1. The material facts, which are all undisputed, are that four brothers Krishnanath, Vinayak, Ganapatrao and Narayen were left an estate, share and share alike. This they managed together; no division of the estate into lots was made. Krishnanath, as the eldest, managed till his death, leaving a widow Luxmibai; then Vinayak managed till his death, leaving a widow Satyabhamabai; and thereafter Ganapatrao managed till Luxmibai brought her suit to have it declared that she was entitled to her deceased husband Krishnanath's one-fourth of the whole property movable and immovable. Ganapatrao resisted the claim on the ground that the four brothers had constituted a joint Hindu family. The Court held that they had not, and that the property was no more than a property held by the four objects of the testator's bounty, in severalty; and decreed that the said property be now separated, the shares defined,and assigned to Luxmibai and Satyabhamabai, the widows of Krishnanath and Vinayak, and Ganapatrao and Narayen, the surviving brothers, respectively. Further that Luxmibai the plaintiff was to have an 'absolute' estate in all the movable property coming to her under this decree, and a life estate only in the immovable property. We are not here concerned with Satyabhamabai.
2. On appeal this judgment was confirmed with a single exception. The Appeal Court changed the words ' life estate' to 'a. widow's estate during her life'. Thereupon Ganapatrao as manager had to account for his management of the fourth part of the property which Was now decreed to Luxmibai. I am told that Luxmibai surcharged heavily, claiming nearly forty thou-sand rupees. But the amount is immaterial. It is material that taking accounts went on very slowly, and that after two of three years Ganapatrao came to an agreement with Luxmibai, by which the parties to this suit took a consent decree, giving Luxmibai the like absolute estate in all the immovable, as; he decree had already given her in all the movable, property of her deceased husband Krishnanath. And it was further agreed to abandon all further taking of accounts, and that, Luxmibai should renounce any and every claim in respect of those accounts or future maintenance, which she might otherwise have been advised to press. Pursuant to this it was further agreed that all the property should be sold, and that the proceeds of the sale should be divided, and Luxmibai's share given to her in cash. Looking to what had been decreed in the first instance, and to the amendment, and then to the terms of the consent decree, it appears to me, though this is of course not undisputed, that the transaction admits of only one construction; namely that Ganapatrao and Narayen renounced all claim to enforce what is called the fetter on the woman's power of disposition over estate inherited from her husband, and gave her by this method (which converts what property would have fallen under that part of the Appeal Court's decree conferring a widow's estate during her life into property in which under the same decree she had an absolute interest) all and every power over the whole which the learned Judges who made those decrees clearly intended that she should take under the term ' absolute. ' In other words, for the general convenience, and their own in particular, to save trouble and expense, and the possibility at least of having to pay over a large sum, they said, ' if you will stop these proceedings before the commissioner, renounce your claims on us for any recoveries we may have made during our management of your property, we will, as the reversioners, renounce our claims on all the immovable property which belonged to your husband, we will give you an absolute estate in it, instead of the limited estate the Courts have given you, and what is more, Ave will join with you in selling it, and thus reducing it from real to personal estate, and will hand over to you, as movable property your share of the price, to be, with the othermovable property of your late husband in which the Courts have already given you an absolute interest, thenceforward absolutely your own.' That is how I understand what was intended to be done; and there cannot be the least doubt or question that that is how the presentplaintiffs themselves understood it at that time. This is clear from the language of Exhibit 5. Accordingly the Court made the consent decree, giving the widow Luxmibai an absolute estate not only in the movables but in the immovable property of her late husband Krishnanath; and, as the' most convenient way of dis-tributing the whole property, it directed the sale of the immovables. The result was that, all parties assenting, what immovable property there had been, belonging to Krishnanath, was sold and the plaintiffs paid over to Luxmibai between fifteen and sixteen thousand rupees. She thus started either as the heir of her late husband or by special arrangement with this sum of money plus whatever other movables she may have had of his. And when she died in 1895 she had a considerably larger sum, which she disposed of by will. Probate was granted, the plaintiffs were cited; they did not till the filing of this suit in 1907 raise any objection to the administration. Now they say that Luxmibai had no power of disposal, that, in respect of all that she took from her husband, she had only the widow's estate for life, and that as thereversioners they are entitled to recover all that she died possessed of.
