R.P. Mookerjee, J.
1. As I agree with the conclusions as indicated in the judgment to be just delivered by my learned brother, I do not think it necessary to discuss the various questions raised. There is, however, one matter to which I would advert.
2. One of the most important questions raised in this appeal depends upon the interpretation of a document which is marked as Ex. 1 in this case. This document was executed by the Registrar of this Court on behalf of certain parties under the orders passed by the Court in Original Suit No. 305 of 1907 in the Original Side of this Court. During the hearing of the present appeal before us, it was clear that the records of that suit should be looked into. We ourselves felt the difficulty and on the 25th July 1956, we passed the following order:-
'Both the parties agree that the records in Original Suit No. 345 of 1907 should be brought up. The order passed by this Court in that suit on the 9th March 1909, cannot be understood or properly explained without the records being looked into. We direct the Registrar, Original Side, to send to this Court the original records in Suit No. 345 of 1907 (Sm. Fool Commaree Dasi v. Sm. Prabhabati Dasi).'
3. On the 27th July 1956, two bundles of documents were received from the Registrar, Original Side, from the records of Suit No. 305 of 1907. The papers in the bundles were most of them unimportant petitions, some of them before the 30th March 1909, and some subsequent thereto. The original pleadings and even the decree and certain other original records were not sent up. The office was directed to make a further search. Such search proved in-fructuous, and on the 1st August 1956, an application was filed on behalf of the respondent for receiving additional evidence under Order 41, Rule 27 of the Code of Civil Procedure. It was prayed that the certified copies of two deeds which had been executed on the 1st April 1909, and the 22nd July 1909, might be admitted in evidence in this Court. These transactions, it is stated, had been referred to in Ex. 3 of this case, viz., the amicable partition between Pravabati and Mitter Brothers on the 25th January 1915.
4. Further hearing of the appeal had been adjourned pending more intensive search in the Records in the Original Side of this Court. That also has proved infructuous.
5. The prayer made by the respondent for the reception of additional evidence hasbeen resisted on behalf of the appellant. Order 1 41, Rule 27 of the Code of Civil Procedure enumerates the circumstances under which additional evidence may be received. It is not the intention of the Legislature to allow admission of a document as additional evidence at the appellate stage which by itself is no proof of the circumstances under which the document, dated the 30th March 1909, had been executed. There are some statements contained in these subsequent documents leading at best to an inference as to what had happened previously. Under such circumstances the documents cannot be received in evidence in this Court. The existence of these documents were known to the party also. The reception of such documents at this stage would have led to a formal proof of the documents themselves and an opportunity would have to be given to the appellant to adduce evidence in rebuttal. That is neither possible, nor desirable.
6. We cannot leave this case without placing on record the unfortunate circumstances under which the records were found to be missing from the Original Side of this Court. The manner in which original documents including pleadings, decrees, etc., are kept in bundles without any full list of particulars of the contents thereof is wholly unsatisfactory. The manner in which such bundles are taken out from the records for examination or inspection and put back again without full and complete examination or proper security makes it possible for the loss of important original records being not brought to the notice of the Court or of the authorities. Documents are also misplaced. That also remains unnoticed. It is highly anamolous that the Court which purports to be a Court of Records is not in a position to maintain the records properly. It appears that the reorganisation of the Record Department of the Court in the Original Side had been going on for many decades, but from the incident which we have now before us it does not appear that there has been any material check on the maintenance of records and the preservation thereof. This is not the first or stray occasion when records are not traceable in the Original Side of this Court. The system which had been in vogue in England a few centuries ago to be continued in this country requires re-examination in the interest of proper administration of justice and in the interest of the litigant public as well. The changes which have been introduced in England even have to betaken note of. We are not concerned in this case with the general question, but the unfortunate position in which we find ourselves requires this matter to be brought to the forefront so that such mischief may not occur in future.
7. This appeal is dismissed with costs. No separate order is necessary as regards the cross-objection.
8. This appeal arises out of a suit which was dismissed by the First Additional Subordinate Judge, Alipore, on the 30th day of March1950, It was a suit for declaration of the plaintiffs' title to one-third share of a certain property situate at Baranagar and comprised of both land and building and for recovery of possession thereof on partition. The property belonged originally to one Jadav Kumar Singha who died in 1867 leaving him surviving his mother Padma Mani, two wives Lakshmipriya and Foolkumari and a daughter Pravabati born of Foolkumari. Lakshmipriya died in 1878 and Padma Mani in 1913. Pravabati had been married to one Tripundeswar Mitter and had three sons named Achal, Ajoy and Asoke. She died in 1916. Thereafter Achal died in 1929 leaving him surviving his widow Ashalata and two daughters Sobha Rani and Rama Rani. He left a Will by which he bequeathed all his properties to his wife and daughters and appointed one Prafulla Kumar Ray as Executor, Foolkumari died on the 28th July 1934. Ajoy died in 1943 leaving behind him his wife and six sons as his heirs.
9. The suit was instituted by the widowand two daughters of Achal and by Prafulla Kumar Ray, Executor to the estate of Achal, as plaintiffs, on the 29th of July 1946. Subsequently Prafulla Kumar's name was deleted and Ashalata described herself as the Administratrix to the estate of Achal. The first defendant in the suit was one Amiya Kumar Dey who was described as a transferee of the property in suit from Ajoy and Asoke. The heirs of Ajoy were defendants Nos. 2 to 8 and Asoke was defendant No. 9. Asoke died during the pendency of the suit but his heirs were not brought on the record.
10. In the year 1907 there had been a suit in the Original Side of this Court, being Suit No. 345 of 1907, instituted by Foolkumari against Prabhabati, in which the former prayed for certain reliefs, on the footing that Prabhabati was in possession, as her agent, of certain properties left by Jadav, as described in the Schedule to the plaint thereof, and should make over to her possession of two-thirds share thereof and the said suit, after being contested for some time, was decreed on compromise. The terms of the compromise were that Foolkumari would receive from Prabhavati a lump sum of Rs. 17,400 and a monthly allowance of Rs. 200 during the term of her natural life, the payment of which would be secured by a charge on certain properties, and that in consideration thereof she would, with the consent and concurrence of Prabhabati, relinquish, and Prabhabati in her turn would confirm and relinquish, all their right, title and interest in the said properties in favour of Achal, Ajoy and Asoke, the ultimate reversioners. A document was prepared in terms of the compromise decree and it was executed by Prabhabati, Achal, Ajoy and Asoke, but as Foolkumari did not execute it, it was executed on her behalf by the Registrar of the Original Side of this Court on the 30th March 1909, in pursuance of an order of the Court dated the 9th March 1909.
