(Rao Bahadur) Man Singh vs (Maharani) Nawalakhbati and others

Das, J.—Maharaja Sir Harballabh Narain Singh, K.C.I.E., was the owner of a considerable zamindari known as the Sonbarsa Raj. He was murdered on the 1st of April, 1907 by an unknown assasin and he died leaving him surviving two widows, Maharani Tarabati and Maharani Nawalakhbati, a daughter, Maharaj Kumari Padmabati, and two grandsons, the sons of Maharaj Kumari Padmabati, Rao Bahadur Govind Singh known as Barra Lal and Rudra Pratap known as Chotey Lal. Maharaj Kumari Padmabati died in May, 1915; Rao Bahadur Govind Singh died in October, 1919, and Maharani Tarabati died in August, 1920. The plaintiff, the appellant before us, is the son of Govind Singh and he seeks, as against Maharani Nawalakhabati and Chotey Lal, to recover possession of an eight anna share of the Sonbarsa Raj.

On the 18th December, 1918, two widows of the late Maharaja executed a deed of surrender in favour of their grandsons Gobind Singh and Rudra Pratab. At the time of the execution of the deed of surrender, the Maharanis were wards of the Court of Wards; and the main questions in this appeal are: first, whether the Maharanis were competent to execute the deed of surrender without the concurrence of the Court of Wards; secondly, whether the plaintiff, in the circumstances of the case, can claim under the deed of surrender; and, thirdly, whether the deed of surrender was intelligently executed by Maharani Nawalakhbati and whether she had independent advice in relation to the execution of that document.

The admitted facts are as follows:- Chote Lal was suspected of the murder of the late Maharaja, and under an executive order of the Government, he was externed from the District of Bhagalpur directly after the murder. The order of externment was not removed until sometime in 1920. On the 30th April, 1907, the Maharanis applied to the Collector of Bhagalpur to be declared disqualified proprietors u/s 6 of the Court of Wards Act, so that the estate might be managed by the Court of Wards. On the 15th May, 1907, the Maharanis addressed another letter to the Collector of Bhagalpur. They alleged in that letter that the late Maharaja before his death expressed a desire that Chotey Lal should succeed him as the proprietor of the Sonbarsa Raj and that, in obedience to the wishes of the late Maharaja they were willing to surrender their estate in favour of Chotey Lal. The petition was signed not only by two Maharanis but also by their daughter Padmabati and their eldest grandson Barra Lal in token of their assent to the proposal made by the Maharanis. Mr. Lyall, the Collector of Bhagalpur, interviewed the Maharanis on the 23rd of May, and it appears that he pointed out to the Maharanis,

the grave objections that exist in so important a matter of any precipitate or imperfectly considered action.

The Maharanis agreed to postpone the execution of the deed of relinquishment for some months and the interview came to an end. On the 27th May, 1907, the estate was taken over by the Court of Wards and thereupon the Maharanis became wards of the Court of Wards. On the 4th February, 1916, the Maharanis, it appears, addressed a letter to the Collector of Bhagalpur proposing to surrender their estate in favour of Barra Lal. The letter is not on the record, but is recited in another letter dated the 4th March, 1918 addressed by the Maharanis to the Collector of Bhagalpur. The last mentioned letter sets out the legal difficulty in executing the proposed deed of surrender in favour of one only of their two grandsons and states that to obviate all future difficulty and prospective litigation they have decided that the surrender should be in favour of both the grandsons. To this letter they annexed a draft deed of surrender in substitution of the one which they had sent to the Collector in February, 1916, and asked the Collector to obtain the sanction of the Court of Wards to the new deed which would be executed in favour of both the grandsons. In their letter the Maharanis entered into an elaborate defence of Chotey Lal and asserted that there was no evidence to justify the police theory that Chotey Lal had any concern direct or indirect, in the murder of the late Maharaja. They asserted further that the late Maharaja had affection for Chotey Lal and wanted to make him the sole heir of the Sonbarsa Raj and that

during the few minutes that he survived the dastardly and murderous attack which resulted in his death be actually wrote with his own hand a will bequeathing the entire Sonbaras Raj to the said Rudra Pratap Singh" but that "unfortunately he did not survive long enough to sign the will and get it legally attested.

They also prayed that the Government might be pleased to withdraw the order prohibiting the return of Chotey Lal to the District of Bhagalpur. This letter was obviously forwarded through the Commissioner of Bhagalpur to the Board of Revenue and on the 25th October, 1918, the Board of Revenue wrote to the Commissioner stating that it could not accord sanction to the Maharanis to surrender their estate in favour of their grandsons. Notwithstanding the adverse decision of the Beard of Revenue, the Maharanis, on the 18th December, 1918, executed a deed of surrender in favour of their grandsons. On the 23rd December, 1918, the Maharanis wrote another letter to the Collector of Bhagalpur intimating that they had executed and registered a deed of surrender in favour of their grandsons and requesting the Collector.

to take steps to make over the charge and management of the said properties to Rao Bahadur Govind Singh and Rudra Partap Singh if the Court of Wards do not think fit to retain management u/s 13(A) of Act IX of 1879 (B.C.).

On the 15th April, 1919, the Maharanis were informed that the Board of Revenue considered that the deed of relinquishment executed by them in favour of their grandsons was invalid. Barra Lal then applied for registration of his name in the land Registration Department. The Court of Wards on behalf of the Maharanis contested the application of Barra Lal and the application of Barra Lal was refused. Barra Lal died in October, 1919 and on the 17th January, 1921 the suit, out of which this appeal arises, was instituted by the appellant, the son of Barra Lal, for a decree for possession in his favour and in favour of Chotey Lal whom he cited as defendant second party in the action and in the alternative for a decree for possession of eight anna share in the Sonbarsa Raj. The plaintiff''s case is that the Maharanis were competent to, and did in fact execute a deed of surrender in favour of his father and Rudra Partap on the 18th December, 1918, and that upon the execution of the deed of surrender the estate, of which the Maharanis were then in possession as Hindu widows, vested absolutely in his father and in Rudra Pratap. According to him the Collector of Bhagalpur put undue pressure upon the Maharanis to compel them to agree to the Court of Wards taking charge of the estate and that the assumption by the Court of Wards of the management of the estate was contrary to the provisions of law and did not give it any right to object to the execution of the deed of surrender by the Maharanis. The Court of Wards on behalf of Maharani Nawlakhbati put in a written statement in which it contested the claim of the plaintiff. It denied that any pressure was put on the Maharanis to compel them to agree to the Court of Wards taking charge of the estate and it asserted that as the late Maharaja was heavily involved in debts, the liabilities amounting to about ten lakhs of rupees and as the Maharanis being pardanashin ladies were unable to protect their interest, the Maharanis applied for the protection of the Court of Wards and that the Maharanis were declared disqualfied proprietors upon their own application. In the 6th paragraph of the written statement there is an admission that in 1916 the Maharanis expressed their desire to relinquish their estate in favour of Barra Lal and there is a suggestion that the deed of relinquishment sued upon was not executed by them intelligently. Then there is an added paragraph which runs as follows-

That the defendant No. 2 of whom the Maharanis were very fond was ordered by the Government to leave the district owing to his suspected complicity in the murder of the late Maharaja Bahadur. The plaintiffs have represented to the Maharanis that it was necessary to have a deed executed by them, so that the Government might be induced to allow the defendant No. 2 to return to Bhagalpur and the Maharanis on that misrepresentation without any proper and independent advice signed the alleged deed of surrender without properly understanding its effects. This defendant submits that in the circumstances the deed is legally invalid and inoperative.

The 7th paragraph raises a question of law, namely, whether the deed of surrender was valid inasmuch as the sanction of the Court of Wards was not obtained by the Maharanis. The 8th paragraph alleges that the deed of surrender was not acted on by the Maharanis and that

the Maharanis continued in enjoyment of the same rights as before the execution of the alleged deed of surrender.

