# Surendra Singh and Others v. The State of Uttar Pradesh

- **Citation:** [1954] 1 S.C.R. 339
- **Court:** Supreme Court of India
- **Decided:** 1953-05-25
- **Case number:** Civil Appeal No. 12 of 1953
- **Bench:** MuKHERJEA, VIVIAN BosE, Bhagwati
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/surendra-singh-and-others-v-the-state-of-uttar-pradesh-269
- **Pages:** 21

## Headnote

Hind1i law-Widow-Surrender of estate after third persons
have acquired title by adverse possession against widow-Validity--
Right of reversioner to recover possession before death of widowLegal nature of surrender-Power of court to irnpose conditions on
gronnds of eq1iity.
Where a Hindu widow surrenders her widow's estate to the
reversioners, after a third person ha.s acquired title to the properties by adverse possession against her, the reversioners are entitled
to recover possession of the properties from that person immediately as heirs of the last male holder.
The person in adverse
possession is not entitled to remain in possession till the death of
the widow.
So far as the legal consequences are concern~d there
is no material difference in this respect between an adoption and
an act of surrender by the widow.
As a surrender by a Hindu widow does not con1'ey any title
to the reversioners, but is only a voluntary act of self-effacement
by the widow, she can make a valid surrender under Hindu law
even after another pei;son has acquired title by adverse possession
against her.
The reversioners do not take the property subject to
the rights created by the widow.
Surrender by the widow and acceptance by the reversioner
are not matters of contract. The estate vests in the reversioner
by operation of law without any act of acceptance on the part of
the reversioner.
t5
Nov. 18.
1953
Natvarlal
Punjabhai
and Another
v.
Dadubhai
Manubhai
and Others.
340
SUPREME COURT REPORTS
[1954]
The view that, as the widow herself is incapable of disputing
the title of the alienee, or of the person who has obtained title by
adverse possession, a like disability attaches to the reversioner, is
also unsound as the reversioner does not derive title from the
widow even in the case of a surrender.
Assuming that the court has power to impose conditions on
the reversioners' right to recover possession during the lifetime of
the widow on considerations of equity 1 justice and good conscience
and to prevent the widow, by her own act, from prejudicing the
interests she has created, no such equitable considerations arise in
favour of persons who have come upon the land a.s trespassers and
claim title by adverse possession.
Snbbamma v. S11brahmanyam (I.L.R. 39 Mad. 1035), S11mdra.
siva v. Viyyamma (I.L.R. 48 Mad. 933), Arnnachala v. Ari<1nnaa.
(LL.R. 1953 Mad. 550), Lachmi v. Lachho (I.L.R. 49 All. 334) and
Basndeo v. Baiduanath (A.LR. 1935 Pat. 175) disapproved. Ram
Krishna v. Ka1tsalya (40 C.W.N. 208), Ragh11raj Singh v. Bab"
Singh (A.LR. 1952 All. 875) approved.
Vaidyanatha v. Savitri (I.L.R. 4 l Mad. 75) commented upon.
CIVIL
APPELLATE
JURISDICTION:
Civil
Appeal
No. 12 of 1953.
Appeal from the Judgment and Decree dated the
31st March, 1949, of the High Court of Judicature at
Bombay (Chagla C.J., Weston and Dixit JJ.) in First
Appeal No. 175 of 1946, arising out of the Judgment
and Decree dated the 28th Februarv, 1946, of the
Court of the Civil Judge, Senior Division at Broach in
Special Suit No. 9 of 1941.
K. S. Krishnaswamy Aiyanga,r (H.J. Umrigar, with
him) for the appellants.
0. K. Daphtary, Solicitor-General for India· (J. B.
Dadachanji, with him) for respondents Nos. 1 and 2.
1953. November 18.
The Judgment of the Court
was delivered by
MURHERJEA J.-This appeal is directed against a
judgment and decree of the Bombay High Court, dated
the 31st March, 1949, confirming, on appeal, the decision of the Civil Judge, Senior Division, at Broach, in
Special Suit No. 9 of 1941.
The facts of the case, though a bit long, are not
in controversy at the present stage and the entire dis.
pute between the parties centres round certain points
of law relating to the rights of the reversioners, in
whose favour a deed of surrender was (lxecuted by a
•
.. .
. I
t
S.C.R.
SUPREME COURT REPORTS
34i
Hindu widow, to recover possession of the properties,
belonging to the last male owner, during the lifetime
of the widow from persons who acquired title to the
same by adverse p

## Text

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S.C.R.
SUPREME COURT REPORTS
339
Court for re-hearing and delivery of a proper judgment.
1953; November 23. BosE J.-The order for stay
dated the 25th May, 1953, has now expended itself.
The death sentence cannot be carried out as there is no
valid decision of the appeal and no valid confirmation.
The position regarding that is as it w:as when the
appeal was made to the· High Court. The second and
the third appellants will surrender to their bail as they
are now relegated to the position which they occupied
when the appeal was filed in the High Court.
Appeal allowed.
Agent for the appellant : N aunit Lal.
Agent for the respondent:. 0. P. Lal.
1963
Surendra Singh
and Others
v.
The State of
Uttar Pradesh.
