PANDU MARI LOTE Vs. SHRIPATI SADU LOTE

JUDGEMENT

(1.) ONE Sadu Pandu died on 30-5-1914, leaving behind him a widow by the name of Janma. On 25-1-1916, Jamna executed a document relinquishing in favour of the next reversioners of her husband all the property left by her husband. The property consisted of both watan and non-watan lands. The next reversioners were defendant 1 and Sakharam, the father of defendants 2, 3 and 4. On 15-6-1938, Jamna adopted the plaintiff. On 31-1-1946, the plaintiff filed a suit to recover from defendants 1 to 4 the lands belonging to Sadu Pandu in their possession. The trial Court gave a declaration to the plaintiff that he was the validly adopted son of Sadu Pandu, but refused to give him relief with regard to the lands in possession of defendants 1 to 4, holding that there was a valid surrender in their favour by the widow. An appeal was preferred to the District Court. The lower appellate Court took the view that inasmuch as the surrender by the widow comprised not only non-watan lands but also watan lands and as she had not taken the consent of the Collector before she surrendered these lands to the next reversioners, the surrender was invalid, and taking that view the lower appellate Court decreed the plaintiff's suit as a whole. The defendants came in second appeal to this Court. The matter came before Gajendragadkar and Vyas JJ. and the learned Judges have referred to a Full Bench two questions. One is,

(2.) IT is important to note that in the written statement defendants 1 to 4 relied for their title upon the document of 25-1-1916. Apart from this document no reliance was placed on any other fact which would confer title upon the defendants. Therefore, if the plaintiff as the adopted son is to be deprived of the properties belonging to his adoptive father, he could only be deprived provided the defendants establish their title on the strength of that document. Turning 1o that document, the widow points out that she has no issue, that she has come of age and she did not feel it proper to remain without marrying a husband, and she expressed her intention to marry. She points out that after the marriage the next reversioners would get her right in the property, and therefore she says that on the day on which she executed the document of her own accord and voluntarily she has relinquished in favour of the next reversioners all her right in the property of her husband. The document ends up by saying that this writing is therefore duly passed for relinquishment of her right. It is clear, therefore, that the document constitutes a relinquishment by the widow of the property which came to her as her husband's widow in favour of the next reversioners. The document docs not record any previous transaction. The relinquishment is by the document itself. The title, if any, which is conferred upon the defendants is only by this document and not by any other act of the widow. Prima facie, one would have thought that this document would require registration. It extinguishes the right of the widow in the property with which this document deals, and the Registration Act requires registration of such a document. If the document requires registration and has not been registered, obviously it cannot be admitted into evidence. If that be the position, then 110 further question arises for our determination because, as pointed out, if the whole of the defendants' case depended upon this document and if their title rested upon this document, if the document is not admissible in evidence, the defendants must be held to have failed to prove their title. But it is possible, as very fairly pointed out by Mr. Gokhale, that as the document was executed in 1916 a question may arise as to the value of the property dealt with by this document. If the value was in 1916 less than Rs. 100, then the document would not require registration. We will, therefore, consider the questions submitted to us on the assumption that the document was admissible in evidence and will now proceed to consider what is the position, assuming the defendants are entitled in law to rely on this document.

(3.) THE principles underlying the doctrine of surrender in Hindu law were considered by a Full Bench of this Court in -- 'natvarlal Punjabhai v. Dadubhai Manubhai', AIR 1950 Bom 55 (FB) (A) and it was pointed out in the judgment that the basic principle of surrender is the destruction by the widow by her voluntary act of her life interest in her husband's estate. It was further pointed out that the act of transfer or the act of conveyance is a subsidiary thing to which the same importance cannot be attached as the destruction of the. life estate. Mr. Thakore's contention is that when there is a surrender by a Hindu widow of her estate, it does not constitute a conveyance or transfer, and therefore if the document constitutes a surrender by a Hindu widow, we should not consider what the effect would be if the widow had transferred the property to the next reversioners. In our opinion, that is not the correct reading of the Full Bench decision. It is true that that judgment emphasises the real nature of surrender and it points out that it is brought about by the widow effacing herself. It must follow as a necessary corollary that it is open to a Hindu widow to destroy her life estate, to efface herself, and to remove herself as the impediment which she constitutes between her husband's estate and the next reversioners, without executing any document of transfer of conveyance. If she does that, and as soon as she does that, the succession opens and the next reversioners would succeed to the estate of her husband as effectively as if she had physically died. But she may adopt a different course. She may choose to transfer or convey or alienate all the property which she received from her husband by a document to the next reversioners. Even so, the question would have to be considered whether the transfer constitutes a valid surrender under Hindu law. But what would then have to be considered is not a question of succession, but a question of transfer. In this case it is clear that the defendants are not relying on succession. It is not their case and it is nowhere stated in the written statement that on the Hindu widow Jamna effacing herself, the succession opened and they succeeded to the estate of her husband. On the contrary, they rely for their very title, as already pointed out, upon the document of relinquishment. Therefore, what we have to consider in this case is not a case of succession by the next reversioners on the succession opening by the widow effacing herself, but a case where a widow has transferred the property of her husband and the next reversioners relying on that alienation or transfer as constituting a surrender by the Hindu widow and they being entitled to the property which was conveyed to them.