Appeal No 12 of 1953
Appeal from the Judgment and Decree dated the 31st March 1949 of the High Court of Judicature at Bombay Chagla CJ Weston and Dixit JJ in First Appeal No 175 of 1946 arising out of the Judgment and Decree dated the 28th February 1946 of the Court of the Civil Judge Senior Division at Broach in Special Suit No 9 of 1941
K section Krishnaswamy Aiyangar H J Umrigar with him for the appellants
C K Daphtary Solicitor General for India J B Dadachanii with him for respondents Nos
I and 2 1953
November 18
The Judgment of the Court was delivered by MUKHERJEA J
This appeal is directed against a judgment and decree of the Bombay High Court dated the 31st March 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 bet ween the parties centres 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 341 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
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
Jijibhai       Tribhovan Kashibhai  died in 1914   Mathurbhai   diedin 1924 Shankarabhai Rukmini Hirabai died in 1922 Manubhai  Bai Kashi husband  widow  unjabhai Deft No 3  died in 1931          Natvarlal Ravajibhai Dadubhai RajiniKant Deft No 1 Deft
No 2 Piff1 Plff 2 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 26th January 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 342 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 November 29 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 4th July 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 25th July 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
343 Rukmini died soon after that and her two sons who were then minors represented by their father as next friend pre ferred 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 there after 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 rever sioners
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 I 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 I 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 CJ and Dixit J
The learned Judges by their judgment 344 dated the 23rd January 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 iWhether the plaintiffs proved the deed of surrender dated 30th January 1941  and iiWhether 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 con sisting of Chagla CJ 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 34 5 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 bedore us by the defendants 1 and 2 in this appeal
The arguments advanced by Mr Krishnaswami Ayyangar who appeared in support of the appealcan 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 ab solutely 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 accele 346 rates 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 death1
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 vs Golap Bhagat3 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 commenta tor 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 1 Vide Dayabhag Chap
II section 1 paragraph 56
2 Dayabhag Chap
II section I paragraph 59
3 at 771
347 India
But it Must be noticed that though certain terms and expressions of English law have been made use of in a some what 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 suc cession 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 al together
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 Gounden1 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 1 46 IA 72 at 79
348 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 widow an 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
 Thus surrender is not really an act of alienation of the widow of her rights in favour of the reversioner
The rever sioner 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 eg 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 about2
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 Court3 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 1 ILR 39 Mad 1035
2 See Vytla Sitanna vs Mariwada 61 IA 200 207  Mumareddi vs Pitti Darairaja  661
3 Vide Damaraju vs TNarayana ILR1941 Mad551557
349 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 self effacement 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
 As surrender conveys nothing in law and merely causes extinction of the widow s rights in her husband s estate there is no reason why it should be necessary that the estate must remain with the widow before she could exercise her power of surrender
The widow might have alienated the property to a stranger or some one might have been in adverse possession of the same for more than the statutory period
If the alienation is for legal necessity it would certainly be binding upon the estate and it could not be impeached by any person under any circumstance
But if the alienation is not for legal necessity or if a squatter has acquired title by adverse possession against the widow neither the alienation nor the rights of the adverse possessor could affect the reversioners  estate at all
These rights have their origin in acts or omissions of the widow which are not binding on the husband s estate They are in reality dependent upon the widow s estate and if the widow s estate is extinguished by any means known to law eg by her adopting a son or marrying again these rights must also cease to exist
The same consequences should follow when the widow withdraws herself from her husband s estate by an act of renunciation on her part
Whether any equitable principle can be invoked in favour of a third party who has acquired rights over the property by any act or omission of the widow may be a matter for consideration
