Robert Stuart, C.J.
1. After repeated consideration of the arguments and authorities referred to in this case, I feel that I can add nothing to what is clearly laid down in the judgment of the Calcutta High Court. But in expressing this opinion I desire to confine myself to the principles and authorities of the Hindu law, for I can derive no useful analogy from any rule or principle of the law of England or from any other European system of jurisprudence.
2. The question referred to the Full Bench has been exhaustively considered and discussed by the learned Judges of the Calcutta High Court. It seems unnecessary to repeat at length the arguments used by them on both sides of the question and impossible to add thereto. After full consideration, the conclusion to which I have come is that the question was rightly answered in the negative by the majority of those learned Judges, and that we should return the same answer to the Bench which has put the question to us.
3. The opposite conclusion is certainly not an unavoidable inference from the text of Catayana mainly relied on in support of it: 'Let the sonless widow, preserving (unsullied) her husband's bed and residing with her venerable relative, eat or enjoy moderately' not so long, be it observed, as she remains chaste or resides with her protector but 'until her death.' The text is in its form and may well be in substance a mere injunction. It enjoins submission to the venerable relative, purity of life, and moderation in enjoyment, and presents a marked contrast to the text under the authority of which a virtuous widow succeeds to her husband's estate 'Let the wife who is not unchaste take her husband's wealth.' This text, though an injunction in form, is much more in substance. It speaks of chastity as a condition of succession. On the contrary, as regards the text first quoted, the Privy Council has ruled that a widow does not forfeit the estate which has devolved upon her from her husband merely because she ceases to reside with the venerable relative who represents her husband's family; or, in other words, that such residence is not a condition of her retaining that estate.
4. Then there is the text which says that a 'woman who acts maliciously and is shameless and a destroyer of property and addicted to immorality is unworthy of wealth.' This cannot, without violence, be construed to mean that she is to be deprived of property which has come into her possession.
5. Nor can the text which authorises the husband's brothers to withhold maintenance from his widow if she becomes unchaste be fairly so construed. The termination of a duty of giving food and clothing to a person is a very different thing from the commencement of a right to take away from that person property belonging to her.
6. The penalty of forfeiture for unchastity, if not warranted by the texts, can hardly rest firmly on other grounds. The argument that an unchaste widow can no longer perform acts beneficial to her husband's soul is met by the consideration that there is no essential connection between such acts and the property, and that an appointment which has been made by reason of an existing capacity in the person appointed is not always avoided ipso facto by the subsequent loss of the particular capacity. The argument that she takes the estate or continues to hold it after her husband's death as half of her husband's body, and cannot be regarded as such, or as such retain it, after having become unchaste, is met by the consideration that, if the estate was still possessed by the husband after his death in the person of his widow, a son would not take it in preference to the widow. The argument that the estate does not vest in the widow because her rights in it are of a limited and qualified nature is not weighty; for a limited right may vest as well as a perfect one.
7. Although at the hearing I was inclined to hold otherwise, and although I have been a party to one or more rulings to the contrary, further consideration has satisfied me that there is not sufficient authority for holding that a widow who has inherited her husband's separate estate will, under the law we are bound to administer, forfeit her estate. The only arguments which can be adduced in support of the contention that the estate having once vested is forfeited by unchastity appear to me to be the following, viz., (i) that she takes the estate because she is able to confer spiritual benefits on the deceased superior to those which can beconferred by any other heir, and that forfeiting the capacity by unchastity she forfeits the wealth; (ii) that from the use of the present participle 'palayanti' in the text of Menu, 'a woman preserving her husband's bed, etc.,' a condition dam casta fuerit' is to be inferred; (iii) that, inasmuch as the allotment made by a joint family to a widow in lieu of maintenance may be resumed if she becomes unchaste (Smriti Chandrika, ch. xi, Section 1, vv. 47 and 48), it may be inferred that a widow who has inherited the separate property of her husband would forfeit her estate by similar misconduct; and (iv) that on remarriage the estate is forfeited.
8. To these arguments I think a sufficient answer may be made. The text of Menu refers to the period at which the inheritance devolves and the succession is to be ascertained, and merely prescribes as a rule of inheritance that a chaste wife succeeds to the separate estate of her husband in default of male issue, and does not attach a condition to the estate taken by the widow; and it is a strong argument in favour of this view that the commentators who are generally exhaustive in their comments on texts have omitted any mention of the condition.
9. Again, the allotment of property in lieu of maintenance is the voluntary act of the family, and differs in this material particular from an estate devolving by law on the widow without the consent of the family, and while the family may be at liberty to resume their free gift, it cannot be inferred from this rule that they have power to take from her the estate which vested in her by law; and it is the more remarkable that, if they had such power, the author of Smriti Chandrika should not have adverted to it equally with the rule from which the argument is derived. Again, on remarriage the woman becomes a member of the family into which she remarries, but unchastity does not deprive her of membership in the family into which she married.
