JUDGMENT
Boys, J.
1. This was a suit for sale on a hypothecation bond dated the 16th of February, 1910. It is unnecessary for the purposes of this appeal to set out the whole history of the case in detail. It is very carefully and fully set out in the judgment of the learned Subordinate Judge to be found at page 14 of the printed book. The facts may be stated briefly. Bakhtawar Lal,the owner of the estate, died leaving a widow Gangadei. Gangadei proceeded to squander the estate. Upon her death Musammat Lachho, herdaughter, came into possession. For the purpose of challenging some of the transactions entered into by Gangadei, Musammat Lachho raised money by executing a simple mortgage of Rs. 5,000 on the 15th of February, 1910, in favour of Baldeo Singh of certain house property. On the 5th of November, 1917, Musammat Lachho surrendered her rights in the estate of her father in favour of her son Puranchand, the next reversioner. By that deed she stated “I hereby relinquish all my life-interest in the moveable property such as household goods and the immoveable property acquired and left by my father Lala Bakhtawar Lal deceased resident of Dehra Dun, and my son Puranchand, the reversionary heir, has, from this very time, i.e., from the time of execution of this deed of relinquishment acquired all the rights and interests he would have acquired after my death” The document is printed in full at page 185 of the printed book.
2. In 1920 Lala Baldeo Singh died and his heir is Lachmi Chand, the present plaintiff. On the 14th of February, 1922, Lachmi Chand instituted the present suit for sale. The learned Subordinate Judge held that the bond was not executed for legal necessity; and that finding has not been challenged before us. At the very close of the case it was further urged before him, that assuming that the alienation was not for legal necessity, still a decree should be passed against the widow alone and the purchaser should be allowed to retain possession until her death. For the defendant in answer to this plea reliance was placed on paragraph 15 of the plaint wherein the plaintiff stated that Musammat Lachho had surrendered her life-estate in favour of Puran Chand defendant, and because he through his guardian, i.e., his father, is a party to the bond in suit and is an heir to the estate left by Bakhtawar Singh and owner thereof, the plaintiff has a cause of action against him as well. Ths defendant contended that the surrender having been made, the widow’s estate had been effaced. The learned Subordinate Judge held on this point that “the plaint clearly indicated that the life-estate was at an end” and that this prayer of the plaintiff could not be granted in face of the clear statements in the plaint. He added “if the suit had been properly framed it may have been possible that the plaintiff would get some decree, but as it is. the suit cannot succeed.”
3. The only question seriously argued before us was whether the surrender by Musammat Lachho in favour of the next reversioner, Puran Chand, extinguished immediately the mortgage executed by Musammat Lachho in favour of Baldeo Singh assuming that it was not for legal necessity. A second suggestion made, for the respondent, was that even if ordinarily the mortgage would not be extinguished Baldeo Singh ought to be held estopped from enforcing his mortgage. The suggestion was not, however, and, in our opinion, could not be seriously pressed and the case was argued really only on the basis of what is the correct answer to the first question.
4. As to this first question we have heard lengthy arguments which have been of great assistance and we have had a large number of authorities quoted to us dealing variously with the effect of the death of a Hindu widow, of her re-marriage, of an adoption made by her, and finally, of surrender or relinquishment by her. The result at which I have arrived can, however, be stated with comparative brevity.
