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 Bidiya. The latter performed the obi-equips of her deceased husband and entered into possession of his property, including a certain house. She subsequently sold this house to one Radhey Lal. Thereupon the present suit was brought by Bhawani Ram, brother of Balmakund, impleading Musammat Bidiya and Radhey 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 Bidiya. The reason why the first relief was claimed, was that the plaintiff alleged that Musammat Bidiya, having been unchaste during the lifetime 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 unchastely we have concurrent findings by the Courts below and these findings are binding upon us in second appeal. Musammat Bidiya was in fact guilty of unchastity during the lifetime 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 Bidiya 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 Bidiya 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 wifehood. On these facts the Court of first instance held that Musammat Bidiya had succeeded to the estate of Balmakund with the ordinary rights of a Hindu willow. 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 Radhey 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, Radhey Lal. The learned Subordinate Judge has not dissented from the Court of first instance on any finding of fact, but he has taken a different view of the law applicable to those facts. He holds that the proved unchastity of Musammat Bidiya 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 Radhey 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 dear 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 v. Yellu Virasuami Shiravale 12 Ind. 714 :13 Bom. L.R. 1038 : 36 M. 128. 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: (1) because in the Bombay case the allegation of the plaintiff was that the unchastity there alleged had been committed during the husband's lifetime at his express desire; (2) 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 judgment of Beaman, J., means anything more than persons other than the husband or the wife. Apart from this, the learned Judge evidently conceived himself to be laying down a general 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 antsient scandal long antecedent to the date on which the inheritance opened. As regards the general question 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 distinction upon these lines. There is one other reported authority on the point which deserves careful consideration, and that is to be found in Matunginee Dabee v. Joyhallee Dabee 14 W.R.O.C. 23 : 5 B.L.R. 466. 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 Monirarn Kolita v. Keri Kolitani 5 C. 776 : 6 C.L.R. 322 : 4 Ind. Jud. 363. 3 Shome L.R 198 : 2 Ind Dec. (N.S) 1120 (P.C.), as to the consequences of unchastity on the part of a Hindu widow after the estate had opened in her favour. The learned Judges, 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 lifetime 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 case destroys the right, but the loss of caste or degradation which may follow thereupon. A more important passage of the same judgment 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 unexpected by penance, forfeits her right to inheritance and maintenance; and not she who was previously adulterous, but ceased to be so and cohabited 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 success on 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 husbanand'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, it 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 unchastely committed during her widowhood. On the authorities, therefore, and on general grounds of public policy and convenience, we think that this appeal ought to be allowed.
2. 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 Radhey Lal will get his costs on the appeal filed by Bhawani Ram in the lower Appellate Court and also his costs in this Court, including fees on the higher scale. On the other hand Radhey Lal will remain liable for his costs in the appeal filed by him in the lower Appellate Court.