The defendant second party also put in a written statement in which he charged Barra Lal with having procured the execution of the deed of surrender by false representations. The case made is, that Barra Lal took advantage of the fact that the Maharanis were fond of Chotey Lal and that he induced them to execute the deed of surrender by representing to them that the execution of the deed would secure the withdrawal of the order of externment against Chotey Lal.

The learned Subordinate Judge who tried the case framed the following issues-

Is the suit maintainable?

Whether non-compliance with the provisions of section 80 of the CPC bars the suit?

Whether the deed of surrender, dated the 18th December, 1918 was executed by the Maharanis widows of Maharaja Sir Harballabh Narain Singh Bahadur under misrepresentation without getting any independent advice and without knowing or understanding its contents. Is it legally valid or operative?

Whether the said deed of surrender amounts to a surrender of the entire interest of the Maharanis in the Sonbarsa estate?

Is the deed of surrender valid having regard to the provisions of section 60 of the Court of Wards Act (IX of 1879 B.C.)?

Did the plaintiff''s father and defendant second party accept the surrender and give consent to it?

Did the aforesaid deed of surrender accelerate the succession of plaintiff''s father and defendant second party the next reversioners to the said estate and vested in them and did they (the plaintiff and defendant No. 2) acquire a right, and title to the said estate in equal shares and become entitled to possess it by virtue of the said surrender?

Whether the plaintiff has got any right or title to a moiety of the Sonbarsa estate and is he entitled to succeed to it and get possession; if so; under what terms?

Whether the ekrarnama set up by the plaintiff was caused to have been executed under misrepresentation and fraud as alleged by defendant second party?

Is the plaintiff entitled to get any mesne-profits, if so, to what amount?

To what relief or reliefs is the plaintiff entitled?

Was any pressure brought to bear on the Maharanis to agree to make over the Sonbarsa estate to the Court of Wards?

Issues 1 and 2 were not pressed before him and he answered those issues in favour of the plaintiff. In regard to issues 3 and 9 he came to the conclusion that there was no misrepresentation in the case and that there was an intelligent execution of the deed of surrender by the Maharanis. He thought the independent advice was not necessary but that there were circumstances in the case which suggested the inference that the Maharanis had independent advice in regard to the execution of the deed of surrender. He decided these issues in favour of the plaintiff. He found no difficulty in answering issue No. 4 in favour of the plaintiff. The question raised in that issue was whether the surrender could be regarded as a surrender of the entire interest of the Maharanis having regard to the fact that they retained a substantial interest in the estate for their maintenance. The learned Subordinate Judge thought that the provision of a monthly allowance to the Maharanis for their maintenance did not effect the validity of the deed of transfer. Issue No. 12 was not very seriously pressed before him and he decided that issue against the plaintiff. He lastly considered issue No. 5 and he thought that section 60 of the Court of Wards Act constituted a prohibition on the right of the widows to surrender their estate without the concurrence of the Court of Wards. He answered this issue against the plaintiff and in the result he dismissed the suit.

Before dealing with the arguments that have been advanced to us it is necessary to mention a matter as to which there has been some discussion before us. The hearing of the suit began on the 10th May 1922; and from the 10th May 1922 up to the 31st May 1922 Maharani Nawalakhbati was represented in the record of the suit by the Court of Wards and by the Officiating Government pleader in Court. The.Court of Wards made no attempt to examine Maharani Nawlakhbati as a witness on her behalf, but she was examined as a witness on behalf of the defendant second party. While she was being examined on commission, Babu Debta Charan Mukharji, the Officiating Government pleader stated to the Commissioner that under instructions from the Court of Wards he would not press issue No. 3 on behalf of Maharani Nawalakhbati and that he would not examine the Maharani as a witness in support of her written statement. Issue No. 3, it will be remembered, raises the very important question of fact namely, whether the deed of surrender was intelligently executed by the Maharanis and whether they had any independent advice in regard to the execution of this document. The Maharani as the ward of the Court of Wards was completely bound by the act of the Court of Wards on her behalf, and it appears that the Court of Wards intended to raise one point and one point only, on her behalf, namely, whether she was competent to execute the deed of surrender having regard to the fact that the sanction of the Court of Wards had not been obtained. It was obviously a matter of great prejudice to the Maharani that her real defence was not allowed to be raised on her behalf by the Court of Wards; but she was bound by the act of the Court of Ward", and, so long as she remained a ward of the Court of Wards, she had no right under the Court of Wards Act to raise any defence on her behalf. The Court of Wards, however, retired from the management of the estate on the 27th April 1922 after the evidence bad been recorded in the case and the arguments heard in part. On the 31st May 1922, Babu Debta Charan Mukherji, presented a petition stating that the Maharani was no longer a ward of the Court and that the Government pleader had no further authority to represent her in the suit. On the 1st June, 1922, Maharani Nawalakhbati appeared through another pleader and filed a petition in which she prayed that the written statement filed by the defendant second party might be considered as her written statement and she intimated to the Court that she desired to press issue No. 3. This application was opposed on behalf of the plaintiff. The position taken up by the plaintiff was that the learned Government pleader representing Maharani Nawalakhbati having given up issue No. 3, he, the plaintiff, did not adduce evidence in support of his case that the deed of surrender was intelligently executed by the Maharanis and that they had independent advice in regard to the execution of that document. The learned Subordinate Judge thought that there was great force in the contention of the plaintiff and he considered that any attempt on the part of Maharani Nawalakhbati to re-open issue No. 3 would seriously prejudice the plaintiff. He held that Maharani Nawalakhbati could not be allowed to reopen issue No. 3.

When this appeal was opened before us, we came to the conclusion that it was not right and proper that Maharani Nawalakhbati should be debarred from presenting a case to the Court which she has undoubtedly made in her written statement. The learned Government Advocate, appearing on behalf of the plaintiff, strenuously contended that she was completely bound by the act of the Court of Wards and that, to allow here to resile from the position conceded by the Court of Wards, would operate as a great hardship on his client. A person under disability is no doubt bound by the act of the guardian; but it is well established that such a person can reopen the proceedings after the disability ceases, if he satisfies the Court that the act of the guardian has prejudiced him. In our opinion, it is far better that she should be allowed to reopen the matter now than that she should come to us afterwards, if we should decide the appeal against her on the question of law raised on her behalf, and invite us to deal with the whole case on the footing that the document was not read and explained to her, and that she had no independent advise in relation thereto. We accordingly came to the conclusion that it was open to her to press issue No. 3 and that the learned Subordinate Judge should have allowed her to reopen that issue and to have met any case of prejudice by adjourning the hearing o the suit and giving an opportunity to the plaintiff to adduce such evidence as he thought necessary. Mr. Sultan Ahmed then pressed before us that if we allowed Maharani Nawalakhbati to reopen issue No 3, we should give him an opportunity to examine certain witnesses who are material witnesses on this issue. We recognised the force of Mr. Sultan Ahmed''s contention and gave him leave to cross-examine Maharani Nawalakhbati on issue No. 3 and to examine Mr. B.C. Sen, the Commissioner of the Patna division who was the Collector of Bhagalpur from April 1916 to September 1918; Mr. Nil Money Dey, who was the manager of the Sonbarsa Estate from 1914 till July 1920; Mr. Md. Abdus Samad who was the Manager of the Sonbarsa estate under the Court of Wards at the time when the written statement was filed on her behalf; Mr. Surja Prasad the Government pleader of Bhagalpur and Babu Anirudh Prosad Singh, a zamindar and a pleader who is alleged to have taken a prominent part in the matter of the execution of the document by the Maharanis. The plaintiff has examined all these witnesses before us except Babu Anirudh Prosad Singh and we have considered their evidence in deciding issue No. 3.

It will be convenient, first to deal with the questions of law which have been raised by the defendants in this litigation. The contention which found favour with the learned Subordinate Judge is that section 60 of the Court of Wards Act constitutes a prohibition on the power of a Hindu widow to relinquish the estate (of which she may be in possession as a Hindu widow) without the concurrence of the Court of Wards. It is not disputed that, at the time when the Maharanis purported to relinquish their estate in favour of their grandsons, the estate was under the management of the Court of wards, and that the Maharanis were wards of the Court. On the 4th March 1918, the Maharanis forwarded to the Collector of Bhagalpur a draft deed of surrender which they proposed to execute in favour of their grandsons and asked him to obtain the sanction of the Court of Wards "to the new deed which will be in favour of both the daughter''s sons."

