1. In my opinion the appeal must be allowed. I have had the advantage of reading the judgment which my learned brother has prepared and in which he has set out the facts> and agreeing in his conclusion I desire only to make a few observations.
2. There is no question that a widow is entitled to provide for her own maintenance by alienating a portion of her inheritance, if she cannot provide for it otherwise. The Subordinate Judge holds that a daughter's powers are more restricted apparently because the widow has a claim on her husband's estate during his life-time and a daughter has no such claim against her father once she is married.
3. I do not suppose that the Subordinate Judge intended to suggest that it is a rule of Hindu Law that the rights of an heir in the estate of an ancestor to whom he has succeeded, are in direct proportion to his claims against the property during the life-time of the ancestor. My learned brother demonstrates the baselessness of any such idea. I think the Subordinate Judge means rather to suggest that the origin of the widow's succession to her husband is her right to be maintained by him and consequently she has a right to get her maintenance out of the property inherited, whereas the origin of the succession of a daughter to her father is different.
4. If this is his meaning, I am unable to hold that his premises are sufficiently well established to serve as a safe foundation for a differentiation between the legal rights of the widow and those of the daughter. The passage which he quotes from Mayne's Hindu Law contains some suggestions by Mr. Mayne of a possible reason why the daughter was not allowed to take an estate equal in extent to that of the son, but they are pat forward only as suggestions based on general principles of religious efficacy and not as based on any statements of ancient writers; and Mr. Mayne does not suggest that the daughter's rights are or ever were less than the widow's in law. And finally if it be suggested that the right to maintenance gives an equity to the widow which the daughter has not, that consideration would apply only to the married daughter, for a maiden daughter has the right of maintenance as against her father and if she is orphaned while a maiden she should have the same rights in the inheritance as her mother would have if she survived her husband. And we have not been referred to any text or decisions which sug. gests the propriety of drawing any distinction between the extent of the estate inherited from her father by a widowed daughter and that taken by a maiden; nor do I think it was suggested to us that we should now make any such distinction.
5. The facts make the present case a strong one in favour of the appellant. She had to borrow money to maintain herself while out of possession of the property and if it was her duty, or her right, to fight the person in possession in order to recover the property, it would seem difficult to see why she was not bound or entitled to keep herself alive for the struggle; if she can charge the estate for the expenses of counsel, for court fees and the subsistence allowance of witnesses, why not for the necessary expenses of the principle combatant. Even the income of the property was withheld from her and by the plaintiff in this case himself.
6. I would allow the appeal and make the decree proposed in the judgment of my learned brother.
Sadasiva Aiyar, J.
7. The 2nd defendant is the appellant before this Court in the above Second Appeal. One Ammayalingam died in 1893 leaving a widow and a daughter (1st defendant) as his successive heirs and a divided nephew (plaintiff) who had a contingent reversionary interest in the estate of Ammayalingam, (that is contingent on his surviving 1st defendant's mother and 1st defendant) and subject to all the valid alienation (if any) made by them as female heirs succeeding to the property of a male owner. The suit out of which this Second Appeal has arisen was brought by plaintiff to declare that the alienations made by 1st defendant in favour of the other defendants are not binding on Ammayalingam's estate after 1st defendant's death.
8. 1st defendant's mother (Ammayalingam's widow) died about 1902. 1st defendant was obliged to bring Suit No. 363 of 1905 against the present plaintiff who was in wrongful possession as against her of the plaint property from about 1902. She succeeded at last about 1908 in recovering possession. She had become a widow whsn a mere girl, her deceased husband's family was evidently unable to maintain her and she had been living as a member of her father's family ail along. But during the years when she and her mother were wrongfully kept out of possession of the plaint property by plaintiff she had to borrow moneys from third persons for her maintenance and for the expenses of her litigations with the plaintiff. To satisfy those debts, she executed the mortgage bond Exhibit I, dated 8th April 1908 for Rs. 250 mortgaging 1 acre and 67 cents of plaint lands to 2nd defendant. She and her mother had already sold another 1 acre to 2nd defendant in 1901 and 2nd defendant had sold it in his turn to 3rd defendant (who is plaintiff's own son-in-law). Though the plaintiff sued to establish the invalidity of both the alienations, the contest seems to have been confined in the Lower Appellate Court to the alienation by the mortgage-deed of 1908 (Exhibit I) in favour of 2nd defendant for Rs. 520.
