Bibhabati Devi vs Dhara Devi

P.N. Mookerjee, J.—This is a sequel to the famous Bhowal Sanyasi Case which will also be referred to herein as the Bhowal Case.

The Plaintiff in that case who succeeded in establishing his identity before the courts of law as Kumar Ramendra Narayan Roy, the second Kumar of Bhowal, married the Plaintiff of the present suit, Sm. Dhara Devi on August 14, 1942. The Defendant Bibhabati was admittedly married to the Bhowal Second Kumar Ramendra Narayan Roy in the year 1902.

In 1909 the Kumar went to Darjeeling and there after a brief illness he was pronounced to be dead by the doctors and his body was taken to the cremation ground for purposes of cremation. This much is admitted but there was acute controversy as to what happened thereafter. One throughout persisted was that the Kumar''s dead body was duly burnt. The other which is the present Plaintiffs version and which was also the version of the Plaintiff in the Bhowal Sannyasi case and which was accepted by the courts there was that the Kumar came back to life through some mysterious process at the hands of certain Sannyasis who took him with them and what was actually cremated on the occasion was a substitute body. According to this version, the Kumar, so brought back to life by the Sannasis, remained a wanderer with them for several years until about the year 1920 when he made his reappearance at Dacca. There was acute controversy about his identity. His identity was disputed by, amongst others, the Defendant Bibhabati and also by the Court of Wards who had, in the meantime, in or about the year 1914, assumed charge of the Second Kumar''s share in Bhowal Estate upon the footing that the Kumar was dead and his widow and sole heiress Bibhabati was a disqualified proprietor. The dispute eventually led to the institution of the Bhowal Suit (Title suit No. 70 of 1930 of the 1st Court of the Subordinate Judge at Dacca, later renumbered as T.S. No. 5 of 1933 on transfer to the 5th Court) by the present Plaintiff''s husband who claimed to be the second Kumar of Bhowal. This suit was instituted on April 24, 1930, and therein the Plaintiff (who was the present Plaintiff''s husband) who described himself as Kumar Ramendra Narayan Roy of Bhowal claimed to be the second Kumar of Bhowal and claimed title and possession to l/3rd of the Bhowal Estate on that footing. The suit was keenly contested by the present Defendant Bibhabati and also by the Court of Wards who disputed inter alia the Kumar''s identity but it was eventually decreed by the trial court on August 24, 1933 and that decree was affirmed by this Court in the year 1940 and finally by the Privy Council on July 30, 1946. Meanwhile as we have said above, the successful Plaintiff of the Bhowal suit married the present Plaintiff on August 14, 1942 that is, while the Privy Council appeal in the Bhowal case was pending. He, however, died on August 3, 1946, that is, within four days of his winning the Privy Council Appeal and, shortly after his death, a dispute arose between the present Plaintiff Sm. Dhara Devi and the Defendant Bibhabati as to title to the Second Kumar''s share in the Bhowal Estate. That dispute became manifest when, early in 1947, the Court of Wards which had once before taken charge of the said share in or about the year 1914, as already stated hereinbefore but had to relinquish possession and make over the same to the successful Plaintiff of the Bhowal suit when he executed his decree during the pendency of the High Court Appeal proposed to assume charge of the said share over again on declaration that both the parties to the present suit, namely, the Plaintiff Dhara Devi and the Defendant Bibhabati, were disqualified proprietors and were incompetent to manage their property. The proposal was made in a letter of the Board of Revenue, dated January 30, 1947, and in reply, both the parties appear to have claimed sole and exclusive title to the Second Kumar''s 1/3rd share, though on different grounds. As, however, in the opinion of the Board both the ladies were incompetent to manage their property, the Court of Wards assumed charge of the properties in or about February 1947. As regards payments to the two ladies out of the funds of the Estate, the Board was at first hesitant in view of the conflicting claims made by them to the title to the Estate but, eventually, it decided to pay the present Plaintiff suitable maintenance allowance from the funds of the Estate. It did not, however, accept the Plaintiff''s claim of sixteen annas title to the Estate. All this will appear from the several letters which have been exhibited in this case and marked as Exts. 3(i), 30(j), 3(k), 3(m) and 3(n).