The Collector forwarded the application of the Maharanis to the Board of Revenue through the Commissioner of the Bhagalpur division, and on the 25th October 1918, the Board wrote to the Commissioner to say that it agreed. With the Collector that the execution of the deed of surrender by the Maharanis during their lifetime in favour of their grandsons will complicate matters and create difficulties in the way of the Courts management.

It accordingly directed "that things should be allowed to go on for the present as they are".

On the 13th December 1918, the Collector conveyed the decision of the Board of Revenue to the Maharanis. On the 18th December, 1918, with the full knowledge of the decision of the Board of Revenue, the Maharanis executed the deed of surrender by which they relinquished their widow''s estate in favour of their grandsons.

Section 60 of the Court of Wards Act provides as follows:-

No ward shall be competent to create, without the sanction of Court, any charge upon, or interest in, his property, or any part thereof, or to assign over or charge any allowance to be received by him from the Court.

The question at once arises whether by relinquishing her estate in favour of her husband''s reversioners, a Hindu widow creates an interest in her estate. It has been contended on behalf of the plaintiff that the substance of the transaction is the withdrawal of the widow''s estate, and the consequent acceleration of the interest of the heirs who succeed to the properties, not by virtue of any act done by the widow, but by operation of law. I am quite willing to admit that a Hindu widow may, under certain circumstances, effectively divest herself of her interest in her husband''s estate without coming within the prohibition of section 60 of the Court of Wards Act; but I am not prepared to admit that under no circumstances would section 60 operate to prevent a Hindu widow from relinquishing her estate in favour of her husband''s next reversioners.

It is well to remember that, although actual transfers by Hindu widows have, in many cases, been supported by reference to the theory of the relinquishment of the widow''s entire interest, there is relinquishment in the true sense of the term, when there is disclaimer by the widow at the time of the death of her husband, or the renunciation of the world by her afterwards or some act by her which might, in the eye of law, justify the inference that the widow is civilly dead. It is only when the widow is dead, either actually or civilly, that the law steps in and gives the estate of her husband to the next reversioner; and just as the Court of Wards Act cannot prevent the widow from dying, so it has no operation if the widow desires to turn byragi or renounce the world. But there are cases in the books which are called cases of relinquishment but which are in fact not cases of relinquishment at all where alienations by Hindu widows have been upheld by arguing from analogy. But analogy denotes only a partial similarity; and it does not follow that, because where a widow renounces the world the next reversioners take the estate by operation of law, there is also a succession by operation of law where, as a result of a transaction not amounting to a relinquishment, properly so called, but capable of being supported by reference to the theory of relinquishment the estate comes to the next reversioners. To take a simple case, a Hindu widow may sell for valuable consideration the entire estate of her husband to the next reversioner or to a stranger with the assent of the next reversioner. The transaction will be upheld by applying the analogy of a relinquishment of her estate by the Hindu widow; but it can hardly be argued that there is relinquishment properly so called, in such a case, or that the title of the reversioner arises by operation of law. The truth is that the law on the subject has grown from precedent to precedent; and it is impossible to argue that because a certain legal incident is true of a certain proposition, it must also be true of every proposition which may have been logically drawn from the first proposition or which is capable of being supported by reference to the first proposition.

A discussion of some of the leading cases will, I think, make good my point. In 1856, the question arose before the Supreme Court in the case of Jadomonee v. Saroda Prosonno [1856] 1 Boul. 120 whether a Hindu widow could for good consideration, convey her estate, inherited by her from her son in favour of the next heir then living. In answering the question in the affirmative, Calvilla, C.J. pointed that it was" but another way of doing that which in former times was continually done without violence to the letter or spirit of Hindu law, though in a manner shocking to humanity, by means of the rite of "Suttee, and he took note of the fact that a "widow can by adopting a certain form of religious life divest herself of the estate and then accelerate its devolution on the next heir in her lifetime." The case before the Supreme Court was a case of conveyance, pure and simple; but arguing from the analogous cases of widows committing suicide or adopting a religious life and thus accelerating the devolution of the estate on the next heir, the Court came to the conclusion that there was nothing inherently wrong in the widow conveying the estate of her husband for consideration to one who would take the estate by inheritance if she were to die at the date of the conveyance. But it is one thing to say that because upon the death of a widow, either actual or civil, the estate would at once vest by operation of law upon the next heir of her husband, therefore the widow can operate her own death by conveying absolutely the estate of her husband to one, who, at the moment of the conveyance is the next heir of her husband; it is another thing to say that when the widow does convey the estate to the next reversioner the reversioner takes the estate by operation of law, and not by virtue of the conveyance.

Jadomonee''s case [1856] 1 Boul. 120 was decided in the Supreme Court in 1856; and between 1856 and 1884 the law was firmly established in Bengal that a Hindu widow by relinquishing her rights in favour of the heir of her husband''s estate could accelerate his inheritance, and that the effect of a conveyance by her and such heir was to convey the absolute estate. In 1884, in Nobo Kishore Sarma Roy v. Hari Nath, Sarma Roy [1884] 10 Cal 1102 (F.B.) the question was raised whether the transfer or conveyance by a widow upon the ostensible ground of legal necessity, such transfer being assented to by the person who at the time is the next reversioner, would conclude another person not a party thereto who is the actual reversioner upon the death of the widow, from asserting his title to the property. The facts were these: the widow executed a conveyance of the property in favour of a stranger, reciting necessity. The High Court took the view that there was not a sufficient finding in the judgment of the appellate Court as to whether there was legal necessity for the conveyance or not and the whole case was argued on the footing that there was no necessity for the conveyance. The person who at the time was the next reversioner executed a separate document in which he assented to the conveyance by the widow, and covenanted on behalf of himself and his heirs, that he would not lay claim to the property at any future time. The reversioner died, and the person entitled to Succeed on the death of the widow was another person who was in no way bound by the covenants executed by the previous reversioner. The Division Bench conceded that the widow might retire in favour of the next reversioner and that, if she did so, that is, if she abandoned her interest in her favour the next reversioner would have as complete and absolute a title to the property as he could have on her death. It also conceded that there might be a transfer by the widow to the reversioner, and a second transfer by the reversioner to the stranger; but it did not see how the effect of a double transfer could be given to two documents different in their nature and contents The learned Judges accordingly referred the question for the determination of the Full Bench.

Sir Richard Garth, in delivering the judgment of the Full Bench pointed out that if the widow died a natural death, her husband''s heirs would at once succeed to the estate; or if she were to become a byragi or otherwise die a civil death, the result would be the same, and he thought that just as she might have disclaimed her estate when her husband died, there was nothing wrong or objectionable in her relinquishing her estate at any time in favour of her husband''s heir for the time being, after she had once accepted it. So far the position was perfectly clear; but then the question had to be faced whether the widow and the next heir could agree to make an alienation of the estate without any legal necessity to support it. On this question. Sir Richard Garth said as follows:-

But, if it is once established as a matter of law, that a widow may relinquish her estate in favour of her husbands'' heir for the time being, it seems impossible to prevent any alienation, which the widow and the next heir may thus agree to make.

The learned Chief Justice recognised the essential distinction between a case of relinquishment, properly so called, and a case of sale, without any legal necessity, merely with the consent of the next male heir, but he thought that there was such a long course of authority in favour of the power of the widow to alienate the estate with the consent of the next heir that the Pull Bench could not decide the contrary without disturbing the titles which had been acquired on the strength of that authority, Sir Lawrence Jenkins in Debi Prosad Chowdhury Vs. Golap Bhagat, summed up the decision in Nobokinhore''s case in these words:-

Starting then from the established position that the next heir''s succession can be accelerated by relinquishment, it was determined in Nobokishore''s case as a logical consequence that the widow, with the next heir''s consent, could alienate without any legal necessity.

