Judgment

H. R. KHANNA, J.:- This appeal by special leave is against the judgment of the Madhya Pradesh High Court affirming on second appeal the decision of the trial Court and the first appellate court whereby suit for possession of the land in dispute had been decreed in favour of the plaintiff-respondent against the defendant-appellant.

2. Laxmi Dayal died in 1952 leaving the lands in dispute and some other properties. He was succeeded by his two windows, Shantibai and Bindumati. In 1954 Chandanbai, widow of brother of Laxmi Dayal, filed Civil Suit No. 346 of 1954 against Shantibai and Bindumati in respect of the property left by Laxmi Dayal. During the pendency of that suit, a deed of partition was executed by Shantibai, Bindumati and Chandanbai, as a result of which each one of them was stated to have become full owner of the property which fell to her share. The partition deed was got registered and necessary mutation entries were made in accordance with that deed. On September 8, 1955, Shantibai made a will of the property which fell to her share as a result of partition, in favour of the plaintiff respondent. The suit filed by chandanbai was disposed of on February 18, 1956 in terms of partition deed dated 13-1-1955. Shantibai died on May 29, 1956. The respondent filed the present suit against Bindumati defendant-appellant for possession of the land in dispute on the allegation that he (the respondent) had taken possession of the land in dispute in pursuance of the will executed in his favour by Shantibai. The appellant was stated to have relinquished her right of survivorship in the land which fell to the share of Shantibai. The appellant, it was further pleaded, had taken forcible possession of the land in dispute.

3. The suit was resisted by the appellant on the ground that she had not relinquished her right of survivorship in the land which fell to the share of Shantibai . Shantibai, it was further averred, had no right to dispose of the said land by will. The trial Court accepted the contention of the respondent and decreed his suit. The decision of the trial Court was affirmed on appeal by the first appellate court and by the High Court in second appeal.

4. The first question which arises for consideration in this appeal is whether the appellant relinquished her right of survivorship in the property which fell to the share of Shantibai as a result of the deed of partition dated January 13, 1955. In this respect we find that each of the three executants stated in that deed that none of them would have any right or claim over the property that fell to the share of other shareholders in partition. It was further stated in the deed:

"Every share-holder may get the property fallen to her share, mutated and may take possession thereof and thus may become absolute owner thereof. Every share-holder may get her name separately mutated in Patwaris papers. She may sell it. If other share-holder claim it, it will be contrary to law. ..... ...... By taking our respective share from the entire property in the partition we become separate from the entire property."

When she came into the witness box, the appellant admitted that their object in making the partition was that they would be able to dispose of their separate lands in any way they liked. The appellant also stated that as a result of partition, each one of the executants of the deed of partition became exclusive owner of the property that fell to her share. In the face of the recitals in the deed of partition and the admissions made by the appellant in the witness-box, we find no reason whatsoever to disturb the finding of the courts below that the appellant had relinquished her right of survivorship in the property which fell to the share of Shantibai.

5. Mr. Sanghi on behalf of the appellant, however, contends that it is not permissible in Hindu Law for a widow to give up her right of survivorship in the property which falls to the share of the co-widow even as a result of