MUKHLAL RAI Vs. RAMDHARI NONIA

JUDGEMENT

(1.) This appeal is brought on behalf of the defendants against the decision of the Additional Subordinate Judge of Arrah, dated the 22nd December, 1951, reversing a decision of the Munsif of Buxar, dated the 19th January, 1951.

(2.) The suit was brought by the plaintiff on the allegation that a rehan bond had been executed on the 24th August, 1941, by Musammat Motia, the widow of Gopal Nonia, in favour of Deoki Rai, father of defendants Nos. 1 and 2. The relationship of the parties will appear from the following pedigree : GOPAL NONIA=WIFE, MT. MOTIA | ________________________________________________________________________ | | | | Bhageli, daughter, wife Sampati, daughter, wife Neori, daughter (dead) Barathi, duaghter of Ram Eyad Nonia of Bansi Nonia, (alive). (dead) | | Ramdhari Nonia (Plaintiff) Keshwar Nonia. The case of the plaintiff, Ramdhari Nonia, was that there was an oral surrender by Musammat Bhageli and by Musammat Sampati, the two daughters of Copal Nonia, in favour of the plaintiff, and so the plaintiff was entitled to sue for redemption of the rehan bond. The suit was contested by the defendants on the ground that the plaintiff was not the son of Musammat Bhageli and that he had no right to maintain the suit. The allegation of surrender by the two daughters of Gopal Nonia was also disputed. Alternatively, the defendants alleged that they had taken settlement of all the disputed lands from the landlord and they had come in possession of the disputed land. There was a claim set up on behalf of the defendants of adverse possession. The learned Munsif dismissed the suit on the ground that the plaintiff was not the son of Musammat Bhageli and that the case of surrender was not made out. On appeal the lower appellate court held that the plaintiffs were entitled to redeem the property. The story of surrender set up by the plaintiffs was accepted as correct. The lower appellate court, however, disbelieved the case of the defendants that they had acquired title by adverse possession of the disputed land and so the defendants could not resist the claim of redemption. With regard to the title of the plaintiffs, the view taken by the lower appellate court was that the deed of surrender was invalid because the surrender was made only in favour of Ramdhari Nonia and not in favour of Keshwar Nonia, son of Barathi, who was also a daughter of Gopal Nonia. It was, however, held by the lower appellate court that Keshwar Nonia had been made a party to the suit as a co-plaintiff under the provisions of Order 1, Rule 10, Code of Civil Procedure, and that there was no objection in law in granting both the plaintiff and Keshwar Nonia a decree for redemption with regard to the disputed land as against the defendants.

(3.) The question presented for determination in this appeal is whether the plaintiffs have got title to redeem the property in dispute. The argument of the learned Counsel for the appellants is that the surrender by the two daughters, Bhageli and Sampati, in favour of Ramdhari Nonia is invalid, and even though Keshwar Nonia was made a co-plaintiff, the invalidity of the surrender is not cured thereby and the plaintiff Ramdhari Nonia, either alone or with the co-plaintiff Keshwar Nonia, has no title to redeem. The opposite view point was put forward on behalf of the respondents. It was submitted that the surrender made by the two daughters in favour of the plaintiff Ramdhari Nonia was not void but only voidable at the instance of the other rever-sioner, Keshwar Nonia, who was interested in the transaction. It was argued that Keshwar Nonia had appeared in the case and was made a party to the suit as a co-plaintiff. There was no objection raised by Keshwar Nonia to the validity of the surrender and it was contended, therefore, that the mortgagees had no right to challenge the surrender-deed. In support of this proposition of law Counsel for the respondents relied upon Sitaram Ravaji v. Khandu Mairala Shinde, ILR 45 Bom 105 : (AIR 1921 Bom 413) (A), and Bipat Mahton v. Kulpat Mahton, ILR 13 Pat 182 : (AIR 1934 Pat 498) (B). But these cases are not in point, because they deal with alienations made by a Hindu widow of her husband's property for legal necessity and it was held that such alienations were not absolutely void but only voidable at the election of those who would be entitled to the property by survivorship, inheritance or escheat. It was further held in ILR 13 Pat 182 : (AIR 1934 Pat 498) (B), that an alienation by a Hindu widow even without legal necessity is valid as against strangers to the reversion, and such questions as those of legal necessity can only be raised by a limited class of parties, and not by such strangers. Similarly, in ILR 45 Bom 105 : (AIR 1921 Bom 413) (A), the plaintiffs, who were the donees from a Hindu widow, sued to redeem the land in the possession of the defendants as mortgagees. The defendants contended that the alienation in favour of the plaintiffs was void after the widow's death. It was held by the Bombay High Court that the alienation was only voidable and not void and the mortgagee had no locus standi to resist the claim of the person who on the face of it had a perfectly good title to equity of redemption granted by a Hindu widow, and the only person who could dispute the validity of such a grant was the reversioner. In the present case, however, we are concerned not with the alienation by a Hindu widow, but with the case of surrender by the two daughters, Bhageli and Sampati, in favour of Ramdhari. In our opinion, different legal considerations apply to a case of this description. The basis of the doctrine of surrender or relinquishment by a widow i of her interest in the husband's estate which has the effect of accelerating the inheritance in favour of the next heir of her husband is the effacement of the widow's estate and not the ex facie transfer by which such effacement is brought about. The principle is that the next heir of the husband steps into the succession in the widow's place and there is no question of transfer of interest in the widow's estate. The legal position with regard to the doctrine of surender or relinquishment by a Hindu widow has been clearly stated by the Supreme Court in two recent cases Mummareddi Nagi Reddi v. P. Durairaja Naidu, AIR 1952 SC 109 (C), and also in another case, Mt. Phool Kuer v. Mt. Pem Kuer, AIR 1952 SC 207) (D). In the latter case it was pointed out by Mahajan, J. at page 212 of the report that the principle underlying the doctrine of surrender is that it cannot possibly be made in favour of anybody except the next heir of the husband, and the vesting of the estate in the next reversioner takes place under operation of law and it is not possible for the widow to say that she is withdrawing herself from the husband's estate in order that it may vest in somebody other than the next heir of the husband. If that is the true basis of the doctrine of surrender or relinquishment by the widow in the realm of Hindu law, it follows in the present case that the surrender made by the two daughters, Bhageli and Sampati, in favour of Ramdhari is not voidable but void, and Ramdhari Nonia gets no title to the property in dispute because of the surrender by Bhageli and Sampati. The reason is that the effacement of the widow must be total effacement and the other conditions are that there should be a bona fide and total renunciation of the widow's right to hold the property and the surrender should not be a mere device to divide the estate with the reversioners. This principle was laid down by the Supreme Court in AIR 1952 SC 109 (C), and also by the Privy Council in a leading case, Rangaswami Gounden v. Nachiappa Gounden, 46 Ind App 72 : (AIR 1918 PC 196) (E). This view of the law is borne out also by the decision of the Privy Council in Man Singh v. Nowlakhbati, 53 Ind App 11 : (AIR 1926 PC 2) (F). Adopting this principle to the present case, we are of opinion that the surrender made by Musammat Bhageli and Musammat Sampati in favour of Ramdhari Nonia was void and not voidable, and this defect is not cured by impleading Keshwar Nonia as co-plaintiff. It follows, therefore, that the plaintiffs have no focus standi to maintain a suit for redemption against the defendants and the suit for redemption should be dismissed.