Natvarlal Punjabhai & ANR Vs.
Dadubhai Manubhai & Ors  INSC 72 (18 November 1953)
BOSE, VIVIAN BHAGWATI, NATWARLAL H.
CITATION: 1954 AIR 61 1954 SCR 339
CITATOR INFO :
RF 1981 SC1829 (66,95) RF 1991 SC1581 (12)
Hindu law-Widow-Surrender of estate after
third persons have acquired title by adverse possession against widow-ValidityRight
of reversioner to recover possession before death of widow-Legal nature of
surrender Power of court to impose conditions on grounds of equity.
Where a Hindu widow surrenders her widow's
estate to the reversioners, after a third person has acquired title to the
properties by adverse possession against her, the reversioners are entitled to
recover possession of the properties from that person immediately as heir's of
the last male holder. The person in adverse possession is not entitled to
remain in possession till the death of the widow. So far as the legal
consequences are concerned there is no material difference in this respect
between an adoption and an act of surrender by the widow.
As a surrender by a Hindu widow does not
convey any title to the reversioners, but is only a voluntary act of selfeffacement
by the widow, she can make a valid surrender under Hindu law even after another
person has acquired title by adverse possession against her. The reversioners
do not take the property subject to the rights created by the widow.
Surrender by the widow and acceptance by the
reversioner are not matters of contract. The estate vests in the reversioner by
operation of law without any act of acceptance on the part of the reversioner.
L/B(D)2SCI-8(a) 340 The view that, as the
widow herself is incapable of disputing the title of alienee, or of the person who
has obtained title by adverse possession, a like disability attaches to the
reversioner, is also unsound as the reversioner does not derive title from the
widow even in the case of a surrender.
Assuming that the court has power to impose
conditions on the reversioners' right to recover possession during the lifetime
of the widow on considerations of equity, justice and good conscience and to
prevent the widow, by her own act, from prejudicing the interests she has
created, no such equitable considerations arise in favour of persons who have
come upon the land, as trespassers and claim title by adverse possession.
Subbamma v. Subrahmanyam (I.L.R. 39 Mad.
1035), Sundrasiva v. Viyyamma (I.L.R. 48 Mad. 933), Arunachala v. Arumuga
(I.L.R. 1953 Mad, 550), Lachmi v. Lachho (I.L.R. 49 All.
334) and Basudeo v. Baidyanath (A.I.R. 1935
Pat. 175) disapproved. Ram Krishna v. Kausalya (40 C.W.N. 208), Raghuraj Singh
v. Babu Singh (A.I.R. 1952 All. 875) approved.
Vaidyanatha v. Savitri (I.L.R. 41 Mad. 75)
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 12 of 1953.
Appeal from the Judgment and Decree dated the
31st March, 1949, of the High Court of Judicature at Bombay (Chagla C.J.,
Weston and Dixit JJ.) in First Appeal No. 175 of 1946, arising out of the
Judgment and Decree dated the 28th February, 1946, of the Court of the Civil
Judge, Senior Division at Broach in Special Suit No. 9 of 1941.
K. S. Krishnaswamy Aiyangar (H. J. Umrigar,
with him) for the appellants.
C. K. Daphtary, Solicitor General for India
(J. B. Dadachanii, with him) for respondents Nos. I and 2.
1953. November 18. The Judgment of the Court
was delivered by MUKHERJEA J. This appeal is directed against a judgment and
decree of the Bombay High Court, dated the 31st March, 1949, confirming, on
appeal, the decision of the Civil Judge, Senior Division, at Broach, in Special
Suit No. 9 of 1941.
The facts of the case, though a bit long, are
not in controversy at the present stage and the entire dispute between the
parties centres round certain points of law relating to the rights of the
reversioners, in whose favour a deed of surrender was executed by a Hindu
widow, to recover 341 possession of the properties, belonging to the last male
owner, during the lifetime of the widow from persons who acquired title to the
same by adverse possession against the widow.
To appreciate the contentions that have been
raised by the parties before us, it will be convenient to give a brief
narrative of the material facts in their chronological order. A reference to
the short genealogical table given below will show at once the relationship
between the parties to the present litigation.
