JUDGMENT
1. The sole question for determination in this appeal is whether a surrender by a Hindu lady in favour of her sons of the entire estate in which she held the same limited interest as a Hindu widow, so as to accelerate their succession, amounts to a transfer of the nature of a gift within the meaning of Section 7(3), U.P. Encumbered Estates Act.
2. The lady in this case, Mt. Ramdei, had inherited the estate as a daughter. She had applied under Section 4, U.P. Encumbered Estates Act, and decrees in those proceedings had already been passed and sent to the Collector for execution when she executed a document, described as a dastbardari, in favour of her sons. This document was registered and thereafter the sons applied to be substituted for their mother in these proceedings. The Special Judge rejected the application, holding that the object of the transaction was to prejudice the creditors by protecting the property from sale. Under the provisions of the Debt Redemption Act (13 [XIII] of 1940) estates paying less than Rs. 250 as revenue cannot be sold and the suggestion is that the estate would be divided between the sons by this transaction, and that as the revenue payable in their several portions would be less than Rs. 250 the estate would come under the head of protected property. The relevant provisions of the Debt Redemption Act are extended to proceedings under the Encumbered Estates Act by Section 19 of the former Act.
3. This appeal is brought by the sons against the Special Judge's order. The Special Judge did not found his decision on any particular provision of law. He rejected the application because the creditors were prejudiced and he considered the practice "a very sharp one." He also said that the surrender was not a genuine surrender. Before us nothing has been said against its genuineness and, in considering the appeal, we have assumed that it was genuine. There is no reason to doubt that it was intended to be acted upon.
4. The question whether the surrender of the estate by a Hindu widow or other limited heir is a transfer or not has generally been considered with reference to the provisions of Section 53, T.P. Act. We think that if such surrender is a transfer within the meaning of that section, it would also be a transfer within the meaning of Section 7, Encumbered Estates Act. Section 7(8) imposes an absolute bar on transfer during the pendency of the proceedings.
5. We may at the outset observe that it has been held by a Full Bench of the Patna High Court that for the purpose of stamp duty a deed of surrender is a deed of gift and not a deed of release : vide In re Khetramoni Debya ('38) 25 A.I.R. 1938 Pat 33; but we do not lay much stress on this. Several cases were cited by the learned Counsel for the appellants to support his contention that such a surrender is not a transfer. The case most directly in his favour is that in Gauri Bai v. Ganga Bai ('27) 14 A.I.R. 1927 Nag. 44. It was held therein by Hallifax A.J.C., that:
A surrender by a Hindu widow of her interest is not a transfer of any kind, but is merely an abandonment of an interest, which the next reversioner takes in his own right and not because anything is conveyed to him by the widow.
6. Another case cited by the learned Counsel for the appellants was Sundar Lal v. B. Gur Saran Lal ('38) 25 A.I.R. 1938 Oudh 65, where it was held by a Bench of the Chief Court of Oudh that relinquishment of his right by a coparcener in favour of another coparcener cannot be strictly said to be a transfer within the meaning of Section 53, T.P. Act.
7. In another Oudh case Kalka Singh v. Jagwant Kunwar ('26) 13 A.I.R. 1926 Oudh 69, it was held by a Bench that a document by which a widow consents to give possession over the property to the reversioners because they are reversioners of her deceased husband is not a transfer of property.
8. We do not consider that this case supports the appellants, for the consent of the widow was merely a consent to possession. The document on which the reversioners relied was an application made by her in mutation proceedings consenting to the possession of the reversioners over a portion of the property. The Bench held that there was certainly no transfer of property and, on the facts stated, we agree that there could not have been. This case is, therefore, in our opinion, no authority on that point before us. No question of the acceleration of the succession was raised in it.