11. The plaintiffs' case was that this document operated as a deed of surrender of theinterests of Foolkumari and Prabhabati in all the properties left by Jadav including the property which is the subject-matter of the present suit and that thereby succession to the estate of Jadav was accelerated in favour of his three daughter's sons Achal, Ajoy and Asoke who were the ultimate reversioners. It was alleged that the effect of this document was that the property of this suit along with all the other properties left by Jadav vested absolutely in them from the date of the document, but that as Foolkumari remained in possassion of the property of this suit in terms of the document the delivery of possession of the said property was postponed until after her death. It was further alleged that Achal, Ajoy and Asoke effected a partition of their properties in 1915 and made a provision in the Partition Deed for construction of a dwelling house for Foolkumari on the property of this suit by equal contribution and that it was settled then that after the death of Foolkumari each of them would get one-third share of the property including the building. The plaintiffs stated that after the death of Foolkumari on the 28th July 1934 they and Ajoy and Asoke jointly took possession of the said property and that Ajoy and Asoke continued thereafter to manage it as the joint property of all the co-sharers including the plaintiffs, but that on the 12th October 1934, they transferred the entire property to the first defendant without the knowledge of the plaintiffs. The plaintiffs alleged to have come to know of this transfer only on the 27th July 1946. They claimed that as the property had vested in Achal on the 30th March 1909, they had acquired title to the same by the Will left by Achal which included this property and that the transfer to the defendant No. 1 had not affected their right, title and interest therein. They accordingly prayed for a declaration of their title to the extent of one-third share to the said property and for recovery of possession thereof on partition.
12. The suit was mainly contested by the defendant No. 1 whose defence was supported by defendants Nos. 2 to 8 who filed a separate written statement. The defence, so far as is material for our purpose, was that Foolkumari never surrendered nor relinquished her right, title and interest in the property in suit by the document dated 30th March 1909, but held and possessed the same as a limited owner until her death when the succession to the property opened and that the two surviving reversioners Ajoy and Asoke then inherited it. The defendant No. 1 further claimed that he was a bona fide purchaser for value without notice of the plaintiffs' alleged title and pleaded that their title, if any, had been extinguished by adverse possession.
13. The learned Subordinate Judge found that the suit having been instituted on the 29th July 1946, within twelve years of the death of Foolkumari (28th July 1946 having been a Sunday), no question of limitation or adverse possession arose. On the question of the plaintiffs' title he came to the conclusion, after construing the document of the 30th March 1909, thatthough it was a deed of surrender, the property in suit was expressly excluded from its operation and that Foolkumari retained her right, title and interest as a limited owner in the said property until her death. He accordingly held that Achal did not inherit any interest in this property and that the plaintiffs could not claim any title thereto and dismissed the suit with costs.
14. The plaintiff No. 1 Ashalata Mitter has appealed against this decree in the capacity of Receiver and Administratrix to the estate of Achal and has joined her daughters, plaintiffs Nos. 2 and 3, as respondents. The defendant No. 1 was the original respondent No. 1, but he having since died his heirs have been brought on the record. The other defendants have also been joined as respondents in this appeal.
15. The main question which has been argued in this appeal is about the construction of the document dated the 30th March 1909 and marked Ex. 1, and in order to appreciate the contentions raised on both sides it is necessary to set out a summary of the provisions of this document. The document is described as a deed of relinquishment made between Foolkumari Dasi of the first part, Pravabati Dasi of the second part and Ajay, Achal and Asoke Mitra of the third part. In the preamble to the document it is recited that Jadav Krishna Singha died interstate in the year 1867 'possessed of amongst others the properties mentioned and described hereunder and in the schedule hereto annexed'. Next it recites the names of the two widows and the daughter of Jadav and his three daughter's sons and refers to the Suit No. 345 of 1907 and the respective allegations of the plaintiff and the defendant, that is, Foolkumari and Prabhabati, therein. Thereafter, it recites that Prabhabati had agreed, without waiving the contentions raised in the suit but with the object of avoiding the troubles and expenses of a litigation and to purchase peace, to pay to Foolkumari the sum of Rs. 17,400 and a further sum of Rs. 200 monthly during the term of the natural life of Foolkumari, the payment of which was to be secured as provided in the document, on having a relinquishment or assignment executed by Foolkumari 'of her right, title, interest, estate, claim and demand whatsoever into or upon the properties mentioned and described hereunder and in the schedule hereto annexed. 'Finally the preamble refers to the order made by this Court in Suit No. 345 of 1907 on the 9th March 1909 directing the Registrar to execute the said Relinquishment in favour of Prabhabati as provided in the decree passed in the said suit.
16. Then come the operative clauses of the document and the first clause recites that in pursuance of the said agreement and in consideration of the sum of Rs. 17,400 paid by Prabhabati in this Court and in further consideration of the covenant by Prabhabati to pay Rs. 200 every month and the charge created there-for 'the said Srimati Foolkumari Dasi doth hereby, at the request and with the consent andconcurrence of the said Srimati Prabhabati Dasi, relinquish, release and assign and the said Srimati Prabhabati Dasi in consideration of her natural love and affection..... doth hereby confirm and relinquish release and assign up to the said Ajoynath Mitra, Achal Nath Mitra and Asoke Nath Mitra who are the ultimate reversionary heirs.......all that the res-pective right, title, interest, estate, inheritance, use, trust, possession, property, claim and demand whatsoever both at law and in equity which the said Srimati Foolkumari Dasi and Srimati Prabhabati Dasi as the sole surviving widow and daughter respectively of the said Jadav Krishna Singh deceased had have or may hereafter have or be entitled to or which may hereafter be vested in them or which or any portion of which the said Srimati Foolkumari Dasi has or might have allowed or permitted Srimati Padma Mani Dasi the mother of the said Jadav Krishna Singh deceased to enjoy or get the profits of........by virtue of any arrangement, compromise or agreement come to between them or which may hereafter revert to the said Srimati Foolkumari Dasi or the said Srimati Prabhabati Dasi on the death of the said Srimati Padma Mani Dasi into or upon the specific land and premises particularly described in the schedule hereto annexed........'The clause also includes all movable properties belonging to the estate of Jadav. The schedule annexed to the document contains 11 items of properties but not the property of this suit. The document declares a charge for the payment of the monthly allowance for maintenance on the properties described in the schedule and finally the document contains the following recital regarding the property of this suit: 'And it is hereby expressly agreed and declared by and between the parties hereto notwithstanding anything hereinbefore contained that the said Srimati Foolkumari Dasi is entitled to the garden, house and land situated at Baranagar in the district of Twenty-four Parganas and shall possess and enjoy the rents and profits thereof for the term of her natural life.'
