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Sarat Chandra Mitra Vs. Charusila Dasi - Court Judgment

LegalCrystal Citation
SubjectFamily ;Property
CourtKolkata
Decided On
Reported inAIR1928Cal794
AppellantSarat Chandra Mitra
RespondentCharusila Dasi
Cases ReferredByrom v. Brandreth
Excerpt:
- page, j.1. the decision in this case involves the solution of the problem whether a hindu widow can dispose by will of income of property that she has inherited from her husband. two issues fall to be determined:(i) did the testatrix possess testamentary capacity to dispose of the property in suit under her will?(ii) did she dispose of such property under the will that she executed?2. the first issue raises a question of law of some nicety, and of general interest to the hindu community; the second issue depends on the construction of the will.3. i have had the advantage of an exhaustive argument upon the relevant authorities, but in india there is a divergence of opinion upon this subject, and it cannot be pretended, i think, that in the privy council the views which have been expressed.....
Judgment:

Page, J.

1. The decision in this case involves the solution of the problem whether a Hindu widow can dispose by will of income of property that she has inherited from her husband. Two issues fall to be determined:

(i) Did the testatrix possess testamentary capacity to dispose of the property in suit under her will?

(ii) Did she dispose of such property under the will that she executed?

2. The first issue raises a question of law of some nicety, and of general interest to the Hindu community; the second issue depends on the construction of the will.

3. I have had the advantage of an exhaustive argument upon the relevant authorities, but in India there is a divergence of opinion upon this subject, and it cannot be pretended, I think, that in the Privy Council the views which have been expressed by the Judicial Committee from time to time are all consistent or can wholly be reconciled.

4. Indeed, in 1826, Lord Gifford is reported to have observed in Cossinauth Bysack v. Hurro Soondery Dossee [1826] Clarke's Rules & Orders (App. X) 91:

that in the contest for the possession of this property, between her (i.e., a Hindu Widow) and the relations of her husband, she is entitled to the possession of the property, but that she is only entitled to enjoy it according to the rights of a Hindu widow, which rights it appears to me to be absolutely impossible to define.

5. I am disposed to be less pessimistic : but I approach the consideration of the first issue with diffidence; for, as I understand the problem, the solution is to be found not by following a process of logic or applying general principles of jurisprudence, but in a true conception of the peculiar nature of a widow's estate in Hindu law.

6. In Profulla Kamini Roy v. Bhabani Nath Ray A.I.R. 1926 Cal. 121 I endeavoured to state what I understood to be the general nature of the estate that a Hindu widow possesses in property inherited from her husband, and I do not propose to repeat or refer to what I said in that case, except to observe that the case of Sreeramulu v. Kristamma [1902] 26 Mad. 143 has been overruled by a Pull Bench of the Madras High Court in Vaidyanatha Sastri v. Sabitri Ammal [1917] 41 Mad. 75. In considering, issue 1 it is essential, I think, steadily to bear in mind that the estate of a Hindu widow is an anomalous estate which interrupts the normal course of succession, and that it has been created and tolerated by orthodox Hindus only because, as the Sage Birihaspati laid down

in scripture and in she code of law, as well as in popular practice a wife is declared by the wise to be half the body of her husband, equally sharing the fruit of his pure and impure acts. Of him whose wife is not deceased half the body survives. How then should another take his property while half his person is alive?

7. But, as Jimuta Vahana explains,

the wife must only enjoy her husband's estate after his demise. She is not entitled to make a gift, mortgage or sale of it.

8. Again, Katyayana lays down

Let the childless widow possessing unsullied, the bed of her lord, and abiding with her venerable protector, enjoy with moderation the property until her death. After her let the heirs take it. (Dayabhaga, Ch. 11, 1.56). Abiding with her venerable protector, that is, her father-in-law, or others of her husband's family, let her enjoy her husband's estate during her life; and not, as with her separate property, make a gift, mortgage or sale of it at her pleasure (Dayabhaga, Ch. 11, 1.57.)

9. I desire to emphasize that the widow of a sonless Hindu was permitted to enjoy the usufruct of the property that she inherited from her husband solely for the maintenance of half the body of her husband, and for the performance of such works of charity and religion as would tend to benefit her husband's soul; and not that thereby she should receive something in the nature of a gift to which she would possess an independent and unfettered title.

10. Now, the material facts are simple and undisputed. One Durga Prasanna Ghose, a wealthy Hindu inhabitant of Calcutta governed by the Bengal School of Hindu law, died on 4th July 1888, leaving him surviving two infant sons, Akshay Kumar Ghose and Dwijendra Kumar Ghose. By his will dated 25th June 1888 Durga Prasanna left all his property to his two sons absolutely.

