1. We are of opinion that both these questions should be answered in the affirmative.
2. It is now settled law that the interest of a Hindu widow may be alienated by her, and that the alienation would be valid for her life. In cases of necessity, such as are mentioned in paras. 61 and 62, Section 1, chap. XI of the Dayabhage, she may effect even an absolute alienation to enure after her death. If there were no provisions to the contrary, the right of alienation of the interest of one of two or more widows jointly inheriting their husband's estate Would logically flow from these two propositions. So far as the doctrines of the Hindu law prevalent in the Lower Provinces of Bengal are concerned, there does not, in our opinion, exist any such contrary provision.
3. One of the cardinal points of difference between the Mitakshara and the Dayabhaga is, that according to the latter the right of alienation being a necessary incident of ownership, one of two or more joint owners can alienate his interest in the joint property without the consent of the coparceners.
4. The author of the Mitakshara relying upon certain texts of Vyasa, far para. 30, chap. 1, Section 1, lays down the rule of law that, 'among unseparated kinsmen the consent of all is indispensably requisite, because no one is fully empowered to make an alienation since the estate is in common.'
5. 'But the texts of Vyasa,' says Jimuta Vahana, 'exhibiting a prohibition, are intended to show a moral offence: since the family is distressed by a sale, gift or other transfer, which argues a disposition in the person to make an ill use of his power as owner. They are not to invalidate the sale or other transfer.
Dyabhaga p. 36.
6. 'So likewise other texts (as this 'though immoveables or bipeds have been acquired by a man himself, a gift or sale of them should not be made by him, unless convening all the sons') must be interpreted in the same manner. For here the, words 'should' 'be made' must necessarily be understood.
7. 'Therefore, since it is denied that a gift or sale should be made, the precept infringed by making one; but the gift or transfer is not null: for a fact cannot be altered by a hundred texts.' (Dyabhaga, chap. II, paras. 27 to 30.)
8. It is clear, therefore, that according to the Dyabhaga, the right of alienation is in no way affected by the joint inheritance of two or more widows in their husband's estate.
9. As regards the second question, the right of enforcing partition is also clearly laid down in the shastras. The passage from the Mitakshara which bears upon this point is not fully translated as has been pointed out in page 451, Madras High Court Reports, Vol. III. It is to the following effect: 'There (in that order) the first to inherit is the wife patni. Patni is she who is (so) made by marriage, and this. from the Smriti or rule of Grammar 'Patyur-no yagna Sumyogai.' (The particle ni is added to pati to signify one who partakes in the holy sacrifice) singular number, because the class is denoted. Hence, if there be several, whether of the same or different castes they divide and take the property according to their shares.'
10. In page 132 of the Viramitrodya, the same rule of law is thus laid down: 'First of all the patni or the lawfully-weeded wife takes the estate. The term patni itself signifies a woman espoused in the prescribed form of marriage, agreeably to the aphorism of Panini.'The term patni (husband) is changed into patni (meaning the correlative) implying relation through a sacrifice.' The singular number (in the term patni in Yagisvara's text 1) implies the class; hence if a person leaves more wives than one, then all of them, first those of the same class (with the husband), and after them those of a different class, shall take the husband's property dividing the same amongst themselves.'
11. In the Dyabhaga, there is no special provision of this nature in the chapter on the widow's succession; but the right of partition is provided for in all cases of joint inheritance by the following passages: 'First, the term partition of heritage (Dyabhaga) is expounded, and on that subject Nareda says: 'Where a division of the paternal estate is instituted by sons, that becomes a topic of litigation called by the wise partition of heritage. What came from the father is 'paternal,' and this signifies property arising from the father's demise. The expressions 'paternal' and 'by sons' both indicate any relation, for the term 'Partition of Heritage' is used for any division of the goods of any relation by any relatives.' Chap. I, paras. 2 and 3.
12. 'Since any one parcener is proprietor of his own wealth, partition at the choice even of a single person is thence deducible; and concurrence of heirs, suggested as one case of partition, is recited explanatorily in the text the brethren being assembled, &c.;' Chap. I, para. 35.
13. Upon these passages it is quite clear that in the case of a joint succession of two or more widows to their husband's estate, the partition may be enforced at the instance of any one of them.
14. So far then as the original treatises go, they clearly recognize the right of alienation by one of two or more widows jointly succeeding to their husband's estate, and of enforcing partition of the joint heritage.
15. But it has been urged that these questions have been decided by, the Judicial Committee of the Privy Council in a contrary way.
16. The first of the cases cited before us is Bhugwandeen Dobey v. Myna Baee 11 Moore's I.A. 487. The facts of that case are these: One Rae Dina Nath died, and his estate was inherited by his two widows, Myna Baee and Dula Baee. The latter died leaving her share of the heritage, which had been separated under an order made by a Judge in a summary suit pursuant to Act XIX of 1841, to her father and brother under a will executed by her before her death. The Judicial Committee of the Privy Council held (1) that under the Mitakshara law which governed the case, the will was invalid against the surviving widow who was entitled to succeed to the property in suit by right of survivorship; (2) that there was no severance of the joint tenancy of the two widows; and (3) that there could not be a partition between them, so as to affect the right of survivorship of either. Their Lordships closed their judgment with the observation, that the case might have been decided upon the single ground that in a joint estate the alienation of the interest of one coparcener without the consent of the rest is invalid.
17. It will appear from this analysis of the decision, that it does not bear upon the questions before us. It was not decided there that there could be no partition between the widows binding between them during their lifetime; but what was held was, that any such partition would not affect the right of survivorship of either. This is all that was decided in that case upon the question of partition, and the decision in Gajapathi Nelamani v. Gajapathi Rashamani I.L.R. 1 Mad. 290: L.R. 4 I.A. 212 following the first-mentioned case only reaffirmed that proposition. As regards the observations upon the question of the right of alienation, they are entirely based upon the Mitakshara law; but it has been already shown that upon this point the law, as laid down in the Mitakshara, is different from that of the Dyabhaga.
18. The last case cited is Amrito Lal Bose v. Rajonee Kant Mitter, J. L.R. 2 I.A. 113 : 15 B.L.R. 10. This is a Bengal case, and all that it decides is, that between widows jointly succeeding to their husband's estate, as well as between daughters jointly inheriting their father's property, there is right of survivorship.
19. We are, therefore, of opinion that the contention that those decisions have laid down the law contrary to our opinion expressed above is not correct.
20. On the other hand in Srimati Paddamani Dasi v. Srimati Jaggadamba Dasi 6 B.L.R. 134 (which was a case of succession of two daughters), it was held that either of them was entitled to enforce partition, although such partition might not be binding on the reversioners.
21. There remains to notice the case cited before us of Kathaperumaul v. Venkabai I.L.R. 2 Mad. 194; but with deference to the learned Judges who decided it, it seems to us that their decision was based upon a misapprehension of the Privy Council cases referred to above. The learned Judges were of opinion that according to those decisions there could not be any kind of partition between two widows jointly inheriting their husband's property. We have already shown that the judgments of the Privy Council do not go to that length.
22. We are, therefore, of opinion that the decisions of the lower Courts are erroneous. We accordingly reverse them, and remand the case to the Munsiff to decide the remaining issue. We think it right to observe here that if a partition be ultimately decreed, it should be effected in such a way as would not be detrimental to the future interests of the reversioners.