Bose J.
NATVARLAL PUNJABHAI AND ANOTHER
1953
v.
,
DADUBHAI MANUBHAI AND OTHERS.
[MuKHERJEA, VIVIAN BosE and BHAGWATI JJ.]
Hind1i law-Widow-Surrender of estate after third persons
have acquired title by adverse possession against widow-Validity--
Right of reversioner to recover possession before death of widowLegal nature of surrender-Power of court to irnpose conditions on
gronnds of eq1iity.
Where a Hindu widow surrenders her widow's estate to the
reversioners, after a third person ha.s acquired title to the properties by adverse possession against her, the reversioners are entitled
to recover possession of the properties from that person immediately as heirs of the last male holder.
The person in adverse
possession is not entitled to remain in possession till the death of
the widow.
So far as the legal consequences are concern~d there
is no material difference in this respect between an adoption and
an act of surrender by the widow.
As a surrender by a Hindu widow does not con1'ey any title
to the reversioners, but is only a voluntary act of self-effacement
by the widow, she can make a valid surrender under Hindu law
even after another pei;son has acquired title by adverse possession
against her.
The reversioners do not take the property subject to
the rights created by the widow.
Surrender by the widow and acceptance by the reversioner
are not matters of contract. The estate vests in the reversioner
by operation of law without any act of acceptance on the part of
the reversioner.
t5
Nov. 18.
1953
Natvarlal
Punjabhai
and Another
v.
Dadubhai
Manubhai
and Others.
340
SUPREME COURT REPORTS
[1954]
The view that, as the widow herself is incapable of disputing
the title of the alienee, or of the person who has obtained title by
adverse possession, a like disability attaches to the reversioner, is
also unsound as the reversioner does not derive title from the
widow even in the case of a surrender.
Assuming that the court has power to impose conditions on
the reversioners' right to recover possession during the lifetime of
the widow on considerations of equity 1 justice and good conscience
and to prevent the widow, by her own act, from prejudicing the
interests she has created, no such equitable considerations arise in
favour of persons who have come upon the land a.s trespassers and
claim title by adverse possession.
Snbbamma v. S11brahmanyam (I.L.R. 39 Mad. 1035), S11mdra.
siva v. Viyyamma (I.L.R. 48 Mad. 933), Arnnachala v. Ari<1nnaa.
(LL.R. 1953 Mad. 550), Lachmi v. Lachho (I.L.R. 49 All. 334) and
Basndeo v. Baiduanath (A.LR. 1935 Pat. 175) disapproved. Ram
Krishna v. Ka1tsalya (40 C.W.N. 208), Ragh11raj Singh v. Bab"
Singh (A.LR. 1952 All. 875) approved.
Vaidyanatha v. Savitri (I.L.R. 4 l Mad. 75) commented upon.
CIVIL
APPELLATE
JURISDICTION:
Civil
Appeal
No. 12 of 1953.
Appeal from the Judgment and Decree dated the
31st March, 1949, of the High Court of Judicature at
Bombay (Chagla C.J., Weston and Dixit JJ.) in First
Appeal No. 175 of 1946, arising out of the Judgment
and Decree dated the 28th Februarv, 1946, of the
Court of the Civil Judge, Senior Division at Broach in
Special Suit No. 9 of 1941.
K. S. Krishnaswamy Aiyanga,r (H.J. Umrigar, with
him) for the appellants.
0. K. Daphtary, Solicitor-General for India· (J. B.
Dadachanji, with him) for respondents Nos. 1 and 2.
1953. November 18.
The Judgment of the Court
was delivered by
MURHERJEA J.-This appeal is directed against a
judgment and decree of the Bombay High Court, dated
the 31st March, 1949, confirming, on appeal, the decision of the Civil Judge, Senior Division, at Broach, in
Special Suit No. 9 of 1941.
The facts of the case, though a bit long, are not
in controversy at the present stage and the entire dis.
pute between the parties centres round certain points
of law relating to the rights of the reversioners, in
whose favour a deed of surrender was (lxecuted by a
•
.. .
. I
t
S.C.R.
SUPREME COURT REPORTS
34i
Hindu widow, to recover possession of the properties,
belonging to the last male owner, during the lifetime
of the widow from persons who acquired title to the
same by adverse possession against the widow.
To appreciate the contentions that have been
raised by the parties before us, it will be convenient to
give a brief narrative of the material facts in their
chronological order. A reference to the short genealogical table given below will show at once the relationship
between the parties to the present litigation.
I
Tribhovan
I
Mathurbhai
(died in 1924)
= Hirabai
I
.
Punjabha1
(died in 1931)
I
Jijibhai
I
,--··
Shankarbhai
(died in 1922)
=Bai Kashi
(widow)
(Deft. No. 3)
I
Kashibhai
(died in 1914)
I
I
Rukmini =
Manubhai
(husband)
I
I
I
I .
Natvar!al
Ravajibhai
Dadubha1
Rajini Kant
(Deft. No. 1)
(Deft. No. 2)
(Plff. I}
(Plff. 2)
One Jijibhai, whose name appears at the head of
the table, had two sons, Tribhovan and Kashibhai.
