vyAvAsTHA-DARPANA 99
- The essentials part of the judgment passed by the Court (present Peel, C. J.) is as
fellows. The objection is mainly based on the nature of the estate of the Hindu female, when heiress, and on that of the next in succession. The latter is not a vested estate in . remainder. It is a contingent interest. The heiress takes as the term implies by devolution of the property on her by act of law, and not by gift or act of a prior owner: she has no power to alienate : the estate except for certain purposes : her disability is general, her ability exceptionable. Sir William Macnaghten has described it as a trust estate, probably not meaning to use the phrase in a strictly technical sense: he says she is a “holder in trust for others, so much so that they who have the reversionary interest have clearly a right to restrain her if she commit waste.” This accords with the opinion of certain of the pandits stated by Lord Gifford in his judgment in the Privy Council hereafter referred to. If the heir in succession could not sue merely because he had not a vested estate in remainder, no one else could sue, and it would follow that a Hindu widow, who cannot commit waste, who is restrainable quodamn modo if she do, might proceed to violate her duty to the estate, tỏ exceed her powers, to pass the limits imposed on her by the law, to the injury of the next in succession, who must remain a passive and remediless spectator of the wrong done, while having the nearest interest though not a certain one of succession. This would be little consistent with the maxim of a legal řemedy for every wrong. How idle would it be to talk of a restraint which the law would not enforce : In the case of Kāshi Nāth Basāk and Ramá Nāth Basāk versus Hara Sundari - TXasi and Kamal Mani Dási, (Clarke's Reports, p. 91,) Lord Gifford, in his judgment mentions an opinion of certain pandits, that the female Hindu heir may be restrained from abusing her power of disposition. This opinion is supported by the authority of all the text writers : it is most consistent with the general principles of the Hindu law as to females ; and also perfectly consistent with reason ; for surely there ought in reason to exist somewhere the power of preventing an alienation against her duty by one whose power of alienation is limited by the law, and who owes a duty to those in succession to preserve the corpus of the estate. Yet of what value would be a power of prevention, to which no court of justice would give effect f The Court therefore has no difficulty in coming to a decision that the suit is not demurrable on the general ground. It remains to be considered whether the bill states a sufficient case of waste, or misdealing analogous to waste. No doubt the remedy should not extend beyond the mischief. - A bill filed by the presumptive heir in succession against the immediate owner who has succeeded by inheritance, must shew a case approaching to spoliation, must enable the Court to see that there is probable ground for apprehending that, unless an injunction be granted to restrain some threatened or impending act, ultimate loss to the heirs who may come into possession by succession will ensue. It is not enough to make out that some gift has been made or some disposition taken place, or that such is about to be made or to take place, which the law would not support. The estate of the female owner, her own personal estate, might be large, and adequate to repay ten times over the alleged spoliation, and there might not be the remotest prospect. of loss ; and the thing alienated night have no specific peculiar value. * - The cuse made by this bill is one which does not appear to me to be at all a probable one : indeed there is one part of its statement apparently inconsistent with the case.of collusion ; a statement, namely of the existence of dispntes prior to the filing of the bill. The account which the plaintiff asks, he is clearly not entitled to : they have nothing to do with the suits of the parties, or their mode of dealing with them, nor with the consent decrees : nor whether they are proper decrees ; nor whether the Court was deceived or imposed upon by the parties to the suit, except as these matters inay be evidence of the animus of the alienation. They have no title to complain of Raghu Mani's being
