Vitta Tayaramma vs Chatakondu Sivayya and Others

Sir John Wallis Kt., C.J.,

I agree with the conclusion of Krishnan, J., in his Order of Reference that, independently of Section 2 of Act, XV of 1856, the widow of a

Hindu forfeits her husband''s estate on re-marriage. This was, in my opinion, decided by this Court in Murugayi v. Viramakali ILR (1877) Mad.

226, a decision which, as I shall show, has been repeatedly approved in this and other High Courts. That decision did not, as was contended

before us, proceed on any proof ''of a custom of forfeiture on remarriage in the particular caste, but on general principles of Hindu Law, though in

support of its conclusion the Court referred, as the Bombay Court did in a later case, to the fact that the extensive enquiry the results of which are

recorded in Steele''s Hindu Castes showed that among the very numerous classes of Hindus who practiced re-marriage in the Deccan such a

forfeiture was an invariable incident of re-marriage. In Matungini Gupta, v. Ram Rutton Roy ILR (1892) Cal. 289 (F.B.) following and relying on

the decision of this Court, wilson and Banerji, JJ., in their Orders of Reference, to which they adhered in their subsequent judgments, expressed

the opinion that Section 2 of Act XV of 1856 was merely declaratory, and the same view was expressed in Rasul Jehan Begum v. Ram Surun

Singh ILR (1895) Cal. 589 and by Ranade, J., delivering the judgment of the Full Bench of the Bombay Court in Vithu v. Govinda ILR (1898)

Bom. 321. In Har Saran Das v. Nandi ILR (1889) All. 330 which was followed in Ranjit v. Radha Rani ILR (1898) All. 476, it was held that a

widow who, according to the custom of her caste, was entitled to re-marry did not forfeit her husband''s estate on remarriage on the ground that

the case was not governed by Section 2 of Act XV of 1855. The contention that the estate was liable to forfeiture independently of the section was

not raised in those cases. When it was raised by Pandit Sundar Lal in Gajadhar v. Kaunsilla ILR (1909) All. 161, Stanley, C.J., and Banerji, J.,

were inclined to accept it but for the earlier decisions, as to which they again expressed their doubts in Mula v. Partab ILR (1910) All. 489. Abdul

Aziz Khan v. Nirma ILR (1913) All. 466, only followed the earlier decisions without comment. The decision in Murugayi v. Viramakali ILR

(1877) Mad., 226, has therefore been approved by the Calcutta and Bombay Courts, and would have been approved by Stanley, C.J., and

Banerji, J., in Allahabad but for the earlier decisions of that Court. I think we should be very slow to interfere with a decision which has stood so

long and is supported by so much authority, and with great respect I cannot agree with the conclusion of a Bench of this Court in Chowdappa v.

Narasamma (1917) 23 M.L.T. 81 (F.B.) that it must be considered to have been overruled by the decision of the Privy Council in Moniram Kolita

v. Keri Kolitani ILR (1880) Cal. 776 (P.C.) that a Hindu widow does not forfeit her widow''s estate by reason of unchastely committed after

succeeding to the estate. In Matungini Gupta v. Ram Rutton Roy ILR (1892) Cal. 289, that contention was overruled by Wilson and Banerji, JJ.,

with whom I respectfully agree. No question of re-marriage was raised before the Privy Council and, as observed by Wilson, J., there is a very

broad distinction between misconduct on the part of a widow as a widow, and her ceasing to be a widow. In this state of the authorities I think the

decision in Murugayi v. Viramakali ILR (1877) 22 Bom. 321, ought not to be overruled by this Court.

Considering the question apart from authority, I am of the same opinion. In his Principles of Hindu Law, page 173 (1st edition), Mr. Ghose cites

a text of Manu IX 191, ""But if two (sons) begotten by two (different men) contend for the property (in the hands) of their mother, each shall take

to the exclusion of the other, what belonged to his father."" And he also cites another text to the same effect attributed to Vishnu but not to be found

in the recession that has come down to us. These texts can hardly refer to the estate which the widow took only in default of male issue. But

whatever may have been the rule in archaic times when re-marriage was permitted, I think, considering the ideas which in later Hinduism underlay

the prohibition of widow re-marriage as far as possible and the encouragement of sati, that the retention by a widow of her deceased husband''s

estate is altogether incompatible with ? her renunciation of her status as his widow; and I respectfully agree with the opinion of the Bombay High

Court in Vithu v. Govinda ILR (1898) 22 Bom. 321, that the invariable rule among so many castes in the Deccan that remarriage when permitted

entailed the forfeiture of the first husband''s estate is merely an illustration of that essential incompatibility, which was again recognized by the

legislature when it enacted Act XV of 1856. AB regards Act XXI of 1850, I agree with the opinion of Wilson, J., in Matungini Gupta v. Ram

Rutton Roy ILR (1892) Cal. 289, at p. 291 (F.B.), that, though that Act relieved the widow of a Hindu from forfeiture of her widow''s estate on

her abjuration of Hinduism, it did not enlarge the nature of that estate, so as to relieve her from forfeiture in the event of her renouncing her status of

widow by re-marriage.

