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

High Court Madras

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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.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
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
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
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
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
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-
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
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
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
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.
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