ANGAMUTHU CHETTI Vs. VARATHARAJULU CHETTI

JUDGEMENT

(1.) The answer to the question referred depends mainly upon the interpretation of the scope and effect of a recent ruling of the Judicial Committee in Rangasami Goundan v. Nachiappa Goundan (1918) I.L.R. 42 M. 523 where the law on the subject of surrender and alienation by a Hindu widow has been authoritatively considered. They begin by pointing-out that these two classes of transactions are different in their nature and legal incidents. Surrender is described as "an effacement of the widow--an effacement which in other circumstances is effected by actual death or by civil death--which opens the estate of the deceased husband to his next heirs at that date ". In another place it is stated to be a withdrawal of the widow s life estate so that the whole estate should get vested at once in the grantee thus approving of the proposition as stated in Behari Lal v. Madho Lal Ahir Gayawal (1891) I.L.R. 19 Cal. 236 by Lord Morris that " according to Hindu law the widow can accelerate the estate of the heir by conveying absolutely and destroying her life-estate." Then their Lordships sum up the law in these words : "An alienation by a widow of her deceased husband s estate held by her may be validated if it can be shown to be a surrender of her whole interest in the whole estate in favour of the nearest reversioner or reversioners at the time of the alienation. In such circumstances the question of necessity does not fall to be considered. But the surrender must be a bona-fide surrender, not a device to divide the estate with the reversioner". It may be observed here that their Lordships speak of surrender as an alienation and in another place as a gift. But that in my opinion cannot be taken to obscure in any way the distinction between a surrender as defined above and an alienation of the whole or part of the estate on the ground of necessity. So far as this judgment of the Privy Council goes, I find no warrant for holding that, where a transaction is by way of surrender of the widow s whole interest in the whole estate in favour of the nearest reversioner and such surrender is bona-fide and not a mere device to divide the estate with the reversioner, it would not be valid in law simply because the deed of surrender makes a bona-fide provision for a reasonable maintenance and residence for the widow or widows making the surrender. On the other hand it seems to me that their Lordships intended to lay down that if the conditions mentioned by them were satisfied, that was all that was required for a valid surrender and any provision or benefit reserved for the widow not inconsistent with those conditions would not affect the legality of the transaction. Mr. A. Krishnaswamy Aiyar contends that the description of surrender as an effacement of the vidow which in other circumstances is effected by actual death or by civil death opening the estate of the deceased husband to his next heirs at that date, shows that any provision for maintenance and residence in favour of the widow surrendering her life estate is inconsistent with a proper surrender. But I fail to appreciate this argument. If the Privy Council had intended any such result I think they would have made it clear that reservation of any sort of benefit or provision for maintenance would vitiate a surrender. On the other hand all that they were prepared to lay down was that it must not be a device to divide the estate with the reversioner. The transaction which has given rise to this reference, it is conceded, is not such a device but a bona fide surrender. Ail that was argued was that the stipulation by the nearest reversioner in whose favour the surrender is made (which was a payment of a lump sum of Rs. 500 to one widow for her maintenance and an undertaking to maintain the other widow and to provide for their residence), though perfectly reasonable, was in itself sufficient to vitiate the surrender. As I said, this contention is not borne out by the judgment of the Privy Council. It is obvious that if it were to be accepted, if the law were that the widow surrendering her estate cannot stipulate for her maintenance, that would virtually be prohibiting surrenders in most of the cases, even though the widow be actuated by a bonafide desire to divest herself of the entire estate which she inherited from her husband in favour of the next heir.

