1. The sole plea set forth in the memorandum of appeal is that the respondent, who is a Hindu widow and who had become unchaste during her husband's lifetime, is not entitled to succeed, as mother to the estate of her son. The plea as set out is apparently an error, for according to the judgment of the lower appellate Court the alleged unchastity of the respondent took place, not during her husband's life-time, but after his death and the plea, if it is to have any force, should run thus viz., that the respondent, being unchaste, is not entitled to succeed to her son's estate. Mr. Govind Prasad, who appears for the appellant, has been at considerable pains to look up the authorities and to lay them before us, but beyond an observation of Narada, in which that author puts an interpretation upon the words Awi Kitasayaro Gagha contained in the text of Yajnayalkya he can show us no text which would authorize us to hold that a Hindu lady, who after her husband's death, has taken to living with another man, is thereby excluded from inheritance to the estate left by her son. The current of rulings in other Presidency High Courts is against the appellant and there are, in cases of our own Court, passages which point in the same direction. There is, no case, however, of this Court which exactly covers the point now in issue before us. We have, therefore, to consider the text of Yajnavalkj a, which is quoted as an authority for the proposition, together with the commentary of Narada on the same and to see whether they contain sufficient authority for the plea raised. We think they do not. The text in question is to be found in the Mitaksliara, Chapter II, Section X, sloka 140, the Chapter which deals with the subject of inheritance, the translation of this sloka given by Colebrooke runs as follows: An impotent person, an out-caste and his issue, one lame, a mad man an idiot, a blind man, and a person afflicted with an incurable disease as well as others (similarly disqualified) must be maintained, excluding them, however, from participation.' The words similarly disqualified' do not occur in the original; they are a gloss put upon the original text by the translator. Even so, this text does not, in express terms, refer to a woman, who is alleged to be unchaste as being excluded from inheritance. She could only come if she comes at all under the word Adhi 'others.' The commentary of Vijnaneswnra on this last word runs thus: Under the term others' are comprehended, one who has entered into an order of devotion; an evening, to his father, a sinner in an inferior degree, and a person deaf, dumb, or wanting any organ. Thus Vasistha says, 'They, who have entered into another order: are debarred from shares'. Narada also declares, an evening to his father, an out-caste, an impotent person, and one who is addicted to vice, take no shares of the inheritance even though they be legitimate. Much less, if they be sons of the wife by an appointed kinsman.' Even here again, there is no direct allusion to unchastity. It is not as if the idea of unchastity was absent from the learned commentator's mind, because the fact of unchastity is expressly alluded to in sloka 142 of Yajnavalkya just two slokas below the particular sloka with which we are dealing and in the commentory on that sloka (see Yagynavalkaya 9 A. 142), The learned Vakil for the appellant did not take his stand, upon the word out caste Batita for obvious reasons. See Act No. XXI of 1850: he maintains that the respondent is included in the word Auppatilca' which Sir William Colebrooke translates somewhat unhappily as addicted to vice' for JJpata is a sin of a lesser degree which is possible of expiation and hardly vice' as the word is commonly understood. The text of Narada thus quoted is to be found in Narada 23 A. 22 and is a commentary of Narada on the institutes of Manu, Book IX, sloka 201, and this being so it is well to look first at the text of Manu. Sloka 201 is thus translated by G. Buhler, (Sacred Books of the East, Vol. XXV, page 372.) Eunuchs, and out-castes (persons); How blind or deaf, the insane, idiots and the, dumb, as well as those deficient in any organ (of faction or sensation) receive no share.' Here there is no allusion to the 'Upapatikasor persons addicted to the lesser vices,' and Narada in adding the word is evidently' expanding the words of the Holy Manu.' Unfortunately it is open to considerable doubt whether the word Auppatika is the exact word for which the sage Narada is responsible. As Mr. Jogendra Chander Grhose points out in his valuable treatise on the Principles of Hindu Law' page 230, there are three different readings extant of this particular text. The Kalpataru, the Batnakara and the Parijata read Awpatina and Saraswati Vilasa reads Appatrita. For Auppatika the Dayabhaga really' is responsible. Unfortunately we have not in this Library a copy of Narada's text as it stands in the original. The various readings in the order in which I have given them mean (a) a person guilty of a heinous crime, (the killing of a Brahman or of a King are illustrations given of the word by learned commentators).
(6) Persons guilty of grave slips in conduct.
(c) Persons addicted to the minor vices The margin given by these readings is very wide, too wide indeed, but enough has been said to show how unsafe it would be to hold that an unchaste woman falls under any and if so under which of them. It must throughout be remembered that we have not in this case to deal with the instance of a woman fond to have been unchaste in her husband's life-time, or of a widow, inheriting Her husband's property and taking with the property the duties involved in such inheritance. Those cases have to be viewed possibly and probably from another stand-point other principles are involved.
2. In this case the particular unchastity alleged and found is that some six or seven years after her husband's death the respondent eloped with a Brahman. The appeal in this case has been to Narada and it will not be wise to see how the Rishi Narada looks upon such an act as the one attributed to the respondent. The case is exactly one which he contemplates and on which he gives no uncertain pronouncement in his Book XII, Verses 97 to 101. They run as follows:
97. When her husband is lost or dead, when he has become a religious ascetic, when he is impotent, and when he has been expelled from caste: these are the five cases of legal necessity, in which a woman may be justified in taking another husband.
98. Eight years shall a Brahman woman wait for the return of her absent husband: or four years, if she has no issue: after that time, she may betake herself to another man.
99. A Kshatriya woman shall wait six years: or three years if she has no issue; a Vaishya woman shall wait four (years)if she has issue; any other Vaishya woman (i.e., one who has no issue) two years.
100. No such (definite) period is prescribed for a Sudra woman whose husband is gone on a journey. Twice the above period is ordained, when the (absent) husband is alive and tidings are received of him.
101. The above series of rules has been laid down by the greater of the world for those cases where a man has disappeared. No offence is imputed to a woman if she goes to live with another man after (the fixed period has elapsed).
3. In the light of the above texts can hardly with any show of justice, we think, be pleaded that Musammat Dini is an Appatika, still less an Awpatita or an Appatrita.
4. There is thus no authority for the contention that a widow, who after her husband's death, lives with another man commits an act of unchastity or vice.
5. The appeal fails and is dismissed with costs.