First Appeal No. 239 of 1946

30th September, 1949.

Petitioner Counsel: K.N. Dharap - . P.S. Joshi - for Respondent.

JUDGMENT

GAJENDRAGADKAR, J. :-The first question referred to the Full Bench is : "Whether property inherited by a woman from her parents is saudajika or non-saudajika stridhana ?" This question assumes that such property is stridhana, and the point which it seeks to raise is whether it is such stridhana as would be within the absolute dominion of the woman who inherits it, so that she can dispose of is in any manner she likes, either by an act inter vivos or by will.

2. The development of Hindu law on the question of woman's right over her property bears eloquent testimony to the fact that Hindu law was never static and rigid, but was always elastic and progressive. It never rested itself blindly on ancient Sutra or Smriti texts, bat took cognisance of Dew customs and beliefs growing in Hindu society and made changes and adjustments in its provisions from time to time so as to bring them in line with the social conscience of the community. For this purpose, the Hindu commentators pressed into service all their ingenuity and relied on several rules of interpretation so as to justify their wider interpretation of the ancient texts to which they owed allegiance.

3. The word "stridhana" literally means, "woman's property." But during the early stages of the development of Hindu law, ibis word did not denote all kinds of property of which woman was possessed and was not used by the Sanskrit tests in its etymological or literal sense The Dharmasutras of Gautama (600 to 300 BC)1, refer to the devolution of stridhana, but do not attempt to give its definition or even its description. The Arthashaatra of Kautilya (300 BC to 100 AD), however, makes that attempt by saying

that stridhana means and includes "means of subsistence and what could be tied on the body (for instance, ornaments and jewellery)."

Then it goes on to say that the means of subsistent should be fixed at 2000 Panas as the maximum, while there is no limit to what may be given as ornaments and jewellery. Thus it would appear that originally the to the word stridhana was very narrow and it included only such amount as may be given to the woman by way of gift for her subsistence or ornaments and clothes which were gifted to her. In course of time, however, subsequent tests dealing with the same subject made very liberal efforts to expand the meaning of this word until the stage was reached where the word stridhana was under, stood in its etymological sense free from any limitations imposed on it in early times. When the word stridhana was construed as meaning only some specified kinds of property, it was obviously so understood in a technical sense. But when Vijayaneshwar (1070 AD to 1100 AD) wrote his commentary on the Smriti of Yajnjavalkya he brushed aside all these limitations and stated clearly that the word stridhana in the context mast be construed literally and etymologically and that it was not intended to be construed in a technical way. Thus, according to Vijnyaneshwar, property of any description belonging to a woman and however it may have been obtained by for is her stridhana. The other commentators who followed Vijnyaneshwar generally accepted his lead, though in some oases they were disposed to make reservations of their own. In this Province the commentary of Vijnyaneshwar is of paramount importance an the word stridhana has always been interpreted by judicial decisions of this Court in a very liberal way. When this question was raised before the Privy Council, however, their Lordships did not accept the views of Vijnyaneshwar in regard to the property inherited by a woman. They held that property inherited by a widow from her husband as well as property obtained by a woman by succession from her parents did not constitute her stridhana. In either case the property was held by the woman as a limited own and on her death it would descend to the nest heir of the person from whom she inherited it Bhugwandeen Doobey v. Myna Baee, 11 MIA 487 : (9 WR 23 PC) and Sheo Shankar Lal v. Debt Sahai, 25 All 468 : (30 IA 202 PC). In the Province of Bombay those decisions of the Privy Council have not affected the view taken by this Court since Pranjvandas Tulsidas v. Devkuvarbai, 1 BHC 130 and it has always been understood that a female inheriting properly from a female takes it absolutely, and as regards property obtained by females by a succession from male relatives it is stridhana in the hands of the succeeding females if they belong to the same gotra as the propositus. In other words as regards succession to males a distinction is made between females belonging to the family of the deceased either by birth or by marriage. Those falling in the first category hold the property devolving on them by succession as their absolute estate, whereas in the hands of those that fall under the second category it is held as a limited estate. That is why the first question with which we are dealing assumes that property obtained by a woman from her parents is her stridhana property and raises the point as to whether it is saudayika stridhana or non-saudayika stridhana. This point is raised because it has been held in Bhau v. Raghunath 30 Bom 229 : (7 Bom LR 936) that such property is non-saudayika stridhana and that in regard to non-saudayika stridhana the woman who holds such property cannot bequeath it by will without the consent of her husband. Thus the distinction between saudayika and non-saudayika stridhana as laid down in this case is obvious. With regard to saudayika stridhana, the power of the female is absolute and she can bequeath it by will, whereas in regard to non-saudayika stridhana her power to make a with is subject to the control of her husband. It the husband consents to the bequeath, the will made by the woman would be valid. If there is no evidence of the husband's consent, the bequest made would be invalid. It has been argued before us that in coming to the conclusion that the property obtained by a female by succession from tier parents is non-saudayika stridhana the original Sanskrit texts have not been properly construed. The argument is that the said texts, if properly construed, would not justify the distinction between property obtained by a female by gifts from her parents and property obtained by her by succession from them. In order to decide this point, is would obviously be necessary to consider the relevant and material tests on this subject. But before we did so it may be convenient to refer to some of the decisions of this Court where thin point has been considered.

