On the death of Niliswari Hazori, her heirs and Legal Representatives, Smti. Jyosoda Basumatary and Others vs Suresh Chandra Rava and Others

B.L. Hansaria, J.—A suit was filed in 1969 for declaration of title of the Plaintiffs over 81 bighas and odd land. A prayer was also made to declare Plaintiffs'' possession over the suit land. The suit was decreed but on appeal the decree came to be reversed. Hence this second appeal.

The Plaintiffs'' case was that one Raghu was the owner of the suit property. On his death around 1942, the property devolved on Gajen, Haren and Thureswari--the first two being the sons and the third a daughter of Raghu. In the suit as filed, the daughter of Gajen joined as Plaintiff No. 1 and Thureswari was Plaintiff No. 2. The Defendants were one Suresh Ch. Rava and his children. Suresh Ch. was the second husband of Kanoj who was the wife of Haren. The second marriage between Kanoj and Suresh Ch. took place around 1954. On these broad facts, the Plaintiffs claimed title stating that after remarriage of Kanoj who had become widow by about 1952, the property inherited by Kanoj as wife of Haren vested in the reversioners and so they had become the full owner of the property left by Haren.

The important point for determination is what happened to the property inherited by Kanoj after she had remarried Suresh Chandra around 1954. The view taken by the learned court below is that Kanoj became the full owner of the property because of the provisions in Section 14 of the Hindu Succession Act, 1956, hereinafter the Succession Act. Another observation made by the learned Assistant District Judge is that as the property had once vested in Kanoj, the same could not be divested.

Shri Barua appearing for the Appellants has contended that the benefit of Section 14 of the Succession Act was not available to Kanoj inasmuch as after her remarriage with Suresh Chandra in 1954, she had ceased to be the owner of the property. It is contended by the learned Counsel that as by 1956 when the Succession Act came into force, Kanoj was not in possession of the properly, the benefit of Section 14 of this Act could not be made available to Kanoj. Shri Barua further contends that whatever right was inherited by Kanoj after the death of Haren in 1954, the same got divested because of what has been stated in the Hindu Widow Remarriage Act, 1856. As per Section 2 of this Act, the right of the widow in the deceased husband''s property ceased on her re-marriage. As per this section, the limited interest of the widow stood determined upon her re-marriage as if she had then died. Shri Barua submits that this position in law was not affected by the Hindu Women''s Rights to Property Act as per which the interest devolved upon a Hindu widow came to be known as Hindu Woman Estate with right to claim partition. As however, on re-marriage a widow met a civil death pursuant to the provisions of the Widow Remarrige Act, and as the re-marriage had taken place in 1954, and as the possession of the property was not with Kanoj when the Succession Act of 1956 came into force, it has to be held that the widow did not acquire a full and absolute right as contemplated by Section 14 of the Succession Act.

In support of his submission, Shri Barua has referred to Gummalapura Taggina Matada Kotturuswami Vs. Setra Veeravva and Others, in which it was held that the word "possessed" in Section 14 of the Succession Act means the state of owning or having in one''s hand or power. But as before 1956, the property had stood divested, and as Kanoj was not in possession of the property by that time, the benefit of Section 14 of the Succession Act which has enlarged limited ownership into full ownership, can not be made available to Kanoj though she died long after corning into force of the Succession Act.

The learned Counsel has then referred to Vijiaraghava Pillai Vs. Ponnammal and Others, wherein it was held that on re-marriage husband''s reversioner succeeds the property by force of what has been stated in Section 2 of the Hindu Widows'' Remarriage Act, 1856, I have been also referred by the learned Counsel to Union Bank Ltd., Utraula Vs. Mst. Ram Rati and Others, wherein it was held that if there be a valid custom relating to remarriage of a widow, the provisions of Section 2 of the Hindu Widows'' Remarriage Act, 1856 would not operate. In the present case there is no evidence of existence of any customs as regards remarriage of a widow. Lastly, reference has been made to Ramchandra Sitaram and Others Vs. Sakharam and Others, wherein it was held that if the estate possessed by the widow got determined before the coming into force, of the Hindu Succession Act, Section 14 could not revive the estate.

Because of all that has been stated above, and on the facts of the case, especially relating to the possession of the property not being with Kanoj when the Defendants did not acquire any right, title and interest in the property after the death of kanoj in 1964-65, and the property of Raghu inherited by Haren and after his death by his widow Kanoj came to be, reverted to the heirs of Haren, namely, other sons and daughters of Raghu. I am therefore of the view that the suit was rightly decreed by the learned trial Court and, as such, I set aside the impugned decree and restore the one passed by the learned trial Court.

In the result, the appeal stands allowed.