KRISHNA MHATARBA TEMKAR Vs. BABAN RAMBHAU TEMKAR

JUDGEMENT

(1.) THIS is an appeal by defendants Nos. 2 and 3 in a suit by the plaintiff to recover possession of certain properties on the ground that he was adopted as a son by one Manjulabai to her deceased husband to whom the properties belonged. The plaintiff's case in substance is that one Rambhau died in 1918 leaving two widows Deubai and Manjulabai. Deubai died in 1932 leaving a daughter Thakubai who was the original defendant No.1 but died pending the suit. The other widow Manjulabai who is alive adopted the plaintiff on February 23, 1937. She had a daughter at that time named Dagadubai who was defendant No.1A but who, after Thakubai's death, became defendant No.1. The plaintiff's natural father Gangaram and defendants Nos. 2 to 6 are descendants of Rambhau's two brothers and are thus his agnates. Before the plaintiff's adoption in 1937, Manjulabai had, on June 8, 1927, sold nearly half of the property, which she got from her husband, to defendants Nos. 2, 3, 4 and 5 for Rs. 2,500. Dagadubai and Thakubai had joined in passing that deed. Thereafter Manjulabai passed a document which is in the nature of a sale-deed on June 29, 1929, in favour of her daughter Dagadubai and step-daughter Thakubai. It purported to be a sale of all the remaining properties to them for Rs. 900 which were to be paid to her by annual instalments in the form of corn worth Rs. 60 and clothes worth Rs. 15, that is, in all articles worth Rs. 75 every year during her life. The amount of Rs. 900 seems to have been fixed in the deed only for the purpose of stamp. Otherwise the liability to give articles worth Rs. 75 was to continue till her death. It is expressly stated in the deed that both the daughters had been made owners of the property thereby. Eight years thereafter the present plaintiff was adopted by Manjulabai and he now sues to recover possession of all the properties which belonged to his adoptive father on the ground that both the deeds passed by Manjulabai in 1927 and 1929 were without consideration as well as legal necessity and were not therefore, binding on him. The defence in substance was that both the transactions were supported by consideration as well as legal necessity. It was further contended by the daughters that the deed of 1929 amounted to a valid surrender on the part of Manjulabai of the whole of the property in her hands at that time by which she completely renounced her interest in it and made them owners thereof, with the result that the subsequent adoption of the plaintiff by Manjulabai cannot divest the property of which they had already become owners before the adoption.

(2.) THE material issues before the lower Court were as to whether the adoption had been proved, and secondly, whether the sale-deed of 1929 was a valid surrender under the Hindu law with the result that the adopted son had no right to divest the property in the hands of the daughters as well as the vendees under the deed of 1927.

(3.) AS I have already stated we hold that the plaintiff has been adopted by Manjulabai as a son to her husband. The only question is whether the plaintiff, by virtue of his adoption, is entitled to recover property which has already been conveyed by Manjulabai to the defendants. Taking the deed of 1929 as a deed of surrender as the learned Judge has done, the important point to examine is whether the learned Judge below was right in holding that it is not a valid surrender because a large portion of the income of the lands conveyed has to be paid to the widow for her maintenance. In coming to the conclusion to which the learned Judge has: done, he has relied upon a recent decision of this Court in Gangadhar v. Prdbhudha (1932) I.L.R. 56 Bom. 410 : s.c. 34 Bom. L.R. 1223 as well as on a decision of their Lordships of the Privy Council in Man Singh v. Nowlakhbati (1925) L.R. 53, I.A. 11 : s.c. 28 Bom. L.R. 841. AS both these decisions turn upon the previous authorities of their Lordships of the Privy Council in Bhagwat Koer v. Dhanukhdhari Prashad Singh (1919) L.R. 46 I.A. 259 : s.c. 22 Bom. L R. 477 and Sureshwar Misser v. Maheshrani Misrain (1920) L.R. 47 I.A. 233 it is necessary to see first what has been established by these and also the later decisions of their Lordships. In Bhagwat Koer's case (supra) it was held that the widow's agreement, in conjunction with her acceptance of maintenance, amounted to a complete relinquishment of the estate to the nephew who was the next reversioner. The conclusion to which their Lordships came has been enunciated as follows (p. 271) : ... the execution of the two ekrarnamas, followed by the acceptance for thirty years of