And the learned and distinguished Chief Justice said as follows:-

The road to the decision in Nobokishore''s case was not without its difficulties, but the learned Judges felt it had to be travelled that title might be quieted.

It seems to me clear beyond dispute that the extension of the doctrine was more or less forced upon the Court; the Court upholding the extension on the ground that it was the logical consequence of the right conceded to the widow either to disclaim the estate at the time of the death of her husband or to turn byragi or otherwise die a civil death afterwards and thus accelerate the succession of her husband''s heir. The decision of Sir Richard Garth points out the real distinction between a case of relinquishment, properly so called, and a case of alienation capable of being supported by reference to the theory of relinquishment; and it seems to me that it does not follow that, because the heir takes by operation of law when there is real relinquishment by the widow, that is to say, when she elects to die a civil death, he also takes by operation of law when, as a result of a transaction which may be supported by reference to the theory of relinquishment, but which is in fact not relinquishment, the estate is carried from the widow to the heir or to a stranger with the consent of such heir.

It is not necessary for our present decision to discuss any of the subsequent decisions Behari Lal v. Madho Lal Akir Goyawal [1891] 19 Cal. 236: 19 I.A. 30: 6 Sar. 88 (P.C.) recognises that the widow can accelerate the estate of the heir by conveying absolutely and destroying her life estate. In the Pull Bench case of Debi Prosad Chowdhury Vs. Golap Bhagat, it was laid down that, to uphold an alienation by the widow on a ground other than that of legal necessity or of the equitable extension founded on legal necessity, it should be shown that there was a consent of the next heir to an alienation capable of being supported by reference to the theory of the relinquishment of the widow''s entire estate and consequent acceleration of the interest of the consenting heir, provided the alienation is of the whole estate. The question involved in the Full Bench case was whether a widow could alienate a portion of her estate with the consent of the next reversioner. Sir Lawrence Jenkins pointed out that, if the alienation was to be supported by reference to the theory of the relinquishment of the widow''s entire interest, the alienation must be of the entire estate; for as the Judicial Committee afterwards said in the case of 23 CWN 777 (Privy Council) .

there can not be a widow who is partly effaced, partly not so.

The decision of Sir Lawrence Jenkins makes it perfectly clear that the Courts have been obliged to have recourse to the theory of relinquishment for the purpose of deciding cases which are not cases of relinquishment in order that title acquired on the faith of a long series of decisions may not be disturbed.

I have come to the conclusion that it cannot be laid down as an inflexible rule applicable to all cases that the heir takes by operation of law whenever as a result of a transaction, to which the widow and the heir are parties, the entire estate becomes vested in the heir or goes to a stranger with the consent of the heir. In a case of disclaimer by the widow at the time of the death of her husband or of relinquishment, properly so called, afterwards, the title of the heir would undoubtedly arise by operation of law, and in my opinion, section 60 of the Court of Wards Act would not operate to the prejudice of the heir, assuming that, at the date of the relinquishment the widow were a ward of the Court. But a case of relinquishment must be carefully distinguished from a case which is not one of relinquishment, but which is capable of being supported by reference to the theory of relinquishment. A true case of relinquishment arises when there is the renunciation of the world by the widow and the abandonment of the estate by her or some act by her which might in the eye of law justify the inference that she is civilly dead. But where the widow sells the estate for valuable consideration to the heir or to a stranger with the consent of the heir or enters into an engagement with the heir which has the effect of carrying the estate to the heir or a stranger with the consent of the heir, in other words, whenever the transaction is one, not of relinquishment, but one capable of being supported by reference to the theory of relinquishment, the title of the heir arises, not by operation of law, but by the act of transfer on the part of the widow, and the transaction would come within the prohibition of section 60, assuming that the widow were a ward of the Court, and the sanction of the Court were not obtained to the transaction.

I have now to consider whether the transaction of the 18th December, 1918, operated as a relinquishment or as an alienation. Now the transaction is evidenced by two documents one executed by the Maharanis in favour of the grandsons, and the other executed by the grandsons in favour of the Maharanis. The deed of surrender is described as an indenture to which the Maharanis and the grandsons are parties, and the deed executed by the grandsons is described as an agreement to which the grandsons and the Maharanis are parties. The deed of surrender recites that the Maharanis were each getting a monthly allowance of Rs. 625 from the Court of Wards and that, as they were growing old and were desirous of remaining aloof from the concerns of the world and of spending their latter days in divine worship and meditation in the holy city of Benares with an allowance for their maintenance befitting their rank and position, they wished to surrender and relinquish their Hindu widows'' estate in the property left by their husband to their grandsons who were the next heirs of their husband and who had undertaken to pay them or the survivor of them the monthly sum of rupees two thousands out of the income and profits of the estate and also to defray the expenses of the daily and periodical worship of the family deities. The document then asserts that the grandsons "have agreed to all the terms aforesaid" and proceeds to provide as:-

That the first party Maharani Tarabati and Maharani Nawlakhbati do hereby relinquish and surrender all their rights in the property moveable and immovable, left by their husband, the late Maharaja Harballabh Narain Singh Bahadur K.C.I.E. commonly called the Sonbarsa Estate, now in the charge and under the management of the Court of Wards to and in favour of the second party Rao Bahadur Gobind Singh and Rudra Pratap Singh, the next heirs of the said Maharaja Bahadur under the Hindu Law, and in pursuance thereof the first party do hereby make over the entire property aforesaid to the second party in full extinction of their rights as Hindu widows.

That the second party will be entitled to the whole property aforesaid from this date and they will hold and enjoy the same in the rights of daughter''s son succeeding to the property of their maternal grand-father under the Benares school of Hindu law, the share of each being a moiety of the said property.

That the second party will be entitled to have their names entered as proprietors in equal share in respect of the revenue paying or revenue free estates included in the said property by removing the names of the 1st party now recorded in the registers maintained under Act VII of 1878 (B.C.)

That the first party will at once inform the Court of Wards of this surrender and request the Court to make over the charge and management of the said property to the second party subject to the Court''s retaining the management if it thinks fit u/s 13 A of the said Act, IX of 1879 (B.C.)

That the first party, or the survivor of them, will be entitled to receive a maintenance allowance of Rs. 2,000 (rupees two thousand) per mensem, from the second party out of the rents and profits of the said property so long as they or either of them live or lives.

That the second party undertake to keep up and maintain the daily and periodical worship of the family deities Lachmi Narain Jee, Ram Chandra Jee and Radha Krishna Jee, installed at the Sonbarsa house left by the said Maharaja Bahadur, at a cost of Rs. 100 (rupees one hundred) per mensem and should they omit or neglect to carry out this undertaking the first party will be entitled to enforce the fulfilment thereof.

The agreement executed by the grandsons in favour of the Maharanis contains all the recitals that are to be found in the deed of surrender, and provides as follows:-

The first party, therefore, in consideration of the promises, do hereby agree of their own free will and accord that from the day they became the proprietors of the said Sonbarsa estate, by reason of the surrender aforesaid they and their heirs, successors, executors, administrators and assignees shall pay to the second party or the survivor of them, so long as they or either of them live or lives, the monthly sum of Rs. 2,000 (rupees two thousand) for their maintenance in a style suitable to the rank and position held by their deceased husband, and if they fail to pay the allowance due for any months (which is to be taken as an English month) on the first day of the following month, the second party will be at liberty to enforce the payment thereof, with simple interest at the rate of 12 per cent, per. mensem by process of Court, and the said arrears of allowance, with interest and the costs of the suit, if any, to enforce the payment thereof shall be the first charge on the property mentioned in the schedule hereto annexed which form a part of the estate surrendered by the second party as mentioned above. And the first party further agreed that from the day aforesaid they shall keep up and maintain the daily and periodical worship of the family deities, Lachmi Narain Jee, Ram Chandra Jee, and Radha Krishna Jee, installed at the Sonbarsa house left by the said Maharaja Bahadur, at a cost of Rs. 100 (Rupees one hundred) per mensem (the month being taken as an English month) and should they omit or neglect to carry this agreement the second party will be entitled to enforce the fulfilment thereof.