The construction of Section 2 of Act XV of 1856 is not free from difficulty and has occasioned much difference of opinion, but on the whole I

hesitate to differ from the liberal construction put upon the section by the Full Benches of the Calcutta and the Bombay Courts. The words any

widow,...upon her re-marriage in Section 2 are, I am inclined to think, wide enough to cover the case of any widow of a Hindu re-marrying,

whether or not her marriage would otherwise be prohibited by any custom or interpretation of Hindu Law, and whether the re-marriage was to a

Hindu or to a member of another religion. As observed by Wilson, J., the legislature was well aware of the existence of such re-marriages by the

widows of Hindus, and must, I think, have considered that the case for enforcing the forfeiture on re-marriage was in the first case as strong as,

and in the second case much stronger than, in the case for enforcing it as regards the re-marriage which were legalized by Section 1. The words

''any widow'' in Section 2 are certainly wider than was necessary, if it was intended to confine the operation of the section to the last mentioned

class of marriages only. Having regard to the generality of the language, the fact that the section was in substance though not in form declaratory,

and the incongruity which would result from holding re-marriages by the widows of Hindus to persons of another religion to be outside its scope, I

think the more extensive and beneficial construction should be adopted. On both grounds therefore I would answer the question in the affirmative.

Oldfield, J.

We have been asked to answer the question referred in the affirmative (1) with reference to Section 2, Act XV of 1856 and (2) with reference

only to Hindu Law.

I regret that I cannot concur in the judgment just delivered and adopt the first of these grounds of decision. The section is worded generally as

dealing with the rights and ''interests of ''any widow.'' One construction of this expression, that it includes widows of whatever nationality or creed,

has not been pressed and is excluded alike by the language in the preamble of the Act, to which I return, and the incongruity of the results, which it

would involve. We have then to assume that the widows in question were originally Hindu widows and to choose between the contentions that the

section relates only to those who re-marry as such or that it deals also with re-marriages after apostacy, solemnized by the rites of other creeds.

It would follow from the latter construction that the legislature intended to deal in Act XV of 1856 with the problem, not only of Hindu widow

re-marriage, but also of disability due to ""renunciation of or exclusion from the communion of any religion"", with which it had dealt recently in Act

XXI of 1850. Yet the later Act contains no reference, express or implied, to the entire, although the former declares and the latter exempts from

forfeiture and although re-marriage, the event contemplated in the one, would, in many cases, be connected closely with the renunciation or

exclusion dealt with in the other. So also the preamble to Act XV of 1856, which is full, refers only to Hindu widows, to the advisability of enabling

Hindus, who may be so minded, to adopt the custom of re-marriage and to the justice of relieving such Hindus and removing obstacles to there

marriage of Hindu widows; and the references to Hindus in Sections 1, 3 and 6 are clear, the last, in which Hindu ceremonies are prescribed, being

particularly unambiguous. The wider construction, for which Plaintiff contends, has in fact been based on no explicit extension of the subject-matter

of the Act to widows in the other sections, which no doubt include Section 2, and only on the general references in them. In the circumstances,

these references must, in my opinion, be read as qualified by the context. The conjecture of Wilson, J., in Matungini Gupta v. Ram Rutton Roy ILR

(1892) Cal. 289 (F.B.) that they were intented to apply to the class of widows, who might change their faith, seems to me (with all respect)

unwarranted, since, as the learned Judge observes, the legislature knew, not only of the existence of such widows, but also that they could already

marry again without its assistance; and there is no reason for the assumption that it intended to deal with their position in an enactment passed

statedly to give such assistance to widows, who required it. I am therefore constrained to hold that the Act is inapplicable to the present case and

to turn to the general law as a ground of decision.