maintenance under the terms of those documents, amounted to a complete relinquishment by Anandi Koer of her estate in favour of Mahabir. In coming to that conclusion their Lordships affirmed the principle which they had laid down in another case, Rangasami Gounden v. Nachiappa Gounden (1918) L.R. 46 I.A. 72 : s.c. 21 Bom. L.R. 640, namely, that (p. 271) : a Hindu widow can renounce the estate in favour of the nearest reversioner, and by a voluntary act efface herself from the succession as effectively as if she had then died. This voluntary self-effacement is sometimes referred to as a surrender, sometimes as a relinquishment or abandonment of her rights; and it may be effected by any process having that effect, provided that there is a bona fide and total renunciation of the widow's right to hold the property. The combined effect of these two decisions is that a widow can renounce her interest in her husband's property provided that the renunciation is a bona fide and total renunciation and that it is not invalid merely because she stipulates with the reversioner for the payment of her maintenance. Then in Sureshwar Misser's case (supra) their Lordships again held that in a transaction of surrender the conveyance of small portions of land to the widow was unobjectionable as it was only for maintenance, provided there was a bona fide surrender of the whole estate. The next decision of their Lordships on this point was in Man Singh v. Nowlakhbati (supra). In that case two widows had executed a deed by which they purported to surrender all their rights in the property to the two grandsons of their deceased husband, as next heirs, on the latter agreeing to pay to them Rs. 2,000 per month for maintenance. This deed was passed without the consent of the Court of Wards which was in management of the estate. It was held on those facts that the alleged surrender was void under the Hindu law and also under the provisions of the Court of Wards Act. Their Lordships seem to have been of the opinion on the evidence that the stipulation that the grandsons were to pay to the widows Rs. 2,000 per month for maintenance was really a device to divide the estate with the reversioners, and they distinguished it from the case of Sureshwar Misser v. Maheshrani Misrain (supra), where the widow was given only a small portion of the lands for maintenance. Thus the principle that there can be a valid surrender even if a small portion of the property was reserved for maintenance was re-affirmed. The last case bearing on this point is Vytla Sitanna v. Marivada Viranna (1934) L.R. 61 I.A. 200 : s.c. 30 Bom. L.R. 563. In that case there was a conveyance in favour of a daughter by a widow reserving only a few acres for her own maintenance, and their Lordships observed that it was not disputed before them that the conveyance by the widow of the rest of the property after reserving only a few acres for her own maintenance would have amounted to a surrender of her estate and accelerated the succession of her husband's next heir if he had been a man as held by the Board in Bhagwat Koer v. Dhanukdhari Prashad Singh (supra) and Rangasami Goundan v. Nachiappa Gounden (supra). All these decisions are authorities for the proposition that it is open to a widow, while surrendering the whole of her estate to the next reversioners, to stipulate for her maintenance from the property in which she renounced her right. In this Court it has been held in Rama Nona v. Dhondi Murari (1923) L.R. 47 Bom. 678 : s.c. 25 Bom. L.R. 361 that where a Hindu widow surrendered her husband's estate to her daughter who was the next reversioner and who agreed to maintain the widow as long as she lived, and then the widow adopted a son, the latter was not entitled to question the surrender. The facts of that case very nearly resemble the facts of the present case, as here also it is the adopted son who comes after his adoption to challenge the deed of surrender. The learned Judge below however seems to be of the opinion that in the later case of Gagadhar v. Prabhudha (1932) I.L.R. 56 Bom. 410 : s.c. 34 Bom. L.R. 1223 this Court took a different view. In that case the widow had surrendered her husband's estate to her daughter but had reserved a life interest in two fields for the maintenance of herself and her widowed daughter-in-law. It was held that the transaction did not amount to a valid surrender, firstly, because the maintenance of the widow was made a charge on specific property, and secondly, because provision was also made for the maintenance of her daughter-in-law. None of those two circumstances are present in our case. There is no charge created in the widow's favour on either