9. The Rs. 520 was made up of (a) Rs. 220 borrowed by the 1st defendant for purposes binding on the reversioner according to the view of both the Courts, (6) Rs. 300 which the 1st defendant was under a necessity to borrow for the 1st defendant's maintenance while she was kept out of possession by the plaintiff of her father's estate.
10. As regards the Rs. 300 the District Munsiff held that the alienation to the extent of this sum of Rs. 300 was also binding on the plaintiff (reversioner). The learned Subordinate Judge on appeal held differently. His reasons might, I think, be thus formulated, using mostly his own language:
(a) Under the Hindu Law, 'a daughter who inherits her father's estate cannot charge it for the expenses of her own maintenance.'
(b) ' The case of a widow ' who inherits to her husband 'is quite different' from the case of a daughter, as the widow 'has a claim on the husband's estate both daring his life-time and after his death;' whereas the daughter's maintenance is a charge on her husband's estate and is 'not a legitimate charge on the father's estate in her hands.'
(c) A daughter inheriting her father's property must 'be considered as holding the property for a special purpose and hound to pass it on intact to next heir with its capacity for performing that purpose undiminished' 'She can only enjoy the income of the property and she cannot alienate it for her maintenance,' (c1) even if she had been kept out of enjoyment of its income by the reversioner, (c2) even if the income was insufficient to maintain herself and (c3) even if she had no other means of support. On this view, the Lower Appellate Court held that Exhibit I executed for Rs. 520 was a legitimate charge on the reversionery right in the mortgaged property only to the extent of Rs. 220 and that Exhibit I was invalid as against the plaintiff's reversionary right to the extent of the remaining Rs. 300.
11. The 2nd defendant (appellant) contends before us that the Rs. 330 charge is also binding on the plaintiff as representing the reversioner and that the Lower Appellate Court's too conservative view of the rights of a daughter over her father's property inherited by her is opposed to Hindu law. The learned vakils on both sides haveably argued this question of law and after carefully hearing and considering their arguments and the authorities on the subject, I have come to the clear conclusion that the appeal should be allowed.
12. Under the Archaic and Shastraic Hindu Law, no limitations on the power of female heirs existed as legal fetters. A wife is so greatly honored by the Shastras that she originally inherited her husband's property even when he had left sons of his body, that is, the husband's property belonged to both husband and wife during their life-time and only after both died could the sons divide their parents' said estate, for, the widow was considered to be the surviving half of her husband and was his indissoluble companion in every religious ceremony and every secular act. Her remaining life-period was a sort of prolongation of her husband's life (see Manu, Chapter 9, slokas 45 and 104--I have given the effect of the plain literal meanings of the texts of Manu without the misleading glosses and additions of Kulluka and the still more misleading commentary of the Smriti Chandrika. The text clearly says that the sons 'have no power 'over their father's property so long as the mother lives. See also Mayne's Hindu Law Section 245 where it is said that the Ceylon Thesawaleme still follows the ancient Hindu Law preferring the widow to the son). The Sankha and Likhitha Smrithi says (see 2 Dig. 533) that sons are not independent even after their father's death while their mother lives. Narada says the same (Chapter 3 slokas 38, 40). But several later commentators (whose authority ought to be and is admitted by themselves to be less than that of the Rishis who gave the Smrits) have twisted the texts so as to place limitations on the power of female heirs by quoting isolated passages divorced from the context and directed against the general capacity of women and recommending their being always kept in a dependent position, passages similar to those which might be quoted against women from the works of the early Christian Fathers. The restrictions placed upon a woman in the enjoyment of what she inherits, were similar to those sometimes placed upon even a male owner, namely, that he should not alienate even his exclusive property so as to leave his wife and children destitute, (see Mayne para. 460) restrictions intended to be effectuated by moral and social sanctions and not by legal disqualifications. However it is now too late (and therefore useless) to try to restore the old Hindu Law on these questions and we have to rest thankful that at least in Bombay in the cases of inheritance by sisters and daughters and other female heirs who have passed to a different Gotra or are even likely in future to pass by marriage to a different Gotra an absolute right has been held to vest in them and not merely what is usually known as 'a woman's estate.' I do not intend to deal at length with the rather fanciful theory of Mr.Mayne (page 710 of his Book) that the widow's right to inherit arose out of her right to be maintained and I shall merely say that it is almost inconceivable to me that the large legal right of inheritance could have grown out of the inferior right of maintenance and that the development of the law has been rather the other way, the widow's full right of ownership in her husband's property in Vedic times having been cut down in the mediaeval ages (the position of Aryan woman having become degraded in mediaeval times through the influence of surroundings and through the downward tendancy of all mundane institutions unless vivified and uplifted from time to time)(a) to a technical 'widow's estate 'if her husband left no sons and (b) to a small share of the inheritance under the Dayabhaga system if her husband left sons and at the time when the said sons divide the father's property and (c) to a mere right of maintenance where the Mitakshara and allied systems prevail. (Whether later customs opposed to the earlier shastras can be valid under the Hindu Law is a large question which again it has now become too late to consider but I might refer to Ghose and Bhattacharya, learned writers who know the Sanskrit texts in their original and who say that customs opposed to the Sruti and Smiriti can never become good Hindu Law).
