dedol-hf/india-case-legal-rag huggingface dataset:
fact that the widow purports to exercise her right of relin-
quishment of her husband's estate in favour of two  persons,
one of whom is a next heir, but the other, though related to
her  as son-in-law, is a complete stranger so far as  rights
of inheritance are concerned; and there can be no doubt that
she  intended  that her husband's estate should  go  to  the
son-in-law jointly with her own daughter.
    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     the next  heir
of  her husband is now a well-settled doctrine of Hindu  law
which  has  been established by a long  series  of  judicial
decisions. Though the judicial pronouncements cannot be said
to be altogether uniform or consistent, yet there can be  no
doubt as regards the basic principle upon which the doctrine
rests,  namely, that it is the self-effacement by the  widow
or the withdrawal of her life estate which opens the  estate
of the deceased husband to his next heirs at that date.  "It
must be remembered" thus observed the
662
Judicial Committee in Vytla Sitanna v. Mariwada(1) "that the
basis  of  the doctrine. 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: vide
Rangasami  Goundan  v. Nachiappa Goundan(2).   It  would  be
clear from the principle underlying the doctrine of  surren-
der 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, as has  happened  in
the  present  case, 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.  As regards the  strang-
er,  there can be no question of renunciation; the  transac-
tion at the most may be evidence of an intention to confer a
bounty  on  him,  though such intention is  not  clothed  in
proper legal form.
(1) L.R. 61 I.A. 200at 207,       (2) L.R. 41 I.A, 72,
   663
    Mr. Rajah Aiyar made a strenuous attempt to induce us to
hold  that  the document is a composite  document  combining
really  two separate transactions, one, an act of  surrender
by the widow of the entire estate in favour of her  daughter
and the other a transfer of a portion of the interest  which
thus  vested in the daughter in favour of her  husband.   If
the  document could be read and interpreted that way,  obvi-
ously  the decision should be in favour of  the  appellants;
but, in our opinion, there seem to be difficulties and those
of an insuperable character in the way of the document being
interpreted as such.  Neither in form nor in substance  does
the  document purport to be a relinquishment of  the  entire
widow's estate in favour of the daughter alone, nor is there
any indication that the interest intended to be given to the
son-in-law was being received by him by way of transfer from
the daughter.  The document is not one executed by the widow
and  her daughter jointly in favour of the  son-in-law  con-
taining  a  recital of relinquishment of the estate  by  the
widow  in favour of the daughter and transferring a  portion
of the same to the son-in-law. The daughter does not  figure
as  an executant of the deed nor even as an  attesting  wit-
ness.   She  is  the recipient of the deed  along  with  her
husband  and it is impossible to spell out of  the  document
either  that she received the entire estate on  renunciation
by her mother or transferred or even consented to transfer a
portion of it to her husband.
    Mr.  Aiyar  in support of his  contention  placed  great
reliance  upon  the principle enunciated in the  Full  Bench
decision   of  the  Calcutta High Court  in  Nobokishore  v.
Narinath(1)  which was impliedly accepted by  the   Judicial
Committee  in Rangasami Goundan v. Nachiappa Goundan(2).  It
was  held  by the Calcutta High Court in a number  of  cases
which   were  reviewed  and  affirmed  in   Nobokishore   v.
Harinath(1),  that a widow is entitled to sell  or  transfer
the (1) I.L.R. 10 Cal. 1102.      (2) L.R. 46 I.A. 72,
664
entire estate of her husband without any necessity but  with
the consent of the next reversioner so as to bar the  rights
of the actual reversioner at the time of her death. This was
explained  by the Judicial Committee as an extension of  the
principle  of surrender in Rangasami Goundaan  v.  Nachiappa
Goundan(1)  "The surrender, once exercised", observed  their
Lordships,  "in favour of the nearest reversioner or  rever-
sioners,  the  estate became his or theirs, and  it  was  an
obvious  extension of the doctrine to hold that inasmuch  as
he or they were in title to convey to a third party, it came
to  the same thing if the conveyance was made by  the  widow
with his or their consent.  This was decided to be  possible
by  Nobokishore's case(2) already cited. The  judgment  went
upon the principle of surrender, and it might do so for  the
surrender there was of the whole estate: but if.- is  worthy
of notice that the order of reference showed that the alien-
ation was ostensibly on the ground of necessity, so that  it
might  have  been supported on the grounds to  be  mentioned
under the second head above set forth."