of the surrendered properties, and the provision for maintenance is made for the widow only. Reliance is, however, placed by Mr. Walavalkar on behalf of the respondent on the observations made by the learned Chief Justice that (p. 415): if the case of Rangasami Goundan (supra) had " stood alone, I should have thought that if the deed of surrender provided that the widow was to be entitled to maintenance of any specific"amount, or to any specific part of the property by way of maintenance, that could not be said to be a total surrender of her total interest in the property and free from the vice of sharing the estate with the reversioner. He has also relied upon another passage that (p. 421) : the payment to one widow of a lump sum in lieu of maintenance illustrates in a pointed manner the essential fact that any bargain as to special maintenance converts the transaction into a sale. There being no question of necessity, as sale by a widow to the reversioner must... be a device for dividing the estate. It must be stated, however, that the learned Chief Justice did accept the proposition that " a widow who surrenders her whole estate and is treated quoad the estate as though she is civilly dead, was nevertheless in fact physically alive, and she must have something to live upon ", and that therefore the widow after surrender remains entitled to maintenance. A distinction was however, sought to be drawn by the learned Chief Justice between a mere provision that the widow was entitled to be maintained and a provision that she was entitled to maintenance of a specific amount or to any specific part of the property. But that distinction and the observations relied upon do not seem to have been necessary for the decision of the case, which was expressly placed on the two factors which I have stated above. Broomfield J., on the other hand, seemed to be inclined to think that if in that case which they were considering a provision had been made merely for the maintenance of the widow herself, i.e. one of the two survey numbers had been set apart for that purpose, it would have been very difficult to say that the' case was not covered by the decision of the Privy Council in Sureshwar Misser's case (supra). With respect I think that view is correct, and that the mere setting apart of some income or some property for the purpose of maintenance should not affect the validity of the' surrender provided that the amount of maintenance reserved was a reasonable amount. Mr. Justice Broomfield rightly summarized the effect of the previous decisions to be that a provision for maintenance of the widow by setting apart a portion of the estate for that purpose did not necessarily render the surrender invalid. We do not think that the proper test for determining the validity of a surrender is that the reversioner had merely to maintain the widow as against his agreeing to give a certain amount of maintenance to her from the income of the property. In fact it appears that in Vytla Sitanna v. Marivada Viranna (supra) the widow had reserved about six acres for her own maintenance, and it was not disputed before their Lordships that the reservation of this much land would have made the surrender invalid. The test of a reasonable amount of maintenance being reserved had been laid down by the full bench decision of the Madras High Court in Angamuthu Chetti v. Varatharajulu Chetti (1919) I.L.R. 42 Mad. 854, F.B. and that is also the test which Mr. Justice Patkar approved of in Govindprasad v. Shivlinga (1930) 32 Bom. L.R. 1482. The decision in Man Singh v. Nowlakhbati (supra) is not based on the ground that a specific amount was to be giventto the widow for maintenance but it is based, as Broomfield J. has pointed out in Gangadhar v. Prabhudha (supra), on the finding that the amount was unreasonably large. The learned Judge below has referred to a decision in Krishna v. Subbanna [1929] A.I.R. Mad 611, in which it was held that if the profits of the whole of the property surrendered were reserved for the widow's maintenance the surrender would be invalid. We are not concerned in the present case with the reservation of the whole of the income, but even so the decision in that case seems to have been based mainly on the ground that the deed which the Court was then considering did not amount to a surrender at all. I may lastly refer to the latest case of this Court, viz. Baribhai v. Narayan (1937) 40 Bom. L.R. 876, in which it has been held by Rangnekar J., following the previous Privy Council decisions, that a provision for the maintenance of the widow by reserving a small portion of the property did not affect the validity of the surrender as a whole.