John Edge, J.

1. This is an appeal from a decree, dated April 6, 1923, of the High Court at Patna, which affirmed a decree, dated June 5, 1922, of the Additional Subordinate Judge of Bhagalpur.

2. The parties to the suit in which this appeal has arisen are Hindus, by caste Rajput, of the district of Bhagalpur, who are governed by the law of the Mitakshara, and the following pedigree shows how they are related:

3. Sir Hariballab Narain Singh died intestate on April 1, 1907, possessed of the Sonbarsa estate, which was situate principally in the district of Bhagalpur and produced an income of about two lacs of rupees a year. On his death his two widows, Maharani Tarabati and Maharani Nowlakhbati, succeeded him in the possession of the estate. On April 30, 1907, the two widows, who were Pardanashin ladies, jointly presented to the Collector of Bhagalpur a petition in which they alleged that the estate was heavily involved in debt, that there were large arrears of income to be collected, and that they were unable to manage the estate, and asked that they should be held under Section 6 of the Court of Wards Act, 1879, to be disqualified proprietors, and should be declared by the Court of Wards incompetent to manage their own property and that the estate should be taken over by the Court of Wards. That application was forwarded by the Collector to the Court of Wards, and thereupon the Court of Wards under Section 27 of the Act made on May 27, 1907, an order declaring that the widows were incompetent to manage their own property and declaring that it was determined under Section 35 of the Act that the Court of Wards should take charge of the property of the widows and directed that possession of such property should be taken on behalf of the Court of Wards. Thereupon the widows became wards of the Court of Wards. The Court of Wards allowed to each of the widows Rs. 625 a month for her maintenance. On the death of Maharani Tarabati in 1920 the monthly allowance made by the Court of Wards to Maharani Nowlakhbati for her maintenance was increased to Rs. 1250. The widows and the survivor of them continued to live in the family house of the Sonbarsa estate.

4. On December 18, 1918, the widows, as parties of the first part, and Gobind Singh and Rudra Pratap Singh, as parties of the second part, made a deed, written in English. The deed, omitting certain recitals as to the circumstances in which it was made and the schedule, was as follows: "Whereas....and whereas the first party are now growing old and are desirous of remaining aloof from the concerns of the world and of spending their latter days in divine worship and meditation in the holy city of Benares, with an allowance for their maintenance befitting their rank and position. And whereas for the reasons aforesaid the first party wish to relinquish and surrender their Hindu widows estate in the said property left by the said Maharaja Bahadur, their deceased husband, to the next heirs, the second party who have undertaken to pay them or the survivor of them, out of the income and profits of the said estate left by the said Maharaja Bahadur, the monthly sum of Rs. 2000 for maintenance and also to defray the expenses of the daily and periodical worship of the family deities Lachhmi Narayan Jeo, Ram Chandra Jeo and Radha Krishan Jeo, at a cost of Rs. 100 per mensem. And whereas the second party have agreed to all the terms aforesaid. Now this indenture witnesseth: 1. That the first party Maharani Tarabati and Maharani Nowlakhbati do hereby relinquish and surrender all their rights in the property movable and immovable, left by their husband, the late Maharaja Harballabh Narain Singh Bahadur, K.C.I.E., commonly called the Sonbarsa estate, now in the charge and under the management of the Court of Wards to and in favour of the second party Rao Bahadur Gobind Singh and Rudra Pratap Singh, the next heirs of the said Maharaja Bahadur under the Hindu law, and in pursuance thereof the first party do hereby make over the entire property aforesaid to the second party in full extinction of their rights therein as Hindu widows. 2. That the second party will be entitled to the whole property aforesaid from this date and they will hold and enjoy the same in the rights of daughters sons succeeding to the property of their maternal grandfather under the Benares School of Hindu Law, the share of each being a moiety of the said property. 3. That the second party will be entitled to have their names entered as proprietors in equal share in respect of the revenue-paying or revenue-free estates included in the said property by removing the names of the first party now recorded in the registers maintained under Act VII. of 1876 (B.C.). 4. That the first party will at once inform the Court of Wards of this surrender and request the court to make over the charge and management of the said property to the second party subject to the courts retaining the management if it thinks fit, under Section 13A of the said Act IX. of 1879 (B.C.). 5. That the first party or the survivor of them, will be entitled to receive a maintenance allowance of Rs. 2000 per mensem, from the second party out of the rents and profits of the said property so long as they or either of them live or lives. 6. That the second party undertake to keep up and maintain the daily and periodical worship of the family deities Lachhmi Narayan Jeo, Ram Chandra Jeo, and Radha Krishna Jeo, installed at the Sonbarsa House left by the said Maharaja Bahadur, at a cost of Rs. 100 per mensem, and should they omit or neglect to carry out this undertaking the first party will be entitled to inforce the fulfillment thereof." The deed and the agreement of the same date were set out in full in the judgment.

