Authored By : Nalini Ranjan Chatterjee, George Claus Rankin,P.B. Chakravartti

Nalini Ranjan Chatterjee, Acting C.J.

1. This is an appeal under Section 15 of the Letters Patentagainst a decision of Mr. Justice Page.

2. The suit out of which the appeal arises was instituted bythe plaintiff-respondent for a declaration of title to and recovery ofpossession of certain properties which originally belonged to ona Guru CharanRay. Guru Charan died in 1871 leaving a childless widow Sham Rangini, and, shecame into possession of the zamindari putni, and other properties left by herhusband in her right as a Hindu widow. She acquired certain jotes out of theincome of the estate in her hands and built a house upon the jot& landacquired by her. In 1915, she granted an ijara of the zamindari and the putniproperties to her husbands agnatic cousin Tara Nath Ray, now represented byhis widow Profulla Kamini Ray the present appellant. About the same time sheexecuted a deed of gift by which she conveyed to him the dwelling house whichshe had erected on the jote land. In the deed it was asserted that the propertywas her stridhan, and she purported to give it absolutely to the donee. In 1917she gave notice to Tara Nath for terminating the ijara and, as a matter offact, the ijara was terminated. On the 25th of July, 1917, she executed a deedof release in favour of her husbands brother Bhabani Nath Ray, and, on the21st June, 1920, the latter instituted the present suit against Tara Nath andanother defendant (defendant No. 2) for recovery of possession of theproperties in suit.

3. It appears that the plaintiff claimed in schedule ka themoveable properties which belonged to the lady. This was a claim against boththe defendant No. 1 and the defendant No. 2. In schedule kha the plaintiffclaimed certain lands which had been sold by the lady to and certain landswhich had been partly settled with the defendant No. 2. Schedule ga, comprisedthe land containing the house, and this was the property which was conveyed bythe deed of gift to the defendant No. 1.

4. The learned Subordinate Judge held that the moveableproperties were not included in the deed of release, that the lands of schedulekha which had been alienated by the lady were alienated for valuableconsideration and that the settlement of the khamar lands mentioned in schedulekha was valid on the ground of "prudential management," Heaccordingly dismissed the claim with regard to the properties of schedules kaand kha. With regard to the property in schedule ga he was of opinion that thedeed of gift set up by the defendant was not a bonafide one and he accordinglygave a decree to the plaintiff in respect of that property.

5. The plaintiff appealed to the High Court in respect ofthe properties mentioned in schedules ka and kha, regarding which his claim hadbeen disallowed by the trial Court, and the defendant appealed with respect tothe property of Schedule ga.

6. The plaintiff did not prosecute his appeal and it wasaccordingly dismissed.

7. The cross objection preferred by the defendant withrespect to the property in schedule ga only was heard by Mr. Justice Walmsleyand Mr. Justice Page and the question was raised whether under the deed ofsurrender the plaintiff was entitled to get possession of the property conveyedto the defendant by the lady, during her lifetime. The learned Judges differedupon that point, sand the judgment of Mr. Justice Page which was in affirmanceof the judgment of the trial Court prevailed, the judgment of the trial Courtwas upheld, and the cross-objection was dismissed. Hence this appeal waspreferred by the defendant under the Letters Patent.

8. Before considering the question which of the views takenby the learned Judges is correct, the first thing to be considered is what isthe nature of the deed of surrender executed by the lady in favour of thereversioner.

9. There is no doubt, that a Hindu widow is entitled tosurrender her estate in favour of the reversioner at any time. But it may beeither by way of a transfer of her interest in the estate for valuableconsideration or it may be an absolute surrender which has the effect ofaccelerating the succession of the reversioner, and we have to see whether thetransaction in the present case falls within the one class or the other.

10. The case was not decided upon the footing ofacceleration of inheritance by surrender in the trial Court which was the pointtaken up and discussed by the learned Judges in this Court.

