1. In this case the widow and heiress of the late Paramata Lall Gossami sues his mother, who is also administratrix with the will annexed, praying that the administratrix be directed to make over to her the estate of her deceased husband, to render an account of the administration, and to pay what sums may, on taking such accounts, be found due to the deceased's estate. On the part of the defendant it is contended, that, by the testator's will, the defendant was placed in charge of his property; that the intention of the will was to oblige the plaintiff to adopt, and to exclude her from management of the estate and from her rights as heiress; and that she is, accordingly, not entitled to the possession of the property.
2. The will in dispute directs, that the widow being enciente, if a son be born, the mother should be guardian.
3. His Lordship then set out the will as above, and continued;--
4. Letters of administration with a copy of the will annexed were obtained by the m(sic)ner, the present defendant, on the 28th June 1875; and the present plaintiff subsequently endeavoured to procure the revocation of these letters. This attempt has been unsuccessful, no legal ground for revocation being, in the opinion of the Court before which the matter came, made out.
5. Having failed in setting aside the administration, the widow now sues to enforce her right as heiress to her husband's estate.
6. The Court below has held, first, that the effect of the husband's will was not to constitute a legal obligation on the widow to adopt; secondly, that the will does not exclude her rights of inheritance; and thirdly, that she is consequently entitled to a decree for her husband's property and for an account of the administration.
7. We concur in these findings. The law is clearly established that a husband's express authorization, or even direction, to his widow to adopt, does not constitute a legal duty on the part of the widow. It is, as has been observed (Mayne, 98), for all legal purposes absolutely non-existent till it is acted upon. The widow cannot be compelled to act upon it, unless and until she chooses to do so.
8. In the judgment of the Sadr Court in Bamun Dass Mookerjeav. Mussamut Tarinee (7 Moore's I. A., 169; Cf. 206), in which their Lordships of the Privy Council expressed their entire concurrence, the Court observed,---that 'there appears to be no power under Hindu law to compel a widow to adopt, though a case (in Macnaughten's Principles of Hindu Law, Vol. II, p. 247) has been referred to, where there is mention of an incompetency in a widow to succeed if she neglect to make an adoption ' (Cf. 190). It is true that ' the question of any possible check on a widow who wilfully protracts or evades an adoption specially enjoined upon her by her husband,' was not, on that occasion, before the Sadr Court or the Privy Council; and all that was necessary to decide was, that 'the power of a widow, duly authorized to adopt, to claim her personal rights until she does adopt, is not affected by any consideration of what might be the proper course if she could be proved to have violated any clear and positive legal obligation.' We think, however, that the observations of the Sadr Court must be accepted as favoring the proposition that such a legal obligation cannot be created; and the remarks of PEACOCK, C.J., in Prasannamayi Dasi v. Kadambini Dasi (3 B. L. R., O. J., 90), are an authority for the view, that the widow's refusal to comply with such a direction is no ground of forfeiture as regards her rights of inheritance.
9. We cannot, therefore, regard the languir a' of the testator as having create a trust which the widow is legally bound to carry out. She is at liberty comply with her husband's directions or no as she pleases; and her miss or refusal to do so is no bar to her rights of inheritance. Accordingly; the contingency for which the will provides not having occurred, and there being no gift over, the testator must be regarded as intestate, and his widow as heiress-at-law entitled to succeed.
10. The appeal must, therefore, be dismissed with costs.