1. We are not prepared to dissent from the opinion of the District Judge that the terms putra poutra paryantam were--what are known to the English law as words of purchase and not words of limitation--words indicating that the estate conferred on the widow was an absolute estate and not a mere life estate with a limitation over. The question then arises whether- a widow has power to alienate land given to her as stridhanam. It is consistent with the disinclination of Hindu lawyers to the sale or alienation of landed estate that a restriction should be imposed on widows in respect of immoveable property received from their husbands. The text of Narada, "What has been given by an affectionate husband to his wife she may consume as she pleases when he is dead, or may give it away except the immoveable property," afforded occasion to the authors of the Dayabhaga (Ch. IV, Section 1, pl. 23) and the Vyavaharamayukha (Ch. IV, Section 10, Section 9) to declare expressly that a woman may dispose of any other property given to her by her husband excepting immovable property. Although the Mitakshara is silent on the point, the Smriti Chandrika referring to the same text of Narada declares that woman have not independent power over immovable property given them by their husbands even after their demise.
2. The same rule is recognized in the Sarasvati Vilasa (Sections 257, 258) and in the Madhaviya (Section 51).
3. In this Presidency the incompetency of a woman to dispose of immoveable property has been declared by a Bench of this Court to be matter of consensus amongst the highest authorities, Native and European. Gangadavaiya v. Parameswaramma 5 M.H.C.R. 111.
4. The recent ruling by the High Court of Bombay in Seth Mulchand Badarhsa v. Bai Mancha 2 I.L.R. 7 Bom. 491, is opposed to the earlier ruling of that Court in Katarbasapa v. Chanverova 10 Bom. H.C.R. 403, and, if we. may say so consistently with the high respect we entertain for the learned Judges by whom it was pronounced, appears to us to be rather an amendment than an interpretation of Hindu law. The treatises to which we have referred were composed at a time when people had become familiar with an independent dominion over immoveable property and alienation by sale was not unusual.
5. It is not denied that a husband may not only give his wife immoveable property for an estate of inheritance, which is the ordinary consequence of an absolute gift of stridhanam, but also by apt language clothe her with a power of alienation. Promnno Coomar Ghose v. Tarrucknath Sirkar 10 B.L.R. 267, where there was a devise to a lady, her heirs and assigns, proceeded on this ground.
6. Although words of inheritance are not indispensable to create an absolute estate under Hindu law, it not unfrequently happens that both such words are used, and also words indicating a power of alienation.
7. Where property is given to a Hindu lady by her husband, and the gift is expressed only in such terms as create an heritable estate, it must be taken that it was the intention of the donor that she should acquire such an interest as the personal law of the parties recognizes to be created by the transaction, Mahomed Shumsool v. Shewukram L.R. 2 I.A.
8. The question of election was waived in the Court of First Instance, for what reason is not stated. We affirm the decree of the Court of First Instance and dismiss the appeal with costs.