The Hindu Law is, as this and other High Courts have held since Murugayi v. Viramakali ILR (1877) Mad. 226, that a widow''s re-marriage

entails forfeiture of her husband''s estate. And I respectfully agree with the learned Chief Justice that there is no reason for departure from this long

current of authority. But those cases dealt with re-marriage by the widow as a Hindu; and it is argued that a re-marriage, even after the widow''s

conversion with the ceremonies of her new faith must be regarded, as it would be by Hindu Law, as no marriage and the widow''s conduct as mere

unchastity, which with reference to Moniram Kolita v. Keri Kolitani ILR (1880) Cal. 776 (P.C.) entails no forfeiture. This view has been taken

lately by a Bench of this Court in Chowdappa v. Narasamma (1917) 23 M.L.T. 81, and is regarded by Seshagiri Ayyar, J., in his judgment,

which. I have had the advantage of reading, as consistent with the decision in Sundari Letani v. Pitambari Letani ILR (1905) Cal. 871. But, with all

respect, I cannot follow this application of the authorities. The last cited dealt with a case of real unchastity, since the person concerned was not a

widow, but had, gone through a Muhammadan ceremony of marriage after being deserted, not divorced, by her Hindu husband, who was still

alive. And in Moniram Kolita v. Keri Kolitani ILR (1880) Cal. 776 (P.C.) there was no Question of a re-marriage, which could on any view be

regarded as legal, but only of a temporary illicit connexion. The judgment is based on the ancient texts and considerations of convenience. But the

former were not dealing, and in the state of contemporary society could have no occasion to deal with non-Hindu re-marriages; and the latter,

based on the insecurity of titles created by the widow, if they could be disturbed on proof of immorality which is essentially secret and which the

reversioners would be interested to promote, are irrelevant when the question is of a connexion, contracted publicly and authorized by the general

law. I need offer no general opinion at present regarding the effect of the marriage of a Hindu with a non-Hindu woman or the position of their

issue. In the 3 case before us, authority being wanting, it is sufficient for me to express my respectful concurrence in the ground of decision

proposed by the learned Chief Justice, the incompatibility between renunciation of a widow''s status and retention of a widow''s estate; and I do so

the more willingly, because I can thus avoid the conclusion that a marriage is invalid for one purpose, although it is valid for all others.

I would answer the question in the affirmative.

Seshagiri Ayyar, J.

I regret I am unable to agree with the conclusion of the learned Chief Justice and old field, J. I do not wish to add much to the judgment of

myself and of Napier in Chowadappa v. Narasamma (1917) 23 M.L.T. 81, on the question whether Section 2 of Act XV of 1856 would deprive

a Hindu widow embracing Muhammadanism and afterwards marrying a Mnhammadan of the estate which she inherited from her Hindu husband. I

agree generally with Oldfield, J., on this question. The belief that a Hindu widow adds insult to-injury to the memory of her deceased husband by

apostasy first and by subsequent marriage with a Person belonging to a different faith, is not a ground for reading into Section 2 of Act XV of 1856

words which are not to be found there. The Act was intended to give relief to a certain class of people and not to penalize others; and Courts are

not at liberty to supply a defect of this kind by indirect legislation. I therefore adhere to the view that I took in Chowdappa v. Narasamma (1917)

23 M.L.T. 81, on this question.

On the question of the applicability of Hindu Law, I wish to make a few observations in addition to what I stated in the Second Appeal already

referred to. It is said that the Hindu Law does not countenance inheritance by a persons who has not been true to the bed of her deceased

husband. I do not dissent from this view so long as it can be said that the party against whom this rule of Hindu Law is to be applied is within the

pale of that Law. There is a great deal to be said for the position taken up by Mr. Justice Banerji in Matungini Gupta v. Ram Rutton Roy ILR

(1892) Cal. 289 (F.B.), on the question of Hindu Law. But it need scarcely be added that the Hindu widow who has embraced Muhammadanism

and has married a Muhammadan is not subject to Hindu law. In Sundari Latani v. Pitambari Letani ILR (1905) Cal. 871, the Court had to

consider the case of a Hindu daughter who had become a Mnhammadan and had subsequently married a Muhammadan. The point was whether

her children were legitimate and could inherit to the estate of their Hindu grandfather. ""The woman was abandoned but not divorced by her

husband"". Her position was thus Stated by the learned Judges:

She is in the position of an unchaste daughter who could not inherit according to Hindu Law.

I think the same principle is applicable to the widow in the present case.

There are three incidents in the life of this woman. The first was when she inherited the estate of her husband after his death. In the Order of

Reference, Mr. Justice Krishna says that Section 2 of Act XVI of 1856 is based upon a recognition by legislature that a Hindu widow''s estate is

ordinarily forfeited under the Hindu Law by her re-marriage. Even if I assent to this view, I fail to see how this conclusion touches a re-marriage

while the widow has become a Muhammadan convert. It was contended that the right of Hindu widow to inherit her husband''s property is

dependent upon a text of Brahaspati to this effect:

He who has left a widow surviving him has got the half of his body verily alive, and when half of his body is alive, who else shall take his property?