The attempt of Mr. Mayne to trace the right of inheritance of the daughter to the ancient practice of the father appointing a daughter to raise a son to continue the male line of her father, has not in my opinion, been more successful than his attempt to trace the right of inheritance in the widow to a mere right of maintenance. Slokas 127 to 129 (Manu Chapter 9) merely show the value of a daughter to the extent of even continuing the male line of her father but do not all control the plain meaning of Sloka 130 which rests the right of the daughter to inherit of the simple and intelligible ground that both the son and daughter proceed from the father and are closely united to his life as their physical life proceeded from his (see also Mitakshara Chap. II, Section 2, Sloka 2).
13. As I said before it is futile now to attempt to get over the restrictions imposed on female heirs inheriting to males by later writers and by unshastraic customs which have become 'settled 'law; but surely, it is not obligatory on Courts to make such restrictions more severe than they have been already made by binding precedents. Many Hindus of the northern part of India have adopted the custom of strict gosha for females from the Mussalmans.
Many Mussalmans in Malabar have adopted the Marumakkthayam system of inheritance from association with Malayalee Hindus. But it is surely not the duty of the Courts of Justice to impose on them the burden of the other antiquated practices which they have not adopted simply because the practices already adopted by them might be logically or historically connected with these other practices.
14. In the case of the rights of female heirs who have succeeded to the property of their deceased male relations, I am not at all inclined to advance one inch further in the matter of the imposition of restrictions on their powers to enjoy such ' property as owners than the Courts have already gone. The current of decisions which sought to interpret unqualified gifts of lands to wives and daughters as giving them only a life interest on the presumed opinion of a Hindu male donor that his female relations are not fit to be trusted with full dominion over any property has happily been turned back in recent times (see Musilijadu v. Nannigadu : (1905)15MLJ462 Radha Prasad Mullick v. Ranee Dassee and Peary Lal Mullick v. Ranee Mani Dassee I.L.R. (1906) C. 947 Ramachandra Naiker v. Vijayaragavulu Naidu I.L.R. (1908) M. 349 Toolsi Dass Kurmokar v. Madan Gopal Dey I.L.R. (1901) C. 499 Atud Krishna Sircar v. Sanyasi Churn Sircar I.L.R. (1905) C. 1051 Surajmani v. Rabi Nath Ojha I.L.R. (1907) A. 84 The tendency of recent decisions is to enlarge the rights of Hindu female owners of property and not to restrict them.