     It  would be quite consistent with established  princi-
ples  of law if the widow relinquishes her interest  in  the
husband's  estate  and the reversioner in  whom  the  estate
vests  transfers  the estate either in whole or in  part  to
another  person.  If the transfer is of the  entire  estate,
the two transactions may be combined in one document and the
widow  and the reversioner might jointly transfer the  whole
estate to a stranger but the implication in such cases  must
always be that the alienee derives his title from the rever-
sioner and not the widow. The extension of this doctrine  in
the class of cases of which Nobokishore v. Harinath (2)  may
be  taken  as the type seems to be  rather  far-fetched  and
somewhat anomalous.  In these cases the effect of the  imme-
diate reversioner's giving consent to the alienation of  the
whole  estate  by the widow to a stranger has been  held  to
import  a  double  fiction: the first is the  fiction  of  a
surrender  by the widow in favour of the  consenting  rever-
sioner  and the second is the fiction of
(1) I.L.R, 46 I.A, 72,       (2) I.L,R, 10 Cal 1102.
   665
a  transfer  by  the latter to the  alienee,  although  both
fictions are contrary to the actual facts.  It is  difficult
to say in the first place why a surrender should be presume-
dat  all when the widow gives the property directly  to  the
stranger  and not to the reversioner. Even if this  position
is  assumed,  then also the question arises as  to  how  the
consent of a party can take the place of a conveyance  which
is requisite for the purpose of vesting title in a transfer-
ee.  A consent merely binds the consenting party or  anybody
else  who derives his title from him.  If the actual  rever-
sioner  at the date of the widow's death is the same  person
who  gave  his consent, obviously he can be  precluded  from
challenging the transfer; but if the actual reversioner is a
different  person,  there seems to be no  justification  for
holding that he would be bound by the consent expressed by a
person  who had nothing but a chance of succession  at  that
time  and  which chance did not materialize  at  all.   (See
observations of Mahajan J. in Ali Mohammad v. Mst.  Nughlani
(1).  Sir Richard Garth C.J. in his judgment in  Nobokishore
v.  Harinath  (,2) expressed considerable doubt  as  to  the
propriety  of the view which would make a sale by the  widow
with the consent of her reversioner stand on the same  foot-
ing  as an actual renunciation. But in view of a  series  of
previous decisions of the court he was constrained to accept
that view as correct.
    It may be necessary for this court at some time or other
to  reconsider  the  whole law on this  subject.   It  seems
probable that the Privy Council did not subject the decision
in  Nobokishore's  case to a critical examination  from  the
point of view of the doctrine of surrender, as the  transfer
in that case was upheld on the ground of legal necessity  as
well.   For the purpose of the present case we will  proceed
on  the assumption that the law laid down  in  Nobokishore's
case  is correct. But the doctrine should certainly  not  be
extended  any further. As was felicitously expressed by  Sir
Lawrence  Jenkins,   "The road to the  decision  in  Noboki-
shore's  case  was  not without  its  difficulties  but  the
learned
(1) A.I.R. 1946 Lah. 180 at 188.  (2) I.L.R. 10 Cal. 1102.
666
Judges  felt  it had to be travelled that  titles  might  be
quieted.   But it is settled that there should be no  exten-
sion of this Bengal doctrine": Per Jenkins C.J. in  Debipro-
sad v. Gola Bhagat (1).
