# MUMMAREDDI NAGI REDDI AND OTHERS v. PITTI DURAIRAJA NAIDU AND OTHERS

- **Citation:** [1951] 1 S.C.R. 655
- **Court:** Supreme Court of India
- **Decided:** 1948-01-12
- **Case number:** CIVIL APPELLATE No. 51 of 1950
- **Bench:** Mehr Chand Mahajan, MuKHERJEA, VIVIAN BosE
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/mummareddi-nagi-reddi-and-others-v-pitti-durairaja-naidu-and-others-190
- **Pages:** 17

## Headnote

655
Hindu Law-widow-Surrender-Release in favour of daughter
and son-in-law-Validity-Suit by reversioner-Right to mesne profits.
Where a Hindu widow who had inherited her husband's estate
executed a deed, described as a deed of release, in favour of her
daughter who w;;s the next reversioner and the daughter's husband
jointly :
Held, that though under the Hindu Law it is open to a widow
to
surrender the estate to the next reversioner even though the
btter is a female heir, a widow cannot validly
surrender
in
favour of the next female heir and a stranger jointly. Such a
transaction cannot be treated as a surrender in favour of the
female heir and a transfer by the latter to the stranger, and is
not binding upon the ultimate reversioners.
/agrani v. Gaya (A.I.R. 1933 All. 8%) approved.
Nobo
Kishore v. Harinath (1.L.R. 10 Cal. 1102) commented upon.
Vytla
Sitanna v. Marivada (L. R. 51 I.A. 200),
Rangasami Goundan v.
Nachiappa Goundan ( 41 I.A. 72) and Debi Prasad v. Gola Bhagat
(1.L.R. 40 Cal. 721) referred to.
In a suit by the reversioner to set aside an alienation made. by
a Hindu widow mesne profits can be awarded to the reversioner
from the date of the widow's death even though such an alienation is not void.
Even in cases where the decree for possession in favour of the
reversioner is conditional on his depositing the amount which has
been found to have been used for the benefit of the estate, mesnc
profits can be awarded to the re<versioner if he is ordered to pay
interest on the amount payable to the alienee.
Bhagwat Dayal v. Debi Dayal (L.R. 35 I.A. 48)
and
Satgur
Prasad v. Harinarain Singh (L.R. 59 I.A. 147) referred to.
Banwarilal v. Mahesh (l.L.R. 41 All. 63) distinguished.
CIVIL
APPELLATE
No. 51 of 1950.
JURISDICTION ;
Civil
Appeal
Appeal against the Judgment and Decree dated the
12th January, 1948, of the High Court of Judicature at
Madras (Gentle C.J. and Satyanarayana Rao J.)
m
1951
MayB.
!951
Mummareddi
Nagi Reddi
and Others
v.
Pitti Durairaja
Naidu
and Others.
Mukherjea. J.
656
SUPREME COURT REPORTS
[ 1951]
Appeal No. 167 of 1945 arising out of decree dated the
17th August, 1942, of
th~ Subordinate Judge at Nellore
in 0. S. No. 3 of 1940.
K. Rajah Aiyar (R. Ganapathi Iyer, with him) for
the appellants.
B. Somayya (M. Krishna Rao, with him) for the
respondents.
1951. May 8. The judgment of the Court was delivered by
MuKHERJEA J.-This appeal is directed against an
appellate judgment of a Division Bench of the Madras
High Court dated the 12th January, 1948, reversing in
part, a decision of the Subordinate Judge of Nellore
passed in 0. S. No. 3 of 1940.
To appreciate the material facts of the case and the
controversy that now centres between the parties, it
would be convenient to refer to a short genealogy
which is given below :-
I
Durairaja
Plff. I.
U da tha Narayanappa
:_Chanchamma ( d. 1933)
I
Venkata Narasamma (d. "1926)
-Pitti Rangayya (d. 1914)
·I I
Vcnkatadri-Rajakantamma
I
Rajavathi
Plif. 2.
I
Balakrishna
Plff. 3.
Krishnababulu
Plff. 4.
The properties in dispute which are described
in
schedule A to the plaint admittedly belonged to one
Narayanappa who was the father of the paternal grandmother of the plaintiffs. Narayanappa died
intestate
sometime before 1884 leaving him surviving his wife
Chanchamma and a daughter named Venkata Narasamma.
