KHANTA MANDALANI Vs. SMTHEM KUMARI DEBI

JUDGEMENT

(1.) This is an appeal by the plaintiffs who brought a suit for a declaration that two deeds of surrender executed by defendant 4 in respect of her half share in the disputed land in favour of defendan 1, the landlord, are null and void. Plaintiff 1 and defendant 4 are two widows of one Behari Mandal, the former being the senior. Plaintiff 2 is the next reversioner. Defendants 2 and 3 are said to have taken settlement of the surrendered lands from defendantl.

(2.) The grounds on which the deeds of surrender were challenged were, firstly, that they were fraudulent and collusive, and secondly, that defendant 4 had no right to surrender her life-interest. The first ground raises a pure question of fact which has been decided by both the Courts below against the plaintiff. As regards the second ground, they have held that the deeds of surrender which were executed for consideration were justified by necessity?the necessity being mainly the maintenance of defendant 4. In this view the suit has been dismissed by both the Courts. Hence this appeal.

(3.) The first point raised by Mr. S.N. Bose on behalf of the appellants is that defendant 4 had no right to surrender her undivided interest in the lands. His contention is that under the Hindu law the two widows inherited one estate in coparcenary and therefore no one of them had any right to deal with her interest. He relies on the decision in Gauri Nath Kakaji V/s. Mt. Gaya Kuar A.I.R. 1928 P.C. 251 and refers to the following passage which is quoted therein from Bhugwandeen Doobey V/s. Myna Baee (67) 11 M.I.A. 487. stated the law as follows: Where a childless Hindu dies leaving two widows surviving, they succeed by inheritance to their husband's property as one estate in coparcenary, with a right of survivorship; and there can be no alienation or testamentary gift by one widow without the concurrence of the other.