HARI NARAYAN JOG Vs. VITAI NARU BHOSLE

JUDGEMENT

(1.) Both the lower Courts have held that where a Hindu in this Presidency dies, leaving him surviving two or more widows as heirs, none of them has the right to alienate her life-interest in the property without some necessity justifying the alienation or without the consent of her co-widow or co-widows, as the case may be. And in support of that view they rely upon certain passages in Mr. Mayne's Hindu Law and Usage, Sixth Edition, Section 554, page 732. The passage runs as follows :- On the principle of joint tenancy with survivorship, no alienation by one widow, even though she is the manager at the time, can have any validity against the rights of the others without their consent or an established necessity arising under circumstances which rendered it impossible to seek for consent. This means that such an alienation cannot bind the interest or right of the other widow or widows-it does not mean that it cannot bind the interest of the widow alienating. Mr. Mayne, in support of the proposition above quoted, cites the ruling of the Privy Council in Sri Gajapati Radhamani V/s. Maharani Shri Pusapati Alakarajeswari (1892) L.R. 19 I.A., 184 where their Lordships do not lay down the law so broadly as the lower Courts in their respective judgments in the present case seem to think. What their Lordships observe is that a mortgage by one co- widow cannot be "binding upon the joint estate which had descended from their deceased husband so as to affect the interest of the surviving widow.

(2.) Mr. Mayne goes on to say :- It has, however, been held that a widow can alienate her life-interest as against her co-widows just as she can against the reversioners, without prejudice to their rights of survivorship ;" and in support of that he cites Janoki Nath V/s. Mothura nath (1883) I.L.R. 9 Cal. 580.

(3.) But both the lower Courts in the present case reject the authority of that decision on the ground that it is the law under the Dayabhaga in Bengal and has no application to this Presidency. That view, however, gives the go-by to the rights which, under the Mitakshara and the Vyavahara Mayukha, the two paramount authorities in this Presidency, accrue to the widows of a deceased Hindu succeeding as joint heirs to his property. The right of each of such widows to enjoy the property by partition inter se is admitted in distinct terms both in the Mitakshara and the Mayukha. The passage bearing on the point in the former which, as pointed out by Stokes in his Hindu Law Books (page 52), is omitted by Colebrooke in his translation of the Mitakshara (page 428, placita 5 and 6 of Stokes Hindu Law Books), is translated by Strange in his Manual of Hindu Law, Second Edition, Section 326, as follows :- The singular number wife signifies the kind; hence, if there are several wives belonging to the same or different castes, (they) divide the property according to the shares prescribed to them and take it.