1. The dates aligned to the different texts in the course of this judgment have been taken from Dr. P.V. Kane's History of Dharmashastra.

4. In Vijiarangam v. Lakshuman, 8 BB CB (OCJ) 244, West, J. considered the doctrine of Mitakahsra on ton subject of stridhana. He points out that Vijayanesawar includes all property inherited by a woman in see stridhana and makes no distinction between inheritance of a woman from her husband and her inheritance from any other person. Then he goes on to say that Vijayaneshwar lays down no rule as to the extent of the woman's own power over such property. But that is not surprising because

the right of absolute disposal did not enter into Vijnyaneshwar's conception of the essentials of ownership. Then the learned Judge considers the tests of Katyayana such as were then available and the view of Jagannath and Narada and comes to the conclusion that as to immoveable property at any rate the woman's ownership is subject to the control of her husband and of the other persons interested in the preservation of the estate, and that it cannot be needlessly dissipated at her mere caprice. This view was considered by Sir Lawrence Jenkina and Aston, J. in Bhau v. Raghunath, (30 Bom 229 : 7 Bom LR 936). From the decision in Bhau's case (30 Bom 229 : 7 Bom LR 926), it would be apparent that the limitations on the woman's power of disposal over immoveable property to which West, J. had referred were held to apply only to non-sandajika property, because while dealing with the will made by Krisbnabai the Court held that the said will was invalid solely on the ground that the property obtained by Krishnabai from her mother by succession was non-saudayika stridhana and so she had no light to make a will in respect of it. In other words, if the property had been saudayika, the Court would certainly have held that the will in question was valid. Now, in dealing with the question of the women's power over her stridhana, Jenkins, C.J., referred to the relevant Sanskrit texts, and in particular to the text of Mayakha, X, S. 10, from which he came to the conclusion that except as to the kind of stcidhana known as saudayika, a woman's power of disposal over her stridhana is during coverture subject to her husband's consent. He also observed that the said restriction, as far as he could gather, agreed with the sense of the community.

5. In Bhagvanlal v. Bai Divali, 27 Bom LR 533 : (AIR (12) 1925 Bom 445), this question was raised in a somewhat different form. A Hindu female who had lived separately from her husband foe nearly thirty years had made a will bequeathing the property which she had inherited from her father without the consent her husband. It was held that though the principles of Hindu law as stated in Bhau's case, (30 Bom 229 : 7 Bom LR 936) with regard to the powers of disposition by a wife over her non-saudayika stridhana could not be challenged, the acts under which the will in question was made took the will outside the provisions of the Sanskrit texts and the decision in Bhau's case, (30 Bom 229 : 7 Bom LR 936). Macleod, C.J. observed that having regard to the fact that the testatrix had stayed away from her husband for over 30 years, the husband had "lost all rights of over her, so as to lose also the rights to validate any disposition which she might make by will of property inherited by her from hex paternal relations ;" and in support of this conclusion the learned Chief Justice said that he had no doubt that his decision was in consonance with the views which prevailed at that time in the community. The same question was raised again before Beaumont, C.J. in Sarubai v. Narayandas, 45 Bom LR 473 : (AIR (30) 1943 Bom 224). Sir John Beaumont, however, refused to apply the decision in Bhagvanlal's case : (27 Bom LR 633 : AIR (12) 1925 Bom 446) to the will before him, though the said will had been made by a testatrix who had not lived with her husband for 20 or 26 years. He held that for however long a period a wife has lived separately from her husband she is still a married woman and may at any time go back to live with her husband, and he was reluctant to accept the contention that the rule in Bhau's case, (30 Bom 229 : 7 Bom LR 936) should be applied only if and whilst the female is living with her husband as his wife. It may be pointed out that the correctness of Bhau's ruling (30 Bom 229 : 7 Bom LR 936) was not challenged either in this case or in Bhagvanlal v. Bai Divali, 27 Bom LR 683 : (AIR (12) 1925 Bom 445).

