1. This second appeal is preferred against the Decree and Judgment of the learned District Judge of Madurai in A.S. No. 116 of 1952, practically confirming the decree and judgment of the learned Subordinate Judge of Madurai in O.S. No. 182 of 1949.
2. The facts are : The parties in this case belong to a small community known as Athangudi Chettiars who live in seven villages, viz., Navinipatti, Vellalapatti, Kottakudi, Keelur, Attapatti, Eriyoor and Mellakottai. They also appear to be known by the name of Elur Chettiars. One of the pretensions put forward was that these Athankudi Chettiars are a sub-sect of NattukottaiChettiars but this has not been persisted in. In regard to these Athankudi Chettiars, in O.S. No. 436 of 1927, District Munsif's Court, Melur, a custom was set up that amongst them if a male who is divided from his coparceners dies without leaving a male issue, his pangalis, i.e., agnates will get his properties to the exclusion of the widow or daughters of the deceased and the pangalis are bound to provide for the maintenance of the widow and also of any daughters of the deceased till their marriage and they are also bound to get the daughters married and that even if the deceased left no properties, the pangalis are bound to maintain the widow and marry the daughters. Nothing was stated in the written statement, however, as to what would happen if the deceased had a daughter's son or a mother. During the course of the trial some instances were spoken to where the mother also had been excluded, just like the widow and the daughter. But no instance was spoken to where the deceased left a daughter's son also.
3. One Alagappa Chetti, an Athankudi Chetti, died in January-February, 1917, leaving considerable properties and surviving him his widow Karuppayi Achi, the 5th defendant in O.S. No. 436 of 1927, and three daughters, viz., the plaintiff therein Settichi, the sixth defendant therein A.P.A. Karuppayi, and one Koothammai. This Koothammai died subsequently without issue. In these circumstances on 25th July, 1926, the perumpangalis of the deceased Alagappa Chetti, got a release deed executed by the widow Karuppayi Achi. The sum and substance of this document is that in accordance with this custom, which is not mentioned however in the document, on the death of AlagappaChetti without any male issue these perumpangalis became entitled to the entire properties, that the widow was entitled to maintenance, that Karuppayi (daughter) was only entitled to stridhanam, that there were disputes between them in regard thereto when the perumpangalis attempted to get the entire properties, that by reason of a mediation in return for the perumpangalis giving the widow some properties for her lifetime and giving the daughter Karuppayi some properties as stridhanam for her lifetime, they were parting with all their rights in Alagappa Chetti's estate. The perumpangalis have executed a settlement deed, dated 25th July, 1926, giving, as already mentioned, some properties as stridhanam, to the daughter Karuppayi for her lifetime.
4. O.S. No. 436 of 1927 was instituted by Settichi, asking for a declaration that the maintenance release deed executed on 25th July, 1926, was not valid and did not confer any rights on defendants 1 to 4 therein, viz., the perumpangalis and for the appointment of a Receiver to manage the properties, etc. The learned District Munsif Mr. P.S. Chandrasekhara Ayyar, who went into the matter elaborately came to the conclusion that the custom alleged and on the foot of which the maintenance release deed had been executed was not made out. The learned District Munsif cited Mooka Kone v. Ammakutti (1927) 54 M.L.J. 174 : I.L.R. 51 Mad. 1 for the well settled proposition that for a custom to have the force of customary law it should be ancient, invariable, continuous, notorious, not expressly forbidden by the Legislature, not opposed to morality or public policy and that as regards the instances in support of the custom they should be established by clear and unambiguous evidence and must be conclusive.