11. On 26th March 1893 Dwijendra died intestate, and without issue, and upon his death his widow Srimati Priyatama Dasi became entitled to a widow's estate in the property left by her husband Dwijendra, which consisted of an undivided half share of the estate left by Durga Prasanna, the other half share belonging to Akshay. Disputes having arisen between them Akshay and Priyatama on 11th Kartik 1308 (corresponding with the 28th October 1901) executed an ekrarnama under which Priyatama granted to Akshay an ijara of certain immovable property, to an undivided half share of which she had succeeded on the death of Dwijendra, from 1st Kartik 1308 for the term of her natural life in consideration of a monthly rent of Rs. 1,250 payable within the first week of each Bengali month. In case of non-payment of the rent Akshay further agreed to pay interest thereon at 12 per cent per annum from the first day of the second week of each month until payment of the arrears was made. Akshay thus became entitled to the possession and management of the whole estate, and duly paid the said monthly sum of Rs. 1,250 to Priyatama until his death on 23rd November 1909. In due course letters of administration with the will of Akshay annexed were granted to his widow, the defendant. In the written statement it was alleged that on 6th July 1913 the defendant had adopted Debi Prasanna Ghose as a son to Akshay, but no evidence was led in support of this allegation at the trial, and no issue was raised in connexion with it. On 25th October 1919 (the 8th Kartik 1326) Priyatama Dasi died, having made a will on 7th September 1904 of which she appointed the plaintiff the sole execution and granted and devised to 'him the whole of my properties and moneys of which I shall die possessed' upon certain trusts therein set out.

12. After the death of Akshay the defendant duly paid the rents due under the ijara to the end of Bhadra 1326 (17th September 1919). On 8th Kartik 1326 on which day Priyatama died, there were arrears of rent due and owing under the ijara for the month of Aswin which com commenced on 18th September 1919, and for eight days in Kartik, and the present suit was brought to recover these sums and interest thereon as provided in the ijara, amounting in all to Rs. 1,979-2-8.

13. Issue 1, therefore, that arises is whether Priyatama was competent to dispose by will of the arrears of rent due under the ijara at Priyatama's death which represented income that had accrued from property which she had inherited as the widow of Dwijendra. Now, the answer, it seems to me, depends upon whether the sum in suit formed part of the stridhan of Priyatama, and that again depends upon what this term comprehends. For, if the sum in suit was Priyatama's stridhan, it is not and cannot be pretended that she was not entitled to it in her own absolute right, or that she was not at liberty to dispose of it either by a transfer inter vivos or under her will.

14. On the other hand, a will speaks from the death of the testator, and, I apprehend, it is opposed to Hindu practice and repugnant to Hindu law that a woman possessing a widow's estate should dispose by will of any property that she does not hold in her own absolute right What, then, is stridhan or woman's property according to the Hindu law prevailing in Bengal

15. Surely it is not confined to the 'six fold property of a woman' described by Manu and Katyayana : Dayabhaga, Ch. 4(1)(4) for

since various sorts of separate property of a woman have been thus propounded without any restriction of number, the number of six (as specified by Manu and others) is not definitely meant. But the texts of the sages merely intend an explanation of woman's separate property. That alone is her peculiar property, which she has power to give, sell, or use, independently of her husband's control.

16. Dayabhaga, Ch. 4, (1)(18); Mitakshara, Ch. 2 (11)(1) and Ch. 2(11)(2). In the Mitakshara (Ch. 2, (11)(2), it is stated that stridhan according 'to Manu and the rest' includes also

property which she may have acquired by inheritance, purchase, partition, seizure, or finding.

17. A consideration of the relevant texts and authorities leads to the conclusions that a widow's stridhan is not restricted to the sixfold denomination of Manu, but that the term must receive a wider construction, and means property which if undisposed of at her death will pass to her heirs and not those of her husband. That this is so, I think, is apparent from the decision of the Privy Council in Brij Indar v. Ranee Janki Koer [1877] 5 I.A. 1.