15. Now, what are the restrictions on female heirs (inheriting to males) which have already become 'settled' law and cannot be now reopened in cases which are treated as governed by the Mitakshara School of law? What are the powers and privileges which have been already allowed to such female heirs by the precedents and which ought therefore to be jealously protected from encroachment? Mr. Mayne says that it is 'wholly incorrect' to call the estate inherited by a female heir from her deceased male relation as an estate 'for life.' 'It would be just as untrue to speak of the estate of a father under the Mitakshara law as being one for life. Hindu Law knows nothing of estates for life or in tail or in fee.' The texts usually quoted as imposing restrictions on the female heirs' powers are all texts which relate solely to the widow inheriting her husband's property and do not apply in terms to other female heirs. By a false analogy, the restrictions have been gradually imposed on other female heirs also, though (as I said before) the daugher and the sister have escaped the penalty of such restrictions in Bombay. Some acute lawyers (like Raghunandana of the Bengal school) wanted to proceed even further in the game of what I may be permitted to call the baiting of female heirs and wanted to make a daughter, mother and all other female heirs (other than the widow) forfeit their claims of inheritance on the score of unchastity just as a widow is supposed to forfeit hers on that score. They have unhappily succeeded in Bengal (see Ramnath Tolapattro v. Durga Sundari Debi I.L.R. (1879) C. 554 but have happily failed in Madras and Bombay and the other parts of India. The reason which requires a widow to be chaste at the time of the opening of the inheritance of her husband's estate if she wants to claim the said property of her husband as his heir and which imposes on her after she had inherited as heir the duty to lead an abstemious life the effect of which will necessarily be the preservation of her husband's estate from wasteful alienations, has evidently no applicability to other female heirs and, in my opinion, other female heirs, cannot on any intelligible principle be allowed less powers over what they inherit as theirs than the widow. Mr. Mayne says (para 608) in so many words that the reasoning by which a widow has got limitations placed on her powers of alienating her husband's estate 'would not apply to the case of a daughter.' Mr. Mayne further says (para 625) that there is 'less reason for imposing any such restrictions upon other female heir's than on the widow. The notion that a female heir to a male's property is a trustee for the next succeeding heir of the male is rightly repudiated by all the text writers including Mayne (para. 625) and West and Buhler. She fully owns and represents that estate and the right of the so-called 'reversioner' is merely that of a contingent expectancy. It is the Smriti Chandrika and other mediaeval commentators expounding narrow, illiberal and even very harsh views that have tried to restrict women's rights more and more. As remarked already, under the ancient sacred texts, the widow inherited before her sons who were to be dependent on her till her death. Her estate was an absolute estate though she was advised not to be extravagant. That great and unprejudiced scholar Professor H.H. Wilson says (Vol. 5 of his works) 'It is absurd to say that a woman was not intended to be a free agent because the old Hindu legislators have indulged in general declarations as to her unfitness for that character..The spirit and the text of the original law, in our estimation, recognize the widow's absolute right over property inherited from a husband in default of male issue.' When her rights were afterwards reduced to receive a share at the time of the partition among the sons, it was at first held that she had an absolute right over the share she so obtained; by again the narrow views of the commentators who despised the fair sex prevailed. As professor Wilson well puts it. 'The old lawyers have said 'Let a widow enjoy a husband's wealth; afterwards, let the heirs take it.' What obligation does this involve that she must leave it?' The ancient injunctions addressed to the widow 'can scarcely be interpreted to mean that if a widow gives away or sells her estate, such gift or sale is invalid. Even the later writers who entertained less reverence for the female character than the ancient sages have stopped short of such declaration and Jimutavahana is content to say that 'a widow shall only enjoy the estate; she ought not to give it away, or mortgage or sell it.' He allows her also if unable to subsist otherwise, to mortage or even to sell it and to make presents to her husband's relatives and gifs or other alienations for the spiritual benefit of the deceased. It is not till we come to the third generation of lawyers, the commentators on the commentators, that the restriction is positive and Sri Krishna Tarkalankara, expounding Jimutavahana's text, declares 'a widow shall use her husband's heritage for the support of life; and make donations and give alms in a moderate degree for the benefit of her husband; but not dispose of it at her pleasure like her own peculiar property.' The utmost that can be inferred from all this is, that originally the duty of the widow was only pointed out to her and she was left, in law as she was in reason, a free agent, to do what she pleased with that which was her own; but that in later times attempts of an indefinite nature have been made to limit her power.'
16. I hope I have not wandered too far from the point to be decided in this case in my anxiety to see that whatever restrictions might have already been imposed by 'settled' precedents, no fresh restrictions should be imposed on female heirs inheriting to male owners. The 'settled 'restrictions are:
(a) That on the female heir's death the male owner's next heirs and not the female heir's own heirs succeed to the property which she has inherited and which has not been validly disposed of by her.
