SHANTARAM ABASAHEB POWAR Vs. KERU KRISHNA KOLI

JUDGEMENT

(1.) THESE are Letters Patent appeals against the decision of Mr. Justice Chagla summarily dismissing two second appeals Nos. 108 and 109 of 1944. Those appeals arose respectively out of civil suits Nos. 58 and 59 of 1938 in the Court of the Second Class Subordinate Judge, Vita. The question that arises in these appeals is whether the principle of Hindu law enunciated in Rama Nana v. Dhondi Murari (1923) I. L. R. 47 Bom. 678 : S. C. 25 Bom. L. R. 361 that a valid surrender made by a Hindu widow of her husband's estate to the next reversioner cannot be defeated by the subsequent adoption of a son to her husband is affected by the decision of the Privy Council in Anant Bhikappa Patil v. Shankar Ramchandra Patil (1943) 46 Bom. L. R. 1 p. c so as to give the adopted son the right of challenging the surrender made by the widow.

(2.) THE properties in these two suits belonged to one Aba Bajirao. He died leaving his widowed mother Laxmibai, his widow Sonubai and his daughter Tanubai. On his death his widow Sonubai succeeded to him, and on January 8, 1914, she surrendered all the properties to Tanubai. THEreafter Tanubai sold some of the properties on July 9, 1928, to the defendant in suit No.58 of 1938 and she sold some other properties on April 25, 1929, to the defendant in suit No.59 of 1938.- THE plaintiff was thereafter adopted by Sonubai on January 31, 1936. THE two suits were filed in 1938 by the plaintiff to recover possession of the lands which had been sold by Tanubai in 1928 and 1929. THE defendants in those two suits contested the claim mainly on the ground that the plaintiff was not entitled to challenge the alienations made in their favour by Tanubai, inasmuch as the whole estate had been surrendered by Sonubai in favour of Tanubai, who was the next reversioner. THE trial Court as well as the first appellate Court upheld this contention of the defendants, and the plaintiff's suits as well as his two appeals were dismissed. THE second appeals were also dismissed summarily, as I have already stated, by Mr. Justice Chagla.

(3.) MR. Desai has contended that in such a case an adoption should take effect as a happening of contingency to which the rights surrendered had always been subject in like manner as an adoption would have had effect if it had been made before the surrender. In our opinion this argument is fallacious. In our opinion the surrender has the effect of vesting an absolute estate in, the reversioner, and the adoption cannot be regarded as a contingency to which the surrender is subject. Such an argument could not apply to the alienation of family properties by the last surviving male member of a joint Hindu family, as Privy Council's approval of Veeranna v. Sayamma clearly shows. Similarly, as observed by Crump J. in Rama Nana v. Dhondi Murari where a widow fully represents the estate and has full powers of surrendering it to the nearest reversioner or reversioners under Hindu law, the effect of surrender (subject to certain recognised exceptions) cannot be anything less than vesting the whole estate in the latter. Though a surrender operates by accelerating the reversion, i. e. , the succession, it would appear to operate not as a case of succession but an act of alienation, that expression having been used by their Lordships of the Privy Council in Rangasami Gounden v. Nachiappa Gounden. That would further appear to be shown by the decision in Sakharam Bala v. Thama (1927) I. L. R. 51 Bom. 1019 : S. C. 29 Bom. L. R. 1517 where a widow had passed two deeds of gift, one in 1918 in favour of her nephew, who died shortly afterwards, and another in 1921, in respect of the same property, in favour of her daughter and reversioner, and thereafter she adopted the plaintiff. The plaintiff having sued to recover possession of the property from the widow and her daughter, (who claimed that there had been a surrender in her favour), it was held that the plaintiff was entitled to succeed inasmuch as by executing the deed of 1918 in favour of the nephew, the widow had put it out of her power to surrender her whole interest in the estate in favour of her daughter, the nearest reversioner. Marten C. J. observed (p. 1023): If then in the present case the widow has parted with the property so far as she canto the extent at any rate of her estate or interest as a widowthen it would seem to be erroneous to say that notwithstanding that she can still surrender that whole interest to the reversioner. I quite appreciate that a widow's interest may be determined in various ways : by her natural death, by her re-marriage, by adoption or by a valid surrender. But if it is to be a surrender, then it is essential that she should comply with certain conditions. It seems to me that here she does not comply with those conditions, as she has put it out of her power so to do by an earlier document.