BAHUBALI VASANT KATAGE Vs. GUNDAPPA TATYA DUGE
LAWS(BOM)-1954-1-14
HIGH COURT OF BOMBAY
Decided on January 19,1954

BAHUBALI VASANT KATAGE Appellant
VERSUS
GUNDAPPA TATYA DUGE Respondents


Referred Judgements :-

BEHARI LAL V. MADHO LAL AHIR GAYAWAL [REFERRED TO]
RANGASAMI GOUNDEN V. NACHIAPPA GOUNDEN [REFERRED TO]
RAMA NANA V. DHONDI MURARI [REFERRED TO]
YESHVANTA V. ANTU [REFERRED TO]
PANDURANG V. ISHWAR [REFERRED TO]
VEERANNA V. SAYAMMA [REFERRED TO]
SHANTARAM ABASAHEB POWAR V. KERU KRISHNA [REFERRED TO]
KRISHNA MHATARBA V. BABAN [REFERRED TO]
BABANNA GURUSANGAPPA V. CHANNAPPA [REFERRED TO]
NATVARLAL PUNJABHAL VS. DADUBHAL MANUBHAI [REFERRED TO]
VISHNU PANDU YADAV VS. MAHADU BABURAO YADAV PATIL [REFERRED TO]
PANDU MARI LOTE VS. SHRIPATI SADU LOTE [REFERRED TO]



Cited Judgements :-

INDO GULF INDUSTRIES LIMITED VS. UP STATE INDUSTRIES DEVELOPMENT CORPN [LAWS(DLH)-2003-4-9] [REFERRED]
VENKATA REDDI VS. KONDAMMA [LAWS(APH)-1961-4-13] [REFERRED TO]
BHAGWANDAS GOVERDHANDAS KEDIA VS. GIRDHARLAL PARSHOTTAMDAS AND CO [LAWS(SC)-1965-8-22] [REFERRED]
BESANT RAJ INTERNATIONAL LIMITED VS. VISHWA BHARATHI TEXTILES LIMITED [LAWS(MAD)-2011-3-118] [REFERRED TO]


