Sen, J.:—

These are Letters Patent appeals against the decision of Mr. Justice Chagla summarily dismissing two second appeals Nos. 108 and 109 of 1944. Those appeals arose respectively out of civil suits Nos. 58 and 59 of 1938 in the Court of Second Class Subordinate Judge, Vita. The question that arises in these appeals is whether the principle of Hindu law enunciated in Rama Nana v. Dhondi Murari, that a valid surrender made by a Hindu widow of her husbands's estate to the next reversioner cannot be defeated by the subsequent adoption of a son to her husband is affected by the decision of the Privy Council in Anant Bhikappa Patil v. Shankar Ramchandra Patil so as to give the adopted son the right of challenging the surrender made by the widow.

The properties in these two suits belonged to one Aba Bajirao. He died leaving his widowed mother Laxmibai, his widow Sonubai and his daughter Tanubai. On his death his widow Sonubai succeeded to him, and on January 8, 1914, she surrendered all the properties to Tanubai. Thereafter Tanubai sold some of the properties on July 9, 1928, to the defendant in suit No. 58 of 1938 and she sold some other properties on April 25, 1929, to the Defendant in suit No. 59 of 1938. The plaintiff was thereafter adopted by Sonubai on January 31, 1936. The two suits were filed in 1938 by the plaintiff to recover possession of the lands which had been sold by Tanubai in 1928 and 1929. The defendants in those two suits contested the claim mainly on the ground that the plaintiff was not entitled to challenge the alienations made in their favour by Tanubai, inasmuch as the whole estate had been surrendered by Sonubai in favour of Tanubai, who was the next reversioner. The trial Court as well as the first appellate Court upheld this contention of the defendants, and the plaintiff's suits as well as his two appeals were dismissed. The second appeals were also dismissed summarily, as I have already stated, by Mr. Justice Chagla.

In Rama Nana v. Dhondi Murari a Hindu widow had surrendered her husband's estate to her daughter who was the next reversioner and who agreed to maintain the widow as long as she lived. The daughter having died first, the widow adopted the plaintiff. In a suit by the plaintiff to recover possession of the property from the daughter's husband, it was held that the plaintiff was not entitled to question the surrender, and that the surrender was valid. Macleod C.J observed that the surrender of the life-estate to the next reversioner gave title to him which was not dependant on the continuance of the life-estate but resulted from its extinction and could not be questioned by the subsequently adopted son. In the same case Crump J. made the following observations (p. 691):

“An adopted son can challenge any alienation made by the widow without necessity, but it does not follow that necessity is the only validating circumstance. A widow can alienate for necessity, therefore, such alienation is valid, but any act of a widow which is within her powers under Hindu law would apparently stand on just as good a footing. No doubt the adoption dates back to the death of the father but the adopted son would appear to be bound by acts done by the person in possession of the estate where those acts are within that person's authority. The effect of the surrender by the widow was that the then reversioner took an absolute estate and as the surrender was an act which is by Hindu law within the competence of the widow it is not easy to see any ground on which the adopted son can challenge it.”