17. The learned Subordinate Judge relied upon the last clause in the document mentioned above in coming to his conclusion that the Baranagar property had been specifically excluded from the operation of the document. He construed the document as a deed of surrender of the interests of Foolkumari and Prabhabati in the properties described in the schedule and held that the last clause embodied an agreement amongst all the parties that this property should be excluded from the surrender.
17a. It has been contended by Mr. Gupta for the appellant that the document in question being, and having been construed by the learned Subordinate Judge as, a valid deed of surrender of the interest of Foolkumari in respect of her husband's estate, he should not have limited its operation to the properties described in the schedule to the document which did not exhaust the estate left by Jadav, and he has also contended that the schedule was appended to the document, not with the object of limiting the operation of the document tothe properties enumerated therein, but with the object of describing the properties which were to be covered by the charge created by the document for the payment of the maintenance to Foolkumari. With regard to the last clause in the document regarding the Baranagar property, Mr. Gupta submitted that though that property was not mentioned in the schedule, since it was mentioned in the document itself, it was attracted by the general words of surrender contained in the document as part of the estate left by Jadav and he interpreted the words 'notwithstanding anything hereinbefore contained' in that clause to mean that notwithstanding the surrender of the interest of Foolkumari in the said property which she had inherited from Jadav she would continue to possess, and enjoy the usufruct of, the property for her life. The legal effect of the agreement embodied in this clause was, according to him, that the property vested in the daughter's sons of Foolkumari in whose favour she had surrendered her interest in her husband's estate, but that in spite of such surrender and vesting the right of possession of her daughter's sons was postponed till her death.
18. So far as the operative clause of the document is concerned, Mr. Gupta suggested that it should be divided into two parts. The first part of this clause contains, according to him, the general expressions signifying surrender of the entire interests of Foolkumari and Prabhabati in the estate left by Jadav. By this part, Foolkumari relinquished, released and assigned and Prabhabati confirmed and relinquished, released and assigned unto Achal, Ajoy and Asoke........their 'respective right, title,interest, estate, inheritance, use, trust, possession, property, claim and demand whatsoever both at law and in equity' - which they as the sole surviving widow and daughter respectively of Jadav had or might thereafter have or be entitled to or which might thereafter be vested in them. The subsequent expressions beginning with the word 'or' constitutes, according to Mr. Gupta, the second part of the clause, the word 'or' being disjunctive and used with the object of separating the first part from the second part and he contended that the words 'or which or any portion of which...... FoolkumariDasi has or might have allowed or permitted or caused to be allowed or permitted Sm. Padma Mani....to enjoy or to get the profits of....byvirtue of any arrangement, compromise or agreement come to between them or which may hereafter revert to the said Sm. Foolkumari Dasi or the said Sm. Prabhabati Dasi on the death of the said Sm. Padma Mani Dasi' which are immediately followed by the words 'into or upon the specific land and premises particularly described in the schedule' - should, on a proper construction of the document, be connected with the properties mentioned in the schedule and that the first part should not be construed as having any connection with the said properties.
19. Mr. Gupta also referred in this connection to another deed of relinquishment executed by Padma Mani in favour of Ajoy, Achal and Asoke on the 5th June, 1809 (Ex. 8) and pointed out that in the said document the same items of properties are mentioned as in the schedule to the document of the 30th March 1909. He argued that another object of appending the schedule to the document of the 30th March 1909, was to enumerate the items of properties which were in the possession of Padma Mani and in respect o which she subsequently surrendered her interest. Padma Mani's deed of surrender contains a reference to the document of the 30th March 1909, and it is recited therein that she had also intended to join in that document, but could not join as she was ill and on account of other reasons. It is next recited that she was executing this document for the purpose of confirming the title which Ajoy, Achal and Asoke had derived in consequence of the relinquishment of the interests of Foolkumari and Prabhabati in the properties mentioned in the document.
20. It is necessary to state here that in the year 1889 there had been a litigation in the Original Side of this Court between Foolkumari as plaintiff and Padma Mani as defendant in which Foolkumari wanted her title to be declared to two-third share of certain properties belonging to the estate of Jadav on the allegation that Padma Mani had been in possession thereof. Exhibit 4 is a copy of the plaint filed in that suit and Schedule B thereof describes the properties in respect of which the suit had been instituted. The suit was decreed on compromise on the 10th June 1890, and the copy of the decree, which is Ex. G, shows that two items of properties were directed thereby to remain in the exclusive possession of Padma Mani and a Receiver was directed to be appointed in respect of the other properties involved in that suit. According to the description of the said two items of properties, they appear to correspond to items Nos. 10 and 11 of the schedule to the document of the 30th March 1909. These two items of properties only having been left in the exclusive possession of Padma Mani, according to the decree, it is not possible to accept Mr. Gupta's argument that she had been in possession of all the items of properties mentioned in her deed of surrender until the date of that document. That was not the case of any of the parties in the suit of 1907 or in the present suit in the trial Court. The recitals in Padma Mani's deed of surrender also do not bear out Mr, Gupta's contention. That document contains, on the other hand, the following recitals with regard to the previous state of affairs: 'Late Jadav Krishna Sinha having died in 1867.... we, three persons, viz., myself Sm. Padma Mani Dasi and Sm. Lakshmi Priya Dasi and the said Sm. Foolkumari Dasi came into possession and enjoyment of all the movable and immovable properties left by the said late Jadav Krishna Sinha. Thereafter on the death of the said Lakshmipriya, I, Padma Mani Dasi myself remained in possession and enjoyment in sixteen annas share of some properties owned by her and the said Foolkumari Dasi and her daughter, the said Sm. Prabhabati Dasiand myself remained in possession and enjoyment of some properties. Subsequently, after various litigations both of the said Sm. Foolkumari Dasi and the said Sm. Prabhabati Dasi jointly executed in your favour with my consent a deed of relinquishment on the 30th of March 1909........and thereby relinquished and gave away all their rights to all properties mentioned below; and by virtue of the same you have become entitled to all the properties mentioned below in absolute right by right of inheritance from the said Jadav Krishna Singha.'
