1. This is a second appeal under Section 100 of the Code of Civil Procedure by Mantorabai (defendant) against the confirming judgment and decree passed by the learned AdditionalDistrict Judge, Bilaspur, whereby he held that the defendant-appellant having remarried in Churi form defendant No. 2 Sunder, she has lost all her rights and interests in the property of her former husband Amru.
2. Paretanbai (Plaintiff-respondent No. 11 had filed a suit for ejectment against the appellant and respondent No. 2 Sunder from the house as well as the land situated at village Rani Dera left by Amru some 17 years back on his death. She alleged that she was the legally married wife of Ramkhilawan, son of Amru, and Amru on his death, left Ramkhilawan and the appellant, his widow, as his heirs. According to her Mantorabai (appellant) married Sunder (respondent No. 2) some six years before she filed the suit and on account of her remarriage, she lost all her rights and interests to the property of her husband Amru. She further alleged that her husband, Ramkhilawan, died in July 1960, and the appellant had taken possession of the house as well as the land forcibly to which she was not entitled according to law, and hence the suit.
3. The defendant-appellant had resisted the suit on the ground that the plaintiff is not the widow of her son Ramkhilawan and Amru died some 12 years back, and she being his widow, was entitled to the half of his property along with the son Ramkhilawan. She also averred that she had not remarried Sunder (respondent 2), and further alleged that the widow, even if she has gone unchaste, would not lose her rights to the property left by her deceased husband.
4. The learned Civil Judge, Class II, Bilaspur, framed as many as six issues on the pleadings of the parties and came to the conclusion that the plaintiff (respondent No. 1) is the widow of Ramkhilawan and the defendant-appellant had remarried Sunder some six years before filing of the suit and had thus lost her rights to the property left by her husband Amru, and the plaintiff-respondent No. 1 was entitled to the property in question, and therefore, he decreed the plaintiff's suit and ordered that its vacant possession be given to her. The defendant-appellant went in appeal before the learned Additional District Judge, who also agreed with the opinion of the learned Civil Judge and dismissed the appeal with costs.
5. Shri P.C. Pathak, the learned counsel for the appellant, has invited my attention to Sections 4 and 8 of the Hindu Succession Act, 1956, and contended that her remarriage would not stand as a bar in her succeeding to the property in question and she is legally entitled to succeedto the extent of half of the property left by her son Ramkhilawan on his death in July 1960.
6. Shri R.K. Varma, the learned counsel for the respondent No. 1, urged that the defendant-appellant had lost all the rights to the property of her husband on her remarriage, and he referred to the Full Bench decision of this Court in Bhondu Ganpat Kirad v. Ramdayal Govindram Kirad AIR 1960 Madh. Pra 51 and Mst. Bhuri Bai v. Mst Champi Bai AIR 1968 Raj 139.
7. None appeared for respondent No. 2.
8. The only question that arises for decision in this appeal is whether the appellant is entitled to any share in the property left by her intestate son in 1960 even after her remarriage.
9. I must say at the very outset that the ruling in AIR 1960 Madh. Pra. 51 is distinguishable from the facts of the instant case and it is not applicable here. In that case, 3 questions were referred to the Full Bench for opinion, and the question No. 1 which is relevant for our purpose is as follows:--
'(1) Whether the property inherited by a Hindu widow from her son is divested on account of her subsequent remarriage.'
The answer to this question given was that a Hindu widow is, upon her remarriage, divested of her husband's property which she has already obtained by inheritance to her son. She does not, however, forfeit the acquired property of the son which she has inherited. In paragraph 4, the learned Judges constituting the Full Bench, have observed as follows:
'Whether this right to inherit to her son, after her remarriage also extends to her husband's property devolving upon her son which if she had inherited from her son before remarriage, she would have forfeited in consequence of her remarriage, does not arise for consideration in this case.'
It is quite clear, therefore, that the question which arises for decision in this appeal was not decided by the learned Judges.
The ruling cited by Shri Varma in AIR 1968 Raj 139 is also not applicable to the present case. In that case, the learned Judges, while considering Sections 4 and 14 of the Hindu Succession Act, came to the conclusion that a widow who has become a full owner under Section 14 of the Act, to her, Section 2 of the Hindu Widows Remarriage Act, 1856 will not apply and her position would not suffer if she has remarried. In other words, this ruling is an authority for the point that if a widow has become an absolute owner of the property left by her husband underSection 14 of the Hindu Succession Act, she cannot be divested of her share in that property after her remarriage.