10. The argument that a widow inherits for the purpose of conferring benefits on her husband by the employment of his wealth for pious purposes, and that she consequently forfeits the estate when she is no longer able to perform the ceremonies which are incumbent on a widow, proceeds on an incomplete statement of the grounds for the widow's succession. This point was considered and determined by the Privy Council in Katama Natchiar v. The Raja of Shivagunga 9 Moore's I.A. 539, and it was ruled that 'it is on the principle of survivorship that the qualification of the widow's right established by the Mitakshara...must be taken to depend (at p. 611),' and the text is cited: 'Of him whose wife is not deceased half the body survives, how should another take the property while half the body of the owner lives?'
11. The principle that the degree of benefit which may be conferred on the deceased by the employment of his wealth regulates the succession may be invoked in aid of the widow's right to succeed, but it is not the sole principle on which the right is founded, and as is shown in the succession to a coparcener's interest in an undivided estate it is subordinate to the principle of survivorship.
12. This being so, it appears to me the text of the Mitakshara, ch. ii, Section 10, v. 6, and the Viramitrodaya cited in Mr. Justice WEST'S work (see p. 300) are pertinent. In these texts it is declared that disqualification arising before partition deprives the disqualified of their shares, but that one already separated from his co-heirs is not by disqualification deprived of his allotment.
13. The same principle applies to the succession of the widow. Adultery, unrepented of and unatoned, prevents the estate from vesting in her. Should it have vested she does not lose it by subsequent immorality.
14. The question referred has already been fully discussed by the High Court of Bengal in Kery Kolitany v. Moneeram Kolita 13 B.L.R. 1 : 19 W.R. 367. The contention that a Hindu widow who has once succeeded to her husband's estate forfeits it by reason of unchastity appears to rest on the ground that chastity is the absolute condition on which she holds the estate, and forfeiture the penalty, or that she holds the estate for certain purposes, the due fulfilment of which is dependent on her remaining chaste, and forfeiture follows as a penalty on the failure to perform them by reason of unchastity.
15. It is asserted that this rule of law is to be gathered from the texts which indicate the importance of chastity, the dependence of women, the limited nature of the interest held by them in the husband's estate, and on the fact that their right to the succession depends on their capacity to confer benefits on the soul of the husband; that the texts of the Hindu Law make the chastity of the widow the condition for taking and for retaining the estate, as well as for taking and retaining allowances for maintenance and stridhan, or a woman's particular property, all of which are alike ferfeited by reason of unchastity. We have to consider this question with reference to the law prevailing in the Benares school.
16. It may be admitted that the widow succeeds her husband with reference to her capacity to perform certain religious rites, as in the Mitakshara, ch. ii., Section i, v. 5,--'In the first place the wife shares the estate. 'Wife' (patni) signifies a woman espoused in lawful wedlock; conformably with the etymology of the term as implying a connexion with religious rites,'--and other authorities to the same effect; but under the Mitakshara law she cannot be said to take the estate with the sole view to perform such rites or services for the benefit of the deceased: this may be gathered from Mitakshara, ch. ii., Section i. v. 14, and the following verses, where the author is pressing the argument in favour of a wife's, succession, and cites the contention made by his opponents, that the wealth of a regenerate man is designed for religious uses, and that a woman's succession to such property is unfit because she is not competent to the performance of religious rites, which he proceeds to refute by showing, first, that she is competent to perform many religious duties, and then by showing that wealth is intended for other purposes besides religious uses, citing Menu and Yajnavalkya, and implying that a widow may make other and proper uses of the wealth, and does not hold it merely and entirely as a trustee for the soul of her husband, as some would contend. The argument is thus weakened which would infer that she forfeits the estate when no longer able to perform these religious services, but it may be also met by the fact that other heirs whose succession is also dependent on their capacity to perform certain services, do not admittedly forfeit the estate on failure to perform them, and that the same texts inculcate other duties, on the widow's failure to perform which do not operate as forfeiture.
17. It is asserted, however, that there are texts of law which absolutely make it a condition for retaining the estate that the widow remain chaste; among these texts is that from Menu: 'The widow of a childless man keeping unsullied her husband's bed and persevering in religious observances shall present his funeral oblation and obtain his entire share' (see Mitakshara, ch. ii., v. section i., 6). This is the only text in the Mitakshara from which it can be inferred that the obligation of chastity is a continuing one after succession; there are other passages, but they refer to chastity as a condition prior to succession and for a claim to maintenance. Then there is the following text from Catyayana: 'Let the childless widow, preserving unsullied the bed of her lord and abiding with her venerable protector, enjoy with moderation the pro-perty until her death : after her let the heirs take it' (see Dayabhaga, ch. xi., Section i., v. 56); the purport of these passages has been very fully discussed by the learned Judges of the High Court of Bengal in Kery Kolitany v. Moneeram Kolita 13 B.L.R. 1 : 19 W.R. 367.
