1. I agree with the conclusion of Krishnan, J., in his Order of Eeference that, independently of Section 2 of Act XV of 1856, the widow of a Hindu forfeits her husband's estate on re-marriage. This was in my opinion decided by this Court in Murugayi v. Viramakali I.L.R. (1877) Mad. 226, a decision which, as I shall show, has been repeatedly approved in this and other High Courts. That decision did not, as was contended before us, proceed on any proof of a custom of forfeiture on re-marriage in the particular caste, but on general principles of Hindu Law, though in support of its conclusion the Court referred, as the Bombay Court did in a later case, to the fact that the extensive enquiry the results of which are recorded in Steele's Hindu Castes showed that among the very numerous classes of Hindus who practised re-marriage in the Deccan such a forfeiture was an invariable incident of re-marriage. Following and relying on the decision of this Court, Wilson and Banerji, JJ. Matungini Gupta v. Ram Rutton Roy I.L.R. (1891) Cal. 289 in their Orders of Reference, to which they adhered in their subsequent judgments, expressed the opinion that Section 2 of Act XV of 1856 was merely declaratory, and the same view was expressed in Rasul Jehan Begum v. Ram Surun Singh I.L.R. (1895) Cal. 589 and by Ranade, J. delivering the judgment of the Pull Bench of the Bombay Court in Vithu v. Govinda I.L.R. (1896) 23 Bom. 321. In Har Saran Das v. Nandi I.L.R. (1889) All. 330, which was followed in Ranjit v. Radha Rani I.L.R. (1898) All. 476 it was held that a widow who according to the custom of her caste was entitled to re-marry did not forfeit her husband's estate on remarriage on the ground that the case was not governed by Section 2 of Act XV of 1856. The contention that the estate was liable to forfeiture independently of the section was not raised in those cases. When it was raised by Pandit Sundar Lall in Gajadhar v. Kaunsilla I.L.R. (1908) All. 161 Stanley, G. J., and Bannerji, J., were inclined to accept it but for the earlier decisions, as to which they again expressed their doubts in Mula v. Partab I.L.R. (1909) All. 489. Abdul Aziz Khan v. Nirma I.L.R (1913) All. 466 only followed the earlier decisions without comment. The decision in Murugayi v. Viramakali I.L.R. (1877) M. 226 has therefore been approved by the Calcutta and Bombay Courts, and would have been approved by Stanley, C.J., and Bannerji, J., in Allahabad but for the earlier decisions of that Court. I think we should be very slow to interfere with a decision which has stood so long and is supported by so much authority, and with great respect I cannot agree with the conclusion of a Bench of this Court in Second Appeal No. 1510 of 1916, (1918) M.W.N. 274 that it must be considered to have been overruled by the decision of the Privy Council in Moniram Kolita v. Keri Kolitani I.L.R. (1880) Cal 776 that a Hindu widow does not forfeit her widow's estate by reason of unchastity committed after succeeding to the estate. In Matungim, Gupta v. Ram Rutton Roy I.L.R. (1891) Cal. 289 that contention was overruled by Wilson and Bannerji, JJ. with whom I respectfully agree. No. question of re-marriage was raised before the Privy Council and, as observed by Wilson, J. there is a very broad distinction between misconduct on the part of a widow as a widow, and her ceasing to be a widow. In this state of the authorities I think the decision in Murugayi v. Viramaka I.L.R. (1877) M. 226 ought not to be overruled by this Court.
2. Considering the question apart from authority, I am of the same opinion. In his Principles of the Hindu Law, page 178 (1st edition) Mr. Ghose cites a text of Manu IX 191, ' But if two (sons) begotten by two (different men) contend for the property (in the hands) of their mother, each shall take to the exclusion of the other, what belonged to his father.'' And he also cites another text to the same effect attributed to Vishnu but not to be found in the recension that has come down to us. These texts can hardly refer to the estate which the widow took only in default of male issue. But whatever may have been the rule in archaic times when re-marriage was permitted, I think, considering the ideas which in later Hinduism underlay the prohibition of widow re-marriage as far as possible and the encouragement of sati, that the retention by a widow of her deceased husband's estate is altogether incompatible with her renunciation of her status as his widow; and I respectfully agree with the opinion of the Bombay High Court in Vithu v. Govinda I.L.R. (1896) 22 Bom 321, that the invariable rule among sol many castes in the Deccan that remarriage when permitted, entailed the forfeiture of the first husband's estate is merely an illustration of that essential incompatibility, which was again recognised by the legislature when it enacted Act XV of 1856. As regards Act XXI of 1850 I agree with the opinion of Wilson, J, in Matungini Gupta v. Ram Rutton Roy I.L.R. (1891) Cal. 289, that, though that Act relieved the widow of a Hindu from forfeiture of her widow's estate on her abjuration of Hinduism, it did not enlarge the nature of that estate, so as to relieve her from forfeiture in the event of her renouncing her statusjof'widow by re-marriage.
