Basappa and others vs Parwatamma

M.S. Ali Khan, J.—The plaintiffs being the reversioners of a Hindu widow, Parvatwa, defendant (1) filed a suit on 12th Shehrewar 1346 Fasli against her and her daughter, Chinnawa, defendant (2) with the allegation that the gift of the suit property by Parvatawa to Chinnawa was prejudicial to their rights and should be cancelled. They alleged further that Parvatwa''s husband Sharnappa had left a son. Hanmappa and the widow Parvatwa, surviving him; that Hanmappa also died and Parwatawa succeeded to the suit property; and that as she had a life-estate merely her gift to the daughter cannot stand. The defendants alleged that Hanmappa had left a widow behind Him whose name is also Chinnawa; that the plaintiffs had no right in, her life-time; that alternatively, the plaintiffs have no rights to the suit property as Hanmappa had willed it to Parvatwa and she has been in possession of it since 1327 Fasli when Hanmappa died; and that, the plaintiffs'' suit should, therefore, be dismissed. The plaintiffs rejoined that the widow Chinnawa had married and, therefore, forfeited her rights in the widow''s estate and that Hanmappa did not will the property to his mother and that, therefore, they are entitled to get the deed of gift cancelled. On 20th Shehrewar 1353 Fasli the plaintiffs filed a petition to the Court that Parvatwa had died and, therefore, they should be permitted to amend the plaint and add to it the prayer that they should also be put into possession of the suit property. This application does not seem to have been decided so far. However, this may be, it should be noted also that the remarriage took place before 1347 F. when the Hyderabad Hindu Widows Marriage Act of 1347 F. came into force; and that Parvatwa is now dead. The trial Court decreed the plaintiffs'' suit; the first appellate Court reversed this judgment and dismissed it. In the second appeal to this Court the following question of law has been referred to us for a decision.

Whether a Hindu widow belonging to a caste in which second marriage is allowed by custom forfeits her husband''s property because of the second marriage.

I have heard the arguments of the learned advocates of the parties and record my opinion below.

The question whether a Hindu widow forfeits her husband''s property on remarriage has been considered in many cases including several Full Bench cases of many an Indian High Court and it has been considered both from the point of view of the provisions of the Hindu Widows Marriage Act No. XV (15) of 1856 and of pure Hindu Law. As this suit originated in 1346 Fasli corresponding to 1936 A. D., having regard to the then constitutional set-up, the Indian Widows Marriage Act XV (15) of 1856 was not applicable to this State; and the Hyderabad Hindu Widows Marriage Act I of 1347 F. was also not promulgated and enforced and as it has no retrospective effect, the provisions of this Act also are not applicable to the facts of this case. The situation, therefore, resolves itself into a consideration of whether according to the pure Hindu Law the marriage of a Hindu widow involves forfeiture of the widow''s estate. As the learned advocate for the plaintiffs-appellants has cited a large number of cases in which this question, even though with the interpretation of the provisions of Act XV (15) of 1856, has been considered, I will briefly consider them.

Bhola Umar and Another Vs. Mt. Kausilla and Others ''Thayaramma v. Sivayya'', AIR 1919 Mad 854 (FB); ''Vithu v. Govinda'', 22 Bom 321 (F B); ''Matungini Gupta v. Ram Rutton Roy'' 19 Cal 289 (F B); ''Murugayi v. Viramakali, 1 Mad 226; ''Ghowdappa v. Narsamma'', 44 Ind Cas 299 (Mad); C. Gajapathi Naidu and Others Vs. Jeevammal alias Padmavathi Ammal and twenty Ors., ''Ram Lall v. Mt. Jawala'', AIR 1928 Oudh 338; Malik Mokhtar Ahmed Vs. Mt. Bibi Rahimunnissa Begum Mohd. Abdul Samad Khan v. Lala Girdhari Lal'' AIR 1942 All 175; ''Mt. Parji v. Mangta''. AIR 1930 Lah 1023 ''Sundari Letani v. Pitambari Letant'', 32 Cal 871; Raghunath Shankar Dikshit Vs. Lakshmibai Hari Ware, Mohd. Yasin v. Rahmat Ilahl, AIR 1947 All 201; ''Koduthi v. Madu'', 7 Mad 321; ''Laxman v. Gundaji'', 7 Ind Cas 543 (Nag); ''Sitaram v. Laxman'', 17 Ind Cas 133 (Nag) at pp. 134 and 135; '' Santala Bewa and Others Vs. Badaswari Dasi, ournal 1; ''Rutherford v. Actonadams'', AIR (2) 1915 P C 113; ''Sally Mohd. Hajee Sulaiman v. S. B. Neogi & Co.'', AIR 1932 Rang 56; '' Chandra Binode Kundu Vs. Sheikh Ala Bux Dewan and on his death one of his heirs and Legal Representatives, Samartaban Bibi and Others, AIR 1939 186 (Nagpur) ; ''Bihari Lal v. Bani Madhava'', AIR - (36) 1949 Pat 293; Mt. Jileba Vs. Mt. Parmesra,

The interpretation of the provisions of Act XV (15) of 1856, may be dealt with briefly. The difference of opinion between the various Indian High Courts on this point is about the question whether the preamble to the Act governs the enacted provisions or not. According to the Allahabad High Court the preamble makes it clear that the Act is an enabling Act and enables such Hindu widows as have been prohibited by the custom of their caste to remarry; that it cannot be deemed to have penalised such widows as were already empowered by the custom of their caste to remarry and that, therefore, these widows do not come under the operation of this Act and do not forfeit their estate on remarriage. Many a learned Judge of the other High Courts, for instance, Mr. Justice Krishnan, Mr. Justice Seshagiri Iyer, Mr Justice Wilson, Mr. Justice Princep, etc., agree with this view of the Allahabad High Court that the Act is an enabling and not a penalising Act; but the majority of the Judges of the Indian High Courts consider that as the intention of the Legislature in the enacting portion of the Act is clear, the preamble cannot be deemed to restrain it. For clearness, I will quote the preamble:

Whereas it is known that, by the law as administered in the civil Courts Hindu widows, with certain exceptions, are held to be, by reason of their having been once married, incapable of contracting a second valid marriage, and the off-spring of such widows by any second marriage are held to be illegitimate and incapable of inheriting property; and

Whereas many Hindus believe that this imputed legal incapacity, 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 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 as follows....

The Allahabad High Court and Judges of its persuasion emphasize the words "all such Hindus" and hold that it is evident that the Act was applicable only to such widows as were prohibited by the custom of their caste and could not apply to such widows as were not so prohibited. They think that had'' the intention been to penalise the "latter class of Hindu widows more specific provisions would have been enacted. They observe that the words ''any widow'' In S. 2, if given the widest interpretation would include even a Christain or a Muslim widow; that nobody contends that such widows come under the operation of the Act and that, therefore, it becomes necessary to restrict the general import of the words "any widow"; and that it must be restricted to such Hindu widows as were owing to the custom of their caste unable to remarry. On the other hand, as already stated, the majority of the Indian High Courts consider that Section 1 enables such Hindu widows as were unable to remarry and S. (2) imposes a disability upon them, that on remarriage they shall forfeit the estate inherited by them as widows; that had the Legislature intended that-only the above mentioned widows should forfeit the estate and other Hindu widows who were enabled by custom of their caste to remarry should not forfeit the estate, some express provision was clearly necessary to safeguard the customary non-forfeiture on remarriage; that omission to do so clearly signifies that forfeiture was intended to apply to all Hindu widows who remarried; that the preamble clearly shows that the Legislature was aware of the fact that there were certain exceptions to the custom prohibiting widow''s marriages; that if inspite of being alive to this fact, the Legislature in very clear and general words imposed forfeiture on remarriage, the intention was clearly to make forfeiture a rule of general application; that forfeiture on remarriage was not only the general custom but was also in consonance with Hindu conceptions, as a Hindu widow inherited the estate because of her being the ''patni'' of her husband and was clearly expected to devote herself to a life of austerity and of spiritual benefit to the deceased husband by performance of religious ceremonies. It is difficult to say which of the two interpretations is correct; still, an attempt can be made. It is well established that:

The preamble of a Statute has been said to be a good means of finding out its meaning, and as it were, a key to the understanding of it; and, as it usually states, or professes to state, the general object and intention of; the Legislature in passing the enactment, it may legitimately be consulted to solve any ambiguity or to fix the meaning of words which may have more than one, ''or to keep the effect of the Act within its real scope'', whenever the enacting part is in any of these respects open to doubt.

