MULLANGI RAMAYYA Vs. THONDAPU BAPANAMMA

JUDGEMENT

(1.) This is an appeal from the judgment of Mr. Justice Varadachariar in Second Appeal No. 338 of 1931. The facts have been clearly set out in the judgments of the lower Courts and in the judgment of our learned brother and need not be repeated. Mr. Ch. Raghava Rao for the appellants who were the plaintiffs in the suit has contended again before us that the surrender by Sitamma in favour of her daughter's son now deceased who was the husband of the first defendant was invalid. This is put upon two grounds. In the first place, it is said that the surrender was only partial because the deed of surrender executed by Sitamma, Ex. 1, did not contain Survey No. 345, an item of land got in exchange by Gangaraju himself before he died. Ex. 1 contains Survey No. 260/3-A which was the survey number given up by Gangaraju when he obtained Survey No. 345 in exchange. Since one item of the estate of the husband was not surrendered by the widow, it is contended that the surrender as a whole was invalid. The other ground is that admittedly, the widow Sitamma had made alienations by way of sale of other portions of the estate of her husband which came to her after his death and that she thereby became incompetent to make any surrender in favour of the nearest reversioner. Our learned brother, Varadachariar, J., found against the appellants contention and hence this Letters Patent Appeal preferred with the leave of the learned Judge.

(2.) With regard to Survey No. 345, our learned brother made a slight slip when he stated that both the lower Courts had accepted the reason given on behalf of the defendants for including in the surrender deed Survey No. 260/3-A instead of Survey No. 345. The learned District Judge said that the explanation given on behalf of the defendants might be true or might not. He did not expressly accept the explanation. We agree however with Mr. Lakshmanna for the respondents that this slight mistake in the judgment of our learned brother is not a matter of any importance. Ex. 1 shows that the widow Sitamma meant to surrender in favour of her daughter's son the whole of her husband's estate remaining in her control. There is evidence that Survey No. 345 also was handed over to her daughter's son and that he remained in enjoyment of it thereafter. We see no reason to suppose that this transfer of possession to Sitammal's daughter's son was not made in pursuance of the widow's intention to surrender her husband's estate. This is a point of fact, and since we think that it is clear beyond the possibility of any doubt, we cannot accept the suggestion made on behalf of the appellants that this question should be remanded to the lower appellate Court for a finding.

(3.) With regard to the other contention that the widow became incompetent to make a surrender because she had already alienated certain portions of the estate of her husband in her hands, we cannot accept it. Our learned brother has dealt very fully with the matter and we agree with his reasoning-and with his conclusion. The only case which tends to support the position taken by Mr. Raghava Rao in this appeal is that of Vijiaraghavachariar v. Ramanujachariar In that decision, Phillips and Odgers, JJ., referred to the decision of the Privy Council in Rangaswami Goundan V/s. Nachiappa Goundan (1918) 36 M.L.J. 493 : L.R. 46 I.A. 72 : I.L.R. 42 Mad. 523 (P.C.) and proceeded to apply the principle. They said: To apply this principle it is clear that when the widow purported to surrender her estate she did not and could not surrender the whole of her husband's estate so as to efface herself entirely. The previous alienations were her own act and she could not get rid of them. To that extent she was unable to surrender the whole of the estate and therefore the surrender which she purported to make is invalid.