Vitta Tayaramma v. Chatakondu Sivayya

This Second Appeal was heard in the first instance by Phillips and Krishnan, JJ., who made the following Orders of Reference to a Full Bench

Phillips, J.:— In this case the sole question for decision is whether a Hindu widow, who becomes a Muhammadan and is then married to a Muhammadan, forfeits by her re-marriage her right to her first husband's estate. There is no reported decision of this Court directly in point and the views held by the Calcutta and Allahabad High Courts are conflicting. In Matungini Gupta v. Ram Rutton Roy(1), a Bench of five Judges of the Calcutta High Court (one dissenting) answered the question in the affirmative, by reason of section 2 of the Hindu Widows' Be marriage Act (XV of 1856), whereas the decisions of the Allahabad High Court are to the contrary effect (vide Abdul Aziz Khan v. Nirma(2), on the ground that section 2 of Act XV of 1856 is applicable only to Hindu widows as such and is not applicable to Hindu widows who have cased to be Hindu. It has also been held in Allahabad that section 2 of Act XV of 1856 does not apply to the re-marriage of Hindu widows, who are permitted by the rules of their caste to re-marry, in Hamid-un-nissa Bibi v. Nazir un-nissa(3), and in Mula v. Partab(4). In the latter case the Judges had hesitation in accepting the view, but followed the uniform course of decisions in their Court. Upon this latter point, this Court has taken a different view, and so long ago as 1877 it was held in Murtigayi v. Viramakali(5), that a widow of the Maraver caste, in which caste re-marriage is allowed, who has re-married has no claim to the property of her first husband. This decision was based not on section 2 of Act XV of 1856, but upon the general principles of Hindu Law. The principle relied on in that case was that a widow takes the life interest of her deceased husband upon the fiction that she is a surviving portion of her husband. This decision was followed by Sundara Ayyar, J., in In re Duraisawmy Thevan, but he relied upon Act XV of 1856 and the same view was held in Rasul Jehan Begum v. Ram Surun Singh, and in Vithu v. Govinda.

In a recent case in this Court Karnan Chowdappa v. Karnan Narasamma, Seshagiri Ayyar and Napier., JJ., have followed the decision in Abdul Aziz Khan v. Nirma, and declined to follow Matungini Gupta v. Ram Rutton Roy(6), as being opposed to the ruling of the Privy Council in Moniram Kolita v. Keri Kolitani(7), that a widow does not forfeit her estate by reason of subsequent unchastity. If, however, the principle of Hindu Law relied on in Murugayi v. Viramakali(8), is to be applied, i.e, that a widow continues to be a surviving portion of her husband, her remarriage, by which she becomes a portion of her new husband, does far more to remove the fiction than mere unchastity. The question of whether a widow, who had been degraded or out casted on account of unchastity forfeits her interest was left undecided. The decision in Murugayi v. Viramakali and subsequent cases do not appear to have been referred to in Karnan Chowdappa v. Karnan Narasamma which was apparently decided solely on the construction of Act XV of 1856, and therefore I think it is advisable that the general question before as should be referred to a Full Bench of this Court for decision. I would like to aid with respect that it appears to me that even under section 2 of Act XV of 1856 a Hindu widow who are marries as a Muhammadan loses her rights to her first husband's property; There is nothing in section 2 which restricts its provisions to the re marriage of Hindu widows as such, and I can see no reason for importing these words into the section merely because the Act as a whole deals with re-marriage of Hindu widows. While the Act as a whole is intended to legalise widow remarriages, section 2 specifically provides that re marriage, though legal, shall entail a certain disability, and this disability is not in terms restricted to a re-marriage contracted while still a Hindu. But for the widow's conversion to Muhammadanism, her re-marriage would entail forfeiture and there is nothing in the Act to suggest that such conversion is to remove her disability. If it were not for the decision in Karnan Chowdappa v. Karnan Narasamma, I Would, with all respect, follow the decision of the Calcutta High Court; but in view of that decision of this Court, I would refer the following question to a Full Bench:—

“Does a Hindu widow, who becomes a Muhammadan and marries a Muhammadan, by her re-marriage forfeit her interest in her first husband's estate?”

