Piggott and Walsh, JJ.
1. This is a second appeal arising out of the following state of facts. One Balmakund died as a separated Hindu; he was childless and left him surviving a widow, Musammat Bidya. The latter performed the obsequies of her deceased husband and entered into possession of his property, including a certain house. She subsequently sold this house to one Radhe Lal, Thereupon the present suit was brought by Bhawani Ram, brother of Balmakund, impleading Musammat Bidya and Radhe Lal as defendants. Relief was sought in the alternative, either by immediate possession over the house in question, or by way of a declaration that the alienation made would not bind the Plaintiff after the death of Musammat Bidya. The reason why the first relief was claimed was that the Plaintiff alleged that Musammat Bidya, having been unchaste during the life-time of her husband, was not his heir at all under the Hindu law and was disentitled to succeed to any of his property; even with the limited estate of a Hindu widow. With regard to this allegation of unchastity we have concurrent findings by the courts below, and these findings are binding upon us in second appeal. Musammat Bidya was in fact guilty of unchastity during the life-time of her husband. She left her home with a paramour some eight years before her husband's death; but her husband condoned the offence, forgave his erring wife and took her back into his house, where she lived with him as his wife during the closing years of his life and was so living at the time of his death. A point has been made in argument before us that there is no evidence of the performance on the part of Musammat Bidya of any of the expiatory ceremonies prescribed by Hindu law. It is true that the record is silent on this point but on the other hand, there is no allegation that Musammat Bidya was outcasted in consequence of her conduct, or 'that any social penalty was inflicted on Balmakund by the members of his brotherhood on account of his having re-admitted the erring woman to the privileges of wife-hood. On these facts the court of first instance held that Musammat Bidya had succeeded to the estate of Balmakund with the rights of a Hindu widow. The learned Munsif went into the question of consideration for the sale-deed in suit. The total consideration was Rs. 500, and the finding is that out of this Rs. 200 was spent on the due performance of ceremonies and observances in connection with the funeral rites of the deceased. To this extent therefore the-alienation was justified by necessity. The learned Munsif accordingly gave the Plaintiff a declaration to the effect that the sale in favour of Radhe Lal was not binding upon him after the death of the widow, except to the extent of a sum of Rs. 200. There were appeals by both parties, and that is the reason why we have two appeals now before us, although in this Court both of them are preferred by the defendant, Radhe Lal. The learned Sub ordinate Judge has not dissented from the court of first instance on any finding of fact, but he had taken a different view of the law applicable to those facts. He holds that the proved unchastity of Musammat Bidya disentitled her to inherit the estate of her deceased husband, and that this disqualification is in no way affected by the husband's condonation or forgiveness. In the appeals now before us Radhe Lal only asks for the restoration of the decree passed by the court of first instance, and we have nothing to consider except the question of law on which the two courts below have differed. There is no clear authority of this Court on the point, but there is a reported decision of the Bombay High Court which seems to go the whole length in favour of the appellant. This is the case of Gangadhar Parappa Alur v. Yellu kom Viraswami Shirawale (1) (1911) I. L. R., 36 Bom., 138. It has been contended before us on behalf of the respondents that the facts of this case are distinguishable from those now before us, and a similar contention evidently found favour in the lower appellate court. The suggestion is that the. two cases are to be distinguished on two grounds, first, because in the Bombay case the allegation of the Plaintiff was that the unchastity there alleged had been committed during the husband's life-time at his express desire; secondly, that the alienation in the present case is being contested, not by a stranger, but by a brother of the deceased. There is something to be said in support of both these contentions, the report of the Bombay case being very brief and not making it clear beyond dispute what was the precise state of facts on which the court proceeded. It seems clear, however, that the argument of the learned Judges, in which reference is made to a charge of unchastity brought forward by mere outsiders, cannot be regarded as affecting the decision in the sense contended for on behalf of the Plaintiff respondent in the present case. In the first place it is by no means clear that the expression 'mere outsiders' as used in the judgement of Beaman, J., means anything more than persons other than the husband or the wife. Apare from this, the learned Judge evidently conceived himself to be laying down a genera principle of law which, unless affirmed, would leave it open to any person interested in the matter to deny on some future occasion the rights of a widow who had peacefully succeeded to the-possession of her late husband's property, by raking up some ancient scandal long antecedent to the date on which the inheritance opened.
