GAJANAN YESHWANT KALE Vs. PANDURANG GOVIND CHITHADE

JUDGEMENT

(1.) THE first question referred to the Full Bench is: "whether property inherited by a woman from her parents is saudayika or non. saudayika stridhana - This question assumes that such property is stridhana and the point which it seeks to raise is whether it is such stridhana as would be within the absolute dominion of the woman who inherits it, so, that she can dispose of it in any manner she likes, either by an act inter vivos or by will.

(2.) THE development of Hindu law on the question of woman's right over her property bears eloquent testimony to the fact that Hindu law was never static and rigid, but Was always elastic and progressive. It never rested itself blindly on ancient Sutra or Smriti texts, but took cognisance of new customs and beliefs growing in Hindu society and made changes and adjustments in its provisions from time to time so as to bring them in line with the social conscience of the community. For this purpose, the Hindu commentators pressed into service all their ingenuity and relied on several rules of interpretation so as to justify their wider interpretation of the ancient texts to which they owed allegiance.

(3.) IN Bhagvanlal v. Bai Divali, 27 Bom. L. R. 633 : (A. I. . R. (12) 1925 Bom. 445), this question was raised in a somewhat different form. A Hindu female who had lived separately from her husband for nearly thirty years had made a will bequeathing the property which she had inherited from her father without the consent her husband. It was held that though the principles of Hindu law as stated in Bhau's case, (30 Bom. 229 : 7 Bom. L. R. . 936) with regard to the powers of disposition by a wife over her non. saudayika stridhana could not be challenged, the facts under which the will in question was made took the will outside the provisions of the Sanskrit texts and the decision in Bhau's case, (30 Bom. 229 : 7 Bom. L. R. 936 ). Macleod C. J. observed that having regard to the fact that the testatrix had stayed away from her husband for over 30 years, the husband had "lost all rights of control over her, so as to lose also the rights to validate any disposition which she might make by will of property inherited by her from her paternal relations; "and in support of this conclusion the learned Chief Justice said that he had no doubt that his decision was in consonance with the views which prevailed at that time in the community. The same question was raised again before Beaument C. J. in Sarubai v. Narayandas, 45 Bom. L. R. 473 : (A. I. R. (30) 1948 Bom. 224 ). Sir John Beaumont, how ever, refused to apply the decision in Bhagvanlal's case: (27 Bom. L. R. 633 : A. I. R (12) 1925 Bom. 445) to the will before him, though the said will had been made by a testatrix who had not lived with her husband for 20 or 25 years. He held that for however long a period a wife has lived separately from her husband she is still a married woman and may at any time go back to live with her husband, and he was reluctant to accept the contention that the rule in Bhau's case, (30 Bom. 229 : 7 Bom. L. R. 936) should be applied only if and whilst the female is living with her husband as his wife. It may be pointed out that the correctness of Bhau's ruling (30 Bom. 229 : 7 Bom. L. R. 936) was not challenged either in this case or in Bhagvanlal v. Bai Divali, 27 Bom. L. R. 688 : (A. I. R. (12) 1925 Bom. 445 ).