5. On the foot of this finding he gave a declaration that the nearest reversioner to the estate of the deceased Alagappa Chetti on the death of Alagappa's widow, the 5th defendant, would be entitled to recover free from the obstruction of defendants 1 to 4 the properties mentioned in the plaint schedule other than (1) those included in Exhibit VI the othi deed executed by Alagappa in favour of the 4th defendant; (2) those included in Exhibit XIII the othi deed executed by the 5th defendant in favour of the 3rd defendant; (3) the properties which had been given as stridhanam to the 6th defendant and her sister the deceased Koothammai, viz., those set out in paragraphs 4 and 5 of the written statement of defendants 5 and 6 and (4) 20 cents on the western side of item 13. The plaintiff was found entitled to apply to the Court for the appointment of a Receiver for the above said properties in the event of the dismissal of O.S. No. 617 of 1929 instituted by defendants 5 and 6 for default or for any other sufficient reason. Defendants 1 to 5 were found entitled to recover from the Receiver or the reversioner as the case may be when they are dispossessed of the properties a sum of Rs. 1,188-4-0 which they have spent on behalf of Alagappa's estate and for this amount they were given a charge on the properties of Alagappa. We must bear in mind that on the date of the maintenance release deed the plaintiff in the instant suit Natarajan aliasChinnakaruppan Chettiar had been born to Settichi.
6. I shall complete the information about O.S. No. 436 of 1927. There was an appeal therefrom in A.S. No. 67 of 1932. The Decree and judgment of the lower Court were affirmed by the learnedSubordinate Judge Mr. Daniel Chellappa on 19th January, 1934. There was a second appeal therefrom in S.A. No. 218 of 1934 and this was disposed of by Wadsworth, J., on 3rd September, 1935 and the second appeal was dismissed.
7. O.S. No. 73 of 1935, Sub-Court, Madurai, was filed by the widow Karuppayi and her daughter Karuppayi the 8th defendant in this suit, questioning the validity and binding nature of the deed, dated 25th July, 1926. That suit got dismissed.
8. Thereafter, the plaintiff herein Natarajan Chettiar and the widow Karuppayi filed O.S. No. 223 of 1945 on the file of the District Munsif's Court, Melur, for redemption of the othi, dated 16th March, 1918, executed by the widow Karuppayi in favour of defendants 1 and 4. The District Munsif decreed the suit for redemption. On appeal, A.S. No. 187 of 1946, the District Judge of Madurai held that during the lifetime of the widow Karuppayi there can be no redemption and dismissed the suit. On second appeal No. 1117 of 1947, SatyanarayanaRao, J., allowed the appeal and restored the decree of the trial Court. It may be incidentally pointed out that apparently as an act of revenge, the pangalis contended that Natarajan was not the legitimate son of Settichi born in lawful wedlock. It will be remembered that Settichi was contending in her suit that these pangalis were not the pangalis of her father, which was equally untrue.
9. In these circumstances this Natarajan Chettiar has filed the suit out of which this second appeal arises for recovery from defendants 1 to 6 and 9 possession of the plaint schedule properties with past mesne profits Rs. 1,070 and future mesne profits. Nataraja based his suit on the foot of two documents forming a composite whole, viz., Exhibits A-1 and A-2. Exhibit A-1 styled as a release deed dated 29th September, 1943 runs as follows:
This release deed called the deed of surrender.... executed in favour of (1) Shettichi Achi, wife of C. Narayanan Chettiar, residing at Navinipatti.... and daughter of late A.P. Alagappa Chettiar.... (2) A.P.A. Karuppayi, younger sister of the aforesaid.... (3) Chinna Karuppan Chettiar called Natarajan, son of the first aforesaid.... by Karuppayi Achi, wife of the late A.P. Alagappa Chettiar.
My husband Alagappa Chettiar died in or about 13th February, 1917, leaving me as his heir. I was enjoying all the properties having got (the said properties) according to the Hindu law. In the said properties I had a right to enjoy during my lifetime that is only a life interest. While I was so enjoying, one R.M. Palaniappa Chettiar of Kottagudi, a senior pangali of my husband fraudulently obtained from me a deed of release of maintenance right on 25th July, 1926. The first of you filed a suit O.S. No. 436 of 1927 on the file of the District Munsif's Court, Melur, stating that the said release deed was not valid and would not bind the reversion and it has been decided in all the three Courts--original and appellate--that the release deed will not bind the reversion. Therefore, this release deed has been executed by me in your favour, revoking the said release deed of 25th July, 1926. Since the first and second of you being daughters of the late Alagappa Chettiar and myself and are the next female reversioners since the third of you is the nearest male reversioner being the daughter's son of myself and late Alagappa Chettiar and the son of first of you and so entitled to get the properties of late Alagappa Chettiar as the heir under the Hindu law, since I have been protected and given maintenance, etc., since the third of you is my affectionate grandson and the said person himself is entitled to perform my obsequies, etc. and since I do not require the said properties, I had a right to enjoy during my lifetime that is, said properties, I hereby surrender all my rights and inter rests in value of Rs. 3,000.
