1. The pltf., sister of one one Babu Vithu --deceased--filed Suit No. 22 of 1948 for possession of the properties of Babu Vithu from the defendants who were his divided agnates. It was the plaintiff's case that Babu Vithu died in the year 1931, that he left him surviving his widow Mohana, that Mohana remarried some time in the year 1937 and had thereafter disappeared and therefore she must be regarded as civilly dead to the family of Babu Vithu and that the plaintiff as the sister of Babu Vithu inherited his property and was entitled to obtain possession of the property from the defendants. The suit was instituted in the Court of the Civil Judge (Junior Division) at Kagal, which at the date of the institution of the suit was in the Kolhapur State, and the parties were governed by the law in force in the Kolhapur State.
2. The defendants by their written statement raised numerous contentions against the plaintiff's claim, all of which need not be set out. The contentions material for the present appeal are that the defendants were not aware of the remarriage of Mohana, and that even if it be proved that Mohana had remarried, she did not thereby forfeit her interest in the property inherited by her from Babu Vithu.
3. The learned trial Judge held that the plaintiff being the sister of Babu Vithu was entitled to succeed to his property after the remarriage of Mohana and that the plaintiff's suit was not barred by limitation. Accordingly negativing the other contentions of the defendants the learned trial Judge passed a decree in favour of the plaintiff. .
4. An appeal was preferred to the District Court at Kolhapur by the defendants against that decree. Two issues only were argued by the defendants in support of the appeal in the District Court:
(i) Whether the plaintiff proved that Mohana remarried in the year 1S37? And
(ii) whether in the absence of a specific issue framed on that point the suit should be remanded to the trial Court?
The District Court held that the plaintiff proved that Mohana remarried in the year 1937 and it was not necessary to remand the suit for a finding on an express issue raised for that purpose. The District Court accordingly confirmed the decree or the trial Court. The defendants have come to this Court in second appeal.
5. Now, the finding of the District Court that Mohana remarried in the year 1937 is based upon appreciation of evidence which the learned Judge has considered in paras. 10 and 11 of his judgment, and that conclusion is binding upon this Court in second appeal, and is not challenged in this Court.
6. But a question which was not canvassed in the Courts below is sought to be raised in this appeal, it is urged that the parties resided in the Kolhapur State territory and the Hindu Widows' Remarriage Act (15 of 1856) was never made applicable to the Kolhapur State and therefore even if it be proved that Mohana remarried in the year 1937, unless the plaintiff proved that by re-marriage Mohana forfeited her right to the property inherited by her from her husband the plaintiff was not entitled to succeed merely by proving that Mohana had remarried.
Now, it may be noted that the plaintiff did in fact allege in her plaint that by remarriage. Mohana became civilly dead to the family of her first husband, and when the inheritance opened, the plaintiff being the sister of Babu Vithu was entitled to take his property. The defendants of course denied that plea. What the effect of the remarriage was upon the property inherited by Mohana from her husband was however not made the subject-matter of an issue in the trial Court. It was conceded before the learned trial Judge that the plaintiff had the right to succeed if Mohana was proved to have remarried. The learned trial Judge observed in the course of his judgment:
'The plaintiff is the sister of Babu Vithu, and as such entitled to inherit the suit properties after Mohana disappeared from the picture. In fact her right to succeed was not challenged.'
In the lower appellate Court the case was argued on the assumption that if the plaintiff proved that Mohana had remarried after the death of Babu, the plaintiff's right to succeed to the suit property would be established. Relying, however, upon certain observations made in a judgment of the Allahabad High Court reported in -- 'Bhola Umar v. Mt. Kausilla : AIR1932All617 , it was urged that in Hindu communities which permitted remarriage by custom forfeiture could not be a necessary consequence of remarriage.
