PETITIONER: SUBHASH KUMAR Vs. RESPONDENT: STATE OF BIHAR AND ORS. DATE OF JUDGMENT09/01/1991 BENCH: <NAME>, K.N. (J) BENCH: <NAME>, K.N. (J) OJHA, N.D. (J) CITATION: 1991 AIR 420 1991 SCR (1) 5 1991 SCC (1) 598 JT 1991 (1) 77 1991 SCALE (1)8 ACT: Water (Prevention and Control of Pollution)Act, 1974: Sections 17, 24, 25 and 26. Constitution of India, 1950: Article 21- Right to live includes right to enjoyment of pollution free water and air- A citizen has a right to invoke Article 32 for removing pollution. Article 32- Writ petition in public interest-Allegation that <ORG> and <ORG> are polluting the river Bokaro by discharging slurry from their washeries into the river-No material to substantiate the allegations-Held petition is not in public interest but for personal interest. Public Interest Litigation-Should be resorted to by a person genuinely interested in the protection of society- Personal interest cannot be enforced in the garb of public interest litigation-Entertainment of petitions satisfying personal grudge is abuse of process of the <ORG> Duty of the court is to discourage such petitions. HEADNOTE: The petitioner filed a writ petition in this court by way of public interest litigation alleging that the respondents, <ORG> and <ORG> (<ORG>) were polluting the river Bokaro by discharging surplus waste in the form of sludge/slurry as effluent from their washeries into river making the river water unfit for drinking and irrigation purposes thereby causing risk to the health of the people; the State of Bihar and <ORG> have failed to take appropriate steps for prevention of the pollution and instead the State of Bihar has granted leases on payment of royalty to various persons for collection of slurry. Accordingly the petitioner prayed for directions to the respondents to take immediate steps prohibiting the pollution of the river and to take legal action against <ORG> under the Water (Prevention and Control of Pollution) Act , 1974. The petitioner also claimed interim relief from this <ORG> that he should be permitted to collect sludge/slurry flowing out of washeries of the respondents. 6 The respondents contested the petition denying the petitioner's allegations. <ORG> asserted that directions have been issued to <ORG> to take effective steps for improving the quality of the effluent going into the river Bokaro and that the <ORG> Company has been granted permission to discharge their effluents from their outlets in accordance with sections 25 and 26 of the 1974 Act. On behalf of <ORG> and <ORG> it was contended that all effective steps have been taken to prevent the pollution and they have complied with the instructions of <ORG>. By an order dated 13.12.1990, this <ORG> dismissed the writ petition with costs. Giving reasons for dismissal of the petition, this <ORG>, HELD: 1. Article 32 is designed for the enforcement of Fundamental Rights of a citizen by <ORG>. It provides for an extra-ordinary remedy to safeguard the fundamental rights of a citizen. Right to life is a fundamental right under Article 21 of the Constitution and it includes the right of enjoyment of pollution free water and air for full enjoyment of life. If anything endangers or impairs that quality of life in derogation of laws, a citizen has right to have recourse to Article 32 of the Constitution for removing the pollution of water or air which may be detrimental to the quality of life. A petition under Article 32 for the prevention of pollution is maintainable at the instance of affected persons or even by a group of social workers or journalists. But recourse to proceeding under Article 32 of the Constitution should be taken by person genuinely interested in the protection of society on behalf of the community. Public interest litigation cannot be invoked by a person or body of persons to satisfy his or its personal grudge and enmity. If such petitions under Article 32 are entertained it would amount to abuse of process of the <ORG>, preventing speedy remedy to other genuine petitioners from this <ORG>. Personal interest cannot be enforced through the process of this <ORG> under Article 32 of the Constitution in the garb of a public interest litigation. Public interest litigation contemplates legal proceeding for vindication or enforcement of fundamental rights of a group of persons or community which are not able to enforce their fundamental rights on account of their incapacity, poverty or ignorance of law. A person invoking the jurisdiction of this Curt under Article 32 must approach this <ORG> for the vindication of the fundamental rights of affected persons and not for the purpose of vindication of his personal grudge or enmity. It is duty of this <ORG> to 7 discourage such petitions and to ensure that the course of justice is not obstructed or polluted by unscrupulous litigants by invoking the extra-ordinary jurisdiction of this <ORG> for personal matters under the garb of the public interest litigation. [13C-H; 14A] <CITATION> ,  2 SCR 67; <NAME> v. State of West Begal,  2 SCC 295; <CITATION> .,  Suppl. 1 SCC 251; <CITATION> .,  4 SCC 449, referred to. 2. The present petition is not filed in public interest instead the petition has been made by the petitioner in his own interest. Infact there is intrinsic evidence in the petition itself that the primary purpose of filing this petition is not to serve any public interest instead it is in self-interest. The petitioner has been purchasing slurry from the respondents for the last several years. With the passage of time he wanted more and more slurry but the Company refused to accept his request. He removed the Company's slurry in an unauthorised manner for which criminal cases are pending against him and his brother. Since the respondent company refused to sell additional slurry he entertained a grudge against the company and in order to feed fat his personal grudge he resorted to several proceedings against the company including the present one. The prayer for the interim relief made by the petitioner i.e. permitting him to arrest/collect sludge/slurry flowing out of the washeries of the respondents with a direction to the State of Bihar, its officers and other authorities for not preventing him from collecting the sludge/slurry and transporting the same also collecting the sludge/slurry and transporting the same clearly indicates that he is interested in collecting the slurry and transporting the same for the purposes of his business. Therefore, there is no good reason to accept the petitioner's allegation that the water of the river Bokaro is being polluted by the discharge of sludge or slurry into it form the washeries of the respondent-company. On the other hand it is evident from records that <ORG> has taken effective steps to check the pollution. [14B;12F-G] <ORG> & etc. etc. v. State of Bihar & Ors., AIR 1986 Patna 242; <CITATION> .  3 SCR 744= Judgments Today, vol. 3, 1990 SCC 533, referred to. JUDGMENT:

ORIGINAL JURISDICTION: Writ Petition (C) No. 381 of 1998.

(Under Article 32 of the Constitution of India). <NAME> for the Petitioner.

<NAME>, Ms. <NAME>, <NAME>, Ms. <NAME> and <NAME> for the Respondents.

The Judgement of the Court was delivered by <ORG>,J. We heard the arguments in detail on 13.12. 1990 and dismissed the petition with costs amounting to Rs. 5,000 with the direction that the reasons shall be delivered later on. We are, accordingly, delivering our reasons.

This petition is under Article 32 of the Constitution by <NAME> for the issue of a writ or direction directing the director of <ORG> at Ghatotand, District Hazaribagh in the State of Bihar and <ORG> to stop forthwith discharge of slurry/sludge from its washeries at Ghatotand in the District of Hazaribagh into Bokaro river. This petition is by way of public interest litigation for preventing the pollution of the Bokaro river water from the sludge/slurry discharged form the washeries of <ORG> The petitioner has alleged that the <ORG> has enacted the Water (Prevention and Control of Pollution) Act , 1974 (hereinafter referred to as `the Act') providing for the prevention and control of water pollution and the maintaining or restoring of wholesomeness of water, for the establishment of <ORG> for the prevention and control of water pollution. Under the provisions of the Act the State Pollution Control <ORG> constituted to carry out functions prescribed under Section 17 of the Act which among other things provide that the <ORG> shall inspect sewage or trade effluents and plants for the treatment of sewage and trade effluents and to review plans, specifications or other data set up for the treatment of water and to lay down standards to be complied with by the persons while causing discharge of sewage or sullage. Section 24 of the Act provides that no person shall knowingly cause or permit any poisonous, noxious or polluting matter to enter into any stream or well, which may lead to a substantial aggravation of pollution. The petitioner has asserted that <ORG> carries on mining operation in coal mines/washeries in the town of Jamshedpur. These coal mines and collieries are known as West Bokaro Collieries and the Collieries have two coal washeries where the coal after its extraction from the mines is brought and broken into graded pieces and there-

after it is processed for the purpose of reducing its ash contents. A chemical process is carried out which is known as `froth floatation process'. Under this process the graded coal is mixed with diesel oil, pine oil and many other chemical ingredients and thereafter it is washed with the lacs of gallons of water. The end water is washed coal with reduced quantity of ash content fit for high graded metallurgical process for the purposes of manufacture of steel. In the process of washing large quantity of water is discharged through pipes which carry the discharged water to storage ponds constructed for the purpose of retaining the slurry. Along with the discharged water, small particles of coal are carried away to the pond where the coal particles settle down on the surface of the pond, and the same is collected after the pond is de-watered. The coal particles which are carried away by the water is called the slurry which is ash free, it contains fine quality of coal which is used as fuel.

The petitioner has alleged that the surplus waste in the form of sludge/slurry is discharged as an effluent from the washeries into the Bokaro river which gets deposited in the bed of the river and it also gets settled on land including the petitioner's land bearing Plot No.170. He was further alleged that the sludge or slurry which gets deposited on the agricultural land, is absorbed by the land leaving on the top a fine carbonaceous product or film on the soil, which adversely affects the fertility of the land. The petitioner has further alleged that the effluent in the shape of slurry is flown into the Bokaro river which is carried out by the river water to the distant places polluting the river water as a result of which the river water is not fit for drinking purposes nor it is fit for irrigation purposes. The continuous discharge of slurry in heavy quantity by <ORG> from its washeries posing risks to the health of people living in the surrounding areas and as a result of such discharge the problem of pure drinking water has became acute. The petitioner has asserted that inspite of several representations, <ORG> and <ORG> have failed to take any action against the Company instead they have permitted the pollution of the river water. He has further averred that <ORG> instead of taking any action against the Company has been granting leases on payment of royalty to various persons for the collection of slurry. He has, accordingly, claimed relief for issue of direction directing the respondents which include <ORG>, <ORG>, <ORG> and <ORG> to take immediate steps prohibiting the pollution of Bokaro river water from the discharge of slurry into the Bokaro river and to take further action under provisions of the Act against <ORG>

