Louis P. Russell, Acting C.J.
1. The question in this case is whether a deceased Hindu widow, governed by theMitakshara, is competent to make a gift of moveables inherited by her from her husband, who died childless andintestate.
2. The appeal comes up from Sholapur.
3. The facts are simple. There were three brothers, the plaintiff GovindShivram, defendant 1 Manohar and one Gopal, husband of Gitabai. On the 25th September 1897 a decree for partition between them was passed on an award (Ex. 70); Gopal being of unsound mind was represented by the plaintiff in the arbitration proceedings. Under that decree Gopal was given a specific share in the family property consisting of a house, some ornaments for his wife and about Rs. 4,000 in cash; and on the 1st of December 1898 his share was handed over to his wifeGitabai- see Ex. 71. Gopal died in September 1902 and on the 22nd of December 1902Gitabai, his widow, executed a document, Ex. 65, in favour of the defendant 4, a nephew ofGopal's. That document recites that in consideration of his near relationship, his being the family priest and the fact that he had incurred expenses for the maintenance of herself and her husband for the last five years and for the performance of religious rites, certain debts due by him to her deceased husband amounting to Rs. 1,000 were thereby remitted according to the dying wishes of her husband. The document concludes as follows :--'Therefore as my deceased husband has directed me to make a gift of this our debt to you and as you are a relation and Upadya (family preceptor) of my deceased husband, thus for several reasons having looked at it from the point of view of my interests, worldly as well as religious and after consideration of the whole, I have given the above property in Dana and gift.' On the same day she made a will, Ex. 66, in favour of defendant 4 and a grandson of defendant 1, a minorPandurang, whereby she devised the immoveable property she inherited from her husband to the minor Pandurang absolutely and bequeathed themove-ables in equal half shares between Pandurang and defendant 4. The second defendant in the case was the son of defendant 1, who died after the institution of the suit and the third defendant was his grandson. Defendants 5 and 6 were added as defendants as they were said to be in possession of some of the property specified in the list annexed to the plaint.
4. Gita died in February 1904 and the plaintiff prayed that the property specified in his plaint, together with Gopal Shivram's ornaments and other articles in defendant 4's possession and the debts due to him by the latter be divided and an equal half share awarded to the plaintiff, but as above pointed out, the only defence in this appeal that we are concerned with is that of defendant 4, who resists the claim on the strength of the deed, Ex. 65, executed in his favour byGita. That deed, no doubt, was drawn up by a person having a little knowledge, but it is proverbial that that is a dangerous thing, for although it recites that the remission of defendant 4's debts to Gita's husband was given in pursuance of his directions, it has been found as a fact in both Courts that that statement was untrue and the draftsman of the deed evidently accidentally omitted to bear in mind the fact that Gita's husband had been a lunatic for many years.
5. In the first place it is to be observed that moveable property inherited by the widow from her husband cannot now-after a great deal of discussion-be considered as her Stridhan strictly so-called. This point must now be considered as settled-see Sheo Shankar Lal v. Debi Sahai (1903) LR 30 IndAp 206, where the Privy Council say: 'The decision of the High Court was based upon the text of theMitakshara, which seems to make all property taken by a woman by inheritance her Stridhan with all the incidents which belong to that kind of absolute property and to make it descend as such primarily to females and in the special line prescribed for Stridhan so-called. It cannot now be contended that the rule thus derived from the Mitakshara is law as to inherited property generally. In the cases of Mussumat Thahoor Deyhee v. Rai Baluk Ram (1866)H.M.I.A. Ca., 139, Bhugwandeen Doobey v. Myna Baee (1867) H.M. I.A. Ca. 487 and Ghotay Lall v. Chunno Lall (1878)L.R. 6 I.a. 15, all of them Benares cases, as well as Mutta Vaduganadha Tevar v. Dorasinga Tevar (1881)L.R. 8 IndAp 99 and Raja Chelikani Venkayyamma Garu v. Raja Chelikani Venkatara-manayyamma (1902)L.R. 29 IndAp 156, place it beyond doubt that property inherited by a woman from a male is not her absolute property and passes on her death, not to her Stridhan heirs, but to the heirs of the male person from whom she inherited it.'
