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PETITIONER: NATVARLAL PUNJABHAI AND ANOTHER

       Vs.

RESPONDENT: DADUBHAI MANUBHAI AND OTHERS.

DATE OF JUDGMENT: 18/11/1953

BENCH: MUKHERJEA, B.K. BENCH: MUKHERJEA, B.K. BOSE, VIVIAN BHAGWATI, NATWARLAL H.

CITATION:  1954 AIR   61            1954 SCR  339  CITATOR INFO :  RF         1981 SC1829  (66,95)  RF         1991 SC1581  (12)

ACT:  Hindu law-Widow-Surrender of estate after third persons have  acquired title by adverse possession against widow-Validity-  Right  of reversioner to recover possession before death  of  widow-Legal  nature  of surrender Power of court  to  impose  conditions on grounds of equity.

HEADNOTE: 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  self- effacement  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  disput- ing 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

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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) commented upon.

JUDGMENT: 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 bet- ween  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)            |

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  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

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minors,  represented  by their father as next  friend,  pre- ferred  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 there- after  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 rever- sioners.   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. 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 con-

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sisting  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 ab- solutely  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 accele- 346 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

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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  commenta- tor  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 59. (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  some- what  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  suc- cession  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 al- together.  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 follows:    "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 79. 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."

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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  widow- an  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 rever- sioner  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 [1951] S.C.R. 655, 661. (3)  Vide Damaraju v. T.Narayana I.L.R.1941 Mad.551,557. 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  self- effacement 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

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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  hus- band’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, succeed. This  leads  us  to  the other  branch  of  the  appellants’ contention  and the question arises whether in case of  sur- render  by  a Hindu widow, a person, who has, prior  to  the date of surrender, acquired, by adverse possession, an inte- rest 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.

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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 adopt- ed 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  com- posing  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  Mad.  664; Korabala v. Ratala A.I.R. 1951 Mad. 753. (4)  52 Cal. 1018. (5)  Vide Ram Krishna v. Kausalya 40 C.W.N. 208. 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

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the judgment under appeal the Bombay High Court has substan- tially 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. 334. (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 stated above. 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  autho- rities which had at that time been accepted by the Allahabad High Court.      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  in- capable  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

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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  des- cribed 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

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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. A. 233. 358 the  date  of the proprietor’s death, although the  fact  is otherwise.  So far as the legal consequences are  concerned,

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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 her- self  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 with,out 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

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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 costs.                                  Appeal dismissed. Agent for the appellants: Ganpat Rai. Agent for respondents Nos.  I & 2 : A. C. Dave. 360