The respondents have contested the petition and counter-affidavits have been filed on behalf of the respondent Nos. 2, 4 and 5-State of Bihar, <ORG>, <ORG> and <ORG> In the counter-affidavits filed on behalf of the respondents, the petitioner's main allegation that the sludge/slurry is being discharged into the river Bokaro causing pollution to the water and the land and that the Bihar <ORG> has not taken steps to prevent the same is denied. In the counter-affidavit filed on behalf of the Bihar <ORG> it is asserted that <ORG> operates open case and underground mining. The <ORG> in accordance to Sections 25 and 26 of the Water (Prevention Control of Pollution) Act, 1974 applied for sanction from the <ORG> of discharge their effluent from their outlets. The <ORG> before granting sanction analysed their effluent which was being watched constantly and monitored to see that the discharges does not affect the water quality of the Bokaro river adversely. In order to prevent the pollution the <ORG> issued direction to the Director of the Collieries to take effective steps for improving the quality of the effluent going into the Bokaro river. The <ORG> imposed conditions requiring the <ORG> to construct two settling tanks for settlement of solids and rewashing the same. The <ORG> directed for the regular samples being taken and tested for suspended solids and for the communication of the results of the tests to the <ORG> each month. The State <ORG> has asserted that the <ORG> has constructed four ponds ensuring more storing capacity of effluent. The Pollution <ORG> has been monitoring the effluent. It is further stated that on the receipt of the notice of the instant writ petition the <ORG> carried out an inspection of the settling tanks regarding the treatment of the effluent from the washeries on 20th June, 1988. On inspection it was found that all the four settling tanks had already been completed and work for further strengthening of the embankment of the tanks was in progress, and there was no discharge of effluent from the washeries into river Bokaro except that there was negligible seepage from the embankment. It is further stated that the <ORG> considered all the aspects and for further improvement it directed the management of the collieries for removal of the settle slurry from the tanks. The <ORG> has directed that the washeries shall perform desludging of the settling tanks at regular intervals to achieve the proper required retention time for the separation of solids and to achieve discharge of effluents within the standards prescribed by the <ORG>. It is further asserted that at present there is no discharge from any of the tanks of the Bokaro river and there is no question of pollution of the river water of affecting the fertility of land. In their affidavits files on behalf of the respondent-

Nos. 4 and 5, they have also denied the allegations made in the petition. They have asserted that the effective steps have been taken to prevent the flow of the water discharge from the washeries into the river Bokaro. it is stated that infact river Bokaro remains dry during 9 months in a year and the question of pollution of water by discharge of slurry into the river does not arise. However, the management of the washeries have constructed from different ponds to store the slurry. The slurry which settles in the pounds is collected for sale. The slurry contains highly carbonaceous materials and it is considered very valuable for the purpose of fuel as the ash contents are almost nil in the coal particles found in the slurry. Since, it has high market value, the Company would not like it to go in the river water. The Company has taken effective steps to ascertain that no slurry escapes from its ponds at the slurry is highly valuable. The Company has been following the directions issued by <ORG> constituted under the 1974 Act.

On the facts as appearing from the pleadings and the specific averments contained in the counter-affidavit filed on behalf of <ORG> of Bihar, prima facie we do not find any good reason to accept the petitioner's allegation that the water of the river Bokaro is being polluted by the discharged of sludge or slurry into it from the washeries of the respondent-company. On the other hand we find that <ORG> has taken effective steps to check the pollution. We do not consider it necessary to delve into greater detail as the present petition does not appear to have been filed in public interest instead the petition has been made by the petitioner in his own interest.

On a perusal of the counter-affidavit filed on behalf of the respondent Nos. 4 and 5 it appears that the petitioner has been purchasing slurry from the respondent Nos. 4 and 5 for the last several years. With the passage of time he wanted more and more slurry, but the respondent- company refused to accept his request. The petitioner is an influential businessman, he had obtained a licence for coal trading, he tried to put pressure through various sources on the respondent-company for supplying him more quantity of slurry but when the Company refused to succumb to the pressure, he started harassing the Company. He removed the Company's slurry in an unauthorised manner for which a Criminal Case No., 173 of 1987 under Sections 379 and 411 of the Indian Penal Code read with Section 7 of the Essential Commodities Act was registered against the petitioner and <NAME> his brother at Police Station Mandu, which is pending before-