3. The case thus stated looks simple, but it may prove to involve questions which are not simple. One thing is plain, that the principles upon which the decision must rest are all principles of pure law. Up to that point there are no facts in dispute. I was asked more than once to approach the case without prejudice. Being as it is an abstract question of law, I do not see where prejudice comes in, and for that matter I think that the less a Judge has to do with sympathies and sentiments the better. I have to consider a very elaborate subtle and ingenious argument, that is all. I have to see whether that argument, in my opinion, warrants its conclusion. If the plaintiff is legally entitled to any or all the reliefs claimed, he must have them.
4. First it is contended that when Sir Joseph Arnould gave Luxmibaian absolute estate in the movables of her deceased husband, and when the Appellate Court confirmed that decree,' absolute' must be taken to mean no more than the full legal estate which the law gives to a Hindu woman so situated in movable property, and that that estate does notinclude the power of disposing of it by will. Whatever may have been the intention of the parties in settling the terms of the consent decree, they, still less than the Courts, were not able to give Luxmibai what the law would not allow her to have. That is the first and perhaps the main argument. For it has been admitted that if the decrees of the Courts did confer upon Luxmibai an absolute estate with power to dispose of the whole of it in any way she pleased during her life, or after her death by will, then there is an end of the matter. I do not wish to press this admission, so as to include the price of the immovable property too, because it appeared to me that Mr. Inverarity in parts of his argument would have distinguished that, and made other and more complicated principles apply to it. Nor do I much care whether there was an admission or not. Secondly, it is contended for the plaintiff that there is no estoppel. This rests as I understand upon the proposition that there was no false representation, no representation, indeed, of any kind, by which Luxmibai was permitted to believe, or induced to believe, that a thing was true, and to act upon that belief, while in fact the thing was not true. It is urged that she would certainly not have acted upon any representation of the plaintiff to the effect that he could give her an absolute estate in the immovable property, even assuming that he ever made such a representation. For she had a brother, a solicitor, to whom she would have naturally gone for advice. All that happened was that both sides were equally mistaken about the legal consequences of the acts they contemplated, that they both equally, in bona fide ignorance, used terms which did not bear the legal meaning they thought they did. Further that no additional weight is lent to this plea of estoppel by the subsequent letter Ex. 5 which merely insisted upon Luxmibai giving the present plaintiff a release in respect of her future maintenance in consideration of what he had done for her under the consent decree. Because in no circumstances could she have been entitled to demand maintenance from him.
5. Thirdly, Ganapatrao and Narayen could not, when they agreed to the consent decree, bind their reversionary interests. This is now well established, and was as much the law then as now. Consequently anything in the consent decree which apparently had the effect of transferring or binding reversionary interests, is in law a nullity and must now be disregarded. A mere spes successionis cannot be made the object of transfer : Sham Sunder Lal v. Achhan Kunwar (1898) 25 I.A. 189, Sumsuddin v. Abdul Husein (1906) L.R. R. 31 Bom. 165.
6. I will first deal with the estoppel. And I may observe that an estoppel may arise in many ways. Here it may involve a res judicata. Res judicata, for example, is invariably treated in the text books as a mode of estoppel, though, logically analyzed, I doubt whether it is. The principle of res judicata is entirely different from the principle of estoppel. To put this in the simplest most colloquial words, which will perhaps bring out the contrast most clearly, res judicata means that a party who has alleged or ought to have alleged certain matters, substantially in issue between him and another party, may not, after a Court of competent jurisdiction has decided upon them, allege them over again in a fresh litigation. In other words, that upon the maxim 'Interest reipublicaeut sit finis litium' a man may not be heard, in Courts of co-ordinate jurisdiction, to say the same thing twice. Estoppel on the other hand is referable to such maxims as for example 'Nemoallegans contraria est audiendus,' and means that a man who has said one thing, whether in or out of Court, and got another to believe and act upon it, may not be heard afterwards to say a different thing against that person. In the one case a man may not have the same allegation twice tried, in the other he may not prove a different, although it may be a perfectly true allegation. While res judicata is not strictly speaking a rule confined to evidence, estoppel is. And of course the range of estoppel is far wider than the range of res judicata. It is too commonly assumed that in this country the whole law of estoppel is contained within three sections of the Indian Evidence Act, the first of which states broadly the general ground, the other two give particular illustrations, of the principle and its operation. The words 'a thing to be true' and to ' deny the truth of that thing' are perhaps wide enough to cover the widely diversified cases of estoppel in pais, with which the English law books are stocked. But it is difficult to apply them literally to such a case as this, where what was represented was the renunciation of a right true probably as far as the person making the representation then knew and intended, but (as now contended) not true in law.
