Case: Natvarlal Punjabhai And Another Vs. Dadubhai Manubhai And Others

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 husbands estate can, if she likes, stipulate for a right to be maintained out of the properties for 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 one (Vide Sureswar Misra v. Maheshrani, 47 I.A. 233.). Mr. Ayyangar argues that a widow, who requires to be maintained out of her husbands 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 posthumous son and the fiction is that he was in existence from before the date of the proprietors 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 not warrant in Hindu law for the proposition that in case of alienation by a Hindu widow of her husbands 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 surrenderee must take it subject to such prior interest. Sulaiman J. in the Allahabad case (Vide Lachmi Chand v. Lachho, I.L.R. 49 All. 334.) cited above enunciated the law with perfect precision when he said that the effect of an alienation by a widow is not to split up the husbands 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 not part of the widows 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.22. The second ground upon which the Madras decisions purport to be based is manifestly untenable. The widow herself 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 not 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 reversioner were a grantee from the widow, he would not only have been estopped from challenging the alienation during her lifetime, but would have been equally estopped from challenging it after her death; admittedly that is not the case (Vide I.L.R. 49 All. 334 at 346.). 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 estopped can possibly be founded on the receipt of such benefit.23. Coming now to the third ground, it certainly true that a surrender is a voluntary act on the part of the widow and she 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 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 widows 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 reversioners right of recovering possession of the property during the widows lifetime on the 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 legalized 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 reversioners their full legal rights.24.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]The word "surrender" cannot be said to be free from ambiguity. If 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 widows 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 Jimutabahans 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 herEnglish law the reversioner or remainder man 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 husbands estate, though her powers of alienation are curtailed and the property after her death goes not to her but to her husbands 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 widows death. The widows 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 husbands estate altogether. If she does that, the consequence is the same as if 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 fundamental basis of the doctrine of surrender can be said to be established beyondsurrender 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 thesurrender conveys nothing in law and merely causes extinction of the widows rights in her husbands 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 missions of the widow which are not binding on the husbands estate. They are in reality dependent upon the widows estate and if the widows estate is extinguished by any means known to law, e.g., 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 husbands 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 available only against the widow and not against the husbands heirs, the husbands estate still remain undestroyed and the widow may withdraw herself from that estate leaving it open to the reversioners to asks 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,second ground is, that as the widow herself is incapable 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 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.