ANNA SAKHARAM PATIL Vs. BASGOUDA ANNA PATIL

JUDGEMENT

(1.) THIS is an appeal by the plaintiff and it raises a question of construction of a certain document dated July 25, 1910. The form of this document is a deed of gift by Saubai, the widow of Sakharam Satgouda Patil, in favour of her daughter Krishnabai who was the next reversioner. The question is, did Saubai by this document surrender her estate in the properties of her husband in favour of the next reversioner by completely effacing herself from the estate or did she intend that the transfer of her estate to the next reversioner should take effect only after her death.

(2.) THE plaintiff has filed Civil Suit No. 556 of 1949 to recover possession of the suit properties which consist of certain lands and a house situated in Digraj village in Sangli District. The suit properties belonged originally to one Sakharam Satgouda Patil who died about forty years ago, leaving surviving behind him his widow Saubai and a daughter Krishnabai. Saubai adopted the present plaintiff on June 21, 1940. She died two years later in 1942. During her lifetime she passed a deed of gift exh. 28 in respect of the suit properties in favour of her daughter Krishnabai on July 25, 1910. Krishnabai sold these properties to the defendant on June 20, 1922. The plaintiff contends in the suit that Krishnabai had no right to alienate the properties and that, therefore, the defendant got no title to the properties by virtue of the sale -deed passed in his favour by Krishnabai. The defendant on the other hand contends that Saubai, who was the next heir to her husband's properties after his death, had surrendered her estate in these properties in favour of her daughter Krishnabai who was the next reversioner and that this was done by a deed of gift which was passed by Saubai on July 25, 1910. According to the defendant, since the date of gift, Krishnabai had become an absolute owner of the suit properties and it was in that capacity that she had sold the properties to him on June 20, 1922. The defendant says that pursuant to his purchase of the properties from Krishnabai, he had become a full owner of the properties and had been in enjoyment thereof as such. In these circumstances, says the defendant, the plaintiff cannot get title to the suit properties simply by reason of his adoption by Saubai.

(3.) THERE is only one issue to be decided in this appeal, viz. whether by executing a deed, which purports to be a deed of gift in favour of Krishnabai, Saubai surrendered to Krishnabai her estate in the properties inherited by her from her husband or whether Saubai intended that the transfer was to be effective only upon her death. Having carefully read and considered the contents of what purports to be a deed of gift, I find it difficult to agree with the view of the learned District Judge that the transaction amounted to a surrender. As was pointed out by their Lordships of the Privy Council in Sureshwar Misser v. Maheshrani Misrain , two conditions must be fulfilled before a transaction could amount to a valid surrender and the two conditions are: (1) The surrender must be total, not partial; and (2) The surrender must be a bona fide surrender, not a device to defeat the estate of the reversioner. Now, in this case, the Courts below have taken different views of the nature of the transaction embodied in the deed of gift exh. 28. The learned Civil Judge upon an examination of the contents of the document came to a conclusion that the transaction was not a surrender. The learned District Judge, however, took a contrary view in appeal and held that the transaction amounted to a valid surrender. Mr. Datar appearing for the respondent (defendant) has strenuously sought to support the view taken by the learned District Judge and. he has drawn my attention to certain recitals in the deed exh. 28 in support of his contention that the deed must amount to a valid surrender. For instance, Mr. Datar says that the expressions in the deed such as : **vlysyh tehuh o ?kj tkxk rnaxHkwr oLrqlghr vkt jksth rqtyk c{khl fnysa vkgs rjh lnjgw feydrh iSAA tehuhpk ljdkjh lkjk pkoMhdMs nsu lq[k:I oghokV djkoh** and **rq would show that by passing the deed Saubai, the widow of Sakharam Satgouda Patil, had totally effaced herself from her estate in these properties and that, therefore, the surrender was a complete one. Translated into English these recitals would read : - The above mentioned lands and the house premises together with the appurtenances thereof situated within the limits of the aforesaid village are, this day, given in gift to you. Hence you should pay the Government assessment of the lands, from out of the aforesaid properties, to the Chavadi (village office) and carry on the vahiwat, happily. and You should, therefore, live with me during your life -time, look after me and render service to me and you should carry on the vahiwat of the whole of the property. After my death you should consider the entire property as 'Stridhan' of your absolute ownership and manage the same accordingly as owner. In that matter neither I nor the heirs to my estate shall have any kind of right, title and interest therein. The entire right is fully given to you. The said properties which had been in my vahiwat upto this day, are given this day into your possession. I have given my anxious thought to the language of these recitals and the implications thereof, but am unable to accept Mr. Datar's construction of these statements in the deed. Mr. Datar contends that the words **R;kt cAA vkepk vxj vkeP;k okjlkpk dks.krsgh izdkjsa gDd laca/k o nkok jkfgyk ukgha (in that matter neither I nor the heirs to my estate shall have any kind of right, title and interest left therein)' would show that the transaction was a surrender, in that Saubai expressly and completelyeffaced herself from these properties by giving up her right, title and interest in the properties immediately upon the execution of the deed. In particular, Mr. Datar lays stress on the words **vkepk -dks.krsgh izdkjsa gDd laca/k o nkok jkghyk ukgha (neither I... shall have any kind of right, title and interest left therein)' and argues that, if the transaction was not intended to be a transfer inpresents, but was intended to retain Saubai's interest in these properties so long as she was alive, she would not have used the words 'neither I' in the above sentence in the deed. Mr. Datar is not right in putting this construction on the above sentence. It is a well -settled canon of construction that a document must be construed not piecemeal, but as a whole, due consideration being paid to all the material statements in their proper context. Now, Mr. Datar overlooks the fact that the words 'R;kt ckcrksar (in that matter)' in the sentence on which he relies relate directly to the immediately preceding sentence in the deed, which contains a clear, emphatic and unmistakable statement of Saubai's intention that it was only after her (Saubai's) death that her daughter was to consider herself an absolute owner of these properties and was to manage the properties as such. This declaration by Saubai conferring the rights of absolute ownership over these properties upon her daughter only after her death would show that the sentence**R;kt oAA vkepk vxj vkeps okjlkpk dks.krsgh izdkjsa gDd laca/k o nkok jkghyk ukgha (In that matter neither I nor the heirs to my estate shall have any kind of right, title and interest left therein)' relates to a point of time, not during the life of Saubai, but after her death. The words 'neither I' in this sentence are meaningless in their context and were carelessly used, since it is only too evident that Saubai could possibly have no right, title and interest left in these properties after her death. The words**loZ gDd iw.kZ rqyk fnysa vkgsr (the entire right is fully given to you)' in the context, occurring as they do immediately after the above sentence, also refer to a point of time after Saubai's death and mean that all rights in respect of these properties were given to the daughter, but were to be effective only upon the mother's death.