1. Two points are raised for decision in this appeal. The first question we have to decide is whether when the two sisters Viyamma (the 1st defendant) and the deceased Peramma divided their women's estate, they did so merely with a view to convenient enjoyment, retaining the right of the survivor to take the whole on the death of one of them or whether such right of survivorship was expressly excluded by agreement between the parties. It is not denied that it was open to the sisters to do either in a manner binding between themselves. The question is one of fact and the learned Subordinate Judge has held that the right of survivorship was expressly excluded.
2. The properties originally belonged to one Perayya. He died without male issue and he had no co-parceners. His estate therefore passed to his widow Rajamma. She died 25 years ago and the estate then passed to Perayya's two daughters, Viyamma and Peramma, they taking a joint daughter's estate for life. It was these ladies that divided the estate. There is no partition deed, but the division is admitted by all parties, the only dispute being whether the right of survivorship between themselves was retained or expressly given up. The Subordinate Judge has accepted the evidence for the defence on the point in preference to the contrary evidence for the plaintiff. The documents he has referred toy though not very conclusive, support the defence version so far as they go, as pointed out by him. No reason has been shown for us to take a different view of the evidence in appeal. It was, however, elicited from one of the witnesses that two lists were drawn up for the properties as divided, and mention was made in them of the right of survivorship having been extinguished. Now it is contended that these lists not being produced, oral evidence cannot be allowed in proof of the transaction. The partition and the arrangement to extinguish the right of survivorship were both made orally and the list, if any, will only be one of the pieces of evidence in favour of it. Non-production of it may go to the weight of the evidence, but does not prevent other evidence being given. It is not a case to which Section 92 of the Evidence Act applies. We accept the finding of the Subordinate Judge that the right of survivorship was expressly extinguished when the partition was made.
3. The second question raised is one of law. The plaintiff claims the suit properties through the 2nd defendant who is the nearest reversioner to Perayya, to whom the surviving daughter Viyamma has executed a deed of surrender, Ex. XVI. He contends that by virtue of the surrender the 2nd defendant has become entitled to the whole of Perayya's estate and that he is not bound by any arrangement made between the two sisters. This is a question on which we are concluded by authority in this Court, and unless we differ from it and refer the question to the Pull Bench, we are bound to follow it. The ruling in Subbamma v. Subramaniam  39 Mad. 1035 is exactly in point and lays down that when a reversioner obtains the estate through the surrender by the life-estate-holder of her estate, he is not entitled to question her alienations during her life time, but must wait till her death to do so. It was urged for the appellant that this case is no longer good law after the ruling of the Full Bench in Vaidyanatha Sastri v. Savithri Animal  41 Mad. 75 which held that in the case of an adoption by a widow the right of the adopted son to question the widow's alienations accrued at once, overruling the decision in Sreeramulu v. Kristnamma  26 Mad. 143 which was relied on as an authority in Subbamma v. Subramaniam  39 Mad. 1035. The ruling in Vaidyanatha Sastri v. Savithri Animal  41 Mad. 75 cannot, however, be taken as shaking the authority of the Subbamma v. Subramaniam's case  39 Mad. 1035 when we find two of the learned Judges on the Pull Bench, the late Chief Justice Wallis and Kumaraswami Sastri, J., expressly referring and approving of that ruling and distinguishing it. The Chief Justice had affirmed the same proposition in Singaram Chettiar v. Kaliyanasuudaram Pillai  1 L.W. 687. A ruling to the contrary in C.M.A. No. 322 of 1919 was cited to us in an unreported decision of Oldfield and Seshagiri Aiyar, JJ., where it was held that a reversioner claiming by surrender from a widow was in the same position as a person adopted by a widow and could at once challenge the widow's alienations; but this case, besides being unreported, was not followed by 'Wallis, C.J., and Oldfield, J., himself when it was cited to them in the case reported in Sri Rajasuryarao Bahadur Garu v. Sri Rajasuryanarayana Jagapathi Bahadur Garu A.I.R. 1921 Mad. 332. Oldfield, J., practically went back on his former judgment. In this state of authority I am not prepared to differ from the ruling in Subbamma v. Subramaniam  39 Mad. 1035 above referred to on a supposed analogy between the case of a son adopted by a widow and a reversioner claiming by virtue of a surrender by the widow on the ground that both of them claim from the last male holder and not from the widows.
4. As Kumaraswami Sastri J., points out in Vaidyanatha Sastri v. Savithri Animal  41 Mad. 75 the Courts are justified in recognising the right of the surrender by the widow, to impose conditions on her power based on considerations of justice, equity and good conscience. Whereas in this case the surrender was effected for the purpose of defeating the alienees for consideration, the rule that till the surrenderer dies her acts cannot be questioned by the surrenderee seems to be a just and equitable rule. I would, therefore, follow the ruling in Subbamma v. Subramaniam  39 Mad. 1035 and hold that the plaintiff is not entitled by virtue of the surrender deed, Ex. XVI, to question the alienations of Peramma in favour of the defendants till Viyamma dies and the joint life-estate comes to an end.
5. In this view it is not necessary to consider whether the surrender is an invalid transaction in the circumstances of this case. Both the points taken by the appellant failing, the appeal must be dismissed with costs of Respondents 5 to 20.