Harnam Singh, J.
1. This appeal has arisen out of a suit instituted by Mt. Kaulu for possession of land measuring 30 kanals and 9 marlas situate in village Tappa. Jalari on the allegations that Mt. Makori, mother of the plaintiff, was not competent to make a gift of the land in suit in favour of Tolu Ram defendant. The plaintiff pleaded that the suit land was in possession of Mt. Makori as the estate of her husband. The land was described in the plaint as the self-acquired property of Mt. Makori's husband and the plaintiff claimed that she being the daughter of Nidhu, husband of Mt. Makori, was entitled to the possession of the suit land.
2. Tolu Ram defendant denied that Mt. Makori was the widow of Nidhu or that the plaintiff was a daughter of Nidhu. He pleaded that Mt. Kaulu had no locus standi to challenge the gift in question and in case the plaintiff was found to be the daughter of Nidhu, she had no right to succeed to the land in suit as the defendant was a collateral of the deceased and the land in suit was ancestral qua his and the gift made by Mt. Makori in favour of the defendant was made for services rendered. The case was fought on the following issues:
1. Is defendant 1 not the widow of Nidhu? 2. Is plaintiff the daughter of Nidhu deceased? 3. Was the gift in favour of Tolu Ram defendant 2 validly made? 4. Is the land in suit ancestral qua defendant 2 Tolu Ram? 5. Is defendant 2 a collateral of Nidhu deceased? If so, of what degree? 6. Is there any other legal representative of Mt. Makori besides the plaintiff? If so, what is the effect of their not being brought on the record?
The trial Court found that Mt. Makori was the widow of Nidhu and that Mt. Kaulu plaintiff was the daughter of Nidhu and Mt. Makori. The trial Court further found that the gift made by Mt. Makori in favour of Tolu Ram was not a valid gift and that the land in suit was not ancestral qua Tolu Ram. On issue No. 5 the Court found Tolu Ram to be a collateral of Nidhu. The trial Court held that it was not proved that there were any other legal representatives of Mt. Makori deceased besides the plaintiff.
3. On the findings set out above, the trial Court decreed the suit of Mt. Kaulu plaintiff with costs against the defendant.
4. On appeal preferred by Tolu Ram defendant the appellate Court affirmed the findings of the trial Court on issues other than issue No. 8 and found that the alienation made by Mt. Makori in favour of Tolu Ram defendant fell within the meaning of the rule laid down in Prabh Dial v. Devi Dial 116 P.R. 1893 and that the alienation was justified by legal necessity. The appellate Court, therefore, set aside the judgment and decree of the trial Court and dismissed the plaintiff's suit with costs throughout.
5. Mt. Kaulu has come up to this Court in second appeal through Mr. Daya Kishen Mahajan and Mr. Shamsher Bahadur has appeared in this Court on behalf of Tolu Ram respondent.
6. The sole question for determination in this case is whether Mt. Makori was competent to make the gift of land inherited by her from her husband Nidhu deceased in favour of Tolu Ram.
7. The lower appellate Court appears to rely on Titu Ram v. Mt. Parsinni reported as A.I.R. 1946 Lah. 414. The question that arose for decision in that case was whether in the Kangra District a widow governed by Customary law can sell in case of necessity or whether her powers are limited to temporary alienation. The case originally came up before Beckett, J. who referred the case for decision to a Division Bench.
8. The opinion of the Division Bench was expressed by Abdul Rashid, J. who held that in the Kangra District a widow governed by Customary law was competent to sell for legal necessity the land inherited by her from her husband. The power of a widow in the Kangra District to make an alienation by way of gift was not before the Court and the judgment is no authority for the proposition that a widow governed by Customary law in the Kangra District has power to make a gift of the land inherited by her from her husband for services rendered.
9. Reference was made to the answer to Question No. 45 in the Manual of Customary law of Kangra District by Middleton. The answer to the question inter alia is that the widow making an alienation should first offer to do so to the collaterals and only on their refusal should she alienate to a stranger. It is obvious that the answer has no application to a gift by a widow. In fact, in the Manual of Customary law of the Kangra District gifts are dealt with in Section 10 and Question No. 45 appears in Section 5 relating to succession. Again, the judgment in Prabh Dial v. Devi Dial reported as 116 P.R. 1893 has no application to this case. The case was decided upon the custom recorded in the answer to question No. 2 in the Manual of Customary law of the Gujrat District which provides:
Generally, a widow has no power to alienate her husband's property by gift or will. But if she remains faithful to the memory of her husband and becomes old and incapable of remarriage and some one from amongst the collaterals of her husband or daughters serves her, she can make a gift to the said person.