9. The case in which the question appears to have been most fully considered is that in Shiva Shidda v. Lakhmi Chand Tuljaram ('39) 26 A.I.R. 1939 Bom. 496. In that case a learned Judge of the Bombay High Court held that a surrender, much of the same nature as that before us, amounted to a transfer within the meaning of Section 53 and not merely to self-effacement of the widow. The self-effacement of the limited heir is the main argument put forward on behalf of the appellants, the suggestion being that to effect such effacement no action by her in favour of the reversioners is necessary. We find some difficulty in accepting this contention. It seems to us necessary, in order to efface herself, that she should take some formal action to divest herself of the property so as to vest it in the reversioners and this in effect is the view taken by Sen J. in this Bombay case. Sen J. considered the bearing on the question of two Privy Council decisions in Mt. Bhagwat Koer v. Dhanukdhari Singh ('19) 6 A.I.R. 1919 P.C. 75 and Sitanna v. Viranna ('34) 21 A.I.R. 1934 P.C. 105 . In the former case their Lordships said that the voluntary self-effacement by which a Hindu widow can renounce the estate in favour of the nearest reversioners is some, times referred to as a surrender, sometimes as a relinquishment or abandonment of her rights; and it may be effected by any process having that effect, provided that there is a bona fide and total renunciation of the widow's right to hold the property. The question whether the estate was transferred by this self-effacement did not arise in that case; there was in fact not even a formal surrender by the widow, but merely an agreement for consideration to abandon a legitimate claim. In the second Privy Council case, there was a deed of transfer by which the widow conveyed half the property to a claimant and the other half (save for a small area reserved for her own maintenance) to her daughter, who was the reversionary heir. Though there was in form a transfer it was regarded as a surrender, one of the questions for consideration being whether such surrender could be in favour of a daughter who took the estate merely for life. Answering this question in the affirmative their Lordships observed:
Though the doctrine of surrender by a widow has undergone considerable development in recent years, it must be remembered that the basis of it is the effacement of the widow's interest and not the ex facie transfer by which such effacement is brought about. The result is merely that the next heir of the husband steps into the succession in the widow's place.
10. It was contended on the basis of this observation that the ex facie transfer should not be considered at all in determining the nature of the transaction, but Sen J. repelled the contention, citing Privy Council cases where their Lordships had referred to such a surrender as an alienation or conveyance. It was argued that although words of this nature might be used it was unnecessary for the widow to indicate the person or persons in whose favour she was effacing herself. Sen J. did not accept this argument, pointing out that in most cases the surrender is expressly made in favour of the reversioners and concluding that conveyance is an essential part of the transaction; "for one can hardly expect a widow to state in a deed merely that she is effacing herself from her husband's estate." He added : "It seems to me doubtful whether, were such a document executed, it could be regarded as a proper deed of surrender." He also referred to the motive which actuates the widow, the desire to vest the property in the reversioners being (as in the present case) more prominent than her desire to efface herself. He accordingly held that the case was one of transfer and not merely of self-effacement.
11. Another case to which we were referred was Makhan Lal v. Nagendra Nath ('33) 20 A.I.R. 1933 Cal. 467. It was pointed out therein that the word 'surrender' is used in Section 111, T.P. Act, as one of the modes of deter mining a lease and there is no indication that it amounts to a transfer. At the same time it was said that a surrender may in certain circumstances amount to a transfer. It could not, however, amount to a transfer in that case because the tenancy was non-transferable by the terms of the document creating it. There is other authority also for the view that the surrender of a lease is not a transfer, but we do not think that there is much analogy between the surrender of a lease by a tenant to his landlord and the surrender of an estate by a limited heir to the reversioners. The latter, to our minds, partakes much more of the character of a gift. If Mt. Eamdei had executed a document purporting to be a gift of her life interest in the estate to her sons, the effect would have been precisely the same as that of an instrument of surrender. The question is by no means free from difficulty, but we think on the whole that there is sufficient justification for the view that the transaction in the present case was barred by the provision of Section 7(3), U.P. Encumbered Estates Act, and we accordingly dismiss this appeal with costs.