Mukharji, J.:— This second appeal by the plaintiff arises out of a suit filed by him for a declaration of title and confirmation of possession, in the alternative for recovery of possession with respect to the land of Khata No. 80 of village Chiridiri, Police Station Chatra in the district of Hazaribagh described in Schedules A and B of the plaint.
2. Facts giving rise to this appeal a will appear from the plaint are as follows:— One Chowa Mahto died leaving five sons, namely, Ganesh, Uttim, Bishwanath, Jodhan and Ram Sahay. These brothers died one after another in a state of jointness with the plaintiff-appellant, who is son of Ganesh Mahto. Ram Sahay, who was uncle of the plaintiff, was a widower and he had kept Most. Jogni, defendant No. 3, as a concubine in his house. Ram Sahay also died in a state of jointness with the plaintiff sometime in Bhado of Sambat 2019, equivalent to 1962 as a result of which the plaintiff-appellant became the sole owner of the joint family property. Most. Jogni, after the death of Ram Sahay, had illicit connection with one Budhan Koeri. She is alleged to have executed a collusive sale deed dated 24-4-1963 in favour of defendant No. 1, Mohammad Elahi Bux and defendant No. 2, Mahfuzal Rahman, a minor son of defendant No. 1 (respondents 1 and 2 of this appeal) without any consideration with respect to the property mentioned in Schedules A and B of the plaint. Since a cloud has been cast upon the title of the plaintiff-appellant he has thought fit to file the suit in question for the aforesaid reliefs.
3. The suit was contested by defendant-respondent No. 1, Mohammad Elahi Bux and he contended, inter alia, in his written statement that all the sons of Chowa Mahto died in a state of separation from one another because a partition had taken place amongst these sons by metes and bounds 25 years before the filing of the suit it was further urged that Most. Jogni from whom defendant No. 1 is alleged to have acquired the interest in the property in dispute was the lawfully married wife of Ram Sahay, who was also separate from the plaintiff-appellant. Further contention of the defendant-respondent was that he is a bona fide purchaser for value and that the plaintiff-appellant was not entitled to any relief.
4. The learned Munsif of Chatra, who disposed of the suit held:
(i) Most. Jogni who was impleaded in the suit as defendant No. 3 was lawfully married wife of Ram Sahay,
(ii) Ram Sahay died in a state of separation from the plaintiff-appellant,
(iii) Most. Jogni remarried Budhan Koeri before 15-4-1963,
(iv) After her remarriage, Most. Jogni was divested of her interest in the property of her previous husband, Ram Sahay by virtue of Section 2 of the Hindu Widows' Re-marriage Act 1856, which has not been repealed by the passing of the Hindu Succession Act, 1956 and, as such, the property of Ram Sahay would go to the plaintiff-appellant who is a next heir of Ram Sahay,
(v) Defendant-respondent No. 1 was not in possession over the property in dispute and that the plaintiff is in possession over the same.
5. On these findings, the learned Munsif decreed the suit in favour of the plaintiff-appellant with costs.
6. An appeal was preferred against the judgment and decree passed by the learned Munsif of Chatra. The appeal was heard by the 1st Additional District Judge of Hazaribagh. The learned Additional District Judge confirmed the finding of the learned Munsif on the point about Most. Jogni being legally married wife of Ram Sahay, about Ram Sahay dying in a state of separation from the plaintiff-appellant and about Most. Jogni remarrying Budhan Koeri after the death of Ram Sahay. The first appellate court, however, held that Section 2 of the Hindu Widows' Re-marriage Act should be deemed to have been repealed by Section 4 of the Hindu Succession Act. It further held that Most Jogni came in possession of her husband's property as a full and absolute owner in view of the provision of the Hindu Succession Act and that the said right cannot be said to have been lost due to her remarriage with Budhan Koeri. On these findings, the first appellate court allowed the appeal, set aside the judgment and decree passed by the learned Munsif and dismissed the suit of the plaintiff-appellant with costs.
7. The only point which has been urged by Mr. Brajkishore Prasad II, learned counsel appearing on behalf of the plaintiff-appellant in this appeal is that the first appellate court was in error in holding that Section 2 of the Hindu Widows' Re-marriage Act is inconsistent with the Hindu Succession Act it was contended by him that the first appellate court should have held that Most Jogni was divested of her right in respect of her previous husband's property as a result of remarriage with Budhan Koeri.