In the first place under the Customary law of the Kangra District a widow has no power to-make a gift, for services rendered and in the second place, the gift in Prabh Dial v. Devi Dial 116 P.R. 1893 was subject to a condition and Benton, J. held that the essential character of the alienation was sale. He found that the property sold yielded an income of Rs. 15 per annum which was insufficient for the maintenance of the widow and that if the alienation had been objected to at the time when it was made the alienation could doubtless have been declared ineffectual to pass the property after the widow's demise, provided the heirs repaid any lien the alienee had on the property. The alienation, however, was allowed to stand for a considerable period and the condition in the gift was proved to have been fulfilled. It was on those facts that Benton J. held that the alienation of her husband's estste by the widow to her daughter of condition that the donee should maintain her, the husband's estate not being sufficient for that purpose, was valid as being an alienation for necessity.
10. The Customary law of Kangra District compiled by Middleton in 1914-15 is silent on the power of a Hindu widow to make a gift of immovable property acquired from her husband-Paragraph 64 of Rattigan's Digest, however,, provides:
Except as provided in Para. 39 or Para. 62, no female in possession of immovable property acquire from her husband, father, grandfather, Bon or grandson, otherwise than as a free and absolute gift can permanently alienate such property.
11. The rule laid down in Para. 64 is subject to the provisions of para. 39 and para, 62 of the Digest. Paragraph 39 relates to adoption by widow under the authority given to her by her husband or with the consent of her husband's-kindred and does not govern this case. Paragraph 62 provides:
Every person having an interest in property, whether absolute or as life tenant (e.g., a widow, a daughter, or a mother), can sell or mortgage such property for a necessary purpose.
12. The combined operation of paras. 39, 62 and 64 is that a widow in possession of estate inherited from her husband can confer that estate on the appointed heir and she is also come petent to mortgage or sell that property for a necessary purpose, but she is not competent to make a gift of that property. In Lokha v. Hari 64 P.R. 1893, Plowden, J. assumed the incapacity of the widow in the Kangra District to make the gift. In Nizam Din v. Shadi A.I.R. 1921 Lah. 117 Martineau J. held in a case from Hoshiarpur District that although in certain cases a male proprietor can make a gift of ancestral land in consideration of services rendered by the donee, a widow cannot, in the absence of a custom to the contrary, make a gift of land at all. Again in Ludar v. Mt. Bansi A.I.R. 1923 Lah. 28 Campbell J. held that the gift made by Mt. Bansi to her son-in-law was not sanctioned by custom of the Kangra District.
13. Mr. Shamsher Bahadur, however, relies upon Question No. 2 given in the abstract from the riwaj-i-am of the Kangra District for the year 1868. Question No. 2 runs:
Question No. 2--Can a widow alienate by gift or by will? All classes in all Tahsils--In the presence of her husband's collaterals she can only do so with their consent. If there are no such collaterals, she can do so without restraint.
The note appended to this question say: 'Note--See Question No. 45. No permanent alienation is allowed without the consent of collaterals.' It appears from the note that the answer returned by the tribes in the Kangra District at the Revised Settlement of 1914-15 was that a widow was not permitted to alienate by gift or by will. The answer to Question No. 45 at the Revised Settlement of 1914-15 as regards sales has been found not to be in accordance with the rules of custom. Gifts however, stand on different footing and merely because a sale made by a widow in the Kangra District for necessity is permissible, is gift made by the widow for services rendered or for any other cause would not be justified.
14. Again, it is well known that the estate of a Hindu widow under the Customary law is subject to the same restrictions as that of a widow under the Hindu law: Vide Gobinda v. Nandu A.I.R. 1922 Lah. 217, Lahori v. Badho 72 P.R. 1906 and Mt. Kokan v. Mt. Lakho etc. 60 P.R. 1910. Looked at from this point of view, I again find that Mt. Makori was not competent to make the gift in question. The powers of a Hindu widow in the matter of gifts are set out in Section 183 (4) of the Principles of Hindu law by Mulla 10th Edn., 1946, which provides:
Except in the cases mentioned in Section 179, Section 181A(2)(iii), and Section 181B(2)(v), a gift by a widow or other limited heir of the whole or any part of the estate inherited by her to a third person (that is, a person other than the next reversioner), is not binding on the actual reversioner, even if made with the consent of the next reversioner.
Section 179 relates to the disposal of movable property by widow and Section 181A(2)(iii) relates to alienations by widow for religious and charitable purposes. Section 181B(2)(v) again relates to a gift made by a widow to her daughter on the occasion of her marriage or at her gaunn ceremony, also a gift to her son-in-law on the occasion of the daughter's marriage or a gift by way of marriage customary present called that on the occasion of the marriage of her niece (husband's sister's daughter), provided that in. either case the gift is of a reasonable amount. It is clear that the exception to the rule laid down in Section 183(4) have no application to this case.
15. For the reasons given above, I hold that this appeal must succeed and I hereby allow it with the result that I set aside the judgment and-decree of the lower appellate Court and restore the judgment and decree of the trial Court. In view of the difficult question involved, I would leave the parties to bear their own costs. throughout.