JUDGMENT Rachhpal Singh, J.
1. This is a defendants' second appeal arising out of a declaratory suit instituted by the plaintiff-respondents.
2. The pedigree set up by the plaintiff-respondents which is to be found at p. 24 of the paper book has been held to be proved by the lower Appellate Court. Jageshar was the last male owner of the property in respect of which the suit which has given rise to this appeal was instituted. Defendant No. 1 (Musammat Jagrani) is the widow and defendant No. 2 (Musammat Dulra) is the daughter of Jageshar Gaya Pande and Chhedi Pande, plaintiffs-respondents, are the next male reversioners of Jageshar. This finding of the lower Appellate Court is one of fact and cannot be challenged in second appeal.
3. Musammat Jagrani executed a mortgage deed on February 8, 1912, in favour of one Deoki. On June 21, 1920, she executed a deed of gift in favour of Musammat Dulra and one Kamta, who is the son of Musammat Dulra's husband's brother. The plaintiff-respondents instituted a suit to obtain a declaration that these two deeds were null and void as against them. So far as the deed of mortgage, dated February 8, 1912, is concerned, the lower Appellate Court held that the claim of the plaintiffs for obtaining a declaration was not within limitation. This finding of the lower Appellate Court has been challenged by the plaintiffs-respondents, who have tiled cross-objections. I am of opinion that the decision of the lower Appellate Court on this point is correct and there is no force in the cross-objection filed by the plaintiffs-respondents. The plaintiffs ought to have sued within a period of six years from the date on which the mortgage deed in suit was executed by Musammat Jagrani, as Article 120 of the Indian Limitation Act is applicable to the case, and as this was not done, it was rightly held by the court below that this suit, so far as this mortgage deed was concerned, was not within limitation.
4. The next question for consideration is whether the finding of the learned Subordinate Judge as regards the deed of gift of 1920 is correct. The learned Subordinate Judge has held that the deed of gift executed by Musammat Jagrani in favour of Musammat Dulra and Kamta amounted to a surrender of her husband's estate to the next presumptive reversioner and therefore, Masamm Jagrani should be taken to be civilly dead. He has come to the conclusion that the estate at the date of the suit was held in its entirely by Musammat Dulra and, therefore, the suit was governed by Article 125 of the Indian Limitation Act. I am of opinion that the view taken by the learned Subordinate Judge that the deed of gift which Musammat Jagrani had executed in favour of her daughter and Kamta amounted to a surrender of her husband's estate is not correct. It was a transfer made by her in favour of Musammat Dulra and also in favour of Kamta who was a stranger. It cannot be said that it amounted to a surrender. In the deed of gift she did not say that she was surrendering the estate. The learned Subordinate Judge has relied on a ruling of the Calcutta High Court, reported as Abhoya Pada Trivedi v. Ram Kinkar Trivedi, 89 Ind. Cas. 770 89 Ind.Cas. 770 : A.I.R. 1926 Cal. 228. The facts of that case were different. There a complete surrender had been made by the lady in favour of the next reversioner. The other persons, in whose favour the surrender was made, were also reversioners, but they were somewhat remote. In the case before us the transfer is made in favour of Musammat Dulra, her daughter, and also Kamta, who is a complete stranger. It is open to Kamta, if his claim is challenged by Musamat Dulra in the life time of the donor to say that he got the estate from the donor and so it cannot be said that there was a surrender in favour of Musammat Dulra. This being the case, the suit is governed by Article 120 of the Indian Limitation Act. The plaintiffs should have instituted the suit to obtain a declaration that the deed in favour of Dulra and Kamta was null and void against them within a period of six years. Article 125 has no application to the case before us. I am, therefore, of opinion that the claim of the plaintiffs was barred by limitation in respect of this deed of gift as well.
5. I would, therefore, allow this appeal, set aside the decree passed by the learned Subordinate Judge in respect of the second relief about the deed of June 21, 1920, and dismiss the plaintiff's suit in toto with costs in all the courts. The cross-objections should also be dismissed.
6. Niamatullah, J.--I agree with my learned brother in the order he proposes to pass in this appeal. I would like to make an observation as regards the view taken by the Calcutta High Court in Abhoya Pada Trivedi v. Ram Kinkar Trivedi 89 Ind. Cas. 770 89 Ind.Cas. 770 : A.I.R. 1926 Cal. 228. The facts of that case, as given in the judgment, were that a Hindu widow executed a deed styled 'nadabipatra' in favour of her husband's brother and three sons of a predeceased brother of her husband. It appears that the deed was in favour of the presumptive heir, namely the brother and three remoter reversioners, namely the nephews. After the death of the widow, her husband's brother instituted a suit for recovery of possession of the entire property denying the rights of his nephews derived from the deed executed by the widow. The learned Judges construed the deed to imply a surrender in favour of the presumptive heir namely, her husband's brother, and a transfer of half by him to the three nephews. Looking at the transaction from that point of view, the learned Judges held that the deed amounted to a surrender. The material portion of the deed is not quoted in the judgment nor have we been able to ascertain the meaning of the word 'nadabipatra.' It might have been a case in which the deed contained words of disposition in favour of the presumptive heir in the first instance and an assignment by him of half to the nephews: but if the learned Judges meant, as their observation in the penultimate paragraph of the judgment of Cumming, J., indicates that in every case where a transfer is made in favour of the next reversioner and a third person jointly the transaction amounts to a surrender in favour of the presumptive heir and an assignment by the latter of half to the other. I regret I am unable to endorse that proposition of law. In case of a transfer jointly to two or more persons, each takes a definite interest in the property from the transferor. One transferee does not derive his title from his co-transferee. An important test, in my opinion, is whether the presumptive heir can, apart from any estoppel arising from his conduct, eject his cc-transferee in the life time of the widow. If he has no such right, there can be no doubt that there was no surrender in his favour so as to vest the entire property in him. It may be that in a given case the understanding between the widow on the one hand and the presumptive heir on the other was that he should be considered to be the sole transferee and that he would allow another person to share the property with him in consideration of the surrender made by the widow. If such an agreement on the part of the presumptive heir is established, the presumptive heir may be estopped from disputing the title of the other man; but such an arrangement between the widow and the presumptive heir cannot be presumed in every case in which a Hindu makes a transfer in favour of the presumptive heir and another. It is a question of fact, which must be established in every case in which an arrangement of that kind is alleged. In the case before us, the widow executed, what is on the face of it, a deed of gift in favour of Musammat Dulra and Kamta. Each took under the gift half of the widow's estate.