5. I am not satisfied that any of the authorities on the effect of death, re-marriage or adoption can help us very much when we are dealing with the effect of a surrender. There can be no question but that the effect of death, re-marriage and adoption is governed solely by considerations strictly of Hindu Law; while the doctrine of surrender owes its birth to judicial decisions. These propositions will not, I think, be disputed. I could not put it more forcibly than it is stated by Kumaraswami Sastriar, J., in Vaidya Natha Sastri v. Savithri Ammal 42 Ind. Cas. 245 : 41 M. 75 at pp. 96, 99 : 33 M.L.J. 387 : (1917) M.W.N. 653 : 22 M.L.T. 275 6 : L.W. 542 (F.B.). The learned Judge was there considering the effect of adoption. At page 96 Pages of 41 M.–[Ed.] he said: “So far as reversioners are concerned their position is quite different from that of an adopted son” and at page 99 Pages of 41 M.–[Ed.] “Reference has been made to cases where it has been held that a reversioner to whom the widow surrenders the estate (and thereby accelerates the succession) cannot sue to set aside the alienation made by her till she dies. These cases have, in my opinion, no bearing or application to cases of adoption by the widow. The whole doctrine of surrender and consequent acceleration of the estate of the reversioners has no basis in Hindu Smritis but has been evolved by Courts of Justice on general principles of jurisprudence. An anticipation of interest involved by the theory of relinquishment or the defeasance of an ulterior interest by the intermediate acts on the part of the widow are hardly contemplated by the Hindu law givers. It is clear that the surrender by the widow and the acceptance of the estate by the reversioner are purely matters of contract.”
6. There are many other points which readily suggest themselves which differentiate death from re-marriage, adoption or surrender; which differentiate death and adoption from re-marriage or surrender; and which differentiate adoption from surrender.
7. To allot to each of these differences its, exact value would be an imppossible task. But the differences exist, and particularly in view of the further fact that the whole doctrine of surrender is the creation of juidical decision, I do not think it would be in the least degree safe to apply to surrender cases dealing with either of the other three incidents.
8. If the proposition which I have quoted above as stated by Kumaraswami Sastriar, J., is correct, and I accept it as correct, then it appears to me tnat the question of the effct of surrender has to be approached, firstly, from the standpoint of the ordinary law which would be applicable to persons who were not necessarily Hindus; while, secondly, the result arrived at must be controlled by any authoritative pronouncements that there may be by their Lordships of the Privy Council declaratory of the effect of a surrender by a Hindu widow.
9. As to the first aspect, it does not appear to me material whether we regard the doctrine of surrender. though imported. As now a part of Hindu Law or not. Assuming that it is now to be regarded as an integral part of Hindu Law, the principle has been imported by judicial decisions and there is no reason why a further complimentary principle should not be imported where such importation is vitally necessary to prevent in certain circumstances the law being made use of to perpetrate flagrant fraud.
10. Approaching the problem then, beyond doubt a difficult problem, in this way, the first question to be asked is “what would ordinarily be the effect of such a surrender?” Clearly the mortgagee’s rights would remain intact. If certain rights exist in A and he detracts from those rights by granting for valuable consideration a portion of his rights to B, he clearly would not be allowed to transfer all his rights to C inclusive of the rights which he had already transferred to B. B’s rights would survive.
11. Whatever early Hindu Law may have been, it is now clearly established by judicial decision that a Hindu widow, though her estate cannot be described as a life estate, can, apart from surrender, adoption or re-marriage, bind the estate in effect for her own life, even without necessity; in other words, a Hindu widow who makes a transfer for consideration, cannot repudiate that gift or transfer.
12. If she cannot repudiate, on what principle can it be held possible for her to defeat such an alienation by surrender?
13. It is important here to bear in mind steadily that the whole doctrine of surrender is the creation of judicial decision. It was unknown to the Hindu Law. Applying then again the principles of the ordinary law, on what principle can a reversioner, who, though, he, of course, takes as heir to the least male holder, actually comes prematurely into his reversion by the act of the limited owner, claim to reap the benefit of what must be regarded, if the mortgagee’s rights are to be defeated, as the limited owner’s immoral act?
14. It is clear that a grantee cannot ordinarily repudiate the prior act of his grantor in favour of another person. It is, of course, true that a Hindu widow surrendering the estate cannot be correctly described as the grantor of the estate to the reversioner. The reversioner succeeds not to the estate of the widow but to the estate of the last male owner. But the widow is in the position of the benefactor of the reversioner. It is by her act that the reversioner comes prematurely into his estate, and her position is, as it appears to me, for the present purpose at least very analogous to that of a grantor.