6. Again, in Lal Sheo Pertab Bahadur Singh v. Allahabad Bank (1908) L.R. 30IndAp 218, their Lordships say : 'In the present case their Lordship have had the advantage of hearing a full argument upon both sides. The argument for the appellant was to the effect that the alleged power of the lady to alienate in the present case could be based only upon the literal interpretation of theMitakshara, which seems to make all property inherited by a woman her Stridhan in the strict sense of the term with all the incidents of such property, including the free power of alienation; that that view of the Benares law had already been negatived by this Committee in the case of property inherited from a male, that inheritance from males and that from females could not be differently treated; and that the authorities in most parts of India were to the effect that what a woman has inherited from a woman she does not hold as her absolute and alienable estate, but for a qualified estate, with reverter after her death to the heirs of her predecessor in title. The argument on the other side was based strictlya upon the text of theMitakshara, but it was contended that a distinction should properly be drawn between property inherited from males and that inherited from females; and an endeavour was made to show that the decisions in various provinces in India applying the doctrine of reverter to such cases were wrong. On the present point, as on that arising in the previous case, it is too late to contend for the literal meaning of the Mitakshara to the full extent. The previous decisions of this Committee have established that, under the Benares law, what a woman takes by inheritance from a male she takes not absolutely, but for a qualified estate alienable only under theconditions applicable to such an estate.'
7. How far these two opinions of the Privy Council may affect the recognized rule in Bombay that female heirs, except those who come into the family of the propositus by marriage, take absolute interests-a question, which was expressly left open by Sir Lawrence Jenkins C.J. in Bhau v. Raghunath(1905) I.L.R. 30 Bom. 237. See also Gulappa v. Tayawa : (1907)9BOMLR834 , Chandtivarkar J., does not arise in the present case. But these opinions of the Privy Council in our judgment have an important bearing on the question before us.
8. The texts on the question are to be found at page 595 of Colebrooke's HinduLaw:-'Narada-Property given to her by her husband through pure affection, she may enjoy at her pleasure after his death, or may give it away, except land or houses.Catyayana-What a woman has received as a gift from her husband, she may dispose of at pleasure after his death, if it bemovedble; but, as long as he-lives, let her preserve it with frugality; or she may commit it to his family. 2. The childless widow, preserving inviolate the bed of her lord and strictly obedient to her spiritual parents, may frugally enjoy the estate until she die; after her, the legal heirs shall taka it.'
9. It will be observed that these two texts refer to what has been given to a woman as a gift by her husband, not inherited by her on her death and in the second paragraph of Catyayana the childless widow may frugally enjoy the estate until she die.
10. Again in the Vyavahara Mayukha, Chap. IV, Section 8, Clause 4:- 'As to the text ofCatyayana-'After the death of the husband, the widow, preserving the honour of the family, shall obtain the shares of her husband, so long as she lives; but she has not property therein, to the extent of gift, mortgage, or sale'; it is a prohibition of gift of money, or the like, to theBandi, Charana and the like swindlers.'
11. The judgment of the first Court herein which deals with the relations between Gita and defendant 4 contains some grounds, at all events, for the conclusion that this text might possibly be held applicable.
12. The next question to consider is : What is he principle applicable to the restriction sought to be imposed on the power of the widow over inherited moveable property.
13. The Privy Council in Bhugwandeen v. Myna Baee (1867) 11 M. I.A. 513, thus give the principle :-'The reasons for the restrictions which the Hindu Law imposes on the widow's dominion over her inheritance from her husband, whether founded on her natural dependence on others, her duty to lead an ascetic life, or on the impolicy of allowing the wealth of one family to pass to another, are as applicable to personal property invested so as to yield an income as they are to land. The more ancient texts importing the restriction are general. It lies on those who assert that moveable property is not subject to the restriction to establish that exception to the generality of the rule.'
