Chinnappavu Naidu v. Meenakshi Ammal And Another

(Delivered by Veeraswami C.J)

This second appeal raises an interesting point as to whether after the Hinds Succession Act, 1936, the disqualification imposed by S. 2 of the Hindu Widows' Re-marriage Act, 1856, continues to have force. The courts below held that the former Act prevails. On a careful consideration we accept that view. The first plaintiff was the widow of the defendant's brother. Her husband died in 1955. Thereafter she remarried. The defendant was alleged to have trespassed upon the property to which the first plaintiff had succeeded as the heir to her husband and on that claim, she asked for a declaration of her title to the suit properties and for an injunction restraining the defendant from interfering. She also asked for mesne profits in the sum of Rs. 8000, being, according to her, the value of 80 bags of paddy cut and carried away by him. The lower appellate court while accepting the decree of the trial court declaring the title of the first plaintiff, remitted the suit to the trial court for fresh disposal after the determination of mesne profits. It directed that an issue should be framed on that question and that the parties should be at liberty to direct evidence on that issue. This the lower appellate court did by allowing the memorandum of cross-objection filed by the plaintiffs. The lower appellate court even went so for as to permit the plaintiffs to amend the plaint in this regard.

S. 2 of the Hindi Widow's Re-marriage Act, 1856, provided that a Hindu widow on remarriage shall forfeit her right to the property which she had inherited from her husband. Now, does this provision affect the first plaintiff? Learned counsel for the appellant contends that S. 2 of the Hindu Widows' Re marriage Act has not been expressly repealed by the Hindu Succession Act and that S. 24 itself shows that the legislature was conscious that in case of re-marriage by a widow, she should not be able to succeed to her husband. In view of this it is said that the forfeiture provided by S. 2 of the Hindi Widow's Re-marriage Act still obtains and it would deprive the first plaintiff of her right to still hold the property of her husband. Though the point is not free from doubt, a combined reading of Ss. 4(1)(b), 14, 27 and 28 leaves as with the impression that the provisions of the Hindu Succession Act have overriding effect and S. 14(1), which is absolute and unrestricted in its terms and sweep, enables the first plaintiff to hold the property as absolute owner thereof. The test for the application of S. 14(1) is whether, on the date of the commencement of the Hindu Succession Act, 1961, a Hindu female was in possession of any property as a limited owner. If she was, the limited estate would be converted into fall ownership. There is nothing in S. 14(1) or any other section to qualify the absolute ownership or to forfeit her fall ownership on her re-marriage. It is true the Legislature was certainly conscious of the disqualification based on re-marriage. S. 24 will incapacitate a widow on her re-marriage from succeeding to the property of her husband. But nowhere has it been stated in the Act that once she has has succeeded, her subsequent marriage will forfeit her right to hold the property. On the other hand, Cl. (b) of S. 4(1) makes it clear that “any other law in force immediately before the commencement of this Act shall cease to apply to Hindus in so for as it is inconsistent with any of the provisions contained in this Act.” 8. 2 of the Hindu Widow's Remarriage Act 1856, is to our mind definitely in conflict with S. 14(1) which says that, if the widow was possessed of a limited estate at the commencement of the Act, it would be converted into a full ownership in her. The intention of the Hindu Succession Act, whether it is deliberate or not, appears to be, as its provisions stand that a subsequent remarriage will not work forfeiture. That is also consistent with authority. Ramaiya v. Mottayya(1) held that subsequently unchastity will not make a widow forfeit the property which she has succeeded to her husband on his death. The view we have taken is also supported by a judgment of a single Judge of Rajasthan High Court in Bhuri Rai v. Champi Bai(2). We are, therefore, of the view that the courts below came to the correct conclusion on this aspect of the matter.

As to the remit order of the lower appellate court, we are unable to accept it. Though the first respondent had definitely claimed the value of the paddy alleged to have been cut and carried away by the appellant, no evidence was directed on this point. In fact, the plaint was not clear as to the value and the circumstances in which it was done. No issues also had been raised in the trial court. In the circumstances, we do not think that the lower appellate court was justified in making the remit order. We accordingly set it aside. The result would be that the memorandum of cross objections filed by the plaintiffs in the lower appellate court would stand dismissed. The second appeal falls and is dismissed except for the modification mentioned above. The first respondent is entitled to her costs.

V.C.S