Narasamma was married to one Pitti Rangayya and they had a son named Venkatadri, who was.
the father of the plaintiffs. Chanchamma died in
S.C.R.
SUPREME COURT REPORTS
657
March, 1933, and the plaintiffs aver that they being the
heritable bandhus of Narayanappa
as the daughter's
son's sons of the latter and there being no nearer heir
in existence, they became entitled to all the properties
left by Narayanappa on the death of his widow.
It
appears thar on 22nd February, 1894, Chanchamma
executed, what has been described as a deed of release,
in favour of her daughter Narasamm;i and her son-inlaw Pitti Rangayya, under which
the
entire
estate
of Narayanappa came into the posses

## Text

S.C.R.
SUPREME COURT REPORTS
MUMMAREDDI NAGI REDD! AND OTHERS
v.
PITTI DURAIRAJA NAIDU AND OTHERS
[MEHR CHAND MAHAJAN, MuKHERJEA and
VIVIAN BosE JJ.]
655
Hindu Law-widow-Surrender-Release in favour of daughter
and son-in-law-Validity-Suit by reversioner-Right to mesne profits.
Where a Hindu widow who had inherited her husband's estate
executed a deed, described as a deed of release, in favour of her
daughter who w;;s the next reversioner and the daughter's husband
jointly :
Held, that though under the Hindu Law it is open to a widow
to
surrender the estate to the next reversioner even though the
btter is a female heir, a widow cannot validly
surrender
in
favour of the next female heir and a stranger jointly. Such a
transaction cannot be treated as a surrender in favour of the
female heir and a transfer by the latter to the stranger, and is
not binding upon the ultimate reversioners.
/agrani v. Gaya (A.I.R. 1933 All. 8%) approved.
Nobo
Kishore v. Harinath (1.L.R. 10 Cal. 1102) commented upon.
Vytla
Sitanna v. Marivada (L. R. 51 I.A. 200),
Rangasami Goundan v.
Nachiappa Goundan ( 41 I.A. 72) and Debi Prasad v. Gola Bhagat
(1.L.R. 40 Cal. 721) referred to.
In a suit by the reversioner to set aside an alienation made. by
a Hindu widow mesne profits can be awarded to the reversioner
from the date of the widow's death even though such an alienation is not void.
Even in cases where the decree for possession in favour of the
reversioner is conditional on his depositing the amount which has
been found to have been used for the benefit of the estate, mesnc
profits can be awarded to the re<versioner if he is ordered to pay
interest on the amount payable to the alienee.
Bhagwat Dayal v. Debi Dayal (L.R. 35 I.A. 48)
and
Satgur
Prasad v. Harinarain Singh (L.R. 59 I.A. 147) referred to.
Banwarilal v. Mahesh (l.L.R. 41 All. 63) distinguished.
CIVIL
APPELLATE
No. 51 of 1950.
JURISDICTION ;
Civil
Appeal
Appeal against the Judgment and Decree dated the
12th January, 1948, of the High Court of Judicature at
Madras (Gentle C.J. and Satyanarayana Rao J.)
m
1951
MayB.
!951
Mummareddi
Nagi Reddi
and Others
v.
Pitti Durairaja
Naidu
and Others.
Mukherjea. J.
656
SUPREME COURT REPORTS
[ 1951]
Appeal No. 167 of 1945 arising out of decree dated the
17th August, 1942, of
th~ Subordinate Judge at Nellore
in 0. S. No. 3 of 1940.
K. Rajah Aiyar (R. Ganapathi Iyer, with him) for
the appellants.
B. Somayya (M. Krishna Rao, with him) for the
respondents.
1951. May 8. The judgment of the Court was delivered by
MuKHERJEA J.-This appeal is directed against an
appellate judgment of a Division Bench of the Madras
High Court dated the 12th January, 1948, reversing in
part, a decision of the Subordinate Judge of Nellore
passed in 0. S. No. 3 of 1940.
To appreciate the material facts of the case and the
controversy that now centres between the parties, it
would be convenient to refer to a short genealogy
which is given below :-
I
Durairaja
Plff. I.
U da tha Narayanappa
:_Chanchamma ( d. 1933)
I
Venkata Narasamma (d. "1926)
-Pitti Rangayya (d. 1914)
·I I
Vcnkatadri-Rajakantamma
I
Rajavathi
Plif. 2.