It will thus he seen that alienation for necessity by the widow and the surrender by the widow to the next reversioner have been put on the same footing. This would also appear from Rangasami Gounden v. Nachiappa Gounden as noticed by Crump J. at page 691 in Rama Nana's case. Their Lordships of the Privy Council in Rangasami Gounden v. Nachipapa Gounden summarized the result of the decided cases bearing on this question that arose in that case as follows: (1) an alienation by a Hindu widow of her deceased husband's estate may be validated if it can be shown to be a surrender of her whole interest in the whole estate in favour of the nearest reversioner or reversioners at the time of the alienation. In such circumstances the question of necessity does not fall to be considered, but the surrender must be a bona-fide surrender, not a device to divide the estate with the reversioner. (2) When the alienation of the whole or part of the estate is to be supported on the ground of necessity, then if such necessity is not proved aliunde and the alienee does not prove enquiry on his part and honest belief in the necessity, the consent of such reversioners as might fairly be expected to be interested to dispute the transaction will be held to afford a presumptive proof which, if not rebutted by contrary proof, will validate the transaction as a right and proper one. It will be seen that the two classes of transactions have been described as alienations in this passage, and both have been regarded as equally valid. At page 80 of the same case their Lordships observed that the surrender being once exercised in favour of the nearest reversioner or reversioners, the estate becomes his or theirs, indicating clearly that they regarded the result of such a surrender as vesting of the absolute estate in the reversioner or reversioners concerned. An analogous case of an alienee getting an absolute estate from the last surviving male member of a Hindu family is to be found in Veeranna v. Sayamma. There it was held that the last surviving male member of a joint Hindu family, in spite of an unexercised power of adoption possessed by the widow of a deceased member, could alienate all or any of the family properties absolutely (e.g even by gift) without the son adopted after the alienation being able to question the same. It was further observed that the theory that on an adoption the adopted son's rights to property ordinarily relate back to the date of his adopted father's death did not apply to such a case. This decision was referred to with approval in the case of Anant Bhikappa Patil v. Shankar Ramchandra Patil, on which Mr. S.A Desai has relied. In Anant Bhikappa Patil v. Shankar Ramchandra Patil the material facts were that in 1905 Bhikappa had died leaving behind his widow Gangabai and son Keshav who was the only coparcener in the joint family. In 1908 Narayan, his separated brother, died leaving behind him his widow Jankibai but no issue, and Keshav lived up to 1917 and died unmarried. At that date his nearest heir was the defendant Shankar, a somewhat remote collateral, who obtained possession of the properties by dispossessing Gangabai. Thereafter in 1930 Gangabai adopted Anant, and it was held that Anant being the adopted son of Bhikappa could question Shankar's title and possession of the property. Their Lordships took the view that the adoption of the plaintiff Anant by the mother of the last male owner being perfectly valid, its effect was to take his estate out of the hands of the remote collateral and to constitute the adopted son the next heir of the last male owner. The reasoning on which this decision was based was that the adoption being valid could not be refused effect, as the interest of a male member of the family was never static but increased by survivorship as others died and lessened as others entered the family by birth or adoption; Their Lordships observed, what principle requires that the date of the last surviving coparcener should prevent any further fluctuation of the interest to which he was entitled notwithstanding that a new member has since then entered the family by adaptation? They approved of the view taken by the Nagpur High Court in Bajirao v. Ramkrishna that any Hindu family cannot be finally brought to an end while it is possible in nature or law to add a male member to it, and that the family cannot be at an end while there is still a potential mother, if that mother in the way of nature or in the way of law brings in a new male member. Reference was also made to the case of Pratapsing Shivsing v. Agarsingji Raisingji where it was pointed out that the Hindu lawyers do not regard the male line to be extinct or a Hindu to have died without a male issue until the death of the widow renders the continuation of the line by adoption impossible. In Anant v. Shankar the adopting widow, being the mother of the last surviving coparcener, her power to adopt could not have been exercised in his lifetime, and if it was exercised after his death it could not, in the opinion of Their Lordships, be given any less effect than would have attached to an adoption after his death by the widow of a predeceased collateral. The question, therefore, arises, can the widow's power to adopt be similarly given effect to in the case of a prior surrender by the widow?

Mr. Desai has contended that in such a case an adoption should take effect as a happening of contingency to which the rights surrendered had always been subject in like manner as an adoption would have had effect if it had been made before the surrender. In our opinion this argument is fallacious. In our opinion the surrender has the effect of vesting an absolute estate in the reversioner, and the adoption cannot be regarded as a contingency to which the surrender is subject. Such an argument could not apply to the alienation of family properties by the last surviving male member of a joint Hindu family, as Privy Council's approval of Veeranna v. Sayamma clearly shows. Similarly, as observed by Crump J. in Rama Nana v. Dhondi Murari where a widow fully represents the estate and has full powers of surrendering it to the nearest reversioner or reversioners under Hindu law, the effect of surrender (subject to certain recognised exceptions) cannot be anything less than vesting the whole estate in the latter. Though a surrender operates by accelerating the reversion, i.e, the succession, it would appear to operate not as a case of succession but an act of alienation, that expression having been used by Their Lordships of the Privy Council in Rangasami Gounden v. Nachiappa Gounden(3). That would further appear to be shown by the decision in Sakharam Bala v. Thama(4) where a widow had passed two deeds of gift, one in 1918 in favour of her nephew, who died shortly afterwards, and another in 1921, in respect of the same property, in favour of her daughter and reversioner, and thereafter she adopted the plaintiff. The plaintiff having sued to recover possession of the property from the widow and her daughter (who claimed that there had been a surrender in her favour) it was held that the plaintiff was entitled to succeed inasmuch as, by executing the deed of 1918 in favour of the nephew, the widow had put it out of her power to surrender her whole interest in the estate in favour of her daughter, the nearest reversioner. Marten C.J observed (p. 1023):

“If then in the present case the widow has parted with the property so far as she can—to the extent at any rate of her estate or interest as a widow—then it would seem to be erroneous to say that notwithstanding that she can still surrender that whole interest to the reversioner. I quite appreciate that a widow's interest may be determined in various ways:—by her natural death, by her re-marriage, by adoption or by a valid surrender. But if it is to be a surrender, then it is essential that she should comply with certain conditions. It seems to me that here she does not comply with those condition, as she has put it out of her power so to do by an earlier document.”

