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PETITIONER: MUMMAREDDI NAGI REDDI AND OTHERS

       Vs.

RESPONDENT: PITTI DURAIRAJA NAIDU AND OTHERS

DATE OF JUDGMENT: 08/05/1951

BENCH: MUKHERJEA, B.K. BENCH: MUKHERJEA, B.K. MAHAJAN, MEHR CHAND BOSE, VIVIAN

CITATION:  1952 AIR  109            1952 SCR  655  CITATOR INFO :  R          1952 SC 207  (19)  R          1954 SC  61  (8)

ACT:     Hindu Law--Widow--Surrender--Release in favour of daugh- ter and son-in-law--Validity--Suit by reversioner--Right  to mesne profits.

HEADNOTE:     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 was 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 latter 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  surren- der  in  favour  of the female heir and a  transfer  by  the latter to the stranger, and is not binding upon the ultimate reversioners.     Jagrani  v.   Gaya (A.I.R. 1933   All.   8561  approved. Nobo  Kishore  v. Harinath (I.L.R. 10 Cal.  1102)  commented upon. Vytla Sitanna v. Marivada (L R. 61 I.A. 200), Rangasa- mi Goundan v. Nachiappa Goundan (41 I.A. 72) and Debi Prosad v. Gola Bhagat (I.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  bene- fit  of  the  estate, mesne profits can be  awarded  to  the reversioner  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 (I.L.R. 41 All. 63) distinguished.

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JUDGMENT:     CIVIL  APPELLATE  JURISDICTION.  Civil Appeal No. 51  of 1950.    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.) in 85 656 Appeal No. 167 of 1945 arising out of decree dated the  17th August,  1942, of the Subordinate Judge at Nellore  in  O.S. No. 3 of 1940.     K.  Rajah  Aiyar (R. Ganapathi lyer, with him)  for  the appellants.’     B.  Somayya (M. Krishna Rao, with him) for the  respond- ents.      1951. May 8. The judgment of the Court was delivered by     MUKHERJEA J.--This appeal is directed against an  appel- late  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 O.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 :--                 Udatha Narayanappa                 --Chanchamma (d. 1933)                       |                       |               Venkata Narasamma (d. 1926)               --Pitti Rangayya (d. 1914)                       |                       |               Venkatadri-Rajakantarama                       |                       |   _______________________________________________________   |                  |           |                     |   Durairaja    Rajavathi   Balakrishnqa   Krishnababulu   Plff. 1.     Plff. 2.      Plff. 3.          Plff. 4.      The properties in dispute which are described in sched- ule  A to the plaint admittedly belonged to one  Narayanappa who was the father of the paternal grandmother of the plain- tiffs.  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    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  exist- ence,  they  became entitled to all the properties  left  by Narayanappa  on the death of his widow.  It appears that  on 22nd  February,  1894, Chanchamma executed,  what  has  been described  as a deed of release, in favour of  her  daughter Narasamma and her son-inlaw Pitti Rangayya, under which  the entire estate of Narayanappa came into the possession of the latter.  After the execution of this document, the  daughter and son-in-law of Chanchamma began to deal with the  proper- ties  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

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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 658 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  mentioned  above,  were really  of  a  threefold character.   It  was contended in the first place  that  the plaintiffs  were not the next reversionary heirs of  Naraya- nappa  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  sur- render  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  Naraya- nappa, the evidence adduced by them fell short of establish- ing  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-I) executed in favour of the  1st  de- fendant  was supported by legal necessity to the  extent  of Rs.  5,061 and odd annas and that the other  document  under which  defend: ants 5 t0 9 claimed title was not binding  on the estate  659 at all. In the result, the plaintiffs’ suit was dismissed in its entirety.     Against this decision, the plaintiffs took an appeal  to

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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  Na- rayanappa and that the deed 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 properties  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  uncondi- tional 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  proceeding  under Order  XX,  rule  12of 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 finding 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   660 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  plaintiffs’ 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  appel- lants  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 the 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 worldly 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 descrip- tion 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 heredi- tarily.  For my lifetime you shall pay for  our  maintenance

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expenses  Rs. 360 per year every year, before the  month  of Palguna of the respective years. ’ ’       The  remaining  clauses of the deed  enjoin  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 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.  Apparent- ly 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  sur- render. 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 relin- quishment of her husband’s estate in favour of two  persons, one of whom is a next heir, but the other, 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     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 662 Judicial Committee in Vytla Sitanna v. Mariwada(1) "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  surren- der 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