Krishnan, J.:— In the suit from which this second appeal arises, plaintiff sued for a declaration of his title to a house and for the recovery of its possession. The house originally belonged to one Pullayya, a Kapu by caste, and on his death his widow the fifth defendant inherited a widow's estate in it under the Hindu Law, Some ten years before suit she became a Muhammadan and soon after, married a Muhammadan husband in the nikka form. It may be mentioned here that Kapus do not allow re marriage of widows in their caste; but the fifth, defendant married a Muhammadan. Plaintiff's title is based on a sale-deed executed to him, by the fourth and the fifth defendants. The fourth defendant was the sole next reversioner of Pullayya at the time of plaintiff's sale, but at the time the fifth defendant re married, he and his brother, the father of defendants Nos. 2 and 3, now deceased, were the next reversioners equally entitled. The contesting defendants claim under defendants Nos. 2 and 3. The question therefore arises whether by her re-marriage the fifth defendant forfeited her rights in her first husband's property; for if she did, the plaintiff has got only the fourth defendant's half share in the property; otherwise he will be entitled to at least a life estate in the whole property and his suit in ejectment must be decreed in full. The lower Courts held that the fifth defendant's re-marriage had worked a forfeiture and gave a decree only for half the property; plaintiff has appealed to us and has contended that there was no such forfeiture.

The point for decision is thus, as stated by my learned brother, “whether a Hindu widow who becomes a Muhammadan and contracts a valid marriage according to Muhammadan rites forfeits her rights in her Hindu husband's estate?” It is conceded that her conversion did not per se affect her rights injuriously as they were saved by Act XXI of 1850. But it is argued for the respondents that a forfeiture was caused either by section 2 of Act XV of 1856 or if that did not apply, by the ordinary Hindu Law.

The applicability of section 2 may be considered first. In doing so, it must be borne in mind that there are two different classes of widows with reference to whom the question has been considered in the decided cases—the one class consisting of Hindu widows who belong to castes which permit re-marriage of widows in the caste itself; the other class consisting of widows who originally belonged to a caste which did not permit such remarriage but who subsequently obtained the right of re-marriage by conversion to a different religion. The cases of these two classes do not seem to be parallel and different considerations apply. The widows of the second class could have re married only under the Act so long as they remained Hindu; but they could no longer do so after their change of religion; whereas the widows of the first class need not, and usually do not, take advantage of the Act to justify their re-marriage at any time though there is nothing to prevent them from doing so. Judicial opinion has differed as to whether when the latter class re-marries under a caste custom, the Act and particularly section 2 thereof apply to them at all; vide Har Saran Das v. Nandi, Ranjit v. Radha Rani, in Gajadhar v. Kaunsilla, and in Mula v. Partab, holding that they do not apply and in Vithu v. Govinda, and In re Duraisawmy Thevan, to the contrary. This question need not, however, be decided in the present case as it is one of a widow of the second class the above authorities have thus no direct bearing on the case except in so far as they construe the language of section 2.

In the case before us we have to consider whether section 2 applies to the case of widows of the second class re-marrying according to their new religion, and if so, whether we should adopt a strictly literal construction of the section or a limited one confining it to cases of re-marriage under the Act. The authorities bearing on the point are a Full Bench decision of the Calcutta High Court in Matungini Gupta v. Ram Rutton Roy, where a majority of Judges held that section 3 applied and the subsequent marriage caused a forfeiture, a decision of a Bench in Allahabad in Abdul Aziz Khan v. Nirma, and a decision of a Bench of our own Court in Karnan Chowdappa v. Karnan Narasamma both of which held that section 2 did not apply. After a careful consideration I am inclined to follow the latter view.