6. The question as to whether property obtained by a female by a bequest from her relations is saudayika or non-saudayika was considered by Patkar and Barlee JJ. in Fakirgowda v. Dyamawa, 67 Bom 488 : (AIR (20) 1933 Bom 287), and it was held that such property was saudayika stridhana over which the woman had absolute control, so that the will made by her in regard to such property would be valid. The argument that saudayika stridhana was limited to gifts made by relations by acts inter vivos was rejected and it was held that property obtained either by gilt or by bequest from relations was saudayika stridhana in the hands of the donee or the legatee.

7. Thus it would appear that this Court has held that property obtained by a female either by gift or by bequest from parents or other relations is her saudayika stridhana, whereas property which she inherits from them is her non-saudayika stridhana. The question which we must now proceed to consider is whether the texts of Hindu law justify the conclusion that property inherited by a female from her parents must be treated on a different basis from the property obtained by her from her parents on relations either by gift or by bequest.

8. Manu (200 BC to 100 AD) in IX v. 194, says :

"What (was given) before the nuptial fire, what was given at the bridal procession, what was given in token

of love, what was received from her brother, mother or father, that is called the six fold woman's property."

It may be pertinent to point out that Mitakshara while interpreting this text of Manu observes that by specifying the six categories of stridhana, Manu emphasises the fact that stridhana is at least of six categories and does not at all exclude a much larger number of the said categories. Narada (100 AD - 400 AD) while describing stridhana substantially agrees with Manu.

Yajnyavalkya (100 AD - 300 AD) (II, 143-44) enumerates the several kinds of stridhana in these terms :

''What was given (to a woman) by the father, mother, husband or brother or was received by her before the nuptial fire, or what was presented on her husband's marrying another wife (sdhivedanika) and the like - these are denominated siridhana : so also what is given by the cognate relations (of the woman), the sulka (fee) and gifts subsequent to marriage."

9. Vijnyaneshwar (1070 AD - 1100 AD) comments upon the use of the word "adya" (and the like) by saying that the description contained in Yajnyavalkya Smriti is merely illustrative, and, as I have already pointed out, the commentary of Yijnyaneshwar expounds the most liberal view on this subject by interpreting the word stridhana in its etymological as opposed to its technical sense.

10. These tests of the Smritis would show that some progress had been made from the times of Gautama and Kautilya in so far as the Smriti writers included at least six kinds of property within the meaning of the word stridhana. The stage where the said word was held to denote merely the means of subsistence and the ornaments and clothes given to the female had long passed and Hindu jurists true to their progressive outlook had added some other kinds of property in the class of stridhana. Even so, the discussion on the subject which we find in the Smritis is by no means exhaustive and Yajayaneshwar had to make use of the word (and others) so as to make all kinds of property obtained by a female her stridhana.

11. In his Vyavahara-Mayukha (1615 - AD - 1645 AD) deals with the of stridhana as a topic by itself (IV. 10). He refers to the verses of Manu and Yajnyavalkya(IX. 194 and II, 143, respectively) as well as the test of Vishnu (XVII, 16). Then he refers to the views of Katyayana on this subject and proceeds to point out that according to Katyayana whatever has been earned by mechanical arts and by way of gifts from strangers is not subject to the absolute dominion of women but over the rest of their property they have such dominion. Nilkantha then the test of Manu (VIII. 416) in which it is "A wife, a son, and a slave, all these three are' declared to have no property; whatever wealth" they acquire, is of him to whom they belong.

And also (X. 199) : "A woman should make expenditure out of the family property belonging to several, or even out of her own wealth without the assent of her husband."

And adds his comment on VIII. 416, that that too has so reference to wealth acquired by mechanical arte and the like ; curiously enough he then goes on to add that "it would however be proper to interpret the text as showing an absence of absolute dominion in stridhana such as the Addivedanka and the like." Then Nilkantha cites the verse from Katyayana in which saudayika property is described and it is stated that over their sandayika stridhana women have absolute dominion. Thus it will be seen that Nilkantha does not express any definite opinion of his own, but, refers to the relevant texts from the different Smritis and relies more particularly upon the, discussion of Katyayana on this subject. Having regard to the whole of has discussion, however, it may not be unreasonable to infer that as accepted the conclusion of Katyayana that over saudayika property woman's power of disposal was absolute. On the question as to what property can be held to be saudayika we do not derive any assistance from Nilkantha.

