1867. BHUGWAN DEEN DOOBEY v. and severally under an Order made by a Judge in a summary suit, pursuant to the Act, No. XIX. of 1841, to moieties of his whole moveable and immoveable estate, either of them could in her lifetime MYna Baee. alienate or give by way of testamentary disposition her moiety, or any portion of the moveable or immoveable property included therein, to her blood relations, to the exclusion of the suviving Widow, or the heirs of their deceased Husband who might be alive at the time of surviving Widow's decease. The decree of the Principal Sudder Ameen (Mr. Robert H. Smith) determined this point in favour of the Appellant, on the ground, that there had been a division declared and effected by a competent Court, namely, the Judge of Benares, by his summary Order for possession, under Act, No. XIX. of 1841, and that such division having been acquiesced in by the Respondent, the estate of Rae Deenanath thereby became a divided and separate estate, to a moiety of which Doola Baee succeeded exclusively as her own inheritance, and which she was competent to leave to whomsoever she pleased; and that the disposition so made by her to her Father and Brother was valid. The Sudder Dewanny Adawlut at Agra, consisting of Messrs. Ross, Edwards, and Roberts, also held, that the estate was so divided, but as the Hindoo Law prevailing in Benares did not in this respect differ from that prevalent in the Province of Bengal, that Doola Baee was incompetent to make any testamentary disposition of the property which had been allotted to her under the summary Order to the prejudice of the Respondent, who was her copartner in respect thereof until such copartnership had been dissolved. Hence this appeal. 1867. BHUGWANDEEN DOOBEY v. MYNA BAEE. The facts and issues raised by the suit are fully stated in the judgment. The appeal was argued by Mr. Kay, Q.C., and Mr. J. Bell, for the Appel- Sir R. Palmer, Q.C., and Mr. Leith, for the The following authorities were cited: Upon the question, whether by the Western School of Hindoo Law, current in Benares, a Hindoo Widow was competent to dispose of her husband's selfacquired estate, moveable or immoveable, which she, as a Hindoo Widow, had inherited from her husband, by testamentary disposition, or deed of gift, to the prejudice of his heirs, Mussumat Thakoor Deyhee v. Rai Baluk Ram (a); Keerut Sing v. Kooloohul Sing (b); Katama Natchier v. The Rajah of Shivagungah (c); Cossinaut Bysack v. Hurroosoondry Doss (d); Morley's Dig., N. S., tit. "Hindu Widow," p. 180, Note. Colb. Dig., Vol. III. pp. 458, 464-8, 575; The Vivada Chintamani, pp. 256, 266 (Trans. by Prossonno Coomar Tagore); W. H. Macnaghten's "Hindu Law," Vol. I. pp. 19, 48, 50; 1b., Vol. II. p. 46; The Madras Jurist, 31st of March, 1866, p. 128; 1 Strange's "Hindu Law," pp. 247, 268 [2nd Edit.]; The Mitacshara, ch. II. sec. xi. cl. 2, and cls. 11 to 25, were cited. As to the estate two Widows take, whether as tenants in common or in coparcenary, W. H. Macnaghten's "Hindu Law," Vol. I. p. 38, was cited. And, whether the summary Order of the Judge, under Act, No. XIX. of 1841, and the acquiescence (a) Ante, 139. (b) 2 Moore's Ind. App. Cases, 331. (c) 9 Moore's Ind. App. Cases, 539. (d) 2 Morley's Dig. 204-5, 214. 1867. BHUGWAN DEEN DOOBEY of the Widows and possession by them of the moieties operated as an estoppel and a bar to the Plaintiff's claim, Meer Nujeeb Ullah v. Mussummaut Kuseema (a); Rawlins v. Powel (b); Goodeve "On Evi- MYNA BAEE. dence," p. 325, were cited. Upon the construction of the 378th section of the Act, No. VIII. of 1859, and the power of Court on an oral application to amend the written grounds of appeal, Broughton's Practice of the High Court, Calcutta, p. 28, was cited; and that the Court would not make a decree upon a variance of plea and proof, Narainee Dosse v. Nurrohurry Mohonto (c); Morley's Dig., N. S., tit. "Practice," p. 312, were relied on. At the conclusion of the arguments the case stood over for consideration. Judgment was now delivered by The Right Hon. Sir JAMES W. COLVILE. The following are the undisputed facts upon which this