MARU Vs. HANSO

JUDGEMENT

(1.) This is a plaintiff's appeal arising out of a suit for a declaration that a deed of gift, dated the 28 March 1916, executed by Mt. Hanso, Defendant 1 (who has died during the pendency of the appeal) in respect of a moiety share of the property left by Ghasita, the paternal grandfather of the plaintiff, as also the transfer of the other half by mutation of names, were not binding on the reversioners. Ghasita was admittedly the last owner of the property and he died leaving three daughters. One daughter dies first. On her death names of the two surviving daughters, Mt. Sundar and Mt. Hanso, were recorded in the revenue papers in equal shares. Mt. Sundar died about 1897 and on her death it is admitted in the plaint that Mt. Hanso caused the name of Sundar's son Bhartu to be entered in the revenue papers in place of her name as against the half share in her possession. Later on Mt. Hanso executed a deed of gift in 1916 with regard to the remaining half share in favour of Bhartu and got Bhartu's name recorded. On Bhartu's death the names of Defendants 2 to 4, his sons, were caused to be recorded in the revenue papers by Mt. Hanso. The plaintiff however asserted that in spite of the entry of the name of Bhartu, Mt. Hanso herself remained in possession of the property. The contesting defendants denied that Mt. Hanso remained in possession of any portion of the property after the transfer and pleaded that the transfers amounted to a complete effacement of the Hindu daughter's interest and surrender in law in favour of the defendants father.

(2.) The learned Subordinate Judge has found as a matter of fact that Mt. Hanso divested herself of all interests in the two portions of the property by two successive stages and that she did not remain in possession of the property after the transfers. The learned Judge has found that the entire effect of these transactions was that a legal surrender took place in favour of Bhartu. In the grounds of appeal before us the questions of fact are not challenged. It may, therefore be taken for granted that Mt. Hanso in her lifetime gave over possession of the half share standing in the name of Mt. Sander to Bhartu and put him in effective possession thereof intending that he should remain owner of it, and that subsequently she transferred the remaining half share which had remained in her possession in favour of Bhartu and put him in possession, It is not disputed that these two transfers covered the entire estate left by Ghasita. Nothing was reserved for herself by Mt. Hanso.

(3.) The only point urged before us is that in order to be valid as a complete surrender it is not only necessary that the surrender must be in respect of the entire estate but that it must also take effect simultaneously and at one and the same time. The contention is that if the entire estate is transferred in favour the next reversioner by successive steps, no legal surrender can take place. The learned vakil for the appellant relies on the case of Behari Lal V/s. Madho Lal Ahir Gayawal (1892) 19 Cal 238. The passage relied upon is as follows: It was essentially necessary to withdraw her own life estate, so that the whole estate should get vested at once in the grantee. The necessity of the removal of the obstacle of the life estate is a practical check on the frequency of such conveyances.