Tribhovan had a son named Mathurbhai who died in
1924 leaving, behind him, his widow Hirabai and a son
Punjabhai. Kashibhai died in 1914 leaving a son
Shankarbhai and a daughter Rukmini. Shankarbhai,
whose property is the subject matter of dispute in the
present case, died without any issue in 1922, leaving
his widow Bai Kashi who is defendant Ko. 3 in the
suit. It is said, that there was a notional partition
between Kashibhai and Mathurbhai in 1913 which
effected a severance of their joint status without any
actual division of properties by metes and bounds.
Mathurbhai died on26thJanuary, 1924,andon the 2nd
of June following Hirabai, his widow, made an application to the District Judge for appointment of a
guardian of the person and property of her minor son
Punjabhai, alleging, inter alia, that the minor was the
sole owner of the entire joint estate by right of
191i3
Natvarlal
Punjabhai
and Another
v.
Dadubhai
Manubhai
and Others.
Mukherjea J.
1953
Natvarlal
PunJabhai
and Another
v.
Dadubhai
Manubhai
and Others.
.Mukherjea J.
SUPREME COURT REPORTS
[1954]
survivorship.
On the 1st of July, 1924, Bai Kashi, the
widow of Shankarbhai, was served with a notice of
this application.
On the 17th of July following, she
purported to adopt a son named Sivabhai and in
answer to the notice in the guardianship proceeding
served upon her, put forward the claim of her adopted
son. The District Judge regarded the adoption to be
invalid and by his order dated November 29, 1924,
appointed the Deputy Nazir of his court as guardian of
the properties of the minor Punjabhai, the properties
including the share of Shankarbhai in the joint estate.
The Deputy Nazir took possession of all the properties
on behalf of the minor and it is not disputed that Bai
Kashi never got possession of any portion of these
properties since then. In 1926 Bai Kashi as the
guardian of her infant adopted son Sivabhai brought a
Title Suit, being Suit No. 180 of 1926, claiming partition of the joint family properties on the allegation
that, by adoption, Sivabhai became a co-owner to the
extent of a half share in them. The suit was resisted
by Punjabhai represented by his court guardian and
the main contention put forward on his behalf was
that the adoption, by the widow, of Sivabhai was
invalid in law. This contention was given effect to by
the trial judge and by his judgment dated the 4th
July, 1927, the suit was dismissed. An appeal was taken
against this decision, on be_half of Sivabhai, to the
High Court of Bombay, but the appeal was withdrawn
on the 25th July, 1927. Thereafter in 1930, Rukmini,
the sister ofi::lhankarbhai and the mother of the present
plaintiffs, instituted a suit, being Suit No. 350 of 1930,
for a declaration that the joint status of the family
was disrupted by the notional partition effected
between Mathurbhai and Kashibhai in 1913 and she,
as the next heir of Shankarbhai, was entitled to succeed
to Shankarbhai's share of the properties on the death
of ~ai Kashi. The trial judge was of opinion that
there was, in fact, a severance of joint status by an
informal partition between MathurbhaiandKashibhai,
but he dismissed the suit on the ground that a suit
of this character was not maintainable in law.
'
..
. i
> ..
•
S.C.R.
SUPREME COURT REPORTS
343
Rukmini died soon after that and her two sons, who
were then minors, represented by their father as next
friend, preferred an appeal to the High Court against
this order. of dismissal. The High Court allowed
the appeal and gave a declaration in favour of
the appellants to the effect that there was disruption
of the joint family in the year 1913. This judgment
is dated the 8th of February, 1939, and thereafter
on the 30th of January, 1941, Bai Kashi executed a
deed of surrender in favour of the plaintiffs relinquishing her widow's estate in favour of the husband's
nearest reversioners.
On the basis of this deed of
surrender the plaintiffs· brought the suit, out of which
this appeal arises, in the Court of the Civil Judge,
Broach, claiming possession of the disputed properties
as the next heirs of Shankarbhai against the defendants who are the sons and heirs of Punjabhai. Bai
Kashi was impleaded as defendant No. 3 in the suit .
The suit was resisted by defendants 1 and 2 who
raised a number of pleas in answer to the plaintiffs'
claim. The material defence was of a three-fold
character. It was contended in the first place that
there was no partition between Mathurbhai and
Kashibhai as alleged by the plaintiffs and the family
being still joint when Shankarbhai died, the entire
joint estate vested in Mathurbhai by right of survivorship. It was alleged in the second place, that even if
the family had separated, the adopted son of Bai
Kashi, being a nearer heir, the plaintiffs had no title
to the property. The last and the main defence was
that the defendants having acquired a title by adverse
possession against the widow, and the widow having
lost whatever interest she had in her husband's property, the deed of surrender was invalid, and even if it
was valid, the surrenderees could not claim possession
so long as the widow was alive.
The trial court overruled all these contentions and decreed the plaintiff's
suit. The defendants 1 and 2 preferred an. appeal
against this decision to the High Court of Bombay and
the appeal first came up for hearing before a Division
Bench consisting of Chagla C.J. and Dixi't J. The
195/J
Nmvarlal
Punjabhai
and Another
v.
Dadubhai
Manubhai
and Others.
Mukherjea J.
195J
Natvarlal
Punjabhai
and Another
v.
