Rao, C.J -
(1.) As the reference was necessitated by the decision of a Division Bench of the Madras High Court ocnsisting of Mack and Krishnaswamy Nayudu JJ., in -- Venkateswarlu v. Challaiya, AIR 1953 Mad 551 (A), it will be convenient, at the outset, to scrutinise the facts of that case and the principles enunciated therein. The proved facts of that case are: The last male-holder, Pichayya, died 60 years prior to the suit, leaving the 20th defendant, a childless widow.Defendants 1 and 2 were the sisters sons of Pichayya. The widow surrendered her husbands estate in favour of defendants 1 and 2, the nearest reversioners. To effectuate the transaction, the widow, Pichayyas sister and the mother of defendants 1 and 2 jointly executed a surrender deed in favour of defendants 1 and 2 conveying all the properties of Pichayya subject to the condition that the reversioners should pay the widow a sum of Rs.2,000.00 towards her maintenance and for religious purposes.Immediately after the execution of the surrender deed, the next reversioners and the remote reversioners divided the properties. On the same date, defendants 1 and 2 also executed a sale deed conveying 3 acres, 6 cents of land to the widows brother D. W. 1 for a sum of Rs.3,000.00. Out of this, Rs.2,000.00 was mentioned as having been received by defendants 1 and 2 to enable them to pay the widow the maintenance as provided under the surrender deed.More than three years thereafter, D. W. 1 sold the said land to defendant 15, the widows brothers son, for the same oonisderation. The learned Judges held, on the evidence, that the transfer in favour of D. W. 1 was for adequate consideration. On the aforesaid facts and on the findings of the learned Judges, the transaction might be supported on the basis of surrender, on the ground that the alienation by the next reversioners in favour of D. W. 1 was supported by consideration and, therefore, it was not a device to deivide the estate between the widow and the reversioners.But the learned Judges went further and made observations, which would appear to revolutionalise the law of surrender as understood prior to the decision. At page 553, Krishnaswamy Nayudu J., posed the question to be decided as follows:
"Could an arrangement entered into between the nearest reversioners and the other reversioners and even a relation of the widow whereby the properties are divided among them to which the widow might be a consenting party invalidate the surrender where the widow herself does not retain any interest?"At page 554, the learned Judge proceeded to state:
"The fact that not only she desire to be free from the trouble of administering the estate but also desires to provide for a relation for whom she has some affection and where the reversioner who will be entitled to the estate accedes to her request in deference to her wishes to make such a provision, cannot characterise the surrender asnot a bona fide one."The earlier decisions of the Madras High court when cited, were distinguished by the learned Judge on the ground that the finding in those decisions was that the transactions, which they were considering, where benami transactions in the sense that the transfer by the reversioners in favour of a near relation of the widow was really for her benefit and the effect of it was a retention of a portion of the property in the widow by adopting the transfer in favour of the relatioin as a device to divide the estate.The learned Judge derived support for his conclusion from the Commentary of Jimutavahana on the text of Narada and also from the commentary of Sri Krishna Tarkalankara on Dayabhaga.
(2.) IN short, the learned Judges conclusion was that, unless, at the time of the transaction, the property of the last male-holder was divided between the reversioners and the widow, it would not be a device to divide the estate. If there is a complete effacement of her interests in the property, according to the learned Judge, the fact that it was done pursuant to an arrangement to divide it between the reversioner and a nominee of the widow, would not affect the validity of the surrender, if the nominee was not a benamidar of the widow.Mack J., in a short judgment accepted the reasoning and the conclusion of Krishnaswamy Nayudu J. The learned Judges view was expressed in the following sentences:
"The one condition necessary for a surrender by a childless widow to be valid is as my learned brother has pointed but, that it should be bona fide. It must not be a division of the estate between the widow and a reversioner in order that each should have premature and absolute powers of alienation over a portion. To cite an extreme case, if a young widow and an elderly reversioner without children should agree between themselves to divide the estate and this agreement is embodied in the form of a surrender deed with reservation for maintenance, it would clearly be a mala fide transaction with the object of defeating the other reversioners."If the view expressed by the leaerned Judges was sound, the following transaction should be valid under Hindu law. A widow is in possession of her husbands estate to the extent of 100 acres. Pursuant to a previous arrangement between the widow the next reversioner and the widows brother, a relinquishment deed is executed in respect of the entire 100 acres in favour of the next reversioner.On the same day, the next reversioner makes a gift of 50 acres to her brother. This transaction, though in effect and substance is a device to divide the estate between the reversioner and the nominee of the widow, in the view of the learned Judge, it would be valid as a surrender as the widow effaces herself completely and her brother takes the property in his own right and not as a benamidar of the widow. The question is whether the said view is correct and whether such a view is supported by decided cases or by Hindu Law TExts.
(3.) I shall, at this stage, notice the decisions cited at the bar forming landmarks in the development of the law of surrender to discover, if possible, the real principle underlying the doctrine.;