8. Before discussing the question of law which has been raised in this appeal, it is necessary to dispose of an objection raised by the office that the entire appeal has become incompetent. It appears from the record that respondent No. 17, Tahal Mahto, died on 15th October, 1967, and an application was filed on 14th June, 1969, for setting aside the abatement of the appeal as against respondent No. 17 and for substitution of his widow in his place. This petition was rejected by the order of this court dated 8-5-1969. The office reported that since the heir of the deceased respondent No. 17 had not been substituted, it was for consideration whether the whole appeal had become incompetent. It may be stated that the plaintiff-appellant did not claim any relief against respondent No. 17, Tahal Mahto, who was impleaded in the suit as a pro forma defendant Respondent No. 17 had not also contested the suit in the trial court or in the first appellate court. In this circumstance simply because the appeal abated against Tahal Mahto, the entire appeal cannot be said to be incompetent.
9. The main point for consideration in this case is whether by reason of the provision of Section 2 of the Hindu Widows' Re-marriage, Act a widow, who has acquired absolute interest in the property of her deceased husband by operation of Section 14 of the Hindu Sucession Act would be divested of that interest by subsequent re-marriage. Section 2 of the Hindu Widows' Re-marriage Act 1856 has the effect of divesting the estate inherited by a widow from her deceased husband as a result of her remarriage. By her second marriage the widow forfeits the interest taken by her in her husband's estate and it passed to the next heirs of her husband as if she was dead. Section 14 of the Hindu Succession Act 1956, lays down “Any property possessed by a female Hindu, whether acquired before or after the commencement of this Act shall be held by her as full owner thereof and not as a limited owner.” The only condition which has to be fulfilled for the acquisition of the absolute right of the widow over the property of her husband is that she must be in possession over the said property at the time of the death of her husband. Section 4(1)(b) of the Hindu Succession Act 1956 lays down:
“Save as otherwise expressly provided in this Act any other law in force immediately before the commencement of this Act shall cease to apply to Hindus in so far as it is inconsistent with any of the provisions contained in this Act”.
10. It appears that the Hindu Succession Act has brought about radical changes in the law of succession and that this Act will supersede all rules of succession contained in any previous enactment or elsewhere which are inconsistent with any provision contained in the Hindu Succession Act The Hindu Widows' Re-marriage Act which provides that a widow on re-marriage would be divested of her interest in her husband's property was a previous enactment regulating succession to the property and it was clearly the law on the subject immediately before the Hindu Succession Act came into force. The effect of passing of the Hindu Succession Act is that all other laws in force prior to the passing of the Hindu Succession Act shall cease to apply to the Hindus so far as they are inconsistent with any provision of the Hindu Succession Act.
11. The learned counsel appearing on behalf of the appellant has contended that after Most. Jogni re-married Budhan Koeri, she was divested of all the properties she had inherited from her previous husband Ram Sahay by reason of the application of Section 2 of the Hindu Widows' Re-marriage Act and, a such, she could not have executed the sale deed, Ext. B dated 24-4-1963 in favour of defendant-respondents 1 and 2. It is urged that Section 14 of the Hindu Succession Act cannot be invoked for conferring absolute power on Most. Jogni with respect to the property of her previous husband Ram Sahay after her remarriage. In support of this contention, reference is made to the case of Ramchandra Sitaram v. Sakharam, reported in AIR 1958 Bom 244.
12. In the reported case one Sampat died on 10-2-1944 leaving his wife Thunki and a son Laxman, who also died on 3-12-1944. On 23-12-1944 Thunki executed a deed of gift whereby the property in dispute was transferred. On 8-6-1945 Thunki remarried. The plaintiffs of that case who were uncle and paternal conisins of Sampat filed a suit for a decree for possession in respect of the property gifted by Thunki. The trial Court dismissed the plaintiff's suit. There was an appeal and the; first appellate court decreed the plaintiff's suit. It was held by their Lordships of the Bombay High Court in the second appeal that a Hindu widow forfeited her right in the property inherited by her as a result of her re-marriage. In this case, their Lordships have clearly indicated as to the meaning of the expression “possessed” used in Section 14 of the Hindu Succession Act Their Lordships observed:—
“On the commencement of the Act property possessed by a Hindu female is by the operation of the Act to be regarded as of her absolute ownership even if her title in its inception was restricted. But Section 14 applies to property possessed by a Hindu female when the Art. commences, or thereafter. If before the commencement of the Act the property is transferred, it is not in law possessed by her and Section 14 will have no application to that property”.
