1. In this case the plaintiff sued to recover possession of the land in question as purchaser from Ponnammal, whose interest in it was as widow of one Poongavana Gownden. It is admitted that his purchase was only of the widow's interest and could not bind the husband's estate. After the date of the plaintiff's sale-deed Ponnammal married again. Defendant 2, who is Poongavana Gownden's mother, contended that on Ponnammal's re-marriage the reversion to Poongavana Gownden's estate fell in to her and that the plaintiff's purchase was no longer of any effect. She and her alienee, defendant 4, contested the suit. The District Munsif made a decree for the plaintiff; but on appeal that was reversed by the Subordinate Judge who found as a fact that Ponnammal had married again after her sale to the plaintiff, disagreeing on that point with the District Munsif. There was a second appeal to this Court, which was disposed of by Odgers, J., as involving only a question of fact and therefore dismissed. The present appeal is against that decision.
2. It is urged for the plaintiff, who is the appellant here, that Ponnammal's re-marriage did not put an end to his rights in virtue of his purchase and that his rights continue until Ponnammal's death. It is not disputed that in the caste to which Ponnamnml belongs re-marriage of widows is permitted by custom, and the fact that Ponnammal married a second husband after her sale to the plaintiff cannot now be disputed. Nor is it disputed for the plaintiff that Ponnammal's interest in her first husband's estate as his widow would ordinarily come to an end with her re-marriage as with her death; but to that an exception is urged, viz., that her second marriage could not affect the plaintiff's rights as purchaser from her so as to cut them short before her death. It is well known that a Hindu widow's estate in her husband's property is in some ways more than a. life estate. But it is not an estate for life: it is an estate which determines either by her death or by her re-marriage or by surrender. Mr. Krishnaswami Aiyar for the plaintiff has urged before us that, if a widow's estate comes to an end by re-marriage, then that does not affect the rights of an alienee from her until her death any more than the surrender of her estate could do so. He asks us to apply to this case the analogy of a widow's surrender of her estate to the next reversioner. There is no question that, so far as this Court is concerned, it is well settled that a widow cannot alienate her interest in her husband's estate and then defeat that alienation by surrendering her interest in the estate to the next reversioner--Sub-bamma v. Subramananyam,1 Sundarasiva Rao v. Viyyamma2 and Singaram Chettiar v. Kalyanaundaram Pillai.s Mr. Krishnaswami Aiyar asks us to say that, if a widow cannot defeat her alienee by surrendering her estate to the next reversioner, likewise she cannot defeat her alienee by marrying a second time. I think that this argument from analogy is very unsafe. There are obvious distinctions between the position of a surrendering widow and of a re-marrying widow. A widow who surrenders her interest in her husband's estate to the next reversioner is none the less his widow: she remains a member of his family. But a widow who marries a second time is no longer in effect the widow of her first husband; she has left his family finally: she has become a member of another family. And we must remember, as has often been pointed out, that the right of a widow to surrender her interest in her husband's estate to the next reversioner depends upon judicial decisions, and Courts in adopting and approving and enforcing the results of such surrenders have felt it necessary to guard against this development of the law being put to fraudulent uses. They have felt it necessary to lay down that a widow cannot alienate her interest one day and take the proceeds and next day in collusion with the reversioner surrender her interest to him and so defeat her alienation. It is necessary that Courts should not allow a development of the law to which they have given countenance to be turned into an instrument of fraud. But the re-marriage of Hindu widows and its incidents are matters of custom or of legislation; and the Courts have no power to restrict such rights of re-marrirge or the incidents of re-marriage or to qualify them in any way. Moreover, as Mr. Venkatarama Aiyar has pointed out, it is one thing to say that a widow shall not be allowed by her surrender to cut short the effect of a grant, which she has herself made within her powers, and quite another thing to say that, when her own estate has come to an end by re-marriage, nevertheless something which she has carved out of that estate by grant shall somehow be prolonged for a further period. In my opinion this supposed analogy between a surrendering widow and a re-marrying widow is of very little help to us.
3. It is better for us to turn to the language of Section 2 of the Hindu Widows' Re-marriage Act, which Mr. Krishnaswami Aiyar admits covers this case, although this is a case where a widow could re-marry by the custom of her caste. I agree with Mr. Krishnaswami Aiyar that we must be very careful in interpreting that section, not only because it imposes a forfeiture, but also because it is in itself an exception to the more general rule laid down in Section 5 of the Act. Section 2 provides:
All rights and interests which any widow may have in her deceased husband's property by way of maintenance or by inheritance to her husband...shall upon her re-marriage cease and determine as if she had then died.
