1. Two important questions arise in this appeal : (1) Whether Section 2 of the Hindu Widows' Re-marriage Act, 1856 (Act XV of 1856) hereinafter called 'the Act of 1856' is restricted in its application to property in which Hindu widows have a limited estate and (2) whether Section 2 of the Act of 1856 is inconsistent with Section 14(1) of the Hindu Succession, Act, 1956 (Act XXX of 1956) hereinafter called 'the Act of 1956'.
2. One Bhika Shirke died on the 13th of June 1956 leaving behind him his daughter Sindhu, who is the plaintiff and his widow Chandrabhaga, the 2nd defendant. On the 17th of June 1956, the Act of 1956 came into force. In October 1956, Chandrabhaga remarried. On the 16th of December 1958, she sold to the 1st defendant the property which she had inherited from her husband and of which she was possessed.
3. Sindhu filed the present suit in 1960 for possession of that property on the ground that her mother had forfeited her interest in it on the date of her re-marriage in 1956 and therefore, she had no right to sell the property to the 1st defendant.
4. The trial Court dismissed the suit holding that the 2nd defendant did not forfeit her interest in her husband's property on account of her re-marriage and, therefore, she could pass a valid title to the 1st defendant. The appeal filed by the plaintiff against that decision was allowed by the learned Assistant Judge, Poona, who held that the second defendant forfeited her right to her husband's property on her remarriage and that the alienation effected by her in favour of the 1st defendant was therefore void.
5. The 1st defendant has filed this appeal against that decree. The appeal came up for hearing before Vaidya, J., on the 31st of July 1970. As it involves important Questions of law on which there could be a difference of opinion, the learned Judge referred the appeal to a Division Bench.
6. The first question which falls for decision is whether Section 2 of the Act of 1856 governs only limited estates held by widows or whether it applies to properties held by them absolutely also. The section reads 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 re-marry, 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'.
7. It is clear that Section 2 governs (1) all rights and interests which a Hindu widow may have in her deceased husband's property by way of maintenance, (2) all rights and interests which she may have in her deceased husband's property by inheritance to him or to his lineal successors and (3) all rights and interests which she may have in her deceased husband's property 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. The section provides that the rights and interests of a Hindu widow in these three classes of properties shall cease upon her re-marriage and shall determine as if she had then died. As a consequence of this cessation of interest and the fictional death of the widow, the next heirs of her deceased husband or other persons entitled to the property on herdeath become entitled to succeed to that property.
8. Out of the three classes of property on which Section 2 operates, the first and third are limited interests --the former by necessary im application and the latter in terms. The interest of a Hindu widow in her husband's property by way of maintenance was always in the nature of a limited interest prior to the enactment of the Act of 1956. The third class of property on which Section 2 o operates is in terms described as 'an interest which a widow obtains under a will which confers a limited interest on her, without express permission to re-marry and with no power of alienating the same'.
9. What has therefore to be determined is whether the second category of property on which Section 2 operates is the interest known to Hindu aw as the 'limited estate' of a Hindu widow or whether it also covers property of which she is a full or absolute owner. Now it is true that the particular clause of Section 2 which relates to property which she gets by inheritance to her husband or to his lineal successors is not qualified by words of limitation indicating that the inheritance should be in the nature of a limited estate. The reason, however, why a limiting phrase which occurs in regard to the third category of property does not occur in regard to the first two categories is that prior to the Act of 1956, the interest of a Hindu widow in her husband's property by way of maintenance and her interest in property to which she succeeded as a Hindu widow was always in the nature of a limited estate. The Hindu Womens' Rights to Property Act, 1937 enlarged the interest of a Hindu widow in her husband's property to some extent, but that enlargement was quantitative and not qualitative. Under Sub-sections (1) and (2) of Section 3 of that Act, she acquired an interest which she did not formerly possess but under Sub-section (3) she got it as 'the limited interest known as a Hindu Women's estate'. When the Act of 1856 was passed, it was therefore unnecessary to qualify the second clause of Section 2, any more than its first clause, by words indicating expressly that the provision was intended to apply to such property only as was held by Hindu widows as a limited estate. Inheritance necessarily meant inheritance in the nature of a limited estate.
10. In our opinion, therefore, every one of the three limbs of Section 2 of the Act of 1856 applies to limited estates only in the hands of Hindu widows. Section 2 has no apapplication to property held by a Hindu widow as a full or absolute owner.
