fine by way of atonement: the prohibition relates to gifts (and payments) other than such as are positively ordained.-Coleb. Dig. Vol. III. p. 466. She whose husband is deceased should support, in proportion to her ability, the same persons, and do the same acts, in the same manner in which her husband, when living, supported those persons, and did those acts. But it is not absolutely necessary that she should fulfil the same voluntary offices which her husband did, such as supporting Brahmanas resident in the same town and the like. This is deduced from the term " unprotected persons." (Ante, p. 49.)-Coleb. Dig. Vol. III. p. 461. 66 Whatever the husband had promised to give to a person, the same, after his death, should be given by the widow to the same person, as that also is a debt (of her husband.) So says HÁRÍTA :-" A promise made in words, but not performed in deed, is a debt (of conscience) both in this world and the next. He, who gives not what he has promised, and he, who takes what he has given, sinks to various regions of torment, and springs again to birth from the womb of some brute animal."-Ibid. Whatever (was) most desirable in the world, whatever was eagerly sought for by her husband, that should be given to some meritorious man, by the widow, anxious to gratify her husband.—Smriti cited in Dáya-tattwa, &c. See Ibid. See Ibid. p. 467. For these and other religious but optional acts the widow should and can give or alienate only a small or moderate portion of the wealth. The inference is the same when any other (female) succeeds (to the estate of the deceased.) Coleb. Dig. Vol. III. p. 461. Vyavastha 37. For the widow, however, to dispose of the whole of her husband's property even with the consent of his heirs, to a person other than the next reversioner, unless it be to confer a very great benefit on the husband in the next world, is an irreligious as well as immoral act, though valid, it being above all things requisite that enough be retained to ensure the performance of the Shraddha, &c. of the husband.-See the section treating of charges on the inheritance. Vyavastha 38. But a gift or other alienation by a widow of a moderate portion of her husband's property, for his spiritual benefit (be the same made with or without the consent of his heirs) is religious and moral as well as valid. 39. If, however, the reversioners supply, or agree Vyavastha to supply, the widow with maintenance, and money for the performance of the necessary and optional acts as above mentioned, she cannot alienate her husband's property without their con-sent: If she do, the act is invalid. 40. And if the necessary acts* could possibly be Vyavastha performed with the wealth or with the produce or income of the estate left by the husband, then the estate cannot be sold for the performance of such acts, or on account of the debt contracted by the widow at her own pleasure, or for any optional act of her own. "To women, the heritage of their husbands is pronounced applicable to use; let not women on any account make waste of their husbands' property:" this text of the Mahá-bhárata, and the following of KÁTYÁYANA: The widow shall enjoy her husband's property restraining herself until death, after her, let the heirs take it," (ante, pp. 45&48,) declaring frugal enjoyment to be the only fruit derived by the widow from her husband's property, forbid the transfer of such property to another; whence,- 41. It fully appears that the widow's disposal of her Vyavastha? husband's property at pleasure, otherwise than by the simple use of it, or by donation for the benefit of her lord, is invalid.-Coleb. Dig. Vol. III. p. 465. 42. At present, however, the widow's disposition Vyavastha not for her husband's benefit, or for an allowable cause, but at her own pleasure, is held invalid only when it is not consented to, or ratified by, the next heir of the husband. The payment of revenue is considered one of the necessary acts. See the cases bearing on the vyavastha No. 40. Vyavastha 43. It has also been decided that with the consent of the then next heir or heirs, the widow may alienate for any purpose the property she inherited from her husband. And if unable to manage, or unwilling to hold, she may give or make over the same to such heir or heirs ;-and that such dispositions are valid provided the persons who would be heirs of her husband at her decease should not have a title preferable or equal to that of the donee; as otherwise the gift would be invalid in whole or in part as the case may be.-See post. p. 69. Note. Vyavastha 44. But if a widow without the consent of her husband's heirs dispose of his property for purposes not sanctioned by law, they are entitled to interfere and prevent any such wrongful alienation by her. This, however, is confined to the immediate heirs, and does not extend to those next in succession or contingent, unless the former be proved to be in collusion with the widow, or have authorised the latter to interfere. Vyavastha' 45. In case of an alienation by the widow being declared totally void, she may resume possession of the property alienated, provided she has not committed any act involving forfeiture of right to inheritance. (In other words :) Vyavastha 46. Although the reversioners may have an alienation made by the widow of her husband's property, for purposes other than those allowed by law, and without their consent, invalidated, yet they cannot dispossess her of such property even though the same had been alienated to injure or subvert their rights, or with the object of defrauding them. * Vide Macn. H. L. Vol. I. p. 20. It has been held by the Dispensers of justice that the time for such interference is to the end of the widow's life, and within 12 years from her death, unless there was adverse possession, in which case, it is within 12 years from the date of such possession; and for a minor reversioner the time runs to 12 years from the date of his estate vesting or his coming of age.