13. In view of the facts of that case, their Lordships dismissed the appeal in the High Court. It, therefore, follows that the facts of the case reported above are not similar to the facts of the instant case. There is absolutely no dispute about the law enunciated in the aforesaid decision.
14. In the instant case, it appears that Ram Sahay Mahto died sometime in 1962 and so Most Jogni as his widow succeeded to the property left by him and acquired absolute interest in the said property by reason of Section 14 of the Hindu Succession Act. I see no reason to reject the concurrent findings of both the courts below that Ram Sahay Mahto died leaving his wife Most Jogni in a state of separation from the plaintiff and naturally Most. Jogni must be deemed to be in possession over the property of Ram Sahay Mahto on his death and, as such, by operation of Section 14 of the Hindu Succession Act, Most Jogni immediately acquired absolute right of the property left by Ram Sahay Mahto.
15. The learned counsel appearing on behalf of the respondents has contended that there is no cogent evidence on the record to establish in the instant case about Most Jogni having remarried Budhan Koeri after the death of Ram Sahay Mahto. It is urged that if there was no re-marriage of Most Jogni, then there is no question of Most. Jogni being divested of the interest she inherited from her husband and as such Section 2 of the Hindu Widows' Re-marriage Act will have no application. In this connection my attention has been drawn to the allegation made in the plaint of Title Suit No. 36 of 1963 filed by the present appellant. It is urged that there is absolutely no allegation in the plaint that Most. Jogni remarried Budhan Koeri after the death of her previous husband, Ram Sahay Mahto. The only allegation made in the plaint is that after the death of Ram Sahay Mahto, Most. Jogni picked up illegal and immoral connection with Budhan Koeri. It is true that an issue was framed in the trial court about whether there was a re-marriage of Most Jogni with Budhan Koeri and that there is a concurrent finding of the court below to the effect that Most. Jogni re-married Budhan Koeri after the death of her previous husband Ram Sahay Mahto. But the learned counsel appearing for the respondents has urged that this finding is based on no evidence on the record.
16. The learned counsel appearing on behalf of the appellant has not been able to point out any cogent evidence adduced in this case for the purpose of proving the alleged remarriage between Most. Jogni and Ram Sahay Mahto. (Budhan Koeri?) In this circumstance, I am constrained to hold that the concurrent finding of the courts below about Most. Jogni having remarried Budhan Koeri is based on no evidence at all and, as such, Section 2 of the Hindu Widows' Re-marriage Act has no application in the instant case. Therefore, Most. Joghi could not have been divested of her interest in the property of her husband Ram Sahay Mahto.
17. It is at best alleged in the plaint that Most. Jogni became unchaste after the death of Ram Sahay Mahto as she is alleged to have illicit connection with Budhan Koeri. Even if this contention of the plaintiff be accepted, Most. Jogni could not have been divested of her interest in her husband's property on account of unchastity. An unchaste widow, it is true, is not entitled to inherit to her husbands property. But once the inherits the property of her husband, she cannot be subsequently divested of it if she becomes unchaste after the death of her husband. There is no case that Most. Jogni was unchaste at the time of the death of hep husband Ram Sahay Mahto.
