পাতা:ব্যবস্থা-দর্পণঃ প্রথম খণ্ড.djvu/২১৫

r ة . هم میس تنگی - . . . نتگنشr * حتة . ه - . . تحد - - - عم . - - orke'Präeipal'suads#&Amethowas, upon these grounds; sitisfied that the plaintiff was entitled to bé placed in possession of the operties sued for." There having been waste' and injury by Kumāri 10ebi, and she having cessed too live with her husband's family, she was declared te be entitled only to maintenance from the plaintiff.”: * * - Judgment—The speenant new before us, in the purchaser, at a sele in execution of a decree against a Hindu widow, of her life interest in landed property belonging to her husband's estate, which devolved to her in succession upon his death. . . . . • , a * * _ There is no proof on the record, that the debt for which the sale took place was other than a personal debt of the widow, or that that debt was, in any way, incurred for the purposes of her necessary maintenance. The essential point for decision, therefore, is whether a Hindu widow in Bengal possesses such a łłfe interest in the estate left by her husband, as is capable of transfer by her own assignment, or by seizure for her debts, independently of the necessities of her maintenance, or of the performance of any duty in regard to her husband, as of acts designed for his spiritual benefit, or of the payment of his debt. z-adశః appear, upon this point, to be distinct and conclusive against the claim of the appellant. Sir W. Macnaghten, (Hindu Law, pp. 19, 20,) states his opinion that a widow * can be sonsidered in no other light than as a holder in trust for certain uses;’ and again, in a note furnished by him to the judges of the Supreme Court (see Morley's Digest, volune II. part 2, pp. 154, 155,) he has observed :-A widow “ has no unlimited proprietary right over any part of her husband's property, but merely a general usufructuary right over the whole indiscriminately.' It is clear, therefore, that she cannot convey the whole in perpetuity ; but the deed by which she conveys it is void ab initio as to the sale ; nor can it convey the interest nihich she possesses, which (independently of its not being transferable) is an interest of a totally different nature from that of proprietary right. There is also an elaborate review, in a judgment of Sir E. H. East, of 11th August 1819, (Morley's Digest as above, pp. 198 to 219,) of the whole law in regard to the rights of widows over estates devolving to them from their husband. In this, though he had not occasion to refer specially to the question of whether a widow's life interest 21s, or is not, cap e of transfer, he yet distinctly implies that a husband's property passes to his widow only for oser personal use and enjoyment. In Elberling's Treatie on Inheritance, &c., the text of the Dayabhaga and Dayakrama Sangraha, and the decisions on all parts of the subject have been carefully collated. He states their result, as follows :- Generally, the widow cannot make gifts, or sell, or mortgage the property; but when a sale or mortgage becomes recessary for any indispensable duty, religious or secular, or for her maintenance, it is valid; and whenever gifts are fhade, or the property is sold or mortgaged, for the spiritual benefit of her husband, it is valid, because the heir takes the wealth for that purpose, and not for his own benefit. The payment of his debts is a moral as well as a legal duty, &c.;’ and, expressly to the present point :—“As the life interest is only given her for a special purpose, viz. for her maintenance and for the spiritual benefit of her husband, she cannot even transfer the use * or the possession of such property during her lifetime : her right is absolutely personal.” He refers, in a note, to an opinion given by the law officers of this Court in the case to which Sir E. H. East's judgment, before mentioned, referred, to the effect, that gifts by a widow for other than an allowable cause might be valid as against herself, but not as against her husband's heirs. In the present. suit, the party reclaiming against the transfer of the widow's life interest, is her nephew, the next heir, upon her demise, to her husband. We are of opinion, upon these grounds, རྔུ་མཚན་ * Sir T. Strange..says *also, (vol. 1. p. 246.) with respect not only to what she may have inherited from her husband, but to its pulated savings also, hor (a widow’s) daty is to regard herself as little more than tenant for life, and trustee for the sesshair.of property opossed ; being (as already intimated) restricted from aliening it by her solo independent act, unless for necessayssinistano: srpurposes beneficial te the deceasod: ь я -- - - -- • ** . W .