The metaphor is undoubtedly picturesque. But it would not be safe to deduce principles of law by parity of reasoning from such a figure of

speech. Granting that the reason of a widow inheriting to her deceased husband in preference to divided members of the coparcener is based

solely upon this principle, it can only apply to a state of things which came into existence on the death of her husband. At that moment either by

reason of this figure of speech or by reason of the more prosaic statement of the law contained in Yagnyavalkya Smriti which is to the following

effect:

Wife (widow), daughter, father, mother, brother, their sons, gotraja (of the same family), Bandhus, disciple and Brahmacharins of the same school,

each succeeding one is heir in the absence of the person immediately preceding him in the order of enumeration, this is the law in respect of the

inheritance to the property of a sonless deceased person of whatever caste.

The widow inherited the estate. The second stage in her life was her conversion to Muhammadanism which is found to have been subsequent

to the death of her husband. If the Hindu Law had not been legislated upon, there could hardly be any doubt that conversion to a different faith

would have entailed forfeiture of the estate inherited by the woman. But Act XXI of 1850 which was designed to preserve the rights of persons

who exercised their liberty of conscience in entering the fold of another religion maintained the rights of the widow to continue in possession of her

deceased husband''s property. Section 1 distinctly says ""so much of any law or usage within the territories of the East India Company as inflicts on

any person forfeiture of rights or property or may be held in any way to impair or affect any right of inheritance by reason of his or her renouncing

or having been excluded from the communion of any religion ceases to be enforced as law in the Courts of East India Company"". So under this

Act the widow who had embraced Muhammadanism could not be deprived of the rights which she possessed prior to her conversion. Her

inheritance subsisted. The third stage in her career was her marrying a Muhammadau. I fail to see how this step can deprive her of what she

obtained under the Hindu Law and what the legislature preserved to her under Act XXI of 1850. I am unable to find anything in the Hindu Law or

in Act XXI of 1850 which can have this effect. It is hardly necessary to refer to cases in which it has been held that under the Hindu Law

properties once vested in a male or a female cannot be divested by reason of the fact that if the subsequent state of life had existed are the time of

the devolution of interest he or she would not have inherited the property. The well-known case of Moniram Kolita v. Keri Kolitani ILR (1880)

Cal. 776 (P.C.) laid down that principle in unequivocal terms. One sentence from the judgment may be quoted as bearing upon conversion:

The widow has never been degraded or deprived of caste. If she had been, the case might have been different, subject to the question as to the

construction of Act XXI of 1850; for upon degradation from caste, before that Act, a Hindu, whether male or female, was considered as dead by

the Hindu Law, BO much so that libations were directed to be offered to his manes as though he were naturally dead.

Following this decision all the High Courts have held that property once Tested under similar circumstances, cannot be divested. In Abilakh

Bhagat v. Bhekhi Mahto (1895) ILR 22 Cal. 864, which was a case of a person becoming insane after inheritance had vested in him, Mr. Justice

Ghose said that the principle of Moniram Kolita v. Keri Kolitani ILR (1880) Cal. 776 (P.C.) was applicable to that case. In Sanku v. Puttamma

ILR (1891) Mad. 289, the same principle was followed. Deo Kishen v. Budh Prakash ILR (1883) All. 509, is also to the same effect. It was a

decision of five Judges and they affirm the proposition that under Hindu Law subsequent conduct does not put an end to the rights once properly

acquired. Murli Singh v. Jai Singh (1908) 5 A.L.J. 115 (F.B.), follows this ruling. Much reliance was placed in the argument before us on

Murugayi v. Viramakali ILR (1877) Mad. 226. The judgment is based upon custom. It was the case of a person who was within the pale of

Hinduism. I fail to see how that case affects the present question. I may draw attention to the observations of Mr. (Those in his book on Hindu

Law wherein he says that Manu does not lay down that re-marriage while still a Hindu would deprive a Hindu widow of the inheritance once

vested in her. Although the principle of stare deices must be respected, I am not satisfied that in the present case we would be violating the rule of

law laid down in Murugayi v. Viramakali ILR (1877) Mad. 226, by holding that the widow marrying a Muhammadan does not forfeit the estate

which came to her from her Hindu husband. Moreover cases of this description are of rare occurrence, and when a very important principle

relating to the applicability of Hindu Law is debated, I fail to see how a decision, passed forty years ago on a different set of circumstances, can be

regarded as binding authority with reference to facts of a totally different character. For all these reasons, in my opinion, the answer to the question

must be in the negative.