I
Balakrishna
Plff. 3.
Krishnababulu
Plff. 4.
The properties in dispute which are described
in
schedule A to the plaint admittedly belonged to one
Narayanappa who was the father of the paternal grandmother of the plaintiffs. Narayanappa died
intestate
sometime before 1884 leaving him surviving his wife
Chanchamma and a daughter named Venkata Narasamma.
Narasamma was married to one Pitti Rangayya and they had a son named Venkatadri, who was.
the father of the plaintiffs. Chanchamma died in
S.C.R.
SUPREME COURT REPORTS
657
March, 1933, and the plaintiffs aver that they being the
heritable bandhus of Narayanappa
as the daughter's
son's sons of the latter and there being no nearer heir
in existence, they became entitled to all the properties
left by Narayanappa on the death of his widow.
It
appears thar on 22nd February, 1894, Chanchamma
executed, what has been described as a deed of release,
in favour of her daughter Narasamm;i and her son-inlaw Pitti Rangayya, under which
the
entire
estate
of Narayanappa came into the possession of the latter.
After the execu.tiol.1 of this document, the daughter and
~n-in-law of Chaachamma began to deal
with
the
properties
left
by
Narayanappa as
their' own
and
entered
into
various
transactions
on
that
footing.
Pitti Rangayya died in 1914 and Narasamma followed
him in 1926.
There are six items of property comprised in schedule A to the plaint.
Of these items, 4
and 5 were sold by Venkata Narasamma along with
her son, the father of the plaintiffs, on July 9, 1922, to
the 5th defendant and the father of defendants 6 to 9
for a sum of Rs. 6,500.
Again, on October 26, 1929,
when both Narasamma and the plaintiffs' father were
dead, item 1 of schedule A was sold by the mother of
the plaintiffs as their guardian to the 1st defendant for
a consideration of Rs. 33,000.
Defendants 2 and 3 are
the undivided sons of the 1st defendant.
There are
other transfers in favour of other defendants
in
the
suit but they are not the subject-matter of the appeal
before us.
The plaintiffs' allegations in substance are that these
alienations are not binding on them as the so-called
deed of release executed by the widow could not and
did not operate as a deed of surrender and any transfer
effected on the strength of this deed by Venkata
Narasamma or her son, Venkatadri, or even on behalf of
the plaintiffs by their mother as guardian, could not
be operative after the death of the widow. As these
transfers were made during the lifetime of Chanchamma and without any legal necessity, the plaintiffs
as actual reversioners were not bound by
them and
they are entitled to recover possession of the properties
1951
Mummareddi
Nagi Reddi
arzd Others
v.
Pitti Durairaja
Naidu and
Others.
Mukhajea. J.
1951
Mwnmaredtli
Nagi Reddi
and Olhtrs
v.
Pitti Darairaja
Naidu
and Othm
Mukli•rj•a J.
658
SUPREME COURT REPORTS
[1951]
by evicting the transferees.
It was for the recovery of
possession of these properties that the present suit was
brought and there was a claim for mesne profits as well
from the date of the widow's death to the date of
delivery of possession.
The defence of the defendants who are interested in
the properties mentioiy:d above, were really of a threefold character.
It was contended in the first place
that the plaintiffs were not the next reversionary heirs
of Narayanappa and consequently were not entitled to
succeed to the estate of the latter on the death of the
widow. The second contention was that the deed of
release operated as a surrender of the widow's estate
in favour of the daughter who was the next reversioner
and although by such a surrender the daughter could
get only a limited estate which she would have been
entitled to on the death of the widow, yet as the
daughter died in 1926, the present suit which was
instituted more than 12 years after the date of death,
was barred by limitation. The third plea was that in
any event, these alienations could not
be set
aside
as they were justified by legal necessity.
The learned Subordinate Judge who heard the suit
decided it adversely to the plaintiffs. It was held first
of all that though the plaintiffs were the heritable
bandhus of Narayanappa, the evidence adduced
by
them fell short of establishing that there were no
agnatic relations or nearer heir in existence. As regards
the document of release
(Exhibit P. · 6)
executed
by
the
widow
in
favour
of
her daughter and
son-in-law,
the
Subordinate
Judge
came
to
the
conclusion that the deed operated as a surrender of the
widow's estate and· as the daughter died in 1926,
the plaintiffs' suit was barred by limitation.