3. The construction of Section 2 of Act XV of 1856 is not free from difficulty and has occasioned much difference of opinion, but on the whole, I hesitate to differ from, the liberal construction put upon the section by the Full Benches of the Calcutta and the Bombay Courts, The words, ' any widow, upon her re-marriage' in Section 2 are, I am inclined to think, wide enough to cover the case of any widow of a Hindu re-marrying, whether or not her marriage would otherwise be prohibited by any custom or interpretation of Hindu law; and whether the re-marriage was to a Hindu or to a member of another religion. As observed by Wilson J., the legislature was well aware of the existence of such re-marriages by the widows of Hindus, and must, I think, have considered that the case for enforcing the forfeiture on re-marriage was in the first case as strong as, and in the second case much stronger than the case for enforcing it as regards the re-marriages which were legalized by Section 1. The words 'any widows ' in Section 2 are certainly wider than was necessary, if it was intended to confine the operation of the section to the last mentioned class of marriages only. Having regard to the generality of the language, the fact that the section was in substance though not in form declaratory, and the incongruity which would result from holding re-marriages by the widows of Hindus to persons of another religion to be outside its scope, I think the more extensive and beneficial construction should be adopted. On both grounds, therefore, I would answer the question in the affirmative.
4. We have been asked to answer the question referred in the affirmative (1) with reference to Section 2 of Act XV of 1856 and (2) with reference only to Hindu Law.
5. I regret that I cannot concur in the judgment just delivered and adopt the first of these grounds of decision. The section is worded generally as dealing with the rights and interests of 'any widow.' One construction of this expression, that it includes widows of whatever nationality or creed, has not been pressed and is excluded alike by the language of the preamble of the Act, to which I return, and the incongruity of the results, which it would involve. We have then to assume that the widows in question were originally Hindu widows and to choose between the contentions that the section relates only to those who re-marry as such or that it deals also with re-marriages after apostacy, solemnized by the rites of other creeds.
6. It would follow from the latter construction that the legislature intended to deal in Act XV of 1856 with the problem, not only of Hindu widow re-marriage, but also of disability due to ' renunciation of or exclusion from the communion of any religion', with which it had dealt recently in Act XXI of 1850. Yet the later Act contains no reference, express or implied, to the earlier, although the former declares and the latter exempts from forfeiture and although re-marriage, the event contemplated in the one, would in many cases be connected closely with the renunciation or exclusion dealt with in the other. So also the preamble to Act XV of 1856, which is full, refers only to Hindu widows, to the advisability of enabling Hindus, who may be so minded, to adopt the custom of re-marriage and to the justice of relieving such Hindus and removing obstacles to the re-marriage of Hindu widows; and the references to Hindus in Sections 1, 3 and 6 are clear, the last, in which Hindu ceremonies are prescribed, being particularly unambiguous. The wider construction, for which plaintiff contends, has in fact been based on no explicit extension of the subject-matter of the Act to widows in the other sections, which no doubt include Section 2, and only on the general references in them. In the circumstances, these references must in my opinion be read as qualified by the context. The conjecture of Wilson, J., in Matungini Gupta v. Ram Rutton Roy I.L.R. (1891) Cal 289 that they were intended to apply to the class of widows, who might change their faith, seems to me (with all respect) unwarranted, since, as the learned Judge observes, the legislature knew, not only of the existence of such widows, but also that they could already marry again without its assistance; and there is no reason for the assumption that it intended to deal with their position in an enactment passed statedly to give such assistance to widows, who required it. I am therefore constrained to hold that the Act is inapplicable to the present case and to turn to the general law as a ground of decision.