appeal arises : any; Rae Deenanath, a Hindoo Banker, of great wealth, carrying on business at Benares, Hyderabad, and other places, died at Benares on the 7th of June, 1855, childless. He was separate in estate from his brethren, if he had his wealth is said to have been self-acquired; and consequently his co-heiresses, according to the Hindoo law of the Benares school, were his two Widows, viz. the Respondent and Doola Baee, since deceased. Immediately after his death, however, a document, purporting to be a Will executed by him in favour of one Hunwunt Pershad, to whom, jointly with a person named Bithul Pershad, it gave the (a) I Ben. Sud. Dew. Ad. Rep., 10. (b) 1 P. Will., 297. (c) 1 Marshall's App. Cases, Ben., 70. V. 14th March, 1868. 1867. BHUGWAN DEEN DOOBEY v. management of the property, was propounded. The title of Hunwunt Pershad, claiming under this alleged Will, or as the adopted son of Rae DeenaMYNA BAEE. nath, has since been litigated in the Indian Courts, which have uniformly pronounced against it. An appeal to Her Majesty in Council against their decisions is pending (a), but it has not yet been set down for argument, in consequence of the death of one of the parties; and for the purposes of this appeal it must be assumed that Rae Deenanath died childless and intestate, and that the claim of Hunwunt Pershad was unfounded. Nor would it be necessary to refer to that claim but for the arguments which the Appellant's Counsel have founded on the partition between the Widows, which was in some measure caused by it, and upon the alleged collusion of the Respondent with the Claimant. The first consequence of the claim was that a summary suit, under Act, No. XIX. of 1841, to determine the right to the immediate possession of the property, was instituted in the name of Doola Baee, who was then a Minor, by her Uncle and Guardian, in which a Curator was appointed under that Act. When this suit came to a hearing the Judge pronounced against the Will, and directed that the whole estate of Rae Deenanath should be equally divided between the Widows, and that the Curator should carry out that order without delay. The property was thereupon divided; each Widow was put in possession of her share; and Doola Baee continued in the separate possession and énjoyment of her share up to the time of her death. She died on the 10th of November, 1857, having on the 21st of August, 1857, made a Will, which was (a) Mussamat Lutchmee v. Bhuguandeen and others. 1867. BHUGWAN DEEN DOOBEY registered on the same day, whereby she disposed of her share of the property inherited from her Husband in favour of her Father (the Appellant), and her infant Brother, Kaloo Ram, who is also represented by the MYNA BAEE. Appellant on this appeal. Some steps seem to have been taken by the Respondent, and also by Hunwunt Pershad, to resist the registration of this Will in the lifetime of Doola Baee; and upon her death the Respondent applied for the attachment of the property in dispute, being that taken by Doola Baee under the partition, as specified in the list before referred to; and for the appointment of a Curator under Act, No. XIX. of 1841. Her application having been dismissed by the Judge, who on that summary proceeding upheld Doola Baee's Will, she commenced the regular suit out of which this appeal has arisen, on the 21st of December, 1857, in the Court of the Principal Sudder Ameen of Benares. The issues settled in the suit were: First, whether there was any informality in the institution of the suit. Second, whether the Plaintiff (the Respondent) was legally competent to institute it. Third, whether Doola Baee was a Minor or not at the date of the alleged execution of the Will. Fourth, whether the Will was fraudulent or a boná fide instrument. Fifth, if a person die leaving two Widows, and one of the Widows subsequently dies leaving a Will, who is entitled to succeed according to the Shasters, the surviving Widow or the Legatee of the Will (supposing the Husband's estate to have been divided between the Widows, and also supposing no such division to have been made)? And is a Widow v. |