BODA VIRARAJU Vs. VETCHA VENKATARATNAM

JUDGEMENT

(1.) We have found very little difficulty either in the ascertainment of the true principle of law or in the application of it to the facts disclosed in this appeal. Whether and to what extent a Hindu widow in possession of her husband's estate can make a gift in favour of a dependant relation or for objects considered meritorious by the Hindu religion was the question discussed before us at the hearing of this appeal. It is unnecessary for a decision of this question to carry a research into the ancient texts of Hindu Law, or indeed to do anything more than refer to two decisions of the Privy Council in which the principle has, if we may say so with respect, been clearly and precisely defined. As early as 1861 it was Laid down in The Collector of Masulipatam V/s. Cavaly Vencata Narrainapah (1861) 8 M.I.A. 529 where their Lordships observed that: For religious and charitable purposes or those which are supposed to conduce to the spiritual welfare of her husband she (the widow) has a larger power of disposition than that which she possesses for purely worldly purposes. To support an alienation for the last, she must show necessity.

(2.) The principle received further elucidation by their Lordships in Sardar Singh v. Kunj Bihari Lal (1922) 44 M.L.J. 766 : L.R. 49 I.A. 383 : I.L.R. 44 All. 503 (P.C.) in which the widow had made a gift of a small fraction of the estate for the observance of bhog (food offerings) to the deity at Puri. The gift was upheld in spite of the fact that she had a sufficient income available in her hands to provide for it without an alienation. Their Lordships drew a sharp distinction between obligatory religious ceremonies and those other observances which are merely optional though conducive to spiritual good. They said: There can be no doubt upon a review of the Hindu Law taken in conjunction with the decided cases that the Hindu system recognises two sets of. religious acts. One is in connection with the actual obsequies of the deceased and the periodical performance of the obsequial rites prescribed by the Hindu religious law, which are considered as essential for the salvation of the soul of the deceased. The other relates to acts which, although not essential or obligatory, are still pious observances which conduce to the bliss of the deceased's soul. In the later cases this distinction runs clearly through the views of the learned Judges...With reference to the first class of acts the powers of the Hindu female who holds the property are wider than in respect of the acts which are simply pious and if performed, are meritorious so far as they conduce to the spiritual benefit of the deceased. In one case, if the income of the property, or the property itself is not sufficient to cover the expenses, she is entitled to sell the whole of it. In the other case she can alienate a small portion of the property for the pious or charitable purposes she may have in view.

(3.) These observations have furnished valuable guidance for the Courts in India in approaching the decision of questions relating to a widow's power of alienation. The principles that emerge from the decided cases may be stated in these terms. A Hindu widow in possession of her husband's estate is in no sense a trustee for the ultimate reversioner. She is the owner for the time being, fully capable of representing the estate in her transactions with the outside world so long as she acts bona fide and in the interests of that estate, but it is an ownership qualified by limitations which are of the very essence of her estate - limitations which the law imposes not out of a tender regard for the right of the reversioner, for none such exists during her life, but for reasons which are intimately bound up with the ideals of life and conduct considered proper and appropriate for a person in her position. A simple life of abstemious piety directed to the acquisition of merit for the departed soul of her husband and a cessation from mere sense-enjoyments in the pursuit of pleasure for its sake, lie at the bottom of restrictions on her powers of disposal. It is to be remembered that according to the ancient law-givers, restriction was indeed the rule, absolute power an exception, whether the holder was a female or even a male. For purposes which are purely secular or temporal, her powers are no wider than those which inhere in the manager of an infant's estate. But in respect of those other purposes which the Hindu Law regards as religious or charitable, she possesses, as might naturally be expected, a larger discretion, and a wider authority Texts collected in Ram Sumran Prasad V/s. Gobind Das (1926) I.L.R. 5 Pat. 646 at 677 to 679. For obligatory necessary observances essential for the salvation of her husband's soul, she could go the length of disposing of the entirety of the estate, where it is not considerable, and where the requirements of the particular occasion demand it. For other but less peremptory purposes, though in themselves meritorious yet not indispensable, her authority is necessarily circumscribed. She may for such objects, only dispose of a small and no more than a reasonable portion of the estate the quantum to be measured by the custom and sentiment prevalent in the community to which she belongs. It is impossible to define her powers in this behalf with any more precision. The circumstances of the family, the extent of its property, the demands upon it of other legitimate calls, and all those social customs and sentiments which make up what one may call the conscience of the community, must, it seems to us, be among the main factors to be considered. We think that it is the same principle though expressed in different language, which we find Laid down in Cossimant Bysack V/s. Hurrosoondry Dossee (1819) 2 Morley's Digest 198, where Lord Gifford said that care might be taken to avoid impressions derived from the English law, and to consider in what way a Hindu Court of Justice would have decided the point