as to authorities, usage, and generally-received opinions. Such an inquiry might produce a conviction that the Pundits on a new case delivered rather their own notions of expedient law, as law, than delivered it on the force of the opinions of any writers or authoritative expounders of the Hindoo Law.

1861.

THE COLLECTOR

OF MASULI

РАТАМ

v.

CAVALY VENCATA

PAH.

Their Lordships are of opinion that the restrictions NARRAINAon a Hindoo Widow's power of alienation are inseparable from her estate, and that their existence does. not depend on that of heirs capable of taking on her death. It follows that if, for want of heirs, the right to the property, so far as it has not been lawfully disposed of by her, passes to the Crown, the Crown must have the same power which an heir would have of protecting its interests by impeaching any unauthorized alienation by the widow.

Their Lordships, therefore, dissent from the first ground on which, by the judgment under appeal, the Sudder Adawlut has dismissed the Appellant's

suit.

The next consideration is, whether the Sudder Adawlut was right in holding that the Crown is estopped by the act of the former Collector, Mr. Grant, from disputing the title asserted by the Respondent under the Razeenamah. In their Lordships' opinion the principles of estoppel do not support this contention. On On every reasonable presumption the facts relating to the creation of the original debt were known to the Respondent, or to the original Plaintiff in the suit whose judgment he was enforcing. The Collector would have no necessary knowledge on the subject; nor is he proved to have had actual knowledge. His advice to the widow, to the effect that unless she made an arrangement with the creditor,

1862.

THE COLLECTOR

OF

MASULI

РАТАМ

v.

CAVALY VENCATA

PAH.

the estate (which, the sale being an execution sale, must be taken to mean her right, title, and interest in the estate) would be sold, is not a statement at variance with the true state of things. The Razeenamah into which she entered, might, for aught that appeared, be satisfied by payment of the instalments NARRAINA- in her lifetime. Again, the acts of a Government officer bind the Government only when he is acting in the discharge of a certain duty within the limits of his authority, or, if he exceed that authority, when the Government in fact, or in law, directly, or by implication, ratifies the excess. The Collector in this case had certainly no authority to waive the rights to which Government might become entitled by the escheat; nor were his acts, when fairly viewed, calculated to give rise to the supposition that he had such an authority.

Their Lordships have already indicated their opinion that it is too late to assert, if it could ever have been successfully asserted, that it is not open to the Appellant on these pleadings to question the validity of the widow's alienation against the Crown. The reasoning of the Sudder Adawlut on this point seems to their Lordships to involve some misconception of the effect of the decree under which the Respondent claims. As regards the Appellant that decree is res inter alios acta. He is, therefore, in a very different position from one who, coming into Court to get rid of a decree binding upon him, has to allege and prove that it was fraudulently or collusively obtained, or is open to some other definite objection.

Again, though particular circumstances may shift the burthen of proof, the general rule certainly is, that it lies upon those who claim under an alienation

from a Hindoo female to show that the transaction was within her limited powers.

1861.

THE COLLECTOR

OF

MASULI

PATAM

Their Lordships continue to think, that the evidence before them is not such as to admit of a satisfactory decision of the question whether the Razeenamah does to any and what extent constitute a charge on the Zemindary as against the Crown, and that there ought NARRAINA

to be a further trial of that issue. Under the former Order of Her Majesty, the Sudder Dewanny Adawlut should have given to each party, if so disposed, an opportunity of adducing further evidence. It does not appear to have done this, but to have acted on its own impression that no further evidence was necessary. Such at least is their Lordships' understanding of the preliminary statements in the judgment under appeal.

In these circumstances their Lordships propose humbly to recommend to Her Majesty that the present appeal be allowed; that it be declared that the Crown, taking by escheat, has the same right to impeach the alienation by the widow which the next heirs of the husband (if such there had been) would have had, and is not estopped from asserting that right by the acts of the Collector in 1841; that the Crown is not bound by the decree; and that the widow was not entitled to alienate without the consent of the Crown, except in so far as she could have alienated without the consent of the next heirs of the husband, if such there had been, but that the Respondent is, at all events, entitled to a charge upon the estate, and to be paid and satisfied thereout, the full amount of all such of the advances, if any, made by the Respondent's father to the widow as were made for purposes for which, according to the Hindoo

VOL. VIII.

PP

v.

CAVALY

VENCATA

PAH.

1861. THE COLLECTOR

OF

MASULI-
PATAM

v.

CAVALY

VENCATA

PAH.

law, she would have been entitled to alienate the estate, as against the next heirs of her husband, if such there had been, in so far as she had not other estate of her husband to answer such purposes, and that the cause be remitted to the Sudder Adawlut to inquire whether, having regard to the declarations NARRAINA- aforesaid, the right of the Crown was absolutely defeated by the Razeenamah, and if not to inquire what advances, if any, were made by the Respondent's father to the widow, and whether all or any, and which, of such advances, and to what amount, were made for purposes for which, according to the Hindoo law, the widow would have been entitled to alienate the estate as against the next heirs of her husband, if such there had been, and whether the widow had, when such advances were respectively made, other estates of her husband sufficient to answer such purposes; and the parties respectively are to be at liberty to adduce further evidence touching the matters aforesaid, or any of them, as they may be advised, and the Sudder Court is to proceed in the cause according to the result of the said inquiries.

INDEX

TO THE

PRINCIPAL MATTERS

CONTAINED IN THIS VOLUME.