- (1.) This is Defendant's second appeal arising put of a suit for khas possession over 3 K. 5 lessas of land under dag No. 697 of 20 years New Settlement of Gauhati Town together with the constructions situated thereon and for compensation of Rs. 2,025/-. The Plaintiffs claimed to be the owners of the land and houses described m the schedule by virtue of a deed of gift executed by Musst. Thaneswari Kalitani Defendant No. 2 on the 20th December, 1950 in favour of the Plaintiffs. The land in dispute had dag Nos. 754 and 317 of area 2 kathas 4 lessas and dag Mo. 395/430 of area 16 lessas and at the resettlement; the patta and dag have been renumbered as patta No. 634 and dag No. 697 and the area is shown as 3 kathas 5 lessas. The owner of the said land and the houses was Defendant No. 2 mother of Plaintiff No. 1 Purnaprabha Pathak and mother-in-law of Plaintiff No. 2 Krishna Kanta Pathak. As She had no other heirs, she gifted away the suit land and the houses to the Plaintiffs. Before the execution of the deed of gift the land had been leased out to the Defendant under a Kabuliyat dated the 16th September 1941 for ten years. There was a clause of renewal in the deed. After the expiry of ten years the tenant had to remove the structures at his own cost and the payment of rent was to be in two instalments in October and April each year. The Defendant committed default in payment of rent and after iTng notice of ejectment to the Defendant on 'the 25th February 1953 the present suit has been brought, Plaintiffs have claimed compensation from 16th September 1951 to 16th April 1953 at fl''c rate of Rs. 75/.- per month. The houses are also needed for extensive repairs as they are neglacted by the Defendant. The Defendant contested the suit on various questions of law and fact. The trial court decreed the suit for ejectment and Rs. no/- as compensation. On appeal the decree of the Court below has been affirmed.
(2.) Three points mainly have been urged in. this appeal. Firstly it is contended that the Defendant No. 2 being a limited owner, could not transfer the property by gift to the Plaintiffs. The document cannot be regarded as surrender by the limited owner in favour of the next reversioner, rirstly it was not a surrender of the entire interest of the limited owner and secondly it was a surrender not only in favour of the next reversioner-the daughter-but also her husband and thus there is no acceleration of succession, by the said deed. The Plaintiffs have no right during the lifetime of Defendant No. 2, the donor, to bring the present suit. Secondly it is contended that there was a renewal clause and in the absence of any intention on the part of the Defendant to give up pos session, the tenancy was automatically renewed and thus the Plaintiffs had no right to bring this suit.
(3.) In paragraph 3 of the plaint the Plaintiffs assert that Defendant No. 2 mother of Plaintiff 'No. 1 and mother-in-law of Plaintiff No. 2 having no other heir except Plaintiff No. 1, in order to augment succession, gifted away the suit land and houses to the Plaintiffs. The Plaintiffs thus relied upon the gift deed as a deed of surrender. The surrender by a widow is not a transfer in the sense that the transferee acquires title through a widow. The reversioner is entitled to inherit the property of the last male owner after the death of the widow and the widow by surrender of her right only accelerates the succession. It constitutes her effacement and the reversioner getting the prpperty by succession earlier than if he got it otherwise after the death of the widow. In the case of Mummareddi Nagi Reddi v. P. Durairaja Naidu, 1952 AIR(SC) 109 the whole doctrine of the surrender by the widow has been laid down. The following passage is apposite: The basis of the doctrine of surrender or relinquishment by the widow of her interest in the husband's estate which has the effect of accelerating the inheritance in favour of the next heir of her husband, is the effacement of the widow's estate and not the ex facie transfer by which such effacement is brought about. The result merely is that the next heir of the husband steps into the succession in the widow's place. This effacement may be effected by any process and it is not necessary that any particular form should be employed. All that is required is that there should be a bona fide and total renunciation of the widow's right to hold the property and the surrender should not be a mere device to divide the estate with the reversioners. It would be clear from the principle underlying the doctrine of surrender that no surrender and consequent acceleration of estate can possibly be made in favour of anybody except the next heir of the husband. It is true that no acceptance or act of consent on the part of the reversioner is necessary in order that the estate might vest in him; vesting takes place under operation of law. But it is not possible for the widow to say that she is withdrawing herself from her husband's estate in order that it might vest in somebody other than the next heir of the husband. In favour of a stranger there can be an act of transfer but not one of renunciation. The position is not materially altered if the surrender is made in favour of the next heir with whom a stranger is associated and the widow purports to relinquish the estate in order that it might vest in both of them. So far as the next heir is concerned, there cannot be in such a case a surrender of the totality of interest which the widow had, for she actually directs that a portion of it should be held or enjoyed by somebody else other than the husband's heir;