Har Saran Das v. Nandi

Straight, J.:— This appeal relates to a suit brought by the plaintiff before us under the following circumstances:—Prior to the year 1884, the defendant Musammat Nandi was married to a man of the name of Kashmiri, who, it is alleged, had monetary transactions with the plaintiff. He died, and on the 14th December, 1884, Musammat Nandi made a hypothecation bond for the consideration of a sum of Rs. 200 in respect of two kothas which had belonged to her deceased husband, Kashmiri. Subsequent to the execution of the bond defendant married a person of the name of Bhujjo, and afterwards the plaintiff brought a suit upon the hypothecation bond of the 14th December, 1884, against the defendant [331], and obtained a decree for enforcement of lien, and in execution of the decree proceeded to attach the two kothas hypothecated to him. Thereupon the two other defendants, Bansi and Bholu, as brothers of Kashmiri, objected to such attachment upon various grounds, and the Court executing the decree accepted those objections and released the attachment. Thereupon, on the 24th July, 1886, the plaintiff instituted the present suit, by which he seeks to avoid the order releasing the attachment and to be placed in a position to bring the property to sale. It is sufficient, for the purpose of dealing with the appeal, to say that the suit was resisted by the two defendants, Bansi and Bholu, upon the ground that the bond in favour of the plaintiff was not executed by Musammat Nandi in respect of any debt due or owing from Kashmiri; and, secondly, that, by the circumstance that Musammat Nandi had married a second time, any interest which she acquired upon the death of her husband, Kashmiri, in the two kothas had been forfeited, and had passed to the defendants. As to the first of these two points, both the Courts below have found that the plaintiff has failed to establish that the bond transaction of 1884 was in respect of any debt due or owing from Kashmiri, or that, if it was, the debt was not, in fact, owing; and that, therefore, there was no right as against the immoveable property left by him to recover the amount. Both the Courts have also held that, under s. 2 of Act XV of 1856, the rights and interests which Musammat Nandi acquired from her deceased husband, Kashmiri, were by her second marriage to Bhujjo forfeited, and upon these grounds the plaintiff's suit was dismissed; From the decision of the Subordinate Judge this appeal has been preferred; and as to the first ground upon which the decision was passed, it cannot be assailed by the pleader on behalf of the plaintiff, because it relates to a finding of fact; and it must, therefore, be taken that the transaction recorded by the bond of 1884 was a transaction purely between Musammat Nandi in respect of an obligation of her own to the plaintiff; and the transaction, therefore, in no way binds any permanent interest in her husband's two kothas.

[332] But the learned pleader on behalf of the plaintiff says that the Courts below have placed a wrong construction upon s. 2 of Act XV of 1856, and I agree with him. It is admitted that the woman Nandi was of the sweeper caste, and in that caste there is no legal obstacle or hindrance, either by law or custom, or otherwise, nor is any suggested, against remarriage; and it must be taken that this condition of things has been existing in the caste for years past, and was existing in the year 1856. Accordingly, when Musammat Nandi married Bhujjo, she did what in her caste never had been and was not prohibited by the law to which she was subject, and her marriage was a good and valid marriage. I do not think that, looking to the preamble to Act XV of 1856, which refers to Hindu widows, it was ever intended to apply to persons in the position of Musammat Nandi, or to place under disability or liability persons who could marry a second time before the Act was passed. The Act was passed for the purpose of enabling persons to marry who could not remarry before the Act, and s. 2 only applies to such persons. By her second marriage, Mussammat Nandi, in my opinion, did not forfeit her interest in the two kothas. Under these circumstances, the plaintiff is entitled, as against his judgment-debtor, to enforce his obligation, and to bring to sale her interest therein, whatever it is. I accordingly decree the appeal, and reversing the decree of the two lower Courts, direct that the plaintiff's suit do stand decreed, and it be directed that he is entitled to bring to sale in execution of his decree against Musammat Nandi such interest as she had in the two kothas. The plaintiff will receive his costs of the appeal in this Court. In the two lower Courts the parties will pay their own costs.

Brodhurst, J.:— I concur.

Appeal allowed.