Authored By : Richard Garth, Loftus Richard Tottenham,Mitter, Henry Thoby Princep, Richard Garth, James Quain Pigot

Richard Garth, C.J.

1. The only difficulty, if there is any, which we have todeal with in this case, arises from the anomalous character of a Hindu widowsinterest. I have no doubt that Mr. Justice Dwarkanath Mitter was perfectlyright, in the Full Bench case of Kery Kolitany v. Mooneeram Kolita 13 B.L.R. lin describing that interest as having been originally a mere trust for thebenefit of her deceased husband. But it has been found so impossible inpractice to carry out that idea, that this Court, as well as their Lordships ofthe Privy Council, have for many years past considered and treated her estateas an absolute one, subject only to certain conditions.

2. In the case of Phool Chand Lall v. Rughoobuns Suhaye 9W.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 forlife, 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 husbandupon 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 obviouslyincorrect to speak of her "surrendering" her estate (which is theexpression often used) to the reversionary heirs of her husband.

4. A surrender, strictly speaking, can only be made by onewho has a particular estate, (such as an estate for life), to the person whohas the reversion, or remainder immediately expectant, on the determination ofthat estate.

5. What is usually therefore called a "surrender"of a Hindu widows estate is more properly a relinquishment of it in favour ofher husbands heirs. If she died a natural death, those heirs would succeed; orif she were to become a byragee, or otherwise die a civil death, the resultwould be the same. And as I take it to be clear that when her husband died, shemight, if she had so pleased, have disclaimed her estate, there would seemnothing wrong or objectionable in her relinquishing her estate at any time infavour of her husbands heir for the time being, after she had once acceptedit.

6. But there is no concealing the fact, that although such arelinquishment may be made by a widow in perfect good faith, and even undersuch circumstances, as to be a meritorious self-sacrifice, it is neverthelesspossible and, indeed, it not unfrequently happens, that a widow who is anxiousto turn her husbands estate into money, may arrange with the next heir of herhusband for the time being, to alienate the estate to some third person fortheir 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 thehusbands family, so that the person who would be the next male heir at thewidows death, is virtually deprived of his rights.

8. But, if it is once established, as a matter of law, thata widow may relinquish her estate in favour of her husbands heir for the timebeing, it seems impossible to prevent any alienation, which the widow and thenext heir may thus agree to make. And it seems equally impossible to deny, thatfor a long series of years this Court has treated and considered suchalienation as lawful. See Shama Soonduree v. Shurut Chunder Dutt 8 W.R. 500Jackson 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 sittingalone, but was appealed under the Letters Patent and confirmed on appeal by SirRichard Couch and Mr. Justice Ainslie--Letters Patent Appeal 1990 of 1873.]

9. Besides these reported cases, which represent a longcurrent of authority in this Court, there are also several unreported cases tothe same effect; and the doubt which has arisen in later days is not so much asto the correctness of these authorities, as upon the question whether aconveyance 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 aconveyance by them both to some third person.

10. To allow the widow to relinquish her estate to the nextmale heir of her husband, is one thing; but to allow her to sell the wholeinheritance, without any legal necessity, merely with the consent of the nextmale 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 questionfor the first time, I should have great doubt whether the mere consent of thenext heir to an absolute transfer by the widow ought to give such effect tothat transfer, as to make it valid as against the person who may be the heir ofthe husband at the time of the widows death. It would, of course, bind theperson so consenting to it, and all persons claiming under him, but whether itought to bind any other heirs of the husband is another matter.

12. But it seems to me that there is such a long course ofauthority in this Court in favour of both propositions that we cannot, andought not, at the present day, to decide the contrary see Rajbullub Sen v.Oomesh Chunder Rooz I.L.R. Cal. 44 Jackson and Tottenham, JJ. and TrilochunChuckerbutty v. Umesh Chunder Lahiri 7 C.L.R. 571 Peinsep and Maclean, JJ.

13. We must not forget, that upon the faith of theseauthorities many thousands of estates have been bought and sold in Bengalduring the last twenty years; and I think, that we should be doing a grievouswrong to the purchasers of those estates, if we were to overrule the law thuslaid down by this Court for a great many years, and so disturb the titles whichhave been acquired upon the strength of that law.

14. I think, therefore, that the question referred to usshould be answered in the affirmative; and that the appeal should be dismissedwith costs. I also think that the plaintiffs should pay the costs of thisreference.

Loftus Richard Tottenham, J.

15. I concur in this conclusion, upon the ground, that along course of decisions seems to me to sustain it, and that it would be unjustto throw a cloud now upon titles acquired by virtue of those decisions.

Mitter, J.

16. I am also of opinion that the question referred to usshould be answered in the affirmative. Whatever conflict there may be upon thequestion whether a Hindu widow may sell the whole inheritance without any legalnecessity, merely with the consent of the next male heir, there is no conflictin the decisions, since the case of Jadomoney was decided in the late SupremeCourt of Calcutta, upon the question whether the relinquishment by a Hinduwidow of her estate to the next male heir of her husband is valid or not. Suchrelinquishment by the widow has been held for a long series of years to bevalid. It would be unjust now to disturb a rule of law settled by a long courseof decisions. But, if the widow is competent to relinquish her estate to thenext male heir of her husband, it follows, as a logical consequence, that shecan alienate it merely with his consent without any legal necessity. I entirelyconcur in the reasons given in the case of Mohunt Kissen Geer v. Busgeet Roy 14W.R. 399 to show that the one proposition follows as a logical consequence ofthe other.

Henry Thoby Princep, J.

17. After hearing the arguments in this case, I am confirmedin the correctness of the opinion expressed by a Division Bench, of which I wasa member, in the case of Trilochun Chuckerbutty v. Umesh Chunder Lahiri 7C.L.R. 571. Their Lordships of the Privy Council in Rajluckhee Dabea v. GokoolChunder Chowdhry 13 Moo. I.A. 209 (228) state that "they do not mean toimpugn those authorities which lay down that a transaction of this kind (a deedof gift) may become valid by the consent of the husbands kindred, but thekindred in such case must generally be understood to be all those who arelikely to be interested in disputing the transaction. At all events, thereshould be such a concurrence of the members of the family as suffice to raise apresumption that the transaction was a fair one, and one justified by the Hindulaw.

18. I do not understand this to mean, that the consent ofall the reversionary heirs must be obtained, but, that as laid down in the caseof Jadomoney Dabee v. Saroda Prosono Mookerjee 1 Boul. 120 the consent of allthose of equal or superior degree is necessary. But since the decision of thecase of Jadomoney it has been settled law in Bengal that a Hindu widow byrelinquishing her rights in favour of the heir to her husbands estateaccelerates his inheritance, and that the effect of a conveyance by her andsuch 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 otherwiseafter a series of decisions of our Courts for about thirty years, unless theopinion of the Privy Council were expressed in clear and unmistakeable terms.

Richard Garth, C.J. (for James Quain Pigot, J.)

21. I am authorized by Mr. Justice Pigot to say, that,although he considers that the principles upon which this decision is foundedare open to great objection, he is content to waive those objections inconsideration of the view taken by the rest of the Court (who have had moreexperience than himself on the Appellate Side), that to decide otherwise wouldhave the effect of disturbing a great number of titles.

.

Nobokishore Sarma Royvs. Hari Nath Sarma Roy and Ors.(13.09.1884 - CALHC)