KONDAMMA Vs. SESHAMMA

JUDGEMENT

(1.) ORDER of reference to a Full Bench dellvered by the Hon'ble The Chief Justice : This is an appeal against the judgment of our learned brother Umamaheswaram J. holding that a widew, after her surrender of the properties to the next reversioners is entitled to file a suit for enhancement of the rate of maintenance given to her under the surrender deed. In support of his view, the learned Judge mainly relied upon the observations of Sadasiva Ayyar J. in Chinnaswami Pillai v. Appalaswami Pillai '. After hearing the arguments advanced by the learned Counsel, we think the question raised should be authoritatively decided by a Full Bench. We therefore refer the following question for the decision of the Full Bench : "Whether a widow after surrendering her widow's estate in favour of the next reversioners, is entitled to be maintained out of the estate in the hands of the surrenderee?" Opinion Opinion of the Full Bench was delivered by Viswanatha Sastry, J. The question referred to the Full Bench is " Whether a widow after surrendering her widow's estate in favour of the next reversioners, is entitled to be maintained out of the estate in the hands of the surrenderee". In the case out of which the reference has arisen there was a surrender by a Hindu Widow of the estate inherited by her from her husband in favour of the nearest male reversioners with a stipulation for the payment to her by the reversioners of a sum of Rs. 50/- per year for her maintenance in the event of her desiring to live separate from them. After receiving maintenance at the above rate for some years the widow sued the reversioners for enhanced maintenance out of her husband's estate on account of the increased cost of living but the reversioners denied her right to such maintenance. The reference covers not only cases where a Hindu widow surrenders her husband's estate without any stipulation for her maintenance and subsequently claims maintenance from that estate in the hands of the reversioner but also cases where she seeks a revision of the terms of a maintenance arrangement entered into with the reversioner when she surrendered the estate. We are not aware of any decision and none has been cited to us, where this particular point has been considered. There is a very large body of authority in decided cases which touches it but it is not concluded or even covered by any decision. The answer to the question referred must rest on a consideration of the true nature and effect of a surrender of a widow's estate under the Hindu Law. The doctrine of surrender for which textual authority is slender has been established by judicial decisions ranging over a century starting from the decision of the Supreme Court of Bengal in jadoomoney Debee v, Mookerjee ' and ending with the decision of the Supreme Court of India in Natvarlal v. Dadhubhai . and a Full Bench of this Court in Rami Reddi v. Rosarnma '. The writers of the Bengal School first foreshadowed the theory of relinquishment or surrender by a Hindu widow and the early decisions of the Calcutta High Court formulated the doctrine with its limitations and qualifications. In dealing with the question of succession after the widow's death, Jimutavahana and Acharya Chudamani indicated the possibility of her right ceasing before her death and in that event prescribed the same line of devolution of the estate as on her death. From these passages was evolved the theory of ''surrender" or acceleration of the estate of the next heir by the withdrawal of the widow's interest in property inherited by her from her husband. It was held by the courts that the reversioners would take the estate, not merely when the widow died but also when her title was otherwise extinguished, for instance, by renunciation or surrender or by remarriage. Referring to the acceleration of the reversioners right by surrender, Sir James Golvile G. J. of the Supreme Court of Bengal observed in jadomoney Debee v. Sarodo Prosonno Mookerjee: "it is, in fact but another way of doing that which in former times was continually done without violence to the letter or spirit of Hindu Law, though in a manner shocking to humanity, by means of the rite of Suttee." Pursuing the same train of thought Lord Dunedin in Rangaswami Goundan v, Nachiappa Goundan-. observed; "A Hindu widow can renounce in favour of the nearest reversioner........that is to say, she can, so to speak by voluntary act operate her own death........As already pointed out it is the effacement of the widow--an effacement which in other circumstances is effected by actual death or civil death-which opens the estate of the deceased husband to his next heirs at that date. In a later case Sitanna v. Viranna' the Judicial Committee again pointed out that the basis of the doctrine of surrender was "the effacement of the widow's interest" and its effect was merely that the next heir of the husband stepped into the succession in the widow's place. In two recent decisions of the Supreme Court in Nagireddy v. Durairaja Naidu ' and Natvarlal v. Dadhubhai'' the fundamental basis of the doctrine of surrender was expounded by Mukherji, J. who delivered the judgment of the Supreme Court. The learned Judge observed in the latter case : "The widow's estate is an interposed limitation or obstruction which prevents or impe des the course of succession in favour of the heirs of her husband. It is open to the widow by a voluntary act of her own to remove this obstruction and efface herself from the husband's estate altogether. If she does that the consequence is the same as if she had died a natural death and the next heirs of her husband then living step in at once under the ordinary law of inheritance." As the basis of the doctrine of the widow's surrender is the "effacement" of the widow an effacement which in other circumstances is effected by actual or civil death-whieh opens the estate of her deceased husband to his next heirs at that date, it follows as a necessary corollary that the surrender must be of the entire estate. As observed by the Judicial Committee in Rangaswami Goundan v. Nachiappa Goundan there cannot be a widow who is partly effaced and partly not so." In law therefore, there can be no partial surrender or a surrender of part only of the properties or of the inerest of the widow in the properties inherited by her from her husband. The surrender to be valid must be of the whole of the widow's interest in the whole estate. In other words, it must be a bona fide surrender by the widow to the reversioner and not a device, directly or indirectly through a nominee to divide the estate with the reversioner. There must be a complete self-effacement or total renunciation or abandonment or relinquishment or surrender of the widow's right to hold her husband's estate, whatever be the name and form of the transaction. See Bhagwat Koer v. Dhanukhadari Prasad ; Sureshwar Misser v. Mahesri Misrain . The authorities on this point were recently reviewed in Rami Reddi v. Rosamma . There is one other feature of the doctrine of surrender which has a bearing on the question now before us. Ordinarily a mere disclaimer by an heir will have no effect and inherited property will have to be transferred by a conveyance if the title to it is to vest in another person. The Hindu Law lays down a different rule in the case of a surrender by a Hindu widow. The surrender by a widow conveys nothing in law. It is merely the self-effacement of the widow having the same consequences as her death. It extinguishes her title but does not transfer or convey it. In Natavarlal v. Dadhubhai approving of Damaraju v, Narayana the Supreme Court said :