the estate accedes to her request in deference to her wishes to make such a provision, cannot characterise the surrender as not a bona fide one.

11. Learned counsel referred to the decision of Lakshmana Rao and Happell JJ. in --'Krishnamurthi v. Seshayya : AIR1944Mad439 , cited with approval by Raghava Rao J. in --'Akkamma v. Brahmadu', : AIR1950Mad617 (P), in support of his contention. In : AIR1944Mad439 ', itwas held that the surrender deed, the retention of some of the properties covered by it by the surrenderee and the alienation of the rest by him benami for the brother's son of the widow, all formed part of the same transaction; that in the circumstances, the surrender was not a bona fide transaction and the whole arrangement was only a device to divide the estate so as to five a part of the estate to the widow's brother's son in order that the sister's son might get the remainder in praesenti, and that accordingly the surrender was not binding on the reversion. The finding in those decisions is that the transactions which they were considering were benami transactions in the sense that the transfer bythe reversioners in favour of a near relation of the widow was really, for her benefit and the effect of it was a retention of a portion of the property in the widow by adopting the transfer in favour of the relation as a device to divide the estate. Those decisions might be supported on the particular facts of those cases. But it is necessary to point out that Raghava Rao J. observed that the dictum in 31 Mad 446, was accepted in Mayne as good law, namely, that the widow's motive in making a surrender is immaterial and that therefore a surrender by her cannot be called in question on the ground of improper motive.

12. The doctrine of surrender has been understood in some decisions to have been evolved out of judicial decisions and to have no foundation in the original texts. That was the view taken by Kumaraswami Sastriar J. in --'Vaidyanatha Sastri v. Savithri Ammal', AIR 1918 Mad 469, where the learned Judge observed that

'the whole doctrine of surrender and consequent acceleration of the estate of the reversioner has no basis in Hindu Smritis, but has been evolved by Courts of justice on general principles of jurisprudence.'

With respect to the learned Judge that statement cannot be said to be quite accurate. Though the surrender by a widow in favour of the nearest reversioners is not specifically mentioned in the texts, such of the Hindu law texts that pertain to the widow's right of inheritance to her husband's property and the extent and scope of such rights are certainly derived from the texts and the right of the widow to surrender is one of the incidents of the right to succeed to her husband's property and to enjoy it. This was pointed out by Mitter J. in --'Ramkrishna v. Sm. Kousalya Mani', : AIR1935Cal689 (H). In --'Arunachala Aloopanar v. Arumugha Moppanar', : AIR1953Mad550 (I), a decision of Govinda Menon J. & myself, our attention was drawn to the view of Kumarswami Sastriar J. In that ease the question arose as to the right of the reversioner-surrenderee to recover possession and dispossess the alienee from the widow before the lifetime of the widow as a logical consequence of the surrender. We, however, did not think it then necessary to examine the original texts and preferred to follow the rulings on the subject. But now it appears to me it may be necessary in view of the textual law on the subject to reconsider the rulings on which we relied in coming to a decision in that case.

13. Mookerjee J. in --'Debt Prosad v. GolapBhagat', 40 Cal 721 (J), has referred to some ofthese texts. The main text is that of Katyayanaas explained by Jimutavahana in the DayabhagaChapter XI, Section 1, para 56, which says :

'Let the childless widow, preserving unsulliedthe bed of her lord, and abiding with hervenerable protector, enjoy with moderation theproperty until her death. After her let theheirs take it'.

In para 64 he refers to the text of Narada whichsays :

'When the husband is deceased, his kin are the guardians of his childless widow. In the disposal of the property, and care of herself, as 'well as in her maintenance, they have full power. But, if the husband's family be extinct or contain no male, or be helpless, the kin of her own father are the guardians of the widow, if there be no relations of her husband within the degree of a sapinda.'

With reference to this text of Narada, his commentary is that

'in the disposal of property by gift or otherwise, she is subject to the control of her husband's family, after his decease, and in default of sons',

and with their consent she may bestow gifts on the kindred of her own father and mother. Deya-Krama-Sangraha, a commentary on the Dayabhaga of Sri Krishna Tarkalankara, Chap. 1,' s. 2 refers to Katyayana and Narada's texts and commenting upon them states in para 7 : '. . . . On these (Sapindas, daughter's sons, sister's sons, maternal uncles of her husband) and on the others should she bestow presents, end not on the members of the family of her own father, while these persons are living, for then the specification of 'paternal uncles' and the rest would be superfluous. With their consent, however, she may make gifts to the kindred of her own father and mother, as declared by Narada. ... In the disposal of property that is by gift, etc., the wife is liable to the control of the family of her husband, after the death of her husband and on failure of sons; so it is declared in the Dayabhaga.' Emphasis is laid in the texts on the parental position occupied by the nearest reversioners, who are considered to be the guardians of the widow and are expected to protect her interests and guide and direct her in dealing with the properties of her husband.