Here the test of the validity of a surrender is taken to be not merely the determination of the widow's interest but also the transfer of the whole of that interest (subject to certain well-known exceptions) to the next reversioner or reversioners; that is to say, the transaction has the effect of a valid alienation, such effect being indeed the essence of a valid surrender by a widow. It may also be useful to refer to the case in Pandurang v. Ishwar. There a widow had made a valid surrender of her entire interest in her husband's property in favour of the defendant with the consent of her daughter, the next reversioner. Subsequently the widow adopted the plaintiff who sued to recover possession of the property from the defendant on the ground that as the daughter's consent had not been given by a registered instrument there was no valid consent of the next reversioner and that, therefore, the gift did not operate in favour of the defendant. It was held that the surrender or gift by the widow of her entire interest was valid, and that the plaintiff could not challenge it. This case was followed in Krishna Mhatarva v. Baban. There a Hindu widow had surrendered her entire interest in the estate of her husband which she passed to her daughters. She, however, stipulated that she should get a certain amount of corn and clothes from the daughters. Eight years later she adopted the plaintiff who sued to recover possession of the estate from the daughters. The case was mainly concerned with a question whether there was a bona-fide surrender by the widow of her entire estate notwithstanding the fact that she had reserved the bulk of the income of the property surrendered by her. It was held that the reservation by her of the income did not render the surrender invalid, and that the adopted son had no right to question it because before the adoption the estate had completely passed to the reversioners. All these cases sufficiently show that a surrender in such cases operates to create an alienation rather than operate as a case of succession, and that in such cases the estate surrendered becomes the estate of the person in whose favour the surrender is exercised unqualified by any other interest, existing or contingent. The subject-matter of a surrender is not analogous to the interest of a male member in a joint Hindu family which goes to a collateral but which still remains subject to the contingency of the entry of a new member into the family by adoption. The effect of a surrender in such cases thus appears to us to be similar, so far as the bearing of a subsequent adoption on it is concerned, to that of an alienation by a widow for legal necessity; that is to say, a subsequent adoption can have no effect thereupon. Another argument advanced by Mr. S.A Desai was that the adoption should be deemed to relate back to the date of the adoptive father's death, that is, a date prior to the surrender, and that, therefore, the surrender cannot have any effect. He has relied in this connection on a passage in Ramchandra Balaji v. Shankar Apparao (p. 131):

“But it has been frequently pointed out by Their Lordships of the Privy Council that the adoption of a son by a widow to her deceased husband is deemed to date back to her husband's death.”

and reference in that connection is made to Jatindra Mohan Tagore v. Ganendra Mohan Tagore, Ganendra Mohan Tagore v. Jatindra Mohan Tagore and Amrendra Mansingh v. Santan Singh. In Amrendra Mansingh v. Santan Singh a passage from Pratapsing Shivsing v. Agarsingji Raisingji has been referred to wherein it was stated (p. 107):

“It is to be remembered that an adopted sou is the continuator of his adoptive father's line exactly as an aurasa son, and that an adoption, so far as the continuity of the line is concerned, has a retrospective effect; whenever the adoption may be made there is no hiatus in the continuity of the line.”

Thus what was there held was that so far as the continuity of the line is concerned the adoption has retrospective effect, and this view agrees with the earlier view taken in Bamundoss Mookarji v. Mussamut Tarinee(5). In that case it was argued before the Judicial Committee that a widow who had been given authority by her husband to adopt should be considered as enceinte at the date when the authority had been given and that the son subsequently adopted by her should be regarded as a posthumous son, but the Judicial Committee refused to act upon “the rather fanciful analogy” and held that the rights of an adopted son could not be held operative during any period prior to the adoption. In Mayne's Hindu Law, 10th Edition at page 277, we find these observations:

“The rights of the boy as adopted son arise only from the date of the adoption in the sense that he is bound by such acts of the widow as would bind the heirs of the husband after her. So far as the continuity of the line is concerned, the adoption has a retrospective effect and there is no hiatus in it.”

It seems to us, therefore, that the theory of dating back the adoption cannot be used as an argument in support of Mr. Desai's contentions. I have already referred to the case in Veeranna v. Sayamma wherein it was expressly stated that the theory that, on adoption, the adopted son's rights to property ordinarily relate back to the date of his adoptive father's death did not apply to a case like the one under Their Lordships' consideration. On a parity of reasoning it would not also apply to a case like the present one. There is, therefore, in our opinion, no substance in this second argument advanced by Mr. S.A Desai. We must therefore hold that the case of Anant Bhikappa Patil v. Shankar Ramchandra Patil does not affect the principle of the validity of surrender laid down in Rama Nana v. Dhondi Murari.

That being so, Mr. Justice Chagla was right in dismissing the two second appeals before him, and the present appeals must, therefore, be dismissed with costs.

Appeals dismissed.

M.W.P