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TMI Blog1953 (11) TMI 21X X X X Extracts X X X X X X X X Extracts X X X X ..... the short genealogical table given below will show at once the relationship between the parties to the present litigation. 4. One Jijibhai, whose name appears at the head of the table, had two sons, Tribhovan and Kashibhai. Tribhovan had a son named Mathurbhai who died in 1924 leaving, behind him, his widow Hirabai and a son Punjabhai. Kashibhai died in 1914 leaving a son Shankarbhai and a daughter Rukmini. Shankarbhai, whose property is the subject matter of dispute in the present case, died without any issue in 1922, leaving his widow Bai Kashi who is defendant No. 3 in the suit. It is said, that there was a notional partition between Kashibhai and Mathurbhai in 1913 which effected a severance of their joint status without any actual division of properties by metes and bounds. Mathurbhai died on 26th January, 1924, and on the 2nd of the June following Hirabai, his widow, made an application to the District Judge for appointment of a guardian of the person and property of her minor son Punjabhai, alleging, inter alia, that the minor was sole owner of the entire joint estate by right of survivorship. On the 1st of July, 1924, Bai Kashi, the widow of Shankarbhai, was served ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mily in the year 1913. This judgment is dated the 8th of February, 1939, and thereafter on the 30th of January, 1941, Bai Kashi executed a deed of surrender in favour of the plaintiffs relinquishing her widow's estate in favour of the husband's nearest reversioners. On the basis of this deed of surrender the plaintiffs brought the suit, out of which this appeal arises, in the Court of the Civil Judge, Broach, claiming possession of the disputed properties as the next heirs of Shankarbhai against the defendants who are the sons and heirs of Punjabhai. Bai Kashi was impleaded as defendant No. 3 in the suit. 5. The suit was resisted by defendants 1 and 2 who raised a number of pleas in answer to the plaintiffs' claim. The material defence was of a three-fold character. It was contended in the first place that there was no portion between Mathurbhai and Kashibhai as alleged by the plaintiffs and the family being still joint when Shankarbhai died, the entire joint estate vested in Mathurbhai by right of survivorship. It was alleged in the second place, that even if the family had separated the adopted son of Bai Kashi, being a nearer heir, the plaintiffs had no title to t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... against the Hindu widow, the deed of surrender executed by her did not become infructuous or inoperative thereby; and as there was acceleration of inheritance in favour of the plaintiffs who were the next heirs of Shankarbhai, they were competent to recover possession of the properties at once by evicting the defendants and were not bound to wait till the widow actually died. It is the propriety of this decision that has been challenged before us by the defendants 1 and 2 in this appeal. 7. The arguments advanced by Mr. Krishnaswami Ayyangar, who appeared in support of the appeal, can be conveniently considered under two heads. The first branch of his contention is, that as the widow's estate was in this case completely extinguished by adverse possession exercised by the defendants, she had, in fact, no interest left in her, which she could make a surrender of in favour of the reversioners. What is said is, that the widow, by suffering the trespassers to remain in possession of her husband's estate for more than the statutory period, had placed it absolutely beyond her power to deal with it any further; and her title being already extinguished by adverse possession, no f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on failure of prior claimants would get the residue of the estate after her use on the demise of the widow in whom the succession had vested, as they would have succeeded if the widow's rights were non-existent or destroyed (in other ways) [jatadhikaraya : patnya : adhikara pradhvamsepi bhogavasishtam dhanam grnhiyu :] (Dayabhag Chap. 11, section 1 paragraph 59.). It was observed by Ashutosh Mookerjee J. in Debi Prasad v. Golap Bhagat 40 Cal. 721 that the theory of relinquishment or surrender was foreshadowed in these remarks of Jimutabahan. This much is clear from the passage referred to above that the commentator had in mind other modes of extinction of the widow's interest in her husband's properties besides the natural death of the widow, which would have the effect of letting in her husband's heirs. There is indeed no mention of surrender or renunciation in the text and it was not on the basis of any textual authority that the law of surrender developed in India. But it must be noticed that though certain terms and expressions of English law have been made use of in a somewhat loose sense, yet the radical idea involved in the doctrine of surrender by a Hindu wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o. 10. Thus surrender is not really an act of alienation of the widow of her rights in favour of the reversioner. The reversioner does not occupy the position of a grantee or transferee, and does not derive his title from her. He derives his title from the last male holder as his successor-in-law and the rights of succession are opened out by the act of self-effacement on the part of the widow which operates in the same manner as her physical death. It is true that a surrender may and in the majority of cases does take the form of transfer, e.g., when the widow conveys the entire estate of her husband, without consideration and not as a mere device to share the estate with the reversioner, in favour of the latter. But it is the self-effacement by the widow that forms the basis of surrender and not the ex-facie transfer by which such effacement is brought about (See Vytla Sitanna v. Mariwada 61 I.A. 200; Mummareddi v. Pitti Durairaja [1951]2SCR655 . The true nature and effect of a surrender by a Hindu widow of her husband's estate have been thus summed up, and in our opinion quite correctly, by a Division Bench of the Madras High Court (Vide Damaraju v. T. Narayana I.L.R. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t right when he says that as adverse possession extinguished the rights of the widow, no fresh extinction by an act of surrender was possible. As the rights acquired by adverse possession are available only against the widow and not against the husband's heirs, the husband's estate still remain undestroyed and the widow may withdraw herself from that estate leaving it open to the reversioners to asks possession of it at once as heirs of the last male holder unless there is any other rule of law or equity which prevent them from doing so. The first branch of the appellants' contention cannot, therefore, succeed. 