Chinnaswami Pillai and Others vs Appaswami Pillai and Others

Sadasiva Aiyar, J.—The plaintiffs are the appellants. On the date of the, suit they were the reversionary heirs of one Chandram Pillai who

died in about 1890 leaving a widow as his next heir and a daughter as the next expectant heir after the widow. A son was born to the daughter in

1893. When he was a year old the widow and the daughter executed the surrender-deed Exhibit I, dated 2nd April 1894 in his favour, he being

represented by his father and guardian, the 1st defendant. That document was a complete surrender of all the rights of the two executants in the

estate of the last male owner Chandram Pillai. But there is a provision in the document that the 1st defendant as guardian of his infant son and the

infant himself after he attained majority, should protect the two executants, meaning evidently that they should be maintained. The infant died about

2 years afterwards, say in 1896, and the plaintiffs now sue for the recovery of the properties from the 1st defendant, the widow and the daughter

having died. The. question is whether the deed of surrender, Exhibit I, accelerated the inheritance to Chandram Pillai''s estate of the 1st

defendant''s infant son and made him the full owner of the property on that date.

That a widow could surrender her limited interest in her husband''s estate to the next reversioner so as at once to vest the property in the next

reversioner is now settled law, provided that the whole estate is surrendered. The point argued for the appellants is that the present case is not a

surrender by the widow to'' the next reversionary heir but it is a surrender by the widow and the next reversionary heir who is also a female to the

second reversionary heir. Even as regards this question I think there are observations in Mulugu Kotayya and Others Vs. Mudigonda

Chandramowli Sastri and Others, (See also Protap Chunder Roy Chowdhry v. Sreemutty Joy Monee Dabee Ghowdhrain (1864) 1 W.R. 98

which establishes the rule of law that a surrender by a widow with the consent of the next female heir to the secondary male heir can be treated as

a joint surrender by both and that such a joint surrender might be treated as a surrender by the widow to the next female heir which vests the

property in the next female heir for a moment and an immediate surrender of the property so vested for a moment in the next female heir by the

latter to the next male heir, the result being to vest an absolute title in the secondary male heir. Next, it is objected that if the widow reserves any

benefit for herself when making the surrender, the surrender is not one made in good faith in consonance with the principles of Hindu Law and

hence it is invalid. In the present case the widow stipulated that the male reversioner''s guardian and the male reversioner after attaining majority

should support herself and her daughter. Taking first the provision for her own maintenance I do not think that a stipulation for her own

maintenance by a widow can affect the legal result of the surrender. The language of the judgment in Sriramulu Naidu v. Andalammal ILR (1906)

Mad. 145 suggests that if a widow making a surrender imposes on the reversioner nothing more onerous than the obligation to maintain the widow,

such a surrender would be valid and would vest the title in the reversioner. This is also in conformity with the principles of Hindu Law, a surrender

being allowed by that Law, as stated by Seshagiri Aiyar, J., in Nachiappa Gounden v. Rangasami Gounden (1918) 28 M.L.J. 1 in order to give

relief to female heirs (supposed to be incapable of prudent management) in respect of the management of the property. The theory that a widow

becomes civilly dead when she makes a surrender has no basis in any text of Hindu Law. The loose expressions in some judgments as to a widow

being civilly dead when read with the context can mean only that the next reversioner succeeds in such a case as if the widow died at the moment

of surrender. She neither actually nor civilly dies then. This is also clear from the expression about civil death being followed in one of the

judgments by the illustration based upon the widow''s re-marriage. A woman who surrenders is clearly not civilly dead for any other purpose than

for the purpose of bringing in the next reversioner as heir at once to her husband''s estate-. She continues to own her stridhanam and the obligation

of all persons who take her husband''s estate to maintain her which is an absolute obligation thrown by the Hindu Law cannot be destroyed by her

surrender thereof. She does not become a Sanyasi because she surrenders her husband''s estate. She is entitled to acquire properties, to retain her

stridhanam and to bring suits and she remains competent to enter into contractual and other legal obligations.

Then coming to the provision for the maintenance of the daughter, the daughter is not, (like the widow) under the Hindu Law obliged even as a

moral obligation to starve and stint herself because her father is dead and she inherits her father''s property. The extension of the doctrine of the so-

called life-estates from the widow to the other female heirs is itself an unwarranted extension of the commentators which however being the present

law could not be criticised to any useful purpose. When adaughter surrenders to the next reversioner it is arguable that even she should surrender

the whole estate and should not retain any portion of the estate of the last male owner to herself in order to vest the full ownership in the next

reversioner. But the principle on which it was held in Sriramulu Naidu v. Andalammal ILR (1906) M. 115, that if the widow imposes any onerous

obligations upon the surrenderee for her own benefit or for the benefit of her servants or for charity, the surrender is not valid, does not apply to

the daughter who inherits as heir. The only condition which can be imposed on principle upon any female heir other than the widow is that the

surrender should be of the whole estate. Whether, therefore, the case in Ghella Subbiah Sastri v. Palury Pattabhiramayya ILR (1908) Mad. 446

which went further than the''decision in Sriramulu Naidu v. Andalammal ILR (1906) M. 115 and which held that the imposing of an obligation upon

a reversioner to convey back a portion of the property to the widow''s brother did not invalidate the surrender can be supported or not--in paren-

thesis I may here state that that case and the case of Karchi Brahmanaikudu Vs. Karchi Mahalakshmi and Others, have been followed even to that

extent by a very recent case, Gopali Krishnayya v. Gangayya 6 (Appeal 373 of 1915) decided by Abdur Rahim and Srinivasa Aiyangar, JJ.--I am

clear that the act of a daughter who being next heir, surrenders the whole estate, vests the absolute inheritance in the next male heir even if she

received consideration for her surrender of the full enjoyment of the property during her life-time.

