B.K.MUKHERJEEJ - (1.) THE Judgment of the court Was delivered by .:
(2.) THIS appeal is directed against a judgment and decree of the Bombay High court, dated the 31/03/1949, confirming, on appeal, the decision of the Civil Judge, Senior Division, at Broach, in Special Suit No. 9 of 1941. The facts of the case, though a bit long, are not in controversy at the present stage and the entire dispute between the parties centers round certain points of law relating to the rights of the reversioners, in whose favour a deed of surrender was executed by a Hindu widow, to recover possession of the properties, belonging to the last male owner, during the lifetime of the widow from persons who acquired title to the same by adverse possession against the widow. 64 To appreciate the contentions that have been raised by the parties before us, it will be convenient to give a brief narrative of the material facts in their chronological order. A reference to the short genealogical table given below will show at once the relationship between the parties to the present litigation. JUDGEMENT_61_AIR(SC)_1954Image1.jpg One Jijibhai, whose name appears at the head of the table, had two sons, Tribhovan and Kashibhai. Tribhovan had a son named Mathurbhai who died in 1924 leaving, behind him, his widow Hirabai and a son Punjabhai. Kashibhai died in 1914 leaving a son Shankarbhai and a daughter Rukmini. Shankarbhai, whose property is the subject matter of dispute in the present case, died without any issue in 1922, leaving his widow Bai Kashi who is defendant No. 3 in the suit. It is said, that there was a notional partition between Kashibhai and Mathurbhai in 1913 which effected a severance of their joint status without any actual division of properties by metes and bounds. Mathurbhai died on 26/01/1924, and on the 2nd of June following Hirabai, his widow, made an application to the District Judge for appointment of a guardian of the person and property of her minor son Punjabhai, alleging, inter alia, that the minor was the sole owner of the entire joint estate by right of survivorship. On the 1st of July, 1924, Bai Kashi, the widow of Shankarbhai, was served with a notice of this application. On the 17th of July following, she purported to adopt a son named Sivabhai and in answer to the notice in the guardianship proceeding served upon her, put forward the claim of her adopted son. The District Judge regarded the adoption to be invalid and by his order dated 29/11/1924, appointed the Deputy Nazir of his court as guardian of the properties of the minor Punjabhai, the properties including the share of Shankarbhai in the joint estate. The Deputy Nazir took possession of all the properties on behalf of the minor and it is not disputed that Bai Kashi never got possession of any portion of these properties since then. In 1926 Bai Kashi as the guardian of her infant adopted son Sivabhai brought a Title Suit, being Suit No. 180 of 1926, claiming partition of the joint family properties on the allegation that, by adoption, Sivabhai became a co-owner to the extent of a half share in them. The suit was resisted by Punjabhai represented by his court guardian and the main contention put forward on his behalf was that the adoption, by the widow, of Sivabhai was invalid in law. This contention was given effect to by the trial judge and by his judgment dated the 4/07/1927, the suit was dismissed. An appeal was taken against this decision, on behalf of Sivabhai, to the High court of Bombay, but the appeal was withdrawn on the 25/07/1927. Thereafter in 1930, Rukmini, the sister of Shankarbhai and the mother of the present plaintiffs, instituted a suit, being Suit No. 350 of 1930, for a declaration that the joint status of the family was disrupted by the notional partition effected between Mathurbhai and Kashibhai in 1913 and she, as the next heir of Shankarbhai, was entitled to succeed to Shankarbhai's share of the properties on the death of Bai Kashi. The trial judge was of opinion that there was, in fact, a severance of joint status by an informal partition between Mathurbhai and Kashibhai, but he dismissed the suit on the ground that a suit of this character was not maintainable in law. Rukmini died soon after that and her two sons, who were then minors, represented by their father as next friend, preferred an appeal to the High court against this order of dismissal. The High court allowed the appeal and gave a declaration in favour of the appellants to the effect that there was disruption of the joint family in the year, 1913. This judgment is dated the 8th of February, 1939, and thereafter on the 30th of January, 1941, Bai Kashi executed a deed of surrender in favour of the plaintiffs relinquishing her widow's estate in favour of the husband's nearest reversioners. On the basis of this deed of surrender the plaintiffs brought the suit, out of which this appeal arises, in the Court of the Civil Judge, Broach, claiming possession of the disputed properties as the next heirs of Shankarbhai against the defendants who are the sons and heirs of Punjabhai. Bai Kashi was impleaded as defendant No. 3 in the suit. The suit was resisted by defendants 1 and 2 who raised a number of pleas in answer to the plaintiffs' claim. The material defence was of a, three-fold character. It was contended in the first place that there was no partition between Mathurbhai and Kashibhai as alleged by the plaintiffs and the family being still joint when Shankarbhai died, the entire joint estate vested in Mathurbhai by right of survivorship. It was alleged in the second place, that even if the family