Dadubhai
Manubhai
and Othero.
M ukher}ea J.
344
SUPREME COUR'L' REPORTS
(1954]
learned Judges, by their judgment dated the 23rd
January, 1948, which has been described as an interlocutory judgment, disposed of the first two points
mentioned above and affirmed the decision of the trial
court thereon. It was held that the decision in
Rukmini's Title Suit No. 350 of 1930, to which the
defendants were made parties, precluded them from
challenging the fact of there being a partition between
Mathurbhai and Kashibhai in 1913 and also from contending that Sivabhai was a validly adopted son. There
remained the only other question, namely, as to
whether the plaintiffs could, on the basis of the deed
of surrender, lay a claim for possession of the properties during the lifetime of the widow, as against
persons, who had acquired title by adverse possession
against her. In regard to this point, a contention
was raised on behalf of the appellants that the deed of
surrender was not duly proved and . as there was no
definite finding on this point, the learned Judges sent
the case back for findings on the two following issues
which they themselves framed :
(i) Whether the plaintiffs proved the deed of
surrender dated 30th January, 1941 ? and
(ii) Whether Bai Kashi surrendered the whole of
her husband's interest in the whole property of her
husband?
The trial court recorded its findings on both these
issues after taking additional evidence and its findings
were in favour of the plaintiffs. After the findings
were returned to the High Court, the appeal was heard
by a Full Bench consisting of Chagla C.J. and Weston
and Dixit JJ. The Full Bench confirmed the decree
of the trial court and dismissed the appeal. It was
held by the learned Judges that even though the
d~fendants acquired by adverse possession a title
against the Hindu widow, the deed of surrender executed by her did not become infructuous or inoperative
thereby ; and as there was acceleration of inheritance
in favour of the plaintiffs who were the next heirs
of Shankarbhai, they were competent to recover
.. •
> ...
r
S.C.R.
SUPREME COURT REPORTS
345
possession of the properties at once by evicting the
defendants and were not bound to wait till the widow
actually died. It is the propriety of this decision
that has been challenged before us by the defendants
1 and 2 in this appeal.
The arguments advanced by Mr. Krishnaswami
Ayyangar, who appeared in support of the appeal, can
be conveniently considered under two heads. The
first branch of his contention is, that as the widow's
estate was in this case completely extinguished by
adverse possession exercised by the defendants, she
had, in fact, no interest left in her, which she could
make a surrender of in favour of the reversioners.
What is said is, that the widow, by suffering t_he trespassers to remain in possession of her husband's estate
for more than the statutory period, had placed it
absolutely beyond her power to deal with it any further ; and her title being already extinguished by
adverse possession, no further extinction by any act
of surrender on her part was possible. The other
branch of the learned counsel's contention is, that
assuming, that the widow could make a surrender,
such surrender could not prejudice the rights of persons, acquired by grant from the widow or by
prescription against her prior to the date of surrender,
and these rights would, in law, endure during the entire
period of the widow's natural life. Whatever rights
the reversioners could assert, they could assert only
after the widow's death and not during her lifetime.
A number of decided authorities have been canvassed
before us in this connection by the learned counsel and
it cannot be disputed that judicial opinion on these
points is not at all uniform.
It seems to us that for a proper determination of
the questions, it is necessary first of all to formulate
as clearly as possible the precise nature and effect of
what is known as "surrender" by a Hindu widow.
The word " surrender " cannot be said to be free from
ambiguity. If it connotes nothing more than the
English doctrine of merger and a Hindu widow, whose
interest is usually, thou~h incorrectly, lilrnne(l to that
1963
Natvarlal
Punjabhai
and Another
v.
Dadubhai
Manubhai
and Others.
Mukherjea J.
1953
Natvarlal
Punjabhai
and Another
v.
Dadubhai
Manubhai
and Others.
Mukherjea J.
346
SUPRJ<jME COURT REPORTS
(1954)
of a life tenant under the English law, merely accelerates the reversion by surrendering her limited interest
in favour of the reversioner, undoubtedly no surrender
can be effective if the widow has already parted with
her interest in the property by a voluntary act of her
own or her rights therein have been extinguished by
adverse possession of a stranger. The English doctrine
of merger, though it may have influenced some of the
judicial pronouncements in our country has really
speaking no application to a Hindu widow's estate.
The law of surrender by a Hindu widow, as it stands
at present, is for the most part, judge-made law,
though it may not be quite correct to say that there
is absolutely no textual authority upon which the
doctrine could be founded, at least, impliedly. So far
as the Dayabhag law is concerned, its origin is attributed to Jimutabahan's commentary on the well known
text of Katyayana which describes the interest of a
childless widow in the estate left by her husband and
the rights of the reversioners after her death('). While
commenting on Katyayana's text, Jimutabahan lays
down that the persons who should be the next heirs on
failure of prior claimants would get the residue· of the
estate after her use on the demise of the widow in
whom the succession had vested, as they would have
succeeded if the widow's rights were non-existent or
destroyed (in other ways) [jatadhikaraya: patnya:
adhikara pradhvamsepi bhogava?ishtam dhanam gnihryu :]('). It was observed by Ashutosh Mookerjee J.
in Debi Prasad v. Golap Bhagat(') that the theory
of relinquishment or surrender was foreshadowed
in these remarks of Jimutabahan. This
much
is clear from the passage referred to above that
the commentator had in mind other modes of extinction of the widow's interest in her husband's properties besides the natural death of the widow, which
would have the effect of letting in her husband's heirs.
