RANGAPPA NAIK Vs. KAMTI NAIK

JUDGEMENT

(1.) After citing the Order of Reference the Chief Justice went on as follows: The document is not altogether easy to construe, but I read it as a release to the widow by the reversioners of their reversionary interest in consideration of the widow conveying to them her interest in a portion of the property. I do not think the document can be construed as extinguishing the whole of the widow's estate and unless the whole of the estate is extinguished, the surrender in my view of the law is not effective. This was expressly decided by the Privy Council in Behari Lal V/s. Madho Lal Ahir Gayaval (1891) I.L.R. 19 C. 236 and I do not think this decision is affected by the judgment of the Privy Council in Bajrangi Singh V/s. Manokarnika Bakhsh Singh (1907) 12 C.W.N. 74. In Marudamuthu Nadan V/s. Srinivasa Pillai (1897) I.L.R. 21 M. 128 the principle of the decision of the Privy Council in Behari Lal V/s. Madho Lal Ahir Gayawal (1891) I.L.R. 19 C. 236 was applied by a Full Bench of this Court in a case where the widow had alienated a portion of her estate to a third party with the consent of the nearest reversioner for the time being. The decision of this Court in Marudamuthu Nadan V/s. Srinivasa Pillai (1897) I.L.R. 21 M. 128 was recently considered by the Privy Council in Bajrangi Singh V/s. Manokarnika Bakhsh Singh (1907) 12 C.W.N. 74 and was cited with approval, and although the question before their lordships of the Privy Council was the general question of the right of a Hindu widow in the absence of legal necessity to alienate property with the consent of the next reversioners, I can find nothing in their judgment to indicate that they were of opinion that the right was free from the qualifications or restrictions that the whole limited estate must be withdrawn. Although in the Privy Council case, to which I have referred, the facts are not quite clear, and although the alienations were no doubt made piece-meal, I think it must be taken that at the time it was sought to impeach the alienations by the widow the whole of the widow's estate had been alienated with the consent of the reversioners. Both in the case of an alienation to a third party with the consent of the reversioners and in the case of surrender to the reversioners, it seems to me as the law now stands - in this Presidency at any rate - the surrender or the alienation to be effective must comprise the whole of the limited estate. It might, no doubt, be reasonably contended that the rule laid down by the Privy Council in Behari Lal V/s. Madho Lal Ahir Gayawal (1891) I.L.R. 19 C. 236 would be satisfied if the widow, with the consent of the reversioners, surrendered absolutely her entire interest in a particular part of the inheritance, but this contention was urged before the Full Bench in Marudamuthu Nadan V/s. Srinivasa Pillai (1897) I.L.R. 21 M. 128 and the Court declined to accede to it - see the judgment of Shephard J. on page 132.

(2.) Further I do not think that the Privy Council in their recent judgment to which I have referred Bajrangi Singh V/s. Manokarnika Bukhsh Singh (1907) 12 C.W.N. 74 intended to hold that the reversioners could, with a view to enable the widow to give an absolute title to property inherited from her husband, give the widow a general release of their reversionary right. I do not think the decision of this Court in Manickam Pillai V/s. Ramalinga Pillai (1905) I.L.R. 29 M. 120 which followed the Privy Council decision in Bahadur Singh V/s. Mohar Singh (1901) I.L.R. 24 A. 94 and in Narasimham V/s. Madhavarayudu which was decided in accordance with the view taken by the Calcutta High Court in Hem Chunder Sanyal v. Sarnamoyi Debi (1894) I.L.R. 22 C. 354 is affected by the judgment of the Privy Council in Bajrangi Singh V/s. Manokarnika Bakhsh Singh (1907) 12 C.W.N. 74.

(3.) This being my view with regard to the effect of a general release by reversioners of the reversionary rights with a view to prospective alienations by the widow, and with regard to a surrender by a widow to reversioners, or an alienation to third parties with the consent of the reversioners which does not comprise the whole of the widow's limited estate, my answer to the question which has been referred to us would, apart from any question of estoppel, be in the affirmative. But as regards this question of estoppel we are, I think, bound by the judgment of the Privy Council in Bajrangi Singh V/s. Manokarnika Bakhsh Singh (1907) 12 C.W.N. 74. In the last sentence of this judgment their Lordships observe that the I appellants (i.e., the reversioners who sought to have the widow's alienations set aside) who claimed through the reversioners who consented must be held bound by the consent of their fathers. There may be a difficulty in reconciling this statement of the law by the Privy Council on the question of estoppel with the judgment of the Privy Council in Bahadur Singh V/s. Mohar Singh (1901) L.R. 29 I.A. 1; 1 S.C. 24 A. 94 see Bhagwanta V/s. Sukhi I.L.R. 22 A. 33; Govinda Pillai V/s. Thayammal (1904) I.L.R. 28 M. 57; but as the last pronouncement of the Privy Council upon the question I think it is our duty to follow it. As regards this question of estoppel, I do not think the present case can be distinguished on the facts from Bajrangi Singh V/s. Manokarnika Bakhsh Singh (1907) 12 C.W.N. 74. It seems to me the estoppel must be held to be good in a case where the consent is given bona fide and for good consideration with respect to future alienations.