(b) That she cannot alienate the corpus of the inheritance except for special purposes, those special purposes coming under the comprehensive word 'necessity' including 'religious or charitable purposes or those which are supposed to conduce to spiritual welfare.'
17. Now the word 'necessity ' is a word of wide import and as is usual with words of wide import, there is a certain amount of uncertainty and vagueness attached to its full content. But it seems to me that it is impossible to argue that the maintenance of the heir herself is excluded from the meaning of the word 'necessity' unless the heir is the widow of the deceased owner. I cannot conceive of a greater 'necessity ' than the maintenance of the connection between body and soul by the securing of food, raimant and other things called 'necessaries.' The gist of the learned Subordinate Judge's argument in the case is that the word 'necessity ' is not intended to apply to the 'necessity 'of the heir herself but to the spiritual 'necessity ' of the deceased male owner or the 'necessity to preserve his estate for the benefit of the next succeeding heir after the female heir, the said female heir being treated as a mere trustee, who is permitted as a matter of grace to enjoy the bare income, however small and insufficient for her maintenance. I am unable to agree with the position that the female heir's highest and most pressing legal 'necessity 'is not to support herself and that she is bound to starve herself on account of another supposedly more imperious necessity, namely, that of preserving the estate intact for the reversioner. That a widow as heir could alienate her husband's property for her own maintenance is fully conceded. (Sadashiv Bhaskar Joshi v. Dhakubai I.L.R. 5 B. 450. But it is argued that the married daughter who succeeds as heir has got a lesser right as she had no such claim on her father's estate during his life-time for her maintenance as the widow had. Is it not strange that while in Bombay, the Gotra sapinda female heirs like the sister and daughter who have gone off into the families of other Gotras, are allowed a larger estate on that very ground it should be argued in Madras that the latter heirs have got less powers of disposal than the widow and the mother because these latter, as belonging to the Gotra of the deceased, had a right to maintenance from the deceased's estate during his life-time? However, the patent fallacy of the argument lies in confounding the extent of the rights of an heir who has succeeded to an estate and after he or she so succeeded with his or her rights in that estate before he or she so succeeded as heir. The two sets of rights have absolutely nothing to do with each other. A remote Bandhu of the 14th degree or even the circar might inherit a man's property with full power of disposal after he or the circar so succeeds and yet the heir or the circar have never a shadow of right to be maintained out of the estate during the life time of the propositus. To try to impose greater restrictions on the daughter than on the widow as heir after the succession opened because of their (real or supposed) different rights before the succession opened seems to me to be not based on any intelligible principle. A man is bound to maintain his unmarried sister out of his ancestral property and is not bound to maintain a divided 14th cousin; and yet when he dies, the 14th cousin might inherit absolutely the property while the sister should be content with a marriage portion and even if she inherits, she would have much less power of disposal than the male cousin of the 14th remove if he succeeded. In short, the bringing in of such foreign considerations as the right to maintenance seems wholly irrelevant and misleading.