the Sub-Judge, Hazaribagh. One Shri <NAME> also filed a criminal complaint under Section 379 and 411 of the  against the petitioner and his brother <NAME> in <ORG> Hazaribagh, which is also pending before <ORG> 2nd Class Hazaribagh. The petitioner initiated several proceedings before <ORG> under Article 226 of the constitution for permitting him to collect slurry from the <NAME> land. These petitions were dismissed on the ground of existence of dispute relating to the title of the land. The petitioner filed a writ petition C.W.J.C. No. 887 of 199o in <ORG> for taking action against the Deputy Commissioner, Hazaribagh for implementing the Full Bench judgment of <ORG> in <ORG> & etc. etc. v. <ORG> & Ors., AIR 1986 Patna 242 wherein it was held that the slurry was neither coal nor mineral instead it was an industrial waste of coal mine, not subject to the provisions of the Mines and Mineral (Regulation and Development) Act , 1957. Consequently the collection of slurry which escaped from the washeries could be settled by <ORG> with any person without obtaining the sanction of <ORG>. The petitioner has been contending before <ORG> that the slurry which was discharged from washeries did not belong to the Company and he was entitled to collect the same. Since the respondent- company prevented the petitioner from collecting slurry from its land and as it further refused to sell any additional quantity of slurry to him, he entertained grudge against the respondent-company. In order to feed fat his personal grudge he has taken several proceedings against the respondent-company including the present proceedings. These facts are quite apparent from the pleadings of the parties and the documents placed before the <ORG>. Infact,there is intrinsic evidence in the petition itself that the primary purpose of filling this petition is not to serve any public interest instead it is in self-interest as would be clear from the prayer made by the petitioner in the interim stay application. The petitioner claim interim relief from this <ORG> permitting him to arrest/collect sludge/slurry flowing out of the washeries of the respondent Nos. 4 and 5 and with a direction to the <ORG>, its officers and other authorities for not preventing him from collecting the sludge/slurry and transporting the same. The prayer for the interim relief made by the petitioner clearly indicates that he is interested in collecting the slurry and transporting the same for the purposes of his business. As already state a Full Bench of <ORG> held that the slurry was not coal and the provisions of the Mines and Mineral (Regulation and Development) Act , 1957 were not applicable, <ORG> was tree to settle the same-

and <ORG> had no right to collect the slurry which escaped from its washeries. The respondent-company filed an appeal before this Court. During the pendency of the aforesaid appeal, the petitioner filed the present petition. The appeal preferred by <ORG> and <ORG> was allowed by this Court and judgment of <ORG> was set aside. The judgment of this Court is reported in Judgments today Vol. 3 1990 SC 533 wherein it has been held that the slurry/coal deposited on any and continues to be coal and the State Government has no authority in law to deal with the same and the slurry deposited on the Company's land belongs to the Company and no other person had authority to collect the same.

Article 32 is designed for the enforcement of Fundamental Rights of a citizen by <ORG>. It provides for an extraordinary procedure to safeguard the Fundamental Rights of a citizen. Right to live is a fundamental right under Art 21 of the Constitution and it includes the right of enjoyment of pollution free water and air for full enjoyment of life. If anything endangers or impairs that quality of life in derogation of laws, a citizen has right to have recourse to Art, 32 of the Constitution for removing the pollution of water or air which may be detrimental to the quality of life. A petition under Art. 32 for the prevention of pollution is maintainable at the instance of affected persons or even by a group of social workers or journalists. But recourse to preceeding under Art. 32 of the Constitution should be taken by a person genuinely interested in the protection of society on behalf of the community. Public interest litigation cannot be invoked by a person or body or person to satisfy his or its personal grudge and enmity. if such petitions under Article 32 , are entertained it would amount to abuse of process of the <ORG>, preventing speedy remedy to other genuine petitioner from this <ORG>. Personal interest cannot be enforced through the process of this <ORG> under Art. 32 of the Constitution in the garb of a public interest litigation. Public interest litigation contemplates legal proceeding for vindication or enforcement of fundamental rights of a group of persons or community which are not able to enforce their fundamental rights on account of their incapacity, poverty or ignorance of law. A person invoking the jurisdiction of this <ORG> under Art. 32 must approach this <ORG> for the vindication of the fundamental rights of affected persons and not for the purpose of vindication of his personal grudge or enmity. It is duty of this <ORG> to discourage such petitions and to ensure that the course of justice is not obstructed or polluted by unscrupulous litigants by invoking the extraordinary jurisdiction of this <ORG> for personal matters under the garb-

of the public interest litigation see <CITATION> ,  2 SCR 67; <CITATION> ,  2 SCC 295 at 331; <CITATION> .,  Suppl. 1 SCC 251 and <CITATION> .,  4 SCC 449.

In view of the above discussion we are of the opinion that this petition has been filed not in any public interest but for the petitioner's personal interest and for these reasons we dismissed the same and directed that the petitioner shall pay Rs. 5,000 as costs. These costs are to be paid to the respondent Nos. 3,4 & 5.

T.N.A. Petitions dismissed


<NAME>, J.

1. This is an appeal from a decision of a Full Bench of <ORG> at Calcutta. It was admitted by virtue of a special order of Her Majesty in Council, whereby the appellant had leave to appeal in the form of a special case upon the following questions, viz:

1st.--Whether, under the Hindu law as administered in the Bengal school, a widow, who has once inherited the estate of a deceased husband, is liable to forfeit that estate by reason of unchastity? and 2nd.--Whether the forfeiture, if any, is barred by Act XXI of 1850?

2. The appeal was admitted on account of the importance of the questions submitted for determination, and the great interest which the Hindu community take in it.

3. The case came in the first instance upon special appeal before <ORG>, consisting of Mr. Justice <NAME> and Mr. Justice <NAME>, who were of opinion that the defendant had, by reason of unchastity, forfeited her right in her husband's property; but in consequence of a contrary ruling of <ORG>, referred the two questions above mentioned to <ORG>, with their remarks thereon.

