John Edge, Kt., C.J.
1. In this case the plaintiff brought his action to set aside a deed of gift and a deed of sale. The deed of gift was made by the husband of Musammat Ramo in her favour. It was a gift of immoveable property. But the plaintiff alleged as the foundation of his case that the property was the joint family property of her husband and himself or his predecessors, and he claimed to have the deed of gift avoided on the ground that, under the circumstances, the donor could not give the property in question to his wife. He also asked to get possession of the property.
2. Now it has been found that the property in question was not joint family property, and that it was in fact separate property of the husband. Under the circumstances, the plaintiff failed to prove the case on which he came into Court. He, however, comes here in second appeal, alleging that he is the heir of the donee, and that she had, under the deed of gift, no right of alienation. It is needless to observe that this is a totally different case from the ease that he originally made. It involves different considerations of facts and of law. In the case as now put forward questions would arise as to whether the plaintiff was in fact the heir of the donee or whether he was the heir of her husband. However, although I think that the appeal ought to be dismissed on the ground that it is a totally different case from the case which was put forward and tried, I think that even on the case as put before us the appeal ought to be dismissed.
3. I am of opinion that the donor intended to give and did give an heritable estate and power of alienation to the donee by the deed of gift. He says: 'I, my issues, relations, shall have no claim in respect of the house against the donee or her heirs, and if any of my heirs does so the claim shall be false.'
4. It appears to me that his intention was that he, the donor, should not, nor should any heirs of his, interfere with the enjoyment and disposal of the property the subject of the gift. Jackson, J., in delivering judgment in the case of Kunjbehari Dhur v. Premchand Dutt I. L. R., 5 Cal., 684 at p. 687, said as follows:
We understand it to be a rule of law, well established in this Court, that a Hindu wife takes, by a will of her husband no more absolute right over the property bequeathed than she would take over such property if conferred upon her by gift during the lifetime of her husband; and that, whether in respect of a gift or a will, it would be necessary for the husband to give her in express terms a heritable right or power of alienation.
5. The ruling recognises the conclusion that if the power of alienation is given, the power can be exercised, and it also is consistent with the rule of law laid down in paragraph. 571 of Mayne's Hindu Law, 3rd ed., where the author says:
Immoveable property, when given by a husband to his wife, is never at her disposal, even after his death. It is her stridhanum, so far that it passes to her heirs, not to his heirs. But as regards her power of alienation, she appears to be under the same restrictions as those which apply to property which she has inherited from a male. Of course it is different if the gift is coupled with an express power of alienation.
6. I have said that if the power of alienation is given to the wife by the husband in any portion of his separate property, it follows that she has the power to alienate it.
7. Under the circumstances, I think that the appeal should be dismissed with costs.
8. I concur.