It seems to me that having regard to the scope and object of the Act as stated in the preamble and seeing that it is a purely enabling Act, its provisions should not be applied to affect the property of persons who do not and could not take advantage of it. The fifth defendant having remained as a Muhammadan had nothing to do with the Act. But it is argued that, though this may be so, the language of section 2 is wide enough to make it applicable independent of the Act itself. Ordinarily the provisions of an Act must be construed with reference to its scope and object. We must therefore see whether the language of section 2 is clear enough to justify a departure from this rule. If we turn to the section it speaks of forfeiture on ‘re-marriage.’ Does it mean re-marriage in any form whatever or only re-marriage under the Act? I am inclined to think it is the latter. It will be seen from its language that a strictly literal construction of the section will make it applicable even to a Christian or Muhammadan or other non-Hindu widow who was never a Hindu at all, but who happened to inherit by virtue of a will of her husband or other testamentary disposition a limited interest in his property, without an express permission from him to re-marry. I take it no one will contend that the section should be construed in this very wide manner to include persons who were never Hindus at all. It is clear, therefore, that some limitation must be placed on the words of the section and the only logical way to do it, is, it seems to me, to take the scope and object of the Act and construe the section accordingly. We must look to the preamble and to the scheme of the Act generally to see what its scope and object are—see Maxwell on Interpretation of Statutes, Fifth Edition, page 69 et seq. It is clear as already stated that the Act is an enabling one intended to remove disabilities of certain persons in the matter of re marriage and to give them new rights regarding it. A reference to the various sections of the Act shows that the scheme of the Act is that, after authorizing re-marriage under section 1, it deals with the conditions and consequences of such re-marriage in the following sections. The word ‘re-marriage’ in section 2 should therefore, I think, be reasonably read as referring only to a re-marriage under the Act and not to any remarriage whatsoever.

In the judgment of the Full Bench in Matungini Gupta v. Ram Rutton Roy, there is no discussion of the question at all. The learned Chief Justice merely says “section 2 includes all widows who are within the scope of the Act, that is to say, all persons who being Hindus become widows”. Though this case was followed in Rasul Jehan Begum v. Ram Surun Singh, the learned Judges there based the forfeiture on the Hindu Law and not on the Act.

The reasoning in the Full Bench case in Vithu v. Govinda, has no doubt a bearing on this part of the case, though that case itself is one relating to the first class of widows. Mr. Justice Banade says that section 2 should be construed literally because “so far as the section is concerned the law has only declared what was an universal practice and this fact must have been present to the mind of legislature and explains the omission of all qualifying words” With all deference I am unable to follow this method of interpretation nor am I satisfied that the practice of widows forfeiting their right in their first husband's property on re-marriage is so universal in India as is stated. If there are castes which allow widows to re-marry and keep their estates at the same time, and I am not sure there are not any, I can see no reason to think that legislature in enacting Act XV of 1856 intended to interfere with the rights of such widows. If section 2 is taken to cover such cases, we cannot escape the conclusion that such rights are abrogated. I think clearer and more direct language should be required before such an inference can be drawn. With all respect, I am unable to adopt the reasoning of the learned Judge.

As already stated I am inclined to follow the ruling of our own High Court in Chowdappa v. Narasama and of the Allahabad Court in Abdul Aziz Khan v. Nirma, in so far as they hold that section 2 does not apply to a Hindu widow remarrying after conversion; but with all respect, I am not prepared to follow them when they hold further that no forfeiture at all was caused by the re-marriage for I am inclined to think that a forfeiture is caused under the Hindu Law. I shall now consider this question.

My learned brothers in the above Second Appeal hold that the decision of the Privy Council in Moniram Kolita v. Keri Kolitani, is conclusive on the matter as they treat the widow's re-marriage as amounting at the highest only to being false to the bed of her husband and they decided that to forfeiture was therefore caused. With all respect I am unable to follow this view. The authorities cited to us are all against it, and they have not been considered by my learned brothers. The case in Murugayi v. Viramakali, held on a consideration of the principles of the Hindu Law that in the case of a Maraver widow re-marrying, she forfeited her life estate there being no custom to the contrary in the caste. This view was followed by the referring Judges, Wilson and Banerji, JJ., in Matungini Gupta v. Ram Rutton Roy, who state their reasons for their view in full and I agree with them and need not re-state those reasons. Ia fact section 2 of the Act is based upon a recognition by legislature that a Hindu widow's estate is ordinarily forfeited under the Hindu law by her re-marriage. This view and the Madras case were both followed by another Bench in Calcutta in Rasul Jehan Begum v. Ram Surun Singh For some reason not apparent, the Allahabad High Court has not considered this position at all. The Bombay decision in Vithu v. Govinda as already pointed out, expressly proceeded on the footing that the usual practice among Hindus was to treat the widow's estate as terminated by re-marriage. The authorities except the Second Appeal above referred to are all in favour of the view I am taking.

