1. This is a reference under the proviso to Section 113, C. P. Code, by the learned Senior Subordinate Judge of Nahan, and it has been made in the following circumstances.
2. A Hindu widow made a sale of property inherited by her from her husband. The reversioners thereupon brought a suit for a declaration that the alienation is not binding on the reversion. The widow pleaded, 'inter alia', that the Hindu law or custom which imposed restrictions on her right of alienation was inconsistent with the fundamental right of all citizens to dispose of property under Article 19 (f) and therefore void under Article 13(1) of the Constitution of India. The learned Judge has referred the case for the opinion of this Court on the point as there exists no precedent of this Court or of the Hon'ble the Supreme Court, his own opinion being in favour of the widow's contention.
3. I have heard learned counsel for the parties and am clearly of the opinion, that the plea taken by the widow is quite untenable. The learned counsel appearing for her confined his argument to a citation of the aforesaid provisions of the Constitution. He also cited Article 15 of the Constitution and argued that the restriction on the widow's power of alienation further amounted to discrimination on the ground of sex alone.
4. The estate taken by a Hindu widow in property inherited by her from her husband is a limited one, called the widow's estate. There is no restriction whatsoever on her right of disposal of her life interest in such property, and that is not the complaint of the present widow. Her complaint is that there should be any restriction, as no doubt there is under the Hindu Law and certain customary law, on her power of disposal of the corpus of the property except for legal necessity or for the benefit of the estate or with the consent of the next reversioners.
5. The short answer to the widow's contention is that one cannot complain of restriction on the exercise of a right which is nonexistent . The entire conception of the rights of a Hindu widow in the property inherited by her from her husband is based on the following texts of the Katyayana: 'The husband's (daya) gift (or heritage), a woman may deal with according to her pleasure when the husband is dead; butwhen he is alive, she shall carefully preserve it, or if she is unable to do the same, she shall commit it to the care of his kindred.' 'A sonless (widow) keeping unsullied the bed of her lord and abiding by her venerable protector, shall, being moderate, enjoy until death; afterwards the heirs shall take.'
6. These texts have been interpreted as authorities in support of the restricted rights taken by a Hindu widow in the property inherited by her from her husband. The restrictions on her power of alienation are inseparable from the very estate taken by her, so that it has been held that even if there be no reversioners she is precluded from alienating the corpus of the property without legal necessity, and if she does so the alienation can, in the absence of reversioners, be set aside at the instance of the Crown taking the property by escheat. 'KUNDAN v. SECRETARY OF STATE', AIR 1926 Lah 673.
7. It follows therefore that the aforesaid restrictions come into operation only if and when a Hindu widow attempts to alienate more, than what she has got by inheritance. That being so the restrictions, if any, exist as regards the rights which she inherits in the property, and not as regards her power off disposal of that property. There is no infringement of the right of disposal of property under any of the aforesaid Articles of the Constitution of India. And no provision of the Constitution has been cited against the inheritance of the said limited estate by the widow, nor is that the basis of any plea taken by the widow in the present case. I therefore hold that the restrictions on the widow's power of disposal of property do not amount to the infringement of any of the fundamental rights under the Constitution of India.
8. Let the record be returned to the learned Senior Subordinate Judge of Nahan withthe above opinion on the question referred byhim.