Jijibhai | |-----------------|-------------|
| | Tribhovan Kashibhai | (died in 1914) | | Mathurbhai |-------------| (diedin
1924) Shankarabhai Rukmini== ==Hirabai (died in 1922) Manubhai | ==Bai Kashi
(husband) | (widow) | unjabhai (Deft. No. 3) | (died in 1931) | | | ---|----------|---|
| | | Natvarlal Ravajibhai Dadubhai RajiniKant (Deft. No. 1) (Deft. No. 2) (Piff.1)
(Plff. 2) 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 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 the sole owner of
the entire joint estate by right 342 of survivorship. On the 1st of July, 1924,
Bai Kashi, the widow of Shankarbhai, was served with a notice of this
application. On the 17th of July following, she purported to adopt a son named
Sivabhai and in answer to the notice in the guardianship proceeding served upon
her, put forward the claim of her adopted son. The District Judge regarded the
adoption to be invalid and by his order dated November 29, 1924, appointed the
Deputy Nazir of his court as guardian of the properties of the minor Punjabhai,
the properties including the share of Shankarbhai in the joint estate. The
Deputy Nazir took possession of all the properties on behalf of the minor and
it is not disputed that Bai Kashi never got possession of any portion of these
properties since then.
In 1926 Bai Kashi as the guardian of her
infant adopted son Sivabhai brought a Title Suit, being Suit No. 180 of 1926,
claiming partition of the joint family properties on the allegation that, by
adoption, Sivabhai became a co-owner to the extent of a half share in them. The
suit was resisted by Punjabhai represented by his court guardian and the main
contention put forward on his behalf was that the adoption, by the widow, of
Sivabhai was invalid in law. This contention was given effect to by the trial
judge and by his judgment dated the 4th July, 1927, the suit was dismissed.
An appeal was taken against this decision, on
behalf of Sivabhai, to the High Court of Bombay, but the appeal was withdrawn
on the 25th July, 1927. Thereafter in 1930, Rukmini, the sister of Shankarbhai
and the mother of the present plaintiffs, instituted a suit, being Suit No. 350
of 1930, for a declaration that the joint status of the family was disrupted by
the notional partition effected between Mathurbhai and Kashibhai in 1913 and
she, as the next heir of Shankarbhai, was entitled to succeed to Shankarbhai's
share of the properties on the death of Bai Kashi. The trial judge was of
opinion that there was, in fact, a severance of joint status by an informal
partition between Mathurbhai and Kashibhai, but he dismissed the suit on the
ground that a suit of this character was not maintainable in law.
343 Rukmini died soon after that and her two
sons, who were then minors, represented by their father as next friend, preferred
an appeal to the High Court against this order of dismissal. The High Court
allowed the appeal and gave a declaration in favour of the appellants to the
effect that there was disruption of the joint family 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
The suit was resisted by defendants I 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 partition 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 the property. The last
and the main defence was that the defendants having acquired a title by adverse
possession against the widow, and the widow having lost whatever interest she had
in her husband's property, the deed of surrender was invalid, and even if it
was valid, the surrenderees could not claim possession so long as the widow was
alive. The trial court overruled all these contentions and decreed the
plaintiff's suit. The defendants I and 2 preferred an appeal against this
decision to the High Court of Bombay and the appeal first came up for hearing
before a Division Bench consisting of Chagla C.J., and Dixit J. The learned
Judges, by their judgment 344 dated the 23rd January, 1948, which has been
described as an interlocutory judgment, disposed of the first two points
mentioned above and affirmed the decision of the trial court thereon. It was
held that the decision in Rukmini's Title Suit No. 350 of 1930, to which the
defendants were made parties, precluded them from challenging the fact of there
being a partition between Mathurbhai and Kashibhai in 1913 and also from
contending that Sivabhai was a validly adopted son. There remained the only
other question, namely, as to whether the plaintiffs could, on the basis of the
deed of surrender, lay a claim for possession of the properties during the
lifetime of the widow, as against persons, who had acquired title by adverse
possession against her. In regard to this point, a contention was raised on
behalf of the appellants that the deed of surrender was not duly proved and as
there was no definite finding on this point, the learned Judges sent the case
back for findings on the two following issues which they themselves framed:
(i)Whether the plaintiffs proved the deed of
surrender dated 30th January, 1941 ? and (ii)Whether Bai Kashi surrendered the
whole of her husband's interest in the whole property of her husband? The trial
court recorded its findings on both these issues after taking additional
evidence and its findings were in favour of the plaintiffs. After the findings
were returned to the High Court, the appeal was heard by a Full Bench consisting
of Chagla C.J. and Weston and Dixit JJ. The Full Bench confirmed the decree of
the trial court and dismissed the appeal. It was held by the learned Judges
that even though the defendants acquired by adverse possession a title 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 34 5
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 bedore us
by the defendants 1 and 2 in this appeal.