    The  present  case obviously does not  come  within  the
purview of the doctrine laid down in Nobokishore v. Harinath
(2)  which presupposes an alienation of the entire  property
in  favour of a stranger to which the immediate  reversioner
was  a  consenting party.  Here it cannot be said  that  the
entire  interest  was transferred to the son-in-law  of  the
widow with the consent of her daughter.  The interest trans-
ferred was a fraction
    the  interest held by the widow and  strictly  speaking,
there  was no consent expressed by the daughter. She  was  a
sort  of a co-assignee with her husband. Mr. Aiyar  contends
that  her consent was implied by her accepting the deed  and
joining  in several subsequent transactions on the basis  of
the same, and once this consent is established we can import
the fiction of surrender in her favour of the entire estate,
and  if  that fiction could be invoked it would  be  only  a
logical extension of the principle in Nobokishore's case  to
hold that a part transfer in favour of a stranger could also
be  validated on the theory of surrender. We are  unable  to
accept  this chain of reasoning as sound.  As stated  above,
it  would  be  most improper to  extend   the  doctrine   in
Nobokishore's  case which is not itself based on sound legal
principles  to  what Mr. Aiyar calls, its   logical   conse-
quence.  We cannot invoke the fiction of  surrender   in   a
case like this when the renunciation, if any, was of a  part
of the estate; and the attempt to validate a part alienation
by  the  widow in favour of a stranger on the basis  of  the
doctrine  of surrender, simply because the  reversioner  has
impliedly  assented  to it, is, in our  opinion,  absolutely
unwarranted.
     It  remains to notice a few decisions of  the  Calcutta
and Bombay High Courts upon which Mr. Rajah Aiyar relies  in
support of his contention. The case of Abhay
(1) I.L.R. 40 Cal. 721 at 781.     (2) I.L.R. 10 Cal. 1102.
 667
Padha  v. Ramkinkar(1), decided by a Division Bench  of  the
Calcutta High Court, seems to be very similar in its'  facts
to the present case, and prima facie it is in favour of  the
appellants. There a Hindu widow executed a 'nadabi patra' or
deed  of release in favour of her husband's brother who  was
the  nearest  reversioner and three sons  of  a  predeceased
'brother  of her husband. After the death of the  widow  the
husband's brother instituted a suit for recovery of  posses-
sion of the entire property denying the rights of his  neph-
ews  under  the deed executed by the widow.   The  suit  was
dismissed  by  both the courts below and this  decision  was
affirmed in second appeal by the High Court.  The point  was
definitely raised before the High Court that the transaction
could  not be upheld on the footing of surrender as  it  was
partly a surrender in favour of the next heir and partly  an
alienation  in favour of certain remoter heirs.  This  point
was  disposed of by Cumming J., who delivered the  judgment,
in the following manner:"
 I  do  not  think that there is  much   substance  in  this
contention.   It  is  a  question  more  of  form  than   of
substance.  If the widow had surrendered the whole estate to
the  reversioner and the reversioner had at the same  moment
made  a transfer of his estate to his nephews nothing  could
be said against the transaction, and this is what in  effect
has been done by the present document."
    We do not know what the contents of the document in  the
case actually were, nor whether the husband's brother joined
in  the execution of the document. Be that what it  may,  we
cannot  for  the reasons already discussed accept  the  view
that  a  transfer made by a widow of her  entire  estate  in
favour  of the nearest reversioner and an  outsider  jointly
would  operate  as a surrender of the whole  estate  to  the
immediate  reversioner and a transfer of a half share in  it
to the stranger. This, of course, is subject to any rule  of
estoppel  that may on proper materials be urged against  the
presumptive  reversioner.  This is precisely the  view  that
has
(1) A.I.R. 1926 Cal. 228.
668
been  taken  by the Allahabad High Court in Mr.  Jagrani  v.
Gaya(1)  and,  in our opinion, this is the correct  view  to
take.
    The  learned  'counsel for the appellants  has  in  this
connection  referred  us to two decided authorities  of  the
Bombay  High  Court. The first is the case of  Yeshwanta  v.
Antu(2), where the widow together with her daughter who  was
the  immediate  heir executed a deed of gift of  the  entire
estate  in  favour of a stranger who was the  husband  of  a
predeceased daughter.  It was held that the transaction  was
valid  on  the basis of the doctrine of  surrender.   It  is
quite clear that this case comes directly within the purview
of the principle enunciated in Nobokishore's case, and there
are  two material facts which distinguish it from  the  case
before  us. In the first place, the reversioner joined  with
the widow in making the transfer in favour of a stranger and
secondly,  the  transfer to the stranger was of  the  entire
estate.  There  can be no difficulty in  construing  such  a
transaction as a valid act of surrender.