18. It is noticeable and significant that these passages do not in express terms attach the penalty of forfeiture for unchastity; the first passage may, I think, refer to the succession of the widow in the first instance, and the second be in the nature of a precept inculcating chastity; and it has been urged, and I cannot but think with some force, that inasmuch as this passage contains two conditions, the last of which does not admittedly carry forfeiture for failure, there is no reason why the first should do so.
19. If, then, the forfeiture of the estate for subsequent unchastity is to rest on direct passages inculcating it, I think it fails to be established.
20. But it is admitted that an unchaste wife cannot succeed to the estate, and it is asserted that maintenance and stridhan, or her peculiar property, can be resumed by reason of unchastity, and there is some force in the argument that, if this be so, there may be an inference in favour of the resumption for the same cause of the separate estate inherited from the deceased husband; but I think it would be unsafe to deduce the law as to one state of circumstances, merely from its enactment in respect of another state. Silence on a particular point may very well have been intentional, and there are obvious reasons why this may be the case in respect of the question before us, where the estate taken is a separate estate, and the certain result of such a law as is contended for would be to give openings to constant and harassing inquiries, in the interest of persons with merely reversionary interests.
21. When we find also that even the disqualifications which operate as bar to succession to property, among which is the being outcaste, will not operate to divest property once it has vested (see Viramitrodaya), it is a fair question to ask why unchastity should so operate.
22. There are texts to show that maintenance and stridhan are resumable by reason of unchastity, and it is hence inferred that the separate estate taken by a widow must be resumable. In the Mitakshara the following passage from Narada is quoted: 'Let them allow a maintenance to his women for life, provided these preserve unsullied the bed of their lord: but if they behave otherwise the brethren may resume that allowance' (see Mitakshara, ch. ii., Section i., v. 7), and there is another passage from Yajnavalkya: 'And their childless wives, conducting themselves aright must be supported, but such as are unchaste should be expelled, and so, indeed, should those who are perverse' (see Mitakshara ch. ii., Section i, v. 16). These are the only passages in Mitakshara from which resumption of maintenance may be inferred, and that authority is silent as to the resumption of stridhan; but it should be observed that these passages are not cited in the Mitakshara expressly in support of resumption, but are brought forward as the arguments sometimes used by the author's opponents against the widow's right of succession, and in favour of her right to maintenance only, a proposition which the author then proceeds to refute; and the last cited passage is stated to refer to wives of disqualified persons. There is, however, authority for asserting that maintenance may be resumed, but be this as it may, there is no analogy between the case of a widow succeeding to the separate estate of her deceased husband and that of one taking maintenance as a charge on property in an undivided family. It is easy to understand why the allowance may be resumable in the last case, while the separate estate may remain not liable to be resumed.
23. As to the power to resume stridhan, there are some passages in the Viramitrodaya as follows: 'If a husband have a second wife and do not show honour to his first wife ho shall be compelled by force to restore her property, though it may have been given to him out of kindness. If suitable food, raiment, and dwelling be withheld from a woman, she may exact her own. property and take a share of the estate with the co-heirs'; and further on comes the text: 'A wife who acts unkindly towards her husband, who is shameless, who destroys his effects, and who takes delight in being faithless to his bed, is unworthy of separate property: the separate property she may have received shall be taken from her;' and if all the passages be read together the separate property referred to seems to be that which the husband was obliged by the previous texts to give to the wife if he neglected her, and may not refer to stridhan generally, and the passages clearly refer to a resumption by the husband and not by other persons subsequently to his death.
24. It has not been urged before us that property inherited from a husband classes as stridhan under the law of the Benares school and is necessarily to be forfeited under these texts.
25. Then we have the opinion of Mr. Oolebrooke adopted by Sir T. Strange: 'An unchaste woman is excluded from the inheritance of her husband, but no misconduct other than incontinency operates disinherison, nor after the property has vested by inheritance does she forfeit it, unless for loss of caste unexpiated by penance or unredeemed by atonement' (Strange, 4th ed. by Mayne, 136); and the opinion of Mr. Ellis, given at vol. 2, p. 273, that 'the wife does not succeed unless she be chaste, this is a necessary condition,' may refer to her succession in the first instance. The only authority distinctly opposed is Elberling, to the effect that the widow enjoys the property on two conditions,--that she may remain chaste and that she does not make waste.