In Act XV (15) of 1856, there is no ambiguity and no words are used which can have more than one meaning and, therefore, the preamble can only be used to find out the intention of the Legislature and to keep the effect of the Act within its real scope. As already stated, the real question is, whether, as evidenced by the preamble, the intention is only enabling or is it also penalising by imposing forfeiture? It is a canon of interpretation that preamble does not affect plain terms of Act:

The preamble cannot either restrict or extent the enacting part when the language and the object and scope of the Act are not open to doubt, It is not unusual to find that the enacting part is not exactly co-extensive with the preamble. In many Acts of Parliament, although a particular mischief is recited, the Legislative provisions extend beyond it. The preamble is often no more than a recital of some of the inconveniences, and does not exclude any others for which a remedy is given by the Statute. The evil recited is but the motive for legislation; the remedy may both consistently and wisely be extended beyond the cure of that evil, and if on a review of the whole Act a wider intention than that expressed in the preamble appears to be the real one, effect is to be given to it notwithstanding the less extensive import of the preamble.

All illustration of this principle will be found in the English Statute, 4 and 5, Ph. & M., c. 8, where though the preamble had referred only to heiresses and other girls with fortunes, effect was given to the enacting portions and, abduction of all girls under 16 was deemed to come under the operation of the Act and, therefore, penalised. Granting that in the preamble of Act XV (15) of 1856, the mention of such Hindu widows as cannot remarry by custom of their caste, is a mere partial recital, question is: how can the remedy given by the Act, namely enabling of such widows to remarry be deemed to apply to those widows who were already empowered by the custom of caste to remarry. They did not need the remedy and, therefore, the Act does not seem to apply to them. Moreover, it is also a canon of interpretation that:

I take it to be agreed that if the not restraining the generality of the clause will be attended with an inconvenience, the preamble shall restrain it.

Here S. 2 can only be regarded as causing the inconvenience of forfeiture to those widows who were already entitled to remarry by custom of their caste and, therefore, the preamble should under this canon of interpretation restrain the scope of words "any widow" used in S. (2); and restrict it to such widows as were not inconvenienced by it, that is, to the widows who could not remarry before the Act. In this view, the Allahabad interpretation appears to be correct; but it leads to the anomaly that widows permitted by the Act to remarry will forfeit the estate while widows permitted by custom will not forfeit. The question then comes to whether the Legislature intended that there should be this anomaly? It will be seen that in so far as competency to remarry is concerned, the Legislature has put both the classes of widows on the same footing. The majority of the Indian Courts think that as forfeiture is in accordance with the principles of Hindu Law, the Legislature imposed it on both the classes of the Hindu widows. The question, therefore, turns on the Hindu Law; and to this I now pass on.

It is admitted on all hands that there is no express text in the sacred law books of the Hindus prescribing forfeiture of a widow''s estate on her remarriage. The majority of the Indian High Courts have, however, proceeded on certain texts in which her right of inheritance to her husband''s estate is provided. All these texts are collected in ''Laxman v. Gundaji'', 7 Ind Cas 543 (Nag) & ''Sitaram v. Laxman'', 17 Ind Cas 133 (Nag). It is not necessary to reproduce them. As far as I can say, the summary of the texts in these 2 cases has not been surpassed. Briefly, the texts show that widow is given the right to inherit because she is considered to be half the body of her husband and it is held that as the husband lives in that half body, none else can be entitled to succeed him. Besides, in certain other texts it is laid down that the widow who keeps unsullied the bed of her lord and performs religious ceremonies to his spiritual benefit becomes for these reasons entitled to his estate. But many a Hindu Judge does not regard these considerations as conditions precedent to the right of inheritance. The text on the half body is regarded as a ''beautiful metaphor'' by Mr. Justice Seshagiri Iyer'' and the text regarding spiritual benefit is also not considered a SINE QUO NON to the right of inheritance. Mr. Justice Seshagiri Iyer has held that the widow is given the right of inheritance in a matter of fact way and placed after the son without any condition as to spiritual benefit or otherwise. Thus the question comes to whether any effect can be given to either or both these texts. There can be no doubt whatsoever that a widow''s marriage is not favoured by Hindu Law and as remarked by some of the Judges Sati was favoured. The learned reformer, Vidyasagar, could give reference to one text of Parasara only in which remarriage was allowed in five gases of, the husband''s unaccounted absence for a long time, his death, his becoming a Sanyasi, or impotent or degraded. But other learned persons including Parashar''s own son, Vyasa, the author of Mahabharata, did not favour this view, as they considered it a hindrance to a life of penance and austerity. When most of the learned in Hindu Law consider that having regard to the text of Hindu Law the condition precedent to a widow''s inheriting her husband''s estate is her continuance as a widow, it seems difficult to gainsay it. It is no doubt not an unanimous view but is, at least, the majority view that under the Hindu Law widowhood is a SINE QUO NON for the holding of the widow''s estate. Thus according to the trend of authority the continued enjoyment of widow''s estate is dependent upon the continuance of widowhood and from the point of view of pure Hindu Law, it appears that cessation of widowhood is a divestative fact. The fact cannot, however, be forgotten that in Hindu Law, there is no express text prescribing forfeiture on remarriage It seems obvious that as custom is a source of law, and in Hindu Law especially custom is a fruitful source of law and the weight attached to it is immense, inasmuch as a custom overides even an express text, the absence of express text on the point should be made up by proof of custom. As a matter of fact, in almost all cases where it has been held that pure Hindu Law prescribes forfeiture reliance is also placed on custom. Thus even though I am inclined to hold in accordance with the view expressed in the majority of Indian decisions that pure Hindu Law prescribes forfeiture of a widow''s estate on her remarriage, still I think that it will also be necessary that the Court which decides a case according to pure Hindu Law must pay heed to whether there is a custom prescribing forfeiture of a widow''s estate on her remarriage.

It should be noted that in the Allahabad view also though it has been emphatically laid down that pure Hindu Law does not involve forfeiture on remarriage, still it was conceded that if a custom involving forfeiture is proved, forfeiture should be decreed. This Court has followed the Allahabad view. The first case on this point is ''Jija v. Devha'', 11 Deccan L R 551. This was followed in Bhuji Ram v. Namdeo'', 13 Deccan L R 12 and ''Basava v. Venkatesh'', 16 Deccan L R 132; ''Ganpatrao v. Parbat Rao'', 25 Deccan L R 596; ''Vithabai v. Hatkubai'', 27 Deccan L R 37; ''Shankar v. Prayag Bai'', 29 Deccan L R 111; ''Saraswati Bai v. Drupati Bai'', 36 Deccan L R 304 and ''Pannalal v. Harnabaia'', 38 Deccan L R 510 and ''Gurusid Ara v. Hasha Reddy'', 38 Deccan L R 396. Hence if as held towards the end of the preceding paragraph, in holding that pure Hindu Law prescribes forfeiture, custom should not be lost sight of, the question of STARE DECISIS does not arise. But if in any case such a custom is not proved and it is to be decided in accordance with pure Hindu Law, then this question of STARE DECISIS will arise. Even so, the principle of STARE DECISIS cannot be emphasized too much. As held in the cases cited in the margin Chandra Binode Kundu Vs. Sheikh Ala Bux Dewan and on his death one of his heirs and Legal Representatives, Samartaban Bibi and Others, Westham Union v. Edmontin Union, 1908 A. C. 1; 1931 A.C. 605 Lal Bihar Lall and Another Vs. Bani Madhava Khati and Others, : A. I. R. 1946 Pat. 146 (Sic) : AIR 1921 Cal. 15 at pp. 29 and 80; AIR 1939 186 (Nagpur) this principle can be departed from when there is a clear balance of convenience and when it does not upset transactions. In my opinion, when the sense of the Hindu Law appears to be that remarriage should involve forfeiture, there will be no harm done if inspite of the decisions of this Court mentioned above, this Court falls in line with Bombay, Madras and Patna High Courts and holds that remarriages would involve forfeiture unless there be a custom to the contrary. This is what the Hyderabad Legislature enacted in Act I (1) of 1347 Fasli, and our opinion will be applicable to the few cases that may be pending from before 1347 F. In the result, the question referred to us should, in my opinion, be answered in the affirmative.

DESHPANDE J.: In this case the question referred to the Full Bench is:

Whether the Hindu widow belonging to a caste in which second marriage is allowed by custom forfeits her husband''s property because of the second marriage.

In this question it is assumed that the widow is allowed by custom to marry a second time. So, it is not necessary to consider whether a remarriage is allowed or not. In this case the remarriage had taken place before 1347 F., when the Hyderabad Hindu Widows Remarriage Act came into force. Therefore, the application of this Act is also not in point. The widow before her marriage was in possession of the property of her first husband. The only question now is whether by her second marriage she forfeits the property she had inherited from her first husband.