18. Now, it is to be observed that in respect of property that has passed to a Hindu widow by inheritance the law as laid down in the text from Katyayana to which I have referred (Dayabhaga, Ch. 11, 1. 56) is inconsistent with that contained in the Mitakshara, Ch. 2(11)(2). It is idle to speculate whether a widow's rights under the Benares school, according to a true view of this disputed passage in the Mitakshara, are different from those to which she is entitled in Bengal, for the subject is no longer open to discussion. As Lord Lindley has pointed out:

The law of inheritance in the case of women is left in great obscurity by the Mitakshara. The subject is dealt-with in Ch. 2, Section 11 and hag more than once been considered by this Board. The nature of a widow's estate was settled in two cases in Mt. Thakur Dayhee v. Bai Baliack Ram [1867] 11 M.I.A. 139, and Bhugwandeen Doobey v. Myna Baee [1867] 11 M.I.A. 487, and the nature of a daughter's estate was considered in Chottay Lall v. Chunno Lall [1878] 4 Cal. 744. It was there decided that under the law of the Mitakshara a daughter's estate inherited from the father is a limited and restricted estate only, and not stridhan. Upon her death the next heirs of her father succeed thereto : Raja Chelikani v. Roja Chellikani [1902] 25 Mad. 678.

19. In Bhugwandeen Doobey v. Myna Baee [1867] 11 M.I.A. 487 Sir James Colville observed that

the text of the Mitakshara, on which, as has already been shown, the appellant must mainly rely, is paragraph 2, Section 11, of Ch. 2, which includes 'property which she may have acquired by inheritance' in the enumeration of women's peculiar property. These words make no distinction between moveable and immovable property; yet it is settled, beyond all question, as we have already stated, that the immovable property which a woman inherits from her husband cannot be disposed of by her, and does not pass as her stridhan. The legitimate inference from this seems to be that neither moveable nor immovable property inherited from her husband forms part of a woman's peculium or stridhan.

20. Again, later, his Lordship adds:

The preponderance of authority is certainly in favour of the proposition that, whether the widow has or has not the power to dispose of inherited movables, they as well as the immovable property, if not disposed of, pass on her death to the next heirs of the husband.

21. Now, it may be that a widow governed by a personal law other than that of the Bengal or the Benares schools has wider or different rights with respect to the disposition of property that she has inherited from her husband (ibid, p. 508). On the other hand, it may not be so : see Gadadhar v. Chandrabhaga Bai [1882] 17 Bom. 690 (F.B.), Pandharinath v. Govind Shivram [1907] 32 Bom. 59, Narasimha v. Venkatadri [1884] 8 Mad. 290, Buchi v. Jagapathi [1884] 8 Mad. 304. For the purposes of this case, however, it is unnecessary to decide the question, although it is not un-instructive to observe that the Bombay and Madras cases relating to a widow's right to property inherited from her husband do not appear to rely so much upor any peculiarity in the law in those Provinces as upon the general principles-which affect and regulate the rights of widows governed by the Bengal and Benares schools : see Rivett Carnac v. Jivibai [1886] 10 Bom. 478, Gadadhar v. Chandrabhaga Bai [1882] 17 Bom. 690 (F.B.), and the Madras cases infra. Be that as it may, in Mt. Thakoor v. Rai Baluk Ram [1867] 11 M.I.A. 139 Sir James Colville stated that

The result of the authorities seems to be that although according to the law of the Western schools the widow may have a power of disposing of moveable property inherited from her husband, which she has not under the Law of Bengal, she is by the one law, as by the other, restricted from alienating any immovable property which she has so inherited; and that on her death the immovable property and the moveable, if she has not otherwise disposed of it, pass to the next heirs of her husband : see also Macnaughten's Hindu Law (Edn. 1829) : Vol. 1, at p. 20),

22. It follows, therefore, that a Hindu widow has no power to dispose by will of the corpus of either moveable or immovable property inherited from her husband : Gadadhar v. Chandrabhaga Rai [1882] 17 Bom. 690 (F.B.), Chamanlal v. Ganesh [1904] 28 Bom. 453, Durga Nath Pramanik v. Chintamoni Dassi [1903] 31 Cal. 214, Narasimha v. Venkatadri [1884] 8 Mad. 290, Durga Sundari Sen Gupta v. Ram Krishna Poddar [1877] 5 I.A. 1. And the reason is well put, if I may be allowed to say so, by N.R. Chatterjea, J., in Durga Sundari's case Second Appeal No. 2352 of 1909;

A Hindu widow can also dispose of her stridhan property by will to the same extent as she can dispose of it during her life time; in other words the power of devise is co-extensive with the power of gift. The principle, however, upon which a transfer inter vivos by a Hindu widow with the consent of the. nearest reversioners passes an absolute title to the transferee cannot apply when inherited properties are sought to be bequeathed by will. During her lifetime the widow may relinquish her estate in favour of the next male heir of her husband, the succession is thereupon accelerated, and the reversioner gets an absolute estate. A will, however, can operate only on death, and the interest of a Hindu widow in properties inherited by her ceases on her death, and there is thus nothing left upon which her will can operate. At the time when the will comes into operation she has no right whatever; and she cannot by will dispose of what does not belong to her.