7. Confining myself first to that side of the question, let me try to place before myself what the plaintiff did represent, and what would according to the doctrine of estoppel be the legal effect of such representation on his present claim. Implied in the terms of the consent decree to which he obtained Luxmibai's assent, is Ithink this representation, that he, the plaintiff, and his brother, the third defendant, would never come forward as reversioners to dispute any disposition which Luxmibai might make of the immovable or the movable property of her husband. That is what they thought they were doing, what they meant to do, when they said we will give you an absolute estate in the whole of your husband's property movable and immovable. You may do what you like with it, we shall not interfere. It is quite true that, even in this presentment of the case it is still open to them to say, we meant no more than the law allows. The law would then have allowed Luxmibai to do whatever she pleased with all the money, to squander it or give it away ; the law would have allowed her with our consent to sell the immovable property ; and that is the limit of our representation and intention. We said we would not interfere and we have not interfered in any way with her full use and enjoyment. But we did not say that after her death we would not come in on our legal rights to claim what she left behind her. Nor was she induced upon the faith of anything we then said or any part of our subsequent conduct to act on the belief that we would not claim all that of which she died possessed. For the purpose of estoppel proper, that raises a question of fact. What was the character of the representation made, of the declarations and acts of plaintiff, and what if any effect had all this in inducing Luxmibai to change her own line of conduct 1 Can it not be fairly argued on her side, that but for the assurance of the plaintiff, that as far as he was concerned she had an absolute estate in all that came to her from her husband under the decree, an assurance implying as they all then believed, that she might dispose of it in her lifetime as she pleased and on her death by will, she would not have taken steps to bestow the whole of her money, as she did by will, by way of gift inter vivos Can it be said that the declarations and acts of the plaintiff did not induce her to believe that she might safely make a will, and that he at least would not dispute it'? If that were so, then it seems to me that there would be a good legal estoppel and that it would not be now open to the plaintiff to come forward and challenge the will, to the making of which he had been actively accessory. I do not understand that it is contended, that if, instead of leaving say thirty thousand rupees by will, Luxmibai during her life had for ten years given away three hundred rupees a month, the plaintiff could have, under the terms of the consent decree, disputed such gifts. Nor in the terms of the said decree, if, instead of the immovable property having been sold by the Court, other arrangements had been made, for ascertaining it, and then Luxmibai had sold it herself, and given away the proceeds in like manner, that the plaintiff could have disputed the alienation. But for his own declaration and act, of course he could and that brings out a little more clearly the extent to which the estoppel operates. In effect his contention comes to this, ' I did give Luxmibai an absolute estate in the movables and immovables, and I have consistently acted up to that act and declaration; but such an absolute estate is in use, and not duration; if therefore she failed to make the utmost use of it, is notmy fault; she had absolute powers of use during her life but on her death her estate ends and if she has not exhausted the property I come in, and am not estopped from saying that shehad no power to bequeath it by will. That is not an incident of a widow's absolute estate at all, and would be adding an attribute to it. which it never had.' One simple answer to this is, that there is authority and pretty good authority for the proposition that a widow can take an absolute estate, with complete powers of disposition during her life or by will, when it is so expressly given her by her husband. And if when it is given her by her husband, then for the purposes of estoppel and estoppel only. I do not see why it should not be so when the power is given her by the next in reversion, as far as all their subsequent rights are concerned.
