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Abhoya Pada Trivedi and anr. Vs. Ram Kinkar Trivedi and ors. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported inAIR1926Cal228,89Ind.Cas.770
AppellantAbhoya Pada Trivedi and anr.
RespondentRam Kinkar Trivedi and ors.
Cases ReferredSureshwar Misser v. Maheshrani Misrani
Excerpt:
hindu law - widow--surrender--provision for maintenance--surrender to reversioner and third party. - .....is now represented by his sons brought a suit for declaration of his right as a reversioner to the entire property of which sarajini was enjoying possession. both the courts below have dismissed the plaintiff's suit. the lower appellate court held that the kadabipatra operated as a surrender of the entire estate of the hindu widow sarajini and was not operative only for her lifetime and it further held that the plaintiff was estopped by the rule of estoppel from contending that the transaction was not binding on him and that the surrender by the widow of the while estate was a valid surrender and could not be questioned by the reversioners.2. in appeal four points have been raised on behalf, of the appellant. the first j& that the nadabipatra made no disposition of the property beyond.....
Judgment:

Cuming, J.

1. In the suit out of which this appeal has arisen the plaintiff sued for a declaration of his title as a reversioner to certain property and also for joint possession. The facts of the case are briefly these. The joint family originally consisted of three brothers, Biroja, Satcouri and Nrisingha. Biroja died. leaving a widow Sarojini and Satcouri also died leaving three sons. In 1902 Sarajini executed a certain Nadabiratra in favour of the present plaintiff and the three sons by which she surrendered her interest in the property of her husband, Biroja. There was a further stipulation which was made by an ekrarnama that she would have a certain house for her residence and an allowance of Rs. 12 a month and the right to the fruit of certain cocoanut tree. The widow died in 1916 and Nrisingha who is now represented by his sons brought a suit for declaration of his right as a reversioner to the entire property of which Sarajini was enjoying possession. Both the Courts below have dismissed the plaintiff's suit. The lower Appellate Court held that the Kadabipatra operated as a surrender of the entire estate of the Hindu widow Sarajini and was not operative only for her lifetime and it further held that the plaintiff was estopped by the rule of estoppel from contending that the transaction was not binding on him and that the surrender by the widow of the while estate was a valid surrender and could not be questioned by the reversioners.

2. In appeal four points have been raised on behalf, of the appellant. The first J& that the Nadabipatra made no disposition of the property beyond the lifetime of the widow. The second contention was that there was no surrender of the entire, estate to the next reversioner because the widow had. arranged that a monthly, allowance would be payable to her and. that she would have a right of residence; in certain house and that these items would be chargeable on the property. Thirdly, it is stated that the surrender was a surrender to the next reversioner and a third party and was bad in law; and fourthly, it was argued that the plaintiff was not estopped from challenging the validity of the surrender.

3. With regard to the first point we have: no hesitation in holding that the document, as the lower Courts have held, was a complete transfer of any rights that the widow had in the property and that: it was not intended to be a document-merely operative during the lifetime of the widow.

4. With regard to the next point namely, that the widow had. arranged that she would get a maintenance from the estate, and that, therefore, the surrender was not a complete surrender of the whole estate I do not think that this contention has any substance. In the case of Angamuthu Chetti v. Varatharajulu Chetti 53 Ind. Cas 386 : 42 M.L.J. 384 : 26 M.L.T. 301 : (1919) M.W.N. 716 : 11 L.W. 11. it was held that a reasonable provision for maintenance and residence in favour of a, Hindu widow does not affect the validity of a surrender by, her of her husband's estate to the nearest reversioner provided it is a bona fide surrender of the entire interest of the widow in the whole estate and is not a mere device to divide the estate with the nearest reversioner. It is quite clear from the document and from the facts of the case that she had surrendered the whole estate merely covenanting that she would get maintenance and right of residence. In the case of Sureshwar Misser v. Maheshrani Misrani 57 Ind. Cas 325 : 25 C.W.N. 194 : (1920) M.W.N. 472 : 39 M.L.J. 161 : 28 M.L.T. 154 : 2 U.P.L.R. (P.C.) 128 : 12 L.W. 461 : 18 A.L.J. 1069 : 47 I.A. 233 : 48 C. 100 : 41 C.L.J. 433 (P.C.). their Lordships of the Privy Council stated that the conveyance of small portions of land to a window was unobjectionable as it was only for mainteaance. I am of opinion, there fore that the provisions for maintenance and residence for a widow does not render the surrender to the next reversioner invalid.

5. The next point urged on behalf of the appellant is that this surrender cannot be Considered as a surrender, to the next reversioner because it was a surrender to the next reversioner and a third party, namely, the sons of Satcouri, and, therefore, strictly speaking it was partly a Surrender and partly an alienation and so-far as the alienation is concerned there was no legal necessity for making. I do not think that there is much substance in this contention. It is a question more of form than substance. If the widow had Surrendered the whole estate to the reversioner and the reversioner had at the same moment made a transfer of his estate to his nephew nothing, could have been said against the transaction and this is what in effect has b en done by the present document. I a 1, therefore, of opinion that the suireder to the next reversioner Nrisingha and to the three sons of Satcouri was a valid transaction which the reversioner cannot now contend is not binding on him. In view of this finding it is hot necessary to determine whether the plaintiff is or is not estopped by the rule of estoppel from challenging the validity of the surrender.

6. The result is that the appeal fails and is dismissed with costs.

Greaves, J.

7. I agree.


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