The arguments advanced by Mr. Krishnaswami
Ayyangar, who appeared in support of the appealcan 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 reversions. 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 further extinction by any act of surrender on her part
was possible. The other branch of the learned counsel's contention is, that
assuming, that the widow could make a surrender, such surrender could not
prejudice the rights of persons, acquired by grant from the widow or by
prescription against her prior to the date of surrender and these rights would,
in law, endure during the entire period of the widow's natural life. Whatever
rights the reversions could assert, they could assert only after the widow's
death and not during her lifetime. A number of decided authorities have been
canvassed before us in this connection by the learned counsel and it cannot be
disputed that judicial opinion on these points is not at all uniform.
It seems to us that for a proper
determination of the questions, it is necessary first of all to formulate as
clearly as possible the precise nature and effect of what is known as
"surrender" by a Hindu widow. The word "surrender" cannot
be said to be free from ambiguity. It connotes nothing more than the English
doctrine of merger and a Hindu widow, whose interest is usually, though
incorrectly, likened to that of a life tenant under the English law, merely
accele346 rates the reversion by surrendering her limited interest in favour of
the reversioner, undoubtedly no surrender can be effective if the widow has
already parted with her interest in the property by a voluntary act of her own
or her rights therein have been extinguished by adverse possession of a
stranger. The English doctrine of merger, though it may have influenced some of
the judicial pronouncements in our country has really speaking no application
to a Hindu widow's estate. The law of surrender by a Hindu widow as it stands
at present, is for the most part, judge-made law, though it may not be quite
correct to say that there is absolutely no textual authority upon which the
doctrine could be founded, at least, impliedly. So far as the Dayabhag law is
concerned, its origin is attributed to Jimutabahan's commentary on the well
known text of Katyayana which describes the interest of a childless widow in
the estate left by her husband and the rights of the reversioners after her
death(1). While commenting on Katyayana's text, Jimutabahan lays down that the
persons who should be the next heirs 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 otherways) [jatadhikaraya ; patnya: adhikikara
pradlvamsspi bhogavasishtam dhanam grrhiyu : ] (2). It was observed by Ashutosh
Mookerjee J. in Debi Prosad v. Golap Bhagat(3) 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 (1) Vide Dayabhag Chap. II, section 1, paragraph 56.
(2) Dayabhag Chap. II, section I, paragraph
(3) 40 Cal. 721 at 771.
347 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 widow is totally different from what is implied in the merger of a life
interest in the reversionary estate under the English law. In English law the
reversioner or remainderman has a vested interest in the property and his
rights are simply augmented by the surrender of the life estate. In the Hindu
law, on the other hand, the widow, so long as she is alive, fully represents
her husband's estate,. though her powers of alienation are curtailed and the
property after her death goes not to her but to her husband's heirs. The
presumptive reversioner has got no interest in the property during the lifetime
of the widow. He has a mere chance of succession which may not materialise at
all. He can succeed to the property at any particular time only if the widow
dies at that very moment. The whole doctrine of surrender is based upon this
analogy or legal fiction of the widow's death.
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. It is 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 she died a
natural death and the next heirs of her husband then living step in at once
under the ordinary law of inheritance. In spite of some amount of complexity
which is unavoidable in a law evolved by judicial decisions, this fund. mental
basis of the doctrine of surrender can be said to be established beyond doubt.
