Bombay High Court
Seth Mulchand Badharsha Deceased His ... vs Bai Mancha, Widow Of Seth Nagindas ... on 10 July, 1883
Equivalent citations: (1883)ILR 7BOM491
JUDGMENT West, J.
1. The testator in this case, having no sons, bequeathed his shop to his widows, one of whom survives. As there was no co-owner with him of the property, he could have given it, and might, therefore, bequeath it to a stranger with as full ownership as he had himself, and with the usual incidents of ownership, amongst which is the power of alienation. In the case of the widow, however, Mr. Telang refers to chapter IV, Section 10, para. 9, of the Vayav. Mayukha, as preventing the alienation of immoveable property given by a husband to His wife, and as equally preventing the widow's alienation of property bequeathed by her husband. That bequests stand substantially on the same footing as gifts was finally ruled by the Tagore Case; but the case referred to by Mr. Branson shows that the Hindu law has been construed as allowing a gift of full ownership with power of disposal to a wife and in the form of bequest to a widow as well as to a stranger. The Smriti passage in the Mayukha (taken from Narada) had reference probably to a stage of progress in which the severance of an estate from the family was still looked on as impossible, or, at least, as sacrilegious. Separate ownership and the power of alienation must be attended with the incidents requisite to give them effect; and as the general power of disposal of property has become recognized by the modern law, it seems impossible to say that it is to be subjected to restrictions when exercised in favour of a widow which were provided for an entirely different state of things. Moreover, the supposed law could be readily evaded by a gift or bequest to a wife's father, or brothers, or sister, and a transfer by the donee or legatee. It is not necessary to give to the Hindu law a construction which would make it at once unreasonable and ineffectual. Colebrooke, in 2 Strange's Hindu Law, 15 (Ed. of 1825) says a husband may make a gift of immoveable property to his wife, and that it thus becomes fully at her disposal, Where the husband had sole ownership, this is the rational rule, not putting the wife or widow in a worse position than a stranger. We, therefore, confirm the decree of the District Court, with costs See also, in connection with this case, Prosunno Coomar Ghose v. Tarrucknath Sirkar 10 Beng. L.R. 267.