18. Even if it be accepted for the sake of argument as found out by the courts below that Most. Jogni remarried Budhan Koeri, this remarriage must have taken place after the death of Ram Sahay Mahto because there is no case of any of the parties that Most. Jogni remarried Budhan Koeri during the lifetime of Ram Sahay Mahto. In this circumstance, the condition for the application of Section 14 of the Hindu Succession Act, namely, that Most Jogni was in possession over the property of her husband Ram Sahay Mahto at the time of his death, has been fulfilled in this case and, as such, she acquired absolute right over the property of her husband. There is nothing in Section 14 of the Hindu Succession Act that once a widow succeeds to the property of her husband and acquires absolute right over the same, she would be divested of that absolute right on her re-marriage. This view of mine finds corroboration in the decision in the case of Chinnappavu Naidu v. Meenakshi Ammal, AIR 1971 Mad 453. There is also nothing in Section 24 of the Hindu Succession Act which is contrary to Section 14 of the same Act which confers absolute right to a widow on her husband's property, if she was possessed of the same at the time of his death. The disqualification of a widow to inherit as envisaged in Section 24 of the Hindu Succession Act does not apply where a widow remarries after the succession had opened. In the instant case, the succession opened immediately on the death of Ram Sahay Mahto and so his widow Most. Jogni acquired absolute interest over the property of her husband. She could not be divested of this interest by her subsequent remarriage.
19. Section 2 of the Hindu Widows' Remarriage Act will have no application in the instant case by reason of the application of Section 4(1)(b) of the Hindu Succession Act because the law embodied in Section 2 of the Hindu Widows' Re-marriage Act about the forfeiture of the right of the widow to hold the property of her previous husband on her subsequent remarriage is inconsistent with the provisions of law contained in Section 14 of the Hindu Succession Act conferring absolute right on a widow in respect of the property over which she is in possession at the time of the death of her husband. The full ownership conferred on a Hindu widow under Section 14 of the Hindu Succession Act cannot be divested by her subsequent re-marriage. Although not exactly on the same point but the principle of law enunciated by their Lordships of the Supreme Court in the case of Punithavalli Ammal v. Minor Ramalingam, (1970) 1 SCC 570 : AIR 1970 SC 1730 may also be usefully applied to the instant case. It was held in the aforesaid case that the estate taken by a Hindu widow under Section 14(1) of the Hindu Succession Act is an absolute one and not defeasible by the subsequent adoption made by her to her deceased husband after the Act has come into force.
20. In view of what has been discussed above, I find that there is no merit in this appeal which is accordingly dismissed; but in the circumstances of the case, I direct the parties to bear their own costs.
Shambhu Prasad Singh, J.:— I agree that the appeal be dismissed and also with the direction that the parties shall bear their own costs. However, I do not think that the concurrent findings of the courts below that Most. Jogni on the death of her husband Ram Sahay remarried Budhan Koeri can be set aside or ignored at the second appellate stage on the ground of pleadings and want of evidence. True it is that the plaintiff pleaded merely unchastity of. Most Jogni and did not allege that she re-married Budhan Koeri and that defendant-respondent No. 1, who alone contested the suit, also did not in his written statement make out a case of remarriage. But an issue whether Most. Jogni re-married Budhan Koeri before 15-4-1963 was framed by the trial court. Parties, therefore, went to trial of the suit with the knowledge that they had to lead evidence on the question of remarriage of Most. Jogni with Budhan Koeri. It is now well settled that evidence at variance with the pleadings, if led by parties may be considered by courts, if there is no prejudice to the parties thereby. In the instant case, as there was an issue, as stated above, on the question of remarriage, the respondents cannot contend that the findings of the courts below as to remarriage of Most. Jogni with Budhan Koeri should be set aside or ignored as it is against the case of the parties. It is not a case where there is no evidence in support of the findings on the aforesaid question of remarriage of the courts below.
21. In support of their findings, the courts below have relied on the statement of Most Jogni in Ext. 1. The statement was made by Most. Jogni before the Panches of the village and is dated 15-4-1963. The sale-deed in favour of defendant-respondent No. 1 by Most. Jogni (Ext. B) is dated 24-4-1963. The statement in Ext. 1, therefore, was made before the execution of the sale deed. The courts below have interpreted this document as an admission of Most. Jogni of remarriage with Budhan Koeri. It is not a document of title and if the courts below have put an interpretation of their own on the statement of Most. Jogni in this document and on the basis thereof recorded a finding that she remarried Budhan Koeri before 15-4-1963, that is a finding of fact and cannot be challenged in the second appeal. In my opinion, therefore, this appeal cannot be decided on the basis that Most Jogni did not remarry Budhan Koeri but merely became unchaste after the death of her husband.