21. Apart from this, we do not think that the construction put by Mr. Gupta on the above clause in the document of the 30th March 1909 is grammatically possible. It is impossible to separate the clause grammatically into two parts and connect the second part only with the specific land and premises described in the schedule. It is true that by the first part Foolkumari and Prabhabati relinquished all their rights, title and interest which they had as the widow and daughter respectively of Jadav; or which might thereafter be vested.....in them, but the first part is not complete by itself and the subsequent adjectival clauses beginning with the words 'or which' also refer to the general expression 'right, title, interest, estate, inheritance' etc., mentioned in the first part and all such right, title and interest must be related to the words 'into or upon the specific land and premises' which follow all the adjectival clauses. In our opinion, the words 'into or upon the specific land and premises particularly described in the schedule hereto annexed' should be construed, on the language of the document, as related not only to the existing right, title, estate, interest, possession, property, etc., which Poolkumari and Prabhabati, as the widow and daughter respectively of Jadav, had or might have been entitled to but also to all rights and interests which might thereafter vest in them or which Foolkumari might have allowed Padma Mani to possess and enjoy or which might thereafter revert to her on the death of Padma Mani. All these kinds of interests, as have been described in the document, should be taken to relate to the specific land and premises particularly described in the schedule and we are unable to accept the construction suggested by Mr. Gupta that the schedule was mentioned only to describe the properties in the possession of Padma Mani which she later on surrendered by the document dated the 5th June 1909.
22. Reading the document as a whole, there can be little doubt that what was surrendered was the existing and future right, title and interests of Foolkumari and Prabhabati in the specific land and premises particularly described in the schedule annexed to the document. The language used, namely, 'into or upon the specific land and premises particularly described in the schedule', leaves no room for doubt that the parties were anxious to confine the operation of the document to the properties described in the schedule. Subsequently it was recited in the document that Foolkumari for herself,her heirs, executors, administrators and assigns doth hereby covenant that the said Srimati Prabhabati Dasi and the said Ajoy Nath Mitra, Achal Nath Mitra and Asoke Nath Mitra, their heirs, executors, administrators and assigns that the said land and premises shall at all times remain and be to the use of the said Ajoy ' Nath Mitra, Achal Nath Mitra and Asoke Nath Mitra, their heirs, executors, administrators and assigns'. So, what was relinquished or assigned was the said land and premises, meaning the land and premises described in the schedule.
23. The interpretation put by Mr. Gupta on the last clause in the document relating to the Baranagar property cannot also be accepted in view of the actual words used. These words are 'notwithstanding anything hereinbefore contained' Foolkumari 'is entitled to the garden, house and land situated at Baranagar ........and shall possess and enjoy the rentsand profits thereof for the term of her natural life.' So, what was left to Foolkumari was not merely the possession and enjoyment of the usufruct of this property. The parties expressly agreed and declared, on the other hand, that she was entitled to the Baranagar property and should enjoy the same for life. The word 'entitled' is very important showing that Foolkumari did not intend to divest herself of her right, title and interest in the property and that this position was agreed to by Prabhabati and her sons.
24. It is also important to note in this connection that, according to the preamble to the document, the agreement amongst the parties on the basis of which Foolkumari's suit(No. 345 of 1907) was decreed was that Prabhabati would pay Rs. 17,400 and the sum of Rs. 200 monthly to Foolkumari 'on having a relinquishment or assignment executed by the said Srimati Foolkumari Dasi of her right, title, interest, estate, claim and demand whatsoever into or upon the properties mentioned and described hereunder and in the schedule hereto annexed.' The parties not having filed any copy of the decree of that suit, we called for the record of that suit from the Original Side in order to look into the decree, with the consent of the parties, but found that the bundle containing those papers were missing. Though, however, no copy of that decree is available to us, a copy of the order dated the 9th March 1909, by which the Registrar, Original Side, was directed to execute the deed of relinquishment and charge is in evidence (Ex. 2) and this order specifically mentions that the draft of the deed of relinquishment had been prepared by Prabhabati in accordance with the terms of the decree made in the suit. The order also recites that Prabhabati had deposited in Court Rs. 21,816 including Rs. 17,400 and certain other sums for arrears of maintenance and costs of commission. It is therefore clear that the document had been prepared in terms of the agreement between the parties, as embodied in that decree, and it is specifically recited in the preamble that the said agreement was that Foolkumari would relinquish or assign herright, title and interest in the specific land and premises particularly described in the schedule to the document. In the face of this agreement, the document must be construed as a deed of relinquishment and assignment in respect of the specific properties mentioned in the schedule, because the operative part of the document cannot be separated from the preamble reciting the agreement between the parties, Since the document had been prepared by Pra-bhabati in terms of the compromise embodied in the decree, it should further be presumed that the agreement expressly declared in the last clause of the document relating to the Bara-nagar property was also a part of that compromise and so there is no room for the contention that Foolkumari had agreed or intended to surrender her right, title and interest in that property also.
25. That this was the intention of the parties and the effect and purport of the document is clear also from the recitals in Padma Mani's deed of relinquishment dated the 5th June 1909 which has been already referred to. Achal, Ajoy and Asoke were parties to this document and it was specifically recited in the document that Foolkumari and Prabhabati had jointly executed in their favour a deed of relinquishment giving away all their rights to the properties mentioned in the document and that by virtue of the same they had become entitled to all the properties mentioned in the document in absolute right by right of inheritance. It is worthy of note that there was no reference to the Baranagar property in this document.