The forfeiture consequent upon remarriage, it was contended, was the result of statute law in British India as it was prior to the enactment of the Constitution of India, and there being no statute in the Kolhapur State similar to the Hindu Widows' Remarriage Act, in those communities where remarriage was by custom permitted a Hindu widow on remarriage did not forfeit her right in the property inherited by her from her husband. Reliance was placed upon the observations in -- 'Bhola Umar's case, (A)', made by Sulaiman C. J., at pp. 619 and 620 to the following effect:
'It is to be admitted that there is no express text which lays down that a- forfeiture of the Hindu widow's estate will follow upon her remarriage; nor is there any test which expressly says that her right to hold the estate will terminate on her death or on remarriage. On the other hand, the verse of Katyayana quoted above allows her to enjoy the property until her death, and the heirs are to take it only 'after her'. It has been suggested that the idea of a Hindu widow retaining her property is incompatible with the conception of Hindu Law.
But when once the estate has vested in her, there can be no forfeiture unless there is a clear ' authority for that view, and forfeiture cannot be inferred because of some notional view deducible from some supposed principle underlying the Hindu Law of succession, When it Is now well settled that unchastity does not involve any forfeiture, it would 'prime facie' follow that remarriage would not. It would be putting a premium on unchastity to hold that she can retain the property so long as she remains notoriously unchaste, but the moment she remarries she will forfeit it.....
There seems to be no good reason for holding that a remarriage recognized by law does so. In the absence of any express text, the Hindu Law should be interpreted so as not to cause a shock to one's moral conscience. Obviously the strict Hindu Law never contemplated a remarriage for the higher classes. The rules laid clown, therefore, do not provide for remarriages, in the eye of the pure Hindu Law, remarriage was hardly anything better than concubinage. When remarriage was not recognized it was tantamount to unchastity. In this view of the matter her position should not be any worse than if she were unchaste.'
With very great respect to the learned Chief Justice, it must be observed that any attempt to search for textual authority as to consequences of remarriage by a Hindu widow in the Shastras, when the Shastras did not recognise or countenance remarriage by a widow must be futile; and an attempt to infer from the absence of express authority that according to the Hindu Shastras remarriage did not involve forfeiture of the property inherited by her would be giving effect to the absence of authority a recognition which is plainly inconsistent with what is sanctioned by usage at least in the western part of this country.
It is also difficult to accept the argument that remarriage which was not recognised by the Shastric Hindu law was 'tantamount to unchastity'. The life of a remarried woman cannot be regarded as a life of unchastity. Unchastity at best is an uncertain and variable course of conduct involving an idea neither of continuity nor of obligation. Remarriage on the other hand clothes the relation between a man and a woman with a status postulating a continuity and involving 'rights and obligations. Even an incontinent widow continues to be the widow of her deceased husband: on remarriage she unequivocally renounces her status as a widow.
It is true that once a Hindu widow has inherited the estate of her husband she does not by her subsequent unchastity forfeit the estate. But to suggest therefrom that it would be putting a premium upon 'notorious unchastity', against a comparatively more respectable status of a wife on remarriage, is to examine an issue of law on a plane of morality. What may appear to be an anomaly under the Shastric Hindu law is also perpetuated by the Hindu Widows' Remarriage Act of 1856. A widow who since the enactment of the Act lives a notoriously unchaste life is still entitled to enjoy her husband's estate, but on remarriage she forfeits that right. Mukerji J. is also reported to have observed at p. 625 (in his referring judgment):
'Now I turn to the question of Hindu Law. 1 have read the judgments of the various High Courts which deal with the Hindu Law as affecting forfeiture of the widow's property and I am afraid I cannot concur with the view taken. The main argument advanced is this: a widow inherits because she is one-half of the body of her husband Cardhangini' as she is called), and if she remarries she ceases to be one-half of her husband's body and, therefore, forfeits the right of inheritance. Nothing can be more fallacious, with all respect, than this argument when applied to the case of people who permit remarriage of their widows.'
And one of the cases which the learned Judge referred to at p. 624 was the Full Bench case reported in -- 'Vithu v. Govinda', 22 Bom 321 (B).
7. The question in my view is not to be decided on considerations of logic or what may appear on abstract considerations to be based on fallacies. The Hindu law recognises a wife as one-half of the body of her husband Cardhangini') and on the death of the husband the wife inherits the property of her husband because she is entitled to offer funeral oblations in the absence of sons and on the fiction that she is the surviving half of the husband: Smriti Chandrika, Ch. XI, Section 1, Verses 13, 16 and 20; Dayabhaga, Ch. XI, Section I.: Viramitrodaya, Ch. 3, Ft. 1, Section 2.