There is indeed no mention of surrender or renunciation
in the text and it was not ·on the basis of any textual
(1) Vide Dayabhag Chap. II, section I, paragraph 56.
(2) Dayabhag Chap. 11, section r, paragraph 59.
(3)10 Cal. 721at]7r,
'
.
.
.. •
,, .
S.C.R.
SUPREME COURT REPORTS
347
authority that the law of surrender developed in India.
But it must be noticed that though certain terms and
expressions of English law have been made use of in a
somewhat loose sense, yet the radical idea involved in
the doctrine of surrender by a Hindu widow is totally
different from what is implied in the merger of a life
interest ir:1. the reversionary estate under the English
law.
In English law the reversioner or remainderman
has a vested interest in the property and his rights are
simply augmented by the surrender of the life estate.
In the Hindu law, on the other hand, the widow, so
long as she is alive, fully represents her husband's
estate, though her powers of alienation are curtailed
and the property after her death goes not to her but
to her husband's heirs. The presumptive reversioner
has got no interest in the property during the lifetime
of the widow.
He has a mere chance of succession
which may not materialise at all.
He can succeed
to the property at any particular time only if the
widow dies at that very moment. The whole doctrine
of surrender is based upon this analogy or legal
fiction of the widow's death. The widow's estate
is an interposed limitation or obstruction which
prevents or impedes the course of succession in
favour of the heirs of her husband. It is open to
the widow by a voluntary act of her own to remove
this obstruction and efface herself from the husband's
estate altogether. If she does that, the consequence is
the same as if she died a natural death and the next
heirs of her husband then living step in at once under
the ordinary law of inheritance. In spite of some
amount of complexity which is unavoidable in a law
evolved by judicial decisions, this fundamental basis
of the doctrine of surrender can be said to be established beyond doubt. Thus Lord Dunedin in Gounden v.
Gounden(') enunciated the law in clear terms as
follows:
"It is settled by long practice and confirmed by
decision that a Hindu widow can renounce in favour
of the nearest reversioner if there be only one or of all
(rl 46 I.A. 72 at 79,
16
1963
Natvarlal
Punjabhai
and Another
v.
Dadubhai
Manubhai
and Others.
Mukherjea J.
Natvarlal
Punjabhai
and Another
v.
Daduhhai
Manubhai
and Others.
MuX~herjea J.
348
SUPREME COURT REPORTS
[1954]
the reversioners nearest in degree if more than one at
the moment. That is to say, she can, so to speak, by
voluntary act operate her own death."
Again in repudiating the suggestion that there could
be any such thing as a partial surrender, His Lordship
observed:
"As already pointed out, it is the effacement of
the widow-an effacement which in other circumstances is effected by actual death or by civil deathwhich opens the estate of the deceaseq husband to his
next heirs at that date. Now, there cannot be a widow
who is partly effaced and partly not so. "
Thus surrender is not really an act of .alienation
of the widow of her rights in favour of the reversioner.
The reversioner does not occupy the position of a
grantee or transferee, and does not derive his title from
her. He derives his title from the last male holder as
his successor-in-law and the rights of succession are
opened out by the act of self-effacement on the part of
the widow which operates in the same manner as her
physical death. It is true .that a surrender may and
in the majority of cases does take the form of transfer,
e.g., when the widow conveys the entire estate of her
husband, without consideration and not as a mere
device to share the estate with the reversioner, in favour
of the latter. But "it is the self-effacement by the
widow that forms the basis of surrender and not the
ex facie transfer by which such effacement is brought
about"('). The true nature and effect of a surrender
by a Hindu widow of her husband's estate have been
thus summed up, and in our opinion quite correctly,
by a Divhion Bench of the Madras High Court('):
"It is settled that the true view of surrender under
the Hindu law is that it is a voluntary act of selfeffacemeni by the widow having the same consequences
as her death, in opening up the succession to the next
heirs of the last male owner. The intermediate stage
(1) I.L.R. 39 Mad. 1035.
(2) See Vytla Sitanna v. Mariwada 61 I.A. '.?OO, 207: M1un1narcddi v.
Pitti Durairaja [1951) S.C.R. 655, 06I.
(3) Vide Daniaraju v, T. l:1.7araya11a I,L.E.. 1941 1\-I~d. 5$1 .. 557·
....
'
"•
..
S.C.R.
SUPREME COURT REPORTS
349
is merely extinguished and not transferred and the law
then steps in to accelerate succession so as to let in the
next reversioner.
The surrender conveys nothing in
law ; it is purely a self-effacement which must of necessity be complete; for, as the Privy Council has said,
there cannot be a widow partly effaced and partly not
just as there cannot be a widow partly dead and partly
alive.
