Richard Garth, C.J.
1. The only difficulty, if there is any, which we have to deal with in this case, arises from the anomalous character of a Hindu widow's interest. I have no doubt that Mr. Justice Dwarkanath Mitter was perfectly right, in the Full Bench case of Kery Kolitany v. Mooneeram Kolita 13 B.L.R. l in describing that interest as having been originally a mere trust for the benefit of her deceased husband. But it has been found so impossible in practice to carry out that idea, that this Court, as well as their Lordships of the Privy Council, have for many years past considered and treated her estate as an absolute one, subject only to certain conditions.
2. In the case of Phool Chand Lall v. Rughoobuns Suhaye 9 W.R. 108 Sir Barnes Peacock describes it thus: 'It is not,' he says, 'an absolute estate for all purposes; and it is not merely an estate for life, but she takes the estate of her husband for the benefit of her husband (which includes her maintenance and the performance of her religious duties) rather than for the benefit of those who may become the heirs of her husband upon her death.'
3. As therefore the widow represents the whole inheritance, and her interest is not merely that of an estate for life, it is obviously incorrect to speak of her 'surrendering' her estate (which is the expression often used) to the reversionary heirs of her husband.
4. A surrender, strictly speaking, can only be made by one who has a particular estate, (such as an estate for life), to the person who has the reversion, or remainder immediately expectant, on the determination of that estate.
5. What is usually therefore called a 'surrender' of a Hindu widow's estate is more properly a relinquishment of it in favour of her husband's heirs. If she died a natural death, those heirs would succeed; or if she were to become a byragee, or otherwise die a civil death, the result would be the same. And as I take it to be clear that when her husband died, she might, if she had so pleased, have disclaimed her estate, there would seem nothing wrong or objectionable in her relinquishing her estate at any time in favour of her husband's heir for the time being, after she had once accepted it.
6. But there is no concealing the fact, that although such a relinquishment may be made by a widow in perfect good faith, and even under such circumstances, as to be a meritorious self-sacrifice, it is nevertheless possible and, indeed, it not unfrequently happens, that a widow who is anxious to turn her husband's estate into money, may arrange with the next heir of her husband for the time being, to alienate the estate to some third person for their mutual benefit.
7. They may both share in the profits of such a transaction; and it sometimes happens, that in this way the estate is alienated from the husband's family, so that the person who would be the next male heir at the widow's death, is virtually deprived of his rights.
8. But, if it is once established, as a matter of law, that a widow may relinquish her estate in favour of her husband's heir for the time being, it seems impossible to prevent any alienation, which the widow and the next heir may thus agree to make. And it seems equally impossible to deny, that for a long series of years this Court has treated and considered such alienation as lawful. See Shama Soonduree v. Shurut Chunder Dutt 8 W.R. 500 Jackson and Dwarkanath Mitter, JJ.; Mohan Kishen Geer v. Busgeet Roy 14 W.R. 379 Bayley and Markby, JJ.; Gunga Pershad Kur v. Shumbhoonath Burmun 22 W.R. 393. This last case was decided by Mr. Justice Romesh Chunder Mitter sitting alone, but was appealed under the Letters Patent and confirmed on appeal by Sir Richard Couch and Mr. Justice Ainslie--Letters Patent Appeal 1990 of 1873.]
9. Besides these reported cases, which represent a long current of authority in this Court, there are also several unreported cases to the same effect; and the doubt which has arisen in later days is not so much as to the correctness of these authorities, as upon the question whether a conveyance by the widow, with the consent only of the next reversionary heir, is equivalent to a relinquishment by the widow in favour of such an heir, or a conveyance by them both to some third person.
10. To allow the widow to relinquish her estate to the next male heir of her husband, is one thing; but to allow her to sell the whole inheritance, without any legal necessity, merely with the consent of the next male heir, so as to bar the rights of other heirs of her husband in the future, is another thing.
