TRAILOKYA NATH NATH Vs. RADHASUNDARI DEBI, MINOR, BY HER FATHER AND GUARDIAN HARI NATH NATH AND SRIMATI GYANADA SUNDARI DEBI

JUDGEMENT

(1.) This is an appeal by the plaintiff in a suit for recovery of possession of land on establishment of title by purchase. The property belonged to one Babu Lal Nath, and, upon his death, was inherited by his three sons, all of whom were dead at the date of the institution of this suit. The first defendant is the widow of the eldest son and has admittedly inherited one- third share of the property. The dispute relates to the remaining two-thirds share. The second defendant is the widow of the original owner and claims to have inherited this two-thirds share on the death of her second and third sons, both of whom were unmarried. The ease for the plaintiff is that be has purchased their two-thirds share from the second defendant. The case for the first defendant, on the other hand, is that the second defendant, her mother-in-law, became unchaste, shortly after the death of her husband Babu Lal, and, consequently, never succeeded to the estate left by her two sons, which accordingly passed to their brother, her husband. The Courts below have concurrently found the facts in favour of the first defendant and have held that the plaintiff has derived no title under his conveyance from the second defendant who was in his keeping. On the present appeal, the findings of fact could not be and have not been challenged, but it has been contended that under the Bengal School of Hindu Law an unchaste mother is entitled to succeed to the estate of her son. It has not been disputed that in the case of Ramnath Tolapattro v. Durga Sundari Debt 4 C. 550 which was decided in 1878, Mr. Justice Romesh Chandra Mitter held that, under the Dayabhaga School of Hindu Law, a mother guilty of unchastity before the death of her son is precluded from inheriting his property. This decision has hitherto been accepted as good law, but we have been invited by the appellant to dissent from it and to refer the matter to a Full Bench for consideration. After examination of the authorities on the subject, we have arrived at the conclusion that the view taken by Mr. Justice Mitter is correct.

(2.) The determination of the matter in dispute ultimately depends upon the true construction of paragraphs 30 and 31 of Section 2 of Chapter XI of the Dayabhaga. In Chapter XI, Section 1, paragraphs 7, 43 and 56, Jimutavahana refers to the following texts of Brihatmanu, Vyasa and Katyayana, respectively: (i) The widow of a childless man, keeping unsullied her husband s bed, and persevering in religious observances, shall present his funeral oblation and obtain his entire share" (Brihatmanu). (ii) After the death of her husband, let a virtuous (chaste) woman observe strictly the duty of continence and let her daily, after the purification of the bath, present water from the joined palms of her hands to the manes of her husband, etc," (Vyasa). (iii) Let the childless widow, preserving unsullied the bed of her lord and abiding with her venerable protectors, enjoy with moderation the property until her death; after her, let the heirs take it" (Katyayana).

(3.) These texts form the foundation of the following rules: (i) An unchaste wife does not inherit her husband s property. (ii) When the widow inherits, she can only enjoy the estate with moderation, in other words, she possesses a qualified power of alienation. (iii) On the death of the widow, the estate of her husband passes not to her but to his heirs.