SUBBALAKSHMI AMMAL Vs. ANARAYANA AYYAR

JUDGEMENT

(1.) This appeal raises the question of the validity of a surrender made by a Hindu female with a limited estate. The last maleholder was one Sellamier, and the plaintiff, who as the reversioner to his estate impeaches the transaction, is his half-brother's son. After Sellamier's death, the property was taken by his widow, who in turn was succeeded by his daughters, Subbalakshmi and Alamelu, of whom the latter died in 1925, leaving a son Yaideeswara. Subbalakshmi, the surviving daughter executed the settlement deed in question on 28th October 1926 in favour of Vaideeswara's son Subbaratnam. On the following day, i.e., on 29th October Vaideeswara died. Toe lower Courts have found that the object of the surrender was to benefit, Subbaratnam, to whom Subbalakshmi was attached and. in whom she was interested and to divert the succession from the plaintiff, who in the ordinary course would, as the nearest reversioner, have succeeded, Vaideeswara being then seriously ill and his death being imminent. The learned District Munsif held that the motive that prompted the surrender does not affect its validity, bat the lower appellate Court, taking a different view, has granted the plaintiff's prayer.

(2.) The point therefore to decide is, whether in regard to a surrender, the law makes the motive, with which it is effected, relevant. The question must, in my opinion, be answered in the negative. What the requisites of a valid surrender are, has been considered, by the Judicial Committee. According to the Hindu law, the widow can accelerate the estate of the nearest heir, by conveying it to him absolutely and destroying her life estate. First, a surrender to be valid, must be of the Surrenderor's whole interest in the whole estate in favour of the nearest reversioner or reversioners at the time of the alienation; a surrender being an effacement of the widow and it being impossible to conceive of a widow who is partly effaced and partly not so, a partial surrender although absolute as to the part conveyed, cannot under the Hindu law be effectual. Secondly, a surrender must be bona fide, i.e., there must be no device to divide the property between the lady and the reversioner, it being equally fatal to the transaction, whether the benefit is directly taken by the lady or by her nominees subject however to the proviso, that the giving of a small portion to the surrendering widow for her maintenance is unobjectionable : Rangaswami Goundan V/s. Nachiappa Gaundan 1918 P.C. 196, Bhagwat Koer V/s. Dhunukh Dhari Prasad Singh 1919 P.C. 75 and Sureshwar Missar V/s. Maheswaahrni Missrain 1921 P.C. 107, Their Lordships of the Judicial Committee in the first and the third of the cases mentioned above, explain clearly what is meant by the expression "bona fide" used in this connexion. The transaction must be bona fide in the sense, that the widow retains no benefit either directly or indirectly, i.e., there must be a complete relinquishment; if in the guise of a surrender, the widow enlarges her own estate in regard to a part, the so-called surrender will not de upheld. I do not think there is any warrant for importing a third and further condition, namely, that the motives operating on the mind of the widow must be of a religious or spiritual character. In regard to adoption by widows, according to the Bombay Courts, the motive is irrelevant; but the law, as administered in this Presidency, makes the motive material. There-being no authority declaring that the motive of the surrendering widow has any bearing, I should for my part be disinclined to introduce an uncertain and puzzling element, making it incumbent upon the Courts to embark upon an enquiry, often difficult and fruitless, as regards the motive for the transaction. The lower appellate Court, in holding; that the motive was material has mainly relied upon Siva Subramania Pillai V/s. Piramu Ammal 1925 Mad. 1111, to which decision I was a party. There while delivering the judgment, I observed: If the transaction is a device to divide the estate, the surrender is clearly not bona fide, but the converse is not necessarily true, for want, of good faith may be evidenced by other circumstances.

(3.) This passage which has been chiefly relied on, must not be taken from its-context. The argument put forward was, that there being no device to share the estate with the reversioner, the transaction should on the authority of the Privy Council decisions, be upheld. We repelled that contention and tried to show that there was an objection equally fatal, if not more, namely, that the surrender was colourable and not intended to be operative at all. We observed accordingly: Subsequent to the surrender, it does not appear that the appellant exercised any act of exclusive ownership from which unequivocal, enjoyment or possession can be inferred.