-See Rás-mani Dásí versus Gobinda-chunder Roy and others. S. D. A. Decisions for 1857, p. 341, in which it was determined that the date of a Hindu widow's death is the cause of action for the reversionary heir; the limitation of sixty years upon the ground of fraud is inapplicable. See also the Appendix pp. 1052&1053, and the cases bearing upon the vyavastha No. 44. Because while she lives free from any defect causing exclusion from inheritance, no body else can be her husband's immediate heir, and take possession of his property by right of inheritance, the widow's heritable right not being destroyed and vesting by such act in the reversionary heir; also because, right cannot remain in abeyance in expectation of a contingent heir* not ascertainable before her death, natural or civil. According to the rule of gift also it should revert to her. Thus Rayhu-nandana: "The giver's right again accrues to him by the nonacceptance of the donee, although it had (once) ceased by the act of giving."-Shuddhi-tattwa. 47. If, however, it be satisfactorily proved that Vyavastha the widow has made waste to the injury of the rights of the reversioners, and the property is in danger, so that but for the interference of a court of justice, representing the Sovereign, the heirs, who may eventually succeed, would suffer loss from the acts of the widow, then, and not until then, the Dispensers of justice with a view of remedying or rather preventing such loss, may take the management of the property from her hands, or adopt such measures as to secure the estate for the ultimate heir, provided those measures do not affect the widow's rights as heir.† "The king is to decide the doubtful points which can Authority. not (otherwise) be determined; for he is master of all."-A text of BRAHMA cited in the Vyavahára-mayúkha, and other books. Vyavastha? 48. The fact of a widow's having recovered her husband's property by litigation gives her no addi tional power over it. * See pp. 7, 260, 262, 239, See also the last foot note of page 930. It has been determined that a Court of justice, like the court of wards, may step in, and appoint a Receiver to take charge of the estate. The reversionary heir may be the Receiver, but his appointment as such is not by virtue of the reversionary right, but in consideration of what would be most for the benefit of the estate. The Court would give property to the widow, him possession conditionally upon his paying the income of the empowering her on the other hand to move for his removal on his not paying the same. See the cases bearing on the Vyavasthas. Nos, 46&47. Vyavastha 49. A widow should not also alienate, by gift, &c. all of her own acquisitions made by means of the property inherited from her husband. 50. Inasmuch as by means of each portion of the Vyavastha estate, whether real or personal, movable, or immovable, benefits are procurable for the late owner, and as, further, the Dáya-bhága and other authorities of the Bengal school recognize no distinction between the two descriptions of property inherited by a woman, the widow is equally prohibited from making waste or improper expenditure of either. Vyavastha 51. According to some of the Judges, any arrangement, settlement or alienation of her husband's estate made by the widow, whether for an allowable cause or otherwise, should remain unreversed until her death; the reversionary heirs may, howhave their remedy even during the life-time of the widow, against the grantee to prevent waste or destruction of the property. ever, Legal opinions delivered in, and admitted by, the several Courts Q. 1. A childless widow had obtained her husband's estate, consisting of land and other property, by right of inheritance. Is she competent to give or sell the property, while there are her husband's other heirs living; and if she make any alienation, is it legal and valid? A widow may alienate a portion of her late husband's property for his spiritual welfare, or for her own subsistence. R. 1. The widow, destitute of male issue, may give a part of her husband's property of both descriptions, movable and immovable, for the completion of her husband's exequial rites; and when she is in want of subsistence for herself, she may sell such portion as may provide her with maintenance: excepting under these circumstances, any alienation by her, whether by gift, sale, or otherwise, must be considered null and void. Q. 2. Is the widow, without the sanction of her daughter's son, entitled to sell a small portion of the property? and supposing her to have actually made such sale, should it be upheld? |