12. This subject is, however, dealt with at greater length in the Smriti of Katyayana (400 A.D. - 600 A.D.). This Smriti unfortunately is not still available as a whole; but Dr. P.V. Kane has collated and edited all the passages from the Katyayana Smriti which had either cited or referred to by the several

in his book named

or "Katyayana Smriti on Vyavahara (Law and Procedure)." Thus by the efforts of Dr. Kerne, students of Hindu law are in a position to have a connected view of the substantial provisions in Katyayana Smriti. There are 27 verses of Katyayana which contain an elaborate discussion on the subject of stridhana. Most of the commentators on the Smritis have referred to Katyayana with respect and approval and it is substantially on the text of Katyana that the question with which we are concerned baa ultimately to be decided. Katyayana adopts the six-fold enumeration of stridhana contained in Manu and makes considerable additions to it. This is what Katyayana says in this matter.

"Katyayana Smriti on Vyavaha at Law and Procedure) by Dr. P.V. Kane, pp. 316-318.)

"894. What was given before the nuptial fire, what was given at the time of the bridal procession, what was given to a woman through affection, what was received from the brother, mother or father - this stridhana is declared to be sixfold.

895. What is given to a woman (by anybody) at the time of marriage before (the nuptial) fire, that is declared to be adhyagni stridhana by the wise.

396. That again which a woman obtains when she is being taken (in a procession) from her father's house (to the bridegroom's) is termed stridhana of the adhyavaniha kind.

597. Whatever is given (to a woman) through affection by the father-in-law or mother-in-law and what is received at the time of saluting the feet of elders is termed pritidatta (gift through affection).

898. That is declared to be sulka, which is obtained as the price of household utensils, of beasts of burden, of milch cattle, ornaments and slaves.

899. Whatever is obtained by a woman after marriage from the family of her husband and also what is similarly obtained from the family of her (father's) kinsmen is said to be anvadbeya (gift subsequent).

900. Whatever is obtained by a woman through affection after her marriage from her husband or from her parents, that is anvadheya. This is the view of Bhrugu.

901. That is known as saudayika which is obtained by a married woman or by a, maiden in her husband's or father's house from her brother or from her parents.

It will thus be apparent from this discussion of Katyayana that according to him saudayika is not a special kind of stridhana at all. In fact the division of stridhana into saudayita and non-saudayita is referable principally, if not exclusively, to the text of Katyayana, and we cannot naturally receive any decisive guidance from the Smritis of Manu or Yajnyavalkya in deciding what kinds of stridhana fall within the one or the other category. The word

(saurisyika) is derived from the word

(audaya) which means a good or an affectionate kindred or relation. The word "saudayika" therefore, literally means "received of obtained from a good or an affectionate kindred." In this sense it is a comprehensive term which would include all kinds of property obtained by a female from her relations in her husband's family as well as from the be in the family of her birth. The word

or

(labdham or praptam) which bas been used by Katyayana in this connection may well include property obtained by her by gift, by bequest, as well as by succession. It is true that must of the discussion relates to gifts made by relations through affection. It is also true that in some of the Smriti tests the word

(dattam given) is used while describing property obtained by a female from her relations and the word

(dattam) would not include property obtained by succession. But strictly speaking, the word

(dattam) would denote a gift by an act inter vivos and from that point of view it may not very appropriately include a bequest. Even so, property obtained by bequest has been held to be saudayika stridhana in Fakirgowda v. Dyamawa, 57 Bom 488 : (AIR (20) 1933 Bom 287). On principle it is difficult to see why if property obtained under a bequest becomes the saudayika stridhana of the legatee it should not be her saudayika stridhana in case the female obtains it by succession. It may well be that the person to whom the property belongs may not choose to make a will in the belief and knowledge that his property would devolve by succession upon his female relation in question. The failure of the propositus

to make a will would obviously be consistent with his desire that the said female relation should obtain his property. Otherwise be would make a will bequeathing it to somebody else whom he may have in view. In such a case property obtained by succession should, in out opinion, prima facie be treated on the same footing as property obtained under a bequest. But apart from this, it seems to us that reading the text of Katyayana as a whole there would be no justification for putting a restrictive interpretation upon the word

(obtained or received) used by him while describing saudayika property. In fact when Katyayana proceeds to consider woman's power of disposal over her property, he seems to make one broad division and that is between property obtained by a woman by mechanical arts and from strangers through affection on the one hand, and the rest of bar property on the other. He does no doubt deal with the property gifted by the husband to his wife on a different basis; but it may be pointed out that judicial decisions have not approved of this distinction. This is what Katyayana says.