4. Now on their face the words 'as if she had then died' appear to indicate that the intention of the Legislature was that the same consequences should follow on her remarriage as would follow on her death. It cannot be denied that on the death of Ponnammal, if she had not re-married, such an alienation as the one she made in favour of the plaintiff would have no longer any effect against contesting reversioners. But Mr. Krishnaswami Aiyar has laid stress upon the fact that the words in that section are 'any rights or interests which the widow may have in her deceased husband's property,' not 'any rights which she may have or may have had'; and he contends that the section means that the only rights affected are those rights which a widow still has at the time of h'er second marriage and that they do not include any rights which she has alienated before her re-mar-riage. Grammatically I think it is, possible to put that interpretation on that part of the section as it stands; but, when we are interpreting a section, we must be careful to read the whole of it. The concluding words of the section are to my mind very enlightening on this point. They are 'and the next heirs of her deceased husband or other persons entitled to the property on her death shall thereupon succeed to the same'--thereupon in this connection meaning 'on her re-marriage.' Now 'the property' mentioned in these concluding words of the section, if we look back to the earlier part of the section, must mean her deceased husband's property. That I think is incontestable. The conclusion, of the section is that the next heirs 'shall thereupon succeed to the same.' The words 'the same' 1 think clearly and grammatically mean 'the property,' which is just previously mentioned. The effect of the section is this--that on the re-marriage of the widow the next heirs shall succeed to the husband's property unaffected by any alienation which the. widow could make but which would bind not the husband's estate but only her own, interest in it. When we examine the whole section carefully, 1 do not think it is possible to put upon it the construction which Mr. Krishnaswami Aiyar urges us to put on it. Nor do 1 think that we are assisted in the question before us in this case by any of the decisions to the effect that the section does not affect rights of inheritance which may come to the widow in future, for instance, any right of inheritance to her son after the date of her second marriage.
5. But, if there were any difficulty about the grammatical interpretation of the section, it would be justifiable for us to consider whether the interpretation, which Mr. Krishnaswami Aiyar would have us put upon it, that the second marriage of the widow does not itself have any effect upon alienations made by her before that marriage, is consistent with the policy of the section. Now I do not think it can be denied that the intention of the section is that a Hindu widow who marries a second time shall no longer derive any benefit from her first husband's estate but that the benefit of that estate shall go to the next reversioner. If we accepted Mr. Krishnaswami Aiyar's interpretation of the section, that intention could be most easily defeated. If a widow, who had decided to marry a second time to-morrow, could sell the whole of her interest in her first husband's estate to-day and take away the proceeds with her for her own benefit or that of her second husband, and her alienee, could go on enjoying the first husband's property until her death, the object of the section would be entirely defeated. And we should get to the absurd position that the widow could create an estate for her alienee, which she herself could never have enjoyed, and that she could prolong that estate long after her own interest in her first husband's estate had finally determined. The interpretation proposed by Mr. Krishnaswami Aiyar, examined in that way, will be seen to make it possible that the section should be defeated and turned into absurdity.
6. But this is not a new question. We need not depend entirely upon our own views of the matter, though we have had the benefit of a long and interesting argument upon it. A Bench of this Court in Mutku Naicken v. Srinivasa Aiyangar decided that an alienation made by a widow of her husband's estate not for necessity binding on that estate had no effect against the reversioners from the moment she married a second time. That decision is, I think, binding upon us, and I cannot agree with Mr. Krishnaswami Aiyar that we are entitled to disregard it because there is no very elaborate discussion of Section 2 of the Hindu Widows' Re-marriage Act in it. That section is referred to by the learned Judges, and they obviously base their decision upon their interpretation of it. Mookerjee, J., in 1907 gave a similar decision in Nitya Madhav Das v. Srinath Chandra Chuckerbutty.6 The same view was expressed, no doubt obiter, by Bhashyam Aiyangar, J., in Sreeramulu v. Kristamma?. And it may also be noticed that in Motungini, Gupta, v. Ram Rutton Roy7 Petheram, C.J., referred to the estate which a widow takes by inheritance from her husband as being determined by her re-marriage. Both reason and authority therefore appear to me to be against Mr. Krishnaswami Aiyar's contentions.