14. Again in The Collector of Masulipatam v. Cavdly Vencata Narrainapah (1861) 8M.I.A. 551, their Lordships say: 'It is not merely for the protection of the material interests of her husband's relations that the fetter on the widow's power is imposed. Numberless authorities from Manu downwards may be cited to show that, according to the principles of Hindu Law, the proper estate of every woman is one of tutelage; that they always require protection and are never fit for independence. Sir Thomas Strange-(see Strange on Hindu Law, Vol. 1, p. 242)-cites the authority of Manu for the proposition that, if a woman have no other controller or protector, the King should control or protect her. Again, all the authorities concur in showing that according to the principles of Hindu Law, the life of a widow is to be one of ascetic privation (2 Colebrooke's Digest 459). Hence, probably, it gave her a power of disposition for religious, which it denied to her for other, purposes. These principles do not seem to be consistent with the doctrine that, on the failure of heirs, a widow becomes completely emancipated, perfectly uncontrolled in the disposal of her property and free to squander her inherited wealth for the purposes of selfish enjoyment... Their Lordships are of opinion that the restrictions on a Hindu widow's power of alienation are inseparable from her estate and that their existence does not depend on that of heirs capable of taking on her death.'
15. Further in Vijiarangam v. Lakshuman (1871) 8 B.H.C. 265 there is a passage in WestJ.' s. judgment (which is too long to quote in full here) showing how the Hindu Law-like other systems of jurisprudence-never treated women as independent.
16. This being so, it must be borne in mind that the right of absolute disposition did not enter into Vijnaneshwara's conception of the essentials ofownership-Vijiarangam v. Lakshuman (1871) 8 Bom. H.C. 264. The Full Bench in Bhagirthibai v. Kahnujirav ILR (1886) 11 Bom. 309 say as follows ;-
The completeness of a woman's estate in property taken by inheritance does not necessarily involve complete independence in dealing with it. The Mitakshara is careful to demonstrate that dependence is as consistent with full ownership in the case of a woman as of a child; and it seems likely thatVijnaneshvara looked to this dependence as a safeguard for the enlarged estate which he assigned to women.' See also West and Buhler, 3rdEdn., pp. 318-320; Mandlik, pp. 365-367 ; Jolly's pp. 251, 252; Sarvadhikari H. L., 271-279; Manu, Chap. V, vv. 147-149; Chap. IX, vv. 1 and 2;Naracla-Sacred Books of the East, p. 49. And as said by Peel C.J. in Hurrydoss Dutt v. Rungunmoney (1851) 2 Tay. & B. 281: 'The incapacity to alienate is not in any way inconsistent with an inheritance.' And in the latest case on thesubject-Bhadu v. Raghunath (1905) I.L.R. 30 Bom. 229 -it was held that except in the kind of Stridhan known asSaudayika, a woman's power of disposal over her Stridhan is during coverture subject to her husband's consent and without such consent she cannot bequeath it by will when she is survived by her husband, who is not shown ever to have consented to the will.
17. Then as regards the distinction which has been made in Western India between the woman's power over rmveables as distinguished fromimmoveables, it seems to us that we must take these words in the ancient texts with their meaning so far as we can arrive at it, in the days of those texts and the commentaries on them. If we take the expressions as identical with the elaborate and technical meanings given to immoveables and moveables by modern English and Anglo. Indian Law we are apt to fail to realize and apply the underlying spirit of the Hindu Law. On this point West J. in Vijiarangam v. Lakshuman (1871) 8B.H.C. 265 says: 'It seems a reasonable inference from these and other authorities that as to immoveable property at any rate-and withimmove-able property according to Hindu Law is classed any kind of property producing a periodical income-the woman's owner-ship is subject to the control of her husband and of the other persons interested in the preservation of the estate and it cannot be needlessly dissipated at her mere caprice. '
18. Before we refer to the cases which are cited to us by Mr. Gharpure for defendant 4, we must mention a very strong point made by Mr. Rao in his admirable argument for the plaintiff and that is that even in the Mayukha there is not a text which distinctly and definitely supports the widow's absolute dominion and power over movaables inherited from her husband. Mr. Gharpure in his reply was forced to admit this, but he tried to get over the point by referring to Mandlik's Mayukha, p. 77, line 20. There it is said, 'As for this text of Brahaspati :- 'Whatever property, whether pledged or of any other kind, (the husband) possessed after division, that the wife shall enjoy after the death of her husband with the exception of immoveable property....' This refers to a wife having no daughter....'