"904. In that wealth which is obtained (by a woman) by mechanical acts or from a stranger through affection the ownership is of the husband; the rest is declared to be the stridhana.

'905-906. On obtaining wealth of the saudayika bind it is held (lit. desired) that women have intendment ownership (over it), since it was given by them by the kindred) as a support in order that they may not be reduced to a terrible (or wretched) condition. It has been declared that woman always have independence in saudayika wealth as regards sale or gift at their pleasure and even in immoveables (if saudayika)."

13. According to the text of Vyasa which has been cited by Smriti-Chandrika of Devannabhatta (1200 A.D. - 1225 A.D.),

whatever is obtained by a woman as a maiden at the time of her marriage or after her marriage from the relations in her father's house as well as in her husband's house is saudayika stridhana. Yivada-

"Katyayana Smriti on Vyavahara" By Dr. r. V. Kane, pp. 319-320.

Chintamani of Vachaspati (1500 A.D. to 1550 A.D.) is quite explicit on this point. According to Vachaspati the word saudayika doss include property received by women from their relatives either by a gift or by bequest or be succession, since he refers to the relevant passage from Katyayana and expresses his own view on this question in these words :

"Thus the result is whatever is obtained by a maiden of by a married woman from her parents, or from relations in her parents' family or from the family of her husband, all that is her saudayika stridhana.

It is, therefore, quite clear that Vivada Chintamani construes the word saudayika literally and includes under its denotation all property obtained by a woman either by gift, bequest or succession from her relations either in her patents' or her husband's family.

14. Having regard to these texts, it seems to us that we would not be justified in holding that the word saudayika excludes property obtained by a female by succession from her parents or relatives in the family of her birth. In the texts which were considered by Jenkins, C.J., in Bhau v. Baghunath, 30 Bom 229 : (7 Bom LR 936), the verse from Katyayana to which I have just referred has been cited and the word

(labdham) has been translated as meaning "obtained". The question as to whether this word in the contest necessarily excludes property obtained by succession does not appear to have been raised or considered. In fact the majority of the texts cited in the judgment emphasise the incompetence of the woman to own property on her own account or her incapacity to deal with it at her pleasure. The restrictions contained in these texts are no more than moral precepts or "laudatory statements" (Arthavada) and they must now be treated as obsolete. We have no doubt that these texts do not at all agree with the sense of the community as it prevails today. Besides, it is clear that in the Province of Bombay even with regard to the property obtained by a female from her parents by succession her title is otherwise absolute. The said property goes by succession after her death to her own heirs. During her lifetime she is its sole owner and no other person baa any vested interest in it. Neither her husband nor her issue can claim joint interest in the property along with her. In other words, the holds the property as an absolute owner, and looked at from this point of view the limitation imposed upon her

that the cannot bequeath it away unless with the connect of her husband seems on first principles to be quite inconsistent with her undoubted title over it. Besides this limitation cannot and obviously does not operate is respect of property obtained by succession from her parents by a maiden or by a widow. We are therefore disposed to take the view that in the absence of any express provision to the contrary in the Sanskrit texts bearing on the question such property should be treated as saudayika stridhana in the hands of a married woman even during coverture. The words used by Katyayana if read in the contest of the whole of his discussion do not suggest that it was intended by Katyayana to include within the class of saudayika stridhana only properties obtained by her by gift or by bequest. It appears fairly clear from the said discussion that property obtained by a female either by gift or by bequest or by succession from her relatives in her parental home was intended to be included in the comprehensive term saudayika. "We have no doubt whatever that the interpretation which we are putting upon the words of Katyayana is absolutely in consonance with the conscience of the community at present. We therefore hold that property (inherited by a female from her parents is saudayika stridhana and that the contrary view which was accepted in Bhau v. Raghunath (30 Bom 229 : 7 Bom LR 936), is not justified either by the Sanskrit texts bearing on the question or by the sense of the community as was assumed in the said case. Accordingly our answer to the first question is that property inherited by a woman from her parents in her saudayika stridhana.

15. In view of this answer to the first question, it is clearly unnecessary to consider the two other questions referred to the Full Bench.

CHAGLA, C.J. :-I agree.

DIXIT, J. :-I agree.

Answers Accordingly