1. This second appeal by the plaintiff of the original suit who was unsuccessful both in the trial court and in the appellate court below.
2. In this appeal the only question which requires consideration is whether or not the appellant had title to the disputed properties which were purchased from the sister of one Tarakali, who was the original owner of the properties to extent of one-third share in respect ‘Ka’ schedule land and also the owner of the Kha schedule properties. The allegation of the plaintiff Chandi Charan Naskar is that Tarakali died leaving only one son Satya, who also became untraced for about 12 or 13 years. As the whereabouts of Satya Charan were not known, he was presumed to be dead and the plaintiff purchased the property from his sister, who was the limited heiress of Tarakali and subsequently he also purchased Kha schedule property in the benam of defendant No. 5. The suit was for declaration of the plaintiff's title to the suit properties and also for recovery of possession as according to the allegation of the plaintiff he was dispossessed by the defendant No. 4. There was an alternative prayer for partition as some of the defendants were co-sharers in respect of some of the suit properties. The defendant No. 4 alone contested the claim of the plaintiff. Defendant No. 5 of course filed a written statement supporting the claim of the plaintiff. According to the allegations of the defendant No. 4, he purchased the suit properties from the widow of Satya. That widow is Gangabala. Plaintiff opposes that claim of the defendant on the ground that Gangabala became unchaste and, therefore, she was not entitled to inherit in any manner the suit properties from her husband who is supposed to be dead under presumption of law. The trial court dismissed the suit on the finding that Gangabala became unchaste during lifetime of Satya Charan and at the same time the finding was that the plaintiff could not prove the date of death of Satya Charan. According to the trial court the suit was filed after the promulgation of the Hindu Succession Act, 1956 and according to the provision of the said Act there is no bar to the unchaste widow's inheriting the property of her husband. An appeal was taken to the District Judge and the matter was heard by the Additional District Judge, Howrah. The learned Additional District Judge concurred with the findings of the learned Munsif and he also held that the suit was rightly dismissed because according to the provision of the Hindu Succession Act even an unchaste widow can inherit the property of the deceased husband. It was held, as was found by the learned Munsif, that the plaintiff failed to prove the date of death of Satya Charan. In the judgment it is indicated that he accepted the finding of the learned Munsif that Gangabala became unchaste during the lifetime of her husband.
3. I have heard Mr. Dutt, learned Advocate appearing on behalf of the appellant and Mr. Mukherjee for the respondents Nos. 4(1) to 4 (8), the heirs and legal representatives of the defendant No. 4, now deceased,
4. The first point that requires consideration is whether the plaintiff has been able to prove the date of death of Satya Charan. In this connexion Section 108 of the Evidence Act may be referred to. According to this section the court may presume, in the facts and circumstances, that a person whose whereabouts are not known as indicated in that section for seven years or more, is dead. This presumption relates to the factum of death and not to the date of death of the person untraced. In the present case the suit was filed on 22-11-1957. Therefore, according to law the presumption starts from the date when the dispute arises, that is to say, when the suit was filed. As I have already stated, the presumption is that Satya Charan is dead, but it cannot be stated when actually he died. An attempt was made by the plaintiff to adduce evidence through witnesses to speak about the date of death, but both the courts disbelieved the evidence of those witnesses and quite correctly. Therefore, the fact remains that when actually Satya Charan died, is unknown and not proved.
5. Although the learned Munsif of the trial court held specifically that the plaintiff was not able to prove the date of death of Satya Charan, his further finding is that Gangabala became unchaste during the lifetime of Satya Charan. It is nobody's case that Gangabala became unchaste prior to the disappearance of Satya Charan. The only evidence of unchastity relied upon by the plaintiff is the birth of a child of Gangabala at the Howrah hospital in the year 1957. Clearly, therefore, the plaintiff wanted to say that after Satya Charan had disappeared, Gangabala also left the place but there is no other evidence of unchastity of Gangabala save and except the birth of a child long after the disappearance of Satya Charan. Simply because Gangabala left the house, it cannot be presumed that she became unchaste as soon as she left her house. Now, when both the courts below held that Gangabala became unchaste during the lifetime of Satya Charan in spite of the definite finding that there is no evidence when Satya Charan died, it must be stated that the said finding is without evidence and based upon unreasonable presumption. It is also curious that the appellate court did not discuss about the finding that Gangabala became unchaste during the lifetime of Satya Charan. In any view of the matter, as I have already said, the finding of both the courts that Gangabala became unchaste during lifetime of Satya Charan is untenable.
6. The next question that arises for consideration is whether the unchaste widow Gangabala inherited the suit Properties of her husband who is presumed to be dead in view of Section 108 of the Evidence Act. On this question Mr. Dutt has argued that when Gangabala became unchaste during the lifetime of Satya Charan she became disqualified from inheriting her husband's properties. I have already discussed about the finding that Gangabala became unchaste during the lifetime of Satya Charan. That finding is without evidence and unacceptable. In this context we are also to remember that we have only the presumption that Satya Charan was dead, but when he died we do not know. There is no evidence. It may be that he died immediately after his disappearance within seven years from such disappearance or it may also be, and there is no knowing, that he died after 12 or 13 years, as alleged by the plaintiff. When the whereabouts were not known it may either be that he died before Gangabala became unchaste or after she gave birth to the illegitimate child. In any view of the matter, the Hindu Succession Act is there which does not contain any provision which debars an unchaste widow from inheriting her deceased husband. An attempt was made by Mr. Dutt to say that Section 28 speaks about certain disease, defect or deformity, all relating to bodily defects which have been excluded from the category of disqualifications debarring any person from inheritance. Mr. Dutt wants to say that the principles of the Hindu Law that no unchaste woman should be allowed to inherit her husband has not been excluded by this Act. I am afraid, I cannot accept this contention. The Hindu Succession Act regulates succession without making any exception on ground of unchastity or otherwise. When there is no bar to succeeding husband's property by unchaste widow, it cannot be presumed that the principles of the Hindu Law as were followed previous to this Act have been retained. The Hindu Succession Act is clear and specific and there is no bar to any unchaste widow succeeding her husband. Section 4 of the Act is the overriding provision. The rule of Hindu Law has ceased to operate regarding succession with the appearance of the Hindu Succession Act, 1956. In this connexion I may refer to the decision of Jayalakshmi Ammal v. T.V. Ganesa Iyer, reported in AIR 1972 Mad 357. This point was considered in that case and it was held that according to the provision of the Hindu Succession Act, a widow, though unchaste, can succeed to the property of her son as his father's widow. In that case the judgment of the Division Bench was delivered by K. Veeraswami, C.J, I quote below a relevant portion from the judgment:
“The Hindu Succession Act, in so far as it covers the matters therein, is meant to be a complete Code relating to Hindu succession and to that extent the Act prevails and the Hindu Law in respect of it will cease to operate. That is the effect of Section 4 which as we said, gives the provisions of the Act an effect of overriding the Hindu Law except to the extent save as otherwise, expressly provided for in the Act itself.”
7. In the present case, there is no evidence that Satya Charan died before the introduction of the Hindu Succession Act and the suit was filed in November, 1957, and as such the plaintiff has not been able to prove that Gangabala being unchaste woman was unable or incapable to inherit Satya Charan's property even according to principles of Hindu Law.
8. In this state of affairs it cannot be said that Gangabala could not inherit her husband's property according to the provisions of Hindu Succession Act or that Satya Charan's sister and sister's son had any title to the suit properties. In view of the discussion above, I find no merit in this appeal.
9. In the result, the appeal fails and the same is dismissed with costs in favour of the contesting respondents.
10. Appeal dismissed.