1. This is a second appeal by the unsuccessful defendant, Hira Bewa, the widow of one Ainthu Sahu, and raises an interesting question of Hindu law. Ainthu died issueless sometime before the settlement of V S 1322 (1915) leaving him surviving his widow Hira Bewa and her name was recorded in the Settlement papers of the year 1915. Soon afterwards she remarried one Gadadhar Sahu and has been living with him for the last 35 years. The plaintiffs are the agnates of the deceased Ainthu Sahu and claim to have been in possession of the disputed lands ever since Hira's remarriage. As the widow was trying to alienate the same the plaintiffs raised this suit for a declaration of their title and confirmation of possession with a prayer for a permanent injunction against the defendant.
2. Both the Courts below have concurrently found that the plaintiffs have been in possession of the disputed lands ever since the re-marriage of the defendant with Gadadhar Sahu. The substantial contention urged on behalf of the defendant-appellant in the Courts below, and repeated before us, is that the defendant is entitled to the property of her deceased first husband, which vest-ed in her on his death, as the caste to which she belongs permits re-marriage of widows. It is urged that the plaintiffs should be non-suited in the absence of proof that re-marriage entails forfeiture of the estate of her deceased husband which she had inherited on his death. Neither party adduced evidence on the question of any custom regarding the forfeiture of property consequent upon the re-marriage of a widow. Both the courts below, however, have proceeded on the footing that under the Hindu law a widow works out her civil death on her re-marriage and loses all right to the estate of her deceased husband.
3. The defendant's contention is supported by the view taken by the Allahabad High Court in the Full Bench decision in -- 'Bhola Umar v. Mt. Kausilla', AIR 1932 All 617 (FB) (A), where it has been held that a custom of re-rnarriage does not carry with it as a legal incident thereto, a further custom of forfeiture upon such re-marriage and that it would be necessary for the party claiming that the widow's estate has been forfeited onaccount of re-marriage, to prove that there is acustom of forfeiture in such a contingency. Thisview, however, has not found favour in any other High Court. But learned counsel for the appellant urged that there is no reported decision ofthis High Court covering the point and therefore it needs consideration at our hands. The point has accordingly been argued at great length and learned counsel for the appellant has, after painful research, placed a mass of case law for our consideration.
4. It may be pointed out at the very outset that the parties in this case belong to the Teli caste in which re-marriage of widows is permitted; and it appears to have been assumed that such remarriage also entails forfeiture. Exhibit 5, the certified copy of the order passed by the Superintendent, Keonjhar State on 8-2-1948 in Mis. Case No. 50 of 1917-18, says:
'The wife has lost all claim to this property, and Tunai and Shankar, the first cousins of Aintbu, are declared heirs to his property.' It is not clear whether the Hindu Widows Remarriage Act (Act 15 of 1856) was extended to 'Keonjhar State where the parties reside and the applicability of that Act, which was enacted with a view to remove all legal obstacles to the remarriage of Hindu widows does not directly arise. Section 2 of the Act says that when a widow contracts a second marriage she would forfeit allrights to maintenance or inheritance from, or in, her late husband's property.
Ever since the year 1889 the Allahabad High Court has held as would appear from the case of -- 'Har Saran Das v. Nandy, 11 All 330 (B), that Section 2 of the Act did not apply to the case of a widow whose re-marriage was permitted by her caste. In that case the parties belonged to the sweeper class and there was no legal obstacle or hindrance either by law or custom against remarriage. Straight J. who delivered the judgment of the Bench held that 'as there was no hindrance to a second marriage it must be taken that this condition of things has been existing in the year 1856 (when Act 15 of 1856 was passed).'
As the Act was an enabling Act intended to remove obstacles in the case of persons who could not re-marry, it was held that the Legislature did not intend that this Act should be applied to persons who could marry a second time before the Act was passed. There was . no proof or discussion as to whether there was any custom regarding forfeiture of the first husband's property onthe re-marriage of the widow. This case has been followed though not without dissent occasionally, in later decisions of that High Court. But all the other High Courts have expressly dissented from it and taken a contrary view. It should, however, be noticed from the judgment of Sulaiman C, J. who was a party to the Full Bench decision in --'AIR 1932 All 617 (A)' that such a custom is prevalent in that area. His Lordship observed:
'In most cases where a custom of re-marriage was established, the right to retain the estate was also put forward and upheld. Indeed, no case has been brought to our notice where a custom of re-marriage was established and yet the widow was held not to be entitled to retain the estate of her deceased husband.'
