(In this case two suits were brought on the basis of a surrender deed executed by a Hindu widow. The defendants attacked the validity of the deed of surrender. The trial court and the lower appellate Court rejected the contention and held the surrender deed to be valid, and decreed the suits. The defendants filed the present second appeals.
The judgment begins with a narration of the facts of the case. AS these facts are not necessary for the purpose of understanding the discussion on law in the judgment, the facts are omitted here. After narrating the facts, His Lordship proceeded :)
18. It was contended before us, in the first place, that the deed Ext. 1, taken as a deed of Surrender, must be treated as a void document because it was not a surrender of the entire life-estate held by the two widows, Kadambini and Sitamoni. Inspiration was drawn, in support of this branch of argument, from Ext. A, the sole-nama in Money Suit No. 382 of 1907, in which there was a statement to the effect that the two widows, Kadambini and Sitamoni, had surrendered the major portion of the estate left by their deceased husband. From the above statement it Was contended that inasmuch as the surrender did not include the entire estate and inasmuch as the two widows failed to accelerate the succession by a mere partial surrender, the deed of surrender must be treated as a void document. We are unable to accept this argument. Notwithstanding the admission contained in Ext. A, there is no evidence to show that any portion of the immovable properties, forming the life estate, was left out of the surrender. The Court of appeal below was of the opinion that a small sum of money, being an amount of compensation receivable by the two widows, may have been left out. The Court of appeal below was of the opinion that the omission in respect of this small sum of money was not such a serious defect as would invalidate the deed of surrender. Inclusion of the entire estate so as to make a valid surrender, in our opinion, is a matter of substance and not of mere form. Where a widow makes a substantial surrender, retention by her of a few rupees or a very small area of land or a room to live in does not become an act of such serious omission as invalidates a deed of surrender. This is the view that We find from the cases reported in Gopal Chandra Dutt v. Surendra Nath : AIR1925Cal1004 ; Radharani Dassya v. Brinda Rani Dassya : AIR1936Cal392 ; Brojeswari Dassi v. Monoranjan Dutta 0044/1936 : AIR1937Cal167 and Haribhai Nanji v. Narayan Hari, AIR 1938 Bom 438. The view also finds support from a decision of the Supreme Court reported in Gopal Singh v. Ujagar Singh : 1SCR86 , where omission to include a small portion of the life estate, due to ignorance or oversight, was held not to affect the validity of the surrender. That being the legal position we overrule the first branch of the contention advanced on behalf of the appellant.
19. It was contended, in the next place, that the surrender was a mere device to divide the estate between the limited owners and the reversioners (assuming for the sake of argument that they were the reversioners) and not a bona fide transaction and was, as such, a void transaction. In support of this argument our attention was invited to Ext. 2, the deed of maintenance, and it was argued that the aforesaid deed was complementary to the deed of surrender and the two together had the effect of dividing the estate. This argument was sought to be further buttressed up by placing reliance on the compromise decree in Money Suit No. 382 of 1907 (Ext. A) and it was contended that the latent idea of division of the estate was made patent by the compromise decree and there was a factual division of estate under the said decree. This argument does not appeal to us. In the first place a reservation of a small sum as allowance or maintenance for the widows will not make invalid a surrender otherwise bona fide. This is. the view expressed by D. N. Mitter and Paterson, JJ. in AIR 1936 Cal 392 (Supra) and we respectfully agree with the view. In the next place we do not find any justification for the criticism that the deed oi maintenance (Ext. 2) was made in consideration of the surrender deed (Ext. 1). The two deeds, in our opinion, were independent transactions and one had nothing to do with the other. Lastly, the criticism that in Ext. A (the solenama) the agreement to divide the estate took its final shape is a misconceived argument. Ext. A did not confer on the widows anything more than a life estate and there was no reason why the widows should be parties to divide the entirety of their life estate for the purpose of obtaining the same life estate again. It is conceivable that a limited owner may become a party to a device for the purpose of obtaining an absolute estate in a portion of the former limited estate, by at first surrendering the limited estate in favour of the next full owner and receiving back from him a portion of the selfsame estate in absolute right. That was not the case here and we repel the criticism that the surrender was in effect a device to divide the estate with the full owner.
