Krishnaswami Aiyangar, J.
1. One Venkatanarasimhayya died in 1887, leaving him surviving his widow Lakshmamma who succeeded to his properties for a limited estate under Hindu Law. In 1923, Lakshmamma executed a deed of surrender by which she relinquished in favour of the then nearest reversioners, the entire estate inherited by her from her husband. The reversioners were Veeraraghavayya and Narayanayya. The deed recites that she had previously received from the reversioners a sum of Rs. 200, for necessary purposes. She also received for her maintenance a further sum of Rs. 300 from one of them--Veeraraghavayya at the time of the registration of the deed. Of the several properties included in the surrender, the suit property was one, though at the time the title to it was under dispute in a suit then pending between Veeraraghavayya on the one side and the widow and Narayanayya on the other. In that suit Veeraraghavayya denied that it formed part of Venkatanarasimhayya's estate and asserted that it was really his own. Subsequent to the surrender, the two reversioners effected a partition of the properties surrendered, but the suit property was not included in the division. It was for a partition of this property said to have been left undivided that the suit out of which the present appeal has arisen, was instituted by the first respondent Narayanayya in the Court of the District Munsif of Ongole. He alleged that there was an oral arrangement between him and Veeraraghavayya for the specific allotment of particular shares in the property to each of the two sharers, though effect had not been given to it by actual mutation of possession. The contesting defendant was the appellant who is the representative in interest of Veeraraghavayya.
2. The District Munsif held that the oral arrangement set up by the respondent was not true, but none the less decreed partition, on the ground that the property was the common property of the two reversioners still remaining to be divided between them. The first defendant who stood in the position of an assignee from Veeraraghavayya appealed to the Subordinate Judge of Bapatla. The learned Judge allowed the appeal and dismissed the suit. A Second Appeal was then filed in this Court by Narayanayya. Patanjali Sastri, J., who heard it, was of opinion that the (decision of the Subordinate Judge was incorrect, and he accordingly allowed the appeal and restored the decree of the District Munsif. The first defendant, who was the first respondent in the second appeal has preferred this Letters Patent Appeal in pursuance of the leave granted to him by the learned Judge.
3. The Subordinate Judge has found that the disputed property did not form part of Venkatanarasimhayya's estate, but belonged absolutely to Veeraraghavayya in his own independent title and was and continued to be in his possession from a date anterior to the surrender. The Subordinate Judge was also of opinion that the possession of Veeraraghavayya being a possession held by him in his own right, was adverse to Lakshmamma. From these findings which are binding on us, it is clear that the suit property should not have been included in the surrender. The. reason for the inclusion is, however, obvious. The parties had apparently in mind the rule of Hindu Law that for a surrender to be operative, it must be complete, that is, it must be of the whole estate. They were afraid of leaving out the suit property which was under litigation at the time. For if it should ultimately turn out that it did in fact form part of the estate, the surrender would be open to the attack that it was partial and, therefore, invalid. The judgment of Patanjali Sastri, J., is entirely based on the view that the rule of estoppel enunciated by the Court of Appeal in Dalton v. Fitzgerald (1897)L.R. 2 Ch. 86, is applicable to the facts of this case, with the result that he held that the appellant is precluded from putting forward Veeraraghavayya's independent title to the property! The rule is stated in the following words by Lopes, L. J.:
A person having no title to land settles it on A for life with remainder to B. A enters and lakes possession and deals with the property as tenant for life; that person is estopped from telling the truth--his mouth is shut; he has availed himself of the settlement for the purpose of obtaining possession of the land, and he cannot afterwards seek to invalidate that which enabled him to obtain possession and this though subsequently he may have acquired a good title. If a man obtains possession of land claiming under a deed or will, he cannot afterwards set up another title to the land against the will or deed though it did not operate to pass the land in question and if he remains in possession till twelve years have elapsed and the title of the testator's heir is extinguished, he cannot claim by possession an interest in the property different from that which he would have taken if the property had passed by the will or deed.
