H.R. Krishnan, J.
1. This second appeal by the plaintiffs is directed against the judgment and decree of the first appellate court allowing the appeal by the defendants and setting aside a decree awarded by the trial court in favour of the plaintiffs. That suit was for the declaration of title and restoration of possession of the house sold by a widow who got it as her husband's heir and to which the defendant-respondents are the reversioners. The controversy arose because on the date of sale the widow had already remarried.
2. The only issue is one of law: Whether according to the Hindu Law of this region, modified, if at all, by the custom of this caste (Kirar), a widow forfeits her life interest in her husband's property in the event of her remarriage.
3. The plaintiffs are the purchasers from a Kirar widow after her remarriage. The reversioners contend that in accordance with Hindu Law in force in this area and applicable to this caste, the reversion to the Husband's estate opens as soon as the widow goes out of the family by remarriage, she being notionally dead as far the husband's family is concerned.
4. All the schools of Hindu Law are unanimous in holding that the widow's life interest in her husband's estate is founded on the theory, which is basic in Hindu thought, that she continues her husband's personality even after his death. This right to the husband's property is itself one of the many corollaries following from the theory, and is exactly similar to the right to maintenance, the right (in Bombay) to inherit as Gotraja Sapinda, and the right to adopt a son to her husband. Where custom or statute (Hindu Widow Remarriage Act, 1856) does allow the widow to remarry, it only recognises her right as an independent personality. It is for her to choose between exercising this right, and thereby severing the notional continuity of her husband's personality, or to remain unmarried, and retain the latter. But she cannot do both. Case law has generally followed this principle.
5. There are cases of the Oudh Chief Court and of Allahabad High Court, which hold a different view, the latest ones being Ram Lal v. Mt. Tawala, AIR 1928 Oudh 338 and Bhola Umar v. Mt, Kausilla, AIR 1932 All 617 (FB). In both of them the question was whether the disability imposed by Section 2 of the Hindu Widow Remarriage Act 1856, also attached to a remarriage in accordance with a pre-existent caste custom. The answer was that the disability i.e. forfeiture of the right on the husband's property, did not attach in such cases, unless it was proved that it did by virtue of a custom in that caste or section of Hindus.
With all respect it is difficult not to feel that the Allahabad and the Oudh High Courts fell into a fallacy, in assuming that this forfeiture of the interest in the husband's property can be only under Section 2 of the Act or under a custom expressly to that effect. The point is that it can be (and in my opinion it is) a logical consequence of the fundamental concept of the Hindu Law of the personality of the husband continuing in the person of the widow.
It is altogether impossible in the eye of Hindu law for a woman to be at the same time, a continuance of the personality of the late husband, and an actual half of the personality of the present one. She has to be the one or the other and, if she chooses to be latter, she automatically ceases to be the former. In fact, a party which asserts that a remarried widow should retain the right, will have to prove a positive custom to that effect, a very difficult process in any case, in view of thesheer repugnancy of such a notion to the basicprinciples of the Hindu Law.
6. It is worth noting that in regard to the other rights derived from the same principle, all the courts are unanimous in holding that the widow forfeits them on remarriage. There is one apparent exception in the ruling reported in Mt. Ram Kunwar v. Ochha Danpal, AIR 1951 Madh-B 96. All that this ruling has held is that by the mere fact f remarriage a Hindu widow does not lose her right or guardianship over her children. In that case there were two minor girls aged 8 years and 6 years and there were many reasons why, in the interest of the minors, their mother should be the guardian. Without reference either to the Hindu Widow Remarriage Act of 1856, or the rulings of the Oudh and Allahabad High Court, this is derivable from the minor's physical dependence on the mother which continues even after she remarries. So that ruling in regard to the right of guardianship has really no bearing on the question of forfeiture of the right in the husband's property.
7. The result is that it is not necessary for the reversioner to show that there is a custom in the caste by which the remarrying widow loses her interest in the deceased husband's property. Nor is it necessary for them to invoke the provisions of Section 2 of the Hindu Widow Remarriage Act of 1856. which does not in any case apply in the present case. He can successfully claim that the widow, on remarriage, forfeits her right to the husband's property, on the basic principles of the Hindu Law, unanimity (Allahabad and Oudh excepted) of the High Courts in this particular question, and their absolute unanimity in regard to the other rights derived from the same principle.
8. The appeal is accordingly dismissed with costs and pleader's fee to the defendant-respondent on minimum contested scale.