20. It was lastly contended that the surrender was not in favour of the next reversioner but in favour of remote reversioners and as such bad. It is no doubt true that Lalit and Rashbehari were remoter reversioners than Bonomali who was the next full heir. It is in evidence that Bonomali joined with Kadambini and Sitamani in executing the Arpannama (Ext. 1). Therefore, the Arpannama in favour of the remoter reversioners was with the consent, approval and support of the immediate reversioner. The Court below relied on the Full Bench decision, reported in Nobokishore v. Harinath, ILR 10 Cal 1102 (FB) in which Garth, C. J. Observed as follows:--
'But, if it is once established, as a matter of law, that a widow may relinquish her estate in favour of her husband's heir for the time being, it seems impossible to prevent any alienation, which the widow and the next heir may thus agree to make. And it seems equally impossible to deny, that for a long series of years this Court has treated and considered such alienation as lawful. See Shama Scondurce v. Shurnt Chunder Dutt, 8 Suth WR 500 (Jackson and Dwarkanath Mitter, JJ.), Mohunt Kishen Goer v. Busgeet Roy, 14 Suth WR 379, (Bayley and Markby, JJ.), Gunga Pershad Kur v. Shumbhoonath Barman, 22 Suth WR 333 (This last case was decided by Mr. Justice Romesh Chunder Mitter, sitting alone, but was appealed under the Letters Patent and confirmed on appeal by Sir Richard Couch and Mr. Justice Ainslie--Letters Patent Appeal 1990 of 1873).
Besides these reported cases, which represent a long current of authority in this Court, there are also several unreported cases to the same effect; and the doubt which has arisen in later, days is not so much as to the correctness of these authorities, as upon the question whether a conveyance by the widow, with the consent only of the next reversionary heir, is equivalent to a relinquishment by the widow in favour of such an heir, or a conveyance by them both to some third person.
To allow the widow to relinquish her estate to the next male heir of her husband, is one thing; but to allow her to sell the whole inheritance, without any legal necessity, merely with the consent of the next male heir, so as to bar the rights of other heirs of her husband in the future, is another thing.
I confess, if we were now considering this last question for the first time, I should have great doubt whether the mere consent of the next heir to an absolute transfer by the widow ought to give such effect to that transfer, as to make it valid as against the person who may be the heir of the husband at the time of the widow's death. I would, of course, bind the person so consenting to it, and all persons claiming under him, but whether it ought to bind any other heirs of the husband is another matter.
But it seems to me that there is such a long course of authority in this Court in favour of both propositions, that we cannot, and ought not, at the present day to decide the contrary, (see Rajbullub Sen v. Oomesh Chunder Rooz, ILR 5 Cal 44, Jackson and Tottenham, JJ., and Trilochun Chuckerbutty v. Umesh Chunder Lahiri, 7 Cal LR 571, Prinsep and Maclean, JJ.
We must not forget, that upon the faith of these authorities many thousands of estates have been bought and sold in Bengal during the last twenty years; and I think, that we should be doing a grievous wrong to the purchasers of those estates, if we were to overrule the law thus laid down by this Court for a great many years, and so disturb the titles which have been acquired upon the strength of that law.'
21. The Full Bench Decision above referred to was impliedly accepted by the Judicial Committee in the case of Rangaswami Gounden v. Nachiappa Gounden, LR 46 Ind App 72: (AIR 1918 PC 196).
22. The Full Bench decision above referred to was sought to be distinguished on a two-fold ground, It was contended in the first place that the Full Bench dictum, as explained in LR 46 IA 72: (AIR 1918 PC 196) (Supra), applied only where there was a surrender of the entire estate, which was not the case here. We have already held that the surrender was substantially in respect of the entire estate and even if any small fraction had been left out that was not a matter of any consequence at all. It was contended in the next place that the Full Bench case related to transfer and not to surrender, and therefore the same must not be treated as an authority for the purpose of saving surrender in the instant case.
23. Nobo Kishore's case, ILR 10 Cal 1102 (FB) has been taken to lay down the law not without reluctance. The road to the decision of Nobo Kishore's case, ILR 10 Cal 1102 (FB) was travelled on a chariot drawn by two fictions, first a surrender and then a supposed transfer by the person in whose favour the surrender was made, but the learned Judges felt that it had to be so travelled so that titles that had been acquired under such fiction, may (Sic) (not) (?) be questioned. In the case of Debi Prosad v. Golap Bhagat, ILR 40 Cal 721 Jenkins, C. J. expressed his opposition to any further extension of the doctrine propounded in Nobo Kishore's case, ILR 10 Cal 1102 (FB).
24. Nobo Kishore's case, ILR 10 Cal 1102 (FB) was explained by the Supreme Court in the case of Mummareddi v. Durairaja : 2SCR655 and Mukherjea, J. (as the Chief Justice then was) observed as follows:--
'The extension of this doctrine in the class of cases of which ILR 10 Cal 1102 (FB), may be taken as the type, seems to be rather far fetched and somewhat anomalous. In these cases, the effect of the immediate reversioner's giving consent to the alienation of the whole estate by the widow to a stranger has been held to import a double fiction; the first is the fiction of a surrender by the widow in favour of the consenting reversioner and the second is the fiction of a transfer by the latter to the alienee, although both fictions are contrary to the actual facts.
