N.R. Chatterjea, Acting C.J.
1. This is an appeal under Section 15 of the Letters Patent against a decision of Mr. Justice Page.
2. The suit out of which the appeal arises was instituted by the plaintiff-respondent for a declaration of title to and recovery of possession of certain properties which originally belonged to ona Guru Charan Ray. Guru Charan died in 1871 leaving a childless widow Sham Rangini, and, she came into possession of the zemindari putni, and other properties left by her husband in her right as a Hindu widow. She acquired certain jotes out of the income of the estate in her hands and built a house upon the jot& land acquired by her. In 1915, she granted an ijara of the zemindari and the putni properties to her husband's agnatic cousin Tara Nath Ray, now represented by his widow Profulla Kamini Ray the present appellant. About the same time she executed a deed of gift by which she conveyed to him the dwelling house which she had erected on the jote land. In the deed it was asserted that the property was her stridhan, and she purported to give it absolutely to the donee. In 1917 she gave notice to Tara Nath for terminating the ijara and, as a matter of fact, the ijara was terminated. On the 25th of July, 1917, she executed a deed of release in favour of her husband's brother Bhabani Nath Ray, and, on the 21st June, 1920, the latter instituted the present suit against Tara Nath and another defendant (defendant No. 2) for recovery of possession of the properties in suit.
3. It appears that the plaintiff claimed in schedule ha the moveable properties which belonged to the lady. This was a claim against both the defendant No. 1 and the defendant No. 2. In schedule kha the plaintiff claimed certain lands which had been sold by the lady to and certain lands which had been partly settled with the defendant No. 2. Schedule go, comprised the land containing the house, and this was the property which was conveyed by the deed of gift to the defendant No. 1.
4. The learned Subordinate Judge held that the moveable properties were not included in the deed of release, that the lands of schedule kha which had been alienated by the lady were alienated for valuable consideration and that the settlement of the khamar lands mentioned in schedule kha was valid on the ground of 'prudential management,' He accordingly dismissed the claim with regard to the properties of schedules ka and kha. With regard to the property in schedule ga he was of opinion that the deed of gift set up by the defendant was not a bonafide one and he accordingly gave a decree to the plaintiff in respect of that property.
5. The plaintiff appealed to the High Court in respect of the properties mentioned in schedules ka and kha, regarding which his claim had been disallowed by the trial Court, and the defendant appealed with respect to the property of Schedule ga.
6. The plaintiff did not prosecute his appeal and it was accordingly dismissed.
7. The cross objection preferred by the defendant with respect to the property in schedule ga only was heard by Mr. Justice Walmsley and Mr. Justice Page and the question was raised whether under the deed of surrender the plaintiff was entitled to get possession of the property conveyed to the defendant by the lady, during her lifetime. The learned Judges differed upon that point, sand the judgment of Mr. Justice Page which was in affirmance of the judgment of the trial Court prevailed, the judgment of the trial Court was upheld, and the cross-objection was dismissed. Hence this appeal was preferred by the defendant under the Letters Patent.
8. Before considering the question which of the views taken by the learned Judges is correct, the first thing to be considered is what is the nature of the deed of surrender executed by the lady in favour of the reversioner.
9. There is no doubt, that a Hindu widow is entitled to surrender her estate in favour of the reversioner at any time. But it may be either by way of a transfer of her interest in the estate for valuable consideration or it may be an absolute surrender which has the effect of accelerating the succession of the reversioner, and we have to see whether the transaction in the present case falls within the one class or the other.
10. The case was not decided upon the footing of acceleration of inheritance by surrender in the trial Court which was the point taken up and discussed by the learned Judges in this Court.