4. <ORG> consisted of the Chief Justice and nine other Judges, and the majority held that the widow, having once inherited the estate, did not forfeit it by reason of her subsequent unchastity. Three of the Judges however, viz., Mr. Justice <NAME>, Mr. Justice <NAME>, and Mr. Justice <NAME>, dessented from the opinions expressed by the majority of the <ORG>. The case is fully reported in the 13 Bengal Law Reports, p. 1.

5. The subject has been very elaborately discussed by the Chief Justice and the other Judges of <ORG>, and it has also been fully argued before their Lordships on behalf of the appellant. The respondent did not appear.

6. The opinion of Mr. Justice <NAME>, who was himself a learned and accomplished Hindu lawyer, and those of the other two Judges who were in the minority, are entitled to very great weight; but having considered and weighed all their arguments, their Lordships are unable to concur in the opinions which they expressed.

7. The earliest case in which the subject was fully discussed in <ORG> is the case of <CITATION> (5 B.L.R., 466), which was the cause of the reference.

8. That case was originally tried before Mr. Justice <NAME>, who delivered a judgment, in which he showed much research and great knowledge of the subject. "The case was appealed to <ORG>, and heard before the then Chief Justice and Mr. Justice <NAME>, who affirmed the judgment of Mr. Justice <NAME>.

9. Their Lordships will, in the first instance, advert to the judgments of the dissentient Judges, and in particular to the opinion expressed by Mr. Justice <NAME> on referring the case, and to his judgment after the argument in <ORG>. Reasoning from the general notions of the Hindu commentators, touching the frailty and incapacity of women, and the necessity for their dependence upon and control by some male protector, and from the origin and nature of a widow's interest in the property which she takes in succession to her husband, he arrived at the conclusion that she is, as he express it, "a trustee for the benefit of her husband's soul;" that inasmuch as, by reason of unchastity subsequent to her husband's death, she becomes incapable of performing effectually the religious services that are essential to his spiritual welfare, she ceases to be capable of performing her trust, and must therefore be taken to have broken the condition on which she holds the property, and to have incurred the forfeiture of her estate. It may be remarked that the other two dissentient Judges differed from Mr. Justice <NAME>'s view of the nature of a Hindu widow's estate, and, therefore, from a good deal of the reasoning upon which his conclusion is founded. But however that may be, their Lordships entirely concur with the Chief Justice and the majority of the Judges in rejecting the somewhat fanciful analogy of trusteeship.

10. Mr. Justice <NAME>'s judgment founded upon the express texts, and upon the ground that by reason of unchastity a widow becomes incapable of performing those religious ceremonies which are for the benefit of her husband's soul. He draws a distinction between a widow and a son, and says (13 B.L.R., 55):

The theory of the Hindu law of inheritance is the capability by the heir of performing certain religious ceremonies which do good to the soul of the departed, and he takes who can render most service. The sons down to the third generation could do most, offer most oblations, and confer the greatest benefits, therefore they are first in the line of heirship. The widow comes next, as being able to confer considerable, though less, benefits, and it is only because she is able to do this that she is allowed to take her husband's share.

It would seem, therefore, to be a condition precedent to her taking that estate, that she should be in a position to perform the ceremonies, and offer the continual funeral oblations, which are to benefit her deceased husband in the other world; and in this respect her position is very different from that of a son. The son confers benefits upon his father from the mere fact of being born capable of performing certain ceremonies. His birth delivers him from the hell called put; and, whether in after-life he offer the funeral oblations or no, he succeeds to his father's inheritance from the fact of being able to offer them. With the widow it is not so; she can only perform ceremonies and offer oblations so long as she continues chaste, and directly she becomes unchaste, from that moment her right to offer the funeral cake ceases.

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 (<NAME>, 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 <NAME>, excluded for certain causes from inheritance in the same manner as other heirs (see the <NAME>, 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 <NAME> (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 <NAME>, in his Judgment (13 B.L.R., 40) says:

Of all the authorities above referred to, the <NAME> of <NAME>, the acknowledged founder of the Bengal school, is undoubtedly the highest; and it is therefore to the <NAME> 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 <NAME>, cited in v. 7, Sec. I Chap. XI of Mr. <NAME>'s translation of the <NAME>; and that of Catyayana, cited in v. 56 of the same section and chapter. These two versus are as follows:

(1) The widow of a childless man, keeping unsullied her husband's bed, and persevering in religious observances, shall present his funeral oblation and obtain his entire share.

(2) (sic) childless widow, keeping unsullied the bed of her lord, and abiding with her venerable protector, enjoy with moderation the property until her death. After her let the heirs take it.