7. In my opinion the decree of the learned Subordinate Judge was correct, and this appeal should be dismissed with costs.
Anantakrishna Aiyar, J.
8. I agree. Though the learned Judge before whom the second appeal came on. for hearing disposed of it by saying 'this is entirely a question of fact and there is no question of law,' it is clear that an important question of law arises in the second appeal. The plaintiff as the purchaser from the 1st defendant, the widow of the last male owner, sued to recover possession of the properties in suit; 2nd defendant is the mother of the last male owner; 4th defendant is the alienee from the 2nd defendant, and 3rd defendant is the grandmother of the last male owner. The question whether the first defendant did in fact re-marry or not is now set at rest by the finding arrived at by the Lower Appellate Court that she did re-marry P.W. 5, though 1st defendant as well as P.W. 5 denied the factum of re-marriage. We have got the evidence of D.W. 5 (the Nattamaigar) on the side of defendants which the Lower Appellate Court has believed, and I think that this question of re-marriage should be taken to be concluded by that finding; and in fact the learned Advocate for the appellant seriously discussed only the question of law that arises on that finding.
9. The learned Advocate for the appellant argued that on a proper construction of Section 2 of the Hindu Widows' Re-marriage Act, a purchaser from such a widow before her re-marriage does not lose the rights in the life-estate already conveyed by the widow so long as the widow is alive, even when, as here, the sale was not for purposes binding on the reversioners. Now, the nature of a widow's estate under Hindu Law has been described by the Privy Council in Moniram Kolita v. Kerry Kolitany It is a peculiar kind of estate not having any real analogy to estates known elsewhere. The learned Advocate1 argued that in construing Section 2, it would be relevant to bear in mind the fact that this Court has held that after a sale of any property forming part of her husband's estate, if a Hindu widow should surrender her husband's estate to the next reversioner, then the rights of such transferee are not affected by the surrender, and he invited us to hold that the same should be the result when such a widow makes an alienation and then remarries. On the other hand, the learned Advocate for the 2nd defendant and her alienee invited us to bear in mind the decision of the Full Bench of this Court in Vaidyanatha Sastri v. Savithri Ammal, where it was held that when, after an alienation by a widow, she adopts a son to her late husband, the adopted son is not bound by the alienation, unless the alienation be for purposes binding upon the last male-holder's.' estate, but could get possession from the alienee before the widow's death. For my part, I should like to approach the decision of this case by examining the wordings of the Hindu Widows' Re-marriage Act. The first sentence of Section 5 enacts:
Except as in the three preceding sections is provided, a widow shall not, by reason of her re-marriage, forfeit any property or any right to which she would otherwise be entitled.
10. Section 2 is therefore an exception, and according to ordinary rules of interpretation, exceptions should not be enlarged in their scope more than what their wordings properly justify. I agree with the learned Advocate for the appellant so far. But when the learned Advocate asks us to hold that the effect of Section 2 is to work a forfeiture only with reference to any property of her late husband which she may actually have in her possession at the time of the re-marriage, I think that the wordings of the section do not support such a contention. The first portion of the section refers to the rights and interests which a widow may have in her deceased husband's property, and provides that they shall determine upon her re-marriage as if she had then died. Assuming that there would have been difficulty if the section had stopped there, we have got in the section further words which seem to me to lead strongly against the inference which the learned Advocate for the appellant asked us to draw. They are 'and the next heirs of her deceased husband or other persons entitled to the property on her death shall thereupon succeed to the same.' It is therefore reasonably clear to my mind that what is forfeited upon her re-marriage is the property of her deceased husband, that is, what is called the husband's estate. In cases where a portion of the property belonging to the husband's estate had been alienated for purposes binding upon the estate, we must take it that such alienated property no longer forms part of the estate. Having regard to the last portion of the section, I think that the reasonable inference to be drawn is that the widow on her re-marriage forfeits all rights to the properties of her husband and that the next heirs of her deceased husband or other persons entitled to the property on her death shall thereupon succeed to the same. The learned Advocate further argued that having regard to the decisions whch hold that a widow's future rights of inheritance are not in any way interfered with by Section 2, the construction suggested by the respondents' advocate is not tenable. I think that those decisions do not really help us in construing the section with reference to the property which really formed her husband's estate and to which she succeeded on her husband's death. The word 'thereupon' occurring in the section would seem to point out that the object of the Legislature was to affect only 'such rights of inheritance as had already opened, and not future rights of inheritance; and therefore those decisions do not really help us in the present case.