15. So far then I would hold that the doctrine of surrender having been imported into Hindu Law by judicial decision, we are entitled in the absence of authority to the contrary to import the complimentary rule, essential to the prevention of fraud, that the widow cannot by making a surrender defeat rights created by herself and the creation of which was within her authority, and the reversioner cannot claim on the basis of the surrender to defeat such rights. This, however, does not conclude the matter. Left at this point, the result would have to be stated as follows. A widow has surrendered to the person, who was the next reversioner at the time of the surrender, the whole of the estate as it existed in her. Let us suppose that she received from the last male owner four villages A, B, C and D, of which she has kept intact three, A, B, C, while she has mortgaged the village D. The whole estate existing in her at the time of the surrender consists of the villages A, B and C and the equity of redemption only in D. This whole estate she surrenders and thereby wipes out the whole estate as existing in her. The next reversioner at the time of the surrender, let us call him X, receives then the whole of the villages A, B, C, but only the equity of redemption in the village D.
16. It is clear, however, that as the next reversioner inherits not from the widow but from, and the estate of, the last male owner, he must have aright to challenge the necessity for the mortgage. The questions then that call for determination are when does that right vest in the reversioner and is it exerciseable immediately it has vested or at what time?
17. The right to challenge is not a right which constituted any part of the widow’s estate, and cannot be said to have been conferred on him by the widow. It is a right which owes its origin solely to the fact that he is the representative of the last male owner. That right must, therefore, vest in him immediately the widow has surrendered her whole estate to him, that is to say, on the date of the surrender. If we were to hold otherwise and that it only vested in the next reversione upon the death of the widow, it might be that the person who was the next reversioner at the date of the surrender, would not be the next reversioner at the date of the death of the widow, and if it were to be held that the right to challenge did not vest in the next reversioner at the date of the surrender, the result would be that the villages A, B, C and D, in the illustration which we have taken, would vest in the next reversioner at the date of the surrender, while the right to challenge the mortgage would vest in a different person who happened to be the next reversioner at the date of the widow’s death. This would be obviously impossible and further in direct conflict with the proposition clearly established by judicial decision that the whole of the rights of the last male owner vest in the next reversioner at the date of the surrender. It would be impossible to hold that the inheritance was divided, some of the rights going to the next reversioner at the date of the surrender and other rights going to the next reversioner at the date of the death of the widow. It is clear, therefore, that the next reversioner at the date of the surrender has vested in him not only the rights in the villages A, B and C and the equity of redemption of the village D, but also the right to challenge the necessity for the mortgage.
18. How then are we to reconcile these two propositions, that the right to challenge the mortgage vests in the next reversioner at the date of the surrender, and, secondly, that the person, that is the next reversioner, at the date of the surrender, who had benefited by the act of the person surrendering, the Hindu widow, cannot claim to defeat the rights given to a third party by the person by whose act he himself prematurely comes into the estate?
19. They do not seem irreconcilable. It is in accordance with judicial principles to hold that a right though vested in a particular person at a particular date cannot for a particular reason be enforced by him immediately.
20. There is, therefore, nothing in conflict with judicial principles in holding that the right to challenge the mortgage vests in the next reversioner at the date of the surrender, but that, by reason of the fact that the accrual of that right prematurely is due to the action of the widow, he is debarred, until the death of the widow from challenging transfers made by the widow, which but for the surrender would have been good for the widow’s life (leaving, of course, aside any question of remarriage or adoption).
21. I would, therefore, answer the question by saying that Puran Chand became entitled, so far as this case is concerned, to the estate of the last male owner, his grandfather Bakhtawar Lal; but that the mortgage in favour of Baldeo Singh will hold good till the death of Musammat Lachho, upon which occurring he will have the right to recover possession of the property, the question of absence of legal necessity having been already determined in his favour by the trial Court in this case and not having been challenged before us in appeal.
22. A corollary of this last proposition is that the plaintiff, Baldeo Singh, is entitled to enforce his mortgage as valid during the lifetime of Musammat Lachho.
