Kandaswami Padayachi vs Thangavelu Padayachi (died) and others

Alagiriswami, J.—The original owner of the suit property Natesa Padayachi, had three wives, Murugayi, Anjalai, who predeceased her

husband and Kasiammal, the third defendant. Murugayi had a son Velayutham, who predeceased his father on 16th August, 1942. Natesa

Padayachi died on 28th April, 1949. Dispute arose between the two widows and as also Velayutham''s widow which resulted in a suit O.S. No.

119 of 1950 being filed. That was comprised by the third defendant taking Rs. 1550 in cash and executing a release deed. Murugayi died on 24th

January, 1951 and Velayutham''s widow died on 30th May, 1956. Thereafter the third defendant has purported to sell all the suit properties in

favour of the plaintiff. Defendants 1 and 2 claimed the properties as reversioners to the estate of Natesa Padayachi. The plaintiff has failed in both

the courts below. The question for decision mainly centers round the effect of the release deed executed by the third defendant. The release deed

reads that the third defendant was giving up her right to a share in the properties finally in favour of the other two widows and that she had no

further right whatsoever in the family properties. The lower appellate Court has taken the view that the third defendant was entitled to the suit

properties whether the release deed is considered as a release of the right to claim partition from the co-widow or a release of not only her right to

claim partition, but also the right of survivorship on the death of the co-widow, Murugayi, I do not think there is any doubt at all on the wording of

the document that it amounts to a release by the third defendant of any right of survivorship, which the third defendant might have in her husband''s

estate on the death of her co-widow Murugayi. It is not a mere release of the right to demand partition. ""means releasing my right to a share

completely or finally."" means that in the moveable and immoveable properties of the family, the third defendant had no further right whosoever. It is

a clear case of a release of all the rights which a third defendant might have had in the husband''s estate. It is not a mere release of the third

defendant''s right to enjoy her share of the husband''s properties during the lifetime of the co-widow as sought to be argued on behalf of the

respondents.

The law regarding the position of the two co-widows succeeding to their husband''s estate is clearly laid down in Gouri Nath Kakaji v. Mt.

Gaya Kuar 55 M.L.J. 339, where the Privy Council stated as follows:

The general law is so well settled that it scarcely requires restatement. If a Hindu dies leaving two widows, they succeed as joint tenants with a right

of survivorship. They are entitled to obtain a partition of separate portions of the property so that each may enjoy her equal share of the income

accruing therefrom. Each can deal as she pleases with her own life interest, but she cannot alienate any part of the corpus of the estate by gift or

will so as to prejudice the rights of the survivor or a feature reversioner.....The mere fact of partition between the two, while it gives each right to

the fruits of the separate estate assigned to her, does not imply a right to prejudice the claim of the survivor to enjoy the full fruits of the property

during her life time.

Their Lordships referred to their own earlier decision in Bhugwandeen Doobey v. Myna Baee (1867) 2 M.I.A. 487 where it was pointed out.

The estate of two widows who take there husband''s property by inheritance is our estate. The right of survivorship is so strong that the survivor-

takes the whole property to the exclusion even of daughters of the deceased widow. They are, therefore, in the strict sense co-parceners, and

between undivided co-partners there can be no alienation by one without the consent of the other.

In AIR 1934 105 (Privy Council) their Lordships have again pointed out:

But though the doctrine of surrender by a widow has undergone considerable development in recent years, it must be remembered that the basis of

it is the effacement of the widow''s interest, and not the ex facie transfer by which such effacement is brought about. The result is merely that the

next heir of the husband steps into the succession in the widow''s place.

Their Lordships referred with approval to the decision of the Allahabad High Court in Sartaji v. Ramjas AIR 1924 All 166 in which it was held

that there was no sufficient reason for making any difference between surrender to a daughter and surrender to the nearest male reversioner. In the

decision of the Allahabad High Court referred to by their Lordships the facts were as follows:--

One G. died leaving hit widow R. and his daughter J.R. inherited her husband''s property as next hair. On the occasion of marriage of J. in 1881,

she executed a document by which she transferred her rights in the husband''s property which consisted of a share of Zamindari and a house, to

her daughter J.J was in possession for some years when she died, R. survived her. J left a daughter S. who obtained possession upon the death of

J and remained in possession for more than twelve years. Plaintiff A was the son of B who was the nephew of G and was the next reversioner to

the estate of G. R died in 1918 and upon her death the present suit was brought by B for recovery of the properties from S.

It was hold:--

that the plaintiff''s right to succeed accrued upon the death of J and that event having taken place more than 12 years prior to the institution of the

suit and S having been in possession for more than 12 years without having any right, her possession thus amounted to adverse possession and the

plaintiff''s claim was beyond time.