The fiction of a civil death is thus assumed when
a surrender takes -place; and when the reversioners
come in they come in in their own right as heirs of the
last owner and not as transferees from the widow. "
As surrender conveys nothing in law and merely
causes extinction of the widow's rights in her husband's
estate, there is no reason why it should be necessary
that the estate must remain with the widow before she
could exercise her power of surrender. The widow
might have alienated the property to a stranger or
some one might have been in adverse possession of the
same for more than the statutory period. If the
alienation . is for legal necessity, it would certainly be
binding upon the estate and it could not be impeached
by any person under any circumstance. But if the
alienation is not for legal necessity, or if a squatter has
acquired title by adverse possession against the widow,
neither the alienation nor the rights of the adverse
possessor could
a~fect the reversioners' estate at all.
These rights have their origin in acts or omissions of
the widow which are not binding on the husband's
estate. They are in reality dependent upon the
widow's estate and if the widow's estate is extinguished
by any means known to law, e.g., by her adopting a
son or marrying again, these rights must also cease to
exist. The same consequences should follow when the
widow withdraws herself from her husband's estate by
an act of renunciation on her part. Whether any
equitable principle can be invoked in favour of a third
party who has acquired rights over the property by
any act or omission of the widow may be a matter for
consideration. But the learned counsel for the appellants is not right when he says that as adverse
possession extinguisl;ted the rights of the widow, no
fresh extinction by an act of,surrender was possible.
1953
Natvarlal
Punjabhai
and Another
v.
Dadubhai
Manubhai
and Others.
Mukherjea J.
1953
Natvarlal
Pun;"ahhai
and Another
v.
Dadubhai
Manubhai
and Others,
Mukherjea J.
350
SUPREME COURT REPORTS
[i954J
As the rights acquired by adverse possession are
available only against the widow and not against the
husband's heirs, the husband's estate still remains
undestroyed and the widow may withdraw herself from
that estate leaving it open to the reversioners to take
possession of it at once as heirs of the last male holder
unless there is any other rule of law or equity which
prevent them from doing so.
The first branch of the
appellants' contention cannot, therefore, succeed.
This leads us to the other branch of the appellants'
contention and the question arises whether in case of
surrender by a Hindu widow, a person, who has, prior
to the date of surrender, acquired, by adverse possession, an interest in the widow's estate, can be ousted
from possession of the property so long as the widow
remains alive?
This question, Mr. Ayyangar argues,
should be answered in the negative. His contention,
in substance, is, that by reason of adverse possession
for more than 12 years the title of the limited owner
became extinguished under article 28 of the Limitation
Act and the possessor acquired good title against the
widow.
This title, it is said, cannot be displaced by
the surrenderee who gets the property by reason of a
subsequent voluntary act on the part of the widow. In
support of this contention the learned counsel has
placed reliance upon a number of cases, principally of
the Madras High Court, where it has been held that a
reversioner in whose favour a surrender has been made
by the widow cannot challenge the right of a prior
alienee from the widow, even though the alienation
was not for legal necessity, so long as the widow
remains alive; and the same protection could be
claimed by one who acquired the limited interest of a
widow by adverse possession against her;
It is undisputed that there is considerable divergence of judicial opinion on this point and in these
circumstances it is necessary to examine briefly the
different lines of reasoning adopted by the different
High Courts in dealing with the subject. In Subbamma
-v. Subramaiiyam('), which can be taken to be the leading
(1) I,L.~. 39 Mad. 1035,
•
•
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..
..
S.C.R.
SUPREME UOUR1' REPOR'fS
351
pronouncement of the Madras High Court on the point,
it was held that a surrender by a Hindu widow could
not affect prior alienations made by her, and even
though such alienations might not be binding on the
reversioner as not being made for a proper or necessary
purpose, they are binding on the widow for her lifetime or at any rate during the period of her widowhood.
In deciding this case the learned Judges relied mainly
upon an earlier decision of the same court in Sreeramiilu v. Kristamma('), where the view taken was
that an alienation, not for legal necessity, made by a
Hindu widow, prior to adopting a son, could not be
challenged by the adopted son so long as the widow
remaine¢1 alive. In other words, the effect of a surrender by a Hindu widow was treated to be the same
as that of an act of adoption by her.
Two years later, a Full Bench(') of the Madras
High Court overruled the decision in Sreeramu.lu v.
Kristamma(') and held that where a Hindu widow
alienated property for a purpose not binding on the
inheritance and thereafter adopted a son, the right
of the adopted son was not prejudiced by the unauthorised transfer and he could sue for possession at
once. Although the Full Bench overruled the decision
in Sreeramulu v. Kristamma(') which was relied on as
an authority m Subbamma's case( 3), yet the law
enunciated in the latter case as regards the effect
of surrender on previous alienations made by the
widow was not dissented from, and Kumaraswami
Sastriyar J., who was one of the Judges composing
the Full Bench, in the course of his judgment, expressed the view that the adoption of a son by a Hindu
widow to her husband was quite different from surrender in favour of the reversioner, and to a relinquishment by the widow, based on no consideration of duty
to her husban<_l or his spiritual benefit, courts could
(1) 26 Mad. 143.
(2) Vide Vaidyanatha Sastri v. Savithri I.L.R. 41 Mad. 75.
(J) I.L.R. 39 Mad. 1035 .