19. It is, we think, very significant that the word there used is enjoy -not 'give away or dispose of.'
20. Mr. Gharpure referred us to a number of cases: Bechar v. Bai Lakshmi (1863) 1 B.H.C. 56, Navalram v. Nandkishor (1865) 1 Bom. H.C. O.C.J. 209, Pranjivindas v. Devkuvarbai (1859) 1 B.H.C. 130, Narsappa v. Sakkaram (1869) 6 B.H.C. A.C.J. 209, but as pointed out by Mr. Rao all except Narsappa. v. Sakharam are under the Mayukha and this latter case by its reference to the cases in I Bom. H.C.R., appears to have been decided more with regard to that than to the Mitakshara.
21. We do not, however, think it necessary to go back farther than the Full Bench decision in Gadudharbhdt v. Chandrabha-gabai ILR (1892) 17 Bom. 690 where it was held that under the law of the Mitakshara a, widow has no power to bequeath moveable property inherited by her from her husband. Jardine J. in referring the case discussed elaborately all the authorities then bearing upon it and the result of the decision is thus given by Sargent C.J. at page 711:-'In this state of the authorities we think that the ruling of the Privy Council, that the property inherited by a widow from her husband devolves on his heirs at her death, must have effect given to it throughout the Presidency with regard to the devolution of the moveables so inherited and to that extent, if the decision in Damodar v. Purmanandas ILR (1883) Bom. 155, is to be regarded as necessarily giving the moveables that remain to the widow's heirs, it must be treated as of no authority. Assuming, then, as we think we must, that the moveables existing at the time of the widow's death devolve, by inheritance, on her husband's heirs, we think the widow's power of alienation over the moveables cannot be regarded as including the power of willing them away at her death so as to displace the right of inheritance by her husband's heirs. We must, therefore, answer the question referred to us in the negative.'
22. That case was followed in Chamanlal Maganlal v. Ganeah Mobichand (1904) I.L.R. 28 Bom. 453, where it was held that even under the Mayukha a widow has no testamentary power of disposition over moveables which have been inherited by her from her husband.
23. Now, although no doubt, as the Privy Council say in Bai Bishen v. Mussumat Asmaida (1884) L.R. 11 IndAp 177, there may be a distinction between a gift inter vivos by deed, which operates at once and a testamentary gift, which takes effect from the death of the testator, it must be remarked that in that case the document was in the nature of a family settlement. Still it must now be, taken as well settled that by Hindu Law the analogy between gifts inter vivos and gifts by will is complete-see the cases referred to in Trevelyan on Hindu Wills, p. 33; and Mayne, 7th Ed. p. 553; and Bai Motivahoo v. Bai Mamoobai (1897) L.R. 24 IndAp 105. and Seth Mulchand v. Bai Mancha ILR (1883) 7 Bom. 493.
24. Further, it is to be observed that in Harilal Harjivandas v. Pranvalavdas Parbhudas (1888) I.L.R. 16 Bom. pages 229 and 233, which was however, decided before Gadadharbhat v. Chandrabhagabai, it was held that moveable property inherited from her husband, by a Hindu widow, if not disposed by her, passes to the next heirs of her husband on her death and, that such property was not her personal property liable in their hands for her debts. These decisions certainly are not consistent with an absolute power over inherited moveables on the part of a widow.
25. The Madras High Court has lately held, though (as Mr. Mayne says, 7th Ed., p. 509) without noticing the decisions of the Sud-der Court to the contrary, that the restrictions upon a widow's estate apply to moveable as well as to immoveable property- Narasimha v. Venkatadri ILR (1885) Mad. 290; Buchi Ramayya v. Jagapathi ILR (1884) I Mad, 805.
26. Lastly, it is clear from the argument of Mr. Mayne's Hindu Law, 7th Ed., pp, 809, 870, 871, that he supports the view of this question of law which we have above put forward.