The Allahabad High Court pointed out that upon the death of the right to property vested in the next reversioner to her and not in her mother

and therefore the fact of a mother being alive for a number of years after the death of J, did Dot affect the question of the plaintiff''s right of

succession. This decision, thus establishes that where the widow surrenders her right to the next reversioner the fact that the next reversioner dies

during the lifetime of the widow does not mean that the widow again succeeds to her husband''s estate. The widow can succeed to her husband''s

estate only once. There may be cases, as for instance, where a widow after succeeding in her husband''s estate adopts to her husband and is

thereupon divested of her widow''s estate and if the adopted son subsequently dies, the widow can succeed is the heir of the adopted son. But

there can be no question of her succeeding to her husband''s estate once again after having released her right once. Therefore, In this case, after the

third defendant bad surrendered her right; of survivorship in favour of her co-widow, there was no question of her again succeeding to bar

husband''s estate as the lower appellate court items to have thought possible.

The position regarding a widow who had surrendered her right has, also been considered by the Supreme Court in Natvarlal Punjabhai and

Another Vs. Dadubhai Manubhai and Others, where they stated the position of law as follows:--

But it must be noticed though certain terms and expressions of English law have been made use of in a somewhat loose sense, yet the radical idea

involved in the doctrine of surrender by a Hindu widow is totally different from what is implied in the merger of a life interest in the reversionary

estate under the English law. In English law, reversioner or remainderman has a vested interest in the property and his rights are simply augmented

by the surrender of the life estate. In the Hindu law, on the other hand, the widow, so long as she is alive, fully represents her husband''s estate,

though her powers of alienation are curtailed and the property after her death goes not to her but to her husband''s heirs. The presumptive

reversioner has got no interest in the property during the lifetime of the widow. He has a mere chance of succession which may not materialise at

all. He can succeed to the property at any particular time only if the widow dies at that very moment. The whole doctrine of surrender is based

upon this analogy or legal fiction of the widow''s death. The widow''s estate is an interposed limitation or obstruction which prevents or impedes

the course of succession in favour of the heirs of her husband, it is open to the widow by a voluntary act of her own to remove this obstruction and

efface herself front the husband''s estate altogether. If she does that, the consequence is the some as if she died a natural death and the next heirs of

her husband then living step in, at once, under the ordinary law of inheritance. In spite of some amount of complexity which is unavoidable in a law

evolved by judicial decisions, this fundamental basis of the doctrine of surrender can be said to be established beyond doubt.

Thus Lord Dunedin in Rangaswami Gounder v. Nachiappa Gounder AIR 1918 P.C. 196 at 198 (B) (B) enunciated the law in clear terms as

follows:--

It is settled by long practice and confirmed by decision that a Hindu widow can renounce in favour of the nearest reversioner If there be only one

or of all the reversioners nearest in degree if more than one at the moment. That is to say, she can, so to speak, by voluntary act operate her own

death.

Again in repudiating the suggestion that there could be any such thing as a partial surrender, His Lordship observed:--

As already pointed cut, it is the 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. Now, there cannot be a widow who is partly effaced end partly not

so.

Thus surrender is not really an act of alienation of the widow of her rights in favour of the reversioner. The reversioner does not occupy the position

of a grantee or transferee, and does not derive his title from her. He derives his title from the last male holder as his successor-in-law and the rights

of succession are opened out by the self effacement on the part of the widow which operates in the same manner as her physical death.

Their Lordships referred with approval to a decision of this Court in Venkatrayadu v. Narayana AIR 1941 Mad. 450, 431, 432 where a

Bench of this court pointed out as follow:--

It is settled that the true view of surrender under the Hindu law is that it is a voluntary act of self effacement by the widow having the same

consequences as her death, in opening up the succession to the next heirs of the last male owner. The intermediate stage is merely ''extinguished

and not transferred'' and the law then steps in to accelerate succession so as to let in the next reversioner. The surrender conveys nothing in law, it

is purely a self effacement which must of necessity be complete; for as the Privy Council has said, there cannot be a widow partly effaced and

partly not just as there cannot be a widow partly deed and partly alive. The fiction of a civil death is thus assumed when a surrender takes place;

and when the reversioners come in, they come in their own right as heirs of the last owner and not as transferees from the widow.

The latest decision of this court on this point is found in Nagarathinathachi Vs. Karpagathachi and Others, where it was observed as follows:--

The law on the point can be stated thus. There a sonless Hindu dies leaving a plurality of widows, the latter succeed to his estate as joint heirs with

a right of survivorship interse. Although the widows represent the estate completely in the sense, that no other persons has any present interest

therein along with them, they would only have a limited right to the property--an estate which is compendiously known as a ''woman''s estate''

under the Hindu law. Broadly stated such an estate can be said to consist of two parts--(1) a right to enjoy the usufruct till the last surviving widow

dies, (2) a power in the widows to alienate their husband''s property for necessity or benefit of testate. As the right of the widows is limited,

succession to the estate of the last male holder will take place after the death of the last survivor among them. But till then no reversioner has got

any interest in the property left by the last male holder. Therefore, the duration of the period of the widow''s estate will be till the last of them dies.