14. With regard to the former of the texts above cited, although the present participle is used, it clearly refers only to the conduct of the widow up to the time of her husband's death, and not to her conduct subsequently. It cannot mean up to the time of her presenting the funeral oblation; for, notwithstanding the order of the words, the meaning of the text is, that having obtained the husband's share, the patni or widow should perform those ceremonies conducive to the spiritual benefit of her husband and herself, which can be accomplished by wealth, and which a female is competent to perform; see The Viramitrodaya, Chap. III. Part I, Section 2; and the Smriti Chandrika, Chap. XI, Sec. I, vv. 13, 16, and 20. In this view the text would run thus,--"The widow of a childless man having kept unsullied her husband's bed, and persevered in religious observances, shall obtain his entire share, and present his funeral oblation."

15. Mr. Justice <NAME> points to the words "persevering in religious observances," to prove that the whole text applies to a period subsequent to the husband's death and as referring to a continually abiding condition, because he assumes that a wife cannot perform religious observances during her husband's life, and that, therefore, those words must have relation to a period after her husband's death. But the assumption does not appear to be correct, for in the <NAME> Chandrika, Chap. XI, Sec. I, v. 17, the meaning of the words, "persevering in religious observances "are thus explained,--"practising religious ceremonies even during the lifetime of the husband, with the husband's permission," &c., whence the inference is drawn, in v. 18, that a patni, to inherit her husband's estate, must be a pious woman. And again in v. 12, a virtuous woman is "one that lives with her husband, associating with him in the performance of rites ordained by <NAME> and <NAME>, and observing fastenings and other religious ceremonies."

16. The Second of the texts relied upon is that of <NAME>.

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 <NAME> 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 <NAME>. He says:

By the term 'his share' is understood the entire share appertaining to her husband, not a part only, "(the translator adds the words" sufficient for her support.

19. And then in v. 55 he concludes:

Therefore the interpretation of the law is right as set forth by us, "viz., that" the widow's right must be affirmed to extend to the whole estate of her husband(v. 6).

20. He then proceeds, in v. 56, to deal with the mode of enjoyment, and to show that, notwithstanding a widow takes the entire estate, she is not entitled to make a gift, sale, or mortgage of it, to the exclusion of her husband's heirs He says:

But the wife must only enjoy her husband's estate after his demise; she is not entitled to make a gift, mortgage, or sale of it.

21. And then, in support of that proposition, he refers to the second text cited, and proceeds:

Thus <NAME> says: Let the childless widow, preserving unsullied the bed of her lord, and abiding with her venerable protector, enjoy with moderation the property until her death. After her death let the heirs take it.

22. Mr. Justice <NAME>, in his judgment, remarks, at p. 41, that the author of the Dayabhaga cited that text, not for the purpose which he cited that of <NAME>, viz., that of establishing a widow's right to succeed to the entire estate of her deceased husband, but for that of defining the nature and extent of the interest which devolves upon her by virtue of that right.

23. In his remarks made on referring the case, however, he reasons upon it as an isolated text, and says (13 B.L.R., 16):

This passage shows clearly, not only that the widow's right is a mere right of enjoyment, the word 'enjoyment' being understood in the sense explained above, but that the exercise of that right is absolutely dependent on her 'preserving unsullied the bed of her lord.' The participial form of the word 'preserving,'i.e., continually preserving, which is also the form used in the original (palayanti), proves conclusively that the injunction is one in the nature of a permanently abiding condition, which a widow is bound at all times, and under all circumstances, to satisfy; and the right of enjoyment conferred upon her being expressly declared to be subject to such a condition, every violation of it must necessarily involve a forfeiture of right.

24. Mr. Justice <NAME> also, at page 57, expresses a similar opinion, and he refers to the present participle "preserving" as denoting continuance, and as referring to the time after the widow has taken the property originally; and he adds besides, if the words "keeping unsullied" refer only to past time, what is to be made of the other part, which he assumes to import a condition, viz., living with her venerable protector." "She cannot," he says," live with him until she is a widow, "and" while she lives with him she is to keep unsullied her husband's bed." It is by treating the words "living with her venerable protector" as constituting a condition that he endeavours to add force to his argument that the words "keeping unsullied the bed of her lord" also express a condition (13 B.L.R. 57). But that argument fails, inasmuch as it has been expressly held by <ORG>, in the case of <CITATION> by <NAME>, 97, and (judgment of <ORG>), 2 Morley's Digest, 198; S.C., Morton's Decisions Edn. of 1841, p. 85), that the words "abiding with her venerable protector" do not create a condition of forfeiture in case of her refusing to abide with him. Referring to that decision, Mr. Justice <NAME> says, that it lends in an indirect way considerable support to his view, inasmuch as that particular case was decided expressly upon the ground that the widow had not changed her residence for unchaste purposes. Their Lordships, however, are of opinion that that the words "abiding with her venerable protector" do not, under any circumstances, create a condition, or a limitation of a widow's right to enjoy the property of her husband to the period during which she abides with her protector. They agree with the Chief Justice in the opinion which he expressed at p. 82, that neither the words "preserving unsullied the bed of her lord," nor the words "and abiding with her venerable protector," import conditions involving a forfeiture of the widow's vested estate (13 B.L.R., 92); but even if the words were more open to such a construction than they appear to be, their Lordships are of opinion that what they have to consider is not so much what inference can be drawn from the words of <NAME>'s text taken by itself, as what are the conclusions which the author of the Dayabhaga has himself drawn from them. It is to that treatise that we must look for the authoritative exposition of the law which governs Lower Bengal, whilst on the other hand nothing is more certain than that, in dealing with the same ancient texts, the Hindu commentators have often drawn opposite conclusions. Now how has <NAME> dealt with this particular text? It has been seen for what purpose he cited it; but how does he comment on it in the rest of the section in which it occurs? He comments on the words "venerable protector" (v. 57); he defines who are intended to take after the demise of the widow under the term "the heirs" (vv. 58 and 59); glances at her duty to lead an abstinent, if not an ascetic, life, and to avoid "waste" (vv. 60 and 61), and deals with her power of alienation, and the limitations upon it (vv. 62, 63 and 64). But he nowhere says one word from which it can be inferred that, in his opinion, the text implied continued chastity as a condition for the duration of her estate, or that a breach of chastity subsequent to the death of her husband would operate as a forfeiture of her right. It can scarcely be supposed that a commentator so acute and careful as <NAME>, if he had drawn from the text of <NAME> the inference that a widow was to forfeit the estate if she should become unchaste after her husband's death, would not have stated that inference clearly by saying, in v. 57, "let her enjoy her husband's estate during her life, or so long" as she continues chaste," instead of using only the words "during her life" and stating that "when she dies" the daughters and others are to succeed.