I shall now examine the reasons given in Karnan Chowdappa v. Karnan Narasamma for the view taken in it. The Privy Council case will no doubt be conclusive on the matter if the view that the widow's re marriage amounts at the highest only to the adoption of a life of unchastity is correct. With all respect I am entirely unable to endorse this view of her position I think it is wrong to treat the life of a re-married woman as necessarily a life of unchastity and nothing more. There is a clear and broad distinction between unchastity and re-marriage; the former is an uncertain and changeable course of conduct, while the latter is a definite legal step by which the woman ceases to be any longer the widow of the deceased. This is pointed out by both Wilson, J., and Banerji, J., in Matungini Gupta v. Ram Rutton Roy. An observation in Gajadhar v. Kaunsilla may also be referred to. It was suggested that the effect of the re-marriage should be considered from the point of view of the Hindu Law and as that law does not recognize or sanction the marriage of a Hindu widow with a Muhammadan, such marriage should be treated as having no effect in changing the widow's status. It seems to ms that this is an erroneous way of looking at the question. The status of an individual has to be decided with reference to his personal law at the time. There can be no doubt that after her conversion the fifth defendant was governed by the Muhammadan Law as to her marriage—see section 16 of the Civil Courts Act—and therefore her second marriage was a perfectly valid one. She can therefore no longer be treated as a widow A woman cannot be a married woman for certain purposes and a widow for others. I am therefore of opinion that her widowhood was terminated for all purposes and she cannot be treated as an unchaste widow under the Hindu Law.

On this view, the Privy Council case is easily distinguishable as their Lordships were not dealing in it with a case of remarriage at all. All that was decided in that case was that Chastity was not a necessary condition for the continuance of the widow's estate after it had become vested, but it was not decided that the continuance of widowhood itself was not necessary.

Relying on the observations of Prinsep, J., is Matungini Gupta v. Ram, Rutton Roy it was next urged that as the determination of the widow's estate under the Hindu Law on re-marriage is based on the legal fiction that she takes her estate as the surviving half of her husband's body and as conferring spiritual benefits on him by her acts and as this fiction comes to an end on her conversion, it can no longer be relied on to divest her estate. The answer to this seems to me to be that the Hindu widow's estate is by its very nature an estate subject to limitations, one of which is a liability to forfeiture on re-marriage or cessation of widowhood. The condition is inferred from the origin of the estate and is the that attaches itself to the estate from its very commencement. Unless therefore the condition is abrogated by some subsequent event, it must continue to attach to the estate in the widow's hands, always. Act XXI of 1850 which saved the estate from forfeiture on conversion had no effect on this condition and nothing else has been shown as affecting it. It is therefore not necessary to apply the legal fiction at the time of the forfeiture.

It is true, as pointed out by Prinsep, J., in the same case, that there is an anomaly in a widow losing her estate by her remarriage when she does not do so by leading a notoriously-unchaste life. But this anomaly exists equally in the case of marriages under Act XV of 1856 and under the caste custom. The existence of the anomaly does not seem to me to be an argument against forfeiture on re-marriage. Such a forfeiture is consistent with the notions of the Hindus generally.

For the above reasons, I am of opinion that the fifth defendant, the widow in this cusp, lost her rights in the plaint house on her marrying her Muhammadan husband, the forfeiture being caused under the Hindu Law and not by section 2 of Act XV of 1856 The question is an important one on which there has been a considerable difference of opinion and in fact we are differing from the view in Karnan Chowdappa v. Karnan Narasamma as to the final result. I therefore agree to the Order of Reference to the Full Bench proposed by my learned brother.

On this reference.

M.O Parthasarathi Ayyangar for appellant.—The question must be answered in the negative. There is no forfeiture either by reason of Hindu Law or by section 2 of Act XV of 1856. Hindu Widows' Marriage Act contemplates only marriage between Hindus. If the Act does not apply, then the question is whether under the Hindu Law she loses her right by change of religion, i.e, by conversion to Muhammadanism. She does not. The opinion of Wilson, J., in Matungini Gupta v. Ram Button Roy that section 2 of the Act only embodies the well-recognizad principle of Hindu Law is wrong. There is no such principle of Hindu Law; by her marrying as a Hindu a Muhammadan which is no legal marriage under the Hindu Law, she only leads an unchaste life and unchastity does not work a forfeiture. The decision to the contrary in Murugayi v. Viramakali is wrong. The decision of the Privy Council in Moniram Kolita v. Keri Kolitani decides this point in my favour.

[Chief Justice.—That was not a case of re-marriage.]