Such was the state of things, prior to the Partition of Bengal. After the Partition, it appears, the Board of Revenue, East Bengal, took charge of practically the whole of the above properties. The Plaintiff also, it appears, filed the present suit shortly after the Partition as the Board was not willing to accept her title to the sixteen annas of the Estate, left by the second Kumar of Bhowal and was keeping a portion (half) of the income in reserve until the establishment of her sixteen annas title to the whole income in the Civil Court. The Board, it appears further was proceeding on the footing that both the Plaintiff and the Defendants were widows of the late Kumar Ramendra Narayan Roy of Bhowal and were entitled to the Estate, left by him.

In the plaint which was filed on October, 11, 1947, the Plaintiff Sm. Dhara Devi made the following prayers:

(i) That it may be declared that the Defendant was excluded from inheritance and did not inherit any part of the property left by Kumar Ramendra Narayan Roy, deceased, the second son of the late Raja Rajendra Narayan Roy of Bhowal.

(ii) That it may be declared that the Plaintiff is the sole heiress of the said Kumar Ramendra Narayan Roy.

(iii) In any event it may be declared that the Plaintiff is entitled to the whole income of the Estate left by the said Kumar Ramendra Narayan Roy.

(iv) That such further and other reliefs may be granted as to this Hon''ble court may seem fit and proper.

(V) That the costs of the suit may be decreed to the Plaintiff and her principal allegations were:

(1) That the Defendant was not a "Saddhi Patni" of the deceased Kumar, she having disowned her said husband and having refused or neglected or failed to perform any of the Kumar''s after death ceremonies and had also by her conduct revealed herself as a positive enemy of her said husband and as such she was excluded from his inheritance;

(2) that the Defendant was not in possession of any portion of the Estate of the deceased Kumar and did not claim any interest therein.

Defendant Bibhabati appeared in the suit on January 10, 1948, and prayed for time to file written statement. The suit was thereupon adjourned to February 10, 1948. On this date, the manager, Court of Wards, Bhowal East Bengal, came forward with an application to represent both the Plaintiff and the Defendant who were, according to him, disqualified proprietors and Wards of Court. The prayer was opposed by the Plaintiff Sm. Dhara Devi who filed her objection on February 26, 1948. On March 20, 1948 the manager, Court of Wards, Bhowal Estate, filed a second application, asking for permission to represent the Defendant Bibhabati alone if the court thought that he could not, in law, represent both the Plaintiff and the Defendant. The manager''s prayer was rejected by the learned Subordinate Judge Sri. Jitendra Nath Maitra on March 31, 1948 holding inter alia that he (the manager) had no right to intervene in the suit. On September 20, 1948 the trial court''s order was set aside by this Court in Civil Rule No. 626 of 1948 at the instance of manager and the matter went back to the trial court for reconsideration in the light of certain directions, given by this Court. This time the learned Subordinate Judge Sri. Pramatha Nath Lahiri gave permission to the manager to represent the Defendant Bibhabati by admitting him as Defendant No. 2 under the following description:

Bibhabati Devi represented by Rai Bahadur Prafulla Kumar "Ghosh, manager, Court of Wards, Bhowal Estate.

Retaining Bibhabati as Defendant No. 1 in her personal or independent capacity.

The suit then proceeded with the two Defendants Nos. 1 and 2, as described above, on record. Defendant No. 1 Bibhabati in her personal capacity did not eventually file any written statement but Defendant No. 2 Bibhabati represented by Rai Bahadur Prafulla Kumar Ghose, manager, Court of Wards, Bhowal Estate, filed a written statement on January 3, 1949 denying the material allegations made in the plaint, and claiming that the suit should be dismissed.