11. One of the learned Judges, Mr. Justice Walmsley,referred to the finding of the Subordinate Judge that the sale and the leasesof parts of property must stand good for the term of the widows life, and thatthat part of his judgment had become final and observed "that the widowhas covenanted for a monthly payment in addition to a cash payment. Those twofacts make it difficult to regard the relinquishment as "of the wholeestate, and as effecting the widows death from the legal point of view"Mr. Justice Page noticed the contention that "the deed of relinquishment didnot amount to a bona fide surrender of the entirety of Sham Ranginis interestin her late husbands property but was merely a device by which she attemptedto divide the inheritance with Bhabani Nath" but he appears to have dealtmore with the question whether the widow understood the nature and effect ofwhat she was doing when she executed the deed, than the matters referred toabove. With regard to the moveables Mr. Justice Page, observes that themoveables were not in existence; but it appears that the plaintiff himselfclaimed 151 items of moveable properties in the first schedule to the plaintand that some of these which had belonged to the family Thakur were decreed infavour of the plaintiff.

12. The main question which we have to consider is whetherthe surrender was of such a nature as to accelerate the succession of thereversioner.

13. It appears that the income of properties is Rs. 3,000 ayear, and the property was let out in ijara at Rs. 2,700 a year to thedefendant No. 1 originally. At the time the deed of release was executed by herin favour of the plaintiff it was arranged that the plaintiff would pay her Rs.3,000 in cash and Rs. 1,800 a year.

14. It is contended by the learned Vakil for the plaintiffthat the fact that some maintenance was agreed upon to be paid by thereversioner to the widow does not affect the surrender. That is so. But thequestion has to be decided, upon the circumstances of each case, whether thesurrender was not a mere device for dividing the property or for transferringit for valuable consideration.

15. In the present case the fact that the reversioner hadpaid to the widow Rs. 3,000 and agreed to pay Rs. 150 a month is not evenmentioned in the deed of surrender. Evidently, that fact which appears to havebeen the consideration for the surrender was concealed, and was mentioned onlyin the deed of masahara executed the next day by the plaintiff in favour of thelady. But there is no doubt that the two documents must be taken ns parts ofthe same transaction, and the effect of the two deeds is that the lady, thewidow, in consideration of Rs. 3,000 in cash and Rs. 1,800 a year (which, itmay be pointed out, was to be realized from the plaintiff by the lady, in caseof default of payment, with interest at 12 per cent, per annum from all theproperties), agreed to give up all the properties which she had in favour ofthe reversioner. In these circumstances it seems to me that it was not a deedof surrender such as is contemplated under the Hindu Law to operate as anacceleration of the inheritance of the reversioner. There must be an eilacementof the widow an effacement which in other circumstances is effected by actualdeath or civil death which opens the estate of the deceased husband to his nextheirs at that date. Having regard to the facts and circumstances mentionedabove, the deed appears to me to be really a transfer of the interest of thewidow for valuable consideration and, that being so there can be no doubt thatonly the properties covered by the deed would pass to the plaintiff.

16. It may be pointed out that the operative part of thedeed of surrender expressly states that the reversioner would be entitled toget possession of the properties mentioned in the schedule to the deed, and theschedule does not mention the property the subject-matter of thecross-objection.

17. The plaintiff, accordingly, is not entitled to getpossession of the property covered by the deed of gift in favour of defendantNo. 1.

18. In this view it is unnecessary to consider the questionwhether in the case of an absolute surrender by a Hindu widow in favour of thereversioner, the latter can during the lifetime of the widow recover possessionof properties previously alienated by her.

19. It has been pointed out by the learned Vakil for thedefendant-appellant that the property covered by the deed of gift was eitherstridhan properly of the lady or that at any rate it was acquired out of theincome of the husbands estate which was treated as separated from the estateand that, therefore, it was unaffected by the question whether there was a realsurrender or not. It is pointed out, on the other hand, that the learned Judgeswere agreed that it was not stridhan. In the view we have taken of this case,it is unnecessary to go into that question.

20. The cross objection is, therefore, allowed and thejudgment and decree of the Subordinate Judge so far as the property of.schedule ga is concerned are set aside and the plaintiffs claim to theproperty of that schedule is dismissed.

21. The defendant No. 1 is entitled to the whole costs ofthe paper-book incurred by her in this Court, and the hearing fee in the firstappeal and the Letters Patent Appeal which is assessed at Rs. 1U0 for eachhearing.

22. As regards the costs of the trial Court the defendantsNos. 1 and 2 would get 2/3rds and the plaintiff 1/3rd.

George Claus Rankin, J.

23. I agree.

P.B. Chakravartti, J.

24. I agree.

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Prafulla Kamini Ray vs. Birendra Nath Ray and Ors.(24.02.1926 - CALHC)