11. This question has come before the High Courts in many cases and the view taken therein is similar to the one which we have taken. In Bangaru Reddi v. Mangammal. AIR 1947 Mad 163, Rajamannar, J., held that S. 2 of the Act of 1856 has no effect on property belonging to the Hindu widow absolutely on the date of her re-marriage. According to the learned Judge the words 'as if she had then died' supply the criterion for adjudicating on the rights and disabilities of the widow on her re-marriage. 'All the results which would follow on the remarriage are results which would ensue if she had died on the date of the remarriage. In other words, if she had only a limited and life interest then that would cease; but if she had an absolute estate that would not cease'.
12. A similar view was taken by Subba Rao, J. (as he then was) in Lakshmi Ammal v. Thangavel Asari. : AIR1953Mad977 . The learned Judge held that a combined reading of Sections 2 and 5 of the Act of 1856 indicates that the forfeiture of property by a Hindu widow on re-marriage is confined to the category of cases specified in Section 2 and that the section applies to limited estates only. 'The section will not apply to an absolute interest legally acquired by the widow'. This decision was affirmed by a Division Bench in a Letters Patent Appeal (Thangavelu Asari v. Lakshmi Ammal : AIR1957Mad534 ). It was held that it is only when the widow is in enjoyment of rights and interests of a limited amplitude that Section 2 can apply and that '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.'
13. The judgment in Ballabha Pani_v. Jasodhara Pani, ILR (1965) Cut 398 is even more directly in point. In that case, a Hindu widow obtained a decree for a declaration of her title and for possession of property belonging to her husband. She remarried after the preliminary decree was passed and when she filed an application for making that decree final, the judgment-debtors objected that she had forfeited her right to the property of her husband and therefore, she could not maintain the final decree proceedings. The learned Single Judge of the Orissa High Court rejected this contention on the ground that Section 2 of the Act of 1856 'has no application to the properties in which the widow has acquired an absolute interest on the date of her remarriage'.
14. On the first question, we are, therefore, of the view that Section 2 of the Act of 1856 applies only to limited estates of Hindu widows and that it cannot operate on property of which they are full or absolute owners.
15. In view of this conclusion, the second question does not really arise because that question assumes that there is an inconsistency between Section 2 of the Act of 1856 and Section 14(1) of the Act of 1956 under, which 'Any property possessed by a female Hindu, whether acquired before or after the commencement of this Act, shall be held by her as full owner thereof and not as a limited owner'. There is therefore no scope for applying the provision contained in Section 4 (1) (b) of the Act of 1956 which says that save as otherwise expressly provided in the Act, any law in force immediately before the commencement of the Act 'shall cease to apply to Hindus in so far as it is inconsistent with any of the provisions contained in this Act'.
16. Mr. Oak, appearing for the respondent, says that even if Section 2 of the Act of 1856 were to operate on property held by a Hindu widow as a full owner, there would be no inconsistency between it and Section 14(1) of the Act of 1956 because even if the widow would forfeit her interest in that property on her remarriage, she would still form a fresh stock of descent under Section 15 (1) of the Act of 1956 and therefore, an essential attribute of her full ownership in her husband's property shall have been preserved. Strictly, it is unnecessary to consider this argument because we have taken the view that Section 2 does not operate on property held by a Hindu widow as a full owner. But we would like to say that the argument is unsustainable. Inthe first place, Section 15 (1) of the Actof 1956 would have no application because if on re-marriage the widow forfeited her interest in her husband's property, that property would cease to be hers and the rules of devolution laid down in Section 15 could not be invoked so as to treat her as a fresh stock of descent. Secondly, if Section 2 operated on full ownership also, the widow would forfeit her right to deal with property of which she is an absolute owner, which would mean destroying an important attribute of full ownership. Full ownership connotes a free right of disposal. Therefore, if Section 2 of the Act of 1856 were to be construed so as to govern property of which the Hindu widow is a full owner, there would be a fundamental inconsistency between it and Section 14 (1) of the Act of 1956. In that event. Section 4 (1) (b) of the latter Act would have come into play. As observed by the Supreme Court in Punithavalli Ammal v. Ramlingam : 3SCR894 the rights conferred on a Hindu female under Section 14 (1) of the Act of 1956 constitute a clear departure from the Hindu law, texts or rules and that from a plain reading of that section it is clear that the estate taken by a Hindu female under it is an absolute one and is not defeasible under any circumstances. 'The ambit of that estate cannot be cut by any text, rule or interpretation of Hindu law'.
17. For these reasons, we allow the appeal, set aside the decree passed by the learned Assistant Judge and restore that of the trial Court. The plaintiff's suit will stand dismissed but in the circumstances, there will be no order as to costs.
18. Appeal allowed.