1953
Natvarlal
Pttnjabhai
and A ttother
v.
Dadttbhai
Manttbhai
and Others.
Mulrherjea J.
1963
Natvarlal
Ptuijabhai
and Another
v,
Dadubhai
Manubhai
and Othtr8.
Mukherjea J.
352
SUPREME COURT REPORTS
[1954]
very properly refuse to annex rights to defeat prior
alienations made by her.
This view
was
approved in Sundarasiva v.
Viyyamma (')and has been accepted since then as good
Jaw in all the subsequent cases(') of the Madras High
Court. The Madras High Court has also expressly
held that the position of a person, who has acquired by
ad verse possession the limited interest of a Hindu
widow is exactly the same as that of an alienee from
her and if the title of such person has been completed
already, it could not be defeated by a surrender made
by the widow('). These decisions undoubtedly support
the appellants' case.
In the Calcutta High Court the question was
raised in Prajulla Kamini v. Bhabani(') as to whether
a gift made by a widow prior to surrendering her husband's estate could be challenged by the reversioner
during the period of the widow's life. The two Judges,
constituting the Bench, differed in their opinion ; and
whereas Walmsley J. held that the gift was valid for
the period of the widow's life, Page J., on the other
hand, after an elaborate discussion of the law relating
to the legal effect of a widow's surrender, came to the
conclusion that the reversioner became immediately
entitled to recover possession from the donee. In view
of the difference of opinion between the two Judges,
there was an appeal filed under clause 15oftheLetters
Patent, but the point in controversy was not decided
by the Letters Patent Bench.
The matter again came
up before another Bench of the Calcutt.a High Court
consisting of D. N. Mitter and Rao JJ.( 5) Both the
Judges concurred in holding that the view expressed by
Page J. in the earlier case was right and that on a
surrender by the Hindu widow of her husband's estate
(I) I.L.R. 48 Mad. 933·
{2) Vide the cases collected in Arunachala v. Ar.uniugha I.L.R. 1953
Mad. 550.
(3) Vide Kamaraiu v. Singaraju A.I.R. 1935 Mad. 664; Korabala v.
Batala A.I.R. 1951 11ad. 753.
(4) 52 Cal. 1018.
·'
(5) Vide Rain KriBhna v. Kauialya 40 C.\V.N. 208,
· .._
..
..
S.C.R.
SUPREME COURT REPORTS
353
and the consequent extinguishment of her interest
therein all prior alienations in excess of her power were
liable to be challenged by the reversioner immediately
on the surrender taking effect just as they could be
impeached if the widow died a natural death. In
the judgment under appeal the Bombay High Court
has substantially accepted the view taken by the
Calcutta Judges in the case referred to above.
In the Allahabad High Court a Division Bench,
consisting of Boys and Sulaiman JJ. took a view
similar to that of the Madras High Court, in Lachmi
v. Lachho('). Boys J. in course
of his judgment
observed:
"The doctrine of surrender having been imported
into the Hindu law by judicial decision, we are entitled to import the complementary rule essential to the
prevention of fraud that the widow cannot by making
a surrender defeat rights created by herself and
creation of which was within her authority. "
Sulaiman J., on the other hand, was very critical of
this view and he expressed his own opinion( 2) as
follows:
"I find great difficulty in discovering any true
basis for holding that though the reversioner in whose
favour the surrender has taken place has succeeded to
the estate of the last male owner and derives title
from him, he is nevertheless estopped from challenging
any alienations made by the Hindu widow during her
lifetime as if he were a grantee from her. "
In spite of these observations, however, the learned
Judge agreed with Boys J. in the conclusion arrived
at by the latter, principally on the ground that it
would not work any hardship if the reversioner, in
whose favour the surrender is made, were to take the
property subject to the transfers made by the widow
so as to allow the transfers to remain valid for her
lifetime. There has however been a definite change
(r) I.L.R. 49 All. 334.
(2) I.L.R. 4~ All. 334, 3f6,
1963
Natvarlal
Punjabhai
and Another
v.
Dadubhai
Manubhai
and Others.
Mukherjea J,
1953
Natvarlal
Punjabhai
and Another
v.
Dadubhai
.1l1anubhai
and OtheYs.
Mu,kher;ea J.
354
SUPREME COURT R.EPORTS
[1954)
in the view taken by the Allahabad High Court since
then, and in a very recent pronouncement(') of that
court the learned Judges have expressly approved of
the decision of the Calcutta High Court which is in
entire agreement with the opinion actually expressed·
by Sulaiman .J. as stated above.
So far as the Patna High Court is concerned, the
case of Basudeo v. Baidyanath(') was decided sometime before the case of Ram Krishna v. Kausalya(')
was heard by the Calcutta High Court and the learned
Judges, without examining the principles of law
independently, followed the Madras authorities which
had at that time been accepted by the Allahabad High
Court.
An analysis of the Madras decisions, referred to
above, upon which the learned counsel for the appellant places his reliance, will show that the grounds
upon which they purport to be based are of a threefold character. The first is that an alienation of
property by a Hindu widow, in excess of her powers,
though not binding on the inheritance, creates in the
alienee an interest commensurate with the period of
her natural life.