JUDGEMENT

- (1.)THIS appeal raises the vexed question of Hindu law as to the character and effect of the act of surrender on the part of a Hindu widow. We have had occasion to refer this question to a Pull Bench in -- 'pandu Lote v. Shrimati', AIR 1953 Bom 428 (A) along with another question. While dealing with the questions referred by us to the Full Bench, the Pull Bench considered and answered the first question, but they held that it was unnecessary to answer the second question, and it is the second question which arises for decision in the present appeal. It is perfectly true that, though in this judgment the learned Chief Justice has said that it is unnecessary to consider the point raised by the second question submitted to the Full Bench, he has indicated the view which the Pull Bench were likely to take if they had felt it necessary to decide this point. Perhaps if the matter had stood with the decision of the Full Bench alone, we might have proceeded to deal with this appeal in the light of the assistance available from the observations made by the learned Chief Justice as to the second question. But the position has been somewhat complicated by reason of the fact that Mr. Jahagirdar for the respondents contends that the validity even of these observations must be taken to be considerably impaired by the recent judgment of the Supreme Court in -- 'natwarlal Punjabhai v. Dadu-bhai Manubhai', AIR 1954 SO 61 (B ).
(2.)IT would be convenient to mention a few material facts leading to the point which we are referring to the Full Bench. The property in suit consists of two houses and two pieces of land. This property originally belonged to one Balappa. Balappa died in 1908 leaving behind him surviving his widow Shrimati and his daughter Ratna. Srimati was defendant No. 1 to the present suit when it was filed. Pending the suit, Shrimati died on 10-9-1950. Prior to her death and long before the present suit had been filed, Shrimati had adopted a son on 15-9-1935, who was defendant No. 2 to the suit. Balappa's daughter Ratna was married to Chintaman. Chiritaman died in 1908 and Ratna herself in 1911. Their son Vasant survived them. On 24-6-1920, Shrimati executed a deed of gift in favour of Vasant. On 1-7-1935, Vasant died leaving behind him his widow Rajubai. Rajubai adopted the plaintiff on 4-3-1936. Thereafter she died on 31-1-1942. It would appear that it was after Vasant died that Shrimati thought of adopting a son to herself and she did so on 15-9-1935. In the present suit filed by the adopted son of Vasant, he claims to recover possession of the properties on the ground that they have been validly surrendered in favour of Vasant by the limited owner Shrimati. Shrimati's adopted son resisted this claim on several grounds. He alleged that the deed of gift had not been executed, that it was obtained by undue influence, that it was not acted upon and that it did not cover all the properties of which Shrimati was possessed as a limited owner, all these pleas have been rejected by the trial Court. But defendant No. 2 has succeeded on the ground that, as the adopted son of Shrimati, he is entitled to divest the estate which had vested in Vasant as a surrenderee from Shrimati and on Vasant's death would have devolved on the present plaintiff. In upholding this plea, two decisions were cited before the learned Judge. The first decision is reported in -- 'shantaram Abasaheb Powar v. Keru Krishna', AIR 1948 Bom 381 (C) and the second in -- 'vishnu Pandu v. Mahadu Baburao', AIR 1951 Bom 170 (D ). Since these two decisions took a contrary view on the point which the learned Judge had to decide, he preferred to follow the latter ruling of this Court and hold that the adopted son would divest the estate which may have vested before his adoption in the surrender by reason of the surrender on the part of his adoptive mother, it is this finding which is challenged before us by Mr. Datar.
(3.)IN 'pandu Lote's case (A)', similar questions had arisen for decision and we had referred two points for the decision of the Full Bench. The first question was whether the relinquishment of watan properties resulting from a Hindu widow's surrender was valid in view of the provisions of Sections 5 (1) and 7 of the Watan Act. The second question was, if prior to his adoption a valid surrender has been effected by his adoptive mother, can the subsequently adopted son divest the property which has already vested in the surrenderees. The first question was answered by the Pull Bench in the negative. Broadly stated, the Full Bench have taken the view that in dealing with surrenders under Hindu law, it would be legitimate to distinguish between surrenders which have been brought about by documents of transfer and those which are effected otherwise. If the surrender is the result of a document which purports to be a transfer on a deed of alienation, then the surrender Itself may partake of the character of an alienation, if the surrender is effected without having recourse to a deed of transfer, it merely accelerates succession and cannot be treated as an alienation. In his judgment, the learned Chief Justice has in fact indicated that they would have answered the second point in the light of this distinction; and as I have already mentioned, we would perhaps have proceeded to deal with this appeal in the light of the observations made by the learned Chief Justice in the penultimate paragraph of his 'judgment. However, Mr. Jahagirdar relies upon several observations made by Mukherjea J. who delivered the judgment of the Supreme Court in 'natwarlal's case (B)'. This case itself had gone before the Supreme Court from a judgment of the Full Bench of this Court in -- 'natvarlal Punja-bhai v. Dadubhai Manubhai', AIR 1950 Bom 55 (FB) (E), 'and it is true, as Mr. Datar contends, that in the result the decision of the Full Bench has been confirmed by the supreme Court and the appeal has been dismissed with costs. Even so the question of surrender, its character and its effects has been considered exhaustively both on principle and in the light of judicial decisions by Mukherjea J. , and Mr. Jahagirdar contends that these observations would indicate that a distinction cannot now be drawn between a surrender which is effected by a deed of transfer or otherwise. In every case, the surrender must be treated as an act of self-effacement which only accelerates the succession in favour of the rever-sioner and in law and in fact it does not partake of the character of an alienation. We do not propose to express any opinion on this contention. Both the learned advocates have suggested that it would be better if this part of the argument is left to be decided by a larger Bench. We also take the view that it would be more satisfactory if the question as to whether the distinction made by the Full Bench in 'pandu Lote's case (A)' between two kinds of surrender resulting in two different characteristics of surrender can be taken to have been overruled by the judgment of Mukherjea J. , on which Mr. Jahagirdar relies.


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