Norman Macleod, Kt., C.J.
1. The plaintiff in this case is the father's sister of one Jamnadas who died in 1915. Jamnadas and his uncle Khusal had been the members of a joint Hindu family. Khushal predeceased Jamnadas leaving a widow Ganga. On the death of Jamnadas, the plaintiff claimed to succeed to his estate. Her claim being disputed, she had to file this suit against defendants Nos. 1 to 5 as the trustees under the will left by Khusal, and various other defendants as heirs of a deceased trustee.
2. The only question now in dispute is whether Ganga lost her right by her remarriage to take the place of her husband under the decision in Lallubhai Bapubhai v. Mankuvarbai I.L.R (1876) Bom. 388 and consequently her right to succeed to the estate of Jamnadas in priority to the plaintiff. The plaintiff's suit has been decreed in the lower Courts and an appeal to this Court was dismissed by Heaton J. This is a Letters Patent appeal against that decision.
3. In the trial Court the only contesting defendants were defendants Nos. 1-4. The first issue was whether all the properties mentioned in the will were not the joint family properties of Khushal and his nephew Jamnadas. The second, whether Khushal was competent to make the will. It was found that the properties were joint, and it followed that Khushal was not competent to dispose of them by will. But the defendants disputed the plaintiff's right to succeed, and contended that Bai Divali, the mother's sister, was the nearest heir to Jamnadas and in her absence one Damodar. Ganga was not mentioned in the pleadings and her name was only added as a preferential heir at the instance of the defendants after the hearing had commenced. The first defendant died pending the suit and his heirs were added. Against the decree of the trial Court one of the heirs of defendant No. 1, and defendants Nos. 2 and 3 appealed, and they have contested the appeals throughout. It is difficult to see what interest they had in doing so, after the Court had decided in favour of the plaintiff, and none of the persons mentioned by the defendants as preferential heirs had chosen to question that decision.
4. It is not suggested now that Bai Divali or Damodar have a preferential right to the plaintiff.
5. The appellants rely on Sections 2 to 5 of the Hindu Widows Remarriage Act (XV of 1856). Briefly stated, they contend that though, but for the Act, Ganga on her remarriage would have no right to succeed as gotraja sapinda of her first husband, Section 5 expressly gives her that right. That section saya ' 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'. Section 2 is as follows :
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 than 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.
6. The difficulty in this case in construing these sections arises from the fact that at the time when Act XV of 1856 was passed, the question whether a widow in this Presidency could succeed as gotraja sapinda of her first husband had never been thought of, and the appellants' contention amounts to this that on a proper construction of that Act the right which was established later by the decision in Lallubhai Bnpubhai v. Mankuvarbai I.L.R (1876) Bom. 388 was preserved in anticipation, so to speak, to a widow in spite of her remaariage. I would base my decision in this case certainly on the ground that Section 5 was never intended to lay down any proposition with regard to the inheritance by a Hindu widow contrary to Hindu law, or to allow a widow, though on her remarriage she would entirely leave her first husband's family, still in the case of certain events happening, to succeed as his gotraja sapinda. Reliance has been placed on the decision of a Full Bench in Basappa v. Rayava I.L.R (1905) Bom. 91 : 6Bom. L.R. 779, I here the question was whether a remarried Hindu widow was entitled to succeed to the property left by her son by her first marriage, who died after she contracted a remarriage. That question had already been decided in the affirmative by the Calcutta High Court in Akora Suth v. Boreani (1869) 2 Beng L.R. 199. Sir Lawrence Jenkins, while giving the judgment said: ' 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 Akora Suth v. Boreani.' Therefore we must be taken to be bound by that decision with regard to the right of a remarried Hindu widow to succeed to the property left by her son by her first husband, dying after her remarriage.
7. In Akora Suth v. Boreani, Peacock, C.J. said:
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 remarriage, of any right or interest which she had not at the time of her remarriage.... At the time of her remarriage, the property belonged to her son, and she had no right or interest in that property. It came to her by inheritance from her son, who died after her remarriage.
8. In other words it was held that the deprivation of the rights and interests of a remarried widow by inheritance to her first husband and to his Lineal successors was confined to vested rights only. In the lower Court E. Jackson J. was of the opinion that the policy of the Act was that a widow on her remarriage was to be dead to all rights of inheritance to her deceased husband's property, not only dead at that moment to such right as she had inherited, but dead then and for the future to all such rights.
9. I do not think we are barred by the decision in Basuppa v. Rayawa (1904) 6 Bom. L.R. 779, f. b from forming our own opinion on the facts of this case.
10. Admittedly, if the Act had not been passed, Ganga would have no right to bar the plaintiffs claim to inherit to Jamnadas. The sole object of the Act was to remove all legal obstacles to Hindu widow remarriages. Section 2 enunciated the consequences which would follow according to the principles of Hindu law upon such remarriage with regard to the forfeiture of the widow's rights and interests in her first husband s family, while Section 5 preserved her rights to inherit outside that family according to Hindu law. If we were to accede to the appellants' contention we should have to hold that the Act should be construed as creating rights in favour of a remarried widow unknown to Hindu law. With regard to her first husband Ganga is dead, she cannot now be resuscitated so as to be considered as his gotraja sapinda on the death of Jamnadas.
11. In my opinion the appeal should be dismissed with costs.
12. I entirely agree.