On the
question of legal necessity, the finding recorded by the
Subordinate Judge was that the sale deed (Exhibit D-1)
executed in favour of the lst defendant was supported
by legal necessity to the extent of Rs. 5,061 and odd
annas and that the other document under which defendants 5 to 9 claimed title was not binding on the estate
S.C.R.
SUPREME COURT REPORTS
659
at all, In the result, the plaintiffs' suit was dismissed
in its entirety.
Against this dc;cision, the plaintiffs took an appeal
to the High Court of Madras and the appeal was heard
by a Division Bench consisting of Gentle C. J. and
Satyanarayana Rao J. The learned Judges allowed the
appeal in regard to the items of property mentioned
above and reversed the, decision of the trial Judge to
that extent
It was held that the plaintiffs were
the
nearest reversionary heirs of · Narayanappa and that
the de~d of release did not operate as a surrender of
the widow's estate. The plaintiffs were given
a decree
for possession in respect of item 1 of the schedule propertie~ as against defendants 2 and 3 on condition of
their depositing into court the sum of Rs. 5,061,
and
odd annas, that being the amount of debt legally
binding on the estate which was discharged out of the
sale proceeds of the transfer, and there was a further
direction to pay interest upon this amount: at the rate
of six per cent per annum from certain specified dates
up to the date of making the deposit. It may be noted
here that the 1st defendant died after the trial Court's
decree and his interest passed by
survivorship
to
defendants 2 and 3, who are his undivided sons.
As
against defendants 5 to 9, there was an unconditional
decree for recovery of possession in respect . of items 4
and 5 of schedule A. The plaintiffs were further given
a decree. for mesne profits, both past and future, commencing from the date of the widow's death down to
the date of delivery of possession, and the amount of
mesne profits was directed to be ascertained in a separate proceedings under Order XX, rule 12 of the Code
of Civil Procedure.
It is against this decision that the
present appeal has been preferred by defendants 2, 3
and 5 to 9.
'
Mr. Rajah Aiyar, appearing for the appellants, did
not seriously challenge the finc:\ing of the High Court
as to the plaintiffs being the nearest reversioners
at
the time of. Chanchamma's death. He has assailed the
propriety of the High Court's decision substantially on
two points.
His ·first contention is that the deed of
1951
Mummareddi
Nagi Reddi
and Others
v.
Pitti Durairaja
Naidu
and Others
Mukherjea J.
J95J
Mummartddi
Nagi Reddi
and Others
v.
Pitti Durairaja
Naidu and
Others
Mukherjea J.
660
SUPREME COURT REPORTS
[1951]
release (Exhibit P-6) executed by Chanchamma had the
effect of a surrender of the widow's estate in favour of
her daughter and son-in-law and the daughter having
died in 1926, the plaintiff's suit was barred by limitation.
The second ground urged is that the High Court
should not have given the plaintiffs a decree for mesne
profits from the date of the widow's death.
Mesne
profits could at best have been allowed from the date
of the institution of the suit and so far as defendants
2 and 3 are concerned against
whom a conditional
decree was given, mesne profits could be allowed only
from the time when the condition was fulfilled by the
plaintiffs' depositing the specified amount in court.
The first point taken by the learned counsel for the
appellants raises the question as to the legal effect of
the document (Exhibit P-6), upon which the defendants
mainly base their contention. The document is more
than 50 years old and language of it is not
very
clear or definite.
It begins and ends by saying
that
it is a deed of release.
It says that as the executant is
a woman unable to look after her wordly affairs and
as the persons in whose favour the document is executed
are the son-in-law and daughter of the executant, she
has put the latter in possession of all her properties,
movable and immovable.
Then comes a description of
the properties and after that the provisions run as
follows:-
"Therefore you shall yourself pay the quit rent,
etc., payable herefor every year to the Government and
enjoy the same permanently from your son to grandson
and so on hereditarily.
For my lifetime you shall pay
for our maintenance expenses Rs. 360 per year every
year, before the month of Palguna of the respective
years."
The remammg clauses of the deed eniom upon the
recipients thereof the duty of realizing all debts due to
the executant by other people and also of paying all
just debts due by her.
It is stated finally that
the
lands are under an izara lease executed by the widow
in favour of one Narasimha Naidu which is due to expire
S.C.R.
