S. Ramachandra Iyer, C.J.
(1) This is an appeal by the defendant in O. S. No. 26 of 1954 on the file of the District Court, Nagapattinam, against the decree and judgment; therein. The appellant's father Sivasubramania Pillai, who was possessed of substantial properties, died in the year 1924 leaving behind him two widows Thalai Achi and Karpagathachi (the respondent), and a daughter Nagaratnam (appellant) born through the former, Sivasubramania Pillai's mother was also alive at the time of his death. About three years after his death, his mother and his two widows went on a pilgrimage to Banares. The expenses incurred during the trip created friction between the widows. Thialai Achi who was in possession of the properties accused her co-widow of extravagance. The other could not perhaps tolerate the criticism and as a consequence misunderstandings arose. The respondent, the junior widow, thereupon approached D.W. 1, Manickam Pillai, a trusted friend of her deceased husband, for effecting a division of the properties left by her husband. It is the appellant's case, and this is spoken to by Manickam Pillai whose evidence on this has not been the subject of any cross-examination, that Thaialai Achi was agreeable to effect a partition if she were allowed to take what was allotted to her absolutely: so that in the event of her death, her daughter might obtain the same.
The respondent in her evidence has, however, denied that Thailai Achi made any such stipulation. We shall have to advert to this matter later. Manickam Pillai and two others brought about a settlement between the widows as a result of which a partition arrangement came into existence. Admittedly the arrangement was oral. In pursuance of it lots were cast in regard to the items of properties that were to be divided. Two lists of properties were prepared in accordance with the, result of such casting of lots, and they were signed by both the widows; each was given the list recording what fell to her share. Ex. A. 1 and Ex. B. 45 are respectively the lists of properties that fell to the share of Karpagathachi and Thialai Achi. The terms of the agreement recorded therein are identical and it will he useful at this stage to set out the relevant portion of Ex. B. 45 as a typical one:
'Partition deed entered into on 14th July, 1927, between us two persons, namely, (1) Thialai Achi and (2) Karpagathachi, wives of R. Sivasubramania Pillai, residing at Karappur Manthaivatta Mayuram taluk...... (properties listed and set out)...... In accordance with the chit cast, Thialai Achi wife of Sibasubramania residing at Karuppur shall take the nanja, house and ground cattle shed, cattle, pathway for men, cattle and cart and shed where dried dung cakes are stored mentioned in the list and she shall pay the government kist for the aforesaid properties from the current fasli 1337 and enjoy them.
(sd. in Tamil) Khaiyalai Achi
(sd. in Tamil) Karpakathachi.'
Thailai Achi and Karpagathachi took possession of the properties that respectively fell to their share and began enjoying the same. Patta was not, however, transferred; not much significance can be attached to such omission as the partition itself has been admitted. It is clear from the evidence of Manickam Pillai consistent, as it is with probability, that legal advice was taken at the time of partition; the widows must have been made aware that their estate could not enure beyond the lifetime of the survivor of the two. This is also clear from the three wills subsequently executed by Thaialai Achi (Ex. B. 1, B. 2 and A. 5), who besides what she obtained at the partition, had other properties of her own. She describes herself therein as the absolute owner of the latter set of properties; there is no such description regarding the former. Thaialai Achi died on 26-8-1954.
Karpagathachi then instituted the suit out of which this appeal arises for a declaration of her title and for recovery of possession of the proper-ties covered by Ex. B. 45, from the appellant.. The suit was resisted by the appellant, on the ground that under the partition, Thaialai. Achi had obtained an interest in the properties which would enure for the lifetime of Karpagathachi and that interest, an estate pur autre vie, would devolve on her own heir, the appellant, for the duration of the life of the other widow. The learned District judge appears to have been under a misapprehension that a partition between two Hindu women who inherited a joint estate by which each relinquished her right of survivorship to the other in the event of the latter dying earlier, could only exist where they purported to divide the property conferring absolute powers on each other. He held that there being no proof of any absolute estate having been given under the partition, the widows could not be held to have divided the properties so as to preclude the surviving widow from obtaining what fell to the share of the other on the latter's death. The suit was, therefore, decreed. Thialai Achi's daughter, the defendant, has appealed.
(2) As Thaialai Achi died before the Hindu Succession Act 1956, came into operation, the controversy has to be decided on the law as it existed prior to the enactment., The rules which govern the case of a partition between co-widows are well settled and but for the fact that Mr. Kuppuswami Iyer, learned counsel appearing for the respondent disputed the correctness of the decided cases which recognised a power in joint female heirs to give up at partition the right of survivorship inter se it would have been unnecessary to restate them.