7. The Hindu law is as this and other High Courts have held since Murugayi v. Viramakali I.L.R. (1877) Mad 296 that a widow's re-marriage entails forfeiture of her husband's estate. And I respectfully agree with the learned Chief Justice that there is no reason for departure from this long current of authority. But those cases dealt with re-marriage by the widow as a Hindu; and it is argued that are-marriage, even after the widow's conversion with the ceremonies of her new faith must be regarded, as it would be by Hindu Law, as no marriage and the widow's conduct as mere unchastity, which with reference to Moniram Kolita v. Keri Kolitani I.L.R. (1880) Cal. 776 entails no forfeiture. This view has been taken lately by a bench of this Court in Second Appeal No. 1510 of 1916 83 M.L.T. 81 and is regarded by Seshagiri Aiyar, J., in his judgment, which I have had the advantage of reading, as consistent with the decision in Sundari Letani v. Pitambari Letani I.L.R. (1905) Cal. 871. But, with all respect, I cannot follow this application of the authorities. The last cited dealt with a case of real unchastity, since the person concerned was not a widow, but had gone through a Mahomedan ceremony of marriage after being deserted, not divorced, by her Hindu husband, who was still alive. And in Moniram Kolita v. Keri Kolitani I.L.R. (1880) C. 776 there was no question of a re-marriage, which could on any view be regarded as legal, but only of a temporary illicit connection. The judgment is based on the ancient text and considerations of convenience. But the former were not dealing, and in the state of contemporary society could have no occasion to deal, with non-Hindu re-marriages; and the latter, based on the insecurity of titles created by the widow, if they could be disturbed on proof of immorality which is essentially secret and which the reversioners would be interested to promote, are irrelevant, when the question is of a connection, contracted publicly and authorized by the general law. I need offer no general opinion at present regarding the effect of the marriage of a Hindu with a non-Hindu woman or the position of their issue. In the case before us, authority being wanting it is sufficient for me to express my respectful concurrence in the ground of decision proposed by the learned Chief Justice, the incompatibility between renunciation of a widow's status and retention of a widow's estate; and I do so the more willingly, because I can thus avoid the conclusion that a marriage is invalid for one purpose, although it is valid for all others.
8. I would answer the question in the affirmative.
Seshagiri Aiyar, J.
9. I regret I am unable to agree with the conclusion of the learned Chief Justice and Oldfield, J. I do not wish to add much to the judgment of myself and of Napier, J. in Second Appeal No. 1510 of 1913 on the question whether Section 2 of Act XV of 1856 would deprive a Hindu widow embracing Muhammadanism and afterwards marrying a Muhammadan of the estate which she inherited from her Hindu husband. I agree generally with Oldfield, J. on this question. The belief that a Hindu widow adds insult to the injury to the memory of her deceased husband by apostacy first and by subsequent marriage with a person belonging to a different faith, is not a ground for reading into Section 2 of Act XV of 1856 words which are not to be found there. The Act was intended to give relief to a certain class of people and not to penalise others; and courts are not at liberty to supply a defect of this kind by indirect legislation. I therefore adhere to the view that I took in Second Appeal No. 1510 of 1916 on the question.
10. On the question of applicability of Hindu Law, I wish to make a few observations in addition to what I stated in the second appeal already referred to. It is said that the Hindu Law does not countenance inheritance by a person who has not been true to the bed of her deceased husband. I do not dissent from this view so long as it can be said that the party against whom this rule of Hindu Law is to be applied is within the pale of that Law. There is a great deal to be said for the position taken up by Mr. Justice Bannerji in Matungini Gupta v. Ram Rutton Roy I.L.R. (1891) Cal. 289, on the question of Hindu Law. But it need scarcely be added that the Hindu widow who has embraced Muhammadanism and has married a Muhammadan is not subject to Hindu Law. In Sundari Letani v. Pitambari Letani I.L.R. (1905) Cal. 871, the Court had to consider the case of a Hindu daughter who had become a Muhammadan and had subsequently married a Muham-madan. The point was whether her children were legitimate and could inherit to the estate of their Hindu grandfather. 'The woman was abandoned but not divorced by her husband''. Her position was thus stated by the learned Judges: 'She is in the position of an unchaste daughter who could not inherit according to Hindu Law'. I think the same principle is applicable to the widow in the present case.