23. Before concluding I would note that we have, of course, been referred to the case of Rangasami Gounden v. Nachiapppa Gounden 50 Ind. Cas. 498 : 42 M. 523 : 36 M.L.J. 493 : 17 A.L.J. 536 : 29 C.L.J. 539 : 21 Bom. L.R. 640 : 23 C.W.N. 777 : (1919) M.W.N. 262 : 26 M.L.T. 5 : 10 L.W. 105 : 46 I.A. 72 : 1 U.P.L.R. (P.C.) 66 (P.C.). If I thought that case applicable to the facts before us, there would, of course, be an end of the matter; but there is not, in my opinion, in what I have said above, any departure from the rule laid down by their Lordships. Their Lordships laid down the rule that “the whole estate” must be regarded as vesting in the reversioner and that the widow must be regarded as “wholly effaced;” but the language used must surely be read in the light of the facts which their Lordships were considering. That was a case in which the widow had surrendered only a portion of the estate which remained in her. In that case the widow had not surrendered her whole estate and had not wholly effaced herself. In the present case she has surrendered her whole estate and has wholly effaced herself. She does not claim to have any rights remaining in her after the surrender; nor does anybody claim to have any rights through her created by her after the surrender.
Sulaiman, J.
24. The question whether a surrender by a Hindu widow in favour of the next reversioner can affect previous alienations by her is not free from considerable difficulty. In cases of ordinary limited owners or owners of life-estates, it is obvious that the surrender can only be of the interest which remains in the qualified owners after the alienations, and can, therefore, in no way affect those alienations so long as the limited or life-estates last. It would also appear unjust and highly inequitable that a limited owner should by her own voluntary act destroy the validity of her own alienations during her lifetime. Looked at from this point of view, it would seem at first sight that in spite of the surrender made by a Hindu widow, the reversioner who succeeds, cannot during her lifetime challenge alienations made by her on the ground of want of legal necessity.
25. On the other hand the estate enjoyed by a Hindu widow is not an ordinary limited estate and is in no sense a life-interest. Her position is distinctly peculiar and it is necessary to consider how far the analogy of surrenders by other limited owners can apply to her. It has been repeatedly stated in numerous cases that the widow’s interest in her deceased husband’s property is not a life-interest. I need only quote a passage from Lord Dunedin’s judgment in Rangasami Goundan v. Nachiappa Goundan 50 Ind. Cas. 498 : 42 M. 523 : 36 M.L.J. 493 : 17 A.L.J. 536 : 29 C.L.J. 539 : 21 Bom. L.R. 640 : 23 C.W.N. 777 : (1919) M.W.N. 262 : 26 M.L.T. 5 : 10 L.W. 105 : 46 I.A. 72 : 1 U.P.L.R. (P.C.) 66 (P.C.). “It has often been noticed before, but it is worthwhile to repeat, that the rights of a Hindu widow in her late husband’s estate are not aptly represented by any of the terms of English Law, applicable to what might seem analogous circumstances. Phrased in English Law terms, her estate is neither a fee, nor an estate for life, nor an estate tail. Accordingly one must not, in judging of the question become entangled in western notions of what a holder of one or other of these estates might do.” When she holds no estate for life it would be incorrect to say that an alienation made by a widow holds good at least for her lifetime. There are many ways recognised by Hindu Law in which a widow’s estate may terminate before her actual death. For instance, it terminates by her adopting a son or may terminate by re-marriage. The more correct way of stating the law would be that an alienation made by a Hindu widow holds good so long as her widow’s estate subsists. That surrender is another mode by which a widow’s estate can be terminated, must in view of the pronouncement of their Lordships of the Privy Council be accepted without question in Behari Lal v. Madho Lal Ahir Gayawal 19 C. 236 : 19 I.A. 30 : 6 Sar. P.C.J. 88 9 Ind. Dec. (N.S.) 603 (P.C.). Lord Morris said: “It may be accepted that, according to Hindu Law, the widow can accelerate the estate of the heir by conveying absolutely and destroying her life-estate. It was essentially necessary to withdraw her own life-estate, so that the whole estate should get vested at once in the grantee.” In this passage, however, her estate is called a “life-estate” and is said to be ‘conveyed’ and the reversioner, in whose favour the surrender took place, a “grantee”. In the recent case of Rangasami Goundan v. Nachiappa Gounden 50 Ind. Cas. 498 : 42 M. 523 : 36 M.L.J. 493 : 17 A.L.J. 536 : 29 C.L.J. 539 : 21 Bom. L.R. 640 : 23 C.W.N. 777 : (1919) M.W.N. 262 : 26 M.L.T. 5 : 10 L.W. 105 : 46 I.A. 72 : 1 U.P.L.R. (P.C.) 66 (P.C.), Lord Dunedin before quoting the above passage remarked: “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 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.” If surrender is one of the ways in which a widow’s interest terminates–it would be difficult to say that although the estate has terminated previous alienations made by her continue to hold good so long as she is not actually dead. The act of surrender involves a total destruction of her entire interest. In the words. of Lord Dunedin “it is the effacement of the widow–an effacement which in other circumstances is effected by actual death or by civil death–which opens the estate of the deceased husband to his next heirs at that date”. The effect of the surrender, therefore, is to open out the succession immediately. The reversioner in whose favour the surrender takes place is not really in the position of a grantee or transferee from the widow, but succeeds to the estate in his own right as the immediate heir, his succession having been accelerated by the act of the widow. He does not derive title from the widow but derives title from the last male owner though his inchoate right has become matured on account of the widow’s act. He is under an obligation to the widow who (sick)as conferred a benefit on him by removing the obstacle of her own life, but the succession, once accelerated, has opened out to him by virtue of his position as the then heir. The logical result of this conclusion must be to place him in the same position for the purpose of challenging improper alienations as that of an ordinary reversioner who has succeeded on the death of a widow.
26. 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 alienations made by the Hindu widow during her lifetime as if he were a grantee from her, A grantee undoubtedly cannot question the act of his grantor, but the reversioner is not in the true sense of the word a grantee at all. He is certainly not a grantee from the widow of any interest in the property which she has previously sold away, as no interest is left in her. If he were a grantee he would not only have been estopped from challenging the alienation during the lifetime of the widow but would also have been equally estopped from challenging it after her death. That admittedly cannot be the case. It seems to me that it would be inconsistent to say that the estate of the widow has been destroyed and the whole estate has become vested in the next reversioner, and yet in order to repudiate improper alienations this reversioner must wait till the widow has died. It would be saying in the same breath that the widow is civilly dead, and yet remains an obstacle in the way of the reversioner till she actually dies.
27. As Lord Dunedin remarked “there cannot be a widow who is partly effaced and partly not so.” Her effacement must be complete and not partial. The whole estate must, therefore, vest in the reversioner entitled to succeed on the date of her effacement, that is to say, on the date of the surrender. Other reversioners who may be entitled to succeed on the death of the widow later on would have no locus standi to challenge her alienation, as no part of the estate would vest in them at all. The effect of the surrender involving the effacement of the widow and the extinction of her estate necessarily wipes out all the lines of reversioners and makes the immediate male reversioner a fresh stock of descent.
28. Now an alienation made by a widow is binding at least on her. It is, therefore, not possible to say that in spite of her own alienation she still retains a right to challenge it, which she may surrender to the next reversioner. No such right is retained by her at all. The right to challenge devolves on the reversioner not because of the surrender made by her but because of the position he occupies as the representative of the last male owner. I have, therefore, great difficulty in agreeing with what Sadasiva Aiyar, J., said in Segu Chidambarama v. Sareddi Husainamma 30 Ind. Cas. 101 : (1915) M.W.N. 577 at p. 579 : 2 L.W. 952 : 29 M.L.J. 546 : 18 M.L.T. 394 : 39 M. 565, viz., “that the absolute estate vested in her becomes by her alienation for her own purposes divided into two estates (1) a life-estate enjoyable by the purchaser during her lifetime and (2) a reversionary estate to be enjoyed after her lifetime, both of which estates or rather the total of which belonged to her husband at his death.” I do not think that the effect of an alienation is to split the estate up into any such two parts, or to give to the alienee an interest necessarily co-extensive with her lifetime. The reversionary right to challenge it is no part of the widow’s estate at all, and, therefore, could not be surrendered to the reversioner.