18. But even assuming for argument's sake (I do not concede it except for the purposes of argument) that unless the daughter had some claim on her father's estate for her maintenance her powers of disposal as heir of her father cannot extend to the finding of means for meeting the supreme necessity of procuring her own 'necessaries,' has not a widowed destitute daughter whose husband's family is unable to give her anything, has she not a legal claim on her father for her maintenance at least when she lives with him as a member of his family? Has she not, at least, a social and moral claim against her father which ripens into a legal right against his estate after his death just as in the case of a daughter-in-law who has only a social and moral claim against her father-in-law if he has no ancestral property and whose moral claim becomes a legal claim after his death? (See Rangammal v. Echammal I.L.R. (1898) M. 205. The authorities are all in favour of the existence of such a right in the destitute married daughter except one doubtful decision in Bai Mangal v. Bai Bukhmini I.L.R. (1898) B. 291. Ghose says (Hindu Law, pages 295 and 296) 'The law of Narada is clear, that when the husband's family is in destitute circumstances, the father's family has to maintain a female. It is difficult to see how it is only a moral duty...When the father's family marry a girl to a poor man...how can it be said that when she becomes helpless on account of the indigence of the husband's family the father's family can turn her out without a maintenance?...According to the strict letter of the Hindu Law and also according to the nature of the constitution of Hindu Society, it is a clear legal duty on the part of the father's family to maintain a woman undar the circumstances noted above.' And then the learned author proceeds to criticise Bai Mangal v. Bai Rukhmini2 and says that that decision 'is not correct according to the old law of the Rishis.' Mr. Mayne was formerly of opinion that if the husband's family 'are umble to support' a married daughter 'she must be provided for by the family of her father' and he was supported by Macnaghten (Vol.2, page 118) and West and Buhler (233, 245, 248 and 437) and 2 Strange (pages 83, 90). Mr. Mayne, however, seems to have changed his opinion after the decision in Bai Mangal v. Bai Rukhmini.1 The learned Judges who decided that case while finding on the question of fact that 'it is not clear that she' (the daughter) 'is absolutely without any provision,' proceeded to lay down that even if she was destitute, there was only a social and moral obligation and not a legally enforceable right by which her maintenance can be claimed against her father's family and even though she had returned to live with her father and brother after she became a widow. With the greatest deference to the very learned Judges (Justices Ranade and Parsons) who decided the case in Bai Mangal v. Bai Rukhmini I.L.R. (1898) B. 291. I must regretfully express my dissent from that decision and I concur in the opinion of J.C. Ghose, West and Buhler, Macnaghten and Strange that there is a legal obligation on the father and his family to support a destitute daughter (though she had been married away) if she could not get sufficient provision from her deceased husband's family for her maintenance. Bhattacharya also says (page 400) that under the Hindu Law texts, widowed daughters are entitled to maintenance and 'justice requires that their right should be recognized.' The argument that by marriage she becomes a member of another family and becomes, so to say, 'dead' to her own family is merely carrying legal fictions to absurd lengths. A wife is half her husband's body but you cannnot on that account give double rations to the husband for his meals and give none to the wife; nor does the daughter lose her consanguineness, blood relationship to her father and her right of inheritance to him and other similar rights, simply because she becomes attached by Pinda, Gotra and Sootaka to her husband's family by marriage.
19. As I said before, the question of the daughter's right to maintenance during her father's life-time is irrelevant in the consideration of the question of the extent of her powers as heir to his estate. She cannot have less powers than the widow. Their Lordships no doubt say in Tatayya v. Ramahrishnammah I.L.R. (1910) Mad 288 'under the Hindu Law in force in this Presidency, the daughter's...powers of alienation...are no greater than those of the widow' but they immediately add 'and we are inclined to hold that they are not less.'
20. That learned Hindu lawyer J.C. Ghose says, however, that 'the peculiar circumstances under which the widow's right came to be recognized and limited did not exist in the case of the daughter and the mother...The daughter was like a son when she took her father's inheritance and there is no justification for limiting her rights in any way' ('or for holding that in her case but not in the case of the son, virtuous life was a condition precedent to her taking'). I am, however, content to take it for the purposes of this case that the daughter's powers are neither greater nor less in extent than the widow's powers and even in that view, the alienation to the extent of Rs. 306 borrowed by the 1st defendant for the necessaries of her maintenance is binding on the whole estate of the father.
21. As against the observations in Bai Mangal v. Bai Rukhmini I.L.R. (1898) B. 291 (which are almost in the nature of obiter dicta), we have the direct authority of the decision of the Allahabad High Court in Rustam Singh v. Moti Singh I.L.R. (1896) A. 474 where it was held that a daughter inheriting to her father was entitled to mortgage her father's estate to meet the expenses of the marriage of her own daughter and that the meeting of such expenses was a 'necessary purpose' justifying the alienation. No elaborate reasons are given in the above decision, evidently because the learned Judge felt no doubt on the question of law. The father was under ho legal obligation to provide for his daughter's marriage and yet it was held that that the debt incurred by his daughter for expenses of such marriage, was binding on the reversionary heir. Surely the daughter's own maintenance is a more imperious necessity than the grand-daughter's marriage.
22. In the result, the appeal must be allowed, the decree of the Subordinate Judge set aside and the District Munsiff's decision restored with costs against the plaintiff and in favour of the 2nd defendant in this Court and in the Lower Appellate Court.