Maragathavalli Ammal and another vs Mookan Chettiar

Alagiriswami, J.—The plaintiffs are the appellant. They are daughters of one Subbaraya Chettiar, who died in 1946 leaving behind him his

two widows, and the plaintiffs. One of the widows released her right in the suit, items to the mother of the plaintiffs on 14th December, 1946 and

the plaintiffs mother executed two sale deeds, one in respect of item in favour of defendants 1 to 4 on 21st November, 1947 and the other in

respect of suit item 2 in favour of the father of defendants 1 to 5. On 1st January 1962, she executed a deed of surrender in favour of the plaintiffs

in respect of these items. They, therefore, filed the suit, cut of which this second appeal arises as the nearest reversioner to the estate of their father

on the ground that they had become absolute owners and were, therefore, entitled to recover possession alleging that the sales by their mother

would not bind them. The, defendants contended than these sales were for legal necessity. They also questioned the truth and validity of the

surrender deed in favour of the plaintiffs. The trial court held that the sales by the plaintiffs'' mother were not binding on the estate of their father,

that the surrender in favour of the plaintiffs was valid and decreed the suit as prayed for. The lower appellate court held that the sales by the

plaintiffs'' mother were not valid and binding on the plaintiffs, as there was no legal necessity or benefit to the estate of Subbaraya Chettiar. But it

took the view that there cannot be a valid surrender by a widow in favour of the reversioners after coming into force of the Hindu Succession Act

and as the surrender deed in favour of the plaintiffs has been executed thereafter, the plaintiffs did not derive any title as a consequence and

allowed the appeal and dismissed the suit. The plaintiffs have, therefore, filed this appeal. That the sale deed by the plaintiffs'' mother in favour of

the defendants was not for legal necessity is a concurrent finding of fact by both the courts below amply supported by evidence and the decision of

this case has to proceed on that basis. If the plaintiff''s mother had not executed the release in favour of the plaintiffs, which release deed has also

been found to be true, she would not herself be entitled to question that alienation, as she cannot derogate from her own grant. As she has made a

surrender in favour of the plaintiffs, there is no doubt that the plaintiffs would be entitled to maintain the suit. the lower appellate court was not right

in holding that the plaintiffs'' mother could not execute a surrender deed in. respect of the suit properties. Under Sec. 14 of the Hindu Succession

Act, a widow, becomes an absolute owner in respect of the properties which continued in her possession. But in respect of properties, which: she

has alienated, she cannot become an absolutes owner because she is not in possession. It is, therefore, open to her to surrender her interest in the

alienated properties in favour of the reversioners to her husband''s estate and if those reversioners succeed in establishing that the alienation by the

limited owner was not for necessity and not binding on the husband''s estate, they would be entitled to get possession. In respect of properties in

her possession, what she should do is to execute a conveyance and not a mere surrender deed as was held by Ramakrishnan, J. in App 297 and

444 of 1969 dated 6th March, 1963. We are not, in this case, concerned with the property in the possession of the widow and therefore the lower

appellate court was not correct in the view that it took. Indeed that view was not sought to be supported on behalf of the defendant.

But what was urged on their behalf was that the widow had net made a complete surrender of her husband''s estate, that her surrender was only

partial, and that therefore, it was not valid. It appears, that the plaintiff''s mother Lakshmiammal sold some of the properties which were in her

possession under Ex. A.11 on 12th November, 1961, for a sum of Rs. 12,000 and towards part of the consideration, she had also taken a

promissory note from the vender. It was thereafter that she executed the surrender deed in favour of the plaintiffs. The argument on behalf of the

respondents is that a surrender by a widow in order to be valid must be complete and should not be partial. That is quite true. The Supreme court

in Natwarlal v. Dadhubai, pointed out as follows-

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 the obstruction and efface herself from the husband''s estate altogether. If she does that, the consequence is the same as if she

died a natural death and She next heirs of her husband then living step in at ones under the ordinary law of inheritance."" On this basis it is urged that

as the widow is still in possession of a portion of her husband''s estate, she cannot be said to have effaced herself or to have died a civil death, and

the surrender by her in respect of the suit properties which is only a portion of that estate is not valid.

But I think this argument ignores the effect of S. 14 of the Hindu Succession Act. In respect of properties in her possession, the widow becomes

an absolute owner. The old doctrine of her being in possession of the husband''s estate and the reversioners succeeding to the husband''s estate no

longer holds good in respect of that portion of what was formerly the husband''s estate in respect of which she has become the absolute owner.

Thereafter she becomes a new source of succession and the line of inheritance has got to be decided under the provisions of the Hindu Succession

Act. It becomes her estate and is no longer the husband''s estate. Therefore, it is no objection to the validity of a surrender by a widow that in

respect of properties in relation to which she has become an absolute owner, she has not effaced herself. It is urged that a widow cannot be

partially effaced and partially not effaced. That, however, is the effect of the Hindu Succession Act. In respect of properties not in her possession

which originally belonged to her husband''s estate, she does not become an absolute owner. With regard to those properties, the old doctrines of

Hindu law, as they existed before the coming into force of the Hindu Succession Act, would apply. The properties not in the widow''s possession

would still belong to the husband''s estate and therefore, the reversioners would have a right to succeed to them. If in this case the widow had not

executed the surrender deed the plaintiffs could have instituted a suit for possession after the widow''s death. The fact that the widow executed the

surrender deed during her lifetime does not mean that the plaintiffs would be any the less entitled to maintain a suit for possession. The Supreme

