VYAVASTA*.][XA: RI PANA 丑2雳 Mr. Colebrooke, in combatting Jagannātha's illustration “that the gift by a widow should not be held void, while that made by a daughter, before whom she is a preferable heir, is valid,” observes, that “ according to Ji Mu'ta VA HANA's doctrine, which extends the restrictions to daughters and mothers, as well as to wives, the daughter is precluded from giving away an estate which comes to her from her father, and the inother, one which comes to her from her sons. It has actually been adjudged by the Sudder Dewanny Adawlut in the case of a nother.” . In order, therefore, to avoid gross inconsistencies and contradictions, and yet to reconcile these doctrines with each other, I can find no better way than to consider her as having the entire right of property vested in her, both in the movable and immovable estate; for there is no distinction between them taken in the books in respect of the husband's cstate devolving upon her as heir”, as there is in the case of male succession to ancestral property, and as there is, also, in respect of real property given to her by her husband in his life time, which she is declared incapable of alienating from his heirs, as she may alien the personal property so given. But that she is legally prohibited from wasting the property so vested in her, and cannot make away with it except for certain allowable and declared purposes, without the consent of her husbands's next inale heir ; and further, considering that, even in the use and enjoyment of the property so vested, she is religiously and morally enjoined to use moder ation, and to take the advice of her husband's kindred in her manner of living, but is under no legal disability if she do not take or follow such advice. It is not alleged that there was any decision on the point before the Kårfarnā’s case, which was decreed by this Court in November 1812, the form of decrees before that having been to decree to the widow the movable and immovable property of her husband generally, without distinguishing between the two, or stating the quantity of the estate decreed in either : that was the sirst cause in which the realty was decreed to the widow for life, and the personalty absolutely. The complainants I’shwar Chandra Karfarumã and Nārāyani Däsi filed their bill for an account and partition against Gobinda Chandra Korfarmiń and others ; and in that case Rām Mani who was the widow of Sūrat Chandra, was, upon the partition, decreed entitled to two shares, one in her own right as widow and another as heir of her son, who had died after his father ; and she was decreed a life estate in the realty, and an absolute in the personalty, as in the present decree. This decision is stated to have been made upon great con sideration, after much argument, and in conformity with the opinion of the Court. Pandits ; and at first sight it appears as if this Court had expressly adopted the doctrine of the Ratna kara and the Chinta mani as applicable directly to Bengal. But the distinction which has been taken, that that was a case of partition, and not of simple succession, supported as that distinction is by the opinion of our own Pandits, which would reconcile that decree with the opinion of Mr. Colebrooke, and with the opinion of the Sudder Dewanny Pandits, upon the doctrine of the widow's succession, has induced me, after much hesitation and anxious investigation, to conclude that the Court decided the Kárfarmá's case upon the ground of partition, and not of simple succession. One of the two Pandits who advised the Court in that case is still in his office; and, to questions put to them upon this point, they have both answered thus : — 6th. Q. Is there any difference in the quantity of interest which a woman takes in property by partition with sons, and that which she takes by the death of her husband without issue 2 They first answered ; “There is no difference in the interest so taken.” But they immediately afterwards corrected themselves, and stated thus :- - * A. ** There are different opinions om this subject. . Some Pandits affirm that property obtained by a woman sharing with her sons is to be considered as stridhana, separate female property, as her own, over which she has perfect uncontrolled authority. There are opinions both ways. We are of opinion that the most eligible mode would be to. consider it stri dhana, it being anore in the nature of a gift than what she succeeds to in her own right.”
- “The Court Pandits indeed, in their answer to the seventh question. seem to put movable and juimovable property upon the same footing, -and for ony part, so far ason widow is concerned, I have been unable to trace nny distinction between them in the Hindu law. I took great pains to come at the best insornuation whicli was uttuinable, during the time we were considering this question after having examined the Pundits in court ; and I was satisfied at last, that in the case of a widow, there is not any distinction made by the IIindu law, belween imovuble and immovable property in her lannds. Macm, Cons. II. I. p. 18. - -