At the hearing the principal question before the court was whether the Defendant Bibhabati was excluded from inheritance, so far as the Estate of the deceased Second Kumar of Bhowal was concerned. That exclusion was claimed first on the ground that she was not a "Saddhi Patni" of the deceased Second Kumar so as to be entitled to his inheritance. The allegation that Bibhabati was not a "Saddhi Patni" was based on two allegations of fact, namely that she had disowned her said husband and had refused, failed or neglected to perform any of his after-death ceremonies. The plea of exclusion was also sought to be supported on the ground that Bibhabati''s conduct had shown that she was an enemy of the deceased Second Kumar. In support of her above contentions, the Plaintiff Dhara Devi relied upon certain texts of Hindu Law and upon the conduct of Bibhabati before, during and after the Bhowal case. The learned Subordinate Judge accepted the Plaintiff''s contention and, having held that the Defendant Bibhabati was excluded from inheritance and having overruled the other defences to the suit which have not been urged in this Court and which, accordingly, are not material for our present purpose, he passed a decree in the Plaintiff''s favour. Against this decree the present appeal has been preferred by Defendant No. 2 Bibhabati Devi represented as it now stands on the record, by the Manager, Court of Wards, Bhowal Estate.

A preliminary objection has been raised to the maintainability of the appeal in the present form. The Respondent''s specific contention is that the manager, East Bengal Court of Wards, cannot represent Bibhabati and in any event, she having herself been impleaded as Defendant No. 1 and the decree having been passed against her as such Defendant also and no appeal having been preferred by her as such Defendant, the present appeal on her behalf by the manager, Defendant No. 2 is not maintainable. In the circumstances of this case we are not inclined to accept this contention. The decree is undoubtedly against Defendant No. 2 also and Defendant No. 2 is, therefore entitled to file an appeal alone making the other Defendant (Defendant No. 1) a party Respondent. The appellate court has also, in our opinion, in the circumstances of this case, ample power under Order XLI, Rules 4 and 33 of the Code, to reverse or vary the decree or pass any order in favour of both the Defendants in the appeal by Defendant No. 2, alone notwithstanding the fact that Defendant No. 1 has not appealed. The real question is whether the manager, East Bengal Court of Wards, could in law, represent Bibhabati. If that question be answered in the affirmative and if the learned Subordinate Judge''s order, allowing such representation be found to be valid, the manager, representing Bibhabati as Defendant No. 2 would have an independent right of appeal and will be entitled to maintain it even as against Bibhabati as Defendant No. 1, particularly when the present decree may have some effect on the properties in charge of the East Bengal Court of Wards, in respect whereof Bibhabati cannot represent herself and the manager alone can represent her under the law. We would, therefore, proceed at once to consider whether the manager, East Bengal Court of Wards, has been rightly allowed by the learned Subordinate Judge to represent Bibhabati and whether Bibhabati, so represented, has been rightly made Defendant No. 2 in addition to her remaining on the record herself as Defendant No. 1.

As we have said above, the result of this litigation may have some effect on the East Bengal properties of the Second Kumar of Bhowal and it is at least proper, therefore, that the manager of the East Bengal Court of Wards who alone can represent Bibhabati in respect of the said properties should be allowed to intervene on her behalf in the present suit. That in fact has been allowed by the learned Subordinate Judge by impleading her as Defendant No. 2, represented by the said manager. We do not think that in the circumstances of this case, the addition of the said Defendant is improper, remembering that Bibhabati cannot represent herself in respect of the said properties, the title whereto may be affected as a result of this litigation. She is undoubtedly interested in the properties of the deceased Second Kumar of Bhowal with regard to a part whereof she may represent herself but with regard to the rest she can act only through the Manager, East Bengal Court of Wards, and as the decision in the present suit may have effect on the whole of the above properties, it is only proper that Bibhabati should figure as Defendant herself and also as represented by the manager, East Bengal Court of Wards, either representation, considered separately, may not be sufficient for purposes of this suit. We would, accordingly, hold that the learned Subordinate Judge had enough jurisdiction to take the course which he adopted and his order in that behalf should stand.

