GANGADHAR NARAYAN INAMDAR Vs. PRABUDDHA VASUDEO MOHALKAR

JUDGEMENT

(1.) This is a second appeal from a decision of the First Class Subordinate Judge of Ahmednagar. The suit was a suit by the plaintiffs for redemption of a mortgage made in 1880 in favour of defendant No. 1, or those through whom ho claims, and it is admitted that the right of the plaintiffs to redeem this mortgage depends upon the validity of a deed of gift or surrender made in 1884.

(2.) It appears that in 18S0 the then owner of the property, one Waman Phadnis, had died leaving a widow Lakshmibai, and Lakshmibai on November 27,1880, executed the mortgage in suit. In 1884, on September 11, Lakshmibai executed in favour of her daughter Kusabai a deed of gift or surrender, which is Exhibit 74, upon the validity of which we have to adjudicate. The document in question provides that Lakshmibai makes a gift of her ancestral immovable estate in favour of her daughter, and then it is stipulated as follows:- My daughter-in-law Annapurnabai husband's name Autuji Waman Phadnis and I are without husbands (i.e., widows) and our maintenance should be carried on. Therefore we both will raise crop in Survey Nos. 24/25 out of the numbers given in gift and maintain ourselves. If my daughter-in law desires to remain separate and to maintain herself, she will raise produce in Survey No. 25 and enjoy the same. But we both are not entitled to dispose of the said numbers. We are only entitled to enjoy the same, By virtue of the gift you are entitled to dispose of the same. So that there is an exception from the surrender or gift of a right for the widow making the gift, and for a third party, namely, the widow of her deceased son, to maintenance, out of a particular part of the property,-the subject-matter of the surrender,-and the question which arises is whether that exception vitiates the surrender.

(3.) The right of a Hindu widow to surrender the estate which belonged to her husband to the next reversioner has been discussed in many cases. The general principle was considered and enunciated by the Privy Council in the case of Rangasami Gownden V/s. Nachiappa Gounden, s.c. 21 Bom. L.R. 640. In that ease Lord Dunedin, delivering the judgment of the Board discusses the power of a Hindu widow to surrender her estate to the next reversioner and he says (p. 79):- ...in any case it is settled by long practice and confirmed by decision that a Hindu widow can renounce in favour of the nearest reversioner if there be only one or of all the reversioners nearest in degree if more than one at the moment. That is to say, she can, so to speak, by voluntary act operate her own death. He then goes on to point out that the surrender must be a surrender of the whole interest of the widow in the whole estate and he says that that is clear on principle, because the surrender operates as an effacement of the widow-an effacement which in other circumstances is effected by actual death or by civil death which opens the estate of the deceased husband to his next heirs at that date, and he observes that there cannot be a widow who is partly effaced and partly not so. It is further laid down that the surrender must not be a mere device for dividing the estate between the widow and the reversioner.