It follows that the Second Appeal fails and is dismissed with costs.

Napier, J.

I agree that this Second Appeal fails.

I have had considerable difficulty during the hearing of this appeal in ascertaining what are the true limits laid down in the cases to the right of

surrender. I think that it is clear on the latest authorities that the surrender need not be definitely to the next heir if that next heir agrees to be passed

over. That has been decided in Mulugu Kotayya and Others Vs. Mudigonda Chandramowli Sastri and Others, and in Munugarra Satyalakshmi

Naraya and Another Vs. Munugarra Jagannadham and Others, and it seems to me to be immaterial whether the next heir is a party to the deed of

surrender or executes a deed of surrender for herself or simply consents to being passed over. The difficulty 1 have found is on the question

whether an agreement for maintenance by the person who is passed over is sufficient to invalidate the transaction. Now, it is perfectly clear that,

according to the school of thought which is to be found in the reasoning of Mr. Justice Sankaran Nair in Challa Subbiah Sastri v. Palury

Pattabhiramayya ILR (1908) Mad. 446 it is absolutely immaterial what reservations are made at the time of surrender by a widow or indeed by

any person surrendering. The view taken by him is that you have to treat the document of surrender by itself, and when once the estate is vested it

is immaterial whether or not by a contemporaneous agreement provision is made for returning even a greater portion of the estate to a person who

may not even be in any way connected with the original holder, Sankaran Nair, J., treats it as being analogous to an adoption with a

contemporaneous agreement to transfer. Whether that analogy is sound,--and arguments by analogy are frequently dangerous--I cannot but view

with alarm the proposition which comes to this that a person holding a limited interest can enter into an arrangement with the then existing next heir

who may be in impecunious circumstances and prepared to lend himself to any arrangement for the sake of some ready money, by which the

greater part of the property will be diverted from the person who at the falling in of the estate would be entitled to the whole. As my learned

brother has pointed out this view has been accepted in the case reported in Karchi Brahmanaikudu Vs. Karchi Mahalakshmi and Others, , and in

Appeal. No. 373 of 1915, Speaking for myself, if such an invasion on the whole doctrine of surrender is to receive the sanction of the Court, I

should like to see it so laid down by a Full Bench of this Court.

There is however a, modified rule to be spelt out from these cases which might be that where the arrangement, although retaining a benefit for

the person surrendering or even conferring a benefit on some person not entitled, is an obviously fair and just arrangement for the maintenance and

benefit of the person surrendering, then the doctrine that such a surrender is not vitiated by the arrangement should be upheld. But that is not the

view taken by a very eminent Hindu Judge of this Court, Subramania Aiyar, J. in Sriramulu Naidu v. Andalammal ILR (1906) Mad. 145. He never

considers this aspect of the case at all, and he lays down that if the surrender is coupled with onerous conditions thrown on the person whose

estate is accelerated liabilities which are not such as would naturally devolve on him, in connection with persons to be benefited that surrender is

bad. The cases he mentions are conditions not only for the maintenance of the transferor, who was in that case a widow, but also a condition to

pay a sum of money to certain dependents and to maintain a charity for all time at certain expense and on her death to make payments of different

amounts aggregating to 1/4th of the estimated value of the properties. This, as far as I gather from the language used by him in his judgment in

Challa Subbiah Sastri v. Palury Pattabhiramayya ILR (1908) Mad. 446 would have been upheld by Sankaran Nair, J., as a good surrender,

Taking, therefore, this narrower view of Subramania Aiyar, J., and applying it to this case as we are asked to do, do the facts fall within the

mischief of the doctrine ? My learned brother is of opinion that a surrender by a daughter reserving the right of maintenance would be good

although there is not the direct legal liability for the support of a daughter incumbent on the estate. I hesitate to express a definite opinion on that

point. But the facts of this case being that the reservation was made by both the widow and the daughter in the deed of surrender and that it was

for She protection and maintenance of the mother of the infant child in whose favour the surrender was made, I am inclined to think that such'' a

reservation is not within the mischief of the doctrine laid down by Mr. Justice Subramania Aiyar, and it would certainly be covered by the

suggested modification of the rule laid down in Ghalla Subbiah Sastri v. Palury Pattabhiramayya ILR (1908) Mad. 446.

For these reasons I concur in holding that the appeal should be dismissed with costs.