26. Mr. Mitter for the respondents has drawn our attention to certain recitals in the partition deed which had been referred to in the plaint of this suit and which had been executed by Prabhabati and her three sons on the 25th January 1915 (Ex. 3). This was a deed of partition in respect of the properties left by Tripundeswar, husband of Prabhabati. In para. 9 of this document there is a recital that Prabhabati would continue to possess and enjoy for her life the properties of Schedule Kha which were described as the properties left by her father Jadav and which were not included in the deed of partition because her three sons had previously made a gift of the same to her by two deeds of settlement. The properties of Schedule Kha are the same as the properties mentioned in the schedule to the document dated the 30th March 1909 excepting for one item of property, namely, item No. 3 of the latter document. In para. 15 of this document it is provided that the three brothers would pay in equal shares the expenses of the masonary house which was being constructed at Baranagar for the residence of Foolkumari for her life and that after Foolkumari's death Prabhabati would possess and enjoy the said house for her life after which her three sons would become the maliks and owners thereof. Mr. Gupta contended that the effect of para. 15 was that the three brothers claimed a title to the Bara-nagar property, as otherwise they would nothave undertaken to construct a house thereon. But the language used in this paragraph does not support the construction suggested. The words used were not words of disposition of this property by the three brothers on the footing that they were the owners thereof; on the other hand, it was expressly stated that they would ' become owners of the house to be constructed after the death of Prabhabati. The Baranagar property itself was not included in the partition deed and no title was claimed thereto. The reference was only to the house to be constructed and the statement that the house would belong to the three brothers after the death of Foolkumari and Prabhabati makes it clear that they did not claim or believe that the Baranagar property had vested in them or that they had become the owners thereof by virtue off the deed of relinquishment dated the 30th March 1909.
27. Subsequently in the year 1917, on the 15th September, another deed of partition was executed by Achal, Ajoy and Asoke in which the 'effect of the document executed by Foolkumari and Prabhabati on the 30th March 1909 was recited as follows in the preamble: 'Sm. Foolkumari Dasi and Sm. Prabhabati Dasi both executed a deed of relinquishment and charge in favour of us, three brothers, and got the same registered. According to the provisions of the said deed of relinquishment and charge the said Sm. Foolkumari Dasi is entitled to get from us a monthly allowance of Rs. 200 for her life and we have been paying the said monthly allowance to her all this time in accordance with the said provision and there is a charge on the immovable properties mentioned in the said deed of relinquishment for payment of the said monthly allowance. On the strength of the said deed of relinquishment as also by virtue of inheritance from the said Jadav Krishna Singha we have so long been in ownership, possession and enjoyment of all the immovable properties mentioned in the said deed jointly and in equal shares.' In this document also there is no mention of the Baranagar property. The recital does not specifically mention the schedule to the said document, but 'the immovable properties mentioned in the said deed' cannot but refer to the properties described in the schedule thereto. This is also clear from the statement that the properties mentioned in the said deed had been in the joint ownership, possession and enjoyment of the three brothers. Since the Baranagar property was not in the joint possession and enjoyment of the brothers, the said property could not have been meant as included in the properties mentioned in the said document.
28. Mr. Mitter has argued that the reason why the Baranagar property was specifically excluded from the operation of the deed of the 30th March 1909 was that Foolkumari claimed a title to this property on the footing that it was her own exclusive property and not her husband's property and he has pointed out that this property had been excluded by her from the plaints of the previous suits filed by her. Reference has already been made to suit No. 440 of 1889 filed in the Original Side of thisCourt by Foolkumari against Padma Mani the plaint of which (Ex. 4) shows that the Baranagar property was not included in this suit. A copy of the written statement filed in that suit by Padma Mani is also in evidence (Ex. 5) and in para. 12 of this written statement an objection was taken that the plaintiff, i.e., Foolkumari, had omitted all mention of a garden house situated at Baranagar measuring 4 bighas 12 cottahs and 13 chittaks which was part of the estate left by Jadav and which had been in the sole and exclusive possession of the said plaintiff. Reference was also made in the said written statement to a previous Partition Suit relating to the said property between Foolkumari and another person in which Foolkumari had received some owelty money and it was claimed by Padma Mani that Foolkumari was bound to account for the said money. In the plaint filed in that suit there was a reference to an earlier suit filed in 1869 in the Original Side of this Court by Foolkumari against Lakshmi-priya which was amicably settled and the suit was withdrawn and from the terms of settlement of that suit, as recited in the schedule to the aforesaid plaint it does not appear that the Baranagar property was one of the properties included in that suit. We have not got the plaint of the suit of 1907 (Suit No. 345 of 1907) but, in view of the last clause in the deed of relinquishment, it is not likely that Foolkumari had included the Baranagar property in that suit. She was in exclusive possession of the Baranagar property and it is very likely that she had remained in such possession from at least 1889. All these facts suggest that Foolkumari claimed a title to this property on her own account and not as heir of her husband.