14. The lights of the widow to inheritance of her Husband's estate and power to dispose of her husband's property owe their origin to the Dayabhaga and the commentaries thereon; and that the principles as derived from the texts are applicable to the Madras Presidency do not admit of any doubt, since the Bengal rulings based on the Dayabhaga on these matters have been applied and followed in the decisions of our Court. Subramania Aiyar J. in --'Marudamuthu Nadan v. Srinivasa Pillai', 21 Mad 128 (K) (F.B.) observed :

'I think it unnecessary to go into the question, whether the Hindu law according to the texts or the commentaries lends support to the doctrine that a female holding a qualified estate can validly surrender such an estate, so as to entitle the then immediate reversioner to enter upon the inheritance and to hold it absolutely as if the succession had opened by the natural or civil death of the qualified owner. Though there has been no course of decisions on the point in this Presidency as in Bengal, yet instances have occurred which show that parties have acted upon the view that such surrenders are valid in these parts as well. This appeal's even from some of the cases which have come before the Courts. Since, there is nothing in the doctrine itself which makes it less suited to the community in this Presidency than to the community in Bengal, it is not surprising that the Calcutta rulings have in practice been followed in this Presidency also.'

So long as the widow does nothing to contravene the injunctions of the nearest reversioners such acts of the widow could be said to be permitted. This is also evident from the commentary of Dayabhaga in Dayakarma-Sangraha that in the disposal of property the wife is liable to the control of the family of her husband, after the death of her husband and on failure of sons, and with their consent, she may make gifts to the kindred of her own father and mother. The reason behind the principle laid down in the texts is that the husband's rela-tions, that is, the nearest reversioners being the persons that are ultimately interested in the properties are themselves persuaded to part with a portion of the properties at the request of the widow, they must be deemed to have done for proper and justifiable reasons since they are the guardians and advisers of the widow. When the widow expresses a desire to surrender her interest and also wishes that a gift of a portion of the property may be made to the kindred of. her own father & mother, the reversioners are entitled to give effect to it and nothing prevents them from doing so. The nearest reversioners are not bound to secure the property without any dismemberment or disposal for the benefit of any other kin or reversioner, since the reversioners, even the presumptive much less the prospective reversioner, have any vested right in the widow's husband's property. Such disposal of property at the time of the surrender would not be against the injunctions laid down in the texts. The principle of relinquishment or surrender as observed by Mookerjee J. in 40 Cal 721 (J), is contemplated in the texts.

The learned judge states at page 771 as follows;

'As a matter of fact, the theory of relinquishment is foreshadowed in the Dayabhaga, Chap, XI Section 1, para 59, where Jimuthavahana lays down that the persons who would be the next heirs on failure of prior claimants, succeed to the residue of the estate remaining after her use of it, upon the demise of the widow in whom the succession had vested, in the same manner as they would have succeeded if the widow's right had never been taken effect.The words used by Jimuthavahana ('if herright ceases or never takes effect') are comprehensive enough to Include not merely the case of the death of the widow, but all cases where her right ceases; in other words, the reversioners take the estate not merely when the widow dies, but also when her title is extinguished, for instance by renunciation, remarriage or the like.'

Though the term surrender is not expressly mentioned in the texts, the circumstances and conditions under which a widow could dispose of her husband's property as laid down in the texts will with equal force apply to the case of a disposal by the widow as and by way of surrender in favour of the nearest reversioners and thus accelerate the reversion. Even from the point of view taken in the texts and as explained by the commentators, we are of the opinion that a. surrender by the widow of her entire interest in her husband's property in favour of the nearest reversioners does not become invalid by reason of the reversioners making a provision at the time of the surrender or subsequently of a portion of the property to the kindred of the widow's father and mother to satisfy her wishes. Reservation of a small portion of the property as provision for maintenance out of the estate is 'a fortiori' permissible and has been so held in a number of decisions of the several High Courts. We are, therefore, of the view that even if the transfer of 3 acres and 6 cents in favour of defendant 15, who is a kindred of the widow's parents, being her brother's son, out of an extent of 25 acres and other properties is a gift, it is a permissible disposal of the property which does not vitiate the validity of the surrender.

We, however, hold in this case that it is not a gift, but a transfer for consideration to D.W. 1, who in turn sold it to defendant 15. In view of our holding that the surrender is valid, it is unnecessary to examine the finding of the lower Court that the adoption is invalid since the adoption would not divest the properties from the possession of defendants 1 and 2, who hold the same under a valid surrender.