But the learned counsel for the appellants is not right when he says that as adverse possession extinguished the rights of the widow no fresh extinction by an act of surrender was possible
As the rights acquired by adverse possession are 350 available only against the widow and not against the hus band s heirs the husband s estate still remains undestroyed and the widow may withdraw herself from that estate leaving it open to the reversioners to take possession of it at once as heirs of the last male holder unless there is any other rule of law or equity which prevent them from doing so
The first branch of the appellants  contention cannot therefore succeed
This leads us to the other branch of the appellants  contention and the question arises whether in case of sur render by a Hindu widow a person who has prior to the date of surrender acquired by adverse possession an inte rest in the widow s estate can be ousted from possession of the property so long as the widow remains alive This question Mr Ayyangar argues should be answered in the negative
His contention in substance is that by reason of adverse possession for more than 12 years the title of the limited owner became extinguished under article 28 of the Limitation Act and the possessor acquired good title against the widow
This title it is said cannot be displaced by the surrenderee who gets the property by reason of a subsequent voluntary act on the part of the widow
In support of this contention the learned counsel has placed reliance upon a number of cases principally of the Madras High Court where it has been held that a reversions in whose favour a surrender has been made by the widow cannot challenge the right of a prior alienee from the widow even though the alienation was not for legal necessity so long as the widow remains alive and the same protection could be claimed by one who acquired the limited interest of a widow by adverse possession against her
It is undisputed that there is considerable divergence of judicial opinion on this point and in these circumstances it is necessary to examine briefly the different lines of reasoning adopted by the different High Courts in dealing with the subject
In Subbamma vs Subramanyam4 which can be taken to be the leading pronouncement of the Madras High Court 1 ILR 39 Mad
351 on the point it was held that a surrender by a Hindu widow could not affect prior alienations made by her and even though such alienations might not be binding on the reversions as not being made for a proper or necessary purpose they are binding on the widow for her life time or at any rate during the period of her widowhood
In deciding this case the learned Judges relied mainly upon an earlier decision of the same court in Sreeramulu vs Kristamma1 where the view taken was that an alienation not for legal necessity made by a Hindu widow prior to adopting a son could not be challenged by the adopted son so long as the widow remained alive
In other words the effect of a surrender by a Hindu widow was treated to be the same as that of an act of adoption by her
Two years later a Full Bench2 of the Madras High Court overruled the decision in Sreeramulu vs Kristamma1 and held that where a Hindu widow alienated property for a purpose not binding on the inheritance and thereafter adopt ed a son the right of the adopted son was not prejudiced by the unauthorised transfer and he could sue for possession at once
Although the Full Bench overruled the decision in Sreeramu vs Kristamma1 which was relied on as an authority in Subbamnia s case3 yet the law enunciated in the latter case as regards the effect of surrender on previous alienations made by the widow was not dissented from and Kumaraswami Sastriyar J who was one of the Judges com posing the Full Bench
in the course of his judgment expressed the view that the adoption of a son by a Hindu widow to her husband was quite different from surrender in favour of the reversions and to a relinquishment by the widow based on no consideration of duty to her husband or his spiritual benefit courts could very properly refuse to annex rights to defeat prior alienations made by her
1 2 Vide Vaidyanatha Sastri vs Savithri ILR 3 ILR 39 Mad
352 This view was approved in Sundarasiva vs Viyyamma1 and has been accepted since then as good law in all the subsequent cases2 of the Madras High Court
The Madras High Court has also expressly held that the position of a person who has acquired by adverse possession the limited interest of a Hindu widow is exactly the same as that of an alienee from her and if the title of such person has been completed already it could not be defeated by a surrender made by the widow1
These decisions undoubtedly support the appellants  case
In the Calcutta High Court the question was raised in Prafulla Kamini vs Bhabani4 as to whether a gift made by widow prior to surrendering her husband s estate could be challenged by the reversioner during the period of the widow s life
The two Judges constituting the Bench differed in their opinion and whereas Walmsley J held that the gift was valid for the period of the widow s life Page J on the other hand after an elaborate discussion of the law relating to the legal affect of a widow s surrender came to the conclusion that the reversioner became immediately entitled to recover possession from the donee
In view of the difference of opinion between the two Judges there was an appeal filed under clause 15 of the Letters Patent but the point in controversy was not decided by the Letters Patent Bench