25. The right to receive maintenance is very different from a vested estate in property, and therefore what is said as to maintenance cannot be extended to the case of a widow's estate by succession. However, the texts cited in regard to maintenance show that, when it was intended to point out that a right was liable to resumption or forfeiture, clear and express words to that effect were used. <NAME>, in Chap. XI, Sec. I, v. 48, of the <ORG>, refers to a text of <NAME>, in which he says,--" Let them allow a maintenance to his women for life, provided they keep unsullied the bed of their lord. But if they behave otherwise, the brother may resume that allowance." How different are those words from those used in the text of <NAME>.

26. Mr. Justice <NAME>, in order to get rid of the argument that a daughter, becoming a sonless widow, or unchaste after having succeeded to the estate of her father, does not forfeit the estate, argues that the texts to which he refers are applicable to a daughter as well as to a widow, and he refers to v. 31, Sec. II, Chap. XI of the Dayabhaga to show that the text of Catyayana is applicable to all women. (See 13 B.L.R., pp. 45 and 46, 48 and 49).

27. It seems clear, however, that though an unchaste daughter is excluded from inheriting her father's estate, or an unchaste mother that of her son, it is not by virtue of either of the above-mentioned texts of <NAME> or that of <NAME>. Those texts have reference to the bed of the deceased owner of the estate. The words, "his funeral oblation," and "his share," and "the property," have reference to the oblation, the share, and the property of the lord or husband mentioned in the preceding parts of the texts, whose estate is to be inherited, and not to the husband or lord whose estate is not to be inherited, such as the husband or lord of a daughter or mother, as the case may be, of the deceased owner, who, in default of a widow, may be next in succession to inherit his estate.

28. Verse 31, Sec. II, Chap. XI, only extends to other women the rule applicable to a wife, that a gift, sale, or mortgage of the estate is not to be made, and that after her death the heirs of the deceased owner are to take, and not that part of the rule which is included in the words "keeping unsullied the bod of her lord." This is made clear by Section 30, in which it is said:

Since it has been shown by a text cited (Sec. I, v. 56) that on the decease of the widow in whom the succession had vested, the legal heirs of the former owner who would regularly inherit his property if there were no widow in whom the succession vested, namely, the daughters and the rest, succeed to the wealth; therefore, the same Rule (concerning the succession of the former possessor's next heirs) is inferred a fortiori in the case of the daughter and grandson (meaning a daughter's son), whose pretensions are inferior to the wife's.

29. Then comes Section 31, which is in the words following:

The word 'wife' in the text above quoted (Sec. I, v. 55) is employed with a general import, and it implies that the rule, "(meaning the rule referred to in Chap. XI, Sec II, and para. 30)" must be understood as applicable generally to the case of a woman's succession by inheritance.

30. Their Lordships have dealt at some length upon the two texts that have been considered, since it is upon them that the arguments of the dissentient Judges are mainly founded. For the reasons above stated, they are of opinion that these texts, neither expressly nor by necessary implication, affirm the doctrine that the estate of a widow, once vested, is liable to forfeiture by reason of unchastity subsequent to the death of her husband.

31. The judgments of <ORG> have so exhaustively reviewed the later authorities upon this question that their Lordships do not think it necessary to go through the same task. It is sufficient to say that, in their opinion, those authorities, though in some degree conflicting, greatly preponderate in favour of the conclusion of the majority of the Judges of <ORG>.

32. In their Lordships' view it has not been established that the estate of a widow forms an exception to what appears to be the general rule of Hindu law, that an estate once vested by succession or inheritance is not divested by any act which, before succession or incapacity, would have formed a ground for exclusion from inheritance.

