(MULLANGI) RAMAYYA Vs. (THONDAPU) BAPANAMMA

JUDGEMENT

(1.) The plaintiffs are the appellants. They sued for possession of certain properties as reversioners to the estate of one Gangaraju whose widow Sitamma died in March 1924. The widow had by a registered document (Ex. 1), dated 30 October 1906, surrendered the properties to her pre-deceased daughter's son, one Venkatarayudu (or Venkanna). This Venkatarayudu also happened to predecease the widow and the plaintiffs have thus become the actual reversionary heirs to the estate. Defendant 1 is the widow of Venkatasayudu and she relied on the deed of surrender as a defence to the claim of the plaintiffs as reversioners. The validity of this deed of surrender was attacked before the Court of first instance on three grounds : (vide para. 14 of the 1 Court's judgment) viz. (1) that it was not a bona fide document, (2) that it was not a complete surrender of all the properties inherited by her from her husband and (3) that Venkanna was a minor on the date of the surrender and did not accept it.

(2.) Both the Courts below have overruled the first objection and it has not been pressed before me. They overruled the third ground also and even that has not been Seriously pressed before me, because, apart from any doubt as to whether Venkanna was or was not a minor at that time, there is no rule which prevents a surrender being made in favour of a minor reversioner, and as pointed out by the lower appellate Court, there is nothing particularly onerous about the surrender deed by reason of which its validity may remain in suspense till the minor attains age. It merely reproduces the legal obligation which the daughter's son would be under, even if he succeeds as heir, to pay off the debts, if any, of Gangaraju. Mr. Raghava Rao's main argument was therefore directed to ground No. 2 of the objections taken before the first Court. The discussion in paras. 16, 17 and 18 of the first Court's judgment will show that there were several defects in the scheduled Ex. 1, but both the Courts have found that, notwithstanding these defects, the daughter's son was put in possession of all the properties that were actually in the enjoyment of the widow. They have also accepted the reason given on behalf of the defendant for including Survey No. 260/3-A instead of No. 345 in the surrender deed, notwithstanding the exchange which had taken place during Gangaraju's lifetime. It therefore remains only to deal with the argument advanced before the lower appellate Court for the first time and repeated here, that the widow had made certain alienations and this circumstance made her incompetent to surrender the estate to the next reversioner.

(3.) With reference to surrenders made by widows after they have alienated portions of the husband's estate questions have been raised in three ways : (1) it has sometimes been contended that as a result of surrender the surrenderee could recover the alienated property even during the lifetime of the widow if the alienation was not binding on the estate. The balance of authority is against this view though so recently as in Prafulla-Kamini Roy v. Bhawani Nath Roy 1926 52 Cal 1018, there has been a difference of opinion in the Calcutta High Court; (2) another line of argument has been that unless the surrenderee is also given a right to impeach the alienation by including that property in some way in the surrender arrangement, the surrender will be invalid. In the very nature of things this consideration can apply only to alienations which are or which could be shown to be invalid and not binding upon the estate. In a case in Krishna Varamma V/s. Hanumantha Rao 1933 MWN 1010, the learned Judges (Pandalai and Curgenven, JJ.) would appear not prepared to accept even this contention independently of any question whether the alienation was valid or invalid. They say: When it is said that the surrender must be of the entire property, it means the entire property then in the possession and enjoyment or control of the family.