had separated, the adopted son of Bai Kashi being a nearer heir the plaintiffs had no title to the property. The last and the main defence was that the defendants having acquired a title by adverse possession against the widow, and the widow having lost whatever interest she had in her husband's property, the deed of surrender was invalid, and even if it was valid, the surrenderees could not claim possession so long as the widow was alive. The trial court overruled all these contentions and decreed the plaintiff's suit. The defendants 1 and 2 preferred an appeal against this decision to the High court of Bombay and the appeal first came up for hearing before a division bench consisting of Chagla C.J., and Dixit J. The learned Judges, by their judgment dated the 23/01/1948, which has been described as an interlocutory judgment, disposed of the first two points mentioned above and affirmed the decision of the trial court thereon. It was held that the decision in Rukmini's Title Suit No. 350 of 1930, to which the defendants were made parties, precluded them from challenging the fact of there being a partition between Mathurbhai and Kashibhai in 1913 and also from contending that Sivabhai was a validly adopted son. There remained the only other question, namely, as to whether the plaintiffs could, on the basis of the deed of surrender, lay a claim for possession of the properties during the lifetime of the widow, as against persons, who had acquired title by adverse possession against her. In regard to this point, a contention was raised on behalf of the appellants that the deed of surrender was not duly proved and as there was no definite finding on this point, the learned Judges sent the case back for findings on the two following issues which they themselves framed: (i)Whether the plaintiffs proved the deed of surrender dated 30/01/1941 ? and (ii)Whether Bai Kashi surrendered the whole of her husband's interest in the whole property of her husband? The trial court recorded its findings on both these issues after taking additional evidence and its findings were in favour of the plaintiffs. After the findings were returned to the High court, the appeal was heard by a full bench consisting of Chagla C.J. and Weston and Dixit JJ. The Full bench confirmed the decree of the trial court and dismissed the appeal. It was held by the learned Judges that even though the defendants acquired by adverse possession a title against the Hindu widow, the deed of surrender executed by her did not become infructuous or inoperative thereby; and as there was acceleration of inheritance in favour of the plaintiffs who were the next heirs of Shankarbhai, they were competent to recover possession of the properties at once by evicting the defendants and were not bound to wait till the widow actually died. It is the propriety of this decision that has been challenged before us by the defendants 1 and 2 in this appeal. 65
(3.) THE arguments advanced by Mr. Krishnaswami Ayyangar, who appeared in support of the appeal can be conveniently considered under two heads. THE first branch of his contention is, that as the widow's estate was in this case completely extinguished by adverse possession exercised by the defendants, she had, in fact, no interest left in her, which she could make a surrender of in favour of the reversions. What is said is, that the widow, by suffering the trespassers to remain in possession of her husband's estate for more than the statutory period, had placed it absolutely beyond her power to deal with it any further; and her title being already extinguished by adverse possession, no further extinction by any act of surrender on her part was possible. THE other branch of the learned counsel's contention is, that assuming, that the widow could make a surrender, such surrender could not prejudice the rights of persons, acquired by grant from the widow or by prescription against her prior to the date of surrender and these rights would, in law, endure during the entire period of the widow's natural life. Whatever rights the reversions could assert, they could assert only after the widow's death and not during her lifetime. A number of decided authorities have been canvassed before us in this connection by the learned counsel and it cannot be disputed that judicial opinion on these points is not at all uniform. It seems to us that for a proper determination of the questions, it is necessary first of all to formulate as clearly as possible the precise nature and effect of what is known as 'surrender' by a Hindu widow. The word 'surrender' cannot be said to be free from ambiguity. It connotes nothing more than the English doctrine of merger and a Hindu widow, whose interest is usually, though incorrectly, likened to that of a life tenant under the English law, merely accelerates the reversion by surrendering her limited interest in favour of the reversioner, undoubtedly no surrender can be effective if the widow has already parted with her interest in the property by a voluntary act of her own or her rights therein have been extinguished by adverse possession of a stranger. The English doctrine of merger, though it may have influenced some of the judicial pronouncements in our country has really speaking no application to a Hindu widow's estate. The law of surrender by a Hindu widow as it stands at present, is for the most part, judge-made law, though it may not be quite correct to say that there is absolutely no textual authority upon which the doctrine could be founded, at least, impliedly. So far as the Dayabhag law is concerned, its origin