SUPREME COURT REPORTS
661
by the end of 1346 Fasli and it would be for the
daughter and son-in-law to consider what they would
do with regard to the lease.
There are no words of transfer used in the deed,
though the widow purports to endow her son-in-law and
daughter with hereditary rights of enjoyment
in
the
property.
The document is described as a release and
is stamped as such.
Apparently it comprises all the
properties which the widow had, and in a sense the
document indicates an intention on the part of the
lady to give up all connection with business affairs.
Prima facie, these facts lend support to the story
of
surrender.
It is not and cannot be disputed that there
can be a surrender even when the next reversioner is
a female heir herself who takes a limited interest in
the property, though such surrender cannot give her
a larger interest than she would get as an heir under
the law of inheritance. The whole difficulty in this
case, however, is created by the fact that the widow
purports to exercise her right of relinquishment of her
husband's estate in favour of two persons, one of
whom is a next heir, but the ot:P.er, 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
of 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
1951
Mummareddi
Nagi Reddi
and Others
v.
Pitti Durairaja
and Naidu
Others
Mukherjea J.
1951
Mummareidi
Nagi Reddi
and Others
v.
Pitti Durairaja
Naidu
and Others
Mukhtrjta J.
Ci62
SUPREME COURT REPORTS
[1951J
Judicial Committee in Vytla Sitanna v. Mariwada(')
"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
surrender 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
stranger, there can be no question of renunciation; the
trausaction 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. 200 at 207.
(1) L.R. 41 I.A. 72.
'·
-
S.C.R.
SUPREME COURT REPORTS
663
Mr. Rajah Aiyar made a strenuous attempt to induce
us to hold that the docume11t is. a composite document
combining really two separate transactions,
one,
an
act of surrender by the widow of tfie 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, obviously 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 containing 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
a,~testing witness. 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. Harinath(1) whiCh was impliedly accepted
by
the
Judicial
Committee
in
Rangasami
Gounaan 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. Har.inath(1), that a widow is entitled to sell or transfer the
(1) 1.L.R. 10 Cal. 1102.
1951
Mummartrldi
Nagi Reddi
and Others
v.
Pitti Durairaja
Naidu
and Others.
Mukherjea J.
J95J
Mummareddi
Nagi Reddi
and· Others
v.
Pitti Durairoja
Naidu and
Others.
Mukherjea J.
664
SUPREME COURT REPORTS
[1951]
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 Go2mda11 v. Nachiappa Goundan('). "The
surrender, once exercised",
observed
their Lordships,
"in favour of the nearest reversioner or reversioners,
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 (') already cited.
The judgment went upon the principle of
surrender,
and it might do so for the surrender there was of the
tvhole estate : but it is worthy of notice that the order of
reference showed that the alienation 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 principles of law if the widow relinquishes her interest in
the husband's estate and the reversioner in whom the
estate vests transflers 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 reversioner 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
immediate reversioner's giving consent
to the iilienation of the whole estate by the widow to astranger has
been held to import a double fiction : the first is the
fiction of a surrender by the widow in favour of the
consenting reversioner and the second is the fiction of
(') I.L.R. 46 I.A. 72.
(') I.L.R. I 0 Cal. II 02.
S.C.R.
SUPREME COURT REPORTS
665
a trasfer 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
presumed at 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 transferee.
A consent merely
binds the consenting party or anybody
else
who
derives his title from him. If the actual reversioner
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 Mohamad v. Mst. Nughlani (1)). SirRichard 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 thewidow with the consent of her reversioner stand on the·
same footing 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 orother to reconsider the whole law on this subject. Ir
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 feliciously expressed by Sir Lawrence
Jenkins, "The road to the decision in Nobokishore's
case was not without its difficulties but
the
learned
(1) A.I.R. 1946 Lah. 180 at 188.
( 2) I.L.R. 1°' Cal. 1102.
1951
Mummareddi
Nagi Reddi
and Others
v.
Pitti Durairaja·
Naidu
and Others
Mukherjea J.
!95!
Mummartddi
Nagi Rtddi
and Others
v.
Pitti Durairaja
Naidu
and Othns
Mtikherjea J.
666
SUPREME COURT REPORTS
[1951J
Judges felt it had to be travelled that titles might be
quieted.
But it is settled that there should be no extension of this Bengal doctrine" : Per Jenkins C. J. in
Debiprosad v. Gola Bhagat (' ).
