1. This is plaintiff's appeal from the decree dismissing his suit for possession.
2. The property in dispute consists of 2 tenancy holding and a house situate in mauza Padrai, tahsil and district Sagar besides some moveables. It devolved on his death about 15 years back on his widow, Nai Babu, who died on 12th April, 1947. The plaintiff is the sister's son and next heir of Ramlal. The lower appeal Court has found that Nai Balm on the demise of her husband, married defendant No. 1. Defendant No. 2, Shymbai, is their minor daughter. The defendants took possession of fee property is dispute on the demise of NaiBahu. Plaintiff accordingly filed the suit, out of which this appeal arises, for possession as the heir of Ramlal. The suit was decreed by the trial Court but was dismissed in appeal as barred by limitation. Hence this appeal.
3. The plea of custom raised by the defendants regarding re-marriage of widows was negatived by both the Courts below and was not pressed before me. The finding of the first appeal Court regarding remarriage of Nai Bahu with defendant No. 1, was, however, contested. This finding is based on evidence and cannot, therefore, be the subject of challenge in second appeal. It was not contested before me that the remarriage is valid under the Hindu Widows' Remarriage Act, 1856, even though it was Hot based on any custom.
4. In Nathu v. Nai Bahu, 11 Nag LR 86: (AIR 1915 Nag 57 (1)) (A) the widow had remarried in. 1899 and sold the property on 12th May, 1913. The suit for possession by the next reversioner was instituted on 26th June, 1913. Holding that the widow had forfeited her right in the property and the suit was barred by limitation Stanyon A. J. C. observed as below:
'The re-marriage of Nai Bahu in 1899 at once extinguished her widow's estate in the property of Bhairon, and the presumptive interest of the plaintiff, as the nearest reversioner, vested under Section 2 of the Hindu Widows' Remarriage Act (XV of ,1856). Time began to run against him for recovery of possession of the house which continued in the hands of Nai Bahu. The proper Article of the Limitation Schedule applicable to the case seems to be 143; but if Article 141 can be technically employed then I am clear that by her remarriage Nai Bahu, as the widow of Bhairon, incurred civil death, and her subsequent possession of the house was, that of another person in the eye of the law, namely, the wife of Chhabile. That the civil death of a Hindu widow has the same legal result as her natural death would have, has been held in several cases, e.g., Nobokishore v. Hari Nath, ILR 10 Cal 1102 (FB) (B) and Hem Chunder v. Samamoyi, ILR 22 Cal 354(C). and the dictum in Bibi Sahodra v. Rai Jang Bahadur, ILR 8 Cal 224 (D), would not apply to such a case'.
This decision only enunciates what is expressly provided for in Sections 1 and 2 of the Hindu Widows' Remarriage Act. It docs not, however, consider the nature of the estate which the widow may prescribe after remarriage.
5. It cannot be disputed that a Hindu widow may according to her animus prescribe either for a limited or an absolute estate. She may enter on the property as an heir to her husband or in assertion of her own right although she may be without title. We are not concerned in this case, with a widow who enters on the property without any title. It is not, therefore, necessary to consider whether in such a case she will prescribe for an absolute title even though she had not asserted it at any time. The law on the point has been, however, exhaustively dealt with in Gunderao v. Venkamma, (S) AIR 1955 Hyd 3 (FB) (E), in which it has been held by a majority of Judges that without an assertion of absolute title on her part, she does not become an absolute owner of the property. In this case, however, we are concerned with a widow who expressly entered on the property as an heir to her husband. In Chhatter Singh v. Roshan Singh, AIR 1946 Nag 277 (F), it was held, on an exhaustive review of the case law, that in such a case she cannot prescribe for an absolute estate.
6. A case on identical facts as the present came up for decision in Mt. Parbati v. Ram Prasad, ILR 7 Luck 320: (AIR 1933 Oudh 92) (G). In that case it was in contest whether the widow had forfeited her lights under the Hindu Widows' Remarriage Act. Their Lordships, however, even on that basis observed as below: .
'We are of opinion that even if it were assumed that Musammat Parbati forfeited her widow's estate when she contracted her second marriage with Hazari, it is not possible to hold that she prescribed for an absolute estate since the time of her second marriage. There is not an iota of evidence to show that alter her marriage with Hazari any change took place in the character of her possession or that she ever asserted any title as an absolute owner. All that appeals on record is that even after her remarriage she continued to hold the property exactly in the same way as before. In fact, as remarked by the learned subordinate Judge, there is nothing to show that she was even cognizant of the tact that she had forfeited his widow's estate by reason of her re-marriage. In Lajwanti v. Safachand, 51 Ind App 171: (AIR 1924 PC 121) (H), it was held by their Lordships of the Judicial Committee, that a title acquired under Section 28 of the Indian Limitation Act, 1908, through adverse possession by a widow who claims and holds a widow's estate, inures to the estate of her deceased, husband and it descends upon her death accordingly. The principle under-lying this decision is applicable to the present case. If the result of the remarriage was to effect a forfeiture of her widow's estate, her possession thereafter was unlawful and therefore adverse But there being no evidence to show that she prescribed for the absolute estate, this adverse possession can only be regarded as adverse possession of the limited estate which she had enjoyed before the remarriage. The mere fact of remarriage in the absence of any assertion of absolute ownership or change in the manner of her possession could not enlarge her estate into an absolute one. As she has been allowed to retain possession for more than twelve years after her remarriage, she has thereby perfected her title only to a widow's estate which inures to the estate of her deceased husband, Raghu, and would on her death descend to the plaintiff as his reversioners.'
It will appear from this decision that where a Hindu widow enters on the property as an heir to her former husband, the presumption is that her possession even after remarriage is only in that capacity and, therefore, she can only prescribe for a limited estate as an heir to her first husband. This view has my respectful concurrence.
7. In the instant case, the defendants had pleaded that Nai Bahu had prescribed for an absolute estate. There is, however, no evidence on this point. On the other hand, the village papers show that she continued to be recorded as the widow of Ramlal. This shows that she had not asserted at any time any rights inconsistent with her possession as Ramlal's widow. The case, therefore, is within the dictum of Mt. Parbati v. Ram Prasad (G) (supra) and not of Hassu v. Ibrahim, AIR 1933 Lah 218 (I),in which the widow had claimed the property asan absolute owner after the forfeiture of her estateby remarriage. Nai Bahu, therefore, acquired onlya widow's estate, which on her death passed onto Ramlal's heirs.
8. It was however, urged that the plaintiff had not put up this case in the pleadings, and, therefore, cannot succeed on its basis. The case, however, is bound up with the plea raised by the defendants themselves that she had prescribed for an absolute estate There is no question of the defendants having been denied an opportunity to rebut it, as on their failure to prove the acquisition of an absolute estate by the widow the presumption would be that she had prescribed for only the same estate which had vested in her at the time of her entry on the property.
9. The appeal is accordingly allowed with costs.The decree of the lower appeal Court is set asideand that on the trial Court is restored. Costs of thefirst appeal shall be on the respondents.