8. There next arises the question what was decreed to Luxmibai by Sir J. Arnould, and the Appeal Court If the absolute estate in the movables included the power of disposition by will, then the matter ends. Because I think there could be no serious question but that what was subsequently done under the consent decree clothed everything, the widow took, so far as this plaintiff is concerned, with the same character, and gave her the same power of disposition over it, as the movables dealt with by Sir J. Arnould. But it is argued that a woman's absolute estate in her husband's movables in this country means only full use during her life. She may do anything she pleases with them as long as she lives, but she may not dispose of them by will on her death. They then revert to her husband's kin. On the other hand it is contended that thewho's context of the decree shows that the Courts then thought they were conferring and meant to confer on Luxmibai an absolute estate in the movables, contrasted with the limited woman's estate which they gave her in the immovables. If this is correct it follows that the plaintiff is not only estopped, but that his present claim is also clearly res judicata.
9. The question is one of considerable difficulty. When property movable or immovable is left to a widow by her husband by will with express power to dispose of it, or absolutely, I apprehend that it will not be seriously disputed that she may exercise all such powers to the full, in other words that she takes literally an absolute estate. It is as clear that when she takes by inheritance she has a restricted estate in immovables. This sharp distinction between movables and immovables, which runs through all the leading Bombay decisions is nowhere ascribed to any uniform and consistent reason, and later it disappears in a great many cases, where what is commonly spoken of is ''the fund' left by the widow's husband; and as far as I can gather from many of those cases, that 'fund' may consist of money as well as immovable property. That was not the view of the Bombay High. Court in early days. And I have no doubt that it was not the view of Sir J, Arnould or of the Court which confirmed his judgment in appeal. Those decisions take us back to the year 1869; and seventeen or eighteen years later we.find the Bombay High Court deciding in Damodar Madhowji v. Purmanandas (1883) L.R.R. 7 Bom. 155 that a widow had absolute power over the movables left her by her husband and might dispose of them by will. Ten years later that case was overruled, but it shows what the view of this Court was and what Arnould J. meant when in his decree he said thatLuxmibai had an absolute power over the movables of her deceased husband, and what the plaintiff meant when in his consent decree, he extended that absolute power over the immovables also. Four years later a Division Bench, of which Ranade J. was a member, held that a widow in Guzerat had power to bequeath movables taken by her under her husband's will which gave her expressly powers of disposition. That was a case under the Mayukha, but Ranade J.'s judgment is instructive and useful, as showing what that learned and eminent Hindu lawyer's opinion generally was. He observes in the course of his judgment that a like power of disposition contained in a will would authorize the widow to bequeath immovable property also. This had long ago been decided in Seth Mulohand v. Bai Mancha ILR (1883) 7 Bom. 491. It seems to me doubtful whether Ranade J. wholly approved of the Full Bench case of Gadadhar Bhat v. Chandrabhagabai (1892) L.R. R. 17 Bom. 690 but that was again followed quite recently in Chamanlal v. Ganesh (1904) 6 Bom. L.R. 460, also a case under the Mayukha.
10. This general proposition too may be safely advanced that the ordinary restrictions would not apply to property which has passed to a widow not as heir, but by deed or other arrangement conferring on her absolute powers. Mussumat Bhagbutti Daee v. Chowdry Bholanath (1875) 2 I.A. 256. But here again what is to be looked to is what estate did she take? Not only how did she take it? Moulvie Mahomed v. Shewukram (1874) 2 I.A. 7, Lakshmibai v. Hirabai (1886) L.R. R. 11 Bom. 69.
11. Adopting that test, what estate did Luxmibai take under the arrangement or consent decree? The answer to that must I think be that as far as the plaintiff is concerned she took an absolute estate with full power to dispose of it by will or in any other way she pleased. For when the plaintiff agreed to give her an absolute estate in the immovables as well, as the movables of her husband he could not shelter himself behind the ambiguity which he now attributes to the word 'absolute', applied only to movables. He might argue that when he consented to give her an absolute estate in the movables he meant no more than the absolute use and spending, but he could not say that in giving her an absolute estate in the immoveable property he was not deliberately and intentionally going outside the sphere of all possible ambiguity and giving more than the law as then understood could possibly, without that act of his, have given her. That could only be a conscious act intended to enlarge her powers of disposition, inviting her to exercise them, and clothing the whole estate, movables and immovables alike, with as far as he was concerned this special character, namely that she might deal with it in any way she pleased and dispose of it by will.
