Banerjee, J. - (1.) It was contended before us, in the first place, that the deed Ext. 1, taken as a deed of Surrender, must be treated as a void document because it was not a surrender of the entire life-estate held by the two widows, Kadambini and Sitamoni. Inspiration was drawn, in support of this branch of argument, from Ext. A, the sole-nama in Money Suit No. 382 of 1907, in which there was a statement to the effect that the two widows, Kadambini and Sitamoni, had surrendered the major portion of the estate left by their deceased husband. From the above statement it Was contended that inasmuch as the surrender did not include the entire estate and inasmuch as the two widows failed to accelerate the succession by a mere partial surrender, the deed of surrender must be treated as a void document. We are unable to accept this argument. Notwithstanding the admission contained in Ext. A, there is no evidence to show that any portion of the immovable properties, forming the life estate, was left out of the surrender. The Court of appeal below was of the opinion that a small sum of money, being an amount of compensation receivable by the two widows, may have been left out. The Court of appeal below was of the opinion that the omission in respect of this small sum of money was not such a serious defect as would invalidate the deed of surrender. Inclusion of the entire estate so as to make a valid surrender, in our opinion, is a matter of substance and not of mere form. Where a widow makes a substantial surrender, retention by her of a few rupees or a very small area of land or a room to live in does not become an act of such serious omission as invalidates a deed of surrender. This is the view that We find from the cases reported in Gopal Chandra Dutt v. Surendra Nath, AIR 1925 Cal 1004; Radharani Dassya v. Brinda Rani Dassya, AIR 1936 Cal 392; Brojeswari Dassi v. Monoranjan Dutta, AIR 1937 Cal 167 and Haribhai Nanji v. Narayan Hari, AIR 1938 Bom 438. The view also finds support from a decision of the Supreme Court reported in Gopal Singh v. Ujagar Singh, where omission to include a small portion of the life estate, due to ignorance or oversight, was held not to affect the validity of the surrender. That being the legal position we overrule the first branch of the contention advanced on behalf of the appellant.
(2.) It was contended, in the next place, that the surrender was a mere device to divide the estate between the limited owners and the reversioners (assuming for the sake of argument that they were the reversioners) and not a bona fide transaction and was, as such, a void transaction. In support of this argument our attention was invited to Ext. 2, the deed of maintenance, and it was argued that the aforesaid deed was complementary to the deed of surrender and the two together had the effect of dividing the estate. This argument was sought to be further buttressed up by placing reliance on the compromise decree in Money Suit No. 382 of 1907 (Ext. A) and it was contended that the latent idea of division of the estate was made patent by the compromise decree and there was a factual division of estate under the said decree. This argument does not appeal to us. In the first place a reservation of a small sum as allowance or maintenance for the widows will not make invalid a surrender otherwise bona fide. This is. the view expressed by D. N. Mitter and Paterson, JJ. in AIR 1936 Cal 392 (Supra) and we respectfully agree with the view. In the next place we do not find any justification for the criticism that the deed oi maintenance (Ext. 2) was made in consideration of the surrender deed (Ext. 1). The two deeds, in our opinion, were independent transactions and one had nothing to do with the other. Lastly, the criticism that in Ext. A (the solenama) the agreement to divide the estate took its final shape is a misconceived argument. Ext. A did not confer on the widows anything more than a life estate and there was no reason why the widows should be parties to divide the entirety of their life estate for the purpose of obtaining the same life estate again. It is conceivable that a limited owner may become a party to a device for the purpose of obtaining an absolute estate in a portion of the former limited estate, by at first surrendering the limited estate in favour of the next full owner and receiving back from him a portion of the selfsame estate in absolute right. That was not the case here and we repel the criticism that the surrender was in effect a device to divide the estate with the full owner.
(3.) It was lastly contended that the surrender was not in favour of the next reversioner but in favour of remote reversioners and as such bad. It is no doubt true that Lalit and Rashbehari were remoter reversioners than Bonomali who was the next full heir. It is in evidence that Bonomali joined with Kadambini and Sitamani in executing the Arpannama (Ext. 1). Therefore, the Arpannama in favour of the remoter reversioners was with the consent, approval and support of the immediate reversioner. The Court below relied on the Full Bench decision, reported in Nobokishore v. Harinath, ILR 10 Cal 1102 (FB) in which Garth, C. J. Observed as follows:-- "But, if it is once established, as a matter of law, that a widow may relinquish her estate in favour of her husband's heir for the time being, it seems impossible to prevent any alienation, which the widow and the next heir may thus agree to make. And it seems equally impossible to deny, that for a long series of years this Court has treated and considered such alienation as lawful. See Shama Scondurce v. Shurnt Chunder Dutt, 8 Suth WR 500 (Jackson and Dwarkanath Mitter, JJ.), Mohunt Kishen Goer v. Busgeet Roy, 14 Suth WR 379, (Bayley and Markby, JJ.), Gunga Pershad Kur v. Shumbhoonath Barman, 22 Suth WR 333 (This last case was decided by Mr. Justice Romesh Chunder Mitter, sitting alone, but was appealed under the Letters Patent and confirmed on appeal by Sir Richard Couch and Mr. Justice Ainslie--Letters Patent Appeal 1990 of 1873). Besides these reported cases, which represent a long current of authority in this Court, there are also several unreported cases to the same effect; and the doubt which has arisen in later, days is not so much as to the correctness of these authorities, as upon the question whether a conveyance by the widow, with the consent only of the next reversionary heir, is equivalent to a relinquishment by the widow in favour of such an heir, or a conveyance by them both to some third person. To allow the widow to relinquish her estate to the next male heir of her husband, is one thing; but to allow her to sell the whole inheritance, without any legal necessity, merely with the consent of the next male heir, so as to bar the rights of other heirs of her husband in the future, is another thing. I confess, if we were now considering this last question for the first time, I should have great doubt whether the mere consent of the next heir to an absolute transfer by the widow ought to give such effect to that transfer, as to make it valid as against the person who may be the heir of the husband at the time of the widow's death. I would, of course, bind the person so consenting to it, and all persons claiming under him, but whether it ought to bind any other heirs of the husband is another matter. But it seems to me that there is such a long course of authority in this Court in favour of both propositions, that we cannot, and ought not, at the present day to decide the contrary, (see Rajbullub Sen v. Oomesh Chunder Rooz, ILR 5 Cal 44, Jackson and Tottenham, JJ., and Trilochun Chuckerbutty v. Umesh Chunder Lahiri, 7 Cal LR 571, Prinsep and Maclean, JJ. We must not forget, that upon the faith of these authorities many thousands of estates have been bought and sold in Bengal during the last twenty years; and I think, that we should be doing a grievous wrong to the purchasers of those estates, if we were to overrule the law thus laid down by this Court for a great many years, and so disturb the titles which have been acquired upon the strength of that law.";