Thus Lord Dunedin in Gounder, v Gounden(1) enunciated the law in clear terms as
"It is settled by long practice and
confirmed by decision that a Hindu widow can renounce in favour of the neares,
reversioner if there be only one or of all the reversioners (1) 46 I.A. 72 at
348 nearest in degree if more than one at the
moment. That is to say, she can, so to speak, by voluntary act operate her own
death." Again in repudiating the suggestion that there could be any such
thing as a partial surrender, His Lordship observed:
"As already pointed out, it is the
effacement of the widowan effacement which in other circumstances is effected
by actual death or by civil death-which opens the estate of the deceased
husband to his next heirs at that date. Now, there cannot be a widow who is
partly effaced and partly not so." 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"(2). The true
nature and effect of a surrender by a Hindu widow of her husband's estate have
been thus summoned up, and in our opinion quite correctly, by a Division Bench
of the Madras High Court(3):
"It is settled that the true view of
surrender under the Hindu law is that it is a voluntary act of self-effacement
by the widow having the same consequences as her death, in opening up the
succession to the next heirs of the last male owner. The intermediate stage is
merely extingushed and (1) I.L.R. 39 Mad. 1035.
(2) See Vytla Sitanna v. Mariwada 61 I.A.
200, 207 ;
Mumareddi v. Pitti Darairaja  S.C.R.
(3) Vide Damaraju v. T.Narayana I.L.R.1941
349 not transferred and the law then steps in
to accelerate succession so as to let in the next reversioner. The surrender
conveys nothing in law; it is purely a selfeffacement which must of necessity
be complete; for, as the Privy Council has said, there cannot be a widow partly
effaced and partly not just as there cannot be a widow partly dead and partly
alive. The fiction of a civil death is thus assumed when a surrender takes
place; and when the reversioners come in they come in their own right as heirs
of the last owner and not as transferees from the widow." As surrender conveys
nothing in law and merely causes extinction of the widow's rights in her
husband's estate, there is no reason why it should be necessary that the estate
must remain with the widow before she could exercise her power of surrender.
The widow might have alienated the property to a stranger or some one might
have been in adverse possession of the same for more than the statutory period.
If the alienation is for legal necessity, it would certainly be binding upon
the estate and it could not be impeached by any person under any circumstance.
But if the alienation is not for legal necessity, or if a squatter has acquired
title by adverse possession against the widow, neither the alienation nor the
rights of the adverse possessor could affect the reversioners' estate at all.
These rights have their origin in acts or
omissions of the widow which are not binding on the husband's estate They are
in reality dependent upon the widow's estate and if the widow's estate is
extinguished by any means known to law, e.g., by her adopting a son or marrying
again, these rights must also cease to exist. The same consequences should
follow when the widow withdraws herself from her husband's estate by an act of
renunciation on her part. Whether any equitable principle can be invoked in
favour of a third party who has acquired rights over the property by any act or
omission of the widow may be a matter for consideration.
But the learned counsel for the appellants is
not 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 350 available only against the widow
and not against the husband's heirs, the husband's estate still remains
undestroyed and the widow may withdraw herself from that estate leaving it open
to the reversioners to take 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,
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 under article 28 of the
Limitation Act and the possessor acquired good title against the widow. This
title, it is said, cannot be displaced by the surrenderee who gets the property
by reason of a, subsequent voluntary act on the part of the widow. In support
of this contention the learned counsel has placed reliance upon a number of
cases, principally of the Madras High Court, where it has been held that a
reversions in whose favour a surrender has been made by the widow cannot
challenge the right of a prior alienee from the widow, even though the
alienation was not for legal necessity, so long as the widow remains alive; and
the same protection could be claimed by one who acquired the limited interest
of a widow by adverse possession against her.
It is undisputed that there is considerable
divergence of judicial opinion on this point and in these circumstances it is
necessary to examine briefly the different lines of reasoning adopted by the
different High Courts in dealing with the subject. In Subbamma v.
