- (1.) Notwithstanding the proclaimed equality of the sexes the personal laws, which are in some measure a legacy for the live present from the petrified past, have perpetuated an ancient discrimination as the facts and the law, we are called upon to decide in the present case, demonstrate. The core question argued before us, epigrmmtically expressed, is whether the estate of a woman is only a woman's estate The Facts The plaintiff, a public trust of the Jain community, instituted the present suit, a little over two decades ago. for recovery of possession of certain property from the contesting defendant (the present appellant) based on a gift thereof in its favour by Smt. Rajrani (5th defendant) who had purported to convey the full rights therein to the said trust. The contestant -defendants denied the plaintiff's title and pleaded inter alia that Smt. Rajrani. ,who remained ex parte after filing a written statement in support of the plaintiff's case, had only a limited estate and her alienation would not therefore survive her. A more substantial defence was set up, viz., that the appellant - first defendant had been in possession of the land since 1937 and that he had perfected his title by adverse possession. Various issues were framed and evidence recorded but the 1st defendant was worsted and the suit decreed. It is significant to note that on a crucial finding regarding the quantum of the interest conveyed to the plaintiff, which has a material bearing on the fate of the case, there has been no reference or reversal at the appellate stages - a casus omissus, as it were. The trial judge had found that the plaintiff's vendor Raj Rani, although a widow who had acquired the right in the property on allotment in a partition decree, had transferred the property for pious purposes to a religious trust, namely the plaintiff, and as such the entire right in the property, not merely a woman's estate, had been conveyed by the gift.
(2.) The first appellate Court reversed the decree of the trial Court but on second appeal the latter was restored. The 1st defendant came to this Court in appeal but in the course of arguments on an earlier occasion it was felt necessary that a fresh finding should be called for in view of the death of Smt. Rajrani pendente lite. We will refer in some more detail to the said remand order but, at this stage, it may be mentioned that the question on which a finding was called for assumed that Raj Rani had only a limited estate. If so, the appellant, claiming to be the nearest reversioner, would ordinarily be entitled to the property and the respondent-plaintiff would lose the land unless other defences were made out. The finding recorded by the trial Court on remand has gone in favour of the appellant so much so the appellant has to be taken as the nearest reversioner entitled to the property if the late Raj Rani had died as a limited owner of the suit property.
(3.) The crucial issue therefore is as to whether the alienor of the plaintiff had only a woman's estate, as understood in the Hindu Law; secondly, whether the finding recorded by the trial Court based on spiritual benefit of the deceased husband and left obscurely alone in the later stages of the spiral of litigation, has any surving impact on the result in this appeal.;