RAM PRASAD SINGH Vs. SITAL PRASAD SINGH

JUDGEMENT

(1.) There was a suit for partition of 8 annas share in the properties described in Schedule I of the plaint bearing touzi No. 6532 and 6541 of village Abdulnagar Taragan, The plaintiffs alleged that one Rajnath had three sons, Rameshwar, Ramkeshwar & Harnarain. Rameshwar had a son named Kunkun of whom the plaintiffs arc the descendants. The second son, Ramkeshwar had a son Ramnarain who died in 1931 leaving a widow, Most. Bhagwati Kuer, who was impleaded as defendant No. 4. She has died subsequently on the 4th March, 1955. The third son, Harnarain had a son named Bhusi (defendant No, 1) and his son Ramprasad is defendant No. 2. Ramprasad's son, Ramkewal is defendant No. 3. Bhusi has died during the pendency of the suit in 1957. Ramnarain, husband of defendant No. 4, Most. Bhagwati Kuer, died while living separate from the other two branches. He had 5 annas 4 pies share in the touzi . After his death, Mosst. Bhagwati Kuer, on the 16th April, 1931, executed a Registered deed of surrender in favour of Kunkun the father of the plaintiffs and Bhusi, father of defendant No. 2 On that basis, the plaintiffs claimed that Ramnarain's estate consisting of 5 Annas 4 pies milkiat interest should be equally divided between the two branches of plaintiffs and the defendants. In addition to that, the plaintiffs were entitled to one-third share and the defendants to the remaining one-third. The defendant No. 2 contested the suit saying that there was no actual surrender by the widow of Ramanarain Singh and as such his share of five annas four pies in the two touzis was not partible between the plaintiffs and the defendants 1 to 3. Most. Bhagwati Kuer, before her death, filed a written statement on the same line, but she died during the suit. The plaintiffs' claim to partition of a five annas four pies share was not opposed. After the suit was filed, both the estate vested in the State of Bihar under the Bihar Land Reforms Act. The claim of respective parties to their shares remained thereafter only in regard to the Bakasht lands and the compensation money. The plaintiffs' case however, failed in the trial court as it was found that the deed of surrender was only a device on the part of the widow and the two reversioners of her husband. The suit was decreed for the partition of 5 annas 4 pies share only. On appeal by the plaintiffs, the lower appellate court took a different view and decreed the plaintiffs' suit for partition of -/8/- share, namely, 8 annas 3 pies (sic) half of 5 annas 3 pies which originally belonged to Ramnarain, the deceased husband of defendant No. 4. The lower appellate court took the view that defendant No. 2, who alone was contesting the suit, was estopped from challenging the surrender because his father was a party to that and had taken benefits under that surrender and defendant No. 1 claimed his interest in this suit through his father. That court also found that the deed of surrender had been acted upon inasmuch as Kunkun and Bhusi (plaintiffs' father and the father of defendant No. 2) got their names recorded in register D and had settled some lauds situate in those touzis. The mutation petitions filed by them (Exts. 6 to 6/b) and the revenue challan (Ext. 19 series) were also relied upon by the court below along with the rent receipts (Ext 13 series) in support of the contention that the deed of surrender had been acted upon. Ultimately the finding was ' recorded in these terms:

(2.) Learned counsel for the appellant contended that the finding of the lower appellate court about the bona fide nature of the deed of surrender or the fact of surrender by Most. Bhagwati Kuer cannot be sustained. He argued that from the very fact that the deed of surrender and the deed of maintenance in favour of the widow, executed on the same day were in respect of the same estate of deceased Ramnarain husband of Most. Bhagwati Kuer, it will appear that the so-called surrender was a mere device and not an actual effacement of the widow, with a view to accelerating the succession of the two reversioners of her husband. If it was so, then the surrender was void and no amount of acting upon it would constitute a valid surrender so as to make the estate of Ramnarain divisible between the other two branches, as claim ed by the plaintiffs. I consider there is great force in this reasoning. The lower appellate court has not proceeded on an analysis of the facts emerging from the two documents (Exts. 3 and 5) the deed of surrender and the deed of maintenance. It is true that surrender by a widow is not an alienation or a transaction in the nature of transfer. It is only withdrawing herself from the estate of her husband and wiping out her legal existence appertaining to that estate. By doing so, she brings in the immediate succession to that estate by nearest reversioner of her husband. No consent or acceptance from the nearest reversioner is necessary for such an act of surrender on the part of the widow. See Natvarlal v. Dadubhai, AIR 1954 SC 61. It is well established and this is also consistent with the theory of custom and social security that the widow, while making a surrender, can keep for herself a small moiety of the estate of her husband for her maintenance or can enter upon an arrangement with the reversioners in whose favour the surrender is made for her maintenance either out of the income of her husband's estate or by a stipulated amount payable to her by the reversioners. That kind of arrangement will not invalidate or would not render the surrender void because that will be consistent with the surrender of a total estate in spite of the factual retention of a small portion for maintenance during the lifetime. See V. Kondamma v. Seshamma, (S) AIR 1957 Andh Pra 156 (FB). In the present case, however, what was sought to be surrendered was immediately sought to be taken back by the deed of maintenance. The trial court was right in inferring from this fact alone that there was no bona fide surrender on the part of the widow. The lower appellate court has not approached the case from this point of view.

(3.) The doctrine of estoppel as adopted by the lower appellate court is equally misconceived. If no consent was necessary from the reversioners for the act of surrender then neither the reversioners nor any person claiming through them can be stopped from challenging the surrender if it was void or voidable in law