12. In this connection I will say a word or two on the third contention. The plaintiff' relies on a recent decision of the appeal Court, to which I was a party, that a mere spes successionis cannot be made the object of transfer under the Transfer of Property Act, and that consequently a reversioner cannot transfer or bind his reversionary interest. I think that is altogether a different case. I admit that looking back to its facts, there is an analogy which may be used against defendant's plea of estoppel. But the principle upon which that case was decided is I think easily distinguishable from the principles which are applicable to cases in which Hindu reversioners lend themselves to the widow-in-possession's disposition of the immovable property. I do not think it has ever been denied that, for instance, alienations made by a widow of her husband's immovable estate with the sanction of the reversioners, are valid against them. Let me look into this a little more closely. What was it that the reversioners did? They certainly assented to the widow selling the immovable property. In fact they assisted her to do so. If that property had gone into the hands of strangers, they admit that they could not now follow it. They at any rate are bound by what was done. Other reversioners might not be. That is a point with which I am not now concerned. But the plaintiff was bound by the alienation. Can he then come in and claim the price? This brings me to the much vexed question of the widow's powers of enjoyment, accumulation and so forth. I have already said, what is indeed an elementary platitude, that the widow's estate is measured by use, not duration, which means, in the case of movables at any rate, that she may exhaust them but may not dispose of any that are left on her death. A very recent decision of this High Court has gone I think, with all respect to the learned Judges who gave it, much further than any case restricting the widow's power to deal with movables ever went before. A Division Bench of Russell and Heaton JJ. have held, if I understand them aright, that a widaw has not even full power of disposal over movable property inherited from her husband during her life. With the greatest respect I must say that that seems to be carrying the doctrine that she may not dispose of them by will after her death much too far. For how is the line to be drawn? If she has five thousand rupees in cash left her by her husband, may she only spend five, or ten, or fifty And if she may spend fifty or even a thousand, why not the whole five thousand? The principle of this decision seems to me to destroy the widow's estate altogether. For it comes plainly to this, that she can never have more than a reasonable maintenance, and what is or what is not a reasonable maintenance will for ever be in dispute between her and the reversioners. This is a very different thing from saying that she may not dispose by will of either the original 'fund' movable or immovable left by her husband or of accumulations and accretions thereto, made during her own life.
13. As far as I know the only remedies reversioners have during the life of the widow in possession are (1) to restrain waste, (2) to dispute adoption, and (3) to dispute alienations. And waste, at any rate in respect of movables, is so loose a term that I am not aware of any case in which relief of that kind has been granted. In the well known case of Vinayak v. Laxmibai plaintiff's bill contained averments of waste, but the case was decided against him on demurrer, and therefore presumably no attention was paid to that part of the bill. Opinion in Bombay seems to have veered round to the proposition that a widow cannot dispose of her movables by will, when she has taken them by inheritance from her husband. But this has come about slowly, and it may well be doubted whether it was the opinion of this Court before 1894 or whether it is not even now an open question. Mayne evidently doubts whether in Western India at any rate, the widow might not be held to have much larger powers of disposal over movables than immovables inherited from her husband. See Section 598, Right up to Harilal v. Pranvalavdas ILR (1888) 16 Bom. 229 he states that there was a stong current of authority in favour of these larger powers of disposition over movables. Notwithstanding the grave doubt I myself feel on the point, did this case depend solely on the widow's power to dispose by will of moneys left her by her husband, I should consider myself bound by authority, and hold that she had not that power. That would amount to finding for the plaintiff in respect at any rate of the fund, movable and immovable left her by her husband. But the further question would then arise whether the same rule governed accumulations There have been a great number of important decisions upon this point. Hut while the result of them all is very clear, cannot honestly say that the reason on which they are founded is. The Privy Council began by holding that all accumulations made by the widow in her own life were absolutely her own, while the 'fund,' from which they were made, retained its original character, and would revert: Sreemutty Soorjeemoney Dossee v. Danobundoo Mullick (1862) 9 M. I.A. 123. Later cases, however, of which Isri Dutt v. Hansbutti is a good example, favour the view that accumulations made by a widow in her lifetime form accretions to the original estate, and go back with it to the reversioners. There the widow bought real estate out of the income, and she was not allowed to will it away. In Rivett Carnac v. Jivibai (1886) L.R. R. 10 Bom. 478, it was held that rents accrued due during the last year of a widow's life went to her representative and not to the reversioner. I do not understand upon what principle that