The Allahabad cases quoted in the Order of Reference are all in my favour. The latest case of this Court in my favour is Karnan Chowdappa v. Karnan Narasamma

T.V Subba Rao for the first respondent.—There is a forfeiture both under the Hindu Law and under section 2 of Act XV of 1856. In the Allahabad cases the applicability of general Hindu Law is not considered. Hindu Law prohibits such re-marriage. Smrithi Chandrika in Chapter I, section 1, sub-section 4, lays down that a widow as soon as she marries ceases to be the other half of her husband and hence forfeits her inheritance. Though mere degradation on account of unchastity will not work a forfeiture, yet becoming an outcaste either for that reason or for any other does: Subbaraya Pillai v. Ramasami Pillai and Vedammal v. Vedanayaga Mudaliar.

The Court expressed the following

Opinions:

Wallis, C.J:— I agree with the conclusion of Krishnan, J., in his Order of Reference that, independently of section 2 of Act XV of 1856, the widow of a Hindu forfeits her husband's estate on re-marriage. This was, in my opinion, decided by this Court in Murugayi v. Viramakcali, a decision which, as I shall show, has been repeatedly approved in this and other High Courts. That decision did not, as was contended before us, proceed on any proof of a custom of forfeiture on remarriage in the particular caste, but on general principles of Hindu Law, though in support of its conclusion the Court referred, as the Bombay Court did in a later case, to the fact that the extensive enquiry the results of which are recorded in Steele's Hindu Castes showed that among the very numerous classes of Hindus who practised re-marriage in the Deccan such a forfeiture was an invariable incident of re marriage. In Matungini Gupta v. Ram Rutton Roy following and relying on the decision of this Court, Wilson and Banerji, JJ., in their Orders of Reference, to which they adhered in their subsequent judgments, expressed the opinion that section 2 of Act XV of 1856 was merely declaratory, and the same view was expressed in Rasul Jehan Begum v. Ram Surun Singh and by Ranade, J., delivering the judgment of the Full Bench of the Bombay Court in Vithu v. Govinda. In Har Saran Das v. Nandi which was followed in Ranjit v. Radha Ram, it was held that a widow who, according to the custom of her caste, was entitled to re-marry did not forfeit her husband's estate on remarriage on the ground that the case was not governed by section 2 of Act XV of 1856. The contention that the estate was liable to forfeiture independently of the section was not raised in those cases. When it was raised by Pandit Sundar Lal in Gajadhar v. Kaunsilla, Stanley, C.J, and Banerji, J., were inclined to accept it but for the earlier decisions, as to which they again expressed their doubts in Mula v. Partab. Abdul Aziz Khan v. Nirma(9) only followed the earlier decisions without comment. The decision in Murugayi v. Viramakali has therefore been approved by the Calcutta and Bombay Courts, and would have been approved by Stanley, C.J, and Banerji, J., in Allahabad but for the earlier decisions, of that Court. I think we should be very slow to interfere with a decision which has stood so long and is supported by so much authority, and with great respect I cannot agree with the conclusion of a Bench of this Court in Karnan Chowdappa v. Karnan Narasamma that it must be considered to have been overruled by the decision of the Privy Council in Moniram Kolita v. Keri Kolitani that a Hindu widow does not forfeit her widow's estate by reason of unchastity committed after succeeding to the estate. In Matunigini Gupta v. Ram, Rutton Roy that contention was overruled by Wilson and Banerji, JJ., with whom I respectfully agree. No question of re marriage was raised before the Privy Council and, as observed by Wilson, J., there is a very broad distinction but ween misconduct on the part of a widow as a widow, and her ceasing to be a widow. In this state of the authorities I think the decision in Murugayi v. Viramakali ought not to be overruled by this Court.

Considering the question apart from authority, I am of the same opinion. In his Principles of Hindu Law, page 173 (1st edition), Mr. Chose cites a text of Manu IX 191, “But if two (sons) begotten by two (different men) contend for the property (in the hands) of their mother, each shall take to the exclusion of the other, what belonged to his father.” And he also cites another text to the Same effect attributed to Vishnu but not to be found in the recension that has come down to us. These texts can hardly refer to the estate which the widow took only in default of male issue. But whatever may have been the rule in archaic times when re-marriage was permitted, I think, considering the ideas which in later Hinduism underlay the prohibition of widow re-marriage as far as possible and the encouragement of sati, that the retention by a widow of her deceased husband's estate is altogether incompatible with her renunciation of her status as his widow; and I respectfully agree with the opinion of the Bombay High Court in Vithu v. Govinda that the a variable rule among so many castes in the Deccan that re-marriage when permitted entailed the forfeiture of the first husband's estate is merely an illustration of that essential incompatibility, which was again recognized by the legislature when it enacted Act XV of 1856. As regards Act XXI of 1850. I agree with the opinion of Wilson, J., in Matungini Gupta v. Ram Button Roy, that, though that Act relieved the widow of a Hindu from forfeiture of her widow's estate on her abjuration of Hinduism, it did not enlarge the nature of that estate, so as to relieve her from forfeiture in the event of her renouncing her status of widow by re-marriage.