So far as the reversioner is concerned, the estate can be represented only by all the widows acting together, and no alienation of the estate even for

necessity would bind him unless all the widows act jointly. But in regard to the enjoyment of the usufruct, there is and can be no such limitation. (4)

The widows having an absolute right in regard to income from the property, can obtain partition and separate possession of portions of the

properties, each being entitled to an equal share therein. The right that a widow obtains at such a partition cannot ordinarily be more than what she

had already, namely, a right to enjoy the property for her own life. Therefore partition between the widows does not per se put an end to

survivorship among each other, which is inherent in the nature of their joint estate. This is unlike the case of coparceners in a joint Hindu family

amongst whom after division, there is no question of survivorship. (5) The right of a co-widow to obtain partition of an equal share is capable of

being enforced in court. An enforced partition can only obtain for each widow the right to enjoy during her own life with the result that at after the

death of the one the other or others will take the property by survivorship. (6) But where partition between co-widows is by a consensual act, the

interest taken by each widow can by agreement between the parties be something more than a mere interest for life of the taker. That is because of

the power leach widow has in the disposal of her own life interest. In other words two widows can divide the properties by agreement in one of

the two ways : (1) A mere partition under which each would take as interest in the share allotted to her for her own life. This will be the case where

partition is for mere convenience of enjoyment. (2) Each of the two widows can convey her subsisting interest in the properties allotted to the

others; her co-widow will then not merely have a right to enjoy the properties for her own life but by virtue of tic conveyance by the other have a

further right to the same property till the lifetime of the latter i.e., an interest (pur utra vie) for the duration of the others life The principle underlying

this is the power of each widow to alienate the right to the income from the property that falls to her share for the duration of her own life.

The principle of this decision has been approved on appeal by the Supreme Court in Karpagathachi and Others Vs. Nagarathinathachi, though

the decision itself was reversed on a different construction of the document by which the co-widows partitioned the property. While this court

considered that the arrangement between the co-widows was that one of the co-widows had surrendered her estate in favour of the other co-

widow, the Supreme court held on an interpretation of the document that there was no relinquishment by one co-widow in favour of the other. The

authorities, therefore, make it clear that in a case like the present, where one co-widow has relinquished her right on survivorship to the estate of

her husband in favour of the other co-widow, there is no question of her succeeding to her husband''s estate again if the other co-widow in whose

favour she had relinquished her survivorship happens to die before her. It is, therefore, clear that the third defendant did not succeed to Natesa

Padayachi''s estate after the death of her co-widow Murugayi.

There is also no doubt that the relinquishment by the third defendant in favour of a co-widow Murugayi is not hit by Sec. 6-(a) of the Transfer

of Property Act. As the Supreme Court pointed out in Karpagathachi and Others Vs. Nagarathinathachi, two co-widows by mutual consent could

enter into an arrangement regarding their respective rights in the properties during the continuance of the widow''s estate and could absolutely

divide the properties so as to preclude the right of survivorship of each to the portion allotted to the other. Such an arrangement was not repugnant

to Sec. 6(a) of the Transfer of Properly Act, 1882. The interest of each widow in the properties, inherited by her was property, and this property

together with the incidental rights of survivorship could be lawfully transferred. Sec. 6(a) of the Transfer of Property Act prohibits the transfer of

the bare chance of the surviving widow taking the entire estate as the next heir of her husband on the death of the co-widow; but it does not

prohibit the transfer by the widow of her present interest in the properties Inherited by her together with the incidental right of survivorship. It

follows therefore that the third defendant had validly relinquished her right of survivorship to her husband''s estate in favour of her co-widow on her

death, she did not succeed to her husband''s estate. The sale deed executed by her in favour of the plaintiff does not, therefore, confer any title on

the plaintiff aid defendants 1 and 2 are entitled to succeed to Natesa, Padayachi''s estate. The only question that remains is about the properties

belonging to Natesa Padayachi''s estate. The trial court negatived the plaintiff''s claim to items 3 to 6 and 16 and 17 and upheld his claim to items

11 to 15 and 18 to 22 also. This was upheld by the lower appellate court. With regard to item 26, while the trial court found that Natesa

Padayachi was entitled only to a one third share in It, the lower appellate court has held that Natesa Padayachi owned the whole of item 26. These

being findings of fact, they have to stand. But in view of my conclusion that the sale by the third defendant to the plaintiff confers no title on him, the

second appeal has to be allowed and the plaintiff''s suit dismissed with costs throughout. No leave.