What, then, is the substance of the transaction between the Maharanis and their grandsons? In the first place, it is an agreement, and indenture, as the parties themselves describe the document. In the second place, the desire of the Maharanis to retire from the world is not unconditional, but is subject to two important conditions, first, that the grandsons, will pay them or the survivor of them a sum of money for their maintenance "befitting their rank and position" that is to say, a sum of rupees two thousand, per month, which let it be remembered, is a sum much in excess of what the Maharanis were actually receiving from the Court of Wards, and secondly that the grandsons will defray the expenses of the daily and periodical worship of the family dieties at a cost of Rs. 100 per month. In the third place, the Maharanis are sufficiently alive to their wordly interest to stipulate that their maintenance allowance at Rs. 2,000 per month with interest on arrears at 12 per cent, per month shall form a first charge upon certain specific properties belonging to the estate. In the fourth place, they retain a sufficient interest in the estate of their husband by reserving to themselves the liberty to enforce the fulfilment of the condition as to debsheva.

Now I do not desire to throw the slightest doubt upon the numerous cases which have decided that transactions similar to the one which I am considering are capable of being supported by reference to the theory of the relinquishment of the widow''s entire interest. I have not the slightest doubt that, had the Court of Wards not stood in the way, the transaction would have carried the estate from the Maharanis to the grandsons; but, in my opinion, the estate would have been carried, not by operation of law, but by the act of the Maharanis. In Jadomonee''s case [1856] 1 Boul. 120 the widow relinquished her estate in favour of the next reversioner in consideration of a yearly allowance of Rs. 4,400 to be paid to her. The transaction was described by the learned Judges as a conveyance for good consideration. In the case before us, the Maharanis entered into the transaction in consideration of the promise on the part of the grandsons to pay them a sum of money much in excess of what the Court of Wards was paying them. I And it impossible to hold that the act on the part of the Maharanis was an act for the renunciation of the world or an act which in the eye of law would justify the inference that they were civilly dead. In my opinion, the transaction operated as a conveyance and fell within the prohibition of section 60 of the Court of Wards Act, and the learned Subordinate Judge was right in dismissing the plaintiff''s suit on this ground.

My conclusion on the question which I have just discussed is sufficient for the disposal of the appeal, but as the case is likely to be carried to the Judicial Committee, it is necessary that I should express my views on the questions which have been raised before us on behalf of the defendants. It was urged that assuming that S. 60 of the Court of Wards Act did not prevent the Maharanis from surrendering their estate in favour of their grandsons, the deed of surrender, standing by itself, could not carry the estate from the Maharanis to their grandsons, and, as possession still remained with the Maharanis, the transaction was incomplete, and there was a power in Maharanis Nawlakhbati to resile from an incomplete engagement. The basis of the argument is that, in order to accelerate the succession of the next heir, there must be a relinquishment in fact, and not merely a paper declaration to that effect As I have shown before, the present law on the subject of relinquishment is merely the extension of the rule of Hindu Law which permitted a widow to renounce the world and abandon the property. It was determined in the case of Debi Prosad Chowdhury Vs. Golap Bhagat, that if logic was to have any place in our system of law, relinquishment must be of the entire estate, and not of a portion of it. And so it is argued that if the analogy is to hold good, there must be an abandonment in fact in order that the heir at law may step into the inheritance.

I think that the contention is right and ought to prevail. A relinquishment, in my opinion, becomes operative only when the widow acts upon the declaration and withdraws herself from the estate. It is difficult to understand how a widow can be said to have withdrawn from her life estate, if notwithstanding her paper declaration she continues to be in possession of the estate. It was pointed out by the Judicial Committe in 23 CWN 777 (Privy Council) that

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.

In my opinion, the effacement must be founded on fact, and so long as the widow does not in fact efface herself, she has the right to say,-since she is not bound to efface herself:-

I have changed my mind, and I do not intend to give effect to my declaration.

The learned Government Advocate does not dispute the correctness of the proposition which I venture to think is at the very foundation of the doctrine of relinquishment. But he asserts that circumstances have arisen which make it inequitable for her to change her mind. Now I quite agree, that though a party has complete power to resile from an incomplete engagement, such a power will be denied when the actings and the conduct of the parties have carried the incompletely executed engagement into effect. But, in order to exclude to the plea of locus penitentiae, a party must have his claim, not upon the incompletely executed engagement, but upon the equities that arise from the actings and the conduct of the parties. But here the engagement was incomplete because possession was retained by the Maharanis, and, if possession was retained by the Maharanis, there could be no equity upon which a claim could be founded. The equitable rule upon which the learned Government Advocate relies applies to imperfectly clothed transactions, transactions which in England ought to be evidenced by writing but are not evidenced by writing, which in India ought to be evidenced by a registered document but are not evidenced by a registered document, and it is well established that, provided there have been actings and conduct of the parties unequivocally referable to the engagement and productive of alteration of circumstances, loss or inconvenience, a party can found upon the equities arising from the acts done, though not upon the engagement itself. In my opinion, there is no scope for the application of the equitable rule to the facts of the present case. It is not suggested by the defendants that the document, upon which the plaintiff relies, was imperfectly clothed, or that all the formalities connected with the document were not gone through, what is suggested is that the relinquishment did not become effective until there was a relinquishment in fact, and to a case so put, it is clearly no answer to refer us to the doctrine of part performance.

But supposing it is possible to investigate a case of part performance, it is relevant to enquire whether the plaintiff does found upon the equities arising from the alleged actings of the parties. The plaint expressly asks for the following declaration:

That the Court be pleased to declare that by the deed of surrender and the ekrarnama dated the 18th December, 1918, the plaintiff''s father and the defendant second party became entitled as the next immediate reversionary heirs of the late Maharaja Sir Harballabh Narain Singh Bahadur K.C.I.E. to all the properties left by him, and the defendant 1st party has no right to withhold possession of the Sonbarsa estate from the plaintiff and the defendant second party.

This does not look as if the plaintiff has based his claim, not upon the deed of surrender but upon the equities arising from the actings of the parties. A careful perusal of the plaint is sufficient to establish that the plaintiff bases his title on the deed of surrender. We are not told what the actings of the parties were which have given rise to an equity in favour of the plaintiff and it is, in my opinion, quite impossible to investigate a case of equity on the plaint as presented by the plaintiff.

But I do not intend to rest my decision on this point on so narrow a ground as the construction of the plaint. The evidence does not, in my opinion, establish that there have been actings of the parties on which the plaintiff can base his title. The deed of surrender was executed on the 18th December, 1918. On the 23rd December, the Maharnis addressed a letter to the Collector informing him of what they had done and requesting him,

to takes steps to make over the charge and management of the said properties to Rao Bahadur Gobind Singh and Rudra Pratab Singh if the Court of Wards do not think fit to retain management u/s 13(a) of Act IX of 1879 (B.C.)

This is the sole ''acting'' on the part of the Maharanis, and it has been gravely argued that, upon this letter an equity can be founded in favour of the plaintiff. I am unable to accept this contention as well founded. It was productive of no alteration of circumstances no loss or inconvenience, and it certainly does not disclose any act done by the grandsons, known to and permitted by the Maharanis to take place on the faith of the engagement, as if it were perfect. The letter was written and addressed on the 23rd December 1918, and there is no evidence of any act done subsequent to the 23rd December 1918 which might suggest the inference that the Maharanis acted on the transaction of 18th December or that they permitted their grandsons to act on the faith of the transaction of the L8th December as if it were complete in itself. The Maharanis continued to reside in Sonbarsa and to draw their maintenance allowance from the Court of Wards. The eldest Maharani died in August 1920, and on her death, her interest in her husband''s estate became vested in Maharani Nawlakhbati. The suit was instituted on the 17th January 1921, and the Court of Wards retired from the management of the estate on the 27th April 1922. On the retirement of the Court of Wards Maharani Nawlakhbati became entitled to speak on her own behalf, and she promptly repudiated the transaction of the 18th December. In my opinion, the evidence does not support the contention that there were actings of the parties on which the plaintiff could rely in support of his title. It was then argued that the only way in which the Maharanis could have abandoned the property was by requesting the Court of Wards to make over the properties to their grandsons, and that this they did by their letter of the 23rd December. But the question, in my opinion, is not whether the Maharanis made an attempt to relinquish their estate, but whether there was relinquishment in fact. Upon the withdrawal of the Court of Wards from the management of the estate, it was open to Maharani Nawlakhbati to affirm the transaction of the 18th December. She expressly declined to affirm it, and I do not see on what ground the plaintiff should be allowed to maintain ejectment against her since she was not at any time bound to relinquish her estate in favour of her grandsons, and since she has resiled from the engagement before completing the transaction.

