1. This case raises an interesting point of Hindu law which does not seem to be covered by authority. The appellant, who was the original plaintiff, sued to recover certain property as a distant agnate of one Maruti who died in 1929 without leaving a widow or any issue. His father Sitaram had a brother named Genu who died several years back leaving a widow Sai who is defendant No. 1 in this case. The property was taken possession of by Sai as she was the widow of the paternal uncle, i.e. a gotraja sapinda, of Maruti, and as such was entitled in our Presidency to inherit it as an heir in preference to a distant agnate under the ruling in Lallubhai Bapubhai v. Mankuvarbai (1876) I.L.R. 2 Bom. 388. The plaintiff contended that Sai was unchaste at the time when Maruti died, and was, therefore, incapable of inheriting the suit property. The only question at issue was whether Sai was debarred from inheriting the property of Maruti because of her unchastity. It was conceded by her that she was leading an unchaste life at the time of Maruti's death when the succession opened.
2. Both the lower Courts held that under the Hindu law the bar of unchastity applied only to a widow inheriting her husband's property, that in the present case the widow Sai inherited not her husband's property but the property of her husband's nephew, and the bar therefore did not apply. The suit was, therefore, dismissed on that ground.
3. It is contended here that for the purpose of the bar all widows inheriting property stand on the same footing, and that therefore the bar applied also to the case of a widow who inherits property as the widow of a gotraja sapinda. Now, it is important to note that under the Hindu law as such a widow of a gotraja sapinda does not inherit any property in her own right. It is only by virtue of 'positive acceptance and usage,' as held in Lulloobhoy Bappoobhoy v. Cassibai , that in our Presidency she has acquired the right to stand in the same place as her husband, if living, would have occupied. Subsequent cases have made it clear that the widow of a gotraja sapinda takes the property in her own right as an heir and not only as representing her husband. The latest decision on this point is in Kallava v. Vithabai : AIR1930Bom396 .
4. The suit property in the present case was of the absolute ownership of Maruti after Genu's death, presumably because Genu and Sitaram were joint. On Maruti's death, therefore, Sai would inherit it not as the property of her husband Genu but as the property of her husband's nephew Maruti, and the question is whether the bar which applies to the case of a widow inheriting her husband's property could also be extended to a case where the widow inherits the property not belonging to her husband but belonging to her husband's nephew.
5. It has been contended by Mr. Sukhtankar on behalf of the plaintiff-appellant that the bar should be held as also applicable to the case of a widow inheriting property as the widow of a gotraja sapinda, because she inherits it from her husband's family and that too only in our Presidency by reason of usage. It is, therefore, necessary to examine the genesis of this bar. So far as inheritance is concerned, the only text in the Mitakshara relating to this bar is mentioned in Chapter II, section II, placitum 2, which runs as follows:-
6. Thus Katyayana says, 'Let the widow succeed to her husband's wealth, provided she be chaste; and, in default of her, let the daughter inherit, if unmarried.'
7. This bar, therefore, according to the text, applies only to a widow succeeding to her husband's wealth, and the case-law has also limited it to such estate. It has been held for instance that neither a mother nor a daughter is debarred from inheriting property on the ground of unchastity because both of them inherit in their own right: see Vedammal v. Vedanayaga Mudaliar (1907) I.L.R. 31 Mad. 100, and Advyapa v. Rudrava (1879) I.L.R. 4 Bom. 104. No authority has been cited before me to show that the bar has been applied to any female except a widow inheriting her husband's property. But the matter does not rest here. In the recent Hindu Women's Rights to Property Act (XVIII of 1937), the bar of unchastity seems to have been removed even with regard to the widow inheriting her husband's property, because it says that its provisions shall apply notwithstanding any rule of Hindu law or custom to the contrary, and as observed in Mayne's Hindu Law, 10th edn., at p. 722, 'as the Act confers upon the widow a right of succession notwithstanding any rule of Hindu law, an unchaste widow will not be disqualified from inheritance.' The result is that the bar of unchastity has now been removed even in the case of a widow inheriting her husband's property, and it would indeed be incongruous to hold that it applies to the case of a widow inheriting the property of any person other than her husband when she can now inherit her husband's property in spite of her unchastity. The position, therefore, is that there is no authority for the proposition that any widow inheriting any kind of property must be chaste, that the bar was confined to only one particular case, namely, the widow inheriting her husband's property, and even that bar is now removed by legislation. If the Hindu community desires that the bar of unchastity should be applicable to all widows inheriting property, it might invoke the aid of Legislature, but on the law as it stands at present, it is clear that an unchaste widow of a gotraja sapinda is not incompetent to inherit property of her husband's kinsmen.
8. The decision of the lower appellate Court is, therefore, correct and the appeal is dismissed with costs.