Henry Richards, Kt. C.J. and Pramada Charan Banerji, J.
1. This appeal arises under the following circumstances. One Musammat Parbati, the widow of one Ganga Ram, who was a Hindu, instituted a suit claiming, that she, in exercise of her legal rights, wished to make a well, and build a temple on a portion of the property in the possession of which she was as a Hindu widow. She alleged that the defendants to the suit were preventing her from exercising her legal rights and she claimed an injunction to restrain them. The plaintiff got a decree in the court of first instance. The defendants appealed. While the appeal was pending, Musammat Parbati became a convert to Muhammadanism and married one Wali Muhammad. She then put in a petition stating that she no longer wished to prosecute her suit and prayed that her suit might be dismissed. Thereupon the present respondent, Musammat Nirma, the mother of her husband, who would have been entitled to the estate for her life if Musammat Parbati were then dead, made an application that she might be brought upon the record and allowed to defend the appeal. The court below allowed this application. Hence the present appeal.
2. The appellants contend that Musammat Parbati did not lose her estate upon becoming a convert to the Muhammadan religion, but that her right to her husband's property was protected by Act XXI of 1850, and that being a Muhammadan she was entitled to contract a legal marriage with her present husband. On the other hand, the respondent contends that under Section 2 of Act XV of 1856, the remarriage of Musammat Parbati worked a forfeiture of her interest in her first husband's estate, and that, therefore, there was a devolution of interest to the present respondent. It was further contended that even if this be not so, Musammat Parbati, though she represented her husband's estate so long as she remained a Hindu widow, ceased to do so when she changed her religion and married again, and that therefore the present respondent, as next reversioner, ought to be allowed to continue the proceedings and protect the estate.
3. In our opinion, her conversion to the Muhammadan religion did not divest Musammat Parbati of her interest in her first husband's estate in view of the provisions of Act XXI of 1850. This has been repeatedly held in this Court and by their Lordships of the Privy Council. The last case to which we may refer is the case of Khunni Lal v. Govind Krishna Narain (1911) I.L.R., 88 All., 856. We are also clearly of opinion that Section 2 of Act XV of 1856 does not divest her of her interest in her first husband's estate.
4. Section 2 of Act XV of 1856 cannot possibly include all widows It is necessarily confined to 'Hindu widows.' Musammat Parbati was not a Hindu when she married her present husband. This Court has consistently held that the provisions of this Act do not apply to cases where the second marriage is valid irrespective of the provisions of the Act. Therefore, on the main ground of appeal, we think that the contention of the appellant is correct. Our attention has been called to the ruling of the Calcutta High Court, in the case of Matungini Gupta v. Ram Rutton Roy (1892) I.L.R., 19 Calc., 289. This ruling is inconsistent with the rulings of our own Court.
5. With regard to the second contention, namely, that Musammat Parbati, in the events which have happened, ceased to represent her late husband's estate, we need only point out that the sole ground upon which the respondent could be substituted for Musammat Parbati would be that there had been a devolution of the estate, which, for the reasons already stated, is clearly not the case. No doubt, if anything detrimental to the estate is done by Musammat Parbati or by any other person, the reversioners may have a right to take steps for the protection of the estate by instituting a suit of their own. This is a very different thing to being substituted for Musammat Parbati in a suit which she instituted of her own motion and which she does not choose to prosecute.
6. We allow the appeal, set aside the order of the court below and dismiss the application with costs.