It was then contended on behalf of defendant No. 2 that assuming that the deed of surrender carried the estate from the Maharanis to him and to his brother, on the death of his brother, the interest of his brother came to him by survivorship, and the plaintiff as the son of his brother has no title to maintain the suit. The argument is founded on the decision of the Judicial Committee in 7 CWN 1 (Privy Council) in which it was established that, upon the death of a daughter, her sons succeeded to the property of their maternal grandfather as his heirs, and that they took the property jointly with rights of survivorship. The Madras High Court had come to the conclusion that the doctrine of survivorship was limited to unobstructed succession and to the succession to the joint property of reunited co-parceners. This was undoubtedly the view of so eminent a Hindu lawyer as Sir Gurudas Banerji, and was accepted as settled law both in the Calcutta High Court and Madras High Court. It was contended before the Judicial Committee by Mr. Mayne that there was a number of cases in the books in which property inherited as obstructed inheritance was regarded as joint with right of survivorship. Mr. Mayne referred to the case of sons succeeding to the self-acquired property of their fathers, to the case of widows succeeding to the property of their husband, and to the case of daughters succeeding to the property of their fathers. The Judicial Committee thought that,

where sons succeed, the inheritance as to them is unobstructed.

but it accepted the cases of widow and daughters as conclusively establishing that the doctrine of survivorship is not limited to unobstructed succession and to the succession to the joint property of reunited co-parceners. It was urged before us by Mr. Naresh Chandra Sinha, that according to the Mitakshara, upon the death of a widow or a daughter, her co-widow or the surviving daughter succeeds to the property, not indeed by survivorship, but as the nearest heir of the last male holder of the property but it seems to me that we are not at liberty to entertain the argument, for to do that would be to throw doubt upon the correctness of the decision of the Judicial Committee. On the decision of the Judicial Committee it must follow that Barra Lal, at his death, did not leave any interest in the estate which was capable of being inherited by the plaintiff.

But the actual decision of the Judicial Committee by no means decides the questions which have been raised in this appeal. The critical question is, is the right of survivorship, referred to by the Judicial Committee, the right of survivorship as understood by the Mitakahara law, according to which the right will not prevail in favour of the survivor as against the male issue of the deceased? The passage in the judgment of the Judicial Committee, as to the interpretation of which the Madras High Court and the Allahabad High Court have differed from each other, runs as follows:-

what then was the character of the property which they" (that is to say, the daughter''s sons)

took? In the grand-father''s hand it was separately acquired property. In the hands of the grandsons it was ancestral property which had devolved on them under the ordinary law of inheritance.

And then follows a passage which, in my opinion, is the key to the understanding of the decision. That passage is as follows:-

Niladri and Appa Rao were members of a united family.

Now it must be conceded that if the term "ancestral property" was used by the Judicial Committee in the sense in which that term is understood in the Mitakshara, it will be impossible to admit the validity of the argument advanced on behalf of defendant No. 2 that his right to take by survivorship will prevail as against the plaintiff. "Ancestral property" in its technical sense means "property which descends upon one person in such a manner that his issue acquire certain rights in it as against him".

Mr. Lakshmi Kant Jha on behalf of defendant No. 2 maintains that there is an exception to the general rule when we are dealing with daughter''s sons and their issue. Daughter''s sons, we are told, occupy a special position in the family of their maternal grandfather, but their sons are not members of the family of the maternal grandfather of their father, and they cannot be regarded as having an interest by birth in the property of the maternal grandfather of their father, since they do not offer any funeral cakes to their father''s maternal grandfather. The argument is an attractive one, but it has two serious defects; first, whatever the position of the daughter''s sons may have been before the appointment of a daughter to raise up issue for her father became absolute, under this present law he is a member of his own father''s family, and cannot be regarded as a member of his maternal grandfather''s family, and secondly, the fact that a person does not offer funeral cakes to the owner of the property does not decide the question which is in debate before us. It is quite true that it is only the persons who offer the funeral cake to the owner of the property that are regarded as having an interest in the property by birth. But it is well established that as each fresh member takes a share, his descendants to the third generation below him take an interest in that share by birth. In my opinion, if the estate were ancestral estate in the hands of Barra Lal and Chotey Lal, their descendants to the third generation below them would take an interest in that estate by birth, and the plaintiff as the son of Barra Lal, would be entitled to maintain partition against Chotey Lal.

But a more serious question remains, namely whether the property could be regarded as ancestral property in the hands of Barra Lal and Chotey Lal. Mr. Mayne answers the question in the negative. "Hence all property" says Mr. Mayne.

which a man inherits from a direct male ancestor, not exceeding three degrees higher than himself, is ancestral property, and is at once held by himself in coparcenary with his own issue. But where he has inherited from a collateral relation, as for instance, from a brother, nephew, cousin or uncle, it is not ancestral property; consequently his own descendants are not coparceners in it with him......On the same principle property which a man inherits from a female, or through a female, as for instance a daughter''s son......would not be ancestral property. (Mayne 8th Edition, section 275 page 350).

In the case of Atar Singh v. Thakur Singh [1908] 35 Cal 1039: 35 L.A. 206: 10 Bom. L.R. 790: 128 P.W.R. 1908: 8 C.L.J. 359: 12 C.W.N. 1049: 18 M.L.J. 379: 4 M.L.T. 207: 42 P.R. 1910: 6 I.C. 721 (P.C.) the Judicial Committee came to the same conclusion. In the course of its judgment, it said as follows.

unless the lands came to Dhanna Singh by descent from a lineal male ancestor in the male line, through whom the plaintiffs also in like manner claimed, they are not deemed ancestral in Hindu law.

The question is one of difficulty: and I have great hesitation in holding that the Judicial Committee in the Madras case used the expression "ancestral property" in the technical sense in which that term is used in the Mitakshara.

How, then should the question be answered? In my opinion, the solution lies in the sentence which follows the statement that in the hands of the grandsons it was ancestral property. The Judicial Committee pointedly referred to the fact that Niladri and Appa Rao were members of a united family, and then cited the following passage from Shivagunga case [1863] 9 M.I.A. 539: 2 W.R. 31 (P.C.) [Kattama Nachiar v. The. Rajah of Shivangunga.]

According to the principles of Hindu law, there is coparcenership between the different members of a united family, and survivorship following upon it. There is community of interest and unity of possession between all the members of the family, and upon the death of any one of them the others may well take by survivorship that in which they had during the deceased''s life time a common interest and a common possession.

Now admittedly Niladri and Appa Rao did not have a common interest and a common possession in the property of their maternal grandfather during his lifetime. But they were undoubtedly members of a united family, and there was coparcenership between them, and. I would add, their issue, qua the property which was admittedly their ancestral property. In my opinion, the Judicial Committee acted upon the view that the property inherited by Niladri and Appa Rao formed an accretion to their family property, for on no other hypothesis is it possible to explain that decision consistently with the admitted principles of the Mitakshara. This is the view which the learned author of Mayne''s Hindu law has taken.

"It will be observed", says the learned author, (8th Edition, S. 563 A.)

that in this case the property descended to a single daughter, who was the mother of both sons and that these sons were members of an undivided family, who took the whole property at the same time by the same title. Prima facie there was no reason why they should hold it in any manner different from that of their other family property, to which it would naturally form an accretion.

