1. The first defendant, a Hindu widow re-married whilst her son was in possession of ancestral property. Subsequently her son died and this action was brought by the heirs of her deceased husband claiming the property of which the son died possessed on the ground that the widow was precluded from succeeding to his property as his heir. The suit was dismissed by both courts following the decision in Akora Seth v. Boreani 2 B.L.R., 199 and this second appeal is now brought by the appellant contending that the first defendant the widow is incapable of inheriting as her son's heir having been re-married.
2. It was decided in 1868 in Akora Seth v. Boreani 2 B.L.R., 199 that Section 2 of Act XV of 1856 (Hindu Widows Re-mariage Act) does not preclude a Hindu widow who has re-married during her son's lifetime from inheriting his property after his death. Sir. B. Peacock in his Judgment says Ibid at p. 205: 'The object of the Act was to remove all legal obstacles to the marriage of Hindu widows. Looking to the words of Section 2, I am of opinion that it was not the intention of the Legislature to deprive a Hindu widow, upon her re-marriage, of any right or interest which she had not at the time of her re-marriage. The words of the section are:--'All rights and interests which any widow may have in her deceased husband's property by way of maintenance to her husband, or to his lineal successors, or by virtue of any will or testamentary disposition conferring upon her, without express permission to re-marry, only a limited interest in such property with no power of alienating the same, shall, upon her re-marriage, cease and determine as if she had then died; and the next heirs of her deceased husband, or other persons entitled to the property on her death, shall thereupon succeed to the same.'
In the present case, at the time of her re-marriage, the property belonged to her son and she had no right or interest in that property. It came to her by inheritance from her son, who died after her re-marriage. If the son had pleased, he might have given the property to his mother, notwithstanding her re-marriage. She had no interest in her deceased husband's property by inheritance to her husband or to his lineal successors. It could not, therefore, cease or determine upon her re-marriage; and if she had died at the time when she re-married the property would never have decended to her. Section 5 to which Mr. Justice Kemp alludes, says that, ' except as in the three preceding sections provided, a widow shall not, by reason of her re-marriage, forfeit any property, or any right to which she would otherwise be entitled and every widow who has re-married, shall have the same rights of inheritance a she would have had, had such marriage been her first marriage The right of inheritance from her son, after her re-marriage, did not, as it appears to me, fall within any of the exceptions referred to in Section 5.
3. This has been followed in Chamar Hari v. Kashi I.L.R., 26 B. 388 [See also Basappa v. Rayava I.L.R. 29 B 91.] and has not been dissented from by any of the High Courts of India from that time to the present so far as we are aware,
4. We agree with the decision and it is now established as the law.
5. The second appeal is therefore dismissed with costs.