MAHALU SHIDAPPA Vs. SHANKAR DADU

JUDGEMENT

(1.) The question which arises for decision in this appeal is whether the deed of gift executed by the adoptive mother of the plaintiff binds him. The properties covered by the deed of gift are five pieces of land situated at Chabukswarwadi in the District of Sangli. These properties originally belonged to Dada. At his death Dada had left behind him his widow Nani and his daughter Sarja. Sarja had two children, a son Shankar & a daughter Jai. Jai has been married to Mahalu. After Dada's death Nani succeeded to the estate of Dada as a limited owner. On 17-2-1930, Nani executed a deed of gift in favour of Mahalu. It is common ground that the deed of gift covers all the properties left by Dada. On 21-5-1930, Sarja executed a deed of consent in favour of Mahalu on receiving Bs. 100 as consideration. Possession of the properties was delivered to Mahalu after the deed of gift was executed in his favour and since then Mahalu has been in possession of these properties. On 19-7-1941, Sarja's son shankar has been adopted by Nani and ho has filed the present suit as the adopted son of Dada on 4-9-1943, challenging the validity of the deed of gift and claiming to recover possession of the properties conveyed thereunder from Mahalu. Mahalu's plea was that the deed of gift executed by Nani and the deed of consent executed by Sarja should be considered together and it should be held that Nani surrendered her estate in favour of the nest reversioner Sarja and Sarja conveyed it to him. The Courts below have rejected this plea and have decreed the plaintiff's suit. It is this decree which Mahalu seeks to challenge in the present second appeal before me. On behalf of the appellant Mr. Gokhale has contended that the two documents should be treated as constituting one composite transaction consisting of a surrender by Nani in favour of Sarja and a transfer by Sarja of her absolute interest in the property to Mahalu. It is, therefore, necessary to consider the principles of Hindu law underlying the doctrine of surrender.

(2.) The Hindu widow's power over the estate of her husband to which she has succeeded after his death has been discussed in numerous cases, and the principles which govern the exercise of the said power are now well settled. The widow's estate is in a sense special to Hindu law. It is not possible to describe it adequately by any terms known to English law. In such property the widow has a life estate in the sense that after her death the property goes by succession to the next reversioner. Her power over such property is limited in the sense that she cannot dispose of the property at her pleasure. Even so she represents the estate fully and she can sue and be sued in respect of the property during her lifetime. Her power to deal with the property can be exercised in two different ways. She can alienate the property for legal necessity, in which case the alienation binds the reversioners. The alienation by a Hindu widow binds the reversionere even in the absence of legal necessity if the alienee can show that he made bona fide inquiry and entered into the transaction in the belief that the transaction was justified by legal necessity. There is another class of alienations which bind the reversioners, though there may be no legal necessity or no inquiry on the part of the alienee; and that is where it is shown that the alienation was made with the consent of the next body of reversioners. This doctrine that the alienation, made by a Hindu widow with the consent of the next reversioners is valid has been accepted without reservation, by the Calcutta High Court for many years. The tenor of the Calcutta judgments supports the view that consent of the next reversioners operates 'propriovigore'. In other words, the theory appears to be that between the widow who holds a limited estate and the next reversioners who are entitled to succeed to the estate after the widow's death, the whole of the estate is represented, & if the two join in making the conveyance, the whole right, title and interest in respect of the estate is validly transferred. This view has not been accepted in its entirety by the Bombay High Court. The Bombay High Court has no doubt upheld the validity of such transfers: but this result has been achieved on the ground that the consent of the reversioners raises a presumption that the alienation must be a fair and proper one. In dealing with the Calcutta view, Sir Lawrence Jenkins observed in -- 'Vinayak y. Govind', 25 Bom 128 (A) that (p. 133):

(3.) The other power which she has to deal with her estate is to relinquish the estate in favour of the next body of reversioners. This question also has been discussed by Courts on several occasions, and before the principles were settled by the Privy Council in -- 'Rangasami Gounden v. Nachiappa Gounden', (B), there was considerable disparity in the views expressed by the different High Courts, and though in some cases similar conclusions were reached, the approach was not always uniform and emphasis shifted from one point to the other on many occasions. It is open to doubt whether the whole doctrine of surrender which has now been evolved by judicial decisions has any basis in the Hindu texts themselves. The doctrine of surrender has really been evolved by Courts on general principles of law and jurisprudence. It is now settled that the widow can efface herself completely and there by let the estate devolve upon the next reversioners by succession. This naturally means that she must efface herself in regard to the whole of her estate and she must allow the whole of her estate to devolve upon the whole body of the next reversioners. Mr. Justice Kumaraswami Sastriyar is of the opinion that (p. 480) : "....An anticipation of interest involved by the theory of relinquishment or the defeasance of an ulterior interest by the intermediate acts on the part of the widow are hardly contemplated by the Hindu law-givers. It is clear that the surrender by the widow and the acceptance of the estate by the reversioner are purely matters of contract." -- 'Vaidyanatha Sastri v. Savitri Ammal', A. I. R. 1918 Mad 469 (C).