29. In the present suit an issue (No. 2) had been raised as to whether Foolkumari had been the absolute owner of the Baranagar property and a document (Ex. J) dated the 6th February 1878 was filed to show that she had obtained settlement of the property from the Government after the death of Jadav. The learned Subordinate Judge construed the document of the 6th February 1878 (Ex. J), as only a confirmatory lease and held that settlement was given to her on the ground that she was the sole surviving representative of her husband who was the previous settlement holder. We may state here that this finding was challenged on behalf of the respondents by a cross-objection which, however, was filed out of time. Even if the cross-objection was out of time, the suit having been dismissed the respondents are entitled to challenge any finding against them and support the decree on other grounds. Mr. Mitra did not, in his argument, expressly accept this finding, but he did not argue against it either, his position being that whether this property-was a part of the estate of Jadav or could legally be claimed by Foolkumari as her own property did not affect the interpretation he put upon the agreement. He argued that whatever might have been the effect of the lease, Ex. J, it is clear that Foolkumari never accepted the position that she held this property as the heir of Jadav. She appears on theother hand, to have claimed an absolute interest in the property and, therefore, excluded it from the suits relating to her husband's properties. That is why an express agreement in. respect of this property became necessary and had to be embodied in her deed of relinquishment. She must have wanted it to be expressly excluded from the operation of that document and the parties thereupon came to an agreement, as expressly declared in the document, that she would have title to this property and would continue to possess and enjoy the usufruct of the same during her life-time. The-basis of the deed of relinquishment being, as already stated, the agreement between the parties to the document, as embodied in the decree passed in the suit of 1907, the agreement relating to the Baranagar property excluding it from the operation of the document cannot be ignored or upset by the construction suggested by Mr. Gupta. We are satisfied from a consideration of all the above facts and the recitals in the subsequent documents that Foolkumari never intended to relinquish her right, title and interest in the Baranagar property and did not, as a matter of fact, relinquish her interest therein and that Prabhabati and Achal, Ajoy and Asoke were fully alive and subscribed to this position and agreed to the exclusion of this property from the operation of the deed of relinquishment. What then is the precise nature and effect of the document? It has been construed as a deed of surrender of the interests of Foolkumari and Prabhabati in the estate left by Jadav and the question arises whether the transaction conforms to the requirements of a surrender of the widow's estate under the Hindu Law. The doctrine of surrender in Hindu Law has been enunciated and settled by a long course of decisions of the Judicial Committee and has been recently considered by the Supreme Court in the case of Natvarlal Punjabhai v. Dadubhai Manubhai, : 1SCR339 . The whole doctrine is based upon the analogy or legal fiction of the death of the widow. The widow's estate is an interposed limitation or obstruction which prevents or impedes the course of succession in favour of the heirs of her husband and it is, therefore, open to the widow by a voluntary act of her own to remove this obstruction and efface herself from the husband's estate altogether. If she does that, the consequence is the same as if she died a natural death and the next heirs of her husband then living step in at once under the ordinary law of inheritance. It is true that the surrender may, and in the majority of cases does, take the form of a transfer in favour of the reversioners, but the reversioner does not occupy the position of a grantee or transferee and does not derive his title from her but derives it from the last male holder. The surrender conveys nothing in law but is purely an act of self-effacement by the widow which must of necessity be complete. There can be no surrender or renunciation of a part of the estate, since there cannot be a widow partly effaced and partly not, just as there cannot be a widowI partly dead and partly alive, as observed in the case of Rangaswami Gounden v. Nachiappa Golunden, 46 Ind App 72: (AIR 1918 PC 196)(B). In the same case it was also laid down that the surrender must be a bona fide surrender, not a device to divide the estate with the reversioner.
30. In the case of Behari Lal v. Madho Lal, 19 Ind App 30 (PC) (C), the widow purporting to surrender the estate had reserved a life interest for herself and it was held by the Judicial Committee that there was no valid surrender. It was later on suggested that the expressions in Behari Lal's case (C) only meant that the widow should retain no interest in what was surrendered and that therefore a partial surrender, provided that the surrender was absolute as to that part, was valid. But the Judicial Committee negatived that suggestion in the case of 46 Ind App 72: (AIR 1918 PC 196) (B), as against the principle on which the whole transaction rests.
31. Though the surrender must be bona fide and not a device to divide the estate, reasonable provision for maintenance of the widow, regard being had to the position in life of her husband and the size of her estate, has been held to be not an arrangement for dividing the estate with the reversioner. (Sureswar v. Mt. Maheshrani, 47 Ind App 233: (AIR 1921 PC 107) (D): Sitanna v. Viranna .
32. In the last case it was also held that the widow can surrender her estate in favour of a female reversioner. In the case of Chin-naswami Pillai v. Appaswami Pillai, ILR 42 Mad 25: (AIR 1919 Mad 865) (F), the widow and the only daughter of a deceased Hindu surrendered their interests in the estate of the deceased in favour of the daughter's son and a deed was executed by both in which there was a stipulation that the reversioner should maintain them during their life-time. It was held that the surrender was valid and operated to vest the estate in the daughter's son. The same question came up before this Court in the case of Janaki Nath v. Jyotish Chandra : AIR1941Cal41 , and Mu-kherjea, J., observed that it was a logical extension of the doctrine of surrender that a widow can with the consent of her daughter who is the next reversioner relinquish the estate in favour of the daughter's son, provided that the consent given by the daughter must also show an intention to efface her own interest completely and the circumstances must be such as would entitle the Court to construe the transaction as amounting in substance to a relinquishment by the widow in favour of the daughter and a second surrender by the latter in favour of the next male heir. The same view was taken by Nasim Ali, J. On the facts of that case, however, the surrender was held to be invalid because it was for a large consideration and was a device to divide the estate between the immediate and the remote reversioners. The document we have to construe in the case before us also purports to be a deed of double surrender as in these two cases.
33. Mr. Mitra suggested that the document should be construed, not as a deed of surrender but as a deed of relinquishment and assignment in lieu of consideration. He referred in this connection to the expression 'relinquishment or assignment' occurring in the preamble of the document where the agreement is set out and to the expression 'relinquish, release and assign' in the operative part of the document. The use of such expressions would not, however, affect the nature of the document or prevent its construction as a deed of surrender. As was pointed out by the Judicial Committee in the case of Mt. Bhagwant Koer v. Dhanukdhari Prasad Singh, 46 Ind App 259 at p. 271: (AIR 1919 PC 75 at pp. 78-79) (H) of the report, the voluntary self-effacement of the widow is sometimes referred to as a surrender, sometimes as a relinquishment or abandonment of her rights and it may be effected by any process having that effect, provided that there is a bona fide and total renunciation of the widow's right to hold the property. In that case there was no formal surrender by the widow of her estate: there was only an express agreement by her that she would claim no rights in respect of the estate of her husband. Their Lordships observed: 'It is true that the documents were drawn up on the footing, not of a surrender of an acknowledged right, but of an admission that the right did not exist; but in substance and disregarding the form, there was a complete self-effacement by the widow which precluded her from asserting any further claim to the estate.' We may point out in this connection that Prabhabati, in surrendering her interest by the same document, used the same expression 'relinquish, release and assign'. She, however, received no consideration, but did so in consideration of her natural love and affection for her sons. The use of such words would not, therefore, affect the nature of the document and as for consideration, we shall presently show that, excepting for the provision for maintenance, the payment of cash consideration was really illusory.
34. Mr, Mitra next coutended that the document could not take effect as a deed of surrender as execution of the document was not a voluntary act on the part of Fool Coomari, because she had refused to execute the document and it had to be executed on her behalf by the Registrar under orders of this Court. We have, however, no evidence before us as to under what circumstances, the document was directed to be executed by the Registrar. All that the Court's order dated 9th March 1909 shows is that Fool Coomari had not appeared in Court either in person or by, Counsel when the order was passed. (Ex. 2). The fact, however, remains that Fool Coomari had agreed to the terms of compromise embodied in the decree passed in that suit and by the said terms she had undertaken to execute such a document and relinquish her interest in her husband's properties and there is no evidence or suggestion that she eyer repu-diated the agreement or wanted to resile from it. It cannot, therefore, be said that the act of relinquishment was not a voluntary act on her part.