5. The deed was registered on December 18, 1918.

6. On the same day, December 18, 1918, Gobind Singh and Rudra Pratap Singh by their ekrarnama entered into a formal agreement to pay to the widows Rs. 2000 per month for maintenance, that sum with the interest provided in case of default to be a charge upon the estate; also to maintain the family deities as stated in the deed. That agreement was registered on December 18, 1918.

7. On December 23, 1918, the two widows sent the following letter to the Collector of Bhagalpur: "We have the honour to state the following for your information: That we are disqualified proprietresses of the estate known as the Sonbarsa estate and we are wards of the Court. That we have two grandsons named Rao Bahadur Gobind Singh and Rudrapratap Singh. That for sometime past we had been contemplating surrendering our rights to the estate in favour of our grandsons who are the reversioners to the estate and we had informed Mr. B.C. Sen, J.C.S., the then Collector and the Hon. Mr. H.J. McIntosh, I.C.S., the then Commissioner, informally about our intentions....That we have executed and registered the deed of surrender on the 18th instant and as provided in para. 4 of the said deed we beg to inform you about the same and request you to take steps to make over the charge and management of the said properties to Rao Bahadur Gobind Singh and Rudrapratap Singh, our two grandsons aforesaid, if the Court of Wards do not think fit to retain management under Section 13(a) of Act IX. of 1879 (B.C.). That we have been given to understand that our two grandsons aforesaid are applying for the mutation of their names in the registers maintained under Act VII. of 1876 (B.C.) and that we have no objection to their so doing."

8. On April 15, 1919, the Court of Wards through their Deputy Collector sent the following reply to the widows to their petition of December 23, 1918: "The Maharanis of Sonbarsa are informed that the Board of Revenue, Bihar and Orissa considers that the deed of relinquishment executed by them in favour of their grandsons is invalid."

9. The Court of Wards had never given any sanction to the widows or to either of them to create any charge upon or interest in the property of the wards or any part thereof.

10. In February, 1919, Gobind Singh applied to the Court of the Deputy Collector of Bhagalpur for mutation of names in his favour in respect of an eighth share in the estate on the ground that he had a right to the moiety of the estate, his contention being that the deed of December 18, 1918, operated as a surrender of the interests of the widows of their interests in the estate. Rudra Pratap Singh did not oppose the application. The application was opposed by the manager of the Court of Wards on various grounds, one of which it is only necessary in the view their Lordships take of the law Applicable to the case to consider, and that is that the Court of Wards had not sanctioned the so-called surrender and that it was consequently invalid under Section 60 of the Court of Wards Act, 1879.

11. That section is as follows: "60. No ward shall be competent to create, without the sanction of the Court, any charge upon, or interest in, his property or any part thereof." The Court in that section mentioned was the Court of Wards. Gobind Singhs application for mutation of names was rejected.

12. Gobind Singh died in October, 1919. Maharani Tarabati (the first wife) died in August, 1920. Man Singh, who was the son of Gobind Singh, brought this suit on January 17, 1921. In his plaint Man Singh referred to the deed of December 18, 1918, and relied upon it as a surrender by the widows of their interest as proprietors of the Sonbarsa estate and as having vested that estate in his father, Gobind Singh, and in Rudra Pratap Singh.

13. The eleventh, twelfth and thirteenth paragraphs of the plaint state the title upon which the suit was brought, thus: "11. That by the said deed of surrender the said Maharanees having put an end to their life estate as Hindu widows in favour of the entire body of the then reversioners the aforesaid Rao Bahadur Gobind Singh and Rudra Pratap Singh the defendant, second party in the aforesaid Sonbarsa estate, all the properties both movable and immovable appertaining to the said Sonbarsa estate vested solely and absolutely in the said reversioners, who became entitled to hold, possess and enjoy the aforesaid estate as the absolute owners of and successors to the properties left by their maternal grandfather by right of inheritance under the Benares School of Hindu Law. 12. That as the aforesaid heritage being one which is known as obstructed heritage, the plaintiffs father, Rao Bahadur Gobind Singh and Rao Bahadur Rudra Pratap Singh, the defendant, 2nd party acquired equal rights in the same and the share of each being a moiety of the said properties. 13. That the plaintiffs father, Rao Bahadur Gobind Singh died in October, 1919, leaving the plaintiff his only son and the sole heir to his estate and he is lawfully entitled to all the rights and interest acquired by his late father in the aforesaid Sonbarsa estate by virtue of one aforesaid deed of surrender."