    Of the other case which is to be found reported in  Bala
Dhondi v. Baya(3) the facts are somewhat similar to those in
the  present case, but the actual decision does  not  assist
the  appellants.  There  a Hindu widow made a  gift  of  the
entire  estate of her husband in favour of her daughter  and
her  husband  jointly, the daughter being the next  heir  at
that time. The lower appellate court held that the gift  was
a  valid  surrender, but this decision was reversed  by  the
High  Court on appeal and it was held that  the  transaction
was not valid in law inasmuch as it was not a gift in favour
of  the  daughter alone but in favour of her  son-in-law  as
well  who  was  to take jointly with the  daughter.  It  was
further held that the daughter being a minor. was not compe-
tent to consent to the gift in favour of her husband. It  is
true  that there is no question of minority in  the  present
case,  but  the decision certainly is no  authority  on  the
point which we are called upon to
(1)  A.I.R. 1933 All. 856.     (3) I.L.R. 60 Bom.  211.  (2)
I.L.R. 58 Bom. 521.
669
decide. In our opinion, the view taken by the High Court  in
regard to the legal effect of the document (Exhibit P-6)  is
the correct one and the first contention raised by Mr. Rajah
Aiyar should therefore fail.
We  now  come to the other point which  relates  to  the
question of mesne profits. Mr. Aiyar's main contention under
this head is that as an alienation by the widow is not  void
but only voidable and the reversioner can avoid it by choos-
ing to institute a suit, the possession of the alienee could
not be held to be unlawful before that date and consequently
no  mesne  profits should have been allowed for  the  period
prior  to the institution of the suit. The other  branch  of
his  contention is that in respect of property No. 1 of  the
schedule there was only a conditional decree passed  against
defendants  2  and  a and so long as the  condition  is  not
fulfilled by the plaintiffs  depositing the required  amount
in court, the plaintiffs' right to take possession does  not
accrue  and consequently no mesne profits can be allowed  to
them.   In  support of this contention,  reliance  has  been
placed  upon  the decision of the Allahabad  High  Court  in
Banwarilal v. Mahesh(1).
    As regards the first branch of the contention, it may be
pointed  out  that  prior to the decision  of  the  Judicial
Committee  in Bijoya Gopal v. Krishna Mahishi(2)  there  was
some  misconception  regarding  the legal  position  of.  an
alienee of a property from a Hindu widow visa vis the rever-
sioner,  upon  the  death of the widow. It was  held  in  an
earlier case by the Judicial Committee that an alienation by
the  widow  was not void but voidable  and  the  reversioner
might  elect to assent to it and treat it as valid.. It  did
not absolutely come to an end at the death of the widow.  On
the  strength of this decision, it was held by the  Calcutta
High  Court  in Bijoya Gopal v. Krishna  Mahishi(2)  (supra)
that it was necessary for a reversioner to have the  aliena-
tion  set  aside before he could recover possession  of  the
widow's property and the period of limitation for a suit  to
set aside such an alienation was that
(1) I.L.R. 41 All. 63.      (2) I.L.R. 34 Cal. 329,
670
prescribed  by article 91 of the Indian Limitation  Act.  On
appeal  to  the Privy Council, it was pointed out  by  their
Lordships  that this view was based on a  misconception  and
they explained in what sense a transfer by a Hindu widow was
not void but voidable. It was said that the alienation by  a
Hindu  widow does not become ipso facto void as soon as  the
widow  dies;  for, if that were so, it could not  have  been
ratified by the reversioners at all. The alienation,  though
not absolutely void, is prima facie voidable at the election
of  the reversionary heir. He may, if he thinks fit,  affirm
it  or he may at his pleasure treat it as a nullity  without
the  intervention of any court and he can show his  election
to do the latter by commencing an action to recover  posses-
sion  of  the property.  There is in fact  nothing  for  the
court either to set aside or cancel as a condition precedent
to  the right of action of the reversionary heir.  A  rever-
sioner's  suit  for recovery of possession of  the  property
alienated  by  a widow, it is well settled, is  governed  by
article  141 of the Limitation Act, and as it is not  neces-
sary that the transfer should be set aside before any decree
for  possession is made, all that is necessary is  that  the
reversioner  should  file a suit for  possession  within  12
years  from  the death of the widow and a decree  passed  in
such a suit must be on the basis that the possession of  the
transferee  was  unlawful ever since the  widow  died.  This
being  the  position, we think that it is  quite  proper  to
allow the reversioner mesne profits against the alienee from
the date of the widow's death.  There is no rule of law that
no mesne profits can be allowed in a case where the  aliena-
tion  cannot be described as absolutely void. The  decisions
of the Judicial Committee in Bhagwat Dayat v. Debi  Dayal(1)
and  Satgur  Prasad v. Harnarain Singh(2) may  be  cited  as
illustrations  where mesne profits were allowed in  transac-
tions which were only voidable. We think further that  there
is  a  difference  between the alienee of a  widow  and  the
transferee of joint property from a Mitakshara father. A son
of a Mitakshara father is bound to set aside an
(1) L.R. 35 I.A. 48.      (2) L.R. 59 I.A. 147,
671
alienation made by the father within the period laid down in
Article  125 of the Indian Limitation Act and it is only  on
the alienation being set aside that he is entitled to recov-
er  possession  of  the property.  The High  Court,  in  our
opinion, was perfectly right in holding that the decision in
Banwarilal  v. Mahesh(1) which related to a suit  instituted
by  a son against an alienee of the father under the  Mitak-
shara  law does not apply to the facts of the present  case.