5. So far as the other States in India are concerned the point has never been disputed that such re-marriage entails forfeiture of all interest in the deceased husband's estate. The earliest record of such a custom is to be found in Sir Thomas Strange's Hindu Law of 1830 where it is pointed out that in all cases where re-marriage was permitted by usage or otherwise, the second marriage entailed the forfeiture or divesting of the widow's estate. The earliest reported decision of the Madras High Court on the subject is --'Murgayi v. Verramkali', 1 Mad 226 (C), a decision of the year 1877, where their Lordships proceeded on the principle enunciated in Smriti Chandrika, Ch. 11, Section 1, paragraph 4 that a widow takes a life interest of her deceased husband's estate as she is a surviving portion of her husband. When a widow re-marries the fiction upon which the right to enjoyment is founded ceases and their Lordships observed:
'So far as the enquiries extended which are embodied in Steele's 'Hindu Castes' it appears that it is the practice of a widow among the Sudra castes of Deccan, on re-marriage, to give up all property to her former husband's relation except what had been given to her by her own parents and we have little doubt that the Jaw in this Presidency will not permit the widow who is re-married and who must be regarded as no longer surviving in her late husband, to lay claim to the property left by him, now in the possession of the daughter who, in default of the widow is the right heir.'
Steele's Law of Castes and Tribes in the Deccan has been accepted for over a century as an authority containing useful information on the usages and customs of the different castes in the Deccan as Risley's Tribes and Castes in Bengal, Croke's Tribes and Castes of the North Western Province and Oudh, and Rattigan's Customary Law of the Punjab.
It is also well-recognised, as was observed by the Judicial Committee in -- 'Ramkishore v. Jainarayan'. AIR 1922 PC 2 (D), that in some parts of northern India and in the Punjab the strict rules of the Mitakshara have not been followed by several castes and families of Hindus and that customs at variance with the strict law of Mitakshara have been consistently followed and acted upon. Such customs relate to a variety of subjects for instance, widows, adoptions, descent of lands and interests in land. It is curious that this Madras decision was not brought to the notice of their Lordships of the Allahabad High Court who were parties to the decision in -- 'Har Saran Das's case (B)' of the year 1889.
The point again came up for consideration before a Full Bench of the Calcutta High Court in -- 'Matungini Gupta v. Ram Rutton', 19 Cal 289 (E), where it was held by a majority of the FullBench that by her second marriage the widowforfeited her interest in her first husband's estate in favour of the next heir, and reliance was placed upon Section 2, Hindu Widows Remarriage Act of 1856.
In another case of that Court reported in --'Rasul Jehana Begum v. Ramuarun Singh', 22 Cal 589 (F), the Allahabad view was expressly dissented from and the Madras view was followed and it was pointed out that the true position of a Hindu widow inheriting the estate of her husband was not considered in the Allahabad case.
This case was followed by a Full Bench decision of the Bombay High Court in -- 'Vithu v. Govin-da', 22 Bom 321 (G). Farran C. J. in referring the question to a Full Bench pointed out that the Court assumed in --'Har Saran's case (B)', that the Legislature did not intend to extend the operation of Act 15 of 1856 to widows who could remarry by custom and that assumption was without basis. His Lordship further observed that it is equally probable that the Legislature intended to assimilate the Hindu Law in this particular in all cases and to make the law as administered accord with the true principles of Hindu law, and that it is not allowable to cut down the express provisions of the law by a consideration of the supposed intention of the Legislature in passing it. Ranade J., in delivering the judgment of the Full Bench pointed out that Section 2 of the Act deliberately used more general words, in order to remove any divergence between the status of a woman who contracted a second marriage according to the custom of her caste, and a widow who took advantage of the Act.
6. The course of decisions in these High Courts has been uniformly in favour of the view first propounded in -- 'Murugayi v. Veramkal (C)'. See-- 'Koduthi v. Madu', 7 Mad 321 (H), a case of Lingait Goundans. In -- 'Venkatachalam Chetty v. Rama Mudali', AIR 1920 Mad 224(1) (I), it was held that a re-married Hindu widow was incompetent to enter into a consent decree so as to bind her former husband's estate as she represents that estate only so long as it is vested in her and ceases to represent it when she has divested herself of it.
In -- Vijayaraghava Pillai v. Ponnammal', AIR 1932 Mad 120 CJ), widow alienated her husband's estate and subsequently got re-married. It was held that the estate of the alienee terminated on such re-marriage and did not enure for the lifetime of the re-marrying widow.