Subramanyam(4), which can be taken to be the leading pronouncement of the
Madras High Court (1) I.L.R. 39 Mad. 1035.
351 on the point, it was held that a
surrender by a Hindu widow could not affect prior alienations made by her, and
even though such alienations might not be binding on the reversions as not
being made for a proper or necessary purpose, they are binding on the widow for
her life-time or at any rate during the period of her widowhood. In deciding
this case the learned Judges relied mainly upon an earlier decision of the same
court in Sreeramulu v. Kristamma(1), where the view taken was that an
alienation, not for legal necessity, made by a Hindu widow, prior to adopting a
son, could not be challenged by the adopted son so long as the widow remained
alive. In other words, the effect of a surrender by a Hindu widow was treated
to be the same as that of an act of adoption by her.
Two years later, a Full Bench(2) of the
Madras High Court overruled the decision in Sreeramulu v. Kristamma(1) and held
that where a Hindu widow alienated property for a purpose not binding on the
inheritance and thereafter adopted a son, the right of the adopted son was not
prejudiced by the unauthorised transfer and he could sue for possession at
once. Although the Full Bench overruled the decision in Sreeramu v.
Kristamma(1) which was relied on as an authority in Subbamnia's case(3), 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 reversions,
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.
(1) 26 Mad. 143.
(2) Vide Vaidyanatha Sastri v. Savithri
I.L.R. 41 Mad. 75.
(3) I.L.R. 39 Mad. 1035.
352 This view was approved in Sundarasiva v.
Viyyamma(1) and has been accepted since then as good law in all the subsequent
cases(2) 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 such person has been completed already, it could not be
defeated by a surrender made by the widow(1). These decisions undoubtedly
support the appellants' case.
In the Calcutta High Court the question was
raised in Prafulla Kamini v. Bhabani(4) as to whether a gift made by widow
prior to surrendering her husband's estate could be challenged by the
reversioner during the period of the widow's life. The two Judges, constituting
the Bench, differed in their opinion; and whereas Walmsley J. held that the
gift was valid for the period of the widow's life, Page J., on the other hand,
after an elaborate discussion of the law relating to the legal affect of a
widow's surrender, came to the conclusion that the reversioner became
immediately entitled to recover possession from the donee.
In view of the difference of opinion between
the two Judges, there was an appeal filed under clause 15 of the Letters
Patent, but the point in controversy was not decided by the Letters Patent
Bench. The matter again came up before another Bench of the Calcutta High Court
consisting of D. N.
Mitter and Rao JJ.(5). Both the Judges
concurred in holding that the view expressed by Page J. in the earlier case was
right and that on a surrender by the Hindu widow of her husband's estate and
the consequent extinguish(1) I.L.R. 48 Mad. 933.
(2) Vide the oases collected in Arunachala v.
Arumugha I.L.R. 1953 Mad. 550.
(3) Vide Kamiraju v. Singaraju A.I.R. 1935
Korabala v. Ratala A.I.R. 1951 Mad. 753.
(4) 52 Cal. 1018.
(5) Vide Ram Krishna v. Kausalya 40 C.W.N.
353 ment of her interest therein all prior
alienations in excess of her power were liable to be challenged by the
reversioner immediately on the surrender taking effect just as they could be impeached
if the widow died a natural death. In the judgment under appeal the Bombay High
Court has substantially accepted the view taken by the Calcutta Judges in the
case referred to above.
In the Allahabad High Court a Division Bench,
consisting of Boys and Sulaiman JJ. took a view similar to that of the Madras
High Court, in Lachmi v. Lachho(1). Boys J. in course of his judgment observed:
"The doctrine of surrender having been
imported into the Hindu law by judicial decision, we are entitled to import the
complementary rule essential to the prevention of fraud that the widow cannot
by making a surrender defeat rights created by herself and creation of which
was within her authority." Sulaiman J., on the other hand, was very
critical of this view and he expressed his own opinion(2) 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 1stopped from challenging any
alienations made by the Hindu widow during her lifetime as if he were a grantee
from her." 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 (1) I.L.R. 49 All.