11. I confess, if we were now considering this last question for the first time, I should have great doubt whether the mere consent of the next heir to an absolute transfer by the widow ought to give such effect to that transfer, as to make it valid as against the person who may be the heir of the husband at the time of the widow's death. It would, of course, bind the person so consenting to it, and all persons claiming under him, but whether it ought to bind any other heirs of the husband is another matter.
12. But it seems to me that there is such a long course of authority in this Court in favour of both propositions that we cannot, and ought not, at the present day, to decide the contrary see Rajbullub Sen v. Oomesh Chunder Rooz I.L.R. 5 Cal. 44 Jackson and Tottenham, JJ. and Trilochun Chuckerbutty v. Umesh Chunder Lahiri 7 C.L.R. 571 Peinsep and Maclean, JJ.
13. We must not forget, that upon the faith of these authorities many thousands of estates have been bought and sold in Bengal during the last twenty years; and I think, that we should be doing a grievous wrong to the purchasers of those estates, if we were to overrule the law thus laid down by this Court for a great many years, and so disturb the titles which have been acquired upon the strength of that law.
14. I think, therefore, that the question referred to us should be answered in the affirmative; and that the appeal should be dismissed with costs. I also think that the plaintiffs should pay the costs of this reference.
15. I concur in this conclusion, upon the ground, that a long course of decisions seems to me to sustain it, and that it would be unjust to throw a cloud now upon titles acquired by virtue of those decisions.
16. I am also of opinion that the question referred to us should be answered in the affirmative. Whatever conflict there may be upon the question whether a Hindu widow may sell the whole inheritance without any legal necessity, merely with the consent of the next male heir, there is no conflict in the decisions, since the case of Jadomoney was decided in the late Supreme Court of Calcutta, upon the question whether the relinquishment by a Hindu widow of her estate to the next male heir of her husband is valid or not. Such relinquishment by the widow has been held for a long series of years to be valid. It would be unjust now to disturb a rule of law settled by a long course of decisions. But, if the widow is competent to relinquish her estate to the next male heir of her husband, it follows, as a logical consequence, that she can alienate it merely with his consent without any legal necessity. I entirely concur in the reasons given in the case of Mohunt Kissen Geer v. Busgeet Roy 14 W.R. 399 to show that the one proposition follows as a logical consequence of the other.
17. After hearing the arguments in this case, I am confirmed in the correctness of the opinion expressed by a Division Bench, of which I was a member, in the case of Trilochun Chuckerbutty v. Umesh Chunder Lahiri 7 C.L.R. 571. Their Lordships of the Privy Council in Rajluckhee Dabea v. Gokool Chunder Chowdhry 13 Moo. I.A. 209 (228) state that 'they do not mean to impugn those authorities which lay down that a transaction of this kind (a deed of gift) may become valid by the consent of the husband's kindred, but the kindred in such case must generally be understood to be all those who are likely to be interested in disputing the transaction. At all events, there should be such a concurrence of the members of the family as suffice to raise a presumption that the transaction was a fair one, and one justified by the Hindu law.
18. I do not understand this to mean, that the consent of all the reversionary heirs must be obtained, but, that as laid down in the case of Jadomoney Dabee v. Saroda Prosono Mookerjee 1 Boul. 120 the consent of all those of equal or superior degree is necessary. But since the decision of the case of Jadomoney it has been settled law in Bengal that a Hindu widow by relinquishing her rights in favour of the heir to her husband's estate accelerates his inheritance, and that the effect of a conveyance by her and such heir is to convey the absolute estate.
19. In the case now before us the widow and the heir have, on the same day, executed separate conveyances in favour of the same person, and these must be regarded as a conveyance of the entire estate.
20. I should, moreover, not be disposed to hold otherwise after a series of decisions of our Courts for about thirty years, unless the opinion of the Privy Council were expressed in clear and unmistakeable terms.
Richard Garth, C.J. (for Pigot, J.)
21. I am authorized by Mr. Justice Pigot to say, that, although he considers that the principles upon which this decision is founded are open to great objection, he is content to waive those objections in consideration of the view taken by the rest of the Court (who have had more experience than himself on the Appellate Side), that to decide otherwise would have the effect of disturbing a great number of titles.