11. The question regarding the construction of this section does not arise for the first time now.
12. In Sreeramulu v. Kristamma6 the learned Judge, Bhashyam Aiyangar, J., construed the section in a way inconsistent with the construction sought to be put upon it by the learned Advocate for the appellant. I also find that incidentally Kumaraswami Sastri, J., had also occasion to construe the general scope of the section. I find that in the case in Vaidyanatha Sastri v. Savithri Ammal this is what the learned Judge says:
I find it difficult to see how the purchaser from a Hindu widow who has only limited powers of alienation and who alienates property without any necessity or justifying circumstances such as would bind the reversioners after her death or re-marriage can invoke any principles of Hindu Law or any equity to prevent, etc.
13. Again, at page 101, he says:
It is difficult to see why a purchaser who purchases without any necessity for the sale and who knows that death or re-marriage would put an end to her rights should be encouraged, etc.
14. No doubt, the learned Judges had not to decide any question directly arising out of Section 2, but I take these observations as helping me, to some extent, in my construction of Section 2 of the Act, and as showing how the learned Judges understood the section.
15. In Nitya Madhav Das v. Srinath Chandra Chuckerbutty Sir Ashutosh Mookerjee, J., of the Calcutta High Court, has gone elaborately into the question and has construed that section; and with respect, I adopt his construction. In Allahabad it is true, as was pointed out by the learned Advocate for the appellant, the course of decisions would seem to be in favour of the construction he suggests. But in Mula v. Partab10 the learned Chief justice and Banerj,ee, J.--as I understand their judgment--gave it as their opinion that but for the course of decisions in that Court they would not be prepared to adopt that construction. But' there is something more direct than all the above to help me in deciding this case; for in Muthu Naicken v. Srinivasa Aiyangar11 a Bench of this Court had to decide exactly the very same question that we have to decide in this case. The learned Judges, Abdur Rahim and Krishnaswami Aiyar, JJ., no doubt did not think it necessary to discuss the wording of Section 2 as elaborately as they would undoubtedly have otherwise done but for the fact that their attention was drawn to the case in Nitya Madhav Das v. Srinath Chandra Chuckerbutty,5 where the wordings of Section 2 were discussed by the learned Judge Mookerjee, J., of the Calcutta High Court, and their Lordships were content to refer to that case and adopt the reasoning contained therein. One thing that struck me in the course of the arguments advanced before us by the learned Advocate for the appellant is this--why should purchasers of properties from a widow be made to suffer in case of her re-marriage, more than in the case of a surrender by her subsequent to the alienation? The answer to that seems to be supplied by Kumaraswami Sastri, J., in the course of his judgment in Vaidyanatha Sastri v. Savithri Animal.9 This is what the learned Judge says:
Reference has been made to cases where it has been held that a reversioner to whom the widow surrenders the estate (and thereby accelerates the succession) cannot sue to set aside the alienation made by her till she dies. These cases have in my opinion no bearing or application to cases of adoption by the widow. The whole doctrine of surrender and consequent acceleration of the estate of the reversioners has no basis in Hindu Smritis but has been evolved by courts of justice on general principles of jurisprudence.... It is clear that the surrender by the widow and the acceptance of the estate by the reversioner are purely matters of contract.
16. The law of surrender as administered by Courts being thus the result of practically Judge-made law, and being also materially shaped by principles of justice, equity and good conscience, Courts have held that in deciding questions relating to surrender, principles of justice, equity and good conscience should be borne in mind. But I doubt whether that reasoning would apply to cases where a Hindu widow ceases to represent the estate of the last male-holder--her husband--by reason of her re-marriage. If any analogy is permissible, I am inclined to think it is the analogy of cases relating to adoption,--where Courts have held that an alienation made by a widow, for purposes not binding on the estate, would not be binding on the adopted son, even though the adoption is made subsequent to such alienation, and that the adopted son would at once be entitled to possession of such property.... But it is enough to state that in the case before us we are bound by the provisions of the Statute, and having given my best consideration to the arguments advanced before us, I ami of opinion that nothing material has been urged which would justify us in coming to a conclusion contrary to the decision in Muthu Naicken v. Srinivasa Aiyangar.11
17. I agree with my learned brother that this Letters Patent Appeal should be dismissed with costs.