35. Mr. Mitra's third contention was that even if the transaction was intended to be a surrender, it could not take effect as such as it was not a bona fide act of surrender but a mere device to divide the estate of Jadav among Fool Coomari, Probhabati and the latter's sons. He pointed out that Fool Coomari not only received a large sum as cash consideration for the document besides the promise of payment of a large sum per month, secured by a charge on the properties, but also retained for life the valuable Baranagar property measuring 4 bighas 11 cottas and 13 chataks. He further pointed out that though Probhabati professedly relinquished her interest out of natural love and affection for her sons, she subsequently got back the same properties for life by two deeds of settlement executed by her sons, as recited in para 9 of the partition deed, Ex. 3, already referred to. We do not know the terms of the deeds of settlement and there is no evidence that they were executed contemporaneously with the document of 30th March 1909. At a very late stage, after this appeal had been heard in part, an application was filed on behalf of the defendants respondents for admission of that deed of settlement as additional evidence. We could not, however, at that stage admit them as additional evidence for the reasons given in the judgment just delivered by My Lord. What happened between Probhabati and her sons subsequent to the execution of the said document do not really concern us in this suit. It has already been stated that in the partition deed executed by the three sons of Probhabati on 15th September, 1917, after the death of Probhabati it is recited by them that they had been 'in ownership possession and enjoyment of all the immoveable properties mentioned in the said deed (i.e., the deed of 30th March, 1909) jointly and in equal shares' on the strength of thesaid deed as also by virtue of inheritance from Jadav. As will be explained later on, the transaction should not be construed as a meredevice to divide the estate on account of the agreement relating to the Baranagar property.
36. It is true that Fool Coomari received as consideration for the document a large sum of money, viz., Rs. 17,400/-, besides the promise for payment of a sum of Rs. 200/- per month for maintenance. No objection has been orcan be taken to the provision for maintenance arid' it has not been suggested that it was unreasonable, regard being had to the size of her husband's estate. As regards the lump sum payment of Rs. 17,400/- there is nothing to show that it came out of the corpus of the estate of Jadav and might well have represented the income of the estate which, as had been alleged in the suit of 1907, Probhabati had received on her behalf as her agent in possession of the estate. If, as was very likely the case, it represented the past income of the estate 1958 Cal. D.F./6 which had been appropriated by Probhabati, Fool Coomari had absolute interest therein under the Hindu Law and was not bound to surrender it. The transaction cannot be construed as a transfer for consideration, if the widow received in lump what was really due to her as the accumulated income of the estate appropriated by her daughter to whom the management of the property had been left, since it was in fact her own money which she received and to which she was absolutely entitled under the Hindu Law. In this view the payment of the sum of Rs. 17,400/- to Fool Coomari would not invalidate the transaction as a deed of surrender.
37. We have now to decide whether the exclusion of the Baranagar property from the schedule to the document is calculated to render the surrender invalid as a partial surrender. Mr. Gupta contended that since the transaction was accepted by all the parties as amounting to a valid and total surrender of the interests of Fool Coomari and Probhabati in the estate of Jadav, they must be deemed to have surrendered their interests in the Baranagar property also and that the last clause in the document should be interpreted in a manner consistent with the validity of the surrender. He referred in this connection to two decisions of this Court in which the surrender was upheld in spite of non-inclusion of some property belonging to the widow's husband's estate.
38. The first case cited is the case of Brojeswari Dassi v. Monoranjan Dutta 0044/1936 : AIR1937Cal167 , in which a deed of surrender by a Hindu widow to the immediate reversioner omitted to mention one of the properties which was about 6 cottahs in area in the schedule attached to the document which contained an enumeration of 32 bighas of properties. It was held that in spite of this omission it was a valid surrender under the Hindu Law. It appears, however, that it was found in that case that the widow was under the impression that she had no subsisting interest in the property omitted of which she was out of possession for a long period. There were recitals in the document to the effect that she had become totally divested of all her rights in the estate left by her husband and that all the rights in the same vested in the grantor. It was held by M. C. Ghosh, J., that the omission was a defect in the deed of surrender and that it did not invalidate the document on the principle that when two constructions of an instrument are possible, the law favours the construction which will make it valid. Mukerji, J., observed that the test was whether there was a bona fide and total renunciation of the widow's right to hold the property and that if the tenor of the document was looked into, the conclusion was irresistible that she intended to renounce the entire property loft by her husband without reserving or retaining any item of it for herself. He considered it immaterial whether this property was left out as being very small or the widow laboured under an honest beliefthat she had ceased to be the owner of this property, since there was an intention to effect complete self-effacement in the document itself. So the decision in that case turned upon the question of the intention of the widow and it was found that the widow did have the intention to renounce all her interests in the property of her husband and to completely efface herself without reserving or retaining any interest therein,
39. Mr. Gupta next cited the case of Ram Krishna v. Kousalya : AIR1935Cal689 . In this case two widows had executed a deed of surrender in favour of two females who were the next reversioners and one of the defences to the suit was that it was a partial surrender and, therefore, invalid under the Hindu Law. It was found that a small plot was omitted from the deed of surrender and that the said plot had passed out of the family on the basis of a compromise decree. It was observed by D. N. Mitter, J., that even if it was supposed that the widows had subsisting interest in the property at the date of the surrender, it was such an insignificant part of the inheritance that it might be disregarded, as substantially on the terms of the deed of surrender everything which belonged to their husband was intended to pass. There were express recitals in the document that the widows relinquished whatever interest they had in the estate of their husband and the reversioners were asked to take possession of all movable and immovable properties left by their husband. It was held to be a valid surrender because the recitals in the document showed that the widows intended to surrender the entire inheritance in favour of the reversioners.
