পাতা:ব্যবস্থা-দর্পণঃ প্রথম খণ্ড.djvu/২৬১

VAYAV ASTH.A. DARPANA 135 of the property, but that she is only entitled to enjoy it according to the rights of a Hindu widow, which rights it appears to me to be absolutely impossible to define—I mean the extent and limit of her power of disposing of it; because, tt must depend upon the circumstances of that disposition, whenever such disposition shall be made, and must be consistent with the law regulating such dispositions. Under these circumstances therefore, we are of opinion, that the decree appealed against ought to be affirmed, resting upon the principle I have stated, which, as it appears to us, is the proper principle to be adopted in deciding this appeal. This case when argued was heard by a very learned person who was then present, and who is unfortunately absent to-day, I mean the Chief Baron of the Court of Exchequer, and I have great satisfaction in stating, that he concurs in the decision I have pronoun ced, namely, that this appeal oright to be dismissed, and the decree appealed against affirmed. Clarke's Reports, pp. 91–101 ; Montriou's Cases of the Hindu law, pp. 495—507. Alluding to the case of IIara Sundari, Sir Francis Macnaghten very justly observes :“If these females have a life interest only, in movable property, the probable consequences of committing it to their custody ought to be seriously considered. The order which had been made for the delivery of her husband's personal property to Hara Sundari Dási, did not by any means acknowledge her right to dispose of it at her own pleasure. It is admitted by all authorities, living and dead, that her husband's relations are entitled to it at the expiration of her life. If it be put into her hands, it will be liable to waste, and the acknowledged rights of her husband's family may be defeated by her weakness or her will. I cannot therefore but think that an appeal against the order which directed a dilivery of the principal to her, was as proper ; as an appeal against that, which directed the accumulations to be paid to her, was unreasonable. That it has been usual to give a widow, or a mother, possession of the property to which she may succeed, must be admitted—and that the money of her husband's estate, would, had it not been for the appeal, have gone into the hands of Hara Sundari Dási, is certain. Yet the right of her husband's heirs to it after her death, is. indisputable, and the justice of restraining her from waste, is a necessary consequence of this right. What then is to be done f Possession will enable her to do all the mischief, before any restraint can be applied. It must not be forgotten that the discipline of Hindu women who have lost their husbands, has been greatly relaxed. Formerly a widow lived with the relations of her husband; with the very persons entitled to the property after her death. This was an effectual control over the expenditure, and a sufficient security for the expectants. We are still told, that the family house is her proper abode ; that she ought to live with her husband's relations ; but that she may live elsewhere without penalty, provided she does not change her residence for unchaste purposes. Her purposes are known to herself alone ; and her practices will be regulated by her inclination. Freed from restraint, sorrounded by parasites, possessing wealth, exposed to temptation,-unused to liberty, ignorant of the world,—and conceiving all happiness to consist in the indulgence of her own immediate desires, can it be hoped or believed, that she will prove a faithful trustee for the heirs of her husband, or that they can have any thing in the nature of security for a succession to their rights * For certain purposes, a reduction of the capital is said to be allowed. Be it so. Is this to be left to the will of her who has no discretion — or the discretion of those who have an interest in her prodigality ? I do not recommend innovation ; far from it. I desire to adhere to the law in its substance ; and to give every body that which he is entitled to claim ; but if law be not adapted to times, it will be lost both in spirit and in principle. If one be entitled to the inmediate, and another to the ultimate, enjoyment of property, it is surely reasonable and just that they should have equal protection according to their several rights. It is admitted that the widow has a right, for life, to the produce of her husband's property. Supposing that property to consist of money, the question is, has she or has she not, a right to possession of the principal o Let us say that she has. It then becomes us to look baek to the time when this right was conferred, and to consider the effect of the law by which it was accompanied. If we do so, we may be satisfied that the right was but nominal that the possessor was under control ; and that the expectant was invested with a Power sufficient for