A part of the interest, it is said, is
severed from the husband's· estate when there is an
alienation by the widow, and the reversioner when he
takes the estate on surrender, takes it subject to the
interest already created. A person, who has acquired
the widow's interest by adverse possession against her,
occupies, according to the Madras decisions, as stated
above, the same position as an alienee from the
widow.
The second ground is, that as the widow herself is
incapable of disputing the title of the alienee or of the
person who has acquired interest by adverse possession
against her, a like disability attaches to the reversioner
also who could not have obtained the properties but
for the surrender made by the widow.
The third
(I) Vide Raghuraj Singh v. Babu Singh A.LR. 1952 All. 875.
(2' A.I.R. 1935 Pat. 175.
(3) fO C,W.N. 208,
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•
S.C.R.
SUPREME COURT REPORTS
355
ground assigned is that the law of surrender being a
judge-made law, the courts in recognising the right of
surrender by a Hindu widow can and ought to impose
condition~ on the exercise of her power based on
considerations of justice, equity and good conscience,
and surrender being a purely voluntary act on the
part of the widow, she could not be allowed by her
own act to prejudice the interests which she had already
created.
The first line of reasoning mentioned above is
based upon the dictum of Bhashyam Ayyangar J. in
Sreeramulu v. Kristamma('), which though accepted in
Subbamma's case(
2), was expressly dissented from in
the subsequent Full Bench decision in Vaidyanatha v.
Savithri(3). This view, in our opinion, proceeds upon
a misconception regarding the true nature of a Hindu
widow's estate and the rights and duties which vest in
her under the Hindu law.
Though loosely described
as a "life estate ", the Hindu widow's interest in her
husband's property bears no analogy to that of a" life
tenant" under the English law. As was pointed out
by the .Judicial Committee( 4) as early as 1861, the
estate which the Hindu widow takes is a qualified
proprietorship with powers of alienation for purely
worldly or secular purposes only when there is a
justifying necessity and the restrictions on the powers
of alienation are inseparable from her estate. The
restrictions, as the Judicial Committee pointed out,
which are imposed on the Hindu widow's powers
of alienation, are not merely for the protection
of the material interest of her husband's relations, but by reason of the opinion expressed by
all the Smriti writers that the Hindu widow should
live a life of moderation and cannot have any power of
gift, sale or mortage except for religious or spiritual purposes. The Hindu law certainly does not countenance
the idea of a widow alienating her property without
any necessity, merely as a mode of enjoyment, as was
(1) 26 Mad. 143.
(2) I.L.R. 39 Mad. 1035.
(3) I.L.R. 41 Mad. 75.
(4) Vide Collector of Masulipatam v. Oavaly Venkata 8 M.I.A. 529.
'f7
1953
Natvarlal
Punjabhai
and Another
v.
Dadubhai
Manubhai
and Others.
Mukherjea J.
1963
Natvarlal
Punjabhai
and Another
v.
Dadubhrti
Jl,fa.nubhai
and Others.
ft111kheryea J.
356
SUPREME COURT REPORTS
[1954]
suggested before us by Mr. Ayyangar. If such a
transfer is made by a Hindu widow, it is not correct
to say that the transferee acquires necessarily and in
law an interest commensurate with the period of the
natural life of the widow or at any rate with the period'
of her widowhood.
Such transfer is invalid in Hindu
law, but the widow, being the grantor herself, cannot
derogate from the grant and the transfer cannot also
be impeached so long as a person does not come into
existence who can claim a present right to possession
of the property. As in the majority of cases, persons
with such rights come into existence only when the
widow dies it is generally said that the alienee gets
the estate for the term of the widow's life. We think
that the legal position has been correctly indicated by
Kumaraswami Shastriyar .J. in the Full Bench case(')
referred to above.
On the one hand, a Hindu widow
has larger rights than those of a life-estate holder,
inasmuch as, in case of justifying necessity she can
convey to another an absolute title to the properties
vested in her.
On the other hand, where there is no
necessity for alienation, the interest, which she herself
holds and which she can convey to others, is not an
indefeasible life estate, but an estate liable to be defeated on the happening of certain events which in Hindu
law cause extinction of the widow's estate.
Remarriage by the widow is one such event which completely
divests her of any interest in her husband's property.
Adoption of a son to her husband is another circumstance which puts an end to her estate as heir to her
husband, the effect of adoption being to bring in a son
who has prior claims to succession under the Hindu
law. In both these sets of circumstances it is not
disputed that prior rights derived from the widow, if
not supported by legal necessity, could be defeated by
the next heir of the husband or the adopted son as the
case may be. If the effect of surrender, as explained
above, is to destroy the widow's estate in the same
way as if she suffered physical or civil death, there is
no conceivable reason why the reversioner should not,
subject to any question of fraud or collusion that
might· arise, be in a position to recover possession of
(1) Vide Vaidyanatha v, Savithri, I.L.R. -tr Mad. 75.
•
,.
S.C.R.
SUPREME COURT REPORTS
357
the properties from an alienee from the widow or from
one who has obtained title by adverse possession against
her, as none of them could acquire rights except against
the widow herself. Kumaraswami Shastriyar J. is of
opinion(1) that a surrender stands on a different footing
from adoption by a widow.