The matter again came up before another Bench of the Calcutta High Court consisting of D N Mitter and Rao JJ5
Both the Judges concurred in holding that the view expressed by Page J in the earlier case was right and that on a surrender by the Hindu widow of her husband s estate and the consequent extinguish 1 ILR 2 Vide the oases collected in Arunachala vs Arumugha ILR 3 Vide Kamiraju vs Singaraju AIR 1935 Mad 664 Korabala vs Ratala AIR 1951 Mad 753
4 5 Vide Ram Krishna vs Kausalya 353 ment of her interest therein all prior alienations in excess of her power were liable to be challenged by the reversioner immediately on the surrender taking effect just as they could be impeached if the widow died a natural death
In the judgment under appeal the Bombay High Court has substan tially accepted the view taken by the Calcutta Judges in the case referred to above
In the Allahabad High Court a Division Bench consisting of Boys and Sulaiman JJ
took a view similar to that of the Madras High Court in Lachmi vs Lachho1
Boys J in course of his judgment observed The doctrine of surrender having been imported into the Hindu law by judicial decision we are entitled to import the complementary rule essential to the prevention of fraud that the widow cannot by making a surrender defeat rights created by herself and creation of which was within her authority Sulaiman J on the other hand was very critical of this view and he expressed his own opinion2 as follows I find great difficulty in discovering any true basis for holding that though the reversioner in whose favour the surrender has taken place has succeeded to the estate of the last male owner and derives title from him he is nevertheless 1stopped from challenging any alienations made by the Hindu widow during her lifetime as if he were a grantee from her In spite of these observations however the learned Judge agreed with Boys J in the conclusion arrived at by the latter principally on the ground that it would not work any hardship if the reversioner in whose favour the surrender is made were to take the property subject to the transfers made by the widow so as to allow the transfers to remain valid for her lifetime
There has however been a definite change in the 1 ILR 49 All 334
2 ILR 49 All 334 346
354 view taken by the Allahabad High Court since then and in a very recent pronouncement1 of that court the learned Judges have expressly approved of the decision of the Calcutta High Court which is in entire agreement with the opinion actually expressed by Sulaiman J as stated above
So far as the Patna High Court is concerned the case of Basudeo vs Baidyanath2 was decided sometime before the case of Ram Krishna vs Kausalya3 was heard by the Calcutta High Court and the learned Judges without examining the principles of law independently followed the Madras autho rities which had at that time been accepted by the Allahabad High Court
An analysis of the Madras decisions referred to above upon which the learned counsel for the appellant places his reliance will show that the grounds upon which they purport to be based are of a threefold character
The first is that an alienation of property by a Hindu widow in excess of her powers though not binding on the inheritance creates in the alience an interest commensurate with the period of her natural life
A part of the interest it is said is severed from the husband s estate when there is an alienation by the widow and the reversioner when he takes the estate on surrender takes it subject to the interest already created
A person who has acquired the widow s interest by adverse possession against her occupies according to the Madras decisions as stated above the same position as an alienee from the widow
The second ground is that as the widow herself is in capable of disputing the title of the alienee or of the person who has acquired interest by adverse possession against her a like disability attaches to the reversioner also who could not have obtained the properties but for the surrender made by the widow
The third ground assigned is that the law of 1 Vide Raghuraj Singh vs Raba Singh AIR 1952 All 875
2 AIR 1935 Pat
3 355 surrender being a judge made law the courts in recognising the right of surrender by a Hindu widow can and ought to impose conditions on the exercise of her power based on considerations of justice equity and good conscience and surrender being a purely voluntary act on the part of the widow she could not be allowed by her own act to prejudice the interests which she had already created
The first line of reasoning mentioned above is based upon the dictum of Bhashyam Ayyangar J in Sreeramulu vs Kristamma1 which though accepted in ubbamma s case1 was expressly dissented from in the subsequent Full Bench decision in Vaidyanatha vs Savithri3
This view in our opinion proceeds upon a misconception regarding the true nature of a Hindu widow s estate and the rights and duties which vest in her under the Hindu law
Though loosely des cribed as a life estate the Hindu widow s interest in her husband s property bears no analogy to that of a life tenant under the English law
As was pointed out by the Judicial Committee1 as early as 1861 the estate which the Hindu widow takes is a qualified proprietorship with powers of alienation for purely worldly or secular purposes only when there is a justifying necessity and the restrictions on the powers of alienation are inseparable from her estate