If this view be right, as I think it is, their sons would have an interest equal to their fathers in the property treated as having accreted to the property in which they had an interest by birth. In the case before us, Barra Lal and Chotey Lal were members of a united family, and it is not suggested that there was, at any time, a separation between them. In my opinion, the question must be answered in favour of the plaintiff and against defendant No. 2.

The only other question which I have to consider is the question of fact rai ed by Maharani Nawlakhbati, namely, whether the deed of surrender executed by her is operative and enforceable against her. The case of the Maharani on this point is stated in paragraph 6(a) of her written statement which is as follows:-

That the defendant No. 2 of whom the Maharanis were very fond, was ordered by the Government to leave the district owing to his suspected complicity in the murder of the late Maharaja Bahadur. The plaintiff''s father represented to the Maharanis that it was necessary to have a deed executed by them, so that the Government might be induced to allow the defendant No. 2 to return to Bhagalpur district and that the Maharanis on that misrepresentation without any proper and independent advice, signed the alleged deed of surrender without properly understanding its effect. This defendant submits that in the circumstances the deed is legally invalid and inoperative.

Now, one thing is clear on the evidence and that is that the Maharanis made repeated attempts to have the order of externment against defendant No. 2 recalled. On the 15th May 1907, the Maharanis presented a petition to the Collector of Bhagalpur in which they asked for permission to be allowed to surrender their estate in favour of Chotey Lal. With reference to this petition the learned Subordinate Judge says that this was an attempt "to prove the innocence" of Chote Lal.

In the peculiar circumstances in which he was then placed", says the learned Subordinate Judge, "his mother and brother could not with hold their consent to the said application if it could remove the strong suspicion of murder from him. A perusal of this application would show that its main object was to save Chote Lal. The surrender matter played an insignificant part in it. It was rather thrown out as a bait.

Between 1907 and 1916, the Maharanis, made various attempts in the same direction. Ex T. is a letter from the Collector dated the 14th March 1908 to the Maharanis, in which, replying to the letter of the Maharanis dated the 11th March 1908, he states that the Commissioner and he were of opinion that it was.

not advisable to recall Chote Lal Sahib at present.

Ext. K is an order dated the 24th December 1912 passed by the Collector on the petition of the Maharanis praying that their younger grandson may be allowed to visit Sonbarsa. The order runs as follows:-

I have fully considered the question and regret I am unable to recommend that the younger grandson of the late Maharaja Bahadur of Sonbarsa should be again allowed the privilege of comming to this district and to Sonbarsa.

In 1913, the Maharanis presented a memorial to the Local Government, and Ex. K is the reply of the Government to the memorial which runs as follows:-

With reference to their memorial dated nil, the undersigned is directed to convey to the Maharani Sahebs of Sonbarsa, the regret of the Lieutenant Governor in Council that he is unable to alter the existing order under which Lal Rudra Pratap Singh is forbidden to come back to Sonbarsa.

In their letter of the 4th March 1918 Ex. 5, the Maharanis in forwarding the deed of surrender which they proposed to execute in favour of their grandsons to the Collector entered into an elaborate defence of Chotey Lal and expressly asked that the Government may withdraw the order prohibiting the return of Chote Lal to the district And the evidence of Rai Bahadur Surja Prasad shows that, on the eve of the execution of the deed of surrender, the elder Maharani consulted him as to.

what was the best way of getting the younger grandson to Bhagalpur.

Now it is impossible to read the evidence of Maharani Nowlakhbati, without being impressed by the passion with which she exclaims again and again.

I have not given the property to anybody. It has been done by dhakha dhokhi (that is, by practising deception) about the coming of Chote Lall.

Her evidence is that it was represented to her that if she executed the document the order of externment against Chote Lal would be recalled, and he would be able to return to Bhagalpur. She says that the document was not read and explained to her, and that she would never have signed it, had she known that she was divesting herself of her proprietary interest in property for ever. In my opinion, the story told by her is inherently probable having regard to the antecedent history showing what strenuous efforts were made by the Maharanis to have the order of externment against Ohote Lal recalled

Before examining the evidence on the point, it will be useful to remember the rules which have from time to time been laid down in order to enable the Courts to determine whether deeds taken from pardanashin ladies are enforceable against them. The jurisdiction of the Courts of law to afford protection to pardanashin ladies rests on a presumption of the imperfect knowledge of the world and exposure to undue influence, making it the duty of a person taking a beneficial grant or contract from a pardanashin lady to show that the deed was explained to her and understood by her. Starting from the elementary principle that every person taking a document from a purdanashin lady is bound to show affirmatively that the document was her document, that is to say, that she understood the nature of the transaction and the effect of it. The Courts of law have laid down certain rules for assisting them to determine the point; but it is necessary to remember that the rules so laid down are rules of prudence, rather than rules of law, and that their application will depend on the particular facts of each case. As the Judicial Committee once pointed out, there is a grave risk of failure of justice, if these rules are moulded into inelastic formulas or crystallized into inflexible rules and treated as of universal application, regardless of the special facts and surrounding circumstances of the concrete case which requires adjudication.

Now I do not propose to discuss all the cases bearing on the point. It will be sufficient to refer to the decision of Mr. Justice Mukherji in Nibaran Chandra Mukerji v. Nirupama Debi [1921] 34 C.L.J. 563: 26 C.W. N. 517: 69 I.C. 476 where the learned and distinguished Judge summed up the whole position in these words.-

"It is well settled." said the learned Judge "that the Court, when called upon to deal with a deed executed by a pardanashin lady, must satisfy itself upon the evidence, first, that the dead was actually executed by her or by some person duly authorised by her, with a full understanding of what she was about to do; secondly, that she had full knowledge of the nature and effect of the transaction into which she is said to have entered, and thirdly, that she had independent and disinterested advice in the matter...........On examination, these decisions will be found to fall broadly into two-groups, namely, first, cases, where the person who seeks to hold the lady to the terms of her deed is one who stood towards her in a fiduciary character or in some relation of personal confidence and secondly, cases where the person who seeks to enforce the deed was an absolute stranger and dealt with her at arm''s length. In the former class of cases the Court will act with great caution and will presume confidence put and influence exerted; in the latter class of cases, the Court will require the confidence and influence to be proved intrinsically............ The essence of the matter was tersely put by Lord Buckmaster in 24 CWN 297 (Privy Council) when he stated that the circumstances under which a pardanashin woman agrees to transfer property in which she is interested must be carefully examined, in order to ascertain that she had independent advice and that the lady had sufficient intelligence to understand the relevant and important matters and that she did understand them as they were explained to her, that nothing was concealed, and there was no undue influence or misrepresentation........... It will be observed that the Court must thus have regard to the intellectual attainments of the lady concerned and will naturally be disinclined to set aside the deed where she is proved to have been of business habits to have been literate, and to have possessed a capacity to judge for herself.

I respectfully adopt the view which was expressed by Mr. Justice Mukherji in the case just cited.

Now it is relevent to enquire whether the case before us belongs to the first class mentioned above, where the person who seeks to hold the lady to the terms of her deed stands towards her in a relation of personal confidence. The learned Government Advocate strenuously contends that since the Maharanis were under the Court of Wards, Barra Lal did not stand towards her in a relation of personal confidence. Now one of the most impresgive facts in the present case is that, though the Maharanis were wards of the Court, they made no attempt to seek the advice of the Court of Wards in the matter of the execution of the deed of surrender. They kept the Collector informed of what they were doing in the matter but it is one thing to keep the Court of Wards informed of what they were doing; it is another thing to seek its advice in the matter. The Court of Wards, though the statutory guardian of the Mahaianis, was completely ignored; and the evidence of Mr. Nilmony De, who was the manager of the Sonbarsa Estate under the Court of Wards from 1914 to 1920, shows that, so far as he was concerned the Maharanis were altogether " reticent" on this question of the deed of surrender. It is idle, therefore, to say that, as the Court of Wards was the guardian of the Maharanis, Barra Lal could not have stood towards them in relation of personal confidence. In the case of Marium Bibi v. Ibrahim [1918] 28 C.L.J. 306: 48 I.C. 561 the document was taken by brother from a sister who was living with her husband. The case was decided on the footing that there was a relation of personal confidence between them. In the case of Nirbaran v. Nirupama [1921] 34 C.L.J. 563: 26 C.W.N. 517: 69 I.C. 476 the document was taken from the lady by her husband''s step brother. The case was again decided on the footing that there was a relation of personal confidence between them. Mr. Justice Mukherji pointed out in the latter case that according to the normal structure of a joint Hindu family, the lady would look upon her husband''s step brother as her natural protector in whom she might repose confidence properly to safeguard her rights. The facts of the present case are strongly in favour of the view that Barra Lal would be looked upon as the natural protector of the Maharanis, who, it must be remembered, were old and had no one else to advice them. Barra Lal was their daughter''s son and was brought up in their house. There was no one nearer to them in relationship than Barra Lal and, it is Barra Lal to whom they would naturally turn for advice and guidance.