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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  strang- er,  there can be no question of renunciation; the  transac- tion 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. 200at 207,       (2) L.R. 41 I.A, 72,    663     Mr. Rajah Aiyar made a strenuous attempt to induce us to hold  that  the document is a composite  document  combining really  two separate transactions, one, an act of  surrender by the widow of the 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,  obvi- ously  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  con- taining  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  attesting  wit- ness.   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. Narinath(1)  which was impliedly accepted by  the   Judicial Committee  in Rangasami Goundan 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. Harinath(1),  that a widow is entitled to sell  or  transfer the (1) I.L.R. 10 Cal. 1102.      (2) L.R. 46 I.A. 72, 664 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 Goundaan  v.  Nachiappa Goundan(1)  "The surrender, once exercised", observed  their Lordships,  "in favour of the nearest reversioner or  rever- sioners,  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

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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(2) already cited. The  judgment  went upon the principle of surrender, and it might do so for  the surrender there was of the whole estate: but if.- is  worthy of notice that the order of reference showed that the alien- ation 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  princi- ples  of law if the widow relinquishes her interest  in  the husband’s  estate  and the reversioner in  whom  the  estate vests  transfers  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 rever- sioner 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  imme- diate reversioner’s giving consent to the alienation of  the whole  estate  by the widow to a stranger has been  held  to import  a  double  fiction: the first is the  fiction  of  a surrender  by the widow in favour of the  consenting  rever- sioner  and the second is the fiction of (1) I.L.R, 46 I.A, 72,       (2) I.L,R, 10 Cal 1102.    665 a  transfer  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 presume- dat  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 transfer- ee.  A consent merely binds the consenting party or  anybody else  who derives his title from him.  If the actual  rever- sioner  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 Mohammad v. Mst.  Nughlani (1).  Sir Richard 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 the  widow with the consent of her reversioner stand on the same  foot- ing  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 or other to  reconsider  the  whole law on this  subject.   It  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 felicitously expressed by  Sir Lawrence  Jenkins,   "The road to the  decision  in  Noboki-

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shore’s  case  was  not without  its  difficulties  but  the learned (1) A.I.R. 1946 Lah. 180 at 188.  (2) I.L.R. 10 Cal. 1102. 666 Judges  felt  it had to be travelled that  titles  might  be quieted.   But it is settled that there should be no  exten- sion of this Bengal doctrine": Per Jenkins C.J. in  Debipro- sad v. Gola Bhagat (1).     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 transferred to the son-in-law  of  the widow with the consent of her daughter.  The interest trans- ferred was a fraction     the  interest held by the widow and  strictly  speaking, 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 subsequent transactions on the basis  of the same, and once this consent is established we can import 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 Nobokishore’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 accept  this chain of reasoning as sound.  As stated  above, it  would  be  most improper to  extend   the  doctrine   in Nobokishore’s  case which is not itself based on sound legal principles  to  what Mr. Aiyar calls, its   logical   conse- quence.  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, in 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 781.     (2) I.L.R. 10 Cal. 1102.  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 prima facie 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  posses- sion of the entire property denying the rights of his  neph- ews  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

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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 cannot  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. 668 been  taken  by the Allahabad High Court in Mr.  Jagrani  v. Gaya(1)  and,  in our opinion, this is the correct  view  to take.     The  learned  ’counsel for the appellants  has  in  this connection  referred  us to two decided authorities  of  the Bombay  High  Court. The first is the case of  Yeshwanta  v. Antu(2), where the widow together with her daughter who  was the  immediate  heir executed 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 Nobokishore’s case, and there are  two material facts which distinguish it from  the  case before  us. In the 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 the 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 the daughter being a minor. was not compe- tent 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 (1)  A.I.R. 1933 All. 856.     (3) I.L.R. 60 Bom.  211.  (2) I.L.R. 58 Bom. 521. 669 decide. In our opinion, the view taken by the High Court  in regard to the legal effect of the document (Exhibit P-6)  is the correct one and the first contention raised by Mr. Rajah Aiyar should therefore fail.     We  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 choos- ing to institute a suit, the possession of the alienee could

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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  and  a 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 visa vis the rever- sioner,  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  aliena- tion  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) I.L.R. 41 All. 63.      (2) I.L.R. 34 Cal. 329, 670 prescribed  by article 91 of the Indian Limitation  Act.  On appeal  to  the Privy Council, it was pointed 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  posses- sion  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  rever- sioner’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  neces- sary 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 possession 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  aliena- tion  cannot be described as absolutely void. The  decisions of the Judicial Committee in Bhagwat Dayat v. Debi  Dayal(1) and  Satgur  Prasad v. Harnarain Singh(2) may  be  cited  as illustrations  where mesne profits were allowed in  transac- tions which were only voidable. We think further that  there is  a  difference  between the alienee of a  widow  and  the

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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.      (2) L.R. 59 I.A. 147, 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 recov- er  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  Mitak- shara  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  pos- session  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 costs. Appeal dismissed. Agent  for  the appellants: M.S.K. Aiyangar. Agent  for  the respondents: M.S.K. Sastri.