10. Exhibit A-2, dated 30th September, 1943, styled as a surrender deed runs as follows:
Surrender deed of release executed and delivered on the 30th September, 1943, in favour of Natarajan alias Chinnakaruppan Chettiar, son of C. Narayanan Chettiar.... by us two, namely, (1) Chettichi Achi, wife of C. Narayanan Chettiar, and daughter of late A.P. Alagappa Chettiar.... and (2) A. P.A. Karuppayi, younger sister of the aforesaid person.... Our father Alagappa Chettiar died in or about 13th February, 1917. His wife and our mother viz., Karuppayi Achi succeeded to the properties for a life estate according to Hindu Law and enjoyed them when Kottagudi RM. Palaniappa Chettiar and Ors. who were our father's perumpangalis (Senior pangalis) got a release deed executed from our mother Karuppayi Achi and individual No. 2 among us on 25th July, 1926, fraudulently and individual No. 1 among us filed a suit in O.S. No. 436 of 1927 on the file of the District Munsif's Court, Melur, to the effect that the said deed is not valid and it was decided accordingly in all the three Courts, namely, the original and the appellate Courts, that the said deed will not be binding on the reversioners. Hence cancelling the aforesaid release deed, dated 25th July, 1926, our mother Karuppayi Achi surrendered all her rights and ' swatantaram ' in the undermentioned properties belonging to her husband Alagappa Chettiar to us and you by means of surrender deed, dated 29th September, 1943. Therefore we have obtained the right to enjoy during our lifetime the undermentioned properties belonging to Alagappa Chettiar. As you are the only son born to me individual No. 1 among us, and you have been properly attending to my maintenance, etc., till now and I individual No. 2 have no issue whatever and I have become sickly and as you alone have the right to perform ourobsequies ceremonies, etc. and we do not need any property and you are the dauhitram (daughter's son) the next male reversioner to the late Alagappa Chettiar we have hereby surrendered to you all our right, title and interest in the immovable properties belonging to our father late Alagappa Chettiar worth about Rs. 3,000 and mentioned hereunder. You shall hold and enjoy theunder-mentioned properties yourself from this day onwards with all' swatantaram ' rights with powers of alienation by way of gift, exchange and sale.
11. The stamp papers for these two documents have been purchased at the same time and the writer of both these documents is the same, viz, PS. M. Meeran of Navinipatti. The attesting witnesses are practically identical and the registration of both these documents has taken place on 22nd October, 1943, between the hours of 1 p.m. and 2 p.m. The identifying witnesses are the same.
12. The substantial contention of the defendants is comprised in the three questions which were argued before the lower appellate Court by late Sri A. Vaidyanatha Ayyar and which are the following:
(1) The surrender deed, dated 29th September, 1943, executed by the widow Karuppayi was in favour of her daughters and the daughter's son (the plaintiff) and hence the surrender to the daughters did not comprise the totality of the estate.
(2) The previous decision in O.S. No. 436 of 1927 was not res judicata on the question of the binding nature of the release deed (Original of Exhibit B-1).
(3) The mesne profits decreed are excessive.
On these three points the lower appellate Court came to the same conclusion as the learned Subordinate Judge except in regard to the quantum of past mesne profits and confirmed the decree of the lower Court subject to that modification and dismissed the appeal. Hence this second appeal.
13. Two points pressed before me in Second Appeal are : If the surrender by Karyppayi had been in favour of defendants 7 and 8 alone under Exhibit A-1 and defendants 7 and 8 had made a further surrender of the rights they had obtained under Exhibit A-1 in favour of the plaintiff, the transaction would not be open to exception; but by virtue of the plaintiff also having been joined in Exhibit A-1 as a person to whom Karuppayi was surrendering her estate under Exhibit A-1, the surrender in favour of her daughters cannot be said to be complete or comprise the totality of the estate. Secondly, that the lower Courts ought to have held that the plaintiff was not entitled to the benefit of section g-A of Madras Act (IV of 1938).