It is not necessary to go into the discussion whether widow remarriage was allowed by ''Shastras'' or not. It is a fact that it was not in vogue and was considered as prohibited in Kaliyug. After the advent of British rule there was agitation that this restriction, especially amongst the three twice born classes should be removed. Amongst the ''Shudras'' widow remarriage was allowed by custom. So Widow Re-marriage Act of 1856, was passed and by this Act, widows who were prohibited from remarrying were allowed to remarry. By S. 2 of this Act, the widows entailed forfeiture of the estate of her first husband vested in her. In the interpretation of this section, there is a conflict of opinion between Allahabad and Oudh High Courts on the one hand and the other High Courts on the other, the former holding that S. 2 entails forfeiture of her heritage in the case of remarriage legalised under that Act, while other High Courts hold the words "any widow" in section thereof to include even those who could customarily remarry independent of the Act ( Bhola Umar and Another Vs. Mt. Kausilla and Others ''Ma-Tungini v. Rutton Roy'', 19 Cal 289; Tayaramma v. Sivayya'', 41 Mad 1078; ''Vithu v. Govinda'', 22 Bom 321.) In our State this Act was not applicable. In the year 1347 F., Hindu Widows Re-marriage Act was passed in our State also. But as stated above the remarriage under consideration took place before the enforcement of the Act and as the Act is not made applicable retrospectively, the provisions of this Act are not applicable to this case. As the Act is not applicable, the question referred to must be considered only in the light of pure Hindu Law.

The only test which is often quoted and is made applicable in this respect is the following text of ''Brihispati'':

Of him whose wife is not dead half his body survives. How should any one else take the property while half (his) body lives. (Ghose''s Principles of Hindu Law, Pages 270 and 271, 2nd Edn).

Justice Sheshagiri Iyer in the Full Bench case of ''Tayaramma v. Sivaya'', 41 Mad 1078 at p. 1094, after quoting this text observed that

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 coparcenary 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 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 sonless deceased person of whatever caste.

"The widow inherited the estate". The question now is whether once she inherits, is she divested of the estate once vested by reason of remarriage. If this metaphor be taken as criterion then how could Hindu law have allowed widow remarriage. Amongst Shudras widow remarriage is allowed since time immemorial. Had it been a law that widow is hall the part of husband even amongst Shudras widow remarriage would not have been allowed. In the case of Bhola Umar and Another Vs. Mt. Kausilla and Others Justice Mukherji has observed as follows:

The main argument advanced is this: a widow inherits because she is one-half of the body of her husband, ("Ardhanginee" as she is called) and if she remarries, she ceases to be one-half of her husband''s body and therefore forfeits the right of inheritance. Nothing can be more fallacious, with all respect, than this argument when applied to the case of people who permit the remarriage of their widows. If these people believed that a wife was one-half of the body of her husband and on the death of her husband one-half of his body survives in the widow, how could they possibly have allowed the widow to remarry, how could possibly one, who was one-half of one man''s body, have become the one-half of another man''s body by second marriage? If a true rule of Hindu Law be that a widow inherits because of being one-half of her husband''s body, then a widow marriage cannot possibly be legal under the Hindu Law. Yet not only is there a considerable body of opinion which regards the remarripge of a widow valid according to the Hindu Shastras, but also there is a considerable body of people who are supposed to be within the fold of the Hindu religion and yet they permit widow marriages. It must follow that those people who allow their widows to make a valid remarriage never believe in the doctrine that a wife is a one-half of the body of the husband and that the widow survives the husband as one-half of his body.

Texts of Vridha Manu and Katyayanas are also cited in support of the view that widow after remarriage is divested of her first husband''s property. A widow who has no male issue who keeps the bed of her Lord unsullied and who strictly performs the duties of widowhood shall alone offer the cake at his obsequies and succeeds to his entire share. Let the son-less widow preserving unsullied the bed of her Lord and steadfast in her continuance enjoy with moderation the property until her death. After he let the heirs take it. (Ghose''s Hindu Law at pages 268 and 273, 2nd Edn.). It is contended that if a widow cannot offer cake at his obsequies she is not entitled to the share of her husband''s property. As by remarriage she cannot offer cake she must be divested of her first husband''s estate. This argument was closely considered by their Lordships of the Privy Council in the case of ''Moniram Ko-Lita v. Keri Kolitani'', 5 Cal 776, and held that estate once vested cannot be divested merely because the widow becoming unchaste after the death of her husband cannot offer cakes at his obsequies. Their Lordships of the Privy Council observed at page 787:

For the reasons above stated they are of opinion that these texts neither expressly nor by necessary implications affirm the doctrine that the estate of a widow once vested is liable to forfeiture by reason of unchastity subsequent to the death of her husband. Thus the text of pure Hindu Law often quoted are not of any use in deciding whether after remarriage a widow is divested of her first husband''s property.

As observed by Mukherji J. In Bhola Umar and Another Vs. Mt. Kausilla and Others

The fact of the matter is that Hindu Law was a growing set of rules and at any particular time, the practice of a particular body of people residing at a particular place generally determined the character of the law. It is for this reason that so many schools of law have arisen, a though each school of law holds in veneration the same secred laws known as Smrithis. It is a matter of history and it is well known that the Hindu religion holds within its fold many people who have never had in any sense of the term, anything to do with the Aryan civilization. When the (Hindu) Aryans came to India and conquered the aboriginal races and spread their dominion, they naturally drew within: their folds many of the aboriginal tribes who gradually out of sheer veneration started following some of the customs and manners of the Aryan races. The Aryan races never admitted most of these people, entirely into their own folds and kept them apart, by calling them Shudras, as persons belonging to the fourth class.

It was only the privilege of the first three classes, the Brahmans, the Kshatrias and Vaishias to read the Shastras and the sacred laws and to abide by them. The duties of the Shudras as laid down by Manu was to serve the three higher classes; Ch. 1, verse 91. Indeed Manu himself says in the clearest terms that his laws were meant mostly for the benefit of the three regenerate of higher classes and not for the Shudras. The Vedic rights were meant for the three higher castes alone who were known as twice-born ones. In Ch. 2, S. 24, Manu states that the twice-born people were to make their home within a particular area known as Arya Varta or the country of the Aryans, but the Shudra was allowed to adopt any country as his home. From C. 26, Ch. 2, commence the rules for the purification of a child of the Dwija or twice-born class and the rules that fully relate to the duties, of the twice-born. You may read through the whole of Manu and you will find that although in the beginning of his Smrithi he says that he is laying down the rules for all the four castes, he concerns himself with only the three higher castes and only distantly with the Shudras.

This being the case, it is not correct that the fine reasons which have been advanced from time to time by the sages as the basis of the Hindu law apply equally to the Shudras, simply because the latter call themselves Hindus. As I have already observed if we follow one of the reasons given by the founder of the Bengal School for the right of a Widow to inherit, namely, her being one-half of her husband''s body, she can never remarry and her remarriage cannot be valid. Thus it is clear that the caste which allows a widow to remarry does not recognize the reason given by some of the Rishis for the right of inheritance of a widow and therefore it is not right to say that as those reasons fail in the case of a remarriage, there should be a forfeiture. The castes amongst whom widow remarriage is recognized are mostly treated as Shudras and you cannot apply the fine reasonings of the Rishis for deducing the logical result of the acts of those who are practically beyond the closed precincts of the laws for the three twice born castes. Gautama in Ch. 11, slokas 19 and 20 says that the administration of justice shall be regulated by the Ved the Institutes of the Sacred Law, the Angas, the Uppavedas and the Puranas. The laws of the country, castes and families, which are not opposed to these sacred records, have also authority. Cultivators, traders, herdsmen, money-lenders and artisans have authority to lay down rules for their respective classes: see page 25 of Ghose''s Hindu Law, Edn. 3, Vol.1. Again there is a text of Vyasa quoted in Vyavahara Mayuka which runs as follows (see the same book page 35).

The custom of traders, artisans, etc. and those who earn their livelihood by means of agriculture or the stage are not capable of being ascertained by others. Disputes among them should be decided by those of their own class.

I think I have said enough to establish that even the framers of the Hindu Law never professed to lay down rules for those who were never really within the narrow fold of the three regenerate classes.