23. Now, upon what principle of Hindu law is a widow entitled to dispose by will of the income of such property? I know of none; indeed, to me it appears that to permit her to do so is to act in violation alike of Hindu law and practice.

24. Bearing in mind that the widow's estate passed to her for support, and not as a gift from her husband, it would, I think, appear to an orthodox Hindu inconceivable that she should be permitted to dispose after her death of property which she was only entitled to enjoy during her life.

25. The very question to be determined was put and answered in Kundrap Singh v. Mohon Lal Khan [1815] 2 Macnaughten's Precedents of Hindu Law 258 which was decided by the Sudder Dewanny Adawlut in 1815. In that case the widow of a childless Hindu zemindar on the day before her death left a will by which she devised to a stranger inter alia

all the property real and personal, with the profits accruing therefrom to which she had succeeded on take death of her husband, together with the profits which had accrued therefrom.

26. It was held that she was not

at liberty to make a will affecting the landed and other property left by her thusband, into the possession of which she came on his death, nor affecting the profits of it, nor affecting her own acquisitions made by means of the landed property to which she had succeeded, or by moans of its profits. As, therefore, the gift or disposition by will of all three descriptions of property abovenamed (viz., landed property devolved on her from her husband, personal property, and her acquisitions made by means of the inherited estate, and its profits) is illegal, no part of that property goes to the donee.

27. This decision, in my opinion, is in consonance with the true conception of a widow's estate in Hindu law. Now, the source of what, with all due deference, I regard as the fallacious doctrine to be found in some of the cases, namely that the profits current or accumulated of property which a widow has inherited from her husband passed to her in her absolute proprietary right can be traced to the difficulty which the Courts experienced in placing a limit upon the proportion of the income which the widow reasonably might expend for her maintenance and charitable purposes. Eventually in Cossinauth Bysack V. Hurro Soondery Dossee [1826] Clarke's Rules & Orders (App. X) 91 and Hurry dass Dutt v. Uppoornath Dossee [1856] 6 M.I.A. 433, it was held that the widow was entitled to a full right of enjoyment of such property for her life, and

it is necessary to show that there is danger to the property from the mode in which the party in possession is dealing with it, in which Case, and in such case only, the Court will interfere.

28. Accordingly, in 1868, when the question arose in Chundrabulee Debia v. Brody [1868] 9 W.R. 584 as to whether a judgment-creditor of the widow or the heir of her husband was entitled to execute a decree for mesne profits that the widow had obtained before her death, Glover, J., observed that

a Hindu widow with a life-interest in her deceased husband's estate would be entitled to make the fullest use of the usufruct of that estate : and it seems doubtful, under the late rulings of the Privy Council whether she could be in any way restrained however wasteful her expenditure so long as she kept within the limits of her income and made no attempt at alienation. If on the contrary she chooses to economize she can during her lifetime give away her savings to anyone she pleases; but if she has left savings undisposed of at the time of her death these would form part of the estate and go with that estate to the next heir of her deceased husband.

29. His Lordship added that

it was never contemplated that she should expend the produce of her estate wastefully or do more than support herself in a decent and proper manner : and that she should leave to her own relatives or convert into her own stridhan the accumulations she might have made appears to me opposed to every principle of Hindu law as applied to widows.

30. In 1874 a case of considerable importance in connexion with issue 1, was decided by the Privy Council, Gonda Kooer v. Kooer Oodey Singh [1874] 14 B.L.R. 159. In that case a widow purchased property out of the accumulated income from her widow's estate, and left by her will 'all the property which she had power to dispose of.' It was held that on her death the property passed to her husband's heirs, Sir Robert Collier observing that

it is true that she made a will in her son's favour, but it contains no specific gift of the property in question and might well have bean intended to apply to any property of her own which my have belonged to her as her stridhan.

31. In 1875 in Mt. Bhagbutti Debi v. Bhola Nath Thakoor [1875] 1 Cal. 104 the parties appear to have bean governed by the Mithila law, and the Privy Council decided that the widow took a life estate in the property in question, not as a widow but under a family arrangement. Sir Robert, Collier, however, observed that

if she took the estate only of a Hindu widow one consequence, no doubt would be that she would be unable to alienate the profits or that at all events whatever she purchased out of them would be an increment to her husband's testate.

32. I think that in that case the rule was laid down too broadly, for a widow may dispose of the income of property inherited from her husband inter vivos; but for the purpose in hand that is immaterial.

