JUDGMENT

Boys, J. - This was a suit for sale on an hypothecation bond, dated the 16th of February 1910. It is unnecessary for the purposes of this appeal to set out the whole history of the case in detail. It is very carefully and fully set out in the judgment of the learned Subordinate Judge to be found at page 14 of the printed book. The facts may be stated briefly. Bakhtawar Lal, the owner of the estate, died leaving a widow Gangadei. Gangadei proceeded to squander the estate. Upon her death Mst. Lachho, her daughter, came into possession. For the purpose of challenging some of the transactions entered into by Gangadei, Mt. Lachho raised money by executing a simple mortgage of Rs. 5,000, on the 15th of February 1910, in favour of Baldeo Singh, of certain house property. On the 5th of November 1917, Mt. Lachho surrendered her rights in the estate of her father in favour of her son Puranchand, the next reversioner. By that deed she stated:

I hereby relinquish all my life-interest in the movable property such as household goods and in the immovable property acquired and left by my father, Lala Bakhtawar Lal deceased, resident of Dehra Dun, and my son Puranchand, the revisionary heir, has, from this very time, i.e., from the time of execution of this deed of relinquishment, acquired all the rights and interests he would have acquired after my death.

2. The document is printed in full at page 185 of the printed book.

3. In 1920 Lala Baldeo Singh died and his heir is Lachmi Chand, the present plaintiff. On the 14th of February 1922, Lachmi Chand instituted the present suit for sale. The learned Subordinate Judge held that the bond was not executed for legal necessity, and that finding has not been challenged before us. At the very close of the case it was further urged before him that, assuming that the alienation was not for legal necessity, still a decree should be passed against the widow alone and the purchaser should be allowed to retain possession until her death. For the defendant in answer to this plea reliance was placed on paragraph 15 of the plaint where in plaintiff stated that Mt. Lachho had surrendered her life-estate in favour of Puranchand defendant, and because he, through his guardian, i.e., his father, is a party to the bond in suit and is an heir to the estate left by Bakhtawar Singh and owner thereof, the plaintiff has a cause of action against him as well. The defendant contended that the surrender having been made, the widow's estate had been effaced. The learned Subordinate Judge held on this point that

the plaint clearly indicated that the life-estate was at an end

and that this prayer of the plaintiff could not be granted in face of the clear statements in the plaint. He added:

If the suit had been properly framed it may have been possible that the plaintiff would get some decree, but as it is, the suit cannot succeed.

4. The only question seriously argued before us was whether the surrender by Mt. Lachho in favour of the next reversioner, Puranchand, extinguished immediately the mortgage executed by Mt. Lachho in favour of Baldeo Singh assuming that it was not for legal necessity. A second suggestion made, for the respondent, was that even if ordinarily the mortgage would not be extinguished, Baldeo Singh ought to be held estopped from enforcing his mortgage. The suggestion was not, however, and, in our opinion, could not be, seriously pressed and the case was argued really only on the basis of what is the correct answer to the first question.

5. As to this first question we have heard lengthy arguments which have been of great assistance and we have had a large number of authorities quoted to us dealing variously with the effect of the death of a Hindu widow, of her remarriage, of an adoption made by her, and, finally, of surrender or relinquishment by her. The result at which I have arrived can, however, be stated with comparative brevity.

6. I am not satisfied that any of the authorities on the effect of death