It is true that custom recognised among certain communities remarriage by widows, and the Legislature has now recognised remarriage by Hindu widows belonging to all communities. But it is difficult from that circumstance to infer that because either by custom or by legislation remarriage of Hindu widows is permitted, the right in which a widow Inherits the property and takes a limited estate under the Hindu law is altered.
The widow's right to inherit to the husband's property is by the texts founded on the view that she is the surviving half of her husband. That foundation does not disappear merely because certain communities recognise a custom of remarriage of widows or that remarriage of widows is by statute made valid, even in communities in which it was not recognised. If the estate a Hindu widow inherits from her husband enures during her widowhood and reverts on the termination of the state of widowhood to the heirs of her husband, it must follow that on the widow renouncing her status as a widow she extinguishes her interest in the property inherited by her. It is difficult to appreciate how the limitations inherent in the estate of a Hindu widow can be discarded by her.
It is not open to a Hindu widow by her voluntary act to invest herself with a superior estate, after having inherited an estate which was to be held by her so long as she remained a widow of the deceased. It would indeed be a startling proposition to say that even though a Hindu widow by the Shastric texts takes the property of her deceased husband by inheritance as his surviving half, she is entitled to take away that property with her to her new husband on remarriage though she can no more be regarded as the surviving half of her first husband, and upon whom she cannot confer any spiritual benefit by the performance of ceremonies enjoined to be performed by her.
8. It may be useful to refer to certain cases in which the question as to the forfeiture incurred by a Hindu widow by remarriage fell to be decided. In 22 Bom 321 (B)', the question arose whether under Section 2 of the Hindu Widows' Remarriage Act (15 of 1856) a Hindu widow belonging to a caste in which remarriage was permitted by custom and who inherited property from her son forfeited by remarriage her interest in' such property in favour of the next heir of the son. The case was decided by a Bench of three Judges one of whom was Ranade J., -- a Judge of great learning and special competence on questions of Hindu law. Ranade J. who delivered the judgment of the Court observed at p. 330:
'It appears to me that this variation between the preamble and the enacting clauses was not the result of any oversight, but that the Legislature deliberately used the more general words in Section 2 of the Act (Hindu Widows' Remarriage Act), because it found that, while the custom of prohibiting remarriage obtained in certain castes, and did not obtain in others, in the matter of forfeiture by the widow of all interest in her first husband's estate, there was no such divergence.'
He further observed at the foot of the page:
'....There is not a single caste mentioned (in Steele's Law and Custom) in which any custom to the contrary prevailed. If with this information before it, the Legislature enacted Ss. 2, 3, 4 (of the Hindu Widows' Remarriage Act) in very general terms, thinking thereby to declare what was in fact a general practice, it cannot be said that any new disability was created thereby.'
Evidently, it was regarded as settled law in the Deccan that even before the Hindu Widows' Remarriage Act was enacted, on remarriage -- whether she belonged to a community which permitted remarriage by custom or otherwise -- a Hindu widow forfeited her rights to the estate inherited by her from her first husband. In -- 'Parvati v. Bhiku', 4 Bom HCR 25 (C), Ehiku, widow of Dhondiram, filed a suit for recovery of a half share in the estate of her husband from Parvati her co-widow. Parvati resisted the suit contending 'inter alia' that Bhiku had married one Ram-sing since the death of Dhondiram, westropp C. J. observed in the course of the judgment at p, 27:
'....if either widow remarry after the death of her husband, she can neither recover nor retain a share of his property. By remarriage she forfeits her right to it. This is so as well by Hindu Law as also by Act (15 of 1856), Section 2..'
And in support of that view Steele's Hindu Castes, pp. 170, 177, West and Buhler pp. 96 to 99 and --'Hurkoonwur v. Rutten Baee (1820) 1 Bon 475 (D), were referred to. In -- 'Murgayi v. Vira-makali 1 Mad 226 (E), it was held that a widow of the Maravel caste (governed by rules of Hindu law) who remarried had no claim to the property of her first husband. It was observed in that case at p, 228:
'....we have little doubt that the law in this presidency (Madras) will not permit the widow who has remarried, and who must be regarded as no longer surviving her husband, to lay claim to the property left by him,....'
