This Appeal is directed against an order by which the Court of Appeal below in concurrence with the Court of first instance has allowed execution to proceed on the basis of a decree for money obtained by one Sahudra Koer, now Respondent before us, against Bhagabati Koer, on the 22nd December, 1906. Bhagabati Koer was sued as the legal representative of her mother Bechu Koer and the decree directed that the judgment-debt be recovered from the assets of Bechu Koer in the hands of Bhagabati Koer. In execution of this decree, two properties have been attached, namely, first, a howdah or a seat on an elephant, and, secondly, rent due to Bechu Koer from the tenants of properties which she took by inheritance from her husband Gudar Sahai. Bhagabati Koer contends that these properties are not the assets of the estate of her mother in her hands and are not liable to be attached in execution of the decree. The Courts below have overruled this contention and allowed execution to proceed. The case has been tried on the assumption that the parties are governed by the Mitakshara Law, although they are residents of Mithila. It has been stated to us that Gudar Sahai had his ancestral home in the District of Gaya and when he succeeded by right of inheritance to the estate of his maternal grandfather in Mithila, he came to Mozufferpur and settled there. There can be no doubt that till the contrary is established, the presumption is that Gudar Sahai carried his personal law with him. [Parbati v. Jagadis(1), Ambabai v. Govind(2), Mailathi v. Subbaraya(3). It cannot be suggested that in respect of properties which he took by right of inheritance from his maternal grandfather, the Mithila Law is applicable, while in respect of his paternal properties the Mitakshara Law has operation. The view cannot be maintained that a person may simultaneously have two distinct and inconsistent personal laws, one governing his rights in respect of property taken by him from paternal ancestors and the other in respect of properties received by him from maternal ancestors. We must therefore decide this case on the assumption that the parties are governed by the Mitakshara Law.
On behalf of the Appellant, it has been contended that although it is established that the howdah was purchased by Bechu Koer from the income of the estate of her husband in her hands, and although the unrealised rent was the profit of the estate which she inherited from her husband, they are not assets in the hands of her daughter liable to be seized in execution at the instance of a creditor who holds a personal decree against her. In support of this proposition, reliance has been placed upon the cases of Isri Dutt v. Hansbutti Koerain(4), Sheo Lochan v. Saheb Singh(5), Bhola Nath v. Bhagabati Deyi(6) and Anunda Chandra v. Nilmony(7). In answer to this contention, it has been argued on behalf of the decree-holder Respondent that the properties in question were absolutely at the disposal of Bechu Koer and that consequently after her death they were liable to be seized in satisfaction of her personal debts precisely in the same manner as they might have been applied by Bechu Koer herself during her life-time for payment of the dues of her creditors. In support of this proposition reliance has; been placed upon the cases, Brij Indar Bahadur v. Janki Koer(8), Saodamini v. The Administrator-General of Bengal(9), Akkanna v. Venkayya(10) and Subramanian Chetti v. Arunachellam Chetti(11).
It may be conceded at once that the question of the right of a Hindu widow to accumulations from the income of the estate of her husband which she has taken by right of inheritance is not altogether-free from difficulty. In one of the earliest cases on the subject, Soorjeemoney v. Denobundoo(12), their Lordships of the Judicial Committee appear to have laid down that all the accumulations of a fund which had descended to a widow, from the time the estate vested in her, were, absolutely her own; i.e, in her own right as distinct from the fund itself which she was entitled to hold and appropriate as a widow. In a later decision, however, Mitta Kunth Audhicary v. Neeranjun Audhicary(13), their Lordships pointed out that the previous decision was not to be regarded as conclusive or even as a direct authority upon the question. The most important decision of the Judicial Committee upon the matter is that of Isri Dutt v. Hansbutti Koerain. In that case their Lordships observed that if the widow had made no attempt to dispose of the savings from her husband's estate, there was no dispute that they followed the estate from which they arose. This view had in substance been taken by this Court in the case of Bhola Nath v. Bhagabati, the decision wherein was subsequently reversed by their Lordships of the Judicial Committee upon another point [Bhagabutee v. Bhola Nath(14)]. It has been suggested by the learned Vakil for the Respondent that the decision of the Judicial Committee in Isri Dutt v. Hansbutti cannot be reconciled with the subsequent pronouncements in Sheo Lochan v. Saheb Singh and Saodamini v. The Administrator-General of Bengal. In our opinion, there is no conflict between the principles recognised in the cases mentioned. But it may be a question of some nicety to determine in each individual case whether the property in dispute is in the nature of accumulation or is merely a saving held in suspense by the widow with intent to be appropriated for her personal use later on. In two of the cases cited at the Bar, namely, Saodamini v. The Administrator-General and Subramanian Chetti v. Arunachellam Chetti, the widow was not in possession of the estate of her husband. That circumstance by itself was sufficient to negative any possible intention on her part to annex what was called the accumulation to the estate she had taken from her husband. The true test to be applied to cases of this description is to determine from the surrounding circumstances the intention of the widow. Did she intend to treat the disputed property as part and parcel of the estate of her husband or did she treat it as a temporary saving liable to be applied by her subsequently for her own purposes. If that test is applied to the case before us, it is obvious that the claim of the decree-holder cannot be sustained.
In so far as the first item of the attached properties is concerned, there is no doubt that it was originally a part of the estate of the husband of Bechu Koer. It had been sold and had passed into the hands of a stranger to the family. When the widow subsequently re-purchased the family howdah, the inference is irresistible that she intended to treat it as a part of her husband's estate.
In so far as the rents not realised from tenants are concerned, it has not been seriously disputed that they cannot be treated as temporary savings liable to be applied in satisfaction of any personal debts of the widow. This view may at first sight seem to militate against that adopted by Sir Charles Sargent, C.J, in Rivett Carnac v. Jivibai. That case, however, is distinguishable on two grounds. In the first place, the powers of a widow to deal with moveables under the Mayukha Law are not precisely on the same footing as the powers of a widow under the Mitakshara Law. In the second place, in the case before Sir Charles Sargent the rent has actually been collected on behalf of the widow by her agent; at the time of her death, it was consequently her money in the hands of her agent; no distinction could thus be drawn between the sums already expended and the balance at the hands of her agent. Under these circumstances, it was ruled that the property could be claimed by the heirs of the widow and not by the heirs of her husband.
Much reliance was placed by the learned Vakil for the Respondent upon the class of cases of which the decisions of the Judicial Committee in Beer Pertab v. Rajender Pertab(16), Brij Indar v. Janki Koer and Ram Nundan v. Janki Koer(17) may be taken as the type. In this class of cases, the question for consideration related to property which had been confiscated by the Government and re-granted to one or other member of the family. The learned Vakil for the Respondent contended that as the grantee in a case of this description acquires an absolute estate, in so far as the howdah was concerned, it ought to be assumed that the widow upon re-purchase acquired an absolute interest therein. It is obvious however that there is no analogy between the two classes of cases. In the case of confiscation and re-grant by the Sovereign power, the position of the grantee depends upon the intention of the grantor as evidenced by the deed of grant. In the case before us the right of the widow must be determined from the surrounding circumstances as indicative of her true intention. We hold therefore that neither of the two properties sought to be attached by the decree-holder is liable to be attached in execution of the decree obtained by her against Bhagabati Koer to be satisfied out of the assets of Bechu Koer in her hands.
The result is that this appeal must be allowed and the orders of the Courts below discharged. The Appellant is entitled to her costs throughout these proceedings. We assess the hearing-fee in this Court at one gold mohur.
Appeal allowed.