(1) The facts necessary for the purpose of deciding the point of law argued are:
(2) One Hanumanthaboyi and his brother Sannaboyi died leaving behind them their mother, the first defendant and two sisters, who were originally plaintiffs in the suit. The suit properties belonged to Hanumanthaboyi and Sannaboyi. The first defendant (1st respondent in this appeal) had taken a second husband after the death of her previous husband, the father of Hanumanthaboyi and Sannaboyi. Subsequent to the death of the last owners disputes arose between the mother and daughters as regards the succession to the properties of the deceased Hanumanthaboyi and Sannaboyi.
The Courts below have come to the conclusion that the respondent (1st defendant) had succeeded to the properties of her deceased sons. But it is contended on behalf of the appellant that the 1st defendant (Respondent) is not entitled to succeed to her sons as he had taken a second husband. The right of a mother who had taken a second husband to the estate of her deceased son or daughter has been considered by several High Courts and they have uniformly come to the conclusion that notwithstanding her remarriage she is entitled to succeed as heir to the estate of her son or daughter by her first husband, the son having died after remarriage. This question came up before a Full Bench of the Bombay high Court in Basappa v. Rayava, ILR 29 Bom 91. In that case, the Full Bench held that:
'A re-married Hindu widow is entitled to succeed to the property left by her son by her first husband, the son having died after the re-marriage'. The Bombay High Court had to consider this question again in the case of Bhiku Krishna v. Keshav Ramji, AIR 1924 Bom 360, Macleod, C. J. Who delivered the judgment of the Court observed:
'A Hindu widow can after her re-marriage succeed to the estate of her daughter by her former husband where the daughter dies after he re-marriage.'
The same view was taken by the Madras High Court in the case of Lakshmana Sasamallo v. Siva Sasamallayani, ILR 28 Mad 425, the Calcutta High Court in the case of Faguniswari Dasi v. Dhum Lal Pal, AIR 1951 Cal 260 and the Hyderabad High Court in Pannalal v. Harna Bai, AIR 1950 Hyd 37.
(3) Sri V. Krishna Murthy, the learned Counsel appearing for the appellant has not invited our attention to any decision which has taken a contrary view. But, he tried to seek support from the observations found in Mayne's Treatise on Hindu Law and Usage. XIth Edition, by Sri N. Chandrasekhara Aiyar. The relevant observations are found in paragraph 533 and they are as follows:
'It has been held that a Hindu widow notwithstanding her re-marriage is entitled to succeed as heir to the estate of a son or daughter by her first marriage who dies after her second marriage. This view is assailable. In fact, the Bombay High Court has held that a Hindu widow who has re-married is not entitled to succeed as Gotraja sapinda in the family of her first husband. The ground of decision was that she must be deemed to be dead with regard to her first husband. The ground of decision was that she must be deemed to be dead with regard to her first husband and cannot be considered his Gotraja sapinda. Obviously, the widow on her re-marriage loses not only her husband's gotra but also the sapinda relation which she acquired by becoming a wife. Both could be retained by her only while she retained her status as his Patni (wedded wife) with the meaning of Yagnavalkya's text. A widow cannot continue to be the patni of her former husband when she has become the Patni of her former husband when she has become the Patni of her second husband. Therefore the estate which a Patni takes as such, being a limited estate, can endure only so long as she is a Patni.'
We are unable to accept the above view as correct. A mother does not claim a right to her son's property on the basis that she was the wife of her deceased son's father. She succeeds to his property as his mother. She does not cease to be his mother because she has taken a second husband. She need not trace her right through her husband. The footnote appended by the learned author to the aforesaid paragraph 533 is of much significance. It is as follows:
'The translation of 'Patni' into widow is responsible for part of the confusion. The widow after her re-marriage may be a sapinda to sons or daughters born of her or their descendants though she cannot be a sapinda to any other relation of her first husband's family. The sapinda relationship by marriage is only by legal construction and is destroyed when that relationship is destroyed. It is only the sapinda relationship is due to real consanguinity that can continue.'
(4) Even if we had been satisfied that the contention advanced by Sri v. Krishnamurthy is correct, we would have declined to disturb a position of law which has held the field ever since the decision in Akora Suth v. Boreani, 2 Beng LR AC 199, Law has intimate relationship with life and it is not correct to think that it has no finality.
(5) In the result, the appeal fails and the same is dismissed with costs.
(6) Appeal dismissed.