33. In 1883 Isri Dut Koer v. Hansbutti Koerain [1883] 10 Cal. 324 was decided by the Privy Council, in which the question was whether two Hindu widows were entitled inter vivos to give to the daughter of one of them property purchased out of the income of property inherited from the husband. Sir Arthur Hobhouse observed that

the question was argued at the Bar as though it were necessary to divide all the property of a widow into two classes; one being her stridhan and the other her husband's estate over which she has the widow's right and no more. But the vary question is whether having regard to the widow's freedom in enjoying her husband's property and to her established right to alienate her own interest in it she has not a kind of property the nature of which must remain undecided till her disposal of it or her death.

34. His Lordship further observed that:

to decide this question it is necessary to examine the authorities, which are by no means in accord. But their Lordships do not treat as authorities on this question the numerous oases cited at the Bar, to show that a widow's savings from her husband's estate are not her stridhan. If she made no attempt to dispose of them in her lifetime, there is no dispute but that they follow the estate from which they arose. The dispute arises when the widow, who might have spent the income as it accrued, has in fact saved it and afterwards attempts to alienate it.

35. His Lordship added that it was not:

possible to lay down any sharp definition of the line which separates accretions to the husband's estate from income held in suspense in the hands of the widow, as to which she has not determined whether or no she will spend it : see also Sridhar Chattopadhya v. Kalipada Chuckerbutty [1911] 16 C.W.N. 106; Bhagabati Koer v. Sahudra Koer [1911] 16 C.W.N. 834.

36. Now, to my mind, it is not altogether clear what the Judicial Committee intended to convey by the last passage that I have cited. Their Lordship stated that they felt the force of Ainslie, J's reasoning on this point, and the relevant passage in Ainslie J's judgment appears to be:

that, if it is within a Hindu widow's power to dispose of the surplus profits from her husband's estate remaining after due provision has been made for the duties which the widow is bound to perform, it must be equally within her power to do so, whether she does it at once as the profits reach her, or whether she allows them to accumulate...I can conceive of no reason for not allowing her to accumulate the necessary funds to buy it, (i.e., property), herself, and give it away. Indeed in this latter case, the reversioner has an advantage, for if the widow happens to die without disposing of the fund, or that into which it may be converted, it will come to him.... Such property never passes as stridhan to the heirs of the widow, but goes, if undisposed of by the widow in her lifetime, to the heirs of the husband.... The fact that unappropriated profits or properties purchased, and not disposed of in the widow's lifetime, do not pass as stridhan may be explained on the theory that when a widow has at her death left money accumulated or property purchased out of surplus profits, and not appropriated to any person during her life, it was her intention to add such money or properties to the estate, and to abstain from exercising her full rights over them : Hunsbutti Kerain v. Ishri Dutt Koer [1879] 5 Cal. 512.

37. I am of opinion that the Judicial Committee did not intend to lay down that:

income held in suspense in the hands of the widow as to which she has not determined whether or no she will spend it.

would on her death pass to the widow's heirs. Indeed, so to hold would be to render the judgment self-contradictory, for such a view is inconsistent with the decision of their Lordships that:

if she has made no attempt to dispose of them (i.e., the profits) in her lifetime, there is no dispute but that they follow the estate from which they arose.

38. In my opinion, the law to be collected from the authorities is to the following effect : that a Hindu widow has a right to the fullest enjoyment of the immovable and moveable property that she has inherited from her husband, but that, except in respect of moveables which, owing to their perishable nature cannot be enjoyed without being consumed, she is only entitled to dispose of the corpus of such property inter vivos for certain restricted purposes, although she may alienate her own interest in the property for the period of the subsistence of her widow's estate. She cannot, however, dispose of the corpus of such property by her will. Further, in fulfilment of the purpose for which the widow's estate was granted to her she is entitled to enjoy the usufruct of the property while she possesses a widow's estate; and so long as she remains in enjoyment of the estate she may spend, or accumulate, or otherwise dispose of, the income that accrues therefrom as she chooses. Prima facie any income that she has not spent will pass on her death to her husband's heirs. But if during her lifetime she has so dealt with the unexpended income that the reasonable inference to be drawn from her acts is that she has disposed of it in a way that is inconsistent with an intention on her part to treat it as part of her husband's estate, such a disposition will be valid and binding upon the reversionary heirs of her husband. On the other hand, if at her death, or when her widow's estate otherwise is validly determined, it appears that she had not already disposed of the income current or accumulated which she was entitled to enjoy while she was alive, such income 'will follow the estate from which it arose', and will pass to the heirs of her husband.