The construction of section 2 of Act XV of 1856 is not free from difficulty and has occasioned much difference of opinion, but on the whole I hesitate to differ from the liberal construction put upon the section by the Full Benches of the Calcutta and the Bombay Courts. The words ‘any widow,… upon her re-marriage’ in section 2 are, I am inclined to think, wide enough to cover the case of any widow of a Hindu re-marrying, whether or not her marriage would otherwise be prohibited by any custom or interpretation of Hindu Law and whether the re-marriage was to a Hindu or to a member of another religion. As observed by Wilson, J., the legislature was well aware of the existence of such re-marriages by the widows of Hindus, and must, I think, have considered that the case for enforcing the forfeiture on re-marriage was in the first case as strong as, and in the second case much stronger than, in the case for enforcing it as regards the re-marriages which were legalized by section 1. The words ‘any widow’ in section 2 are certainly wider than was necessary, if it was intended to confine the operation of the section to the last mentioned class of marriages only. Having regard to the generality of the language, the fact that the section was in substance though not in form declaratory, and the incongruity which would result from holding re-marriages by the widow of Hindus to persons of another religion to be outside its scope, I think the more extensive and beneficial construction should be adopted. On both grounds therefore I would answer the question in the affirmative.

Oldfield, J.:— We have been asked to answer the question referred in the affirmative (1), with reference to section 2, Act XV of 1856 and (2) with reference only to Hindu Law.

I regret that I cannot concur in the judgment just delivered and adopt the first of these grounds of decision. The section is worded generally as dealing with the rights and interests of ‘any widow.’ Ona construction of this expression, that it includes widows of whatever nationality or creed, has not been pressed and is excluded alike by the language of the preamble of the Act, to which I return, and the incongruity of the results, which it would involve. We have then to assume that the widows in question were originally Hindu widows and to choose between the contentions that the section relates only to those who re-marry as such or that it deals also with re-marriages after apostacy, solemnized by the rites of other creeds.

It would follow from the latter construction that legislature intended to deal in Act XV of 1856 with the problem, not only of Hindu widow re marriage, but also of disability due to “renunciation of or exclusion from the communion of any religion”, with which it had dealt recently in Act XXI of 1850. Yet the later Act contains no reference, express or implied, to the earlier, although the former declares and the latter exempts from forfeiture and although re-marriage, the event contemplated is the one, would, in many cases, be connected closely with the renunciation or exclusion dealt with in the other. So also the preamble to Act XV of 1856, which is full, refers only to Hindu widows, to the advisability of enabling Hindus, who may be so minded, to adopt the custom of re marriage and to the justice of relieving such Hindus and removing obstacles to the re-marriage of Hindu widows; and the references to Hindus in sections 1, 3 and 6 are clear, the last, in which Hindu ceremonies are prescribed, being particularly unambiguous. The wider construction, for which plaintiff contends, has in act been based on no explicit extension of the subject matter of the Act to widows in the other sections, which no doubt include section 2, and only on the general references in them. In the circumstances, these references must, in my opinion, be read as qualified by the context. The conjecture of Wilson, J., in Matungini Gupta v. Ram Rutton Roy that they were intended to apply to the class of widows, who might change their faith, seems to me (with all respect) unwarranted, since, as the learned Judge observes, the legislature knew, not only of the existence of such widows, but also that they could already marry again without its assistance; and there is no reason for the assumption that it intended to deal with their position in an enactment passed statedly to give such assistance to widows, who required it. I am therefore constrained to hold that the Act it inapplicable to the present case and to turn to the general law as a ground of decision.