(3) The law on the point can be stated thus. Where a sonless Hindu dies leaving a plurality of widows, the latter succeed to his estate as joint heirs with a right of survivorship inter se. Although the widows represent the estate completely in the sense, that no other persons has any pre-sent interest therein along with them, they Would only have a limited right to the property--an estate which is compendiously known as a 'woman's estate' under the Hindu Law. Broadly stated such an estate can be said to consist of two parts (1) a right to enjoy the usufruct till the last surviving widow dies, (2) a power in the widows to alienate their husband's property for necessity or benefit of the estate. As the right of the widows is limited, succession to the estate of the last male holder will take place after the death of the last survivor among them. But till then no reversioner has got any interest in the property left by the last maleholder. Therefore, the duration of the period of the widows' estate will be till the last of them dies. So far as the reversioner is concerned, the estate can be represented only by all the widows acting together, and no alienation of the estate even for necessity would bind him unless all the widows act jointly. But in regard to the enjoyment of the usufruct, there is and can be no such limitation.
(4) The widows having a absolute right in regard to income from the property, can obtain partition and separate possession of portions of the properties, each being entitled to an equal share therein. The right that a widow obtains at such a partition cannot ordinarily be more than what she had already, namely, a right to enjoy the property for her own life. Therefore partition between the widows does not per se put an end to survivorship among each other, which is inherent in the nature of their joint estate. This is unlike the case of coparceners in a joint Hindu family amongst whom after division there is no question of survivorship.
(5) The right of a co-widow to obtain partition of an equal share is capable of being en-forced in Court. An enforced partition can only obtain for each widow the right to enjoy during her own life with the result that after the death of the one the other or others will take the property by survivorship.
(6) But where partition between co-widows is by a consensual act, the interest taken by each widow can by agreement between the parties be something more than a mere interest for life of the taker. That is because of the power each widow has in the disposal of her own life interest. In other words two widows can divide the properties by agreement in one of two ways: (1) A mere partition under which each would take an interest in the share allotted to her for her own life. This will be the case where partition is for mere convenience of enjoyment. (2) Each of the two widows can convey her subsisting interest in the properties allotted to the others; her co-widow will then not merely have a right to enjoy the properties for her own life but by virtue of the conveyance by the other have a further right to the same property till the lifetime of the latter i.e., an interest (pur utre vie) for the duration of the other's life. The principle underlying this is the power of each widow to alienate the right to the income from the property that falls to her share for the duration of her own life.
(7) In Ramakkal v. Ramaswami Naicken, ILR 22 Mad 522, the learned Judges observed:
'We have no doubt that widow can alienate for her life any estate which comes to her as such and that she can, therefore, enter into such a deed as will preclude her from recovering during her life property which she has alienated to the full extent of such alienation provided it does not extend beyond her life interest.'
Therefore if there is an appropriate agreement between the co-widows at partition, each can take not merely what she is entitled to for her life but something more i. e., for the lifetime of her surviving co-widow by virtue of the conveyance or release made by the other widow.
(8) Mr. T. S. Kuppuswami Iyer has contended that such an arrangement between the co-widows would amount to nothing more than a release or conveyance of a possible right of survivorship and as such invalid, being in the nature of a transfer of spes successions. We are unable to see how such an agreement can be invalid. What each widow possesses is her right to enjoy for her own and if she parts with that right in favour of her co-widow, as indeed she can do in favour of a stranger, it can only be a transfer of a subsisting right and not of a mere spes. The validity of a relinquishment by a widow of her interest in the properties allotted in favour of her co-widow at their partition has been recognised in Sudalai Ammal v. Gomati Ammal, 23 MLJ 355, Subbammal v. Krishna Aiyar, 26 MLJ 479: AIR 1994 Mad 327, Ammano Ammal v. Periasami Udayan, 45 Mad LJ 1: AIR 1924, Mad 75.
(9) Reliance is placed on behalf of the respondent on the decision in Commrs. of Income-tax, Bombay North, Kutch and Saurashtra Ahmedabad v. Smt. Indira Balkrishna, : AIR1960SC1172 , as supporting the contention that the widows had no power of transferring to each other her life interest in the property for the reason that the Supreme Court in stating the law on the subject does not refer to the right of a co-widow to surrender her right of survivorship. That was a case where there was no partition between these co-widows. The question that arose for consideration was whether the income received by them could be assessed as if it was received by an association of persons. That question was answered in the negative. The Supreme Court had in that connection to examine the nature of possession which the co-widows had in their husband's property. The question before us, namely, the validity of an arrangement between co-widows relinquishing inter se their right of survivorship did neither arise nor was considered in that case.
(10) We are unable to agree that the uniform line of decisions recognising a power in a co-widow to give up at partition her right of survivorship require even a fresh consideration.
(11) Once it is held that the widows can relinquish the right of survivorship which one has in favour of the other, the question for determination in each case will be
'What are the terms of the partition. Has it been made purely with a view to convenient enjoyment of the properties so that each widow gets only an interest for her own life, leaving intact the right of the other to take by survivorship, or whether such a right has been excluded by agreement between the parties.'