4. From this statement of the law, it is plain that it is an essential condition for the application of the doctrine, that the person sought to be estopped or his predecessor-in-interest must have obtained possession of the property, under the deed. It is also plain that both in Dalton v. Fitzgerald (1897) L.R. 2 Ch. 86, and in Board v. Board (1873) L.R. 9 Q.B. 48, which was cited in it with approval, the party estopped did not have and did not profess to have any title to the property other than the title he derived from the deed. But the facts of the case before us are wholly different. Veeraraghavayya did not obtain his title under the deed of surrender. Neither did he derive his possession from it. Therefore, we consider that the necessary conditions for the application of the rule of estoppel enunciated in Dalton v. Fitzgerald (1897) L.R. 2 Ch. 86, are here absent. As we understand his judgment, Patanjali Sastri, J., appears to consider that because Veeraraghavayya had approbated the transaction by receiving a substantial benefit under the deed, in the shape of a share in the admitted properties of the estate, he should not be permitted to reprobate it in so far as it purported to convey the suit property even though that property was really his own. But this is a principle different from that which formed the basis of the decision in Dalton v. Fitzgerald (1897) L.R. 2 Ch. 86 in which the estoppel was held to arise in respect of the very property received under the grant, and not belonging to the claimant otherwise. The learned Judge here appears to have in mind the doctrine of election which is a different aspect of estoppel, though it is also founded on the same rule, namely the rule against permitting a party to approbate and reprobate the same transaction.
5. The rule of election is embodied in Section 35 of the Transfer of Property Act in regard to deeds, and in Sections 180 to 190 of the Indian Succession Act in regard to wills. To invoke this doctrine we must have a will or a deed which conveys title to a person in properties other than those belonging to himself, before he can be put to election. Here arises a common question as important for the application of the rule in Dalton v. Fitzgerald (1897)2 Ch.D. 86 as it is for the application of the principle of election. Does a surrender by a Hindu widow to her immediate reversioners amount to a conveyance, and to a conveyance by her of her property to the surrenders? We are clearly of opinion that it does not. It is settled that the true view of surrender under the Hindu Law is that it is a voluntary act of self-effacement by the widow, having the same consequence as her death, in opening up the succession to the next heirs of the last male owner. The intermediate estate is merely extinguished and not transferred and the law then steps in to accelerate the succession so as to let in the next reversioners. The surrender conveys nothing in law; it is purely a self-effacement, which must of necessity be complete; for as the Privy Council has said, there cannot be a widow partly effaced, and partly not, just as there cannot be a widow partly dead, and partly alive. The fiction of a civil death is thus assumed when a surrender takes place; and when the reversioners come in, they come in, in their own right, as heirs of the last owner, and not as transferees from the widow. The principle is not displaced by a reasonable provision being made out of the estate for the maintenance of the widow, as it is settled, that a reservation of this character does not detract from the validity of the surrender. We can see no objection to such a provision taking the form of a lump payment by the reversioners, or being fixed, if fixed bona fide, by bargain between the surrendering widow and her reversioners. Indeed it is difficult to imagine how else there could be a satisfactory arrangement for the quantum of the maintenance being duly fixed. What is important, however, to remember is that a subsidiary arrangement of the kind confined only to maintenance cannot affect the legal character of the main transaction, which still remains a surrender; it extinguishes the widow's title, and does not convey it.
6. From what has been said it is clear that there is no scope here for the application of the doctrine of estoppel or election. We must not in this connection omit to notice another difficulty in applying the rule against approbating or reprobating, to a transaction by way of surrender. Now it is open to a legatee or donee under an instrument, to elect to retain his own property to himself and refuse to take a benefit in other properties of the giver at the expense of what is his own. If he so elects, to whom does the property given go? In an ordinary case, it reverts back to the transferor or if he is dead, to his representatives. But in the case of a surrender under Hindu Law, it cannot go back to the widow, as ex hypothesi she is already civilly dead; and if it goes back to the heirs of her husband, all of them including him who refused the gift would take the property by inheritance, election or no election. It would thus appear that the peculiar transaction known as a surrender in Hindu Law does not admit of the application of the rule of election.
7. For the reasons explained, we are unable to concur in the conclusion reached by Patanjali Sastri, J., that the appellant is estopped from relying on Veeraraghavayya's title. The result is that the appeal succeeds and is accordingly allowed with costs here and in the second appeal.