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 transfer'
red to the son-in-law of the widow with the consent of
her daughter.
The interest transferred was a fraction
of the interest
held by widow and strictly
speakmg, 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
sub-
.sequent transactions on the basis of the same, and
once this consent is established we can impor_t 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 N obokishore' 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 a<;cept this chain of reasoning as
sound. As stated above, it would be most improper
to
extend
the
doctrine
in
N obokishore' s
case
which is not itself based on sound legal principles
to what Mr. Aiyar
calls,
its logical consequence.
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
·m 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 751.
( 2) I.L.R. 10 Cal. 1102.
S.C.R.
SUPREME COURT REPORTS
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 pn"ma f acie 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 possession of the e'ntire property
denying the rights of his nephews 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 canot 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.
1951
Mummaretldi
Nagi Ret!t!i
anti Others
v.
Pitti Durairaja
Naidu
and Others.
Mukherjea J.
1951
Mummartddi
Nagi Rtddi
and Others
v.
Pitti Durairaja
Naidu
and Others
Mukh,,.jea J.
668
SUPREME COURT REPORTS
[19511
been taken by the Allahabad High Court, in Mt.
]agrani v. Gaya(') and, in our opinion, this is the correct view to take.
The learned counsel for the appelants has in this
connection referred us to two decided authorities of the
Bombay High Court. The first is the case of Y ashwanta
v. A11tu('), w_here the widow together with her daughter
who was the immediate heir excuted 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 Nobobkishore's case, and there are two material facts
which· distinguish it from the case before us. In tlie
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 tlie 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 tlie daughter being a minor, was not
competent 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
(') A.LR. 1933 All. 856.
{2) I.L.R. 58 Born. 521.
(8) l.L.R. 60 .Born. 211.
S.C.R.
SUPREME COURT REPORTS
669
decide.
In our opinion, the view taken by the High
Court in regard to the legal effect pf the document
(Exhibit P-6) is the correct one· and the first contention
raised by Mr. Rajah Aiyar should therefore fail.
w
G'. 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 choosing 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 to 3 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 vis a vis the reversioner, 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 alien_ation 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) ~.L.~. 41 All. 63,
2--4 s. C. India/66
(2) I.L.R. 34 Cal.,329.
1951
Mummarttldi
Nagl Reddi
and Others
v.
Pitti Durairaja
Naidu
and Others.
Mulr:herjea J.
195!
Mummartddi
Nagi Reddi
and Others
v.
Pitti Durairaja
Naidi,
and Others.
Mukherjea ],
670
SUPREME COURT REPORTS
[1951]
prescribed by article 91 of the Indian Limitation
Act.
On appeal to the Privy Council, it was P.Ointed 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 possession 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 reversioner'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 necessary 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 poosession 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 alienation cannot be described
as
absolutely void.
The decisions of the Judicial
Committee in Bhagwat Dayal v. Debi Dayal(') and Satgur
Prasad v. Harnarain Singh( 2 ) may be cited as illustrations where mesne profits were allowed in transactions
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.
(•) L.R. 59 I.A. 147.
S.C.R.
SUPREME COURT REPORTS
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 recover 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 Mitakshara 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
possession 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 cost5.
Appeal dismissed.
Agent for the appellants : M. S. K. Aiyangar.
Agent for the respondents : M. S. K. Sastri.
MANOHARLAL~THESTATE
{SHJU HARJLAL KANIA C. J., SAIYm FAZAL Au,
MEHR CHAND MAHAJAN, CHANDRASEKHARA AIYAR
and VIVIAN BosE JJ.]
Puniab Trade Employees Act, 1940, ss. 2-A (i) and (i), 7 (1), 16,
-fh?fkuper without employees -
Sale by son on close dayL1abil1ty of shop'fr..eeper-'-Scope of s. 2-A (i) and (i).
Section 7 sub-s. (1) of the Punjab Trade Employees Act, 1940.
as a~ended in 1943, provided that "save
as
otherwise . provided
by this Act, every shop shall . remain closed on a dose day." Subscctiort (2) (i) stated that "The choice of a close day. shall rest
with the owner or octupier of a shop ...... and shall be intimated
1951
Mummartddi
Nagi Rtddi
and Others
v.
Pitti Durairaja
Naidu
and Others.
Mukherjea J.
1951
May 23.