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Dulhabh Seth and anr. Vs. Bharat Seth and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtOrissa High Court
Decided On
Case NumberSecond Appeal No. 16 of 1950
Judge
Reported inAIR1954Ori212; 20(1954)CLT323
ActsHindu Widows' Re-marriage Act, 1856 - Sections 2; Limitation Act, 1908 - Schedule - Articles 142 and 144; Hindu Law
AppellantDulhabh Seth and anr.
RespondentBharat Seth and ors.
Advocates:P.C. Chatterji, Adv.
DispositionAppeal dismissed
Excerpt:
- motor vehicles act, 1988 [c.a. no. 59/1988]section 173(1) proviso; [d. biswas, amitava roy & i.a.ansari, jj] appeal without statutory deposit but within limitation/or extended period of limitation maintainability - held, if the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. the provision of sub-section (1) of section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. the period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. it, therefore, appears that an appeal filed under section 173 cannot..........is covered by ample authority and needs no discussion. even otherwise if section 2 of the hindu widows remarriage act, were to be applied the widow would forfeit her right as mother, but as she entered into possession as limited owner her subsequent possession would not be changed in the absence of evidence of a change of her animus. all that has been proved in this case is that she continued in possession, and nothing more. we are therefore unable to hold that the character of her possession underwent a change at any time during the period when she was enjoying the properties. 2. in our opinion the courts below have taken the right view of the law and we see no reason to interfere. the appeal is dismissed but as there is no appearance for the respondent there will be no order as to.....
Judgment:

Panigrahi, C.J.

1. This appeal arises out of a suit by the rever-sioners for possession of certain lands which were till recently in the possession of one Kausalya. Kausalya succeeded to the properties on the death of her son Kartick in 1905. Kartick died unmarried and issueless. In 1907 Kausalya re-married one Bigna Sethi and through this union Bakul, the father of the defendants (appellants) was born. Kausalya died in 1946, and the suit outof which this appeal arises was filed on 14-2-1946 by the reversioners of Kartick.

The plea taken on behalf of the defendants is that Kausalya forfeited her right to the suit lands on her re-marriage and that she prescribed for an absolute title by reason of her possession after remarriage, such possession Having become adverse to the true owners. It is admitted that second marriage of widows is permitted in the caste to which the parties belong. It is also undisputed that Kausalya's possession was that of a mother and that her interest in the properties of Kartick was only a limited interest. The question is whether Kausalya forfeited her interest in her son's property by reason of her re-marriage and, if so, whether her possession became adverse from the date of her re-marriage.

The rule of Hindu law which lays down that a widow; on her re-marriage, forfeits her interest in her husband's estate applies only to a widow as such and is not applicable to a widow who succeeds as mother. This position of law is covered by ample authority and needs no discussion. Even otherwise if Section 2 of the Hindu Widows Remarriage Act, were to be applied the widow would forfeit her right as mother, but as she entered into possession as limited owner her subsequent possession would not be changed in the absence of evidence of a change of her animus. All that has been proved in this case is that she continued in possession, and nothing more. We are therefore unable to hold that the character of her possession underwent a change at any time during the period when she was enjoying the properties.

2. In our opinion the Courts below have taken the right view of the law and we see no reason to interfere. The appeal is dismissed but as there is no appearance for the respondent there will be no order as to costs.

Mohapatra, J.

3. I agree.


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