10. In the instant case, both the Courts below have given a concurrent finding that the appellant has remarried according to the Churi form six years before filing of the suit. The suit was filed on 3-7-1961. That being the position, the appellant had remarried sometime In 1955 or 1956, i.e., before the coming into force of the Hindu Succession Act, 1956. It also appears that this position was not contemplated either by the parties or their counsel.
11. So, the question that now arises is, whether, the appellant having remarried and her son, Ramkhilawan having become the sole coparcener of the property in question left by Amru, the husband of the appellant, is she entitled to any share in the property so left when the succession opens in July, 1960.
12. Shri Pathak, the learned counsel, has invited my attention to the text at page 796 in 13th Edn. of Mulla's Hindu Law, which reads as under:--
'Remarriage of a widow is not now under the Act a ground for divesting the estate inherited by her from her husband. The Hindu Widows' Remarriage Act, 1856 though it legalised the remarriage of a Hindu widow, had the effect of divesting the estate inherited by her as a widow. By her second marriage she forfeited the interest taken by her in her husband's estate, and it passed to the next heirs of her husband as if she were dead (Section 2 of that Act). The rule laid down in that enactment cannot apply to a case covered by the present Act and a widow becomes full owner of the share or interest in her husband's property that may devolve on her by succession under the present section. Her remarriage, which would evidently be after the vesting in her of her share or interest on the death of the husband would not operate to divest such share or interest. The Hindu Widow's Remarriage Act, 1856, is not repealed but Section 4 of the present Act in effect abrogates the operation of that Act in the case of a widow who succeeds to the property of her husband under the present section and Section 14 has the effect of vesting in her that interest or share in her husband's property as full owner of the same.'
He also referred to the matter at Page 798 of the same book regarding the rights of a mother, and it reads as under:
'MOTHER -- The mother inherits simultaneously with a son, widow, daughter and other heirs specified in Class I of the Schedule. She takes her share absolutely (Section 14.) Unchastityof a mother is no bar to her succeeding as heir to her son; nor does divorce or remarriage constitute any such bar. The Hindu Widow's Remarriage Act, 1856, is not repealed but Section 4 of the present Act in effect abrogates the operation of that Act in respect of matters dealt with by it and even if that Act could apply to the case of a mother before this Act came into operation there can be no doubt that the present Section and Sections 4 and 14 of this Act have the effect of laving down that her remarriage is no bar to her succeeding as heir to her son and that there can be no divesting of the interest that she acquires in his property by reason of a remarriage.'
Section 4 of the Hindu Succession Act, 1956 has an over-riding application and it brings about some fundamental and radical changes in the law of succession, and the result is that immediately on coming into operation of the Act, the law of succession hitherto applicable to Hindus by virtue of any text, rule or interpretation of Hindu Law, or any custom or usage having the force of law, ceases to have effect with respect to all matters dealt with in the Act.
13. As said above, the question before me is not whether the appellant succeeded to her husband's property along with his son as an absolute owner, but she having remarried and the son having inherited it as a sole coparcener, whether, after his death, she is entitled to any share with the widow of the deceased's son.
14. Section 24 of the Hindu Succession Act, 1956, reads as follows:--
'Any heir who is related to an intestate as the widow of a pre-deceased son the widow of a pre-deceased son of a predeceased son or the widow of a brother shall not be entitled to succeed to the property of the intestate as such widow, if on the date the succession opens, she has remarried.'
This section deals with one of the grounds for disqualification, namely, remarriage, but the disqualification is confined only to certain heirs. It is worthy of note that remarriage is not a disqualification in case of every female relative of the intestate. It is confined to the case of three female heirs mentioned in the Section, and who are entitled to succeed under the Act as widows or relatives of the intestate. It is pertinent to note that the mother of the intestate does not succeed as the widow of the father, but in her own right, and that being the position, and the mother being class I heir she is entitled to succeed to the property of her son, as a Class I heir, to the extent of half the share with the respondent No. 1. Both the courts below have, therefore,erred in not considering the question arising in this case from this angle and so, to this extent the appellant's appeal deserves to be allowed.
15. In the result, therefore, the appeal of the defendant-appellant is allowed; the decree of the first appellate court is modified to the extent that the appellant is declared entitled to half the share of the property in question with respondent No. 1. As regards the costs, looking to the facts and circumstances of this case, both parties shall bear their own costs throughout.