We need only add that there is nothing in the remand order of this Court in Civil Rule No. 636 of 1948 which excludes the above view of the legal position of the parties. That order dealt with the specific points, raised before the Court on that occasion, and remitted the matter for further consideration after disposing of some of the contentions of the parties. The order, however, does not, in our opinion, limit the parties or the court to the points then raised, and does not preclude the learned Subordinate Judge from dealing with the matter as he has chosen to do now and which we have herein approved. It is to be noted here that in opposing the above Rule, the Plaintiff''s learned advocate Mr. Bankim Chandra Mukherjee pressed only the 6th objection which was set out in the judgment in the following terms:

"The present application by Rai Bahadur Prafulla Kumar "Ghosh describing himself as the manager of the court of Wards, "Bhowal Estate, is bad in law."

and did not raise any other objection (vide p. 11 of the present Paper Book). In this context, we are inclined to treat the observations of their Lordships at page 10 of the Paper book, to which our attention was drawn by Mr. Sen Gupta, as - merely incidental and of a provisional and tentative character which do not conclude the parties or the court and, in our opinion, the learned Subordinate Judge had enough justification to accept Bibhabati''s representation by the manager, Court of Wards, East Bengal, notwithstanding his adverse finding against the manager on objections Nos. 2 and 3 as enumerated in this Court''s remand order.

In the above view, we over-rule the Plaintiff Respondent''s preliminary objection.

Coming now to the merits of the appeal, we have only one broad question to decide, namely, whether in the facts and circumstances of this case, Bibhabati is excluded from inheritance to the estate of the Second Kumar of Bhowal. That decision will have to be made on certain facts which are admitted and some other facts which have been established in the case. There is no dispute also that the Second Kumar is dead. It is not also open to dispute now, in view of the final decision in the Bhowal case, that the Second Kumar did not die in 1909 but lived up to about August 1946, and that he was the successful Plaintiff in the Bhowal suit, and married the Plaintiff Dhara Devi on August 14, 1942. The established position, therefore, is that both the Plaintiff Dhara Devi and the Defendant Bibhabati are widows of the deceased Second Kumar of Bhowal, Bibhabati being the senior widow and Dhara Devi, the junior. Normally then, both would be entitled to the Kumar''s inheritance but the Plaintiff claims that Bibhabati by reason of her conduct, has disentitled herself from claiming such inheritance. The conduct is stated to be as follows:

That (i) Bibhabati repudiated her husband by denying the identity of the Plaintiff in the Bhowal suit and such repudiation or, denial was with full knowledge that the said Plaintiff was her husband the Second Kumar of Bhowal; and

(ii) all through the said litigation and thereafter and even before, she was an enemy of her husband and, accordingly, she cannot be regarded as his "Saddhi Patni" so as to be entitled to his inheritance and, in any event, she was excluded from such inheritance by reason of her enmity or hostility to her husband, the Second Kumar of Bhowal, who was no other than the Plaintiff of the Bhowal suit.

For excluding Bibhabati from the inheritance on account of the aforesaid conduct, reliance is placed upon certain texts of the Hindu sages and upon the opinion of late Grolap Chandra Sastri in his book on Hindu Law. How far that reliance is justified and whether Bibhabati should be excluded from the Second Kumar''s inheritance, we shall presently examine. We may point out, however, that, even if, as a matter of law, a wife who is inimical to her husband and, though chaste in body is not loyal to him in mind and speech is not to be regarded as a "Saddhi Patni," so as to be entitled to his inheritance and even if she is to be excluded from such inheritance merely because of such enmity, a further question will arise in this case as to whether Bibhabati would come within that category. The point of law we shall first consider and then we shall go into the other question which will largely depend upon a proper inference from the facts of this case.

The parties are admittedly governed by the Dayabhaga School of Hindu Law and the question of inheritance or exclusion therefrom will depend primarily upon the law as adopted or laid down in the Dayabhaga. Reference thus becomes necessary first to the two texts, one of Brihaspati and the other of Narada, quoted respectively in Chapter XI and Chapter v. of the Dayabhaga and relied upon by the Plaintiff and the learned Subordinate Judge, which stand as follows:

quoted in Dayabhaga, Chap. XI, Section 1, para 2.)

I quoted in the Dayabhaga, Chapter V. para 13.)

Reference will also have to be made in the course of discussion to certain texts of Manu and certain commentaries in or on Dayabhaga relevant to the present topic.

That Brihaspati''s text, as quoted above, was accepted by Jimutabahan as the basis of the widow''s right of inheritance is not disputed before us. Upon that text, however, the point arises as to what is the true meaning of the two words

I They constitute the positive text of the widow''s right of inheritance and, unless the widow comes within the phrase she is not entitled to inherit to her husband.

