1. The two plaintiffs and one Buggamma are co-widows of one Polla Reddi, who died without issue shortly before this suit. Plaintiffs alleged that Buggamma having demanded a share of her late husband's estate, they, by the advice of friends, gave her a house and certain jewels and moveable property, not by way of a final and complete partition but provisionally, and that Buggamma having since died, the defendant had taken unlawful possession of the property to recover which this suit was brought.
2. The defendant pleaded that Polla Reddi, who was his father's divided brother, had told him before his death that he was to have Buggamma's share on condition of his supporting her as long as she lived. But this has not been believed. The District Munsif, however, found that Buggamma in her lifetime had given her property to the defendant, but, finding that the defendant had paid some debts with the moveable property, he decreed possession only of the house to the plaintiff's.
3. The plaintiffs appealed, and the District Judge, finding that Buggamma had directed that the defendant should take the property only after her death, considered that she had no power to dispose of the property by will. He, therefore, decreed to the plaintiff's both the moveables and the house.
4. The only question argued on second appeal was whether the District Judge was right in holding that Buggamma had no power to dispose of her property by will to the prejudice of her co-widows.
5. It has been argued that Buggamma might have disposed of her property in her lifetime, and that therefore she had the power to dispose of it by will. In the case of Gooroova Butten v. Narrainasami Butten 8 M.H.C.R. 13 Mr. Justice Holloway said, 'It is not law that all that a Hindu may dispose of inter vivos can be disposed of by him by mortuary instrument. That has never been decided by the Court, but on the contrary has been distinctly found against in a late case from Mangalore.' And in the same case he said, 'The widow had a daughter, and had no power to dispose of the estate of her deceased husband by will.'
6. In the Tanjore case Jijoyiamba Baya Saiba v. Kamakshi Bayi Saiba 3 M.H.C.R. 424 it was laid down that a partition converting a joint estate into an estate in severalty, whenever either of the widows choose to insist upon it, would be quite incompatible with the right of survivorship to the whole property. In that case Sir C. Scotland said, 'On this review of the authorities we come satisfactorily to the conclusion that the sound rule of inheritance is that two or more lawfully married wives (Patnis) take a joint estate for life in their husband's property, with rights of survivorship and equal beneficial enjoyment.' And that decision was approved and followed by the Judicial Committee of the Privy Council in the case of Gajapathi Nilamani v. Gajapathi Radhamani I.L.R. 1 Mad. 290 : 4 I.A. 212. It appears, therefore, that between co-widows there can be no such partition of the joint estate as would convert it into separate property; and the allotment of a portion of the joint property in the present case for the separate enjoyment of Buggamma could only have been a provisional arrangement for mutual convenience. At her death her interest immediately passed to the survivors, and I apprehend that, as in the case of male co-parceners, Vitla Butten v. Yamenamma 8 M.H.C.R. 6 the will could have no operation to defeat the right of survivorship. As to the immoveable property of her husband, if a widow had power to dispose of it by will, the argument in Venkata Rama Rau v. Venkata Suriya Rau I.L.R. 1 Mad. 280 on appeal I.L.R. 2 Mad. 333 would have been unnecessary, and the principle that the right of survivorship cannot be defeated by a will appears to apply with equal reason to moveable property.
7. In Nellaikumara Chetti v. Marakathammal I.L.R. 1 Mad. 166 it was held that a widow had absolute power over a sum of money paid to her by a co-parcener of her late husband in consideration of her abandoning her right to maintenance.
8. That does not govern this case.
9. I would dismiss this second appeal with costs.
10. Polla Reddi died leaving three widows. The two original plaintiffs, widows of Polla Reddi, gave over to the third widow out of the property of Polla Reddi, a house, value Rs. 150, and moveable property, value Rs. 624, for her maintenance. Buggamma died leaving the defendant in possession of the house, and having made some testamentary disposition of the moveable property where by she directed that the defendant should be entitled to it after her death.
11. The plaintiffs as co-widows surviving bring this suit to recover both the house and the moveable property. There is a decree by the Lower Appellate Court, 8th March 1882, in plaintiff's' favour for both immoveable and moveable property. The defendant appeals only in respect of the moveables. It does not appear whether Polla Reddi was a divided co-parcener, nor is it, perhaps, material for the suit.
12. The moveable property is part of the estate of Polla Reddi.
13. Buggamma had a right to dispose of it inter vivos in her lifetime. She was entitled to use it for her lifetime, and her use of it for her maintenance, even to the disposal of it, could not, except, perhaps, under very exceptional circumstances, be controlled.
14. However, as she did not dispose of it, as it is found, in her lifetime, her surviving co-widows became entitled on her death to the possession of it, Rindamma v. Venkataramappa 3 M.H.C.R. 268.
15. She was not the absolute owner of the property. She had only a limited use of it, and what remained of it at her death was not hers, but was the estate of her husband, and she could not dispose of it by will. The case, Nellaikumara Chetti v. Marakathammal I.L.R. 1 Mad. 166 was one where money, part of the property of two co-parceners was, after the death of one of them, given by the survivor to the widow of the deceased absolutely in extinguishment of her right to maintenance.
16. It was given not by a limited owner, such as a co-widow, but by the surviving co-parcener absolutely entitled to dispose of it. It became, therefore, the absolute property of the widow and no longer was to be considered the property of the co-parceners. The surviving co-parcener had parted with all right to it. The widow, being thus absolutely entitled, invested the money in the purchase of a house, and it was held rightly that she had a right to dispose of it by will.
17. I agree that the appeal should be dismissed with costs.