B. Kanikaraj and Others vs Chinnamma and Others

Anand Byrareddy, J.

These appeals are heard and disposed of together by this common judgment as they are preferred against the very judgment of the trial court.

It was the case of the plaintiffs that plaintiffs 2 and 3 and defendants 1 to 5 were the children of plaintiff No. 1 Chinnamma and her husband late C. Baluswamy. Defendant No. 6 was the widow of another son of plaintiff No. 1 and late Baluswamy, by name Anthonyswamy. It was claimed that the father-in-law of plaintiff No. 1 and the grand father of plaintiff Nos. 2 and 3 and defendants No. 1 to 5, Chinnappa had acquired the suit schedule property in item No. 1 at a partition, which took place between himself and his brothers under a registered partition deed dated 6.10.1942. Chinnappa and his wife Marithayamma had then purchased item No. 2 of the suit schedule property bearing Municipal No. 131, New No. 22, Civil Station, 6th Division, Chandni Chowk Road, Bengaluru. Chinnappa and his wife had died intestate leaving behind them, their son Baluswamy as their legal heir and therefore, after the death of his parents, Balu Swamy succeeded to the suit schedule properties and was in possession of the same. Baluswamy died leaving behind his widow and his children, namely, plaintiffs 1 to 3 and defendants 1 to 5 and husband of defendant No. 6, late Anthonyswamy as his legal heir and they had succeeded to the properties. The plaintiffs were stated to be Indian Christians and governed by the Indian Succession Act, 1925 (Hereinafter referred to as the ''1925 Act'', for brevity). Under the provisions of the said 1925 Act, the plaintiff No. 1 was entitled to one-third share in both the suit items of property and plaintiffs 2 and 3 and defendants 1 to 5 were entitled to one-seventh share each in the remaining 2/3 share of the suit schedule properties. No partition was effected in respect of the suit schedule properties between them and the defendants and they continue to be in joint possession and enjoyment. It was alleged that defendant No. 1 started to act detrimental to their interests and therefore they demanded partition of their legitimate share. When there was refusal, the suit was filed. Initially, the suit was filed only against defendants 1 to 5 and 9 and later defendant No. 6 was impleaded. The defendants entered appearance and it is defendant No. 4 who filed written statement which was adopted by defendants 1 to 3. Defendant No. 6 had filed her own written statement. Defendant No. 5 had failed to appear and was placed ex-parte.

Defendants 1 to 4 had contended that the suit of the plaintiffs was false, but the relationship was admitted including that of defendant No. 5 and it was not also denied that Balu Swamny was the owner of both the suit schedule properties and that he had died intestate and they were in joint possession of the suit schedule properties as legal heirs. They however contended that insofar as their share in the suit schedule properties is concerned, plaintiffs 2 to 3 had taken a sum of Rs. 2,50,000/- each from them and they had promised that they were executing a registered release deed and they had also taken jewellery and other valuable articles in collusion with their mother defendant No. 1 and they had taken away other amounts of money and failed to execute the registered release deed and thereafter had chosen to file a false suit against them. Defendant No. 6 had contended that she was the widow of Anthonyswamy, who was admittedly the son of Baluswamy and plaintiff No. 1 and hence after the death of Baluswamy along with the plaintiffs and defendants 1 to 5, her husband Anthonyswamy succeeded to the suit schedule properties and was entitled to a share. After the death of her husband, she had succeeded to her husband''s share in the suit schedule properties. Therefore, she was entitled to a share in the suit schedule properties and sought for a decree. It is on these pleadings that the court below has framed the following issues:

"1. Whether plaintiffs prove that they are entitled to a share in the suit property, and if so to what share?

Whether defendant Nos. 1 to 4 prove that by taking amount of Rs. 2,50,000/- each from them plaintiff Nos. 2 and 3 have released their right, interest and title over the suit schedule properties in their favour?

Whether defendant No. 6 proves that she is also entitled to a share in the suit property, and if so to what share?

Whether plaintiffs are entitled to the relief sought for?

What order or decree?"

The trial court had then on the basis of the evidence and the arguments canvassed had arrived at the following findings.