The Hindu Law is, as this and other High Courts have held since Murugayi v. Viramakali, that a widow's re-marriage entails forfeiture of her husband's, estate. And I respectfully agree with the learned Chief Justice that there is no reason for departure from this long current of authority. But those cases dealt with re-marriage by the widow as a Hindu; and it is argued that a re marriage, even after the widow's conversion with the ceremonies of her new faith must be regarded, as it would be by Hindu Law, as no marriage and the widow's conduct as mere unchastity, which with reference to Moniram Kolita v. Keri Kolitani entails no forfeiture. This view has been taken lately by a Bench of this Court in Karnan Chowdappa v. Karnan Narasamma and is regarded by Seshagiri Ayyar, J., in his judgment, which I have had the advantage of reading, as consistent with the decision in Sundari Letani v. Pitambari Letani. But, with all respect, I cannot follow this application of the authorities. The last cited dealt with a case of real unchastity, since the person concerned was not a widow, but had gone through a Muhammadan ceremony of marriage after being deserted, not divorced, by her Hindu husband, who was still alive. And in Moniram Kolita v. Keri Kolitani there was no question of a re-marriage, which could on any view be regarded as legal, but only of a temporary illicit connexion. The judgment is based on the ancient texts and considerations of convenience. But the former were not dealing, and in the state of contemporary society could have no occasion to deal with non-Hindu re-marriages; and the letter, based on the insecurity of titles created by the widow, if they could be disturbed on proof of immorality which is essentially secret and which the reversioners would be interested to promote, are irrelevant. When the question is of a connexion, contracted publicly and authorized by the general law, I need offer no general opinion at present regarding the effect of the marriage of a Hindu with a non-Hindu woman or the position of their issue. In the case before us, authority being wanting, it is sufficient for me to express my respectful concurrence in the ground of decision proposed by the learned Chief Justice, the incompatibility between renunciation of a widow's status and retention of a widow's estate; and I do so the more willingly, because I can thus avoid the conclusion that a marriage is invalid for one purpose, although it is valid for all others.

I would answer the question in the affirmative.

Seshagiri Ayyar, J.:— I regret I am unable to agree with the conclusion of the learned Chief Justice and Olidfield, J. I do not wish to and much to the judgment of myself and of Napier in Karnan Chowdappa v. Karnan Narasamma on the question whether section 2 of Act XV of 1856 would deprive a Hindu widow embracing Muhammadanism and afterwards marrying a Muhammadan of the estate which she inherited from her Hindu husband. I agree generally with Oldfield, J., on this question. The belief that a Hindu widow adds insult to injury to the memory of her deceased husband by apostacy first and by subsequent marriage with a person belonging to a different faith, is not a ground for reading into section 2 of Act XV of 1856 words which are not to be found there. The Act was intended to give relief to a certain class of people and not to penalize others; and Courts are not at liberty to supply a defect of this kind by indirect legislation. I therefore adhere to the view that I took in Karnan Chowdappa v. Karnan Narasamma on this question.

On the question of the applicability of Hindu Law, I wish to make a few observations in addition to what I stated in the Second Appeal already referred to. It is said that Hindu Law does not countenance inheritance by a person who has not been true to the bed of her deceased husband. I do not dissent from this view so long as it can be said that the party against whom this rule of Hindu Law is to be applied is within the pale of that Law. There is a great deal to be said for the position taken up by Mr. Justice Banerji in Matungini Gupta v. Ram Rutton Roy, on the question of Hindu Law. But it need scarcely be added that the Hindu widow who has embraced Muhammadanism and has married a Muhammadan is not subject to Hindu Law. In Sundari Letani v. Pitambari Letani, the Court had to consider the case of a Hindu daughter who had become a Muhammadan and had subsequently married a Muhammadan. The point was whether her children were legitimate and could inherit to the estate of their Hindu grandfather. “The woman was abandoned but not divorced by her husband”. Her position was thus stated by the learned Judges:—

“She is in the position of an unchaste daughter who could not inherit according to Hindu Law.”

I think the same principle is applicable to the widow in the present case.

There are three incidents in the life of this woman. The first was when she inherited the estate of her husband after his death. In the Order of Reference, Mr. Justice Krishnan says that section 2 of Act XVI of 1856 is based upon a recognition by legislature that a Hindu widow's estate is ordinarily forfeited under the Hindu Law by her re-marriage. Even if I assent to this view, I fail to see how this conclusion touches a re-marriage while the widow has become a Muhammadan convert. It was contended that the right of Hindu widow to inherit her husbands property is dependent upon a text of Brahaspati to this effect.