2. As regards the general question1 of condonation by the husband, it seems clear that the Bombay decision does not mean to lay down any distinction between an act of adultery committed with the previous knowledge and consent of the husband and a similar act committed behind his back, but covered by his condonation and forgiveness. Nor does it seem possible to lay down any valid disrinetion upon these lines. There is one other reported authority on the point which deserves careful consideration, namely Malunginee Dabee v. Joykallee Dabee (1) (l869) 14 W. R., A. O. J. 23. The actual point for decision in that case was the much controverted question, set at rest later on by the decision of their Lordships of the Privy Council in Moniram Kolita v. Keri Kolitani (2) (1880) I. L. E., 5 Calc., 778. as to the consequences of unchastity on the part of a Hindu widow after the estate had opened in her favour. The learned Judge, however, found it necessary to enter into an elaborate examination of the entire question, and the result is that We find propositions of law laid down which have a direct bearing on the question now before us. Mr. Justice Markby quotes an older case of the same Court as authority for the proposition that even adultery in the husband's life time is not in itself necessarily sufficient to disentitle the wife to inherit. He goes on to explain his meaning by saying that, in his opinion, it is not the immoral act alone which in any ease destroys the right, but the loss of caste Or degradation which may follow thereupon. A more important passage of the same judgement is to be found at page 29 of the report, where the learned Judge quotes with approval the opinion of Babu Shama Charan Sircar, to the effect that, 'the woman who is adulterous at the time when the succession opened, or who previously committed adultery which remained unexpiated by penance, forfeits her right to inheritance and maintenance, and not she who was previously adulterous, but ceased to be so and co-habited with her husband or expiated, or was about to expiate, the sin by penance before the time of succession.' The decision of Mr. Justice Markby was appealed against and we have in the same report the decision of a Bench of two Judges who decided that appeal. Peacock, C. J., again referred to the words already quoted from Babu Shama Charan Sircar's work, and quoted them with approval as embodying a correct statement of law on the point. These opinions seem sufficiently to cover the state of facts now before us. It may be noted further that in the Privy Council case to which reference has already been made the learned Judges reproduced, with an expression of their approval, a portion of the decision of Sir Barnes Peacock above referred to. In the portion so quoted stress is laid upon the practical inconvenience which might result if it were held that any act of unchastity on the part of the widow, committed after the succession had opened in her favour, were to be treated as divesting her of the estate. It is obvious that a similar argument from convenience may be relied on in support of the appeal now before us; for a decision against the appellant would involve this consequence, that a Hindu widow who had been living in peace and harmony with her husband at the time of his death, and had obtained possession of his estate, might find her possession called in question years afterwards, on the evidence, it may be, of a spiteful or dishonest servant, on the strength of acts alleged to have been committed by her many years prior to her husband's death. Their Lordships approved of the remark 'that, although inconvenience would not be a ground for deciding a case like the present if the law were clear upon the subject, ft is an argument which may fairly be adduced under certain circumstances. The arguments based upon ancient texts which have been relied upon on behalf of the respondent in the present case are in substance the same arguments which were considered by their Lordships of the Privy Council, and rejected as unsatisfactory, when the question before them was whether a Hindu widow could be divested of the estate of her late husband by reason of acts of unchastity committed during her widow-hood. On the authorities, therefore, and on general grounds of public policy and convenience, we think that this appeal ought to be allowed. We set aside both the decrees of the lower appellate court and restore the decree passed by the court of first instance. The order of that court as to costs will stand, but the defendant Radhe Lal will get his costs on the appeal filed by Bhawani Ram in the lower appellate court and also his costs in this Court. On the other hand Radhe Lal will remain liable for his costs in the appeal filed by him in the lower appellate court,