decision could rest, unless it be that all the personal estate of the widow is her own property. For it follows from the decision that if the money went to her representative, the widow could have willed it away, and that is opposed to the general proposition that she has no disposing power over movables of which she is in possession at her death. Now I will explain in a few words why I feel a difficulty in reaching the reason of the decisions. Suppose A. dies leaving to his widow a field and a house, worth say 1000 rupees, and 1000 rupees in cash, and fifty bags of rice. This I presume must constitute the fund which on her death is to be restored if possible to the reversioners. I can understand the reason why she may not alienate the field and the house except upon necessity or with the assent of the reversioners, because this is immovable property which is not exhausted by use. But I cannot understand the reason why she may not do what she pleases with the money and the rice. It is everywhere conceded that she has full powers of disposal during her life, that is to say, that she may eat the rice and spend the money, or give it away. (I leave out of consideration here the effect of the most recent case which decides that she may not even eat all the rice or spend all the money). Ex concessis, therefore, she may do precisely what she pleases with the movables, and for a very good reason, that these things being perishable cannot be controlled in use. But if she may do what she likes with them during her life, I own that I can discover no logical reason whatever why she may not do what she likes with them by will. The idea so frequently presented in the case law, that there is a distinction between the corpus and the income, is in a vast majority of cases a distinction without a difference. It is only where enough money is left to yield a sufficient income apart from the immovable property, and where the widow confines her expenditure to that income, leaving the capital untouched, that there would be any room for the application of this notion. But suppose the principal does not yield enough to support her, and is the only 'fund.' She must then use the income and part of the principal every year, and if in this manner she reduces the principal by two thirds, what becomes of the principle that she must not dispose of that because it is the corpus of the estate she received from her husband? It is not. It is no more the corpus of the estate than any other pieces of money she has taken and spent. And again take another case, suppose the principal is enough to support her and enable her to make large savings so that on her death she has the principal, let us say, and ten thousand rupees over, what reason can be found for the decision in Sreemutty Soorjeemoney Bossee v. Denobtmdoo (1862) 9 M.I. A. 123 that in respect of the former she may not, in respect of the latter she may dispose of it by will? And what reason can be found for subsequent cases which say that she may not dispose of either by will? Admittedly she might have used the whole, and by the use of perishable counters like money there ceases to be any identity; the money she has one day may replace what she spent the day before, but it is not the same, and therefore it does not fall within the principle which restrains her from alienating immovable property. Nor as I say, does there seem to be any reason for laying down a rule which could always be evaded at the caprice of the widow. She has only towards the close of her life to give away all her movables, and the rule has nothing to work upon. This is not the case with immovables. They are stable and permanent, and if they are alienated without proper cause, the reversioners can follow that identical property and recover it. It may be said that the reason of the other rule is that the widow's estate was intended for her maintenance, and that therefore while no one could interfere with her manner of maintaining herself out of all the income and profits, though she might squander them in luxury and riotous living, she could not make them her own in the sense that she could leave them to others. The answer to that is, that it is merely juggling with words. If she could give the money to others, it is precisely the same thing as if she could leave it to them. And though, if she did not choose to do so, I do not see any objection, (in spite of the case of Rivett Carnac v. Jivibai ILR (1886) 10 Bom. 478, to declaring that not her own but her husband's heirs succeed, it does seem to me that that is altogether different from declaring that she has no right to bequeath by will. However that may be, what is important to note, and then emphasize, is that in this Court there always was, up to 1894, a very strong and well settled opinion that a widow in possession for life of her husband's estate had virtually absolute power to dispose of all the movables. The question then is whether, when Arnould J. gave his judgment decreeing her this power, the meaning and intention of the Court within the understanding of all the parties to the litigation, whether right or wrong, was not to give her also the fullest powers to accumulate if she could and to dispose by will of her accumulations from the movable fund. And if so whether when the plaintiff consented to give her for his part the same power over the immovable, that was not also what he meant and intended? And whether when pursuant thereto he got the immovables sold, and paid the widow in cash, he did not in fact as well as by intention, as far as he was concerned put her in possession of one uniform movable, in place of a mixed movable and immovable estate? And whether so far as the movables were concerned, to which of his own act he addedthe immovables, the decision of Arnould