29. In view of the above remarks it is very difficult for me to find any sound basis for holding that the right to challenge the alienation which has devolved upon the reversioner on his succession remains in abeyance so long as the widow is alive. When this right has not been acquired by the reversioner from the widow it is difficult to see on what rule of equitable estoppel the reversioner cannot exercise his right to avoid the alienation.
30. Whether the foundation of the doctrine of surrender can be sought in certain texts of the Smritis or whether it is a judge-made law engrafted on the Hindu Law need not now be considered. Having become a part and parcel of the Hindu Law, the doctrine must be applied consistently with the other principles of that law, and not independently of them. Accordingly, if surrender really amounts to her civil death a destruction of her widow’s estate and an effacement of the widow herself, alienations made by her, if improper, must also automatically become voidable at the option of the reversioner. This appears to me to be the only logical result of the reversioner’s position. If the question were res integra, I would have unhesitatingly held so.
31. One cannot, however, shut one’s eyes to the fact that to allow voluntary surrenders by widows in favour of her own daughter, daughter’s son, or other near reversioners ( to defeat all previous alienations by her, may be opening a wide door for fraud. In the case of Sreeramulu v. Kristamma 26 M. 143 at p. 155 : 12 M.L.J. 197 Bhashyam Ayyangar, J., remarked “a person dealing with a widow reasonably calculates that the alienation will hold good, at any rate, during her lifetime” and would find himself defrauded if subsequent to the transfer the widow suddenly surrender the estate to her own daughter or daughter’s son. In view of the notions which exist at present, this would certainly be so. The effect of holding that such surrenders can automatically put an end to previous alienations would be to revolutionise the conception which has at any rate so far prevailed. There is plenty of authority in support of the view that the surrender is subject to the previous alienations. In the case of Singaram Chettiar v. Kalyanasundaram Pillai 26 Ind. Cas. 1 : (1914) M.W.N. 735 : 1 L.W. 687, Wallis, C.J., and Hannay, J, held that “it seems clear that a widow cannot, by relinquishing her widow’s estate to the reversioner, affect the validity of alienations made by her before such relinquishment which, though not binding on reversioner, were binding on her for life.” Similarly another Bench of the Madras High Court in the case of Kottapalli Subbamma v. Jatavallabhula Subramanyam 32 Ind. Cas. 813 : 39 M. 1035 : 30 M.L.J. 260 held that “a surrender by a Hindu widow of her interest in her husband’s estate in favour of the nearest male reversioner cannot affect alienations, which were made by her prior to the surrender and which though not binding on the reversioner were binding on her for her life”. In this last mentioned case Sadasiva Ayyar, J., based his decision mainly on the observations of Bhashyam Ayyangar, J., in Sreeramulu v. Kristamma 26 M. 143 at p. 155 : 12 M.L.J. 197 and the judgment of Wallis, C.J., and Hannay, J., quoted above. Napier, J, however, treated the widow as an assignor and the reversioner as an assignee and held that the theory that the surrender by an assignor could invalidate legal rights obtained by ah assignee was contrary to equity and good conscience. He he that alienation for life should enure, and the rest of the estate merged into the reversioner and declined to accept any extension of the reversioner’s right beyond this. The case of Sreeramulu v. Kristamma 26 M. 143 at p. 155 : 12 M.L.J. 197 was a case of adoption and was dissented from by the Bombay High Court in Ram Krishna v. Tripurabai 1 Ind. Cas. 647 : 33 B. 88 : 10 Bom. L.R. 1029 was doubted at Allahabad in Sahdeo Singh v. Ramnandan Singh 4 A.L.J. 354 : A.W.N. (1907) 148 and has since been overruled by the Madras High Court itself in Vaidyanatha Sastri v. Savithri Ammal 42 Ind. Cas. 245 : 41 M. 75 at pp. 96, 99 : 33 M.L.J. 387 : (1917) M.W.N. 653 : 22 M.L.T. 275 6 : L.W. 542 (F.B.). I am unable, as Napier, J, did, to treat the position of the reversioner as that of an assignee of the estate from the widow. The doctrine of estoppel based on the principle of grant is, therefore, not applicable. But even in the Madras Full Bench case Wallis, C.J., felt considerable reluctance in differing from the judgment of Bhashyam Ayyangar, J., because he thought that there was much to be said for the “view that a Hindu widow should not be permitted, when in the exercise of such powers of disposition she has alienated for consideration her interest in whole or in part, to abridge the interest which she has parted with and derogate from her grant by the subsequent exercise of a power of adoption which she is not under legal duty to exercise.” Kumaraswami Sastriar, J., at page 9 Page of 41 M.