39. In other words, her capacity to dispose of such income is commensurate with her capacity to enjoy it. It follows that she is impotent to dispose of such income by will, for her will speaks from the time of her death, and when she purports by her will to dispose if the income the widow no longer is able to enjoy the property which passed to her for her maintenance as the 'other half of her husband,' and she is then incapable of enjoying the income, whether she had received it in her lifetime, or whether, as in the present case, she never had it in her possession while she was alive. By merely making her will it is obvious that she did not dispose of the property inter vivos or during her lifetime, for she may revoke her will before her death, and it is in this sense, I think, that Sir Arthur Hobhouse referred to the income of her widow's estate as:

a kind of property the nature of which must remain undecided till her disposal of it or her death : (ibid, p. 334)

40. In Hunsbutti Kerain v. Ishri Dutt Koer [1879] 5 Cal. 512 Ainslie J., expressed a tentative opinion that, although accumulations of such income would not pass as stridhan, the widow might dispose of them under her will, but the learned Judge conceded that it would not be easy to reconcile such a view 'with what he believed' to be the universal custom of 'the country.' I go further, for I would add that, in my opinion, so to hold would be to run counter also to the true conception of a widow's estate in Hindu law. I must refer now to two cases which appear to be direct authorities in opposition to the principles that I have endeavoured to explain. Sitaram v. Dulam Kunwar [1918] 41 All. 350, and Rivett Carnac v. Jivibai [1886] 10 Bom. 478. In Sitaram v. Dulam Kunwar [1918] 41 All. 350 one of two widows jointly entitled to a, widow's estate in property inherited from their husband, out of the income of the estate in her hands paid a sum of money due for Government revenue from the sons of the other widow and the sons nephews. She afterwards obtained a decree against the persons for whose benefit the payment had been made, but died before the decree was satisfied. It was held that the heirs of the widow were entitled to execute the decree upon, the ground that the right to realize this debt was 'personal property (not necessarily stridhan)' of the widow who had obtained the decree. The decision in this case is in direct conflict with that in Chundrabulee Debia v. Brody [1868] 9 W.R. 584, and with what I conceive to be the principles of Hindu law, and in my opinion ought not to be followed. In Rivett Carnac v. Jivibai [1886] 10 Bom. 478 the facts were not dissimilar from those in the present ease, for the widow had orally agreed with one Kharva Bhana Dhunji that he should collect the rents of part of the property of which she possessed a widow's estate, and in consideration of receiving the right of collection Kharva agreed to make to the widow certain fixed monthly payments. At the time of the widow's death there were arrears due to the widow from Kharva under the said agreement, which Kharva after the widow's death paid to the husband's heir. It was held, however, that the arrears formed part of widow's estate. In that case, as in the present case, the widow ex-concessis had not disposed of the income in her lifetime, and with all due respect for the opinion of Sargent, C.J., and Farran, J., I think that it ought to have been held that the arrears fell into the husband's estate. Rivet Carnac v. Jivibai [1886] 10 Bom. 478 has been animadverted upon by Beaman, J., in Ganpatrao v. Vaman Sao : (1908)10BOMLR210 , and explained by Mookerjee, J., in Bhagabati Koer v. Sahudra Koer [1911] 16 C.W.N. 834 upon the footing that the parties may have been governed by the Mayukha and the possession of Kharva was in law the possession of the widow whose agent Kharva was. But, with due deference, it surely can make no difference whether the arrears were deemed to have been received by the widow or not, for it was not pretended that she had disposed of them in her lifetime, and unless the decision can be supported under a system of law peculiar to the Bombay Presidency (which the learned Judges did not purport to apply, and which, as at present advised, I should hesitate to affirm) in my opinion that case was not decided in accordance with the general principles of Hindu law, I am, of course, aware of the decisions of the High Court of Madras, of which I think the leading case is Subramanian Chetti v. Arunachelam Chetti [1904] 28 1 (F.B.), in which it has been held that the income of property inherited by a widow from her husband is her stridhan upon the ground that

whether as a matter of common-sense or of legal principle, but one view is possible, viz., that money so received is the absolute property of the worn is descendible as such to her own heirs : sea also Akkaama v. Venkayya [1901] 25 Mad. 351, Sri Vikrama Deo v. Vikrama Deo [1918] 33 M.L.J. 665, Parthanarathy v. Venkatadri A.I.R. 1922 Mad. 457; see however Ayiswaryanandaji v. Sivaji A.I.R. 1926 Mad. 84.