In the case before us the respondent has no doubt stated in the plaint that the partition was effected with a view to enjoy and manage the lands more conveniently. But paragraph III (10). however states:
'It is stated in the reply notice that the arrangement of partition was oral. That statement is not altogether correct. It is evidenced by a Karai Edu (list of properties) allotted to each signed by both the parties.'
(12) The reference is evidently to Ex. A. 1 and Ex. B. 45. The lists include property allotted to Sivasubramania Pillai's mother for her maintenance. The partition can therefore be taken to be complete. The circumstance that two lists were separately drawn up, that they were signed by both of them and delivered over to the respective sharer would seem to indicate that some kind of title was intended to be transferred and that the arrangement was not one for mere convenient enjoyment, of their husband's properties. Ex. A. 1 and Ex. B. 45 state that the respective sharers should obtain and enjoy the property, using the familiar words of conveyance' 'A dainthu anubavithukondu'.
This expression coupled with the fact that the documents have been signed by the widows (suggesting a conveyance) would show that they in-tended by the partition to vest the property in the respective sharer for the duration of the joint estate of the widows, i.e., till the lifetime of the survivor of them. (After discussing the evidence the judgment proceeds.)
(13) Let us consider the other evidence in the case. In our opinion, on the terms of Ex. A. 1 and B. 45 the two widows in the present case must be held to have intended to convey right of survivorship which each had held in the other's estate.
(14) Mr. Ramaswami Iyengar who first argued for the respondent realised that the terms of Ex. A. 1 and B. 45 would import a grant to each widow of an interest in the property allotted to her for the duration of the other widow's life and attempted to get Ex. A. 1 and B. 45 excluded from evidence. Learned counsel contended the documents being unregistered would be inadmissible in evidence. But Mr. T. S. Kuppuswami Iyer who followed him qualified that contention by stating that while the documents would he admissible in evidence to show the character of their possession they could not be relied on so as to enable the appellant to prove that the respondent had parted with her life interest. Neither of the two aspects of the argument was put forward before the lower court. We, therefore, intimated to the learned counsel that we were not prepared to allow such a contention to be raised for the first time before us. At the same time we considered it better to express our opinion on the merits of the contention and in that view and for that purpose allowed learned counsel to argue the point. It was urged on behalf of the respondents that the two documents on their terms created a right in praesenti in favour of the parties to the documents and that therefore they would not be admissible in the absence of registration. It was also contended relying on the decision in Ramayya v. Achamma : AIR1944Mad550 that it would not be open to the court in such a case to look into other evidence as to the terms of the partition arrangement.
(15) It will be noticed that the terms of Ex. A. 1 have been admitted by the respondent, herself in her plaint. The relevant paragraph extracted from the plaint would show that the document has been incorporated thereto by reference. There being thus an admission in the pleadings, the question of admissibility of the two documents is of no importance. It must also be noticed that Ex. B. 45 was admitted by consent by both the parties. Even otherwise we cannot accept either of the two contentions. The partition was admittedly oral and Ex. A. 1 and B. 45 form only a subsequent and imperfect memoranda of the same, the title having been already transferred under the oral arrangement. It can-not be said on the evidence that all the terms of the arrangement are contained in the two documents. Perhaps if the contentions now raised before us had been put before the lower court it would have been possible for the. appellant to show that all the terms of the partition arrangement had not been reduced to writing under Ex. A. 1 and B. 45.
(16) Mr. Kuppuswami Iyer then contended that while a partition between two co-widows can be effected orally, a relinquishment of the right of each widow to take by survivorship the properties allotted to the other widow in the case of the latter pre-deceasing her, could only be made by a duly registered document. No principle or authority is relied on to support the contention. Relinquishment of the right in such a case can he oral, such a relinquishment among co-widows will only be a term in the partition arrangement between them, and if partition itself can be made orally, there can be no objection to the arrangement including the relinquishment of right of survivorship inter se between them being oral. That question is covered by authority. Vide Latchumanammal v. Gangammal, 34 Mad 72, Sundarasiva Rao v. Vijayam 48 Mad 933 and Miinakshi v. Subramania : AIR1930Mad175 , where it was recognised that an oral partition between co-widows can include an arrangement by which each relinquished her right of membership.
(17) We are of the opinion that the appellant has proved that the partition arrangement entered into between her mother and the respondent was one where each of the two sharers gave their life interest in the properties allotted to the other and that therefore the respondent would not be entitled to recover possession of the properties allotted to her co-widow at the partition and that the same would devolve on the appellant as her stridhanam heir or as her legatee. The appeal will therefore be allowed with costs here and in the court below.
(18) Appeal allowed.