(2) I.L.R. 49 All 334 346.
354 view taken by the Allahabad High Court
since then, and in a very recent pronouncement(1) 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 expressed by Sulaiman J. as
So far as the Patna High Court is concerned,
the case of Basudeo v. Baidyanath(2) was decided sometime before the case of
Ram Krishna v. Kausalya(3) was heard by the Calcutta High Court and the learned
Judges, without examining the principles of law independently, followed the
Madras authorities which had at that time been accepted by the Allahabad High
An analysis of the Madras decisions, referred
to above, upon which the learned counsel for the appellant places his reliance,
will show that the grounds upon which they purport to be based are of a
threefold character. The first is that an alienation of property by a Hindu
widow, in excess of her powers, though not binding on the inheritance, creates
in the alience an interest commensurate with the period of her natural life. A
part of the interest, it is said, is severed from the husband's estate when there
is an alienation by the widow, and the reversioner when he takes the estate on
surrender, takes it subject to the interest already created. A person, who has
acquired the widow's interest by adverse possession against her, occupies,
according to the Madras decisions, as stated above, the same position as an
alienee from the widow.
The second ground is, that as the widow
herself is incapable of disputing the title of the alienee or of the person who
has acquired interest by adverse possession against her, a like disability
attaches to the reversioner also who could not have obtained the properties but
for the surrender made by the widow. The third ground assigned is that the law
of (1) Vide Raghuraj Singh v. Raba Singh A.I.R. 1952 All. 875.
(2) A.I.R. 1935 Pat. 175.
(3) 40 C.W.N. 208.
355 surrender being a judge-made law, the
courts in recognising the right of surrender by a Hindu widow can and ought to
impose conditions on the exercise of her power based on considerations of
justice, equity and good conscience, and surrender being a purely voluntary act
on the part of the widow, she could not be allowed by her own act to prejudice
the interests which she had already created.
The first line of reasoning mentioned above
is based upon the dictum of Bhashyam Ayyangar J. in Sreeramulu v.
Kristamma(1), which though accepted in
ubbamma's case(1), was expressly dissented from in the subsequent Full Bench
decision in Vaidyanatha v. Savithri(3). This view, in our opinion, proceeds
upon a misconception regarding 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(1) 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 restrictions 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 alienating her property
without any necessity, merely as a (1) 26 Mad. 143.
(2) I.L.R. 39 Mad. 1035.
(3) I.L.R. 41 Mgad. 75.
(4) Vide Collector of Masulipatam v. Cavaly
Venkata 8 M.I.A. 529.
356 mode of enjoyment, as was suggested
before us by Mr. Ayyangar. If such a transfer is made by a Hindu widow, it is
not correct to say that the transferee acquires necessarily and in law an
interest commensurate with the period of the natural life of the widow or at
any rate with the period of her widowhood. Such transfer is invalid in Hindu
law, but the widow, being the grantor herself, cannot derogate from the grant
and the transfer cannot also be impeached so long as a person does not come
into existence who can claim a present right to possession of the property.
As in the majority of cases, persons with
such rights come into existence only when the widow dies it is generally said
that the alienee gets the estate for the term of the widow's life. We think
that the legal position has been correctly indicated by Kumaraswami Shastriyar
J. in the Full Bench case(1) referred to above. On the one hand, a Hindu widow
has larger rights than those of a life-estate holder, inasmuch as, in case of
justifying necessity she can convey to another an absolute title to the
properties vested in her. On the other hand, where there is no necessity for
alienation, the interest, which she herself holds and which she can convey to
others, is not an indefeasible life estate, but an estate liable to be defeated
on the happening of certain events which in Hindu law cause extinction of the
widow's estate. Remarriage by the widow is one such event which completely
divests her of any interest in her husband's property. Adoption of a son to her
husband is another circumstance which puts an end to her estate as heir to her
husband, the effect of adoption being to bring in a son who has prior claims to
succession under the Hindu law.