It was customary with the Shudras to remarry and the custom also must be looked Into in order to determine whether vesting or divesting takes place after remarriage. Mr. T. N. Mithra in his Tagore Law Lectures delivered as early as 1879 on Hindu Widows (at page 214) made the following observation:

I have been considering up to this time the marriage of widow as authorised by Act XV of 1856. There are however certain classes of Hindus among whom the marriage of a widow was allowed by custom. These I take it will be governed by the custom on the subject rather than by Act XV of 1856 as among them the remarriage of the widow owes its origin to custom so the incidence connected with that marriage must be governed by the same custom.

This opinion implies that there can be neither forfeiture nor non-forfeiture unless there is a custom to that effect. As observed by Desai J. in '' Mt. Jileba Vs. Mt. Parmesra,

If the remarriage is done under an ancient and immemorable custom existing before 1856 when the Hindu Widows'' Remarriage Act was enacted the question whether she is divested or not depends upon that custom and that custom alone. The reason is that a custom of remarriage does not carry with it as a legal incident thereof a further custom of forfeiture upon remarriage.

Sir Hari Singh Gour, the learned author of the Hindu Code at Page 937, observes:

It is submitted that the Hindu Widows'' Remarriage Act, 1856, was intended to insure freedom of conscience on the part of those to whom their religious injunction had barred from remarriage, and that the Act, being an ''ad hoc'' Act could not be read as rescinding rights that widows possessed under their customary law which, while legalizing a remarriage, may or may not prescribe for its consequential forfeiture of her husband''s heritage. But in such case, the determining authority is custom and not the Act.

Thus the criterion to determine whether the Hindu, widow belonging to a caste in which second marriage is allowed by custom forfeits or not her husband''s property because of second marriage is the custom and custom alone and none else.

As regards the cases that have been cited at the bar they can be grouped under three heads:

I. Cases in which it has been held that a Hindu widow forfeits her rights in the estate of her first husband after her remarriage with reference to Ss. 1, 2 and 5 of the Hindu Widows'' Remarriage Act, No. XV (15) of 1856 (Hyderabad Act No. I (1) of 1347 F. Ss. 2 and 5).

Cases: ''Vithu v. Govinda'', 22 Bom 321; ''Rasul Jehan Begum v. Ram Suran Singh'', 22 Cal 589; ''Tayaramma v. Sivayya'', AIR 1919 Mad 854; C. Gajapathi Naidu and Others Vs. Jeevammal alias Padmavathi Ammal and twenty Ors., ; Santala Bewa and Others Vs. Badaswari Dasi, Raghunath Shankar Dikshit Vs. Lakshmibai Hari Ware, ''Pannalal v. Sumranlal'', AIR 1939 Nag 260; ''(Article by Mr. L. G. Ganu)'' AIR 1933 Journal 1; ''Nawab Singh v. Gauri Shankar'', AIR 1935 Pat 58; ''Vitha Bai v. Hatku Bai, 27 Deccan L R 37; ''Saraswati Bai v. Drupata Bai'', 36 Deccan L R 304.

II. Cases in which it is held that forfeiture follows remarriage as per Hindu Law:

Cases: ''Murugayi v. Veeramakalt'', 1 Mad 226; ''Vithu v. Govinda'', 22 Bom 321; ''Laxman v. Gundaif, 7 Ind Cas 543 (Nag); ''Sitaram v. Laxman'', 17 Ind Cas 133 (Nagk ''Matungini Gupta v. Rutton Roy'', 19 Cal 289,

III. Cases in which it is held that forfeiture does not follow remarriage of a Hindu widow unless there is custom to that effect: Cases:

Bhola Umar and Another Vs. Mt. Kausilla and Others ''Abdul Samad Khan v. Lal Girdharilal'', AIR 1942 All 175; Jija v. Devba'', 11 Deccan L R 551; ''Basava v. Venkatesh'', 16 Deccan L R 132; ''Rangrao v. Sundara Bai'', 25 Deccan L R 765; ''Ganpat Rao v. Parbat Rao'', 25 Deccan L R 596; ''Bhuji Ram v. Namdeo'', 13 Deccan L R 12; ''Shankar v. Prayag Bai'', 29 Deccan LR 111; ''Gurusiddava v. Haswa Reddy'', 38 Deccan L R 396.

So far as those cases which relate to the Hindu Widows'' Remarriage Act, we are not at all concerned here and so we need not discuss them. In the cases which relate to forfeiture according to pure Hindu Law the case of ''Laxman v. Gundaji'', 7 Ind Cas 543 (Nag), is one which wherein all the authorities of Hindu, Law are gathered and on the anology of those texts it has been held that the succession opens if one is able to offer cake. Chaste wife alone can do so. Therefore, a remarried wife cannot be an heir to her first husband. In the same way in the case of ''Sitaram v. Laxman'', 17 Ind Cas 133 (Nag), it was held that by marriage the woman is transferred from ante-nuptial gothra to the gothra of her husband, therefore she is not related and is not capable of inheritance in the former husband''s family. I have discussed above by citing the text that they are not of any help in deciding the present Question. In the case of ''Marugayu v. Veeramakali, 1 Mad 226, their Lordships of the Madras High Court have held that so far as the enquiries extended and which are embodied in the Steel''s Hindu Caste, the custom in the Shudras is that a widow on remarriage gives up all properties of her former husband''s relations except what has been given her by her own parents. In the case of ''Vithu v. Govinda'', 22 Bom 321, Ranade J. observed:

So far as this Presidency is concerned it is obvious from the information collected by the Government and public in Steel''s Law and Custom of Indian Castes at pages 364 and 365, the names of the castes in Deccan among whom ''pat'' marriages were allowed or forbidden and mention is made of the castes in which when a widow performs ''pat'' her husband''s relatives succeeded to her husband''s estate. There is no single caste mentioned in which any custom to the contrary prevails.

Thus it will be seen that in these two cases the basis is custom which is gathered in the Steel''s Hindu Law. In the case of ''Matungini v. Rutton Roy'', 19 Cal 289'', it has been held that under the Hindu Widows'' Remarriage Act, the widow forfeits her rights in her first husband''s property. This case, there fore, is not relevant.

Under the third head all the cases decided by the Allahabad High Court have been grouped. In all these cases it has been decided that S. 2 of the Hindu Widows'' Remarriage Act, No. XV (15) of 1856, does not apply to such widows who have married according to the custom of their castes and therefore they do not forfeit after remarriage the estate of their first husband, unless it is customary that after remarriage the widow forfeits the estate of her first husband. Thus in all these cases the determining factor is custom, if the remarriage is according to the custom of their -castes,

As regards the cases of our High Court, the first reported case is ''Jija v. Devba'', 11 Deccan L R 551. In this case it was decided that in the case of Shudras where remarriage is allowed according to the custom, the widow does not forfeit her rights in the estate of the first husband and reference was given to the Allahabad cases. In this case no reference is made whether there was any custom in the caste as regards the forfeiture of the estate -of her first husband hut the rulings of the Allahabad High Court were followed. The next case is of ''Bhuji Ram v. Namdeo'', 13 Deccan L R 12. In this case the decision of ''Jija v. Devba'', 11 Deccan L R 551, was followed without any comment. It was also held that as in this particular case it was the mother whose succession was under consideration and as the question of the widow''s remarriage does not apply, the question of the forfeiture of the rights to the estate of the husband does not come in. Therefore, this case is distinguishable. The third case is of ''Basava v. Venkatesh'', 16 Deccan L R 132. In this case the earlier rulings of the High Court were followed and it was held that the widow does not forfeit her rights in the first husband''s property. In the case of ''Ganpatrao v. Parbatrao'', 25 Deccan L R 596, it was decided that as soon as it is established by custom that a Hindu widow can remarry then she does not forfeit her rights of inheritance in the property of her first husband. It has been assumed in this case that as soon as it is established that she can remarry it is established that she retains the right of inheriting the property of her first husband. Inspite of the fact that reference was made to Madras, Bombay and Calcutta rulings wherein the widow forfeits her right to inherit her first husband''s estate it was decided that as our High Court has followed Allahabad rulings those rulings will be followed unless and until a contrary is decided by any higher Court. It is assumed in all these cases in which it has been decided that the widow does not forfeit the estate of her first husband as soon as the custom about the remarriage is established. This assumption is not supported by any authority. Even in Allahabad High Court, which has been followed by our High Court, it has been held that if a custom to the contrary is proved then the widow forfeits her rights in the property of her first husband. In the case of ''Vithabai v. Hatkubai'', 27 Deccan L R 37, it was decided that a widow remarrying forfeits her right in the estate of her first husband, except in the case when it is stated and proved that according to the custom she does not forfeit, and all the Allahabad cases were not followed as they were based upon Act of 1856. So, the rulings of our High Court have not been followed in this case but have been dissented from. In the case of ''SHANKAR v PRAYAG BAI'', 29 Deccan L R 111, following the earlier rulings of this Court, in which the rulings of the Allahabad High Court have been followed it was held that the widow does forfeit her right to inherit in the estate of her first husband after remarriage. In the case of ''Saraswati Bai v. Drupata Bai'', 36 Deccan L R 304, it was decided that the Act No. 1 of 1347 F., Hindu Widows Remarriage Act applies to all the widows and therefore, she forfeits her right in the estate of her first husband. As in this case the Act has been made applicable it is not relevant at all to our point of view. In the case of ''Gurusidava v. Hasha Reddy'', 38 Deccan L R 396, it was decided that unless and until it is not proved that according to the custom after remarriage a widow forfeits her right in the estate of her first husband, the widow does not forfeit her right in the estate of her first husband, and all the earlier rulings were followed. In the case of ''Pannalal v. Harnabaf, 38 Deccan L R 510, it was held that mother does not forfeit her right to inherit her sons'' estate by remarriage. The case of widow forfeiting is not at all relevant to this case.