(2.) Mr. Krishnaswami Iyer was not able to produce a single authority in support of his proposition. On the other hand, as far back as 1856 Sir James Colvile, then Chief Justice of the Calcutta High Court, laid down that a relinquishment of the inheritance by a widow in consideration of maintenance, in favour of the next heir was valid. See S. Jadamoney Dabee v. Mookerjee (1856) 1 Boulnois 120 at 134. It was not, so far as one can gather, for the first time that the law was so laid down in 1856. On the other hand it would appear from Lukhiprea Dassee v. Sheosoondari Dassee (1849) 5 S.D.A. 457 referred to by Sir James Colvile, that that was the Hindu law as understood for a long time. In Lalla Kundee hall v. Lalla Kalee Pershad (1874) 22 W.R 307 a surrender was upheld as a family arrangement in spite of a stipulation for maintenance. In Nobo Kishore Sarma Roy v. Hari Nath Sarma Roy (1884) I.L.R. 10 Cal. 1102 the previous authorities appear to have been fully discussed including the case in S. Jadamoney Dabee v. Mookerjee (1856) 1 Boulnois 120 at 134. I find no suggestion in the judgment of Garth, C.J., or of Mitter, J., throwing doubt on what was laid down by Colvile, C.J., nor is there any doubt cast on that proposition in the elaborate judgments of Jenkins, C.J. and Mookerjee, J. in Debi Prosad Chowdhury v. Golap Bhagat (1913) I.L.R. 40 Cal. 721 referred to with approval by the Privy Council in Rangasami Goundan v. Nachiappa Goundan (1918) I.L.R. 42 Mad. 523. In this Court in Rangappa Naik v. Kamti Naick (1907) I.L.R. 31 Mad. 366 it was laid down that a provision for maintenance does not vitiate a surrender and though their Lordships of the Privy Council in the recent case have said that they did not approve of "a good deal of what was said" in that case. I cannot assume that they meant to hold that the High Court s ruling was bad on this particular point. That was also how the law was enunciated in Chinnaswami Pillai v. Appaswami Pillai (1918) I.L.R. 42 Mad. 25 although the learned Judges following the Full Bench of the High Court in Nachiappa Goundan v. Rangaswami Goundan (which was the case in appeal to the Privy Council in Rangasarni Gonndan v. Nachiappa Goundan (1918) I.L.R. 42 Mad. 523. laid down certain other propositions which were disapproved by the Privy Council. I may also mention that sitting with Oldfield, J., I had recently to consider the effect of the recent Privy Council ruling on this point and on the matter being more fully discussed on this occasion I am strengthened in my view that there is nothing in the judgment of the Privy Council to militate against what appears to me to have been always understood as the law namely that a reasonable stipulation for maintenance and residence does not affect the validity of a surrender provided it is a bona fide surrender of the entire interest of the widow in the whole estate and is not a mere device to divide the estate with the next reversioner. That is how I would answer the question under reference.

(3.) Since I had prepared the above opinion the judgment of the Privy Council in the consolidated appeals from Bengal Nos. 100 of 1916 etc. delivered by Viscount Cave on 30th June 1919 (not yet reported in the Law Reports) has come to my notice. It certainly confirms the view of law I have expressed. In that case in the course of certain proceedings under the Succession Certificate Act instituted by the adopted son of one of three Hindu brothers alleging that they were joint in estate, the widow of one of the brothers also claimed his estate alleging that they had divided an agreement was arrived at by which in consideration of certain property being allotted to her for maintenance during her life she gave up all her rights in favour of the adopted son. Their Lordships held that the agreement which was subsequently acted upon amounted to an effective surrender. It does not appear that the surrender was even attacked on the ground that it was made in consideration of the widow being given a certain portion of the estate for her maintenance during her life; in any case the Privy Council had no hesitation in upholding the surrender in spite of such a provision. They say : " In the present case there was indeed no formal surrender by the widow of her estate; but there was an express agreement, binding upon her, that for considerations which appeared to her sufficient she would abandon the claim which at the time she had a good right to make and would have no right, claim or demand in respect of the estate of her late husband. It is true that the document was drawn up on the footing, not of a surrender of an acknowledged right, but of an admission that the right did not exist; but in substance, and disregarding the form, there was a complete self-effacement by the widow which precluded her from asserting any further claim to the estate. The question is no doubt one of difficulty, but upon the whole their Lordships have come to the conclusion that the execution of the two ekrarnamas, followed by the acceptance for thirty years of maintenance under the terms of those documents amounted to a complete relinquishment by Anandi koer of her estate in favour of Mahabir, and accordingly that the title of Mahabir s representatives is established and the plaintiff s action should have been dismissed on this ground." Oldfield, J.