41. Again, in Akkanna v. Venkayya [1901] 25 Mad. 351 it was laid down that

the acquirer of property presumably intends to retain dominion over it, and in the case of a Hindu widow the presumption is none the less so when the fund with which the property is acquired is one which, though derived from her husband's property, was at her absolute disposal.

42. Now, the principles of law applicable to a Hindu widow's power of disposition may be different in Madras from those that prevail in the case of widows governed by the Dayabhaga or the Mitakshara (although it must not be understood that I am satisfied that any such difference exists), but if and in so far as the Madras decisions purport to lay down the above propositions as matters of general Hindu law, with all deference I venture to think that they do not correctly state the law of India.

43. In support of the first proposition two decisions of the Judicial Committee are relied on : Soorjeemoney Dossee v. Denobundoo Mullic [1862] 9 M.I.A. 123 (P.C.) and Sowdamine Dossee v. Administrator General of Bengal [1892] 20 Cal. 433. In the first case it was held that the widow was 'entitled absolutely in her own right' to certain accumulations of income that had accrued after her husband's death. It is clear, however, from the decisions of later Boards that the Judicial Committee have not regarded that decision as a statement of the general law binding upon them, and have resiled from it. Indeed, it has been pointed that

there were no questions in that case as to any conflicting rights between her heirs and the reversionary heirs of her husband,

and

their Lordships cannot, therefore, regard this case as a conclusive, or even a direct authority upon the question : per Sir Robert Collier in Gonda Koer v. Koer Oodey Singh [1874] 14 B.L.R. 159

while in Isri Dut v. Hansbutti Koerain [1883] 10 Cal. 324 Sir Arthur Hobhouse observed that in Sorjeemani Dasi's case [1862] 9 M.I.A. 123 (P.C.)

all that was done was to recognize her right to the full usufruct and control of the accumulations : See also per Jackson, J., in Puddomonee Dossee v. Dwarkanath Biswas [1876] 25 W.R. 335.

44. In Sowdaminee Dossee v. Administrator-General of Bengal [1892] 20 Cal. 433, as pointed out by Lord Shand, in delivering the judgment of the Board,

the circumstances in which she (i.e., the widow) obtained possession of this fund were very peculiar.

45. The widow had received the accumulations of the income that had accrued since her husband's death under a dead of arrangement by which a family dispute was settled. During the dispute the widow claimed this fund as her absolute property, and the deed of arrangement proceeded upon that footing, the question before' the Judicial Committee being whether in the circumstances the fund was to be regarded as an accretion to the corpus of the husband's estate. Lord Shand stated that she claimed this income as her absolute property, and their Lordships can see nothing in the language of the deed of agreement, or in the transaction with Sham Churn Mullick, which can support the appellant's contention that she agreed to receive this income as capital in which she should acquire only the estate of a Hindu widow.

46. Their Lordships, therefore, held that the fund

was received as income which, under the arrangement with Sham Churn Mullick, was her absolute property.

47. As I understand the decision in that case their Lordships were content to determine the issue that was before them, namely, whether the fund was to be treated as an accretion to the corpus of the husband's estate, or whether she received it as income to which under the deed of arrangement she obtained an absolute right : see Mt. Bhagbutti Daee v. Chowdry Bholanath Thakoor [1875] 1 Cal. 104, and did not affect to determine any general principles relating to the power of disposition possessed by a widow under the Hindu law.

48. The second proposition, namely, that a Hindu widow must be presumed to intend to retain dominion over the income of property inherited from her husband follows as a corollary to the first, and in support of it reliance is placed upon the following dicta of Lord Phillimore in Raja of Ramnad v. Sundara Pandiynsami A.I.R. 1918 P.C. 156:

Their Lordships think the answer to this is that a widow may so deal with the income of her husband's estate as to make it an accretion to the corpus. It may be that the presumption is the other way. A case his been cited to their Lordships which seems so to say. But at the outside it is a presumption and it is a question of fact to be determined, if there is any dispute, whether a widow has or has not so dealt with her property.

49. Reference appears to have been made in the course of the argument of counsel for the appellant to the case of Akkanna v. Venkayya [1901] 25 Mad. 351, but at the hearing before the Judicial Committee the question that called for consideration was whether, having regard to the form of the pleadings and the course of the proceedings, the plaintiff was entitled to maintain the suit for arrears of income. In my opinion their Lordships did not pretend to consider, much less to decide, whether the proposition of law for which Akkanna v. Venkayya [1901] 25 Mad. 351 had been cited was correct; and it must not be taken that Lord Phillimore in that case intended to throw any doubt upon what I think now is clearly established, that the unexpended income derived from property inherited by a widow from her husband will follow the corpus, and on the death, of the widow will descend to the husband's heirs, unless it is proved that daring her lifetime the widow had disposed of it in such a way that the true inference from the facts is that she intended to treat it as though it were her own property. Naba Kishore v. Upendra Kishore Mandal A.I.R. 1818 P.C. 156 and cases cited supra.