Court in the above decision pointed out as follows: -

As surrender conveys nothing in law and merely causes extinction of the widow''s rights In her husband''s estate there is no reason why it should be

necessary that the estate, must remain with the widow before she could exercise her power of surrender. The widow might have alienated the

property to a stranger or someone might have been in adverse possession of the same for more than the statutory period. If the alienation is for

legal necessary, It would certainly be binding upon the estate and it could not be impeached by any person under any circumstances. But if the

alienation is not for legal necessity, it would certainly be binding upon the estate and It could not be impeached by any person under any

circumstances. But if the alienation is not for legal necessity, or if a squatter has acquired title by adverse possession against the widow, neither the

alienation nor the rights of the adverse possessor could affect the reversioner''s estate at all. These rights have their origin in acts or omissions of the

widow which are not binding on the husband''s estate. They are in reality dependent upon the widow''s estate and if the widow''s estate is

extinguished by any means known to law, e.g., by her adopting a son or marrying again, these rights must also cease to exist. The same

consequences should follow when the widow withdraws herself from her husband''s estate by an act of renunciation on her part. The widow herself

may be Incapable of derogating from her own grant and disputing the alienation which she has herself made, but surrender is not an alienation and

as the revisioner does not derive Ms title from her. there is no principle of law under which the acts of the widow could bind him.

Thus, the doctrine of widow''s estate and surrender should be deemed to continue only as regards the properties which belonged to the

husband''s estate which are not in the widow''s possession and In respect of properties in widow''s possession, she becomes the absolute owner

and the need for a surrender in respect of those properties does not arise. There can be no question of a surrender of a property of which she is

the absolute owner. It is no longer her husband''s estate.

In Chowdry Sureswar Misser v. Mst. Maheswarani Misra 39 M.L.J. 161 P.C. the Privy Council had to consider the case of a surrender by a

widow governed by Mithila School of Mitakshara law. Under that law, a female succeeding to the male takes an absolute Interest in the moveable

property and only a limited interest in Immoveable property. The widow in that case surrendered all her immoveable property, but retained the

moveable property. On the ground that as regards the immoveable property in which the widow had the widow''s interest the surrender was total

and not partial and her absolute right in respect of the moveable property was recognised, it was held that the surrender was valid. The principles

of that decision would apply to this case also. The respondents on the other hand relied upon the decision of the Supreme Court in Jai Kaur v.

Sher Singh 1960 S.C. 1118. That was a case relating to the customary law of Grewal Jats of Punjab. According to the law that applies to them as

regards the succession to non- ancestral property, the daughter is preferred to collaterals and in regard to ancestral property, the daughter had no

right. The widow executed a gift deed in favour of her daughter of the land which she had inherited from her husband It was found that part of the

land in the suit was ancestral. The Supreme Court In dealing with this question stated as follows:

We have to remember In this connection that as regards the ancestral property, these daughters were not the reversioners, and the further fact that

out of the ancestral property, the house was not Included in the deed of gift. The position therefore is that out of the properly in which the first

appellant held a widow''s estate, she gave by the deed of gift a portion to the reversioners as regards that portion, a portion to persons who were

strangers to the reversion as regards that portion, and a portion was retained by her. The doctrine of Hindu law according to which a limited owner

can accelerate the reversion, by surrendering her interest, to the next reversioner, is based on a theory of self-effacement of the limited owner. That

is why it has been laid down that in order that a surrender by a limited owner to a reversioner may be effective, the surrender must be of the entire

interest of the limited owner in the entire property.

In that case the daughters were not reversioners to the ancestral estate and the mother retained a portion of the ancestral estate. Thus the

surrender was not to the reversioners nor was it complete. That is the basis of that decision. In this case, the mother was not a limited owner in

respect of the property over which she had become an absolute owner as a result of the provisions of the Hindu Succession Act. It is only in

respect of the property over which the widow had a limited interest should the surrender be complete. In this case, it is not disputed that the

surrender is complete in respect of the property in which the widow had only a limited interest. In addition, the effect of the Hindu Succession Act

was not considered in that decision It, therefore, follows that the surrender by the plaintiffs'' mother in their favour is a valid surrender, as it was of

the entire properties in which she had a limited interest and the fact that she did not also surrender or convey to the plaintiffs the properties of which

she had become an absolute owner, does not affect validity of the surrender.

Another argument advanced on behalf of the respondents is that as the alienation by the plaintiff''s mother is void, she herself was entitled to get

possession of the properties, an the plaintiffs had themselves alleged that the sale was nominal and the properties alienated by the plaintiff''s mother

were properties in respect of which she was entitled to possession and, therefore, she became an absolute owner in respect of them also and the

surrender in favour of the plaintiffs would not be valid I think this is begging the question. For one thing, the allegations in the plaint are not so

categorical as to necessitate planning down the plaintiffs to the statement that the alienation by their mother was nominal. It contains a number of

allegations, but the main scope of the allegation of the plaintiffs seems to be that the alienation was not for legal necessity. That is how both the

courts have proceeded. If that is so as pointed out by the Supreme Court, she cannot derogate from her own grant and did not become absolute

owner of those properties. It is, therefore, open to her to surrender her widow''s estate over those properties in favour of the reversioners and the

reversioners can maintain the suit. Both the objections raised on behalf of the respondents are not of substance.

The second appeal is, therefore, allowed and the suit will stand decreed as prayed for. But in view of the fact that this seems to be a case where

the mother and the daughters have joined together in order to deprive the alienates of the properties alienated in their favour I order that the parties

should bear their own east''s throughout. Leave granted.