[His Lordship then discussed the evidence and proceeded as follows:-]

On a careful consideration of all the evidence, I have come to the conclusion that Barra Lal stood towards Maharanis in a relation of personal confidence.

That being so, it was, in my opinion, absolutely necessary that the Maharanis should have received independent and disinterested advice in the matter. The learned Subordinate Judge has come to the conclusion first, that it was not necessary, in this case, that they should have received independent advice, and secondly that there are circumstances in the case which suggest the inference that they did receive independent legal advice in the matter. I will first consider whether the possession of independent legal advice was essentially necessary to validate the deed. The learned Subordinate Judge bases his conclusion on his view that there is an inherent right in a Hindu widow to surrender her estate to the next reversioners and that,

such act is regarded as pious and meritorious on their part for which independent or disinterested legal advice is not necessary.

It is impossible, in my opinion, to maintain the proposition. There is an old case in the books, the case of Delroos Banoo Begum v. Nawab Syed Ashgur Ali Khan [1875] 23 W.R. 453: 15 B.L.R. 167 which is still treated as a leading case in our Courts. That was a case in which a Muhammadan widow executed a tawleutnamah with a view to perpetuate certain ceremonies in commemoration of her mother''s death. Now it cannot for a moment be disputed that there is "an inherent right" in a Muhammadan widow to dedicate her properties to religious trust, and that such dedication "is regarded as pious and meritorious" on the part of Muhammadan widows. She however denied on oath an effectual knowledge of the document, and the Calcutta High Court came to the conclusion that it was not operative against her on the ground (amongst others) that "she had no professional assistance at the time."

The decision of the Calcutta High Court was affirmed by the Judicial Committee [Ashgur Ali V. Delroos Banoo [1877] 3 Cal. 324. (P.C.)]. It is unnecessary to pursue the subject, for there is no authority in support of the proposition for which the learned Subordinate Judge has made himself responsible.

The conclusion of the learned Subordinate Judge if also based upon his finding that the Maharanis had "intellectual attainment and business capacity" sufficient to bring the case within the decision of Lord Shaw in 18 CWN 282 (Privy Council) . That was a case in which a Hindu lady made a gift of about one half of her estate to the son of her paramour. The Judicial Committee found, first, that the lady had been in the habit for a considerable period of years of managing her affairs, of entering up her accounts, and of attending to business, secondly, that she had much strength of will, and thirdly that she was a capable woman, fully alive to the direction of her own interests, and well aware of what she was doing. Upon these facts their Lordships had to consider whether the fact that the lady did not obtain independent outside advice invalidated the deed. In dealing with this point Lord Shaw said as follows:-

The possession of independent advice or the absence of it, is a fact to be taken into consideration and well weighed on a review of the whole circum stances relevant to the issue of whether the grantor thoroughly comprehended and deliberately and of her own-free will carried out the transaction. If she did, the issue is solved and the transaction is upheld; but if upon a review of the facts-which include the nature of the thing done and the training and habit of mind of the grantor, as well as the proximate circumstances affecting the execution -if the conclusion is reached that the obtaining of independent advice would not really have made any difference in the result, then the deed ought to stand.

Now, in my opinion, there is no resemblance whatever between this case and the case of 18 CWN 282 (Privy Council) .

[Here the judgment dealt with evidence and continued as follows:-]

On an anxious consideration of the evidence in the case, I have come to the conclusion that the circumstances do not establish that Alahamni Nawlakhbati obtained any independent legal advice in the matter that she understood that, by executing the deed of surrender, she had effectively divested herself of all proprietary interest in the estate of her deceased husband.

It remains for me to consider whether the deed of surrender was read and explained to the ladies.

[The judgment then dealt with evidence and proceeded as follows:-]

To sum up: I have been impressed by the fact that Maharani Nawlakhbati has denied on oath an effectual knowledge of the deed of surrender. The act imputed to her is an act of effacement, an act by which she is said to have operated her death. In the witness box she denies that she is dead, and she explains the circumstances under which she came to execute the deed of surrender. It was determined in the case of Delrus Banoo Begum v. Ashgar Ali [1875] 23 W.R. 453: 15 B.L.R. 167 and affirmed by the Judicial Committee [see [1877] 3 Cal. 324. (P.C.)] that pardanshin ladies have a claim to special consideration where they deny on oath an effectual knowledge of documents which they are said to have made It may of course be that her explanation is untrue and that she is really dead; but where the question is whether a pardanashin lady has operated her own death, which she was not bound to do, the Courts will, I apprehend, act with great caution, and will not deprive her of her property unless compelled to do so. Most of the cases that come before the Courts are cases which arise after the death of the pardanashin ladies; but the question here is raised in the lifetime of Maharani Nawlakhbati, and the claim of the plaintiff is disputed by Maharani Nawlakhbati. In the next place, it seems to me that the explanation given by Maharani has received considerable support from the admitted history of the transactions from 1907 to 1918. Again and again attempts were made by the Maharanis to have the order of externment against Chote Lal recalled; and we know that in 1907 they proposed to surrender the estate to Chote Lal not with a view to carry the estate from them to Chote Lal, but with the object of forcing the Government to recall the order of externment against Chote Lal. And the advice which they sought from Rai Bahadur Suraj Prasad on the eve of the transaction in suit is not without significance, and suggests that, in the minds of the Maharanis, there was some connection between the execution of the document and the cancellation of the order of externment against Chote Lal In the third place, I consider that Barra Lal stood towards Maharanis in some relation of personal confidence, and should have dealt with them at arm''s length. This he did not do and, what is more, he completely ignored the Court of Wards which was the statutory puardian of the Maharanis. The Court will, in such a case, presume confidence put and influence exerted, and I am not satisfied on the evidence that confidence was not put and that influence was not exerted. But, apart from the question of presumption and, assuming that Barra Lal did not stand towards the Maharanis in some relation of personal confidence, I am quite clear that the possession of independent and disinterested advice was essential to give validity to the deed of surrender. There is no evidence that the Maharanis had an intellectual attainment or business capacity sufficient to fit them to be on guard against any attack that might be made on their property, and I am unable to say that the possession of independent advice would have made no difference in the case. The terms of the deed were, on the face of it, attractive so far as the Maharanis were concerned, for the immediate effect of the deed would be to give them Rs. 2,000 per month, whereas they were getting much less from the Court of Wards. But the debts of the estate had practically been liquidated, and the retirement of the Court of Wards could not long be delayed. Then Again it is established beyond doubt and controversy that the motive which impelled the Maharanis to enter into the transaction of the 18th December, 1918, was to secure the withdrawal of the order of externment against Chotey Lal; and I think that this was a matter in which they were entitled to have independent advice. I think that it is established that Maharani Nawlakhbati did not have any independent advice; and though I agree that the document was read to the Maharanis in the language understood by them, I am unable to hold, on the uncorroborated evidence of a single witness, since that evidence is contradicted by Maharani Nawlakhbati, that the document was explained to them. Differing from the learned Subordinate Judge, I hold that the deed of surrender is not enforceable as against Maharani Nawlakhbati.

I would dismiss this appeal with costs.