Thangavelu Asari (died) and Others vs Lakshmi Ammal and Others

Rajamannar, C.J.—The dispute in this appeal relates to properties which originally belonged to, and were enjoyed by one Mookan Asari,

the husband of the defendant. The plaintiff is his brother. The defendant''s husband died on 28th October 1943 issueless leaving considerable

properties. The plaintiff, the brother, filed a suit against the widow, the defendant, O. S. No. 239 of 1944 in the Court of the District Munsif of

Ambasamudram, claiming the properties on the ground that the properties belonged to an undivided joint family of which he was the surviving

coparcener,

The defendant contended that the properties were the separate properties of Mookan Asari. Eventually, the suit was compromised and a decree

was passed on that compromise on 11th June 1945. The main terms of the compromise were that the plaintiff should succeed to and be in

enjoyment of the properties set out in Schedule I to the compromise with all rights and privileges and that the defendant should succeed to, and be

in enjoyment of the properties in Schedule II of the compromise with all rights and privileges. In the decree which was passed in accordance with

these terms the following clauses are material:

That the plaintiff do enjoy the properties mentioned in the first schedule hereunder absolutely from this date.....

That the defendant do enjoy the properties mentioned in the second schedule hereunder absolutely from this date.....,

On 24th September 1946 the defendant married again one Somasundaram Asari and almost immediately thereafter, on 26th October 1946, the

plaintiff filed the suit out of which this Letters Patent Appeal arises, for recovery of possession of the properties which were allotted to the

defendant under the compromise, on the ground that she had forfeited all her rights under Hindu law and under Act XV of 1858, the Hindu

Widow''s Remarriage Act. The learned District Munsif dismissed the suit holding that the defendant did not forfeit her rights to the properties given

to her under the compromise decree. But on appeal the learned District Judge of Tiru-nelveli held otherwise arid decreed the suit. The defendant

thereupon filed a second appeal to this Court which was heard and disposed of by Subba Rao J. He reversed the decision of the learned District

Judge and restored the decree of the District Munsif. The plaintiff is the appellant in this Letters Patent appeal. He died pending the appeal and his

legal representatives were brought on record and they continue this appeal.

Mr. B. Ramamurthi Aiyar, learned counsel for the appellants confined his contention to an application of Section 2 of the Hindu Widows

Remarriage Act, That section runs thus:

All rights and interests 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 remarriage 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.

Section 5 specifically saves the rights of the widow except as provided in Section 2 & also Sections 3 and 4 and runs thus:

Except as in the three preceding sections is provided, 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 has remarried shall have the same rights of inheritance as she would have had, had such

marriage been her first marriage.

The short question in this appeal is whether the suit property to which the defendant became entitled under the compromise decree above

mentioned will fall within one or other of the three categories of rights and interests, mentioned in Section 2 of the Act. The three Categories are (1)

the rights and interests in the husband''s property by way of maintenance, (2) such rights"" and interests by Way of inheritance and (3) such rights

and interests by virtue of any will or testamentary disposition provided that such rights amounted to a limited interest in the property with no power

of alienating the same.

Obviously the suit property cannot fall within the first or third of the categories, But it was strenuously contended by Mr. Ramamurthi, Aiyar that it

would certainly fall within the second category, namely, rights and interests which the widow has in her deceased husband''s property by

inheritance. We are unable, to agree. All tights and interests in the suit property were conferred on the widow by the compromise decree of Court

and not by inheritance simpliciter. This to our mind is indisputable because according to the law which was in force at the time of the passing of the

Act as well as at all material times during the suit, no widow could obtain absolute rights in and to her deceased husband''s property by inheritance.

There is a clear indication in the provisions of the section that any property to which the widow may become entitled absolutely will not be forfeited

on her remarriage.

It is only when the widow is in enjoyment of rights and interests of a limited amplitude that the section applies. The words shall upon her remarriage

cease and determine as if she had then died'' can have significance only when the widow''s rights are of a limited nature and duration. Otherwise

merely by the notional death of the widow the next heirs of the husband would not become entitled to succeed, whereas if she was in enjoyment

only of a limited interest such persons would succeed under the general law.

Mr. Ramamurthi Aiyar contended that the basis of every compromise is a recognition of antecedent title in the parties deriving a benefit under its

terms and therefore if the widow obtained a benefit of absolute interest in the suit properties as a result of the compromise with her husband''s

brother, it must be attributed to a recognition of her antecedent right in and to the suit property and such right undoubtedly was a right by

inheritance. The theory that every compromise implies the recognition of an antecedent title in every one of the parties taking benefit under the

compromise is certainly not universally true. There are many instances when rights are conferred on persons who have admittedly no antecedent

title in and to the property to which they become entitled under the compromise.

But nevertheless family settlements conferring such rights on persons having no. antecedent title have been confirmed by the High Courts in the land

and the Privy Council. In our opinion it is not necessary to discuss the question from this aspect. It is sufficient for disposal of this appeal to

construe Section 2 and decide whether the terms of the section would apply to the instant case. As we have already said, the suit property cannot

be brought within the mischief of Section 2. There can, therefore, be no forfeiture of the defendant''s right to the suit property.

In this view no other question was argued. The appeal fails and is dismissed with costs.