50. As I apprehend the matter, however, the important circumstance to boar in mind in this connexion is not the nature of any presumption that may arise, but that, the validity of a widow's dispositions is made to depend upon her intention to be inferred from the way in which she has treated the income. But if that be the test, (and in the present state of the authorities I am content to assume that it is) it is manifest that a widow does not receive the income as her own absolute property. For if she obtains an absolute proprietary title to the income and profits of the property as the heiress of her husband how can her intention affect the course of succession or the validity of her dispositions? If it is her stridhan it is her own absolute property with which she can deal as she chooses, and which, if undisposed of, at her death will descend to her hairs Her intention is utterly immaterial, for the absolute title passed to her, not because of any thing that; she intended or did, but because she was the heiress of her husband. It is settled law, however, that if such Unexpended income has not been disposed of by the widow in her lifetime it will follow the corpus of the estate, and descend, not to her heirs, but to the heirs of her husband, and that the validity of her dispositions inter vivos depends upon whether the true inference to be drawn from her treatment of the income is that she intended that the property should not form an accretion to her husband's estate. For these reasons it is clear, to my mind, that such income is not and cannot be her stridhan, and is not property to which by inheritance she obtained an absolute proprietary title. Bearing in mind what I regard as the cardinal factor in the situation, that a widow was intended to receive a right merely to enjoy the usufruct of her husband's property during the subsistence of her widow's estate, I am clearly of opinion that when she ceased to possess the capacity to enjoy the income she lost the power to dispose of it, and, as her will must needs speak from her death, that a Hindu widow is incompetent to dispose by will of the income derived from her husband's estate, whether such income had been received by her during her lifetime or had accrued due to her at the time of her death. It becomes unnecessary, therefore, to consider issue 2 whether the arrears of rent in suit passed under the terms of Priyatama's will to the plaintiff as her executor. But as the issue has been argued fully and strenuously it is desirable, I think, that I should state the opinion that 1 have formed upon it.

51. Now under the will Priyatama left to the plaintiff as the sole executor 'the whole of my properties and moneys of which I shall die possessed.' By a declaration of 7bh September 1904, Priyatama had expressed the intention

to deal with the said above mentioned properties, (i.e., certain immovable properties which this suit does not affect) and money including the said annual rent of Rs. 15,000 payable to me under the terms of the lease absolutely and independently of my husband's family, and so as to debar anyone after my death from claiming the said properties and moneys as reverting to the estate of my husband, and that I propose to and shall by will or deed dispose of the said properties and moneys in such manner as I shall consider proper.

52. At the commencement of her will,

after specifically referring to the said properties and annual income and the declaration of 7th September 1904, Priyatama left 'the whole of my properties and moneys of which I shall die possessed' to the executor of the will upon certain trusts.

53. Having regard to the provisions of the will it cannot, I think, reasonably be contended that the arrears of rent in suit formed part of the 'properties' of the testatrix, but the question is, 'were the arrears 'moneys' of which she died possessed? Now, 'money' is a more comprehensive term than 'cash,' Sarojini v. Gnanendra [1915] 23 C.L.J. 241. As long ago as 1725 it was held to mean 'ready money and money due' and, having regard to the terms of the will then under consideration to include

arrears of rent, since these must be looked upon by all the rules of construction to be Mrs. Shelmer's money at the time of her death per Baron Gilbert in re Mary Shelmer's will (39).

54. The rule to be drawn from the authorities is that prima facie 'money' means moneys in hand or receivable at call, but as 'money' is a term of elastic connotation it will receive a wider or more restricted construction according to the context in which it is found, and the intention of the testator to be collected from the will as a whole : Rogers v. Thomas [1837] 2 Keen. 8, Langdale v. Whitfeld [1858] 4 K.L.J. 426, Collins v. Collins [1871] 12 Eq. 455, Byrom v. Brandreth [1873] 16 Eq. 475, Re Cadogan [1883] 20 Ch. D. 154, in re Townley [1884] 53 L.J. Ch. 516. In the present case I have no doubt that Priyatama intended that the arrears of rent in suit should be included in the expression 'moneys of which I shall die possessed,' and that such arrears purported to pass under the ft ill to the plaintiff as executor. But, as I hold that Priyatama was not competent to dispose by will of the sums in suit the claim fails, and the suit is dismissed with costs.


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