14. Man Singh, the plaintiff, prayed for the following amongst other reliefs: "(a) That the court be pleased to declare that by the deed of surrender and the Ekrarnama, dated December 18, 1918, the plaintiffs father and the defendant 2nd party became entitled as the next immediate reversionary heirs of the late Maharaja Sir Harbally Narain Singh Bahadur, K.C.I.E., to all the properties left by him and the defendant, 1st party has no right to withhold possession of the Sonbarsa estate from the plaintiff and the defendant 2nd party. (b) That the court be pleased to pass a decree for recovery of possession of all the properties movable and immovable mentioned in Schedule A and B annexed to the plaint as well as any other properties that may be found on discovery to appertain to the Sonbarsa estate in favour of the plaintiff and the defendant, 2nd party by dispossessing the defendant, 1st party."

15. In Schedule B of the plaint, which contains a list of the movable properties which were claimed, carriages, palkis, cattle, elephants, bullocks, cows, buffaloes, horses, and other things are mentioned as having been retained in the possession of Maharani Nowlakhbati.

16. The defendants Maharani Nowlakhbati and Rudra Pratap Singh filed separate written statements. The Maharani Nowlakhbati in her written statement pleaded amongst other things that the widows being disqualified persons and their estate being under the management of the Court of Wards, they had no authority to execute the alleged deed of surrender without the sanction of the Court of Wards and that the plaintiffs father did not acquire any valid title under the said deed, and also did not admit as correct the view of the law propounded in paras. 12 and 13 of the plaint and put the plaintiff to proof of his title. The defendant Rudra Pratap Singh in his written statement pleaded amongst other things that the alleged deed of surrender was not a surrender of the whole interest of the Maharanis and was void and illegal, and also that it was void and ineffectual as not having the sanction of the Court of Wards. Rudra Pratap Singh by his written statement put the plaintiff to proof of his title.

17. The Subordinate Judge framed twelve issues, of which the fifth is in the opinion of their Lordships the crucial issue in this case. It was "5. Is the deed of surrender valid having regard the provisions of Section 60 of the Court of Wards Act (IX. of 1879 Ben.) If it is found that the deed of December 18, 1918, was in contravention of that section the plaintiffs suit fails and this appeal fails, and it is not necessary for the Lordships to consider whether the widows understood the deed or had executed it under any misrepresentation as to its object or effect, or without any independent advice, or to consider any other issue, or the questions of law raised in the eleventh paragraph of the written statement of the Maharani Nowlakhbati, which was that "the plaintiff should prove that he is entitled to a moiety share in the Sonbarsa estate, even if the said deed of surrender be held to be a valid document." Whilst saying this, their Lordships feel it right to say that the lengthy and elaborate judgments of the Courts below have been of assistance to them in understanding the facts which were in dispute between the parties to this suit.

18. In this case no question, that there was any necessity for the surrender, arose. There was in fact no necessity for a surrender of the interests of the widows. The Subordinate Judge and the High Court in appeal concurrently found in effect that the parties to the deed of December 18, 1918, intended by that deed that the widows should surrender some of their interests in the Sonbarsa estate to Gobind Singh and Rudra Pratap Singh, and that the so-called surrender was void as being in contravention of Section 60 of the Court of Wards Act, 1879. Those learned judges might have found on the facts that the deed was void independently of Section 60 of the Act.

19. The question as to whether a surrender without necessity by a Hindu widow of her widows interest in her deceased husbands estate, even in favour of the nearest reversioner, is valid was considered by the Board in Rangasami Gounden v. Nachiappa Gounden. L.R. 46 I.A. 72 In the judgment of the Board in that case, it was said Ibid. 80: "The result of the consideration of the decided cases may be summarized thus: L.R. 46 I.A. 72 An alienation by a widow of her deceased husbands estate held by her may be validated if it can be shown to be a surrender of her whole interest in the whole estate in favour of the nearest reversioner or reversioners at the time of the alienation. In such circumstances the question of necessity does not fall to be considered. But the surrender must be a bona fide surrender, not a device to divide the estate with the reversioner."

20. In Sureshwar Misser v. Mahashrani Misrain L.R. 47 I.A. 233 the Board affirmed that pronouncement of the law. In the latter case, in which the parties were subject to the law of the Mithila school, the widow of the deceased proprietor on the death of her infant son took absolutely the movable property. In that case there were serious disputes in the family as to title, and the next reversioners to the son sued the widow and her daughters to set aside the will of her husband under which the daughters were entitled to succeed to the immovable property on the death of the son without issue. A family compromise was agreed to, and in performance of it the widow surrendered all her rights of succession to the immovable property, and the plaintiff the next reversioner and her daughters gave her for her life a small portion of the land for her maintenance. The Board held that the compromise was a bona fide surrender of the estate, and not a device to divide it with the next reversioner, the giving of a small portion of it to the widow for her maintenance not being objectionable, and consequently that the transaction was valid under the principles laid down by the Board in Rangasami Gounden v. Nachiappa Gounden. L.R. 46 I.A. 72.

21. The so-called surrender in the present case was, as stated above, void in law. and was also void as being in contravention of Section 60 of that Act.

22. Their Lordships will humbly advise His Majesty that this appeal should be dismissed with costs.