The restrictions as the Judicial Committee pointed out which are imposed on the Hindu widow s powers of alienation are not merely for the protection of the material interest of her husband s relations but by reason of the opinion expressed by all the Smriti writers that the Hindu widow should live a life of moderation and cannot have any power of gift sale or mortgage except for religious or spiritual purposes
The Hindu law certainly does not countenance the idea of a widow alienating her property without any necessity merely as a 1 2 ILR 39 Mad 1035
3 ILR 41 Mgad
4 Vide Collector of Masulipatam vs Cavaly Venkata 8 MIA 529
356 mode of enjoyment as was suggested before us by Mr Ayyangar
If such a transfer is made by a Hindu widow it is not correct to say that the transferee acquires necessarily and in law an interest commensurate with the period of the natural life of the widow or at any rate with the period of her widowhood
Such transfer is invalid in Hindu law but the widow being the grantor herself cannot derogate from the grant and the transfer cannot also be impeached so long as a person does not come into existence who can claim a present right to possession of the property
As in the majority of cases persons with such rights come into existence only when the widow dies it is generally said that the alienee gets the estate for the term of the widow s life
We think that the legal position has been correctly indicated by Kumaraswami Shastriyar J in the Full Bench case1 referred to above
On the one hand a Hindu widow has larger rights than those of a life estate holder inasmuch as in case of justifying necessity she can convey to another an absolute title to the properties vested in her
On the other hand where there is no necessity for alienation the interest which she herself holds and which she can convey to others is not an indefeasible life estate but an estate liable to be defeated on the happening of certain events which in Hindu law cause extinction of the widow s estate
Remarriage by the widow is one such event which completely divests her of any interest in her husband s property
Adoption of a son to her husband is another circumstance which puts an end to her estate as heir to her husband the effect of adoption being to bring in a son who has prior claims to succession under the Hindu law
In both these sets of circumstances it is not disputed that prior rights derived from the widow if not supported by legal necessity could be defeated by the next heir of the husband or the adopted son as the case may be
If the effect of surrender as explained above is to destroy the widow s estate in the same way as if she suffered physical or civil death there is no conceivable reason why the reversioner should not subject to any question of fraud or collusion that might arise be in a position to recover possession of the properties from 1 Vide Vaidyanatha vs Savithri ILR 357 an alienee from the widow or from one who has obtained title by adverse possession against her as none of them could acquire rights except against the widow herself
Kumaraswami Shastriyar J is of opinion1 that a surrender stands on a different footing from adoption by a widow
According to the learned Judge the surrender by the widow and the acceptance of the estate by the reversioner are purely matters of contract
The widow is not bound to surrender the estate nor is the reversioner bound to accept it except on terms which would apply to any other transfer of immovable property so far as prior alienees are concerned
This in our opinion involves a total misapprehension of the nature and legal effect of surrender by a Hindu widow as we have already explained
Surrender is not alienation of an interest of the widow in favour of the reversioner and no acceptance by the reversioner is necessary as a condition precedent to the vesting of the estate in him
The estate vests in the reversioner under operation of law without any act on his part
It is also difficult to see why the learned Judge looked upon surrender as a matter of contract between the widow and the reversioner
It is true that the widow at the time of surrendering her husband s estate can if she likes stipulate for a right to be maintained out of the properties for her lifetime but reservation of such small benefit absolutely necessary for her maintenance does not invalidate a surrender as has been held by the Privy Council in more cases than one1
Mr Ayyangar argues that a widow who requires to be maintained out of her husband s property cannot be said to have suffered death
But this argument is fallacious
Nobody says that the surrendering widow actually dies
It is a fiction of law pure and simple and it is for the law to determine under what circumstances this fiction of natural or civil death would arise
There is such a legal fiction involved in adoption also when a son is adopted by a widow subsequent to the death of her husband
Such adopted son is given the rights of a posthumous son and the fiction is that he was in existence from before 1 Vide Vaidyanatha vs Savithri ILR at 99
2 Vide Sureswar Misra vs Mahesarani 47 T A 233
358 the date of the proprietor s death although the fact is otherwise
So far as the legal consequences are concerned there is no material difference between an adoption and an act of surrender by the widow
In our opinion there is no warrant in Hindu law for the proposition that in case of alienation by a Hindu widow of her husband s property without any justifying necessity or in the case of a stranger acquiring title by adverse possession against her the interest created is to be deemed to be severed from the inheritance and if a surrender is made subsequently by the widow the surrenders must take it subject to such prior interest