In view of the discussion of the cases referred to above, it will be found that there is no express text regarding the vesting or divesting of estate after the remarriage of a widow. It is accepted axiom of the Hindu Law that custom overrides the hundred texts of Hindu Law. In none of the cases it has been shown that there is any text referring to this question. Just as it was held in ''Murugayi v. Viramakali'', 1 Mad 226 and ''Vithu v. Govinda'', 22 Bom 321, that there was custom prevalent among the lower castes that after remarriage the widow forfeits the estate of her first husband, that was the reason why the accepted custom of these castes was given a statutory sanction in the Hindu Remarriage Act. Therefore, the only criterion that can be found for applying to the vesting or divesting of the property of her first husband in the remarried widow is custom. In the Allahabad cases it was assumed that customarily the widow does not forfeit her right in the estate of her first husband. In the other High Courts they have based their decisions upon the custom prevalent in their Courts. The only criterion which can be applied to the question is custom. Therefore, the reply that can be given to the question referred to is that it depends upon the custom prevalent in the caste of the widow to which she belongs whether she forfeits or not her first husband''s property because of the second marriage.

QAMAR HASAN J.: The question formulated by the Full Bench under S. 10(2) of the Hyderabad High Court Act, for the opinion of this higher Bench translated into English runs as follows:

Whether or not a Hindu widow who remarries in accordance with a custom of her caste forfeits thereby her right in the estate of her first husband.

I agree with the answer proposed by my learned brother Vithal Rao J. The cases of the various High Courts have been considered at length by my learned brothers and it is unnecessary for me to cover the same ground. So far as this High Court is concerned, the question is not of the first impression. It has been for the last 27 years consistently held in cases beginning with Jeeja v. Devba'', 11 Deccan L R 551, that the remarriage in the circumstances mentioned in the question referred to above does not entail any divestiture unless so ordained by the custom. This view was based upon the view taken by the Allahabad High Court and inspite of the fact that the opinion to the contrary held by other High Court was brought to the notice of some of the learned Judges who decided those cases, they consistently refused to depart from the view taken by our High Court. In my opinion the Courts must always hesitate to overrule decisions which are not manifestly erroneous & mischievous which have stood for many years unchallenged and which from their nature may reasonably be supposed to have affected the conduct of a large portion of the community in matters relating to rights of property. I may in this connection with advantage quote the observation of Chagla C. J. in Sakarchand Satidas and Others Vs. Narayan Savla Vani and Others, His Lordship at page 13 of the report says:

We are impressed by the fact that in taking a contrary view, even if the contrary view be more logical, we would be upsetting a series of decisions spread over a considerably long period and in doing so we would be offending against the doctrine of ''stare decisis'' which is always more important and more to be respected than any logical doctrine from a particular view as to the strict law.

The cursus curiae in this Court has the support of such eminent Judges as Pandit Keshav Rao, Raja Bahadur Bisheshwar Nath and my colleague in this Bench Mr. Justice Manohar Pershad. It cannot safely be postulated that the view taken by our High Court is manifestly erroneous or contrary to any express rule of Hindu Law. Inasmuch as pure Hindu Law does not recognise the institution of remarriage one cannot expect to find rules therein in respect of divestiture of property on remarriage. Remarriage from strict Shastric point of view can be no more than unchastity. If custom legalises it, the threat of divestiture either as a penalty or deterrent cannot be brought into play on the fiction of ''ardhangi''. I agree with my learned brother Mr. Justice Vithal Rao that the question of divestiture depends upon custom and is governed by custom alone.

Much stress was laid by the learned Advocate for the appellant on the provisions of Hyderabad Widows Remarriage Act and its Indian counterpart to show that correct view of the Hindu Law is what has been enacted in those Acts. I refrain to express any opinion on this aspect of the case because these Acts do not apply. Even if I express an opinion it would be no more than obiter dicta.

MANOHAR PERSHAD J.: A Full Bench of this Court has referred the following question to this Bench to be considered in the light of S. 6 of the Hyderabad Hindu Widows Remarriage Act I of 1347 Fasli:

Whether a Hindu widow belonging to a caste in which second marriage is allowed by custom forfeits her rights in her husband''s property because of the second marriage.

As it was an important question of Hindu Law and nobody appeared on behalf of the other side, we appointed Shri Sadashiv Rao, Advocate as ''amicus curiae''.

Shri Lakshman Rao Ganu, Advocate appearing on behalf of the appellant argued before us that according to strict principles of Hindu Law, a widow on re-marriage forfeits her rights in the property and the same is the meaning of S. 5 of the Hyderabad Hindu Widows Re-marriage Act I of 1347 Fasli and though this Act has come into force in 1347 Fasli yet as it also enacts the same principles of Hindu Law, in either case the widow on remarriage forfeits her right in the property. In this connection, he drew our attention to the following authorities:

''Vithu v. Govinda'', 22 Bom 321; ''Rasul Jehan Begum v. Ram Surun Singh'', 22 Cal 589; Tayaramma v. Sivayya'', AIR 1919 Mad 854 ; C. Gajapathi Naidu and Others Vs. Jeevammal alias Padmavathi Ammal and twenty Ors., ; Santala Bewa and Others Vs. Badaswari Dasi, ; Raghunath Shankar Dikshit Vs. Lakshmibai Hari Ware, ''Pannalal v. Sumranlal'', AIR 1939 Nag 260; ''Nawab Singh v. Gauri Shankar'', AIR 1935 Pat 58; ''Vitha Bai v. Hatkubai'', 27 Deccan L R 37; ''Saraswathi Bai v. Dharmata Bai'', 36 Deccan L R 304; Murugayi v. Virankali'', I Mad 226; ''Laxman v. Gundaji'', 7 Ind Cas 543 (Nag); Sitaram v. Laxman'', 17 Ind Cas 133 (Nag); Matungini Gupta v. Ram Rutton Roy'', 19 Cal 289; ''Steele''s Hindu Law'', pp. 364 and 365: ''Mayne''s Hindu Law'', S. 532, p. 642.

Shri Sadashiv Rao, Advocate, also contended that the widow forfeits her right in the property after remarriage according to the strict principles of Hindu Law. In order to appredate this point, I have to consider it having regard to the question of pure Hindu Law as well as the Hindu Widows Re-marriage Act. I would first take up the question of pure Hindu Law.

It should be borne in mind that divorce and re-marriage were foreign to Hindu Law as laid down by the sages, but according to custom it was declared valid in certain communities. So, it is not possible to find express or exhaustive treatment of this subject in the sacred books, but it cannot be denied that the general principles of Hindu Law still govern the communities in which such customs have prevailed. Of course, various High Courts have given a different interpretation to this. The High Courts of Madras, Bombay, Calcutta and Lahore have assumed that re-marriage, according to custom, involves forfeiture of the estate inherited from the first husband, while the High Courts of Allahabad and Oudh have taken a contrary view. Thus, it will appear that both the views, the Bombay, Madras and Calcutta view and the Allahabad view, are based more or less on assumptions, and it was for the first time attempted to put life into the assumption in favour of the Allahabad view in the case of Bhola Umar and Another Vs. Mt. Kausilla and Others by referring to the principles, i.e., an estate once vested cannot be divested and that when unchastity could not deprive the widow of her estate, a second marriage could not. In order to determine this question, two points have to be considered - firstly, what is the nature of the Hindu Widows'' estate in the Hindu Law apart from statutory enactments? Is it an estate during widowhood and liable to forfeiture upon a second marriage, or is it free from any such restrictions. And secondly, what is the effect of the Hindu Widows Re-marriage Act I of 1347 Fasli.