14. The settled law on surrender by a widow is that a Hindu widow can renounce the estate in favour of the nearest reversioners, and by a voluntary act efface herself from the succession as effectively as if she had then died. This voluntary self-effacement is sometimes referred to as a surrender, sometimes as a relinquishment or abandonment of her rights. The whole doctrine of surrender and consequent acceleration of the estate of the reversioners has been evolved by Courts on general principle of Jurisprudence and the surrender by the widow and the acceptance of the estate by the reversioner are purely matters of contract. The large body of case-law on this subject has been lucidly analysed and set forth in the form of general principles in the standard commentaries on Hindu Law; Shri N.R. Raghavachariar's Hindu Law, Third Edition, page 610 and foll.: S.V.Gupta's Hindu Law, Second Edition, page 679 and foll.: Mulla's Principle of Hindu Law, nth Edition, page 216: Mayne's Hindu Law, nth Edition, page 786 and foll. : see also Vaidyanathan v. Savithri (1918) 33 M.L.J. 387 : I.L.R. 41 Mad. 75 ; Behari Lal v. Madho I.L.R.(1891) Cal. 236 : L.R. 19 IndAp 30 and Rami Reddi v. Rossamma : AIR1955AP232 .
15. The essence of surrender being self-effacement, if there is a bona fide and total renunciation of the widow's right to hold the property, no particular form is necessary to have it effected. No written instrument is required under the law, though if one is executed it requires to be registered. The essence of surrender being that the widow should part with the whole of her interest, it does not matter if it is done by one single act or by a process consisting of several stages of successive acts. Bhagawat Koer v. Dhanukdari (1919) 37 M.L.J. 513 : L.R. 46 LA. 259 : I.L.R. 47 Cal. 466; Venkadri v. Subba Reddi : AIR1925Mad382 , Nirmal Chandra v. Mahitosa : AIR1936Cal106 , Gauri Bai v. Jaya Bai (1926) 97 I.C. 995; Surya Rao v. Suryanarayana : AIR1921Mad332 and Mark v. Hansu : AIR1926All413 .
16. The following are essential requisites of a valid surrender:
(1) It must be in favour of the nearest reversioner, if only one or the whole body of such reversioners. It is immaterial whether the next nearest reversioner is a female; the surrender may be made in favour of the female reversioner even though she takes only a limited estate : Rama Iyer v. Narayanaswami (1925) 51 M.L.J. 313; Rangaswami v. Nachiappa (1918) 36 M.L.J. 493 : L.R. 46 IndAp 72 ; Dharma Rao v. Veeriah : AIR1945Mad274 and Sitanna v. Veeranna (1934) 67 M.L.J. 20 : L.R. 61 IndAp 200 : 57 Mad. 749 .
(2) The surrender must be total, not partial, and a partial surrender is invalid even if it is to the nearest reversioner and absolute as to that part. But this rule applies only in the case of her husband's estate and the fact that a widow has not relinquished her stridhana also does not affect the validity of her surrender : Rangaswami v. Nachiappa (1918) 36 M.L.J. 493 : L.R. 46 IndAp 72 ; Sureshwar Missir v. Mahesrani (1920) 39 M.L.J. 161 andMarudamutha v. Srinivasa (1897) 8 M.L.J. 69 : I.L.R. 21 Mad. 128 .
(3) The surrender must be a bona fide surrender and not a device to divide the estate with the reversioners, Sureshwar Missir v. Mahesrani (1920) 39 M.L.J. 161 ; Rangaswami v. Nachiappa (1918) 36 M.L.J. 493 : L.R. 46 IndAp 72 ; Krishnamurthi v. Seshayya (1944) 1 M.L.J. 443; Bhagawat Koer v. Dhanukdari (1919) 37 M.L.J. 513 : L.R. 46 IndAp 259 : I.L.R. 47 Cal. 466 ; affirmed in Radharani Dassaya v. Brindarani Subba Lakshmi v. Narayana Ayyar (1934) 67 M.L.J. 179 : 40 L.W. 196 and Angamuthu v. Varadaraju : (1919)37MLJ384 .