12. This leads us to the other branch of the appellants' contention and the question arises whether in case of surrender by a Hindu widow, a person, who has, prior to the date of surrender, acquired, by adverse possession, an interest in the widow's estate, can be ousted from possession of the property so long as the widow remains alive ? This question, Mr. Ayyangar argues, should be answered in the negative. His contention, in substance, is, that by reason of adverse possession for more than 12 years the title of the limited owner became extinguished ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n in Sreeramulu v. Kristamma 26 Mad. 143 which was relied on as an authority in Subbamma's case I.L.R. 39 Mad. 1035, yet the law enunciated in the latter case as regards the effect of surrender on previous alienations made by the widow was not dissented from, and Kumaraswami Sastriyar J., who was one of the Judges composing the Full Bench, in the course of his judgment, expressed the view that the adoption of a son by a Hindu widow to her husband was quite different from surrender in favour of the reversioner, and to a relinquishment by the widow, based on no consideration of duty to her husband or his spiritual benefit, courts could very properly refuse to annex rights to defeat prior alienations made by her. 15. This view was approved in Sundarasiva v. Viyyamma I.L.R. 48 Mad. 933. and has been accepted since then as good law in all the subsequent cases (Vide the cases collected in Arunachala v. Arumugha I.L.R. 1953 Mad. 550.) of the Madras High Court. The Madras High Court has also expressly held that the position of a person, who has acquired by adverse possession the limited interest of a Hindu widow is exactly the same as that of an alienee from her and if the title of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... other hand, was very critical of this view and he expressed his own opinion I.L.R. 49 All. 334 as follows : I find great difficulty in discovering any true basis for holding that though the reversioner in whose favour the surrender has taken place has succeeded to the estate of the last male owner and derives title from him, he is nevertheless estopped from challenging any alienations made by the Hindu widow during her lifetime as if he were a grantee from her. 19. In spite of these observations, however, the learned Judge agreed with Boys J. in the conclusion arrived at by the latter, principally on the ground that it would not work any hardship if the reversioner, in whose favour the surrender is made, were to take the property subject to the transfers made by the widow so as to allow the transfers to remain valid for her lifetime. There has however been a definite change in the view taken by the Allahabad High Court since then, and in a very recent pronouncement (Vide Raghuraj Singh v. Babu Singh AIR1952All875 ) of that court the learned Judges have expressly approved of the decision of the Calcutta High Court which is in entire agreement with the opinion actually expres ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... proceeds upon a misconception reading the true nature of a Hindu widow's estate and the rights and duties which vest in her under the Hindu Law. Though loosely described as a life estate , the Hindu widow's interest in her husband's property bears no analogy to that of a life tenant under the English law. As was pointed out by the Judicial Committee (Vide Collector of Masulipatam v. Cavaly Venkata 8 M.I.A. 529) as early as 1861, the estate which the Hindu widow takes is a qualified proprietorship with powers of alienation for purely worldly or secular purposes only when there is a justifying necessity and the restriction on the powers of alienation are inseparable from her estate. The restrictions, as the Judicial Committee pointed out, which are imposed on the Hindu widow's powers of alienation, are not merely for the protection of the material interest of her husband's relations, but by reason of the opinion expressed by all the Smriti writers that the Hindu widow should live a life of moderation and cannot have any power of gift, sale or mortgage except for religious or spiritual purposes. The Hindu law certainly does not countenance the idea of a widow al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ies from an alienee from the widow or from one who has obtained title by adverse possession against her, as none of them could acquire rights except against the widow herself. Kumaraswami Shastriyar J. is of opinion (Vide Vaidyanatha v. Savithri, I.L.R. 41 Mad. 75 ) that a surrender stands on a different footing from adoption by a widow. According to the learned Judge, the surrender by the widow and the acceptance of the estate by the reversioner are purely matters of contract. The widow is not bound to surrender the estate, nor is the reversioner bound to accept it, except on terms which would apply to any other transfer of immovable property so far as prior alienees are concerned. This, in our opinion, involves a total misapprehension of the nature and legal effect of surrender by a Hindu widow as we have already explained. Surrender is not alienation of an interest of the widow in favour of the reversioner, and no acceptance by the reversioner is necessary as a condition precedent to the vesting of the estate in him. The estate vests in the reversioner under operation of law without any act on his part. It is also difficult to see why the learned Judge looked upon surrender as a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lf may be incapable of derogating from her own grant and disputing the alienation which she has herself made; but as has been said already, surrender is not an alienation and as the reversioner does not derive his title from her, there is not principle of law under which the acts of the widow could bind him. As Sulaiman J. pointed out in the case just referred to, that if the reversioner were a grantee from the widow, he would not only have been estopped from challenging the alienation during her lifetime, but would have been equally estopped from challenging it after her death; admittedly that is not the case I.L.R. 49 All. 334 . It is true that the surrender benefits the reversioner but the benefit comes to him under the provision of general law as a result of self-effacement by the widow. No estopped can possibly be founded on the receipt of such benefit. 25. Coming now to the third ground, it certainly true that a surrender is a voluntary act on the part of the widow and she under no legal or moral obligation to surrender her estate. Instances do arise where an alienee has paid valuable and substantial consideration for a property on the expectation of enjoying so long as th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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