Narada''s text, on the other hand, is relevant only on the no question of exclusion from inheritance. Prima facie, also, it applies only to the case of an issue. It is contended, however, that it embodies a general principle of exclusion from inheritance, applicable to the cases of all relations, the word which prima facie refers to the case of an issue being merely illustrative.

For construing the phrase reference was made to two texts of Manu and certain commentaries which we set out below:

and it was contended on behalf of the Plaintiff Respondent that those expressions connote not only physical chastity but mental chastity as well and that a wife, in order to be entitled to her husband''s inheritance must be loyal to the husband both in body and mind. That was also the view taken by the learned Subordinate Judge. The propriety of this view, however, is questioned by Mr. Gupta who appears for the Appellant and he contends that physical chastity is sufficient for purposes of the wife''s inheritance. After giving the matter our best consideration, we are inclined to accept Mr. Gupta''s contention. On this point we agree with the view, expressed by this Court in the case of Sm. Khettramoni Dasi v. Sm. Kadambini Dasi (1912) 16 C.W.N. 964, and uphold the Appellant''s contention. There the question has been very fully discussed and we respectfully agree with all the reasons, given in support of the view that nothing more than physical chastity should be required under the above texts to entitle the wife to succeed. We need only add, by way of reference, the commentary of . Support for this view is also to be found, as stated in Khettramoni''s case (supra). At p. 966 in the Full Bench decision in the case of Kerry Kolitanee v. Monee Ram Koilita (1873) 19 W.R. 367 which, though its actual decision as upheld by the Privy Council, was not really on this particular aspect, contains weighty observations in support of the above view.

We ought to clear up one point here. The case in Khetramoni''s case (supra) on which practically we have based our above conclusion, dealt apparently only with the word as it did not mention specifically the other word That however, does not mean that the said word was overlooked. The learned Judge, so it seems to us, did not refer specifically to the word apparently upon the view that the two words and in Brihaspati''s text were synonymous. That also seems to be the real position and, in our opinion, the word in the text quoted, has no wider or different meaning or significance than That is why arguments before us were confined to the meaning of the word light alone and in Khettramoni''s case also, stress was laid only upon the word. In Sastri Golap Chandra''s book too, the word alone is discussed and that forms the whole foundation of the author''s adverse comment and contrary opinion on the point.

It has never been suggested that if the word does not connote anything more than physical chastity, some further requirement ought to be imported from the word . The Commentaries of and amply support this view.

We now take up the rule of exclusion, as given in Narada''s text, quoted above. The relevant word is Reference, however, is made to Verse 3 in the opening Chapter of Dayabhaga and it is contended that the author of Dayabhaga has clearly stated there that, wherever a reference is made by him to the word father or paternal, if means the propositus or the predecessor in interest whose estate is devolving and the word son refers to the person taking. It is argued, accordingly, that the rule of exclusion on the ground of enmity or hostility, as represented by the word applies to the case of any relation, claiming the inheritance, or in other words, that includes

The point raised is not altogether free from difficulty and the relative position under the Hindu Law is not very clear but there are several reasons why the rule of exclusion as stated by Narada cannot help the Plaintiff in the present case.

In the first place, it is not very clear whether Jimutbahan accepted as one of the grounds of exclusion from inheritance. There is considerable force in Mr. Gupta''s submission that, in Jimutbahan''s statement of the law of exclusion from inheritance, wherever the author has accepted or adopted a particular word or ground of exclusion from the texts, quoted from the Rishis, he has always explained it unless the word appeared to be such as to require no explanation. The word as the different commentaries show by their diverse interpretations, does not certainly come within the exception. It has not also been explained or elaborated by Jimutbahan. It may be reasonable to hold, therefore, that the author of Dayabhaga did not adopt it as a ground of exclusion from inheritance in the law, laid down by him.

Jimutbahana again appears to have taken the law of exclusion from inheritance mainly from Manu (vide Para. 7, Chapter v. of Dayabhaga) and he has added to it in Paras. 10 and 11 where the added terms and have been explained by him. The word has not been explained by the author although its meaning is not clear and it occurs in Para. 13 as part of a quotation from Narada who seems to have been quoted by Jimutbahana strictly as an authority on the point that persons who would be excluded from inheritance if they were legitimate sons would, necessarily be excluded if they were "Kshetraja" sons. In this view also the conclusion, stated in the preceding paragraphs may well be supported.

