ANNA NANA KHOT Vs. GOJRA DNYANU KAVALE

JUDGEMENT

(1.) The properties in suit are Survey Nos. 158, 298, 152 and a house and an open space. Survey No. 158 is watan property and Survey Nos. 298 and 152 aro rayatawa lands. One Rama was the original owner of the property. After his deatli his property was inherited by Hari who died in 1901. Jija, the widow of Hari, remarried and the property went into the possession of Hari's mother Rakhma who, on April 1, 1911, passed a deed of gift with regard to the rayatawa lands in favour of her daughter Bhagu by Exhibit 17. Bhagu died on July 13, 1917, leaving a daughter Gojra, defendant No. 1, who is married to defendant No. 2. On July 11, 1919, Rakhma died and the present suit was filed on April 15, 1924, by the present plaintiffs who are sons of Nana, cousin of Hari, and claim to be the reversioners to the estate of the deceased Hari. The learned Subordinate Judge, with regard to the rayatawa lands and property other than watan property, held that there was a surrender by the widow of the entire estate in favour of her daughter Bhagu and that the surrender was valid according to the Hindu law. With regard to the watan property the learned Subordinate Judge held that there who adverse possession of Rakhma and of defendants Nos. 1 and 2. The suit of the plaintiffs was, therefore, dismissed. On appeal, the learned District Judge held with regard to the watan property that the date on which Rakhma's possession became adverse was not proved as there was no evidence in the case as to when Jija remarried. He also held that even assuming that Rakhma was in possession for more than twelve years her possession was not adverse to the reversioners and that the adverse possession, if any, would benefit herself and not her heirs, and that the property would become a part of the widow's estate according to the ruling in Lajwanti V/s. safa Chand (1924) I.L.R. 5 Lah. 192 With regard to the other property the learned District Judge came to the conclusion that there was a surrender of the widow's estate in favour of the next reversioner and the gift deed in favour of Bhagu dated April 1, 1911, was valid. The decree of the trial Court was, therefore, reversed with regard to the watan lands and confirmed with regard to the non-watan property. The plaintiff's have filed this appeal with regard to the rayatawa and non-watan property, and the defendants have filed cross-objections with regard to the watan property.

(2.) First, with regard to the non-watan property, it is argued on behalf of the plaintiffs, the reversioners, that the deed of gift was not a surrender of the widow's whole interest in the property as the gift deed comprised only the non-watan property and the watan property was retained by the widow. It is further urged that, there was an agreement to maintain the widow and therefore there was no valid surrender of the widow's estate. So far as the property inherited by Rakhma as a Hindu widow is concerned she has divested herself of the whole property which came to her as heir. The watan property was not inherited by her as an heir, but was acquired by her by adverse possession. Hari died in 1901 and, on April 1, 1911, the widow had not even acquired a title by adverse possession with regard to the watan property. She divested herself of the whole of the property which came to her as heir. It cannot, therefore, be said that the surrender was not of the whole estate inherited by her. The finding of the lower Court is that it was a bona fide surrender, and it cannot be said that it was a device to divide the estate with the reversioners. According to the view of the Privy Council in Rangasami Gounden V/s. Nachiappa Gounden (1918) L.R. 46 I.A. 72, sc 21 Bom. L.R. 640 and Suresh-war Missar V/s. Maheshrani Misrain (1920) L.R. 47 I.A. 288 the surrender was of the whole estate so far as the estate inherited by Rakhma was con-corned and it was valid and binding as against the reversioners.

(3.) It is urged that the surrender was not valid as there wan an agreement to maintain the widow and reliance is placed on the case in Adiveppa V/s. Toutappa (1919) 22 Bom. L.R. 94. As a matter of fact there was no agreement to maintain Rakhma, the only agreement was that Rakhma was to ba taken care of by the donee. Even assuming that the provision amounted to a provision for maintenance, tin- The ruling in Adiveppa V/s. Toutappa has been dissented from in Rama V/s. Dhondi following the decision of the Privy Council in in Sureshwr Misser v. Maheshrani Misrain (1920) L.R. 47 I.A 233. We think, therefore, that there wan a valid surrender and there was nothing in the deed gift which prevented the acceleration of the estate to the next reversioners.