is attributed to Jimutabahan's commentary on the well known text of Katyayana which describes the interest of a childless widow in the estate left by her husband and the rights of the reversioners after her death(1). While commenting on Katyayana's text, Jimutabahan lays down that the persons who should be the next heirs on failure of prior claimants would get the residue of the estate after her use on the demise of the widow in whom the succession had vested, as they would have succeeded if the widow's rights were non-existent or destroyed (in otherways) [jatadhikaraya ; patnya: adhikikara pradlvamsspi bhogavasishtam dhanam grrhiyu : ] (2). It was observed by Ashutosh Mookerjee J. in Debi Prosad v. Golap Bhagat(3) that the theory of relinquishment or surrender was foreshadowed in these remarks of Jimutabahan. This much is clear from the passage referred to above that the commentator had in mind other modes of extinction of the widow's interest in her husband's properties besides the natural death of the widow, which would have the effect of letting in her husband's heirs. There is indeed no mention of surrender or renunciation in the text and it was not on the basis of any textual authority that the law of surrender developed in India. But it Must be noticed that though certain terms and expressions of English law have been made use of in a somewhat loose sense, yet the radical idea involved in the doctrine of surrender by a Hindu widow is totally different from what is implied in the merger of a life interest in the reversionary estate under the English law. In English law the reversioner or remainderman has a vested interest in the property and his rights are simply augmented by the surrender of the life estate. In the Hindu law, on the other hand, the widow, so long as she is alive, fully represents her husband's estate,. though her powers of alienation are curtailed and the property after her death goes not to her but to her husband's heirs. The presumptive reversioner has got no interest in the property during the lifetime of the widow. He has a mere chance of succession which may not materialise at all. He can succeed to the property at any particular time only if the widow dies at that very moment. The whole doctrine of surrender is based upon this analogy or legal fiction of the widow's death. The widow's estate is an interposed limitation or obstruction which prevents or impedes the course of succession in favour of the heirs of her husband. It is open to the widow by a voluntary act of her own to remove this obstruction and efface herself from the husband's estate altogether. If she does that, the consequence is the same as she died a natural death and the next heirs of her husband then living step in at once under the ordinary law of inheritance. In spite of some amount of complexity which is unavoidable in a law evolved by judicial decisions, this fund. mental basis of the doctrine of surrender can be said to be established beyond doubt. Thus Lord Dunedin in Gounder, v Gounden(1) enunciated the law in clear terms as follows: 'It is settled by long practice and confirmed by decision that a Hindu widow can renounce in favour of the neares, reversioner if there be only one or of all the reversioners nearest in degree if more than one at the moment. That is to say, she can, so to speak, by voluntary act operate her own death.' Again in repudiating the suggestion that there could be any such thing as a partial surrender, His Lordship observed: 'As already pointed out, it is the effacement of the widowan 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. Now, there cannot be a widow who is partly effaced and partly not so.' 66 Thus surrender is not really an act of alienation of the widow of her rights in favour of the reversioner. The reversioner does not occupy the position of a grantee or transferee, and does not derive his title from her. He derives his title from the last male holder as his successor-in-law and the rights of succession are opened out by the act of self-effacement on the part of the widow which operates in the same manner as her physical death. It is true that a surrender may and in the majority of cases does take the form of transfer, e.g., when the widow conveys the entire estate of her husband. without consideration and not as a mere device to share the estate with the reversioner, in favour of the latter. But 'it is the self-effacement by the widow that forms the basis of surrender and not the ex facie transfer by which such effacement is brought about'(2). The true nature and effect of a surrender by a Hindu widow of her husband's estate have been thus summoned up, and in our opinion quite correctly, by a division bench of the Madras High court(3): 'It is settled that the true view of surrender under the Hindu law is that it is a voluntary act of self-effacement by the widow having the same consequences as her death, in opening up the succession to the next heirs of the last male owner. The intermediate stage is merely extingushed and not transferred and the law then steps in to accelerate succession so as to let in the next reversioner. The surrender conveys nothing in law; it is purely a selfeffacement which must of necessity be complete; for, as the Privy council has said, there cannot be a widow partly effaced and partly not just as there cannot be a widow partly dead and partly alive. The fiction of a civil death is thus assumed when a surrender takes place; and when the reversioners come in they come in their own right as heirs of the last owner and not as transferees from the widow.' ;