Mt. Palti and Others vs Nirdhan Gope and Others

Das, J.—This appeal arises out of a suit instituted by the respondents for recovery of certain lands specified in the plaint.

The plaintiffs are the sons of one Bhatu and grandsons of one Khartar the defendant No. 1 was the widow of Paltu, the other son of Khartar. The case of the plaintiffs is that the family was joint and that upon the death of Bhatu and Paltu the plaintiffs and Sarjug, who was the son of Paltu, were in joint possession of the disputed properties as members of a joint Mitakshara family. Sarjug is now dead and the plaintiffs claim that they are entitled to succeed to the properties by right of survivorship. The defendant No. 1 is the mother of Sarjug. Her case is that her husband Paltu was separated from Bhatu and that Surjug her son was at no time joint with the plaintiffs. Her case accordingly is that she is entitled to succeed to the properties which were of her son Sarjug as the mother and heiress of Sarjug.

The court of first instance found that Bhatu separated from his father Khartar; that Sarjug was separate from the plaintiffs; that the properties in dispute belonged to Sarjug, and that accordingly defendant No. 1 as the mother of Sarjug was entitled to succeed to the properties which were of Sarjug.

The learned District Judge in appeal has not gone into the question whether the family was joint or separate, but ha has allowed the appeal on another ground, that ground being that defendant No. 1 having re-married defendant No. 2, was excluded from succession by operation of Section 2 of the Hindu Widows'' Re-marriage Act. The learned Judge relied upon a decision of this Court in Sheobaran Mahto v. Mt. Bhogea (1918) 3 P.L.J. 689.

The case upon which the learned District Judge relies does not apply to the facts of the present case. That was a case where the remarriage took place after the property had vested in the mother. In the present case the question is not whether the defendant No. 1 should be divested of property which has already vested in her but whether she loses the right of succession to the property of her son by her re-marriage. The exact point was decided by the Calcutta High Court in the case of Akorah Sooth v. Boreanee (1868) 11 W.R. 82. Sir Barnes Peacock delivering the judgment of the Court said as follows:

The object of the Act was to remove all legal obstacles to the marriage of Hindu widows. Looking to the words of Section 2, I am of opinion that it was not the intention of the Legislature to deprive a Hindu widow, upon her re-marriage, of any right or interest which she had not at the time of her re-marriage.

After quoting the words of the Section the learned Chief Justice proceeds to say as follows:

In the present case at the time of her remarriage, the property belonged to her son and she bad no right or interest in that property. It came to her by inheritance from her son, who died after her re-marriage. If the eon had pleased, he might have given the properly to his mother notwithstanding her re-marriage. At the time of her re-marriage she had no interest in her deceased husband''s property by inheritance to her husband or to his lineal successors. It could not, therefore, cease or determine upon her re-marriage, and if she had died at the time when she re-married the property would never have descended to her.

The learned Chief Justice thought that the case fell within the Rule laid down in Section 5 of the Act and not within the exceptions in the three preceding sections.

This case was decided in 1868 and the decision has stood unquestioned for over fifty years. The decision has been repeatedly followed in the different High Courts. It was followed in 1902 in the case of Chamar Haru Dalmel v. Kashi (1902) 26 Bom. 388. It was again followed by the Pull Bench of the Bombay High Court in Basappa Fakirappa v. Bayava Kom Basappa (1904) 29 Bom. 91. Sir Lawrence Jenkins delivering the judgment of the Full Bench said as follows:

Whatever might have been my view had the matter been uncovered by authority, it would in my opinion be wrong to disregard a Rule affecting rights of property established as far back as 1868 by the decision of a Full Bench of the Calcutta High Court in Ahorah v. Boreanee (1868) 11 W.R. 82.

It was again followed by the Madras High Court in the case of Lakshmana Sasamallo v. Siva Sasamallyani (1905) 28 Mad. 425.

In my view it is quite impossible for us to disregard the decision of the Calcutta High Court (1868) 11 W.R 82 especially as the authority of that decision has never been questioned in any court. I would accordingly allow this appeal, set aside the judgment and decree of the learned District Judge and remand the case to that court for disposal of the other points which are raised in the case.

The appellants are entitled to the costs of this appeal. The costs incurred in the courts below will abide the result and will be disposed of by the learned Judge.

Ross, J.

I agree.