It appears further that the suggested exclusion on the ground of enmity to the propositus has, in the majority of cases, been refused to be recognised or given effect to by Courts, notwithstanding the fact that Narada''s text quoted above, was specifically cited before them. Even in the case of murderer, claiming the inheritance of the murdered person, exclusion was upheld not on the above ground of enmity or hostility but on general principles of justice, equity and good conscience (Tide Vedanayaga Mudaliar v. Vedammal I.L.R.(1904) 27 Mad. 591 and the principal reason given for refusing to apply the text was that it had "never been acted upon and it also must be considered as "obsolete." The same view is also to be found in a very early decision Kalka Pershad v. Badru Sha (1871) 3 N.W.P.H.C. 267, and in Jogendra Chunder Ghose''s Principles of Hindu Law, 3rd Ed. Yol. 1, p. 212. Mayne''s observations also in his well known book on Hindu Law (7th Ed., p. 803) would support the above view where the learned author refers to Vyavastha Darpan, p. 1007 (1008) and appears to accept the statement.

Where the disability is removable by penance, persons are seen to take the inheritance even without performing the penance, in preference to the other view that, in such cases, the claim to inheritance should be dismissed unless the penance has been performed.

(vide Bholanath Race v. Matt. Sabitra and Ors. (1836) 6 Sel. Rep. New Ed. 62. 71, Msst. Jya Koonwar v. Bhikaru Singh and Ors. (1848) 4 S.D.A.R. 320, (where the point was not decided as it was unnecessary to decide it but the law was assumed to be so), Bhoobanesssree Debia and Anr. v. Guru Dass Tarkapunchanan and Ors. (1869) 11 Suth. W.R. 535, where the disqualification pleaded was leprosy). No such ground of exclusion from inheritance is also to be found in any of the other books except Sastri Golap Chandra Sarkar''s where the learned author enumerates such hostility as a ground of exclusion from inheritance not only in the case of a son but also in the case of any relation whatsoever and gives a very wide meaning to the term "enemy" in the text quoted. It is true that the Madras decision, referred to above, was disapproved by the Judicial Committee (vide Kenchava v. Girimallappa Channappa (1924) L.R. 51 I.A. 368, 373-4) on the distinction that it made in the matter of inheritance between legal and beneficial interest but their Lordships of the Privy Council did not say anything with regard to the observations of the Madras High Court that Narada''s text, quoted above, was not an authority for excluding even a son, who had murdered his father, from the latter''s inheritance. The exclusion was placed by their Lordships on the general structure and scheme of Hindu jurisprudence and on principles of justice, equity and good conscience. We are, therefore unable to accept Sastri Golap Chandra''s view that the text quoted ought to be given effect to for excluding a person from inheritance under the Hindu Law.

It is to be remembered also that the text refers to the father alone and even in Sastri Golap Chandra''s book a special reason is given for its application to such a case. In such circumstances, it is extremely doubtful whether it should apply to the cases of other relations. Verse 3 from the opening Chapter of Dayabhaga, which is relied on for extending the term to include other relations has not, in our opinion any such effect.

Its only purpose seems to be to define the scope of the expression "partition of heritage" and to explain how under that expression comes distribution of effects, left by any relation.

It is too much to argue from this that in Narada''s text on exclusion from inheritance was merely illustrative and would apply to the case of any relation whatsoever.

Enmity again, as referred to in the text quoted has been interpreted at least in two of the ruling commentaries namely, Vivada Ratnakar, and Vivada Chintamoni, (Vide also Dayastatwa and Dayakrama Sangraha), cited by Sastri Golap Chandra Sarkar himself, as referring only to be beating, killing and the like and its meaning should not be widened or extended.

It is true that according to the commentaries, a son who refuses to perform the father''s obsequies after the latter''s death, would also be but such refusal cannot certainly be a ground of exclusion from inheritance for two obvious reasons, namely, (1) that inheritance vests immediately on the death of the propositus and as ordinarily "an estate once vested cannot be "divested" the inheritance, so vested cannot be divested by any subsequent event or conduct and (2) that, under the Dayabhaga Law, it is the capacity to offer pinda and not the actual offering which entitles a person to inheritance. Further, there is nothing to show here that Bibhabati ever refused to perform the obsequies of her deceased husband, the Second Kumar of Bhowal.

