CHET RAM Vs. KHAWANI SINGH AND UDA KUAR

JUDGEMENT

(1.) THIS is the appeal of Khawani Singh, who was a defendant in a suit brought by Chet Ram and others for the purpose of obtaining a declaration that a certain document, dated the 7th of February, 1914, and registered on the 10th of February, 1914, and which was executed by Musammat Uda Kunwar in favour of Khawani Singh, is null and void and ineffectual as against them after the death of Musammat Uda Kunwar. It appears from a pedigree which is to be found in the first paragraph of the plaint that one Mansa Ram had four sons, Badam Singh, Lalji, Bakhti and Khushali, Musammat Uda Kunwar, the lady who executed the document which forms the subject-matter of this suit, is the widow of Lalji. Khawani Singh, who is the appellant in the present case, is the son of Badam Singh, and, therefore, nephew of Uda Kunwar s deceased husband. The plaintiffs in the case are the descendants of Bakhti and Khushali, the other two sons of Mansa Ram. The case set out in the plaint was to the effect that Lalji, the husband of Musammat Uda Kunwar, had died about 80 years before the suit leaving Musammat Uda Kunwar in possession of his estate as a Hindu widow. It was claimed, therefore, that having this estate she had no right to make the transfer of the property which was evidenced by the document referred to in the plaint. It was further stated in the plaint that all the declarations made by Musammat Uda Kunwar in this document of transfer were untrue statements. It appears from the document itself that Musammat Uda Kunwar declared that the property which she was purporting to dispose of had been joint property held by her deceased husband and the father of Khawani Singh. The plaintiffs case was that this property was the separate property of Lalji which was held by his widow for the limited estate which a Hindu widow possesses. The defence raised by Khawani Singh was that the plaintiffs could not maintain the suit. In the 11th paragraph of the written statement a further plea was taken that Khawani Singh and his father had been living jointly with Lalji, husband of Musammat Uda Kunwar. In the 12th paragraph of the written statement it was pleaded that the property in suit had been bought by Lalji in his own name out of the joint family funds. The 14th paragraph of the same document sets out that the plaintiffs were not reversioners. In the last paragraph of the written statement a ground is taken that, even if Badam Singh and Lalji were found to be separate in estate, the deed of relin- quishment simply operated as an acceleration of the succession in favour of Khawani Singh, There can be no doubt on the pedigree set up in the plaint that, on the assumption that Lalji was a separate owner of the property in suit, Khawani Singh is at the present time a nearer reversioner of Lalji than any of the plaintiffs. The principal matter to be considered is that of the interpretation of the deed of the 7th of February, 1914, printed at page 1A. According to the construction put upon this document by the court below, there was no transfer at all on the part of Musammat Uda Kunwar. The learned Subordinate Judge came to the conclusion that as a matter of fact Lalji, the husband of Musammat Uda Kunwar, had been separate from the rest of his family, and this finding, we may say, is not contested here in appeal. He went on to point out that in drawing up this document Musammat Uda Kunwar professes to be dealing with joint family property. She did not profess to deal with it as having been separate estate of her deceased husband, and so the Subordinate Judge came to the conclusion that the document would not operate as transfer of any interest in favour of Khawani Singh; for if the property, as it has been declared to be in the said document, was joint property, there could be no transfer of it made by this lady Uda Kunwar. The consequence was that the Subordinate Judge decreed the suit. In appeal here it is contended that the court below has placed a wrong interpretation upon the terms of this document. According to the argument of the learned vakil who supports the case for the appellant this document amounts in one view to a total surrender of the interests of Musammat Uda Kunwar in this property. We must take it now for the purpose of disposing of the case that the property was in fact the separate property of Lalji. Unfortunately, however, for this argument of the appellant we find that in this document of transfer executed by Musammat Uda Kunwar a certain area consisting of 21 bighas, 10 biswas, of land was reserved from the operation of the deed. It is not for us to inquire where the property so reserved has since gone to. We have only to look to the deed as we find it on the. record. It being found that a portion of the property was reserved from the operation of the deed, the clear inference is that Musammat, Uda Kunwar did not surrender the whole of the widow s estate in favour of Khawani Singh. The doctrine of surrender has been laid down by their Lordships of the Privy Council in the case of Behari Lal v. Madho Lal Ahir Gayawal (1891) I.L.R. 19 Calc. 236. It is true that since that case has been decided the various courts in India have take, different views as to what is meant by a particular passage in the judgement of for Morris in which he has laid down the principle that there must be a surrender of the entire estate. The Calcutta High Court had taken the view that the rule laid down by their Lordships of the Privy Council means nothing more than that the widow is bound to divest herself of all her interest in the particular portion of the estate which she is transferring. Other High Courts, on the contrary, have held that the judgement of the Privy Council intends to lay down a much wider rule, namely, that the widow is bound to withdraw from the entire estate which she holds so as to accelerate succession in favour of the nearest reversioner. In this connection we may refer to the decision of the Bombay High Court in Pilu v. Babaji (1909) I.L.R. 34 Bom. 165, and the judgement of the Madras High Court in the case of Marudamuthu Nadan v. Srinivasa Filial (1897) I.L.R. 21 Mad. 123. A similar view, we may observe, has been taken in the Punjab Chief Court. The balance of authority is certainly in favour of the proposition that there must be complete surrender of the widow s estate in order to accelerate the vesting of the estate in the nearest reversioner. Accepting this view, we hold that in the present instance there not having been a complete withdrawal from the estate of Lalji by Musammat Uda Kunwar, the document in suit cannot be said to have vested the estate of Lalji in the appellant Khawani Singh. Then it has been contended that Khawani Singh being the nearest reversioner, this transfer will take effect on the principle which is laid down by the Privy Council in the case of Bajrangi Singh v. Manokarnika Bakhsh Singh (1907) I.L.R. 30 All. 1, namely, that a transfer made with the consent of the nearest reversioner will-take effect as against the more remote reversioner. That rule, as we understand, is applicable to cases of transfer for consideration. It has not been extended, so far as we are aware, to a case where a transfer has been made by way of gift. Further, if the transfer be with the consent of the nearest reversioner, it takes effect because it affords evidence of the propriety of the transaction; in other words, it justifies the transaction on the ground of legal necessity. It cannot, we think, be said that the consent of the beneficiary himself is such a consent as would give rise to any such presumption. In either of these views it appears to us that the appellant here is not entitled to rely upon this document as being a transfer in his favour and to claim that the estate of the deceased Lalji has vested in him. We are of opinion that the plaintiffs were entitled to the declaration sought, and we, therefore, dismiss this appeal with costs.