Norman Macleod, Kt., C.J.
1. The original plaintiff to this suit was one Parshottam Hargovandas, who sued to recover from the defendants possession of the property in suit, alleging that his wife Bai Adat died on January 9, 1921, leaving behind her that property to which the plaintiff was the heir at law; that the defendants were withholding possession of the same from him on the strength of an alleged will by Bai Adat; and that as the plaintiff had not consented to it, it was not operative.
2. The defendants want to trial on the issues whether the will by Bai Adat was valid, and whether the suit properties, or any of them, were other than Saudayika stridhan of the deceased , Bai Adat. The trial Judge found that the will was valid, and that the property in suit was riot Saudayika stridhan of Bai Adat Ho considered in the circumstances of the case that Bai Adat was entitled to dispose of such property by ill, although her husband was alive, because the will was not made during coverture, which was still understood to mean a state during which the wife was under the power of her husband, and as it was admitted that Adat was living separate and independently of her husband at her father's house for thirty or forty years till her death, she was not under coverture.
3. In appeal the Judge said :
Bai Adat stayed with her husband Purshottam for a few years. She gave birth to four or five children who died long ago. Purshottam then married a second wife with the result that Rai Adat had to seek the shelter of her parents. She lived with her parents and in their house for about forty years prior to her death. During his time her husband never maintained her nor did he over care to know how she was doing. She seems to have been treated as an abandoned wife.
4. He agreed with the learned trial Judge that Bai Adat really got her father's property as his heir, and referring to the decision of Bhau v. Raghunath (190B) I.L.R. 30 Bom. 229 : 7 Bom. L.R. 936 said :-
The ruling quoted by the appellant lays down that it is not open to a wife to dispose of her stridhan property except Saudayika stridhan without her husband's consent or permission during coverture. The principles on which the ruling is based is that females are always subject to the control of males even in a matter of disposition of their separate property. This condition of control can exist when the females reside with and are members of the family of the controlling male persona. If u husband abandons his wife and fails to fulfil the obligations enjoined by Hindu law to his wife for more than a generation, he cannot claim the right of control over the property she acquired in her paternal house. The View which gives a husband powers of control over the person and property of his wife also presents corresponding obligations. If the latter are not discharged, the former must be treated as lost to a great extent. Bai Adat had virtually ceased GO be a member of her husband's family. Her husband bad, therefore, lost all control over her property and over her person to a great extent.
5. The appeal was, therefore, dismissed.
6. The correctness of that decision has been contested in second appeal We do not dispute for a moment the principles of Hindu law as stated in Bhau v. Rayhunath I.L.R.(1905) 30 Bom. 229 : 7 Bom. L.R. 936 with regard to the power of disposition by a wife over her non-Saudayika stridhan. But it is perfectly clear, as pointed out by the lower appellate Judge, that the texts which are referred to in that judgment contemplate quite a different state of facts from those which have been proved to exist in this case, and we cannot know what would have been laid down, supposing the possibility of a wife being separated from her husband for forty years could have been contemplated in those times. We think that the facts in this case are sufficient proof that although Bai Adat at law was still the wife of Purshottam, he had lost all rights of control over her, so as to lose also the right to validate any disposition which she might make by will of property inherited by her from her paternal relations. We think this decision is in consonance with the views which would prevail at the present day in the community. Both the Judges who heard the case in the lower Courts are Hindus, and we do not think that they would have decided the case, as they have done, if they thought that their decisions would in any way offend the sense of the Hindu community. We, therefore, dismiss the appeal with costs.