15. In the result, the appeal is dismissed with costs of the contesting respondents. Appellant will pay the court-fee payable to Government.

16. MACK J.: I have perused with great interest and advantage the judgment of my learned brother, with which I am in complete agreement. I am greatly indebted to him for his research into ancient Hindu texts, which appear to me to set at rest all doubts attaching to the surrender of a widow's life estate. It is indeed refreshing, nor is it in any way surprising, to find that the ancient texts give direct support to ft commonsense and reasonable position that a childless widow can, with the consent of her husband's kins, make a valid surrender to the nearest reversioners after making gifts with their consent to any of her own relations. It is also settled law, so far as case law on any subject in the domain of Hindu law can be regarded as settled, as both the learned Counsel agree and as my learned brother has pointed out, that a Hindu widow can, with the consent of the reversioners, make a valid surrender at the same time reserving for herself a portion of property for her maintenance over which she will have absolute powers of alienation.

17. The ancient texts themselves, as analysed by my learned brother, throw considerable light en the obscurity of a series of decisions, some progressive and some, which, with great respect, may lie called reactionary, the general effect of which have imposed on the conveyancer of the necessary documents in connection with a widow's surrender and gift with the consent of the reversioners or sapindas an extremely difficult problem. Some decisions have treated the widow's power of acceleration and the reversioner's power of validation as distinct and independent powers. Wallis J. in -- 'Rangappa Naik v. Kamti Naik', 31 Mad 33S (L), observed that the Bombay High Court had consistently refused to treat the reversioner's' power to validate as derived from the widow's power to accelerate, as, though the former had the authority of the Hindu texts, the latter was regarded as being based upon the application of the English doctrine of merger. The widow herself has no power of acceleration as such without the consent of the reversioners, except in the very rare case of a widow making a complete renunciation of her whole husband's estate without reserve to the reversioners leaving to herself absolutely nothing at all. In all other cases of surrender, the widow's power of acceleration and the reversioners' power of consent or validation are mutually inter-dependent and one cannot operate without the other.

18. I have never been able to appreciate the many legal impediments,, which have been sought to be placed in the way or a childless widow with the consent and approval of the reversioners disposing of the estate in order to free herself from the botheration of its management. The widow of course hag an unfettered right to the enjoyment of the income of the entire estate till her death if she so desires. Similarly the reversioners are entitled to refuse to agree to any surrender by the widow, which involves the retention of any portion of the corpus by the widow even for her maintenance. I have never been able to see what spiritual benefit any one dead or living can derive from obstacles various decisions have placed in the way of a childless widow in the domain of surrender. The limited estate provided by Hindu law for a childless widow is something peculiar to Hindu law, and any endeavour to apply the principles attaching to other forms of limited interest to this kind of estate can only be frought with much involved complication. The one condition necessary for a surrender by a childless widow to be valid is, as my learned brother has pointed out, that it should be bona fide, it must not be a division of the estate between the widow and a reversioner in order that each should have premature and absolute powers of alienation over a portion. To cite an extreme case, if a young widow and an elderly reversioner without children should agree between themselves to divide the estate and this agreement is embodied in the form of a surrender deed with reservation for maintenance, it would clearly be a mala fide transaction with the object of defeating the other reversioners. I am unable to see any impediment in the early Hindu texts referred to by my learned brother in the way of the widow executing a valid surrender in favour of reversioners and with their consent making contemporaneously small gifts to her own relations and also reserving a portion of the property to be enjoyed by her absolutely for her maintenance.

19. It is becoming increasingly necessary that the law on these difficult branches of Hindu law, which have been made extremely complicated by much developed case law in the past should be expressed in as clear and simple terms as possible for the guidance of those on whom the heavy burden of conveyancing rests. In this case we have perused with much appreciation the ability, care and thoroughness with which the widow's surrender deed Ex. A. 2, a contemporaneous gift deed Ex. B. 1 gifting some land to a temple and other related documents have been prepared by unrecognised, unlicensed and unqualified de facto solicitors, who appear to have the carriage of all litigation in areas from which the suit arises. In striking contrast with these documents prepared in 1940 with a sense of responsibility, we have no hesitation in describing as a thoroughly irresponsible document, the adoption deed Ex. A, by which this widow adopts this plaintiff on 17-2-1945 without any reference whatsoever to the surrender to the reversioners she had previously made in 1940. It is on the basis of this document that a first class pauper litigation has been evolved in which no less than 23 defendants have been impleaded. The fact that the plaintiff's grand-father was admittedly a consenting reversioner to the widow's surrender and received a share of land is in itself sufficient ground for dismissing the suit. His grandson has been put forward as a pauper plaintiff in another wholly untenable legal capacity, in the circumstances, as a son adopted by the widow after this perfectly valid surrender.


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