Sulaiman J in the Allahabad case1 cited above enunciated the law with perfect precision when he said that the effect of an alienation by a widow is not to spilt up the husband s estate into two parts or to give to the alienee an interest necessarily co extensive with her lifetime
The reversionary right to challenge it is no part of the widow s estate at all and therefore could not be surrendered to the reversioner
The first line of reasoning therefore seems to us to be of no substance
The second ground upon which the Madras decisions purport to be based is manifestly untenable
The widow her self may be incapable of derogating from her own grant and disputing the alienation which she has herself made but as has been said already surrender is not an alienation and as the reversioner does not derive his title from her there is no principle of law under which the acts of the widow could bind him
As Sulaiman J pointed out in the case just referred to that if the reversion were a grantee from the widow he would not only have been stopped from challenging the alienation during her lifetime but would have been equally estopped from challenging it after her death admittedly that is not the case1
It is true that the surrender benefits the reversioner but the benefit comes to him under the provision of general law as a result of self effacement by the widow
No estoppel can possibly be founded on the receipt of such bene 1 Vide Lachini Chand vs Lachho ILR 49 All
2 Vide ILR 49 All
334 at 346
355 Coming now to the third ground it is certainly true that a surrender is a voluntary act on the part of the widow and she is under no legal or moral obligation to surrender her estate
Instances do arise where an alienee has paid valuable and substantial consideration for a property on the expectation of enjoying it so long as the widow would remain alive and his expectations have been cut short by a surrender on the part of the widow which no doubt benefits the reversioner in the sense that he gets the inheritance even during the widow s lifetime
On the other hand a person who takes transfer from a Hindu widow acts with his eyes open
If the transfer is without any legal necessity there is a risk always attached to the transaction and there is no law as we have already explained which secures to him necessarily an estate for life
A man making a purchase of this character is not expected to pay the same value which he would pay if the purchase were made from a full owner
Be that as it may even assuming that the court is not incompetent to impose conditions on the reversions  right of recovering possession of the property during the widow s lifetime on grounds of equity justice and good conscience in proper cases it is clear that in the case before us no equitable considerations at all arise
The appellants are not alienees from the widow  they came upon the land as trespassers without any right and it is the law of limitation that has legalised what was originally a clear act of usurpation
They have enjoyed their property since 1925 and as the title which they have acquired is not available against the reversionary interest we do not see any reason sanctioned by law or equity for not allowing the reversions their full legal rights
The result is that in our opinion the decision of the High Court is right and this appeal must stand dismissed with costs
Appeal dismissed
Agent for respondents Nos
I  2  A C Dave


Summary:
Where a Hindu widow surrenders her widow s estate to the reversioners after a third person has acquired title to the properties by adverse possession against her the reversioners are entitled to recover possession of the properties from that person immediately as heir s of the last male holder
The person in adverse possession is not entitled to remain in possession till the death of the widow
So far as the legal consequences are concerned there is no material difference in this respect between an adoption and an act of surrender by the widow
As a surrender by a Hindu widow does not convey any title to the reversioners but is only a voluntary act of self effacement by the widow she can make a valid surrender under Hindu law even after another person has acquired title by adverse possession against her
The reversioners do not take the property subject to the rights created by the widow
Surrender by the widow and acceptance by the reversioner are not matters of contract
The estate vests in the reversioner by operation of law without any act of acceptance on the part of the reversioner
LBD2SCI 8a 340 The view that as the widow herself is incapable of disput ing the title of alienee or of the person who has obtained title by adverse possession a like disability attaches to the reversioner is also unsound as the reversioner does not derive title from the widow even in the case of a surrender
Assuming that the court has power to impose conditions on the reversioners  right to recover possession during the lifetime of the widow on considerations of equity justice and good conscience and to prevent the widow by her own act from prejudicing the interests she has created no such equitable considerations arise in favour of persons who have come upon the land as trespassers and claim title by adverse possession
Subbamma vs Subrahmanyam ILR 39 Mad
1035 Sundrasiva vs Viyyamma ILR  Arunachala vs Arumuga ILR  Lachmi vs Lachho ILR 49 All 334 and Basudeo vs Baidyanath AIR 1935 Pat
175 disapproved
Ram Krishna vs Kausalya  Raghuraj Singh vs Babu Singh AIR 1952 All 875 approved
Vaidyanatha vs Savitri ILR commented upon