JUDGMENT
The suit is by a reversioner for a declaration that the alienation made by the 1st defendant is invalid beyond her life-time. The 1st defendant's husband Ramachandrlppa died thirty years ago. His widow, the 1st defendant, married a Muhammadan in 1884. There is evidence to support the conclusion of the Lower Courts that she was a convert to Muhammadan ism before she married her present husband and we must accept that finding. On this finding the question is whether the 1st defendant having been in possession of the property for thirty years since her husband's death, the plaintiff's suit is barred by limitation. The Courts below have come to the conclusion that it is so barred because from the moment of her marriage, her possession was adverse to the plaintiff, but we are unable to agree with them.
There are two Acts to be considered in this connection. The first is Act XXI of 1850, known as the Castes Disabilities Removal Act. By that Act a person who is a convert to another religion does not lose his rights in the estate which he or she inherited while that person belonged to some other religion. The effect of that Act is to remove a disability which conversion was supposed to have imposed under the common law of the country. That is the Act which really governs this case. The second Act to which our attention was drawn is Act XV of 1856. By its preamble and by the tenor of its provisions, it is clear that that Act applies only to cases where a Hindu widow remarries as such, because the preamble distinctly says: “Whereas many Hindus believe that this imputed legal incapacity, (referring to the remarriage of widows) although it is in accordance with established custom, is not in accordance with a true interpretation of the precepts of their religion, and desire that the Civil law administered by the Courts of justice shall no longer prevent those Hindus who may be so minded from adopting a different custom, in accordance with the dictates of their own conscience; and whereas it is just to relieve all such Hindus from this legal incapacity of which they complain, and the removal of all legal obstacles to the marriage of Hindu widows will tend to the promotion of good morals and to the public welfare; it is enacted, etc.’ It is clear from this that the Act was intended solely to apply to cases where a Hindu widow had remarried while she still remained a Hindu. Therefore Sect. 2 of the Act which speaks of her being regarded as dead on her re-marriage, can have no application to the case of a person who has been converted to another religion and while in the second religion marries a husband. Sect. 2 was introduced to placate those who pleaded that it was a sacrilege to the memory of the deceased husband that his widow who has sullied his bed by remarrying should be allowed to enjoy his property.
Our attention has been drawn to the decision of the Full Bench in Matungini Gupta v. Ram Rutton Roy. In that case four Judges of the High Court including the Chief Justice took the view that Sect. 2 of Act XV of 1856 prevented a Hindu widow who had become a Brahmo, from inheriting her husband's estate. The learned Chief Justice who delivered the judgment of the Court says: “Sect. 2 includes all widows who are within the scope of the Act, that is to say, all persons who being Hindus become widows, and it must follow from this that if any such widow marries, she is deprived by the section of the estate which she inherited from her Hindu husband.” Justice Prinsep dissented and in our opinion the word widow in Sect. 2 applies only to those who continue to be Hindus at the time of remarriage. We may point out that in the order of reference pronounced by three Judges—Justice Wilson, Justice Banerji and Justice Prinsep—Mr. Justice Banerji took the view that Sect. 2 would not apply to all widows, but only to Hindu widows. The learned Judge was further of opinion that a Hindu widow who remarried would be disentitled to inherit the property of her husband not because of Act XV 1856, but by the precepts of Hindu Law; he says that Hindu text writers allowed a Hindu widow to inherit her husband's property on the principle that she was the surviving half of her deceased husband, and that the inheritance should cease when she has become the better half of some other person. It may be anomalous that while a Hindu widow who remarries is not entitled to the entire estate of her husband, if she is converted and then married, she should be allowed to continue in possession of the property. But the legislature has not intervened in this matter and we are not at liberty to import considerations of this nature in construing the Act.
The view which we take is in accordance with the decision in Abdul Aziz Khan v. Nirma. As pointed out in that case Act XV of 1856 has no bearing upon a case where the widow who marries is not a Hindu at the time of marriage. We entirely agree with this proposition.
As regards the view taken by Mr. Justice Banerji in Matungini Gupta v. Ram Rutton Roy, if the matter were not concluded, by the authority of the Privy Council we would hold with him that under Hindu Law a woman who has been false to her husband's bed by conversion and by re-marriage, should not be allowed to inherit the property of her husband. But the decision of the Privy Council in Moniram Kolita v. Keri Kolitani concludes this matter. There it was held that where property is once vested in a woman, her subsequent unchastity would not divest her of the estate. The principle of that decision applies to the present case. At the highest this woman who was originally a Brahmin widow and has since married a Muhammadan can only be said to have been false to the bed of her husband. If the property had vested in her before she became a convert to Muhammadanism, the subsequent marriage cannot deprive her of the estate which she had inherited from her Hindu husband,
We therefore hold that the decision of the Courts below is wrong and we reverse their decision. On the other questions, the case will be remanded to the Court below for disposal on the merits. Costs will abide the result.
S. S.Appeal allowed.