11. There are three incidents in the life of this woman. The first was when she inherited the estate of her husband after his death. In the order of reference Mr. Justice Krishnan says that Section 2 of Act XV of 1856 is based upon a recognition by legislature that a Hindu widow's estate is ordinarily forfeited under the Hindu Law by her re-marriage. Even if I assent to this view, I fail to see how this conclusion touches a re-marriage while the widow has become a Muhammadan convert. It was contended that the right of a' Hindu widow to inherit her husband's property is dependent Upon a text of Brahaspati to this effect 'He who has left a widow surviving him has got the half of his body verily alive, and when half of his body is alive, who else shall take his property ?' The metaphor is undoubtedly picturesque. But it would not be safe to deduce principles of law by parity of reasoning from such a figure of speech. Granting that the reason of a widow inheriting to her deceased husband in preference to divided members of the co-parcenery is based solely on this principle, it can only apply to a state of things whch came into existence on the death of her husband. At that moment either by reason of this figure of speech or by reason of the more prosaic statement of the law contained in Yagnyavalkya Smriti which is to the following effect-' Wife (widow), daughter, father, mother, brothers, their sons gotraja (of the same family), bandhus, disciple and brahmacharins of the same school, each succeeding one is heir in the absence of the person immediately preceding him in the order of enumeration,-this is the law in respect of the inheritance to the property of a sonless deceased person of whatever caste ', the widow inherited the estate. The second stage in her life was her conversion to Muhammadanism which is found to have been subsequent to the death of her husband. If the Hindu Law had not been legislated upon, there could hardly be any doubt that conversion to a different faith would have entailed forfeiture of the estate inherited by the woman. But Act XXI of 1850 which was designed to preserve the rights of persons who exercised their liberty of conscience in entering the fold of another religion, maintained the rights of the widow to continue in possession of her deceased husband's property. Section 1 distinctly says 'so much of any law or usage within the territories of the East India Company as inflicts on any person forfeiture of rights or property or may be held in any way to impair or affect any right of inheritances by reason of his or her renouncing or having been exclude from the communion of any religion ceases to be enforced as law in the Courts of East India Company'. Sounder this Act the widow who had embraced Muhammadanism could not be deprived of the rights which she possessed prior to her conversion. Her inheritance subsisted. The third stage in her career was her marrying a Muhammadan. I fail to see how this step can deprive her of what she obtained under the Hindu Law and what the legislature preserved to her under Act XXI of 1850. I am unable to find anyhing in the Hindu Law or in Act XXI of 1850 which can have this effect. It is hardly necessary to refer to cases in which it has been held that under the Hindu Law properties once vested in a malelor a female cannot be divested by reason of the fact that if the subsequent state of life had existed at the time of the devolution of interest he or she would not have inherited the property. The well known case of Moniram Kolita v. Keri Kolitani I.L.R. (1880) Cal 776 laid down that principle in unequivocal terms. One sentence from the judgment may be quoted as bearing upon conversion. ' The widow has never been degraded or deprived of caste. If she had been, the case might have been different, subject to the question as to the construction of Act XXI of 1850; for upon degradation from caste, before that Act, a Hindu, whether male or female, was considered as dead by the Hindu Law, so much so that libations were directed to be offered to his manes as though he were naturally dead.' Following this decision all the High Courts have held that property onge vested under similar circumstances, cannot be divested. In Abilakh Bhagat v. Bhekhi Mahto I.L.R. (1895) Cal. 864, which was a case of a person becoming insane after inheritance had vested in him, Mr. Justice Ghose said that the principle of Moniram Kolita v. Keri Kolitani I.L.R. (1880) Cal 776 was applicable to that case. In Sanku v. Puttamma (1890) 14 Mad. 289 the same principle was followed. Deo Kishen v. Budh Prakash I.L.R. (1883) All. 509, is also to the same effect. It was a decision of five Judges and they affirm the proposition that under Hindu Law subsequent conduct does not put an end to the rights once properly acquired. Murli Singh v. Jai Singh (1908) 5 All. L.J. 115, follows this ruling. Much reliance was placed in the argument before us on Murugayi v. Viramakali. The judgment is based on custom. It was the case of a person who was within the pale of Hinduism. I fail to see how that case affects the present question. I may draw attention to the observations of Mr. Ghose in his book on Hindu Law wherein hesays that Manu does not lay down that re-marriage while still a Hindu would deprive a Hindu widow of the inheritance once vested in her. Although the principle of dare decicis must be respected, I am not satisfied that in the present case we would be violating the rule of law laid down in Murugayi v. Virama-kali I.L.R. (1977) Mad. 296, by holding that the widow marrying a Muhammadan does not forfeit the estate which came to her Hindu husband. Moreover cases of this description are of rare occurrence, and when a very important principle relating to the applicability of Hindu Law is debated, I fail to see how a single decision, passed forty years ago on a different set of circumstances, can be regarded as binding authority with reference to facts of a totally different character. For all these reasons in my opinion, the answer to the question must be in the negative.