It is difficult to say in the first place why a surrender should be presumed at all when the widow gives the property directly to the stranger and not to the reversioner. Even if this position is assumed, then also the question arises as to how the consent of a party can take the place of a conveyance which is requisite for the purpose of vesting title in a transferee. A consent merely binds the consenting party or anybody else who derives his title from him. If the actual reversioner at the date of the widow's death is the same person who gave his consent, obviously he can be precluded from challenging the transfer; but if the actual reversioner is a different person, there seems to be no justification for holding that he would be bound by the consent expressed by a person who had nothing but a chance of succession at that time and which chance did not materialize at all. (See observations of Mahajau, J. in Ali Mohammad v Mt. Mughlani, AIR 1946 Lah 180 at p. 188) (FB) ). Sir Richard Garth, C. J. in his judgment in ILR 10 Cal 1102 (FB), expressed considerable doubt as to the propriety of the view which would make a sale by the widow with the consent of her reversioner stand on the same footing as an actual renunciation. But in view of a series of previous decisions of the Court he was constrained to accept that view as correct.
It may be necessary for this Court at some time or other to reconsider the whole law on this subject. It seems probable that the Privy Council did not subject the decision in Nobokishore's case, ILR 10 Cal 1102 (FB) to a critical examination from the point of view of the doctrine of surrender, as the transfer in that case was upheld on the ground of legal necessity as well. For the purpose of the present case, we will proceed on the assumption that the law laid down in Nobokishore's case, ILR 10 Cal 1102 (FB), is correct. But the doctrine should certainly not be extended any further.'
25. Strong reliance was, however, placed by the appellant on the following observation by Mukherjea, J. in : 2SCR655 (113):
'The present case obviously does not come within the purview of the doctrine laid down in ILR 10 Cal 1102 (FB), which presupposes an alienation of the entire property in favour of a stranger to which the immediate reversioner was a consenting party. Here it cannot be said that the entire interest was transferred to the son-in-law of the widow with the consent of her daughter. The interest transferred was a fraction of the interest held by the widow and strictly speaking, there was no consent expressed by the daughter. She was a sort of a co-assignee with her husband. Mr. Aiyer contends that her consent was implied by her accepting the deed and joining in several subsequent transactions on the basis of the same, and once this consent is established, we can import the fiction of surrender in her favour of the entire estate, and if that fiction could be invoked it would be only a logical extension of the principle in Nobokishore's case. ILR 10 Cal 1102 (FB) to hold that a part transfer in favour of a stranger could also be validated on the theory of surrender. We are unable to accept this chain of reasoning as sound. As stated above, it would be most improper to extend the doctrine in Nobokishore's case, ILR 10 Cal 1102 (FB) which is not itself based on sound legal principles to what Mr. Aiyar calls, its logical consequence. We cannot invoke the fiction of surrender in a case like this when the renunciation, if any was of a part of the estate; and the attempt to validate a part alienation by the widow in favour of a stranger on the basis of the doctrine of surrender, simply because the reversioner has impliedly assented to it is, in our opinion, absolutely unwarranted.'
26. The two considerations which weighed with Mukherjea, J. in distinguishing the case in : 2SCR655 from the Full Bench decision in Nobokrishore's case, ILR 10 Cal 1102 (FB) were, (i) the renunciation, if any, was of a part of the estate and (ii) and the attempt to validate a part alienation by the widow in favour of a stranger on the basis of the doctrine of surrender, simply because the reversioner had impliedly assented to it.
27. The distinctions which weighed with Mukherjea, J. are not the distinctions which are available in the instant case. We have already observed, that the surrender, in the present case, was, not bad because of partial surrender. And in Ex-hibit 1 Bonomali made the following statement:
'I, Sri Bonomali Roy declare that I, being the only paternal uncle's son of the husband of Srimatya Kadambini Dasi and Srimatya Sitamoni Dasi am at present the only next reversioner to the estate and for reasons hereinbefore stated I express full consent in the matter of this Arpannama deed and for that reason I, Sri Bonomali Roy, become a party to this deed.'
28. The statement quoted above leaves no room for doubt that Bonomali had fully and completely consented to what the ladies wanted to do namely, effect an Arpannama in favour of Lalit and Rashbehari.
29. In our opinion there is nothing contained in : 2SCR655 (Supra) which would help the defendant-appellants in their contention.
30. Regard being had to the nature of the deed of Arpannama, which appears to be a composite deed of surrender and gift and also a deed settlement of family dispute, we are of the opinion that the Arpannama (Ext. 1) is saved by the doctrine contained in the Full Bench decision in ILR 10 Cal 1102 (FB). The criticism that the surrender was bad because it was not made in favour of the immediate reversioner must therefore, fail.
31. All the three branches of the argument advanced on behalf of the appellant failing, these two appeals must be dismissed with costs, but with one hearing fee for both the appeals.
32. I agree.