That the plaintiff No. 1 was entitled to 65/192nd share and plaintiffs 2 and 3 were entitled to 17/192nd share each in the suit schedule properties held and that defendant No. 6 was entitled to 124th share in the suit schedule properties and answered issue No. 2 in the negative and issue No. 4 partly in the affirmative and decreed the suit in part.

It is that which is under challenge in the present appeal.

The appeal in RFA 1860/2010 is filed by defendant No. 3 and appeal in RFA 201/2001 is filed by Defendant No. 1. In both these appeals the primary contention is as regards a finding in favour of defendant No. 6 that she was entitled to a share. It was not in dispute that defendant No. 6, after the death of her husband Anthonyswamy had married another in the year 1996. Therefore, on such remarriage she was disentitled to claim any share in the property of her erstwhile husband and the allocation of a share in favour of the said defendant is illegal and cannot be sustained.

Though there are grounds urged in the appeals, the learned Counsel would contend that it is only this aspect of the matter which requires to be addressed by this court.

From a reading of Part-V of the 1925 Act, pertaining to intestate succession and the Rules thereunder, Section 33 provides the manner in which property would be devolved, in a case where the intestate has left behind a widow and lineal descendants or widow and kindred only. In other words, if Anthonyswamy on his death, had died intestate, the rule would apply insofar as defendant No. 6 is concerned. But when the question arises as to whether she would still be entitled to claim share in terms of the Rule even after her remarriage, there is no guideline provided under any of the provisions of the 1925 Act. It is this controversial aspect which the learned counsel would seek to canvass.

The learned counsel would confess that inspite of their best efforts, they were unable to lay their hands on any authority as regards the effect of such remarriage and what would be the consequence of the right to succession of the widow in respect of her erstwhile husband''s property if she had remarried.

It is to be seen that the corresponding provision under the Hindu Law, with regard to remarriage, namely, Section 24 of the Hindu Succession Act, 1956, earlier provided that the widow would not be entitled to succeed to the intestate, if such widow, on the date the succession opened, is remarried. This has been repealed by Act No. 39/2005. Therefore, notwithstanding any such remarriage by a widow and whether succession had opened or not, she would still be entitled to claim a share in the erstwhile husband''s property notwithstanding her remarriage. This seems to be the resultant position by implication.

Insofar as the claims for alimony and maintenance are concerned, Section 25 of the Hindu Marriage Act, 1955 again provides that at any time after passing of any decree or at any time subsequent thereto, if an application is made to the court for the purpose, either by the husband or the wife, as the case may be, she would be entitled to claim maintenance and alimony provided she is not remarried. For Sub-section (3) of Section 25 provides the discretion to the court to satisfy itself that she is not so remarried in directing payment of such maintenance or alimony.

Therefore, the Hindu Law does appear to indicate that the divorced widow would be in a position to claim alimony and maintenance even after the divorce and a widow would inherit her erstwhile husband''s property even after remarriage. The difference in denying alimony and maintenance after remarriage and her entitlement to claim a share in the husband''s property even after her remarriage can be traced to the following principle.

Insofar as the claim for maintenance and alimony is concerned, it is not an accrued or vested right and though it is a right which can be asserted and claimed, it has to be determined and till such determination, she would not be entitled to it. Where as the right to property in succession accrues when the succession opens and it stands vested in the widow even without any claim being made thereof. And it is only a recovery of such a vested right which remains in animation. Therefore it cannot be said that by remarriage such an accrued and vested right is lost. It is on that principle, it can be said that the widow, on remarriage, would still be entitled to a share in her erstwhile husband''s property, if that right to such a share had vested in her immediately on his death and on that principle, she would be entitled to a share notwithstanding that she had remarried. Therefore, in the present case on hand, though we are dealing with parties who are said to be Indian Christians, the principle is the same. Section 33 of the 1925 Act, does confer a right by succession on the widow on her husband''s death which has accrued and vested in her. Therefore, even if she is remarried, that vested right is not taken away or lost. And it is to be recognised as being enforceable and the court having granted a share in favour of the defendant No. 6 is in order. There is no warrant for interference on that aspect of the matter.

The appeals are accordingly dismissed.