In both these sets of circumstances it is not
disputed that prior rights derived from the widow, if not supported by legal
necessity, could be defeated by the next heir of the husband or the adopted son
as the case may be. If the effect of surrender, as explained above, is to
destroy the widow's estate in the same way as if she suffered physical or civil
death, there is no conceivable reason why the reversioner should not, subject
to any question of fraud or collusion that might arise, be in a position to
recover possession of the properties from (1) Vide, Vaidyanatha v. Savithri,
I.L.R. 41 Mad, 75.
357 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(1)
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 matter of contract between the
widow and the reversioner. It is true that the widow at the time of
surrendering her husband's estate can, if she likes, stipulate for a right to
be maintained out of the properties for her lifetime; but reservation of such
small benefit absolutely necessary for her maintenance does not invalidate a
surrender as has been held by the Privy Council in more cases than one(1). Mr.
Ayyangar argues that a widow, who requires to be maintained out of her
husband's property, cannot be said to have suffered death. But this argument is
fallacious. Nobody says that the surrendering widow actually dies. It is a
fiction of law pure and simple and it is for the law to determine under what
circumstances this fiction of natural or civil death would arise. There is such
a legal fiction involved in adoption also when a son is adopted by a widow
subsequent to the death of her husband.
Such adopted son is given the rights of a
posthumous son and the fiction is that he was in existence from before (1) Vide
Vaidyanatha v. Savithri, I.L.R. 41 Mad. 75 at 99.
(2) Vide Sureswar Misra v. Mahesarani, 47 T.
358 the date of the proprietor's death,
although the fact is otherwise. So far as the legal consequences are concerned,
there is no material difference between an adoption and an act of surrender by
the widow. In our opinion, there is no warrant in Hindu law for the proposition
that in case of alienation by a Hindu widow of her husband's property without
any justifying necessity, or in the case of a stranger acquiring title by
adverse possession against her the interest created is to be deemed to be
severed from the inheritance and if a surrender is made subsequently by the
widow, the surrenders must take it subject to such prior interest. Sulaiman J.
in the Allahabad case(1) cited above enunciated the law with perfect precision
when he said that the effect of an alienation by a widow is not to spilt up the
husband's estate into two parts or to give to the alienee an interest
necessarily co-extensive with her lifetime. The reversionary right to challenge
it is no part of the widow's estate at all and, therefore, could not be
surrendered to the reversioner. The first line of reasoning, therefore, seems
to us to be of no substance.
The second ground upon which the Madras
decisions purport to be based is manifestly untenable. The widow herself 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
no 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 reversion
were a grantee from the widow, he would not only have been stopped 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(1). 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 estoppel can possibly be founded on the receipt of such bene(1) Vide Lachini
Chand v. Lachho, I.L.R. 49 All. 334.
(2) Vide I.L.R. 49 All. 334 at 346.
355 Coming now to the third ground, it is
certainly true that a surrender is a voluntary act on the part of the widow and
she is 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 it so long as the widow would remain
alive and his expectations have been cut short by a surrender on the part of
the widow, which no doubt benefits the reversioner in the sense that he gets
the inheritance even during the widow's lifetime. On the other hand, a person,
who takes transfer from a Hindu widow, acts with his eyes open. If the transfer
is without any legal necessity, there is a risk always attached to the
transaction, and there is no law, as we have already -,explained, which secures
to him necessarily an estate for life. A man making a purchase of this
character is not expected to pay the same value which he would pay if the
purchase were made from a full owner. Be that as it may, even assuming that the
court is not incompetent to impose conditions on the reversions' right of
recovering possession of the property during the widow's lifetime on grounds of
equity, justice and good conscience in proper cases, it is clear that in the
case before us no equitable considerations at all arise. The appellants are not
alienees from the widow ; they came upon the land as trespassers without any
right and it is the law of limitation that has legalised what was originally a
clear act of usurpation. They have enjoyed their property since 1925, and as
the title which they have acquired is not available against the reversionary
interest, we do not see any reason sanctioned by law or equity for not allowing
the reversions their full legal rights. The result is that in our opinion the
decision of the High Court is right and this appeal must stand dismissed with
Agent for the appellants: Ganpat Rai.
Agent for respondents Nos. I & 2 : A. C.