33. The general rule is stated in the Viramitrodaya, a book of authority in Southern India (see 12 Moore's Indian Appeals, 466; and Mr. <NAME>'s Preface to the Dayabhaga), and which may also, like the Mitakshara be referred to in Bengal in cases where the Dayabhaga is silent. It is there said, in para. 3 of the Chapter on Exclusion from Inheritance (Cap. VIII), "amongst them, however, an outcast (patita) and addicted to vice (upapataki) are excluded if they do not perform penance;" and then in para. 4 the exclusion again of these takes place if their disqualification occur previously to partition (or succession), but not if subsequently to partition (or succession), for there is no authority for the resumption of allotted shares. In para. 5 it is said that the masculine gender in the word "outcast," &c., is not intended to be expressive of restriction, and that the law of exclusion based upon defects excludes the wife or the daughters, female heirs as well.

34. Mr. Justice <NAME> has ably pointed out the great mischief uncertainty, and confusion that might follow upon the affirmance of the doctrine that a widow's estate is forfeited for unchastity, particularly in the present constitution of Hindu society, and the relaxation of so many of the precepts relating to Hindu widows. The following consequences may also be pointed out.

35. According to the Hindu law, a widow who succeeds to the estate of her husband in default of male issue, whether she succeeds by inheritance or survivorship--as to which see the <NAME> case (9 <NAME>'s I.A., 604) does not take a mere life-estate in the property. The whole estate is for the time vested in her absolutely for some purposes, though in some respects for only a qualified interest. Her estate is an anomalous one, and has been compared to that of a tenant-in-tail. It would perhaps be more correct to say that she holds an estate of inheritance to herself and the heirs of her husband. But whatever her estate is, it is clear that, until the termination of it, it is impossible to say who are the persons who will be entitled to succeed as heirs to her husband (3 <NAME>'s I.A., 604). The succession does not open to the heirs of the husband until the termination of the widow's estate. Upon the termination of that estate the property descends to those who would have been the heirs of [790] the husband if he had lived up to and died at the moment of her death (<NAME>'s I.A. 601).

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 <NAME>, 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 (<NAME> 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. (<NAME>, 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.

37. Again if the surviving brother should die in the lifetime of the widow, all the nephews would succeed as heirs of their deceased uncle; but if the son of surviving brother could prove that the widow's estate had ceased, by reason of an act of unchastity committed in the lifetime of his father, and that consequently the estate had descended to his father in his lifetime, he would be entitled to the whole estate as heir to his father to the exclusion of the other nephews. Thus the period of descent to the reversionary heirs of the husband might be accelerated by an act of unchastity committed by the widow; the course of descent might be changed by her act, and persons become entitled to inherit as heirs of the husband, who if the widow had remained chaste would never have succeeded to the estate; and others who would otherwise have succeeded would be deprived of the right to inherit.

38. In the case of <CITATION> (5 B.L.R., 466, at p. 490), the following remark was made by the then Chief Justice. He said:

In the case of <NAME> v. <NAME> (9 Moore's I.A., 539), it was held that a decree in a suit brought by a Hindu widow binds the heirs who claim in succession to her; but that can only be in a suit brought by her so long as she holds a widow's estate. It would cause infinite confusion if a decree in a suit brought by a widow could be avoided, if it could be shown that she had committed an act of unchastity before she commenced the suit. But if the rule contended for is correct, and the estate which a widow takes by inheritance is merely an estate so long as she continues chaste, all the acts which a Hindu widow could do in reference to the estate might be avoided by raking up some act of unchastity against her. Inconvenience would not be a ground for deciding a case like the present, if the law were clear upon the subject; but it is an argument which may be fairly adduced when the authorities in favour of the opposite view are merely the expressions of opinion by Hindu law officers, or by European or modern text-writers, however eminent, or even decisions of <ORG>, when they are in conflict with the decisions of other Courts of equal weight.

39. Upon the whole, then, their Lordships, after careful consideration of this question, and of the authorities bearing upon it, have come to the conclusion that the decision of the majority of the Judges was the correct one, and it is important to remark that <ORG> at Bombay, in the case of <NAME> v. <NAME> (4 Bom. H.C.R., A.C., 25), and <ORG> in the North-Western Provinces, in the case of <NAME> v. <NAME> (<ORG>, 2 All., 150), have given judgments to the same effects as that of <ORG> at Calcutta in the present case.

40. The widow has never been degraded or deprived of caste. If she had been, the case might have been different, subject to the question as to the construction of Act XXI of 1850; for upon degradation from caste, before that Act, a Hindu, whether male or female, was considered as dead by the Hindu law, so much so that libations were directed to be offered to his manes as though he were naturally dead. See Strange's Hindu Law, 160 and 261; Menu, Chap. XI, Section 183. His degradation caused an extinction of all his property, whether acquired by inheritance, succession, or in any other manner. <NAME>, Chap. I, paras. 31, 32, and 33. The opinion of Mr. <NAME> in the <ORG> case is founded on the distinction between mere unchastity and degradation.

41. It is unnecessary to determine what would have been the effect of Act XXI of 1850, if she had been degraded or deprived of her caste in consequence of her unchastity.

42. Their Lordships, for the above reasons, will humbly advice Her Majesty to affirm the judgment of <ORG>.