(4) A surrender effected by a widow in ignorance of her rights and without realising the true position of affairs is not valid in law, Krishna Bhatta v. Subbanna : AIR1929Mad611 .
17. In this case all the requisites of a valid surrender have been fully made out. The surrender was in favour of the two nearest reversioners, viz., daughters. The association of the plaintiff with the two limited owners was not of a stranger but was of a daughter's son of the last male owner who would be the next presumptive reversioner to succeed on the termination of the daughter's life interest. There was no attempt under Exhibit A-1 to enlarge the estate of defendants 7 and 8 which was a limited one under the law into an absolute estate by the ex facie transfer under Exhibit A-1. There are no words of transfer in Exhibit A-1 and it cannot be said that by virtue of the very terms of Exhibit A-1 defendants 7 and 8 could get any higher rights. Secondly, Exhibits A-1 and A-2 as mentioned above form part of the same transaction, though Exhibit A-2 bears the next date to that of Exhibit A-1 but registered at the same time. By Exhibit A-2 defendants 7 and 8 have declared that under Exhibit A-1 they got only a limited estate and that the plaintiff in whose favour Exhibit A-2 was executed was the nearest male reversioner on whom the properties would devolve under the Hindu Law. The plaintiff has also been described as the next male nearest reversioner to the estate of Alagappa Chetti. Exhibit A-1 did not purport to interfere with the course of succession and it is not possible to consider Exhibit A-1 as transferring the properties both to defendants 7 and 8 as well as plaintiff because in Exhibit A-1, as just now mentioned, there are no words of transfer. In other words, the surrender was total constituting self-effacement by the widow. The widow has retained nothing for herself and the surrender was a bona fide surrender and not a device to defeat the estate of the reversioners. The surrender has been effected by the widow with full knowledge of her rights and fully realising the true position of affairs. In fact the English term ' deed of surrender ' has been specifically used probably after taking legal advice, showing that the widow was fully conscious of her rights and realised the true position of affairs. Similarly, the other document Exhibit A-a is specifically styled as a surrender deed. In fact the document bears the impress of having come into existence after taking legal advice. Therefore, these composite documents make it clear that what Karuppayi surrendered was the totality of the estate.
18. That this composite transaction is valid in law is fully brought out in the following decisions relied upon by both sides. In Nagi Reddi v. Durairaja Naidu
Mr. Rajah Ayar made a strenuous attempt to induce us to hold that the document is a composite document combining really two separate transactions, one, an act of surrender by the widow of the entire estate in favour of her daughter and the other a transfer of a portion of the interest which thus vested in the daughter in favour of her husband. If the document could be read and interpreted that way, obviously, the decision should be in favour of the appellants; but, in our opinion, there seem to be difficulties and those of an insuperable character in the way of construing the document being interpreted as such. Neither in form nor in substance does the document purport to be a relinquishment of the entire widow's estate in favour of the daughter alone, nor is there any indication that the interest intended to be given to the son-in-law was being received by him by way of transfer from the daughter. The document is not one executed by the widow and her daughter jointly in favour of the son-in-law containing a recital of relinquishment of the estate by the widow in favour of the daughter and transferring a portion of the same to the son-in-law. The daughter does not figure as an executant of the deed nor even as an attesting witness. She is the recipient of the deed along with her husband and it is impossible to spell out of the document either that she received the entire estate on renunciation by her mother or transferred or even consented to transfer a portion of it to her husband.
19. The observations clearly show that these two separate transactions constitute a valid surrender of the totality of the estate by the widow.
