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11. These reasons do not appear to be sufficient to support the learned Judge's conclusion that a widow forfeits her estate when she ceases to be able to perform the necessary religious ceremonies. It is admitted that she may by law hold the estate without performing them, and that she may give, sell, or transfer the estate to another for her own life. Nor does there appear to be any sufficient reason for the distinction attempted to be drawn between a son or other heirs and a widow with reference to the forfeiture of the estate when the person who has succeeded to it has become incompetent to perform the duties which he or she ought to perform. The proprietary right of a son by inheritance from his father is expressly ordained, because the wealth devolving upon sons benefits the deceased (Dayabhaga, Chap. XI, Sec. I, v. 38), and the right of succession of other heirs to the property is also founded on competence for offering oblations at obsequies (18th verse); [782] see also v. 32. But a son, even if by the mere fact of his birth he delivers his father from the hell called put, is, according to the Dayabhaga, excluded for certain causes from inheritance in the same manner as other heirs (see the Dayabhaga, Chap. V, paras. 4, 5, and 6); but, if he once succeeds, the estate is not divested for anything less than degradation, though causes which would have excluded him if they had existed before succession arise after the estate has descended. This is admitted by Mr. Justice Mitter (13 B.L.R., 7),

12. Their Lordships will proceed to consider the principal texts upon which the learned Judges who were in the minority founded their judgments.

13. Mr. Justice Mitter, in his Judgment (13 B.L.R., 40) says:

Of all the authorities above referred to, the Dayabhaga of Jimutabahana, the acknowledged founder of the Bengal school, is undoubtedly the highest; and it is therefore to the Dayabhaga that I shall first direct my attention. I do not wish, however, to go over all the texts quoted and relied upon by the author of that treatise in discussing the widow's right of succession. I will refer two of those text only,--namely, the texts of Vrihat Menu, cited in v. 7, Sec. I Chap. XI of Mr. Colebrooke's translation of the Dayabhaga; and that of Catyayana, cited in v. 56 of the same section and chapter. These two versus are as follows:

16. The Second of the texts relied upon is that of Catyayana.

17. It is important to see for what purpose the text was cited, and with that view to refer to the verses immediately preceding those in which the text is cited, for there is nothing more likely to mislead than to read a single paragraph from the Dayabhaga or Mitakshara alone without studying the whole chapter, and in some cases, even, without studying the several chapters of the same treatise.

18. In Chap. XI, Sec. I, the author of the Dayabhaga, v. 54, sums up his argument in support of the widow's right to succeed to the entire property of her husband, for which purpose he had cited the text of Virhat Menu. He says:

36. If the widow's estate ceases upon her committing an act of unchastity, the period of succession will be accelerated, and the title of the heirs of her husband must accrue at that period. Suppose a husband dies leaving no male issue and no daughter, mother, or father, but leaving a chaste wife, a brother, a nephew, the son of the surviving brother, and other nephews, sons of deceased brothers. The wife succeeds to the estate, and the surviving brother is her protector. (See Dayabhaga, Chap. XI, Sec. I, v. 57). If he survive the widow, he, according to the Bengal school, will take the whole estate, as sole heir to his deceased brother, and the nephews will take no interest therein, for brothers' sons are totally excluded by the existence of a brother (Dayabhaga Chap. XI, Sec. I, v. 5; id., Chap. XI, Sec. VI, vv. 1 and 2). The surviving brother, may be advanced in years; the widow may be young. The probability may be that she will survive him. If her estate were to cease by reason of her unchastity, the benefit which he would derive from her fall would give him an interest in direct conflict with his moral duty of shielding her from temptation. But, further, the widow has a right to sell or mortgage her own interest in the estate, or in case of necessity to sell or mortgage the whole interest in it. (Dayabhaga, Chap. XI, Sec. I., v. 62). If her estate ceases by an act of unchastity, the purchaser or mortgagee might be deprived of his estate if the surviving brother of the husband should prove that the widow's estate had ceased in consequence of an act of unchastity committed by her prior to the sale or mortgage.