J. is not res judicata upon him, that the whole went to the widow absolutely, and that she had power to dispose of it on that footing by gift or will? Each one of those questions must certainly and without doubt be answered in the affirmative, except the last. And as to that my own opinion is that looking to the state of the law at the time and thenceforward to the year 1892, when Gadadhar Bhat v. Chandrabhagabai was decided, the question was res judicata between the plaintiff and Lukshmibai. The consent decree certainly appears to me to be an arrangement under which, as far as this plaintiff was concerned, he did give Lukshmibai an absolute estate in both the immovables and movables, and he cannot now be heard to say that he did not. Acting on the faith of that arrrangement she saved large sums of money, with the intention of bequeathing them ; had it not been for the plaintiff's declaration and act, she might have lived on a much freer scale, and left nothing, or she might have disposed of her savings during her lifetime. One immediate consequence of it certainly was that she consented to put an end to the tedious and expensive proceeding before the Commissioner which might have resulted in her obtaining the large amount she claimed. I incline to the conclusion that this is a fair and good estoppel which the plaintiff cannot now surmount. I think that he ought not to be allowed to prove now that Lukshmibai took only a limited and not an absolute estate in that property. Whether the next reversioners can, in law, as on the authorities it seems to be undoubted that a husband can, give the widow an absolute estate, as against themselves, is a question which I do not think the cases answer. I am of opinion that such an arrangement, come to between the next reversioners and the widow, would be binding on them, whatever its effect might be on other reversioners, more remote, who were not parties to it. That is the position here. But for the former litigation, ending with the consent decree, I should feel constrained to hold, though I still think the question is in this Presidency very far from being free from doubt, that Lukshmibai had no power to dispose of her movable estate by will, and that it would go back to the reversioners. I say that the question seems to me not free from doubt because I find so much weighty authority to the contrary; while, even in the cases which decide that the widow's movable property reverts to the husband's heirs, those decisions are often qualified by the condition that she should not have disposed of it by will, implying that those learned Judges thought that she might have done so.
14. The last point is whether the suit is barred by limitation ?
15. The defendant says that it is, first on this ground that the plaintiff was bound to have the will set aside within six years, and that having failed to do so he cannot now bring this suit, I cannot accede to that contention. The deferant relies on it, on the assumption that the period of limitation is twelve years but he further contends that the period is not twelve but six years, and that Article 120 governs the case. To this the plaintiff replies (1) that the property is immovable, as being the proceeds of the sale of immovable property ; (2) that Article 123 governs the case. In my opinion this is not a suit for immovable property in any sense. Whatever may be the rule in England under the highly technical real property law of that country, I am sure, that when a widow has converted immovable property into money, the money becomes movable property in her hands, and loses all impress of its origin. Article 123 allows a period of twelve years for the recovery of a distributive share of an intestate's property. The plaintiff says that Krishnanath was intestate, and that this suit is to recover a distributive share of his property. Were that so, limitation would begin to run from the date on which the share became recoverable. And the plaintiff alleges that that would be the date of the widow's death. I think this is an unsound application of the article. Were it not so, I do not understand why the Act should specially provide a period of twelve years for the recovery by reversioners, dating the period from the death of the intervening female, and should strictly limit that class of case to the recovery of immovable property. Moreover on closer examination it will be seen that no suit by reversioners could be a suit to recover a distributive share of the property of an intestate. If it be argued that while reversioners could not recover so much of the intestate's property as was movable, but that they could recover so much of it as was immovable, and therefore could in that sense sue for a 'share', it is plain that this does away with the whole of the plaintiff's case. But if in fact all that the widow leaves, whether movable or immovables, is the intestate's estate on her death, then it is equally plain that reversioners cannot in those circumstances, and, as far as I am aware, never have sued for a distributive shave. They must ask for the whole property. There is no question of distribution in the suit. If there are more than one reversioners they must collectively ask for the whole property; if there is only one, he must ask for the whole property. I am of opinion that that Article was never meant to be applied to cases of reversioners suing to recover property which has been held for some intervening time by a widow, whether that property be movable or immovable. The period allowed for that suit, where the property is immovable, is Article 141. Where the property is as in this case movable, there is no section directlygoverning he case, and it will, therefore, fall under Article 120. The suit is, therefore, in my opinion clearly time barred.