11. One of the learned Judges, Mr. Justice Walmsley, referred to the finding of the Subordinate Judge that the sale and the leases of parts of property must stand good for the term of the widow's life, and that that part of his judgment had become final and observed 'that the widow has covenanted for a monthly payment in addition to a cash payment. Those two facts make it difficult to regard the relinquishment as 'of the whole estate, and as effecting the widow's death from the legal point of view' Mr. Justice Page noticed the contention that 'the deed of relinquishment did not amount to a bona fide surrender of the entirety of Sham Rangini's interest in her late husband's property but was merely a device by which she attempted to divide the inheritance with Bhabani Nath' but he appears to have dealt more with the question whether the widow understood the nature and effect of what she was doing when she executed the deed, than the matters referred to above. With regard to the moveables Mr. Justice Page, observes that the moveables were not in existence; but it appears that the plaintiff himself claimed 151 items of moveable properties in the first schedule to the plaint and that some of these which had belonged to the family Thakur were decreed in favour of the plaintiff.
12. The main question which we have to consider is whether the surrender was of such a nature as to accelerate the succession of the reversioner.
13. It appears that the income of properties is Rs. 3,000 a year, and the 'property was let out in ijara at Rs. 2,700 a year to the defendant No. 1 originally. At the time the deed of release was executed by her in favour of the plaintiff it was arranged that the plaintiff would pay her Rs. 3,000 in cash and Rs. 1,800 a year.
14. It is contended by the learned Vakil for the plaintiff that the fact that some maintenance was agreed upon to be paid by the reversioner to the widow does not affect the surrender. That is so. But the question has to be decided, upon the circumstances of each case, whether the surrender was not a mere device for dividing the property or for transferring it for valuable consideration.
15. In the present case the fact that the reversioner had paid to the widow Rs. 3,000 and agreed to pay Rs. 150 a month is not even mentioned in the deed of surrender. Evidently, that fact which appears to have been the consideration for the surrender was concealed, and was mentioned only in the deed of masahara executed the next day by the plaintiff in favour of the lady. But there is no doubt that the two documents must betaken ns parts of the same transaction, and the effect of the two deeds is that the lady, the widow, in consideration of Rs. 3,000 in cash and Rs. 1,800 a year (which, it may be pointed out, was to be realized from the plaintiff by the lady, in case of default of payment, with interest at 12 per cent, per annum from all the properties), agreed to give up all the properties which she had in favour of the reversioner. In these circumstances it seems to me that it was not a deed of surrender such as is contemplated under the Hindu Law to operate as an acceleration of the inheritance of the reversioner. There must be an eilacement of the widow an effacement which in other circumstances is effected by actual death or civil death which opens the estate of the deceased husband to his next heirs at that date. Having regard to the facts and circumstances mentioned above, the deed appears to me to be really a transfer of the interest of the widow for valuable consideration and, that being so there can be no doubt that only the properties covered by the deed would pass to the plaintiff.
16. It may be pointed out that the operative part of the deed of surrender expressly states that the reversioner would be entitled to get possession of the properties mentioned in the schedule to the deed, and the schedule does not mention the property the subject-matter of the cross-objection.
17. The plaintiff, accordingly, is not entitled to get possession of the property covered by the deed of gift in favour of defendant No. 1.
18. In this view it is unnecessary to consider the question whether in the case of an absolute surrender by a Hindu widow in favour of the reversioner, the latter can during the lifetime of the widow recover possession of properties previously alienated by her.
19. It has been pointed out by the learned Vakil for the defendant-appellant that the property covered by the deed of gift was either stridhan properly of the lady or that at any rate it was acquired out of the income of the husband's estate which was treated as separated from the estate and that, therefore, it was unaffected by the question whether there was a real surrender or not. It is pointed out, on the other hand, that the learned Judges were agreed that it was not stridhan. In the view we have taken of this case, it is unnecessary to go into that question.
20. The cross objection is, therefore, allowed and the judgment and decree of the Subordinate Judge so far as the property of. schedule ga is concerned are set aside and the plaintiff's claim to the property of that schedule is dismissed.
21. The defendant No. 1 is entitled to the whole costs of the paper-book incurred by her in this Court, and the hearing fee in the first appeal and the Letters Patent Appeal which is assessed at Rs. 1U0 for each hearing.
22. As regards the costs of the trial Court the defendants Nos. 1 and 2 would get 2/3rds and the plaintiff 1/3rd.
George Claus Rankin, J.
23. I agree.
24. I agree.