–[Ed.] in distinguishing cases of surrenders put the whole argument in forceful and terse language:–“The whole doctrine of surrender and consequent acceleration of the estate of the reversioners has no basis in Hindu Smritis but has been evolved by Courts of Justice on general principles of jurisprudence… It is clear that the surrender by the widow and the acceptance of the estate by the reversioner are purely matters of contract…To a voluntary relinquishment by the widow based on no considerations of duty to her husband or his spiritual benefit, Courts have very properly refused to annex the right to defeat alienations made by her which would enure longer but for her voluntary act. As between the widow, the prior alienee, and the reversioners claiming title under a subsequent surrender the alienee has a clear equity to retain possession and the fruits of his purchase till at least the widow dies.”
32. The attempt to invoke the principles of equity is not, however, laid on sure foundation. For if the law is once made clear, any one who chooses to take property from a qualified owner without valid necessity, takes it subject to the risk of losing it if the widow’s estate terminates, earlier than he expected, in any of the ways recognised by law. It is difficult to see why equity should help a man who enters into such an uncertain transaction with his eyes open.
33. The only other case in which this question arose directly is the case of Prafulla Kamini Roy v. Bhabani Nath Roy 91 Ind. Cas. 897 : 52 C. 1018 : A.I.R. 1926 Cal. 121. Walmsley, J, and Page, J., differed in their views, the former holding that a gift by a Hindu widow in spite of a surrender of the estate would hold good for the widow’s life, the latter holding that the reversioner immediately after the surrender became entitled to recover possession from the donee. Although much of the reasoning adopted by Page, J appeals to me and is in accord with my personal opinion, I feel reluctant, in the face of the other authorities to the contrary, to extend the power of the widow to invalidate her own alienations by a voluntary act of her own for which there is no religious obligation on her. The position of a widow who has surrendered the estate is not quite analogous to that of a widow who has adopted a son or who has re-married. Adoption when directed by her husband is considered to be a religious obligation, the performance of which is conducive to conferring a spiritual benefit on the deceased and to perpetuate his line. A re-marriage, when not permitted by custom, takes the widow out of her husband’s family altogether and deprives her of the privileges to which she may have been entitled. A surrender, however, is a purely voluntary act and it may be with or without consideration. It would, therefore, by no means work any hardship if a condition is imposed (though I am afraid, with a certain amount of inconsistency) by Courts, which have engrafted this doctrine on Hindu Law, that surrenders must be subject to previous alienations made by her. The reversioner who persuades the widow to efface herself may be allowed to take the estate which remains in her possession immediately, and then after her death to avoid alienation which would have been voidable at the instance of a reversioner succeeding in natural course.
34. In view of the last considerations I am not disposed to differ from the conclusion arrived at by my learned brother.
35. By the Court,–Allowing the appeal and setting aside the decree of the lower Court, in lieu thereof we grant the plaintiff a decree under Order XXXIV, Rule 4, against the defendants Nos. 1 and 2 for Rs. 15,000 with 6 per cent interest from the date of suit and costs of both Courts.
36. The defendants will have the usual six months from this date for payment of the said amount and in default of payment the mortgaged property will be sold subject to the right of Puranchand and his heirs to recover possession upon the death of Musammat Lachho.