20. In Mt. Phool Kuer v. Mt. Pem Kuer (1952) S.C.J. 296 : (1952) 1 M.L.J. 823 (828) : (1952) S.C.R. 793 their Lordships of the Supreme Court say:
Assuming however for the sake of argument that Mohan Kuer purported to relinquish her estate in favour of Jwala Prasad and Madho Lal, in our opinion, the relinquishment cannot in law operate as an extinction of her title in the estate. The principle underlying the doctrine of surrender is that it cannot possibly be made in favour of anybody except the next heir of the husband. Vesting of the estate in the next reversioner takes place under operation of law and it is not possible for the widow to say that she is withdrawing herself from the husband's estate in order that it may vest in somebody other than the next heir of the husband. It was held by this Court in Magi Reddi v. Durairaja Naidu : 2SCR655 that so far as the next heir is concerned, there cannot be a surrender of the totality of the interest which the widow had, if she actually directs that a portion of it should be held or enjoyed by somebody else other than the husband's heirs and that the position is not materially altered if the surrender is made in favour of the next heir with whom a stranger is associated and the widow purports to relinquish the estate in order that it may vest in both of them....
This has not been the case here.
21. In Rami Reddi v. Rosamma : AIR1955AP232 wherein the law of surrender has been summarized, the learned Judges held that a relinquishment made by a widow of the entire estate of her husband in favour of the next reversioner pursuant to an arrangement that the reversioner should give a part of it to a nominee of the widow is not valid in law, since the result will be inconsistent with her self-effacement for under the self-effacement the reversioner should get the entire property. This is not the case here. Point 1 fails.
22. Point 2.- Section 9-A of Madras Act (IV of 1938) could not apply to the facts of this case because it applies in the context to transfers between 30th September, 1937 and before 31st January, 1948. Exhibits A-1 and A-2 are not transfers contemplated by Section 9-A. The following observations of Mukherjea, J., (as he then was) in Natvarlal v. Dadubhai : 1SCR339 (S.C.) are apposite:
Thus surrender is not really an act of alienation of the widow of her rights in favour of the reversioner. The reversioner does not occupy the position of a grantee or transferee and does not derive his title from her. He derives his title from the last male-holder, as his successor-in-law and the rights of succession are opened out by the act of self-effacement on the part of the widow which operates in the same manner as her physical death. It is true that a surrender may and in the majority of cases does take the form of transfer, e.g., when the widow conveys the entire estate of her husband without consideration and not as a mere device to share the estate with the reversioner, in favour of the latter. But it is the self-effacement by the widow that forms the basis of surrender and not the ex facie transfer by which such effacement isbrought about.' The true nature and effect of a surrender by a Hindu widow of her husband's estate have been thus summed up and in our opinion quite correctly, by a Division Bench of the Madras High Court Damaraju v. T. Narayana : AIR1941Mad430 .
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 consequences as her death, in opening up the succession to the next heirs of the last male owner. The intermediate stage is merely extinguished and not transferred and the law then steps in to accelerate succession so as to let in the next reversioner. The surrender conveys nothing in Law : It is purely a self-effacement which must of neccessity be complete: for, as the Privy Council has said, there cannot be a widow partly effaced and party 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.
A surrender conveys nothing in law and merely causes extinction of the widow's rights in her husband's estate....
Point 2 also fails.
24. Before parting with this case I must deal with an argument at the Bar that 1926 release deed might be viewed as a compromise by a limited owner in the nature of a familyarrangement. There are four clinching circumstances why this cannot be done : Firstly the 1926 document is styled as a release deed and the terms thereof constitute a complete abandonment or relinquishment of the widow's rights in return for a small personal advantage. Secondly, the plaintiff was minor on that date and the document secures no benefit to the estate. It operates as a complete and total destruction of all reversionary interests. Thirdly, in all the previous litigations this has never been set up. Fourthly, in this very litigation it has not been set up and formed the subject-matter of an issue and has not been the subject of a specific ground of appeal or argument. Thus none of the requisites of a bona fide settlement of dispute and an arrangement entered into for the benefit of the estate which are the hall marks of a family arrangement usually unassailable are present here(S.V. Gupta's Hindu Law, Third Edition, page 637 and foil : Mulla's Principle of Hindu Law, nth Edition, pages 209-14 (Sections 192-194); Mayne on Hindu Law, nth Edition, page 797; N.R. Ragavachari's Hindu Law, Third Edition (M.L.J.), page 566).
25. This Second Appeal has got to be and is hereby dismissed without costs here. No leave.