It is the general rule of Hindu Law as stated by the Privy Council in the case of ''Moniram Kolita v. Kolittani'', 5 Cal 776 (P C) that

an estate once vested by succession or inheritance is not divested by any act or incapacity, which before succession would have formed a ground for exclusion from inheritance.

and it was, therefore, held not to have been established that the estate of a widow formed an exception to that rule, but it was equally clear that there were grounds which under the Hindu Law caused a forfeiture of a vested estate. Change of religion and degradation from caste had the same effect as is pointed by the Privy Council in the case above referred to at page 792. Hence I have to see whether a second marriage is a circumstance like those just mentioned which determines a widow''s estate. As discussed above, I cannot expect to find express texts on this point in the usual authorities on Hindu Law. In view of this it is difficult to expect more than an indication of the view they took of the nature of a widow''s estate. That view is dearly expressed in the text of VRIHISPATI. Jimutavahana makes the best of his reasoning on the subject of a widow''s estate (DAYABHAGA, 11. 1): "Of him whose wife is not deceased, half the body survives. How then, should another take his property while half his person is alive?"

This is difficult to reconcile with a right in a widow who ceases to be the wife or half of the body of her late husband and becomes the wife or half of the body of another man to keep the estate of her late husband. The view that on principle the second marriage determines a widow''s estate is strengthened by the fact mat where second marriages were sanctioned by custom, the further rule seems almost always to have followed that such re-marriage entailed forfeiture of the first husband''s estate. The adoption of the rule of forfeiture on second marriage in the Hindu Widows Re-marriage Act of 1347 Fasli, seems to be an indication that the legislature considered that rule to be in accordance with the principles of Hindu Law. If, therefore, we have to decide this case upon the principles of Hindu Law without reference to express legislative enactments, I should be disposed to hold that the widow''s estate was determined by her marrying a second time. I do not think this would be in any way inconsistent with what was held in the case of ''Muniram Kolita v. Ker1 Kolittani'', viz., that a widow''s estate is not forfeited by unchastity during widowhood, for, there seems to be a very broad distinction between misconduct on the part of a widow as a widow and her ceasing to be a widow. By remarriage, a widow loses her widowhood and becomes the wife of the other husband. The widow''s succession after the son rests upon the texts of YAJNAVALKYA given in verse 135 of his VYAVAHARA ADHYAYA. MITAKSHARA quotes this text in Chapter II, Sec: 1, page 2, and the question for decision is whether a widow who validly remarries according to her caste custom continues after such remarriage to be the wife of her first husband within the meaning of the YAJNAVALKYA SMRITHI text. The original word for wife in the text is PATNI. Paragraph 5 of the MITAKSHARA defines a wife (PATNI). "She is a woman espoused in lawful wedlock" and regard being had to the etymology of the term, it is laid down that it implies a competency to perform religious ceremonies for the benefit of the husband. It may be mentioned in this connection that on failure of a son, grand-son, and great grandson, the widow is the person rightfully entitled to perform the ''Sradha'' of her deceased husband - see DHARMA SINDU quoted at pp. 109 & 114 of Mr. Sarvadhikari''s Law of inheritance. Virdha Manu has stated thus:

The widow who has no male issue, who keeps unsullied her husband''s bed and perseveres in religious observances, shall present the cake (PINDA) at his obsequies and obtain his entire estate.

According to Catyayana, a widow who is chaste takes the husband''s wealth. The original for ''chaste'' is AVYABHICHARINF that is not a VYABHICHARINI. According to the literal meaning, the word ''VYABHICHARINI'', means ''going astray''. Another word used for chaste wife is ''SADHVI''. Manu defines ''SADHVI'' in the following words:

While she, who slights not her lord, but keeps her mind, speech, and body devoted to him, attains his hevenly mansion.

It would thus appear that a woman, who takes to herself another husband, can scarcely lay claim to the title of a chaste wife within that meaning. In the opinion of the author, to succeed to the estate of the deceased husband, she must have kept unsullied his bed; so much so that even the bare likelihood of her keeping an appointment to raise up issue is considered a disqualification resulting in disinherision. The right of succession is made strictly contingent on her fidelity and loyalty to her husband. According to ''VRIHASPATI'' she is considered as half of the body of her husband, whose existence is continued as it were in her existence, and this cannot be where there is wanting absolute devotion to the memory of her husband. In Section I, Chapter II of the ''MITAKSHAKA'' there are express texts reprobating re-marriage in the case of a woman. Says Manu:

A virtuous wife, who, after the death of her husband, constantly remains chaste, reaches heaven though she has no son, just like those chaste men. But a woman, who from a desire to have offspring, violates her duty towards her deceased husband, brings on herself disgrace in this world, and loses her place with her husband in heaven.

Another passage from Manu is given in Jagannatha''s Digest, Book IV, Chapter I, Section 11 (cxiii). It runs thus:

But a widow, who, from a wish to bear children, slights her deceased husband by marrying again, brings disgrace on herself here below; and shall be excluded from the Seat of her Lord.

The question is discussed in S. 2 of Part 1 of Chapter II of VIRAMITRODAYA'' which is spoken of as second in authority to the MITAKSHARA, and re-marriage of a widow is placed there among the five things which are prescribed in ''KALI YUGUM'' See page 61 of Shastry Golap Chandra Sarkar''s translation. The great social reformer, the great Pandit Vidyasagar, referring'' to PARASARA. was of opinion that re-marriage was permissible and place the re-married women under the following five exigencies: (1) if her first husband long remains unheard of, or (2) dies, or (3) takes to aethesism, or (4) loses his verile power, or (5) becomes a degraded person. But the other sages, including his son Vyasa, the author of the Mahabharatha, considered a censurable act being one by which the observance of the duty of continence and austerities was obstructed - see the text quoted in Jagannatha''s Digest, Book IV, Chapter I, Sec: 2 (cxxxiii) (cxlv). A similar view has been expressed by Kautilya in his APTHASASTRA, see Chap. III, pp. 176 & 180 of R. Sharma Shastri''s translation of KAUTILYA''S ARTHASHASTRA. It runs thus at p. 176:

A woman who hates her husband, who has passed the period of seven terms of menses and who loves another, shall immediately return to her husband what she has received from him.

At D. 180, the view expressed is:

Wives who belong to Sudra, Vaisya, Kshatriya or Brahman caste, and who have not given birth to children, should wait as long as a vear, two, three and four years respectively for their husbands who have gone abroad for a short time: but if they are such as have given birth to children, they should wait for their absent husbands for more than a vear. If they are provided with maintenance they should wait for twice the period of time lust mentioned. If they are not so provided with, their well-to-do gnatis should maintain them either for four or eight years. Then gnatis should leave them to marry, after taking what had been presented to them.

According to strict principles of Hindu Law, the widow''s right of succession is based, according to DAYABHAGA, on the ground that she is half of the body of her deceased husband (ARDHANGI) and is capable of conferring by her acts spiritual benefits on him.

In other words, the widow takes her husband''s estate not because of past relationship, not because she was the wife of the deceased, but because of the continuing relationship, because she is still the PATNI (wife) of the deceased. After re-marriage, the woman is transferred from her ante-nuptial ''gotra'' to the ''gotra'' of the man she marries. It is of the very essence of inheritance by a Hindu widow as such that she is the surviving portion of her husband, that after physical death he still lives in her as a sort of incarnation of his spiritual being. It follows as a necessary consequence that the estate of a Hindu widow can last only so long as she continues to be the wife and half of the body of her deceased husband, i.e. only so long as the relationship, by reason of which she inherits, continues, and the estate must be held to determine when she must cease to be the wife of her late husband and half his body by marrying another person. In other words, the Hindu widow''s estate must be taken to be an estate during widowhood. It is upon some such ground that it has been held that by remarriage a Hindu widow becomes incapable of giving in adoption a son of her deceased husband - ''Panchappa v. Sangam Basava'', 24 Bom 89, or of being the guardian of her minor children by her former husband by virtue of her motherhood - ''Khushali v. Rani'', 4 All 195. This view has been recognised in the Hindu Widows Re-marriage Act of 1347F., Sec. 5, which declares that a widow remarrying loses all her rights in her deceased husband''s estate. It is also recognized in cases where the marriage of a Hindu widow is allowed by custom, vide ''Murugayi v. Veeramakali''. 1 Mad 226. The principle on which the widow takes the life interest of her deceased husband where there is no male heir is that she is a surviving portion of her husband, but after re-marriage, as she becomes the PATNI of the other husband, she cannot be said to be a surviving portion of her late husband, and after she re-marries, she is supposed to have a re-birth in the other family. As regards her previous family, she is supposed to have civil death. Thus. I am of opinion that according to strict principles of Hindu Law, a widow forfeits her rights in her husband''s property on her re-marriage. I am supported in my view by the cases of:

''Vithu v. Govinda'', 22 Bom 32 ''Matungini Gupta v. Ram Rutton Roy'', 19 Cal 289: ''Rasul Jehan Begum v. Ram Surun Singh'', 22 Cal 589; ''Laxman V Gundaji'', 7 Ind Cas 543 (Nag) and ''Sitaram v. Laxman'', 17 Ind Cas 133 (Nag).