22. I am in entire agreement with my learned Brother Mukharji, J., that Section 2 of the Hindu Widows' Re-marriage Act is inconsistent with Section 14 of the Hindu Succession Act, and, therefore, in cases, where a Hindu widow gets absolute right by inheritance in her husband's property, she cannot be divested of that right by virtue of Section 2 of the Hindu Widows' Re-marriage Act in my opinion, Section 2 aforesaid merely divests a Hindu widow on re-marriage of limited interest held by her. It has been expressly so stated with regard to her husband's property coming to her by virtue of any Will or testamentary disposition. If the interest conferred upon her in her husband's property by virtue of will or testamentary disposition is not limited but absolute, the section has got no application. It appears that the section has also got no application where she gets her deceased husband's property by virtue of a non-testamentary disposition. Rights and interest acquired by her in her husband's property by inheritance to her husband or to his lineal successors were limited interest before the passing of the Hindu Succession Act Rights and interest acquired by her in her deceased husband's property by way of maintenance except by a grant conferring upon her absolute right were also a limited interest. In view of the fact that the section was not made applicable to her deceased husband's properly coming through non-testamentary disposition, it is doubtful whether the property given to her by way of maintenance by a grant conferring absolute right on her could be divested on her remarriage. For the purpose of decision of the appeal, that point need not be examined in any further detail and, be that as it may, ordinarily Section 2 of the Hindu Widows' Remarriage Act was not intended to apply to cases where a widow acquired an absolute interest in her deceased husband's property.
23. After the passing of the Hindu Succession Act, by virtue of Section 14 of that Act, a widow gets an absolute interest in her deceased husband's property possessed by her. If Section 2 of the Hindu Widows' Re-marriage Act was to apply to cases where a Hindu widow has got an absolute interest in her deceased husband's property, that will be inconsistent with the provisions of the Hindu Succession Act and, therefore, invalid to the extent of inconsistency by virtue of the provisions of Section 4(1)(b) of the Hindu Succession Act. Learned Counsel for the appellant placed reliance on Section 15 of the Hindu Succession Act according to which, in absence of the heirs expressly mentioned in clause (a) of sub-section (1), the property inherited by a female Hindu from or father or mother was on her dying intestate to devolve on the heirs of her father while the property inherited by a female Hindu from her husband was to devolve upon the heirs of the husband. According to him, this showed that the intention of the makers of the Hindu Succession Act was that the property in the hands of a Hindu female should not go out of the hands of the branch to which it originally belonged. Section 15 applies only to cases where a female Hindu dies intestate.
24. It impliedly shows that she has been given full power in respect of the property possessed by her, be that of hen father or mother or of her husband, to give it to any one she likes by a testamentary or non-testamentary disposition. It cannot, therefore, be said that the framero of the Hindu Succession Act intended to divest a Hindu female of absolute right acquired by her in case of re-marriage or any other contingency. Section 23 of the Hindu Succession Act imposes some restriction on the power of a Hindu widow in respect of dwelling houses. Section 24 debars the widow of a pre-deceased son, widow of a pre-deceased son of a pre-deceased son or the widow of a brother from succession to the property of a Hindu dying intestate as such widow, if on the date the succession opens, she has re-married. Had the framero of the Act intended to divest a Hindu widow of the property inherited by her and possessed by her on ground of re-marriage, they would have made specific provisions for that in the Act itself. Sections 25 and 26 of the said Act also make provisions which are applicable to both males and females debarring them from succession or inheritance in certain cases and, thereafter, comes Section 28 which says that no person shall be disqualified from succeeding to any property on the ground of any disease, defect or deformity or save as provided in the Act on any other ground whatsoever. In my opinion, therefore, it is manifest from the provisions of the Act that the framers thereof never intended to divest a Hindu Widow of her interest in her deceased husband's property on the ground of remarriage and Section 2 of the Hindu Widows' Re-marriage Act is inconsistent with the provisions of the Act. This view is directly supported by a Bench decision of the Madras High Court in AIR 1971 Mad 433 and impliedly supported by the decision of the Supreme Court in (1970) 1 SCC 570 : AIR 1970 SC 1730 wherein it has been held that the estate taken by a Hindu widow under Section 14(1) of the Hindu Succession Act is not defeasible by the subsequent adoption made by her to he? deceased husband. My learned Brotheo Mukherji, J., has already referred to these two decisions and I need not refer to them in any further detail.
25. Appeal dismissed.