Khumna and Another vs Govind Das and Others

S.P. Khare, J.

This is a second appeal u/s 100 C.P.C. Arguments on the question of admission heard.

The first appellate Court reversing the judgment and decree of the trial Court has held that the lands in dispute belong to the plaintiffs and the defendants have been restrained from interfering with the possession of the plaintiffs on these lands. The registered sale-deed dated 14.8.1985 executed by defendant No. 2 Kutiawali in favour of defendant No. 1 Khumna in respect of half share in these lands has been declared to be void.

The first appellate Court after appreciation of the documentary and oral evidence has held that Parma Kurmi alone was holding the Patta of the lands in dispute. That Patta is Ex.P/1. It was granted on 1.6.1939. Punna was brother of Parma and he was not having any rights in the lands in dispute. Defendant No. 2 Kuitawali is widow of Punna. She had re-married before the year 1956 to Bhaggu and defendant No. 1 Khumna is her son through Bhaggu. The first appellate Court has also held that Punna died sometime in the year 1930-31 and therefore his widow did not inherit the share of Punna, if he had any. It has been further held that on re-marriage the widow was divested of her rights in the property of her former husband Punna.

It is argued on behalf of the appellants who were the defendants before the trial Court that the finding of the first appellate Court on the point that Parma alone was the Bhumiswami of the lands in dispute is perverse. It is also argued that Punna died sometime after 1937 and therefore his widow Kutiwawali had inherited the share of her husband Punna. But it is admitted by the learned counsel for the appellants that Kutiawali had re-married Bhaggu long before the year 1956.

It is also argued on behalf of the appellants that Kuitawali was not divested of her rights in the lands in dispute even after her re-marriage with Bhaggu as there was a caste custom according to which there could be re-marriage of the widow. This part of the argument of the learned counsel for the appellants is not at all acceptable in view of the settled legal position in the earlier decisions of this Court.

In Manabai Vs. Chandanbai (AIR 1954 Nag 284) it has been held by a Division Bench that both under the Hindu Widows'' Re-marriage Act, 1856 and otherwise under the Hindu Law a widow on re-marriage forfeits her right to her deceased husband''s property, even though the customary law of the caste to which she belongs sanctioned such a re-marriage. The view taken by the Allahabad High Court has been dissented from. A passage has been quoted from Manu''s text : "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 Division Bench further approved the law laid down by Madras and Calcutta High Courts and quoted the passages from those decisions which are as under -

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 re-marriage is relaxed and a second marriage permitted, it cannot be supposed that the law which these castes follow would permit of the re-married widow retaining the property in the absence of all basis for the continuance of the fiction upon which the right to enjoyment is founded.

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'' of the deceased. If that is so, 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 the body of her deceased husband.

The view taken by the Division Bench has been held to be "cursus curiae" of this Court.

In Bhondu Ganpat Kirad and Others Vs. Ramdayal Govindram Kirad and Another, a Full Bench of this Court has taken the view that a Hindu widow is, upon her remarriage, divested of her husband''s a property. Section 2 of the Hindu Widows'' Remarriage Act, 1856 provides : "All rights and interests which any widow may have in her deceased husband''s property by inheritance to her husband shall upon her remarriage cease and determine as if she had then died."

In Birambai Vs. Bhojraj (1986 MPLJ 551), on which reliance has been placed by the first appellate Court, following the decision of the Nagpur High Court it has been held that a widow after remarriage is divested of the property inherited from her husband. That is also the view of the Division Bench of this Court in Smt. Ramkunwarbai Vs. Ranibahu and Others, . In light of the settled legal position the view taken by the first appellate Court that Kuitawali in the present case forfeited her rights in the property of her husband Punna, if she had any, on her remarriage to Bhaggu which admittedly took place much before the year 1956 is correct. It is only after the Hindu Succession Act, 1956 came into force that a Hindu widow who inherits property from her deceased husband and who becomes its absolute owner after commencement of this Act, does not on her remarriage forfeit her right in the property of her former husband. A defendant No. 2 Kutiawali had remarried before 1956 she had lost rights in the property of her former husband Punna. This is an insurmountable hurdle in the way of the defendants'' claiming any share in the lands in dispute. The Supreme Court has held in Kondiba Dagadu Kadam Vs. Savitribai Sopan Gujar and Others, that a second appeal can be admitted only on a substantial question of law and if that law has already been settled by a Full Bench decision of the High Court that cannot be termed to be a ''substantial question of law''. Therefore, the second appeal is dismissed in limine.