27. Seeing the enormous wealth which Hindus in India hold in a form of moveable property, e.g., Government Paper, stocks and shares, which was unknown to the ancient text writers and commentators, it is perhaps as well that the law should be as we hold it is and that their widows should not have an uncontrolled power of disposition in respect thereof after the death of their husbands. Possibly with the spread of education amongst and the general emancipation of, their women, they may be led to call in aid the relief of Legislature,
28. We confirm the decree with costs.
29. I will state as briefly as I can my reasons for holding that this appeal should be dismissed. Many decided cases have been referred to and considered. Most of them are mention. ed in the judgments of the lower Courts and that of the learned Chief Justice and need not be further discussed in detail.
30. In this Court the validity of the gift which defendant 4 (the appellant) seeks to uphold, was based on the alleged absolute power of a widow to dispose by gift of moveables inherited from her husband. It was not contended and, after the findings of fact arrived at by both the lower Courts it could not be contended that there was anything in the circumstances of the particular gift, which would render it valid, if the widow has not this absolute power. In this case, therefore, we are not called on to say how far the widow's power of disposal is fetter-ed; but merely to decide whether or not it is absolute. On that point I have no doubt as to the answer; her power to dispose of moveables inherited from her deceased husband is not absolute.
31. The argument to the contrary is not based on unambiguous texts in the Smritis or the books of the commentators. Such texts as can be found are admittedly matters of controversy. But we do know that according both to the letter and spirit of the Hindu Law the widow is a dependent. In the other parts of India than Bombay approval has been refused to the doctrine that she has absolute power in disposing of moveables inherited from her husband. That doctrine is not approved by the Privy Council as appears from the quotations read by the learned Chief Justice. It is not, I believe, approved by the sentiment of modern Hindu even in Western India. It is certainly an undesirable doctrine even at the present time. For, to give a widow absolute control over valuable property is to expose her to the schemes of plausible but unscrupulous persons. If a concrete illustration be desired, it is furnished by this very case; for we may fairly assume that the truth is represented by the facts found by the first Court after a most careful and intelligent analysis of the evidence and not seriously attacked in appeal. The only matter, so far as I can understand, in support of that doctrine is a series of reported cases beginning with Pranjivandas v. Devkuvarbai (1859) 1 Bom H.C. 130 and ending with Damodar Madowji v. Purmanandas ILR (1883) 7 Bom. 155. In the earliest of these cases the widow is held to have 'uncontrolled power over the moveable estate,' In Beohar Bhagvan's case (1863) 1 Bom. H.C. 56 the phrase used was 'absolute power over moveable property' since then the phrase has usually been 'absolute'; but the meaning is substantially the same whether that word or uncontrolled be used. There can, I think, be no doubt what was meant by 'absolutely' the meaning is illustrated by Bhagirthibai's case ILR (1886) 11 Bom. 285 and Gandhi Maganlal's case ILR (1899) 24 Bom. 192. It means not only that the owner has full power of disposal, but on her death the property descends to her heirs and not to the heirs of the last male holder.
32. We now know that moveables inherited from her husband by a widow descend on her death to his heirs, not to hers and that she is without power to dispose of such property by will - see Gadadhars case (1892) I.L.R. 17 Bom. 690 and Sha Chamanlal's case ILR (1904) . 28 Bom. 453. In other words, her power is not absolute and in holding otherwise the earlier decisions went beyond what is now the settled law. Those early decisions certainly did not mean that the widow took an absolute estate during her life only and in my opinion, cannot be so interpreted. To attach such a meaning to them would indeed be to arrive at a compromise between what they asserted and what has since been asserted; but it would be a compromise which would ignore the true meaning of both sets of decisions and which, so far as I can see, could not be successfully based either on the words of the spirit of either the Hindu Law or the decided cases.
33. Being, as I hold we now are, unfettered by the early decisions I am unable to find either reason or authority for the proposition that a widow takes absolutely moveables inherited from her husband. Therefore, I think, this appeal must be dismissed.