40. The principles laid down in the above decisions cannot, however, apply in the present case because the non-inclusion of the Baranagar property in the schedule was not due to any bona fide mistake on the part of Fool Coomari in the sense that she did not know of the existence of this property or believed that she had lost interest therein. The property, on the other hand, was mentioned in the document and a special agreement regarding it was recited therein. We have already shown that Fool Coomari could not have intended to surrender her interest in this property. Though there is no recital in the document explaining the reason for this special agreement and its exclusion from the schedule to the document, from what we have already indicated it is clear that there were special circumstances regarding this property which accounted for its special treatment. We have seen that Fool Coomari never acknowledged this property to be part of her husband's estate. She had consistently excluded this property from all her previous litigations, so far as they can be traced, from the records. She had never given up possession thereof and though in the suit of 1889 an objection had been taken by Padma Mani in her written statement on the score of non-inclusion of thisproperty in that suit, no reference was made to this property when the suit was compromised and Fool Coomari was left in possession thereof. Her possession was never disturbed and there does not seem to have been' any claim by her daughter or daughter's sons at any time until her death that the said property was part of her husband's estate. Foot Coomari had also sufficient ground for her claim to this property as her own property and not property inherited from her husband as she had obtained fresh settlement of this property from the Government after the death of her husband.
41. From all these circumstances the conclusion which irresistibly follows is that Fool Coomari bona fide believed that it was her own property and not a part of her husband's estate when she agreed to relinquish her interest in her husband's estate. That claim was not disputed by her daughter and daughter's sons at the time and, on the other hand, they acquiesced in her claim by subscribing to the agreement embadied therein by which she on her part consented to limit her claim to the property for her life. The question whether this property continued to be a part of her husband's estate or had become her personal property in consequence of the lease obtained by her had never been in issue in any of the previous litigations. It was in issue for the first time in the present suit and though it might have been decided by the trial Court that the property continued to belong to the estate of Jadav in spite of the lease obtained by Fool Coomari, this fact cannot affect the position that in 1909 Fool Coomari bona fide believed and claimed that the property did not belong to her husband's estate but was her separate property and that, the exact legal position being doubtful and uncertain, the reversioners accepted her claim as a matter of compromise and she on her part agreed by the compromise to hold the property for life only, thereby giving up her claim of dealing with the property absolutely as a full owner. The agreement was thus a fair and reasonable settlement of a disputed and doubtful question of title to this property.
42. The construction suggested by Mr. Gupta of this agreement on the footing that this property was part of the estate of Jadav and that Fool Coomari and her daughter and daughter's sons entered into the agreement bona fide with full knowledge of that fact would not make the transaction a valid surrender under the Hindu Law. If Fool Coomari knew or bona fide believed then that this property was part of her husband's estate, then the reservation by her of her right to possession of the property and enjoyment of the usufruct thereof for life really amounted to retention of her life-interest in the property and made the surrender partial on the authority of the decision in the case of 19 Ind App 30 (PC) (C). In that case the widow had expressly declared in the document: 'I shall, till the end of my life, hold possession as Ihave heretofore done' and in spite of the fact that the document also contained a provision that after her death Behari Lall should enter into possession, it was held that it was not a valid surrender. In the case before us the agreement is silent on the question as to what would happen after the death of Fool Coomari. The agreement contained no words of disposition of the property and there could have been no question of the vesting of this property in the daughter's sons of Fool Coomari in consequence of the execution of the document.
43. We are, therefore, of the opinion that the only possible explanation for the omission of the Baranagar property from the schedule to the document and for the agreement declared in the last clause thereof is that this property was treated by all the parties to the document as Fool Coomari's personal property and not part of the estate of Jadav and that the construction to be put upon the agreement is that it represented a settlement bona fide arrived at between the parties of a disputed claim of title to this property by which all the parties benefited. It was because of this that nothing was said in the agreement as to the disposition of the property after the death of Fool Coomari. The matter was apparently left to be decided according to the law of succession after Fool Coomari's death. It may be that the daughter and her sons expected to survive her and, therefore, in the subsequent partition deed of 1915 they declared that after the death of Fool Coomari and Prabhabati the sons of the latter would become the owners of the building to be erected on the Baranagar property.
44. The transaction being thus a bona fide settlement of a disputed claim should, in our opinion, be held to be valid as a total surrender of the interests of Fool Coomari and Probhabati in the properties included in the schedule to the document as the estate of Jadav. Such transactions have also been upheld as valid by the Judicial Committee and reference may be made to the decisions in the cases of 47 Ind App 233: (AIR 1921 PC 107) (D), and .
45. In the case of 47 Ind App 233: (AIR 1921 PC 107) (D), a Hindu died leaving an infant son, a widow and four daughters. The infant son died within a few months after his father's death and the daughters took possession of the estate under a Will set up by them as having been left by their father, and a suit was filed by the nearest reversioners to the son challenging the Will. The suit was compromised, the rights under the Will were given up and the widow surrendered all rights of succession to the immovable properties in consideration of the movable properties being given absolutely to her and the plaintiff and the daughters each giving a small portion of the land to her for her life. The necessary documents to carry out these terms of compromise were executed. After the death of the plaintiff in that suit the next reversioners instituted a suit for a declaration that the above compromise was invalid as a fraudulent scheme to divide the estate between the widow and the reversioners. It was held by the Judicial Committee that under the Mithila School of Hindu Law the widow was entitled absolutely to the movable property left by her husband and that the compromise was a bona fide surrender of the whole estate of the widow and was valid under the principles laid down in the case of 46 Ind App 72: (AIR 1918 PC 196) (B), the conveyance of small portions of land to the widow being held unobjectionable as it was only for maintenance.
46. In the case of , on the death of a Hindu a dispute arose as to succession between his widow and another person and by the award of a Panchayet the property was divided between them. Half of the property was conveyed by the widow to the claimant and the other half excepting about 6 acres which were reserved by her for her own maintenance was conveyed by her to her daughter, the next reversioner. The award was upheld by the Judicial Committee as a fair and reasonable settlement of a doubtful claim and the conveyance to the daughter was construed as an effective relinquishment of the widow's interest to her.
47. It would not matter, even if it now transpires that the Baranagar property legally continued to belong to the estate of Jadav in spite of the lease obtained by Fool Coomari, because Achal Nath Mitra being a party to the document was bound by the agreement and the plaintiffs who claim from him are also bound thereby. The finding of the Court below that the property continued to be part of the estate of Jadav would not improve their position because on that footing the surrender would be invalid as a partial surrender, as shown above.
48. The result, therefore, is that this appeal should fail and it is accordingly dismissed with costs.
49. No order is necessary on the cross-objection.