For all the above reasons, we are unable to hold that the rule of exclusion, relied on by the Plaintiff, would apply against Bibhabati to disentitle her to succession to the Second Kumar''s estate.

We may add further that, on the materials before us, we are not inclined to hold that Bibhabati''s disclaimer of the Plaintiff in the Bhowal suit as the second Kumar of Bhowal who was her husband was mala fide and was made with definite knowledge that it was false. There is no independent evidence on the point before us and reference to certain evidence in the original Bhowal case as quoted or discussed in its judgment and to certain findings of the learned Subordinate Judge on that occasion would not in our opinion, be justifiable, in any event, it would not be sufficient, for finding mala fides on her part.

We do not, therefore, agree with the learned Subordinate Judge''s finding on that point and as even according to the learned Subordinate Judge himself, that finding is essential for supporting his other findings against Bibhabati, namely, that she was not a qualified wife for purposes of inheritance, not being , on the other hand, or positively inimical to her husband, so as to merit exclusion, these findings must necessarily go. It is true that Bibhabati is in law bound to accept the Plaintiff of the Bhowal suit as her husband by reason of the Privy Council decision, terminating the said suit, but, for depriving her of her rights of succession under the Hindu Law under the above texts, some moral turpitude or degradation is, in our opinion, necessary which does not necessarily follow from her mere non-acceptance of the position, created by the Privy Council decision.

Court''s decision undoubtedly binds the party but it does not bind her conscience and, if the two cannot be reconciled, a woman sticking to her conscience is not to be excluded from her husband''s inheritance under the Hindu law merely on the ground that she was acting contrary to the Court''s finding.

Such conduct does not certainly connote or constitute any moral guilt or deviation from the path of virtue or rectitude which it is essential to find for holding that she is not In the above context, Bibhabati''s disclaimer of the Plaintiff of the Bhowal suit as her husband would not also be sufficient to make her even in the light of the meaning of as given in Saraswati Vilasa, on which, particularly, the learned Subordinate Judge relied in his judgment.

We would, therefore allow this appeal, set aside the decree of the learned Subordinate Judge and, in lieu of the decree, passed by him, we would give the Plaintiff only a decree, declaring that she is heiress to the deceased Second Kumar Ramendra Narayan Roy of Bhowal to the extent of an eight annas share and is entitled to a moiety income of his Estate. The decision of the learned Subordinate Judge would be modified accordingly.

One word before we conclude.

At one stage of his arguments Mr. Sen Gupta raised a question of surrender under the Hindu Law. Referring to and relying upon Bibhabati''s letter (Ext. 3(k)) to the Board of Revenue disclaiming all "connection or concern with the Plaintiff in the "Bhaowal case who died in 1946", Mr. Sen Gupta sought to impress upon the Court that there was a surrender by Bibhabati, sufficient in Hindu Law, to efface her from the scene, so far as the deceased Second Kumar''s share in the Bhowal Estate, was concerned, and vest it in the next taker, who according to Mr. Sen Gupta, was no other than his client Dhara Devi, Plaintiff in the present case. We are unable to accept this argument and it is enough to say that, apart from anything else the letter (Ext. 3(k)) relied upon by Mr. Sen Gupta, far from showing any disclaimer or relinquishment on Bibhabati''s part of the Second Kumar''s share in the Bhowal Estate, really contains an assertion of sixteen annas title by her to that share. We, accordingly, reject Mr. Sen Gupta''s submission.

In the result we allow this appeal, set aside the decree of the learned Subordinate Judge and, in lieu thereof, pass a decree in favour of the Plaintiff only to this extent that she is declared heiress to the deceased Second Kumar Ramendra Narayan Roy of Bhowal to the extent of an eight annas share and entitled as such to a moiety income of his Estate. The decision of the learned Subordinate Judge is modified accordingly.

In the circumstances of this case, we direct the parties to bear their own costs throughout.

Renupada Mukherjee, J.

I agree.