'Murgayi's case, (E)', was followed by a full bench of the Madras High Court in --'Vitta Tayaramma v. Sivayya AIR 1919 Mad 854 (P). In -- 'Matu-gini Gupta v. Ram. Rutton Roy 19 Cal 289 (G), a full bench of the Calcutta High Court was called upon to consider the question whether as a result of remarriage by a Hindu widow under the Special Marriage Act (III of 1872) after a declaration that she was not a Hindu, her interest in her first husband's property was determined, and the Court held that by Section 2 of the Hindu Widows' Remarriage Act (15 of 1856) the interest was determined. Wilson J, and Gooroodas Banerji J., who were two of the three Judges constituting the division bench, which referred the case to the full bench, made observations which have an important bearing on the question to be decided :n this appeal. Wilson J. observed at p. 291:
'We cannot expect to find express texts on this point in the usual authorities on Hindu Law, because second marriage was a thing they did not contemplate. We cannot expect more than an indication of the view they took of the nature of a widow's estate.
That view is clearly expressed in the text of Brihaspati which Jimutavahana makes the basis of his reasoning on the subject of a widow's estate (Dayabhaga XI, 1) 'of him whose wife is not deceased half the body survives. How then should another take his property while half his person is alive?' This is difficult to reconcile with a right in a widow, who ceases to be the wife or half of the body of her late husband, and becomes the wife and half of the body of another man, to keep the estate of her late husband.
The view that on principle a second marriage determines a widow's estate is strengthened by the fact that where second marriages were sanctioned by custom, the further rule seems almost always to have followed, that such remarriage entailed a forfeiture of the first husband's estate.'
Banerji J. observed at p. 295:
'..The widow's right of succession is based, according to the 'Dayabhaga, on the ground that she is half the body of her deceased husband, & is capable of conferring by her acts spiritual benefit on him. The widow takes her husband's estate, not because of past relationship, not because she was the wife of the deceased, but because of the continuing relationship, because she is still the 'patni' (wife) of the deceased.
This is abundantly clear from chapter XI, section I of the 'Dayabhaga', and in particularfrom paragraph 2 of that section; and if thatis so, it follows, as a necessary consequence.that the estate of a Hindu widow can last onlyso long as she continues to be the wife and halfthe body of her deceased husband; that is,only so long as the relationship, by reason ofwhich she inherits, continues, and the estatemust be held to determine when she must ceaseto be the wife of her late husband and half hisbody by marrying another person.'
A similar view is expressed in -- 'Mt. Suraj JoteKuer v. Mt. Attar Kumari AIR 1922 Pat 378 (H).It was observed in that case by Coutts J. at p. 380:
'A widow's right to succession is based on the ground that she is half of the body of her deceased husband and that she is caoable of conferring spiritual benefits on him. When she remarries she ceases to be half of the body of her late husband or to be able to confer spiritual benefits on him and she becomes the wife and half of the body of her new husband. The reason, therefore, for her keeping the estate of her deceased husband disappears.'
In view of this formidable body of authority it must be held as settled law at least in the Western part of this country, that even apart from Act 15 of 1856 remarriage by a Hindu widow involved forfeiture of the estate inherited by her from her husband, or as a widow in the family of her husband.
9. It is true that for historical reasons the Kolhapur territory was under the suzerainty of a different ruler from the rest of the Deccan which was ruled over by the British prior to the year 1947. But it cannot be suggested that the rules which were applicable to the Deccan territory were in any manner different from the rules which were applicable to the Kolhapur State, except in so far as they were altered by legislation. Following the view expressed in the cases referred to earlier, I hold that under the pure Hindu law, remarriage by a Hindu widow involves forfeiture of the estate inherited by her as a widow in the family of her first husband.
10. On that view of the case the decree of the Court below must be confirmed. The appeal is dismissed with costs.
11. Appeal dismissed.