In the case of ''Vtthu v. Govinda'', 22 Bom 321. Remade J. has held that S. 2 of Act XV of 1856 did not lay down a different rule and that it merely stated what was the Hindu Law and that there was nothing revolting in the fact that forfeiture should follow the re-marriage. In ''Matungini Gupta v. Ram Rutton Roy'', 19 Cal 289, Banerji J. has laid down that the widow takes her husband''s estate not because of her relationship, nor because she was the wife of the deceased, but because of the continuing relationship, because she is still the (PATNI) wife of the deceased, which is abundantly clear from Chapter XI, Sec. I of the DAYABHAGA and has been recognised by the Hindu Widows Remarriage Act (XV) of 1856 F. In the case of ''Rasul Jehan Begum v. Ram Surun Singh'', 22 Cal 589, Ghosh J. has held that:

The principle on which a widow takes the life interest of her deceased husband, when there is no male heir is that she is a surviving portion of her husband, and where the rule as to remarriage is relaxed and a second marriage permitted, it cannot be supposed that the law which these castes follow would permit of the remarried widow retaining the property in the absence of all heirs for the continuance of the Action upon which the right to enjoyment is founded.

It was further held that upon the re-marriage taking place, the widow, though according to the custom prevailing in her caste a re-marriage was permissible, forfeited the estate which was but a widow''s estate that she had inherited from her husband. In the case of ''Laxman v. Gundaji'', 7 Ind Cas 543 (Nag), Sir Bipin Krishna Bose, A.J.C. has held that, after re-marriage, the widow cannot claim to be the PATNI (wife) of the first husband within the meaning of the MITAKSHARA tests. In the case of ''Sitaram v. Laxman'', 17 Ind Cas 133 (Nag), Mr. Stanyon, A. J. C. has laid down that a Hindu widow who contracts valid re-marriage in accordance with a custom of her caste is thereby transferred from the ''gotra'' of her deceased husband to that of her husband by re-marriage and ipso facto forfeits all interest in any estate which she may have inherited from the former in favour of the next heir or reversioner of the deceased.

In the case of C. Gajapathi Naidu and Others Vs. Jeevammal alias Padmavathi Ammal and twenty Ors., 765 Santala Bewa and Others Vs. Badaswari Dasi, ; Raghunath Shankar Dikshit Vs. Lakshmibai Hari Ware, ; ''Pannalal Baliram v. Sumranlal'', AIR 1939 Nag 260; ''Nawab Singh v. Gauri Shankar'', AIR 1935 Pat 58, it has been held that a Hindu widow forfeits her right in the estate of her first husband after re-marriage, with reference to Sections 1, 2 & 5 of the Hindu Widows Remarriage Act (Act XV (15) of 1856).

In the case of ''Saraswati Bai v. Drupata Bai'', 36 Deccan L R 304, it has been held by this Court that a widow forfeits her right in the estate of her first husband after remarriage with reference to Section 5 of the Hyderabad Hindu Widows Re-marriage Act I of 1347 Fasli.

Against these decisions are the decisions of the Allahabad High Court, Oudh Chief Court, and this Court in the following cases:

Bhola Umar and Another Vs. Mt. Kausilla and Others ''Md. Abdul Samad Khan v. Girdharilal'' AIR 1942 All 175; ''Ramlal v. Mt. Jawala'', AIR 1928 Oudh 338; ''Jija v. Devba'', 11 Deccan L R 551; ''Bhujiram v. Namdev, 13 Deccan L R 12; ''Basava v. Venkatesh'', 16 Deccan LR 132; ''Ganpat v. Parbatrao'', 25 Dn L R 596; ''Rangrao v. Sundarabai'', 25 Dn L R 765; ''Vitha Bai v. Hakkubai'', 27 Dn L R 37; ''Shankar v. Prayagbai'', 29 Dn L R 111 and ''Gurusidava v. Hashareddy'', 38 Dn L R 396 wherein it has been held that forfeiture does not follow re-marriage of a Hindu widow unless there is custom to that effect.

In the case of Bhola Umar and Another Vs. Mt. Kausilla and Others it has been held:

The Hindu Widows Re-marriage Act was intended to render re-marriage valid, and legalise the legitimacy of children. It conferred a benefit on those who could not remarry, but at the same time it imposed a restriction on them. It was not intended to deprive those, who already possess the right to re-marry, of whatever rights they enjoyed in their deceased husband''s properties. Further, Sec. 2 of the Act does not apply to cases of those widows who are entitled under the custom of their caste to re-marry and are not bound to take advantage of the provisions of the Act. Accordingly, there was no forfeiture of the Hindu widow''s estate on re-marriage under the Act in such a case, nor can such forfeiture ensue as a matter of equity as it is against natural justice. The principle of mere custom of re-marriage would not be sufficient to involve forfeiture under the Hindu Law, but it would be necessary for the party claiming that the estate has been forfeited on account of re-marriage to prove that there is a custom of such forfeiture in such a contingency.

In the case of ''Md. Abdul Samad Khan v. Girdharilal'', AIR 29. 1942 All 175, Verma & Yorke JJ. observe thus:

The Hindu widow entitled to re-marry under a custom of the caste does not, even subsequent to the enactment of the Act of 1856 come in the mischief of that Act and will, therefore, not upon re-marriage, be divested of her widow''s estate unless it be found upon the evidence that in addition to there being a custom of re-marriage of widows, there is also in existence a custom of forfeiture of the first husband''s estate upon such re-marriage.

These two rulings are based on the earlier decisions of that Court, ''Harsarandas v. Nandi'', 11 All 330; ''Ranjit v. Radharani'' 20 All 476; ''Kishorilal v. Chunilal'', 31 All 116 and ''Mulla v. Pratap'', 32 All 489. In the case of ''Harsarandas v. Nandi'', 11 All 330, it was held that S. 2 of Act XV (15) 1856, did not apply, and, therefore, it was assumed that a widow retained the estate derived from her first husband. In ''RANJIT v. RADHARANI'', 20 All 476, a specific custom of re-marriage coupled with retention of caste was alleged, but on the evidence it was held to be not proved, but there is no discussion as to the general principles. In the cases of ''Kishorilal v. Chunilal'', 31 All 116 and ''Mulla v. Pratap, 32 All 489, the Judges expressed doubt as to the correctness of the Allahabad view but they felt themselves bound to accept the long series of decisions of their Court. It is not expressly stated whether the assumptions under Hindu Law were doubted by the learned Judges or whether the inapplicability of S. 2 of Act XV (15) of 1856 was questioned. But at least there is room to infer that Banerjee J. was inclined to uphold the view on both counts, vide ''Gajadhar v. Kausilla'', 31 All 161. In none of these cases, the custom of the retention of the estate was argued on the facts of the case, but it was assumed that according to Hindu Law, forfeiture did not follow re-marriage if it was permitted by custom. In the case of Bhola Umar and Another Vs. Mt. Kausilla and Others this point has been discussed with reference to authorities, but the previous view of the Allahabad High Court has been followed. The decisions'' of the Allahabad High Court mostly depend on the interpretation of the provisions of Act XV (15) of 1856. In the case of ''Ramlal v. Mt. Jawala'', AIR 1928 Oudh 338, Raza & Nanavutty JJ. have held that the Hindu Widows Re-marriage Act is inapplicable to the case of a widow who is permitted by the custom of her caste to re-marry and she does not forfeit the property inherited by her from her first husband.