The dissenting judgment of Seshagiri lyer J., in-- 'Tayaramma v. Sivayya', AIR 1919 Mad 854 (FB) (K) has, however, been relied on by the learned Judges of the Allahabad High Court as supporting their view, but that case is clearly distinguishable as the point that arose for decision there was whether a Hindu widow who subsequently became a Mohammedan and married a Mohammedan, forfeited her interest in her first husband's estate. That, case arose under Act 21 of 1850, and Seshagiri Iyer J. differing from the majority view held that the forfeiture of an estate under the Hindu Law did not extend to the case of a widow who renounced Hinduism. There is, however, no decision by the learned Judge on the proposition that a Hindu widow forfeits her estate on re-marriage with a Hindu.
Wallis C. J. in expressing his approval of the previous decisions observed (at page 860 of the report) that
'the retention by a widow of her deceased husband's estate is altogether incompatible with her renunciation of her status as his widow.'
See also -- 'Sreeramulu v. Krishnamma'. 26 Mad143 (L) and -- 'Gajapati Naidu v. Jeevammal', AIR 1929 Mad 765 (M).
7. The Calcutta High Court has similarly adopted the view expressed in -- 'Rasul Jehana Begum's case (FJ' in a number of subsequent decisions. In -- 'Ganga Prasad v. Ramasrey Sahu', 38 Cal 862 (N), the question was whether a Hindu widow, if re-married, loses her right to act as guardian of her infant son by her first husband. Section 3, Hindu Widows Remarriage Act came up for interpretation and their Lordships held that the Court had a discretion to remove a Hindu, mother from the office of guardian of the children of her first marriage after she was married. But the view that she forfeits her interest in the estate of her husband was approved, and -- 'Murugayi's case (C)' was followed.
In -- 'Nityamadhab Das v. Sreenath Chandra', 8 Cal L J 542 (O), it was held that the alienation by a widow ceased to have effect after her remarriage as she had forfeited her estate. To the same effect are the cases of -- 'Gouri Churn v. Sita Patni', 14 Cal W N 346 (P) and -- 'Santala. Bewa v. Badaswari Dasi', AIR 1924 Cal 98 (Q), where the entire case-law has been reviewed. Their Lordships recognised the well-established custom of forfeiture when they observed: 'Much support is lent to this view by the fact that in almost all castes in which re-marriage is.allowed by custom such marriages are followedby forfeiture of the first husband's estate.'
8. The Full Bench decision in -- '22 Bom 321 (G)' has been followed in another decision of that Court reported in -- 'Panchappa v. Sengam. Basawa', 24 Bom 89 (B), where it was held that a widow after re-marriage cannot give in adoption, her son by her first husband. In -- 'Fakirappa v. 'Savitrewa Sangappa', AIR 1921 Bom 1 (FB) (S), it was held that apart from the Hindu Widows Re-marriage Act of 1856 a Hindu widow loses all power of giving her first husband's son in adoption because her connection with the family of the husband which is necessary for the act of giving in adoption ceases on re-marriage.
In -- 'Pranjivan v. Bai Bhikhi', AIR 1921 Bom 57 (T), it was held that such a woman was not entitled to succeed as a Gotraja as the relation of Sapindaship was in the family of her first husband. Macleod C. J. observed that on her remarriage she was dead so far as her first husband is concerned and
'she could not be resuscitated so as to be considered as his Gotraja Sapinda.'
9. The Nagpur High Court also has taken the same view. In -- 'Sitaram v. Laxman', 17 Ind Cas 133 (Nag) (U), it was held that a widow who contracts a valid re-marriage in accordance with a custom of her caste is transferred from the gotra of her deceased husband to that of her second husband by re-marriage, & 'ipso facto' forfeits all interest in any estate which she may have inherited from the former in favour of the next heir or reversioner of the deceased. In -- 'Mt. Sheokabai v. Ganpat', AIR 1925 Nag 1 (FB) (V), the question was whether a Hindu after re-marriage could take part in an act of adoption & it was held that on re-marriage her connection with the family of her first husband ceased and she was incompetent to make an adoption of her son through the first husband as it was opposed to the fundamental principles of Hindu Law. See also -- 'Laxman v. Gundaji', 7 Ind Cas 543 (Nag) (W).
10. The Hyderabad High Court also has, in a very recent case, -- 'Basappa v. Parwatamma', AIR 1952 Hyd 99 (FB) (X), held that a second marriage though allowed by custom involved a forfeiture of the widow's rights in the property of her deceased husband, unless a custom to the contrary was proved.