“He who has left a widow surviving him has got the half of his body verily alive, and when half of his body is alive, who else shall take his property?”

The metaphor is undoubtedly picturesque. But it would not be safe to deduce principles of law by parity of reasoning from such a figure of speech. Granting that the reason of a widow inheriting to her deceased husband in preference to divided members of the co-parcenery is based solely upon this principle, it can only apply to a state of things which came into existence on the death of her husband. At that moment either by reason, of this figure of speech or by reason of the more prosaic statement of the law contained in Yagnyavalkya Smriti which is to the following effect—

“Wife (widow), daughter, father, mother, brother, their sons gotraja (of the same family), Bandhus, disciple and Brahmacharins of the same school, each succeeding one is heir in the absence of the person immediately preceding him in the order of enumeration,— this is the law in respect of the inheritance to the property of a soilless deceased person of whatever caste”.

the widow inherited the estate. The second stage in her life was her conversion to Muhammadanism which is found to have been subsequent to the death of her husband. If the Hindu Law had not been legislated upon, there could hardly be any doubt that conversion to a different faith would have entailed forfeiture of the estate inherited by the woman. But Act XXI of 1850 which was designed to preserve the rights of persons who exercised their liberty of conscience in entering the fold of another religion maintained the rights of the widow to continue in possession of her deceased husband's property. Section 1 distinctly says “so much of any law or usage within the territories of the East India Company as inflicts on any person forfeiture of rights or property or may be held in any way to impair or affect any right of inheritance by reason of his or her renouncing or having been excluded from the communion of any religion ceases to be enforced as law in the Courts of East India Company”. So under this Act the widow who had embraced Muhammadanism could not be deprived of the rights which she possessed prior to her conversion. Her inheritance subsisted. The third stage in her career was her marrying a Muhammadan. I fail to see how this step can deprive her of what she obtained under the Hindu Law and what the legislature preserved to her under Act XXI of 1850. I am unable to find anything in the Hindu Law or in Act XXI of 1850 which can have this effect. It is hardly necessary to refer to cases in which it has been held that under the Hindu Law properties once vested in a male or a female cannot be divested by reason of the fact that if the subsequent state of life had existed at the time of the devolution of interest he or she would not have inherited the property. The well-known case of Moniram Kolita v. Keri Kolitani laid down that principle in unequivocal terms. One sentence from the judgment may be quoted as bearing upon conversion:

“The widow has never been degraded or deprived of caste. If she had been, the case might have been different, subject to the question as to the construction of Act XXI of 1850; for upon degradation from caste, before that Act, a Hindu, whether male or female, was considered as dead by the Hindu Law, so much so that libations were directed to be offered to his manes as though be were naturally dead.”

Following this decision all the High Courts have held that property once vested under similar circumstances, cannot be divested. In Abilakh Bhagat v. Bhekhi Mahto, which was a case of a person becoming insane after inheritance had vested in him, Mr. Justice Ghose said that the principle of Moniram Kolita v. Keri Kolitani was applicable to that case. In Sanku v. Puttanima, the same principle was followed. Deo Kishen…(Defendant); v. Budh Prakash…(Plaintiff)*., is also to the same effect. It was a decision of five Judges and they affirm the proposition that under Hindu Law subsequent conduct does not put an end to the rights once properly acquired. Murli Singh v. Jai Singh, follows this ruling. Much reliance was placed in the argument before us on Muruqayi v. Viramakali. The judgment is based upon custom. It was the case of a person who was within the pale of Hinduism. I fail to see how that case affects the present question. I may draw attention to the observations of Mr. Ghose in his book on Hindu Law wherein he says that Manu does not lay down that re-marriage while still a Hindu would deprive a Hindu widow of the inheritance once vested in her. Although the principle of stare decicis must be respected, I am not satisfied that in the present case we would be violating the rule of law laid down in Murugaui v. Viramakali, by holding that the widow marrying a Muhammadan does not forfeit the estate which came to her from her Hindu husband. Moreover cases of this description are of rare occurrence, and when a very important principle relating to the applicability of Hindu Law is debated, I fail to see how a decision, pissed forty years ago on a different set of circumstances, can be regarded as binding authority with reference to facts of a totally different character. For all these reasons, in my opinion, the answer to the question must be in the negative.

N.R