The difference of opinion between the Allahabad High Court and the other High Courts mostly turns on the question whether the preamble to the Act governs the enacted provisions or not. According to the Allahabad High Court, the preamble makes it clear that the Act is an enabling Act and enables such widows as have been prohibited by the custom of caste to re-marry and that it could not be deemed to apply to such widows as were already empowered by their custom to re-marry. Therefore, these widows do not come under the operation of this Act, and do not forfeit their estate on re-marriage. In order to appreciate this point, a reference to the preamble of the Act is necessary. The preamble is in the following words, (After quoting the preamble as on page 101, Col. 1, the judgment proceeds:)

The Allahabad High Court has held, having regard to the provisions of that Act contained in S. 1 as well as to the preamble, that the Act could never have been intended to apply and did not apply to those Hindu widows who, by the custom of their caste, had, independently of the Act, a right to re-marry. In other words, the Act applied only to such widows as were prohibited by the custom of their caste. They further observed that the words "any Hindu widow" in S. 2 cannot be given a wider interpretation as to do this would include even a Christian or a Muslim widow; and, therefore, they were of the opinion that the words ''any widow'' must be restricted to such Hindu widows as were, owing to the custom of their caste, unable to re-marry. Thus, it is significant to note that the Allahabad High Court has all along assumed that S. 2, Act XV (15) of 1856, lays down a different rule contrary to Hindu law, and that where remarriage has been allowed by custom, forfeiture does not follow. It may well be said of these rulings that it was simply taken for granted that Hindu Law does not enforce forfeiture of estate and that there appears to be neither any elaborate discussion of the point nor direct reference to authorities.

The other High Courts, as for instance Madras, Bombay and Calcutta, consider that S. 1 enables such Hindu widows as were unable to re-marry and S. 2 imposes a disability upon them that on re-marriage they shall forfeit the estate inherited by them as widows. Had the legislature intended that only the above-mentioned widows Should forfeit the estate and the other Hindus who were enabled by custom of their caste to re-marry should not forfeit the estate, some express provision was necessary to safeguard the custom of non-forfeiture on remarriage. The omission of such a provision clearly points out that forfeiture was intended to apply to all Hindu widows on re-marriage. The preamble clearly shows that the legislature was aware of the facts that there were certain exceptions to the custom prohibiting widows'' re-marriage. The legislature has imposed forfeiture on re-marriage, which shows that the intention was clearly to make a rule of general application. In other words, forfeiture on re-marriage was not only the general custom, but also in consonance with the Hindu Law.

This Court has followed the Allahabad view on the question of interpretation of Hindu Law and has held that a widow on re-marriage according to the custom of her caste does not forfeit her estate unless there is a custom of forfeiture. The first case on this point is ''Jija v. Devba'', 11 Deccan L R 551. The same view was followed in the case of ''Bhujiram v. Namdev'', 13 Deccan L R 12; ''Basava v. Venkatesh'', 16 Deccan L R 132; ''Ganpatrao v. Parbhat Rao'', 25 Deccan L R 596; ''Rang Rao v. Sundara Bai'', 25 Deccan L R 765; ''Shankar v. Prayag Bai'', 29 Deccan L R 111; ''Gurusidava v. Hashreddy'', 38 Deccan L R 396. So far as the rulings of this Court are concerned, all these rulings are based on the case of ''Harsarandas v. Nandi'', 11 All 330, and there is no direct reference to the authorities and no discussion on the point. In the case of ''Saraswati Bai v. Bharmatabi'', 36 Deccan L R 304, however, Khaleeluzzaman J. has held that S. 5 of the Hyderabad Hindu Widows Re-marriage Act has clearly nullified the view so far adopted by this High Court in the cases reported in 11 Deccan L R 551; 13 Deccan L R 12; 16 Deccan L R 132; 25 Deccan L R 596; 25 Deccan L R 765 and 29 Deccan L R 111, and has adopted the view of the other High Courts, Bombay and Madras, i.e., that a Hindu widow after re-marriage forfeits her right in the property of her husband unless it is proved otherwise by custom of the community. Thus, it would follow that excepting the case of ''Saraswati Bai v. Bharmatabi'', 36 Deccan L R 304, the series of decisions of this High Court have been in favour of the Allahabad view.

So, the question would arise whether the principle of ''stare decisis'' would apply. To my mind the principle of ''stare decisis'' does not apply and the Courts are not prevented from giving effect to what they conceive to be correct law. The principle of ''stare decisis'' is; applicable only where the effect of departing from an established rule of decision will be to unsettle transactions which have been previously supposed to be finally settled. That principle does not come into operation where the result of departing from an incorrect, view of law is merely this, that in dispute on subject to which the law applies, a new set of defence would be put forward in the Courts. I am supported in this view by the cases of AIR 1939 186 (Nagpur) ; ''Mohammad Yasin v. Rahmat Ilahi'', AIR 1947 All 201; Lal Bihar Lall and Another Vs. Bani Madhava Khati and Others, ''Arthur John Pate v. W. C. Pate'', AIR (2) 1915 P C 127 and ''Tricomdas Cooverjee v. Sri Gopinath Jui Thakore'', AIR (3) 1916 P C 182. And as the sense of the Hindu Law appears to be that re-marriage should involve forfeiture, there is no harm done if, in spite of the decisions of this Court, I take this view, and fall in line with the views of the other High Courts, Bombay, Madras, Patna and Calcutta.

After this I proceed to consider this question with reference to the Hyderabad Hindu Widows Re-marriage Act No. I (1) of 1347 F. In this connection, the question would arise whether this Act of 1347 F. would apply to the present case. Shri Ganu, Advocate, contends that as this Act does not enunciate any different principle from the principles of pure Hindu Law, S. 5 of this Act would apply. In order to appreciate this point, a reference to the Hyderabad Hindu Widows Re-marriage Act is necessary. This Act is comprised of six sections. S. 1 defines the Act and its extent. S. 2 refers to the remarriage of the widows and the right to inheritance of their children. Section 3 deals with the ceremonies. Section 4 refers to the age of remarriage. S. 5 relates to the forfeiture of her right in the property of her first husband on re-marriage. S. 6 refers to the other rights of the widows. The preamble to this Act is in the following words:

Whereas it is just that a law should be enforced validating the re-marriage of the Hindu widows....

From a perusal of this Act and the Hindu Widows Re-marriage Act XV (15) of 1856 of India, I find that there is vast difference between the provisions of this Act and the Indian Act. The preamble of the two Acts is different. Section 2 of the Indian Act is different from the corresponding S. 5 of the Hyderabad Act. In S. 5 of the Indian Act, it is clearly enacted that

a widow shall not, by reason of her remarriage forfeit any property or any right to which she would otherwise be entitled, and every widow who is re-married shall have the same rights of inheritance as she would have had, had such marriage been her first marriage.

There is no such provision in the Hyderabad Act, but in S. 5 of the Hyderabad Act, it is clearly enjoined that

on re-marriage the widow would forfeit all her rights which she had in the property of her first husband, according to the principles of Hindu Law as being his wife, and the other heirs would be enticed to the property as if the widow had died, unless there is any custom to the contrary.

In other words, according to the provisions of S. 5 of the Hyderabad Act, a widow on remarriage forfeits her rights unless she establishes that there is a custom to the effect that she does not forfeit her right even after remarriage. The wording of S. 5 of the Hyderabad Act is very clear. Thus, it follows that the Hyderabad Legislature passed this Act in order to clear the doubts which had arisen from the conflicting rulings of the different High Courts and as the Hyuerabad Legislature had laid down in clear words that a widow on re-marriage shad forfeit all her rights in the property of her first husband, I feel it needless to enter into further discussion.

Now, the next question which deserves consideration is whether the provisions of this Act would apply to the present case. Shri Lakshman Rao Ganu, Advocate, appearing on behalf of the appellant contends that though this Act has come into force in 1347 F., but as it also enacts the same principle of Hindu Law, the principle of S. 5 of this Act would apply. It is true that this Act enacts the same principles as the Hindu Law, and has come into force in 1347 F. So it cannot be said to apply to the present case, but as this Act has stated merely what was the Hindu Law and there is nothing revolting in the fact that forfeiture should follow the re-marriage. I am of opinion that whether I consider this point in the light of strict principles of Hindu Law or according to the provisions of the Hindu Widows Re-marriage Act, in either case, a Hindu widow on her re-marriage forfeits her rights in the property of her deceased husband unless a custom is proved to the contrary.

My reply to the question referred to by the Full Bench, therefore, is that a Hindu widow belonging to a caste in which second marriage is allowed by custom forfeits her rights in her first husband''s property on her remarriage, unless custom is proved to the contrary.

I shall be failing in my duty if, before concluding this order, I do not acknowledge the assistance I received from the able arguments advanced by Shri Lakshman Rao Ganu, Advocate appearing for the appellant and Shri Sadashiv Rao, Advocate appearing as ''amicus curiae'' which have helped me not a little in deciding this important question of Hindu Law.

M. K. Siddiqi, J.: I have indicated my view in the case of ''SARASWATI BAI v. DRUPUTA BAI''. 36 Deccan L R 304. I agree with the conclusion of my learned brother Manohar Pershad J.

Order accordingly.