26. The decided cases have been very fully discussed by the learned Judges of the High Court of Bengal. The first two* may possibly be construed to rule forfeiture, but it is open to doubt. The third (see Macnaghten's Hindu Law, 3rd ed, vol. ii, p. 112, Case v.) has reference to the forfeiture of allowance on account of maintenance, and goes on the ground that unchastity involves degradation, which prevents the widow having a right to the heritage. The case reported in the seventh volume of Selwyn's Reports Bussunt Koomaree v. Kummal Koomaree is one in respect of a widow's maintenance. The case of Radamoney Raur 4 Montriou's H.L. Ca. 314 is, however, expressly, in favour of the forfeiture, but against this there is the case of Saummoney Dossee 2 T. and B. 300 which rules that 'though, by Hindu Law, incontinence excludes a widow from succession to her husband's estate, yet if the inheritance were once vested, it is not liable to be divested unless her subsequent incontinence were accompanied by degradation, but that by Act XXI of 1850 deprivation of caste could no longer be recognised as working a forfeiture of any right or property or affecting any right of inheritance.'
27. In the case reported in the fourth volume of the Bombay High Court Reports, p. 25 Parvatikom Dhondiram v. Bhikukom Dhondiram it was ruled that incontinence excludes a widow from succession to her husband's estate, but nothing short of actual infidelity; if, however, the inheritance becomes vested in the widow it is not by Hindu Law liable to be divested, unless her subsequent incontinence be accompanied by loss of caste unexpiated by penance and unredeemed by atonement. Of cases decided by this Court, the only ones which have been pointed out are those noted.+
28. The first was a case in which a Hindu widow held a share of ancestral property in an undivided estate for her maintenance. She deserted her husband's family and lived with a paramour. The Pandit consulted by the Judge was of opinion that she forfeited the share by reason of unchastity, but was still entitled to maintenance. The Sudder Court decided that the share was forfeited, on the authority of the Pandit of the Court, that 'if a wife be unfaithful to her husband whilst she lives with him, or forsakes his home, she is in no way entitled to any part of his property or to maintenance; nay, her stridhan and her jewels should be taken from her, and she should be banished from her husband's house.' This exposition of the law refers clearly to the case of unchastity during the husband's lifetime, though the Court held it applicable to a subsequent state, but the case is not precisely in point, as it refers to a share given for maintenance in an undivided family, and not to the estate a widow takes in a separated family. The other case was where a widow had been put in possession, on partition, after her husband's decease, of a share of the joint ancestral property, and had subsequently become unchaste and the question decided was in respect of her power to make a valid devise of the property; it was held she could not do so, the Court remarking 'it is not contested that, admitting the fact of misconduct, the deed of gift was altogether illegal.' The decision therefore does not directly decide the point before us, and both cases have reference to shares taken by widows for maintenance in estates held by co-proprietors, and will afford no certain rule for the case under discussion.
29. It appears to me, therefore, that the rule of law which is now asserted is not one which is deducible from the Hindu Law books, and that no custom to support the rule can be said to have come down to us in practice, supported by a course of decisions of the Courts, and therefore, deserving consideration. On the contrary, the Hindu authorities speak with uncertainty; the highest English authorities are opposed to any such rule of law; and the few decisions of the Courts, in which the question can be said to have been unmistakably decided, give conflicting rulings, while the later decisions are opposed to the existence of such a rule of law.
30. My reply to the reference is that, under the Hindu Law governed by the Mitakshara, a widow who has once succeeded to the separate estate of her deceased husband is not liable to forfeit that estate by reason of unchastity.
31. In this case the pleaders for Nehalo (the defendant), appellant, have relied entirely upon the Judgments of the Chief Justice of the Calcutta High Court and of those his honourable and learned colleagues who concurred with him in Kery Kolitany v. Moneeram Kolita 13 B.L.R. 1 : 19 W.R. 367. On the other side nothing of any importance has, I think, been urged that has not been noticed at even greater length in the printed judgments of the case above alluded to.
32. From the Hindu texts referred to it is evident that it is only the chaste widow who is entitled to succeed to the estate of her childless husband, but I have not seen any passage of Hindu Law pointed out which declares positively that a widow, after having duly obtained possession of the estate, can, simply on account of her subsequent incontinence, be deprived of it. I concur generally in the opinions expressed by the majority of the learned Judges in the case above alluded to, and I consider that the Full Bench ruling of the Calcutta High Court is also applicable to cases of a similar description in these Provinces.
* See Macnaghten's Hindu Law, 3rd ed., vol. ii., pp. 19, 20, 21, Cases iii and iv.
+ Doorgee v. Kashes Pershad S.D.A. N.W. P. 1862, vol. i p. 506; Bulloo v. Ramdut, same volume, p. 206.