11. In -- 'Mst. Parji v. Mangta', AIR 1930 Lah 1023 (Y), it was held by Jai Lal, J. that Act 15 of 1856 had no application to the case of a remarriage according to caste custom and that the widow who contracted such a marriage lost her right according to the general custom of the province, which conclusion appears to be supported by the customary law of Ambala District. It was also held that it was for the widow to prove a special custom that she did not lose her title to succeed to the property of her first husband.
12. The Patna High Court has consistently adopted the view of the other High Courts discussed above. The earliest case reported is that of -- 'Suraj Jhot v. Attar Kumari', AIR 1922 Pat 378 (Z), where it was held that though re-mama age was permitted by caste custom she forfeited her estate which she had inherited from her deceased husband and that Section 2, Hindu Widows Re-marriage Act applied to all persons who, being Hindus, became widows. See also -- 'Sheo Bharan v. Mst. Bhogea', AIR 1918 Pat 590(1) (Z1).
13. It would appear therefore on a review of these decisions that in all States except Allahabad the view that a Hindu widow re-married according to caste custom forfeits her interest in the estate of her deceased husband has been adopted, and that the onus is on her to establish a custom to the contrary. Even in the Allahabad High Court where the contrary view has gained ground dissent has been expressed against the soundness of the view propounded in -- 'Har Saran Das's case (B)'. See for instance -- 'Gajadhar v. Kaunsilla', 31 All 161 (Z2), where Banerji J. observed:
'Had the question not been concluded by this Court I should be inclined to accede to the contentions of Pandit Sunderlal. But, as the course of the rulings of this High Court has been uniform, I feel myself bound by these rulings whatever my personal opinion may be.'
The same doubt was expressed in -- 'Mangat v. Bharto', AIR 1927 All 523 (Z3). Our attention was also drawn to the case of -- 'Roopa v. Ladu', AIR 1953 Ajmer 45 (Z4), where it was specifically found that the custom of forfeiture had not been made out and that the onus was upon the party asserting the existence of such a custom. But as I have already pointed out we see no reason to depart from the current of decisions which apply to this State as we are satisfied that wherever re-marriage of widow is allowed by custom their rights to the estate of the deceased husband are taken away by the same custom -- See 'Banerji's Tagore Law Lectures, p. 313'.
As Mitra in his treatise on the Hindu widow points out, at p. 214, the correct rule is that the incidents connected with re-marriage according to custom must be governed by the same custom; and the custom recognised by all High Courts except that of Allahabad is that the widow on her remarriage forfeits the estate of her former husband. By re-marriage the widow loses the Gotra of her deceased husband and ceases to be his 'Patni'. Consequently it seems to follow that she is not entitled to retain the property of her first husband. I have been unable to find any case in the Allahabad series where such a custom has been proved. It seems to have been assumed that a custom against forfeiture prevails in that area but we see no reason to hold that that principle should be extended to other areas.
14. It was then urged by Mr. Roy that under the Hindu law unchastity of a widow does not lead toner being divested of her first husband's estate. Can it be supposed that when she re-marries she would forfeit the estate of her husband? Great reliance was placed on the decision of the Judicial Committee in -- 'Moniram Kolita v. Kerry Kolitany',. 7 Ind App 115 (PC) (Z5). All that was decided, in that case was that an estate once vested by succession or inheritance is not divested by any act which before succession, or incapacity would have formed a ground for exclusion from inheritance. It was further held that the Hindu law texts neither expressly, nor by necessary implication, supported the doctrine that the estate of a widow once vested is liable to forfeiture by reason of unchastity subsequent to the death of her husband.
Their Lordships of the Judicial Committee were careful to point out that the result might have been different if the widow had been degraded or deprived of her caste, for degradation implies that a Hindu, whether male or female, is considered as dead so much so that libations are to be offered to his manes as though he were naturally dead, and such degradation would cause an extinction of all interest in his property. There is a distinction between mere unchastity and degradation. It is thus clear that the Hindu law does not tolerate unchastity and if the unchastity be such that it results in degradation she will equally forfeit her right to her deceased husband's property. It is, therefore, fallacious to think that an unchaste widow can retain the property while if she re-marries she forfeits.
14a. We find that there is no custom proved in this case one way or the other and that the Mitakshara rule regarding forfeiture of a widow's estate, on her re-marriage, obtaining in the territories subject to the jurisdiction of this Court is the same as that prevailing in Madras, Bengal, Bihar and Bombay areas. We do not see any reason to depart from this rule and would accordingly affirm the judgment of the Court below and direct that this appeal should be dismissed.
15. Before parting with the case we should, like to record our appreciation of the fairness with which learned counsel for the appellant has argued the points and placed all the decisions bearing on the subject. The appeal is dismissed, but we make no order as to costs.
16. I agree.