Nawab Singh and others vs Gauri Shankar Mahto and others

Varma, J.—This was a suit filed by a reversioner to have a sale deed set aside which was executed by the mother of the last male holder. There was also a prayer to allow the plaintiff to redeem a mortgage that had been previously executed. The sale deed was executed in favour of defendant 2 who happens to be the appellant in this case. It is dated 24th November 1925. The mortgage deed was executed on 1st January 1918. The Courts below have decreed the suit. They have held that defendant 1 who was the mother of the last male holder was not entitled to execute the sale deed after she had contracted a second marriage and therefore the sale deed was not binding upon the plaintiff. As a result of this finding they have granted the plaintiff further consequential reliefs.

Mr. Ganesh Sharma appearing on behalf of the appellant (defendant 2) raises a point of law which at first sight appears to have been lost sight of by the Courts below. The point of law that he raises is that S. 2, Hindu Widow''s Re-marriage Act, 15 of of 1856 which lays down:

All rights and interest which any widow may have in her deceased husband''s property by way of maintenance, or by inheritance to her husband or to his lineal successors, or by virtue of any will or testamentary disposition conferring upon her, without express permission to remarry, only a limited interest in such property, with no power of alienating the same, shall upon her re marriage cease and determine as if she had then died ; and the next heirs of her deceased husband, or other persons entitled to the property on her death, shall thereupon succeed to the same,

does not apply to the case of widows where sagai form of marriage is permissible; and in support of his contention he refers to the preamble of the enactment and to a Full Bench decision of the Allahabad High Court in Bhola Umar v. Mt. Kausilla, 1932 All 617 = 140 IC 631 (FB), which laid down that:

Section 2, Hindu Widows Re-marriage Act does not apply to the case of those widows who are entitled under the custom of their caste to remarry and are not bound to take advantage of the provisions of the Act.

But we have got a few decisions of our own High Court which expressed a different view. The case of Mt. Suraj Jote Kuer v. Mt. Attar Kumari, 1922 Pat 378 = 67 IC 550 = 1 Pat 706 lays down clearly that a Hindu widow when she re-marries loses the estate which she had inherited from her deceased Hindu husband even though, in the particular sect to which she belongs the re-marriage of a widow is permitted. That is the point upon which Mr. Sharma has been laying stress. The ease reported in Mt. Suraj Jote Kuer v. Mt. Attar Kumari, 1922 Pat 378 = 67 IC 550 = 1 Pat 706 refers to a long series of cases of the Calcutta High Court and of the Madras High Court which have held similar views. The Allahabad High Court has been consistently holding the view that has been expressed in the case reported in Bhola Umar v. Mt. Kausilla, 1932 All 617 = 140 IC 631 (FB). The case of 1918 Pat 590 is a case very much similar to the present case. There the question was whether the re-marriage of a Hindu widow deprives her of the life-interest which she holds as a mother of a deceased son who survived her husband, and their Lordships of this High Court held that her interest ceased after her re-marriage. In the well known book on Hindu Law by Mr. Golap Chandra Sarkar Sastri the law is summarised on this point at p. 181 Edn. 7, of his book where he notices particularly although other High Courts have held that the Hindu Widow''s Remarriage Act, applies even if there is a custom of re-marriage, the United Provinces and Oudh have consistently held a different view. I am bound by the decisions of this Hon''ble Court and on the strength of these decisions I am of the opinion that the contention raised by Mr. Sharma cannot prevail. That being the only contention in this case. I would dismiss the appeal. There will be no order as to costs.