1. The suit properties consist of a house and a nanja land of 65 cents in extent. The house originally belonged to one Muthuswami Thevar, the paternal uncle's son of the plaintiff, who died leaving his widow, Madathi and a son Sudalayandi. After the death of Muthuswami, Madathi remarried one Esakki Thevar, the first defendant in the suit in 1932 to whom she begot the other defendants in the suit. After the remarriage of Madathi she purchased 35 cents of nanja lands in the name of Sudalayandi and the remaining 30 cents were purchased by her in her own name. Sudalayandi predeceased his mother. Madathi also died in the year 1960. Under these circumstances the plaintiff filed the suit O. S. No. 351 of 1964 on the file of the District Munsif's Court, Ambasamudram for declaration of his title to the suit properties and for recovery of possession of the same with future mesne profits.
2. The suit was resisted by the first defendant and his children by Madathi defendants 2 to 5, contending that Madathi had purchased 30 cents shown as Item 1 with her own funds that though Sudalayandi purchased 35 cents suit Item 2 with his funds Madathi had succeeded his son Sudalayandi to the said 35 cents and the house which he inherited from his father, Muthuswami Thevar, under the Hindu Succession Act.
3. The trial court decreed the suit holding that the plaintiff has succeeded to the suit properties as the heir of Sudalayandi. On appeal, the lower appellate court had taken the view that the northern 35 cents i.e., suit Item 2 had been purchased under Ex. B-1 with the funds of the estate of Muthuswami in the name of Sudalayandi, while the other 30 cents were purchased under Ex. B-2 with the funds of Madathi got from the second husband, the first defendant, and that in any event the plaintiff had no title to the said 30 cents purchased in the name of Madathi after her remarriage. As regards the house and 35 cents of land in the name of Sudalayandi the lower appellate court held that they have been inherited by Madathi after the death of Sudalayandi and that her remarriage with the first defendant will not disable her from inheriting the same. The lower appellate court also found that Madathi has perfected title by adverse possession to the suit properties and that the suit having been filed more than 12 years after the death of Sudalayandi, the plaintiff cannot seek to recover possession.
4. The substantial point that is urged before me is as to whether Madathi could inherit the properties of her deceased son Sudalayandi, after her remarriage or whether she is prevented from inheriting his properties by virtue of Section 2 of the Hindu Widows Remarriage Act, 1856.
5. It is contended on behalf of the appellant that Section 2 of the Hindu Widows Remarriage Act, 1856 prohibits any widow after remarriage acquiring any right or interest by way of maintenance or by way of inheritance any property of her husband or his lineal successor and provides that the next heirs of the deceased husband or other persons entitled to the property on her death, should succeed to the same. According to the appellant's learned counsel Section 2 specifically prohibits Madathi after remarriage acquiring any right or interest in the property left by her former husband or by his lineal successors and that Section 5 will not save her right of inheritance after remarriage to succeed to the properties left by Sudalayandi as he is the lineal successor of the deceased first husband of Madathi. Section 2 and 5 which are relevant for the present discussion are set out hereunder:
Section 2: Rights of widow in deceased husband's property to cease on her remarriage. All rights and interest which any widow may have in her deceased husband's property by way of maintenance, or by inheritance to her husband or to his lineal successors, or by virtue of any will or testamentary disposition conferring upon her, with express permission to remarry only a limited interest in such property, with no power of alienating the same, shall upon her 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.
Section 5: Saving right of widow marrying, except as provided in Section 2 and 4: Except as in the three preceding sections is provided, a widow shall not by reason of her remarriage, forfeit any property or any right to which she would otherwise be entitled; and every widow who has remarried shall have the same rights of inheritance as she would have had, such marriage been her first marriage.' While according to the respondents the right of Madathi to succeed to Sudalayandi, her son by the former husband, is saved under Section 5 as such inheritance is not prohibited by Section 2, according to the appellant Madathi is prohibited from inheriting the property of Sudalayandi under Section 2 which takes away specifically the right of a widow after remarriage to acquire any right or interest which she may have in her deceased husband's property by way of maintenance or by way of inheritance not only as a heir to her husband but also to his lineal successors. If Section 2 is taken to affect the right and interest which Madathi had in her deceased husband's property by way of inheritance to her son who is a lineal successor of her former husband, then Section 5 cannot come to her aid, for Section 5 applies to cases not covered by Section 2, 3 and 4.
6. The earliest decision in which the said Section 2 and 5 were construed is the one rendered by a Full Bench of the Calcutta High Court in Akora v. Boreani, 1868 2 Beng LR 199. In that case a Hindu died leaving a widow, a son and a daughter. The widow remarriage and sued in right of inheritance claiming the estate of her son by her former marriage which estate vested in him by the death of his father. It was held that the widow was entitled to succeed to the estate of her son by her former marriage and that Section 2 of the Hindu Widows' Remarriage Act, did not deprive a Hindu widow upon her remarriage of any right or interest which she had not at the time of the remarriage, and that the first part of Section 5 has removed the disability under which a remarried widow laboured before the Act was passed and therefore enabled the widow after her remarriage to succeed to her son's estate. Peacock C. J., speaking for the Bench says at page 205-
'The object of the Act was to remove all legal obstacles to the marriage of Hindu widows. Looking to the words of S. 2, I am of opinion that it was not the intention of the Legislature, to deprive a Hindu widow, upon her remarriage, of any right or interest which she had not at the time of her remarriage.'
According to the learned Judges in that case at the time of the widow's remarriage 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 marriage. If the son had pleased, he might have given the property to his mother, notwithstanding her remarriage. At the time of her remarriage 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 remarriage.
7. The same question came up for consideration before a Division Bench of the Bombay High Court in ILR (1902) 26 Bom 388 (Chamar Haru v. Kashi) and it was argued that the interpretation of Sections 2 and 5 adopted by the Full Bench in Akora v. Boreani, (1868) 2 Beng LR 199, will create an anomaly that whilst on the one hand a widow is obliged to give up property to which she has actually succeeded as soon as she contracts a remarriage, she should on the other hand be at liberty to succeed as heir to her son if he died after her remarriage and that Sec. 2 which specifically prohibits a widow on remarriage inheriting property from a lineal successor of the former husband has not been properly construed in that case. But the Court expressed that though there is possibility of an obvious anomaly, as the pronouncement of the Full Bench in 1868 2 Beng LR 199, has not been differed from in any of the later cases, they would accept the view expressed in that case. The question came up again before a Full Bench of the Bombay High Court in Basappa v. Ragava, ILR (1905) 29 Bom 91. Though the scope of Ss. 2 and 5 were elaborately argued, Jenkins C. J., preferred to follow the decision of the Full Bench in 1868 2 Beng LR 199 in his short judgment which is as follows:
'Whatever might have been my view had the matter been uncovered by authority, it would (in my opinion) be wrong to disregard a rule affecting rights of property established as far back as 1868 by the decision of a Full Bench of the Calcutta High Court in (1868) 2 Beng LR 199.'
In Bhiku Krishna v. Keshav Ramji : AIR1924Bom360 a Division Bench had upheld the right of a Hindu widow after remarriage to succeed her daughter by the first husband following the decision of the Full Bench in ILR (1905) 29 Bom 91, wherein a widow's right to succeed