It is true that as regards defendants 2 and 3 the decree  is
a  conditional decree and the plaintiff cannot recover  pos-
session  unless  he pays a certain amount of  money  to  the
extent  of  which  the widow's estate has been  held  to  be
benefitted,  but  the High Court has very  properly  allowed
interest  upon this amount to the alienee while  making  the
latter liable for the mesne profits.
    The result is that, in our opinion, the decision of  the
High Court cannot be assailed on either of these two  points
and the appeal therefore fails and is dismissed with costs.
Appeal dismissed.
Agent  for  the appellants: M.S.K. Aiyangar. Agent  for  the
respondents: M.S.K. Sastri.
PETITIONER:
P.D. SHAMDASANI
        Vs.
RESPONDENT:
CENTRAL BANK OF INDIA LTD.
DATE OF JUDGMENT:
21/12/1951
BENCH:
SASTRI, M. PATANJALI (CJ)
BENCH:
SASTRI, M. PATANJALI (CJ)
MAHAJAN, MEHR CHAND
MUKHERJEA, B.K.
DAS, SUDHI RANJAN
AIYAR, N. CHANDRASEKHARA
CITATION:
 1952 AIR   59            1952 SCR  391
 CITATOR INFO :
 R          1954 SC  92  (15)
 F          1956 SC 108  (7)
 D          1959 SC 725  (9)
 RF         1976 SC1207  (55,80)
ACT:
Constitution  of India, Arts. 19(1) (f), 31(1), 32  --In-
fringement of property rights by private individuals--Appli-
cation under Art.32 --Maintainability--Scope of Arts.  19(1)
(f) and 31 (1 ).
HEADNOTE:
   Article 19(1)(f) of the Constitution is clearly intended
to  protect  the  freedom to acquire, hold  and  dispose  of
property  against State action other than in the  legitimate
exercise  of  its power to regulate private  rights  in  the
public interest.  Similarly, article S1(1) provides a  safe-
guard against deprivation of property by the State except by
procedure  established  by  law.   Violation  of  rights  of
property by private individuals is not within the purview of
those articles.
   A  person  whose rights of property are  infringed  by  a
private individual must therefore seek his remedy under  the
ordinary law and not by way of an application under  article
32.
JUDGMENT:
ORIGINAL  JURISDICTION:  Petition No. 328  of  1951.Petition
under article 32 of the Constitution for issue     of  writs
in the nature of certiorari, prohibition and mandamus.   The
facts appear in the judgment.
The petitioner in person.
    C.K.  Daphtary,  Solicitor-General  of  India,   (J.  B.
Dadachanji, with him) for the respondent.
    1951.   December  21.   The Judgment of  the  Court  was
delivered by
    PATANJALI SASTRI.C.J.--This is a petition under  article
32 of the Constitution for the enforcement of the  petition-
er's fundamental rights under article 19 (1) (f) and article
31(1)  alleged to have been violated by the Central Bank  of
India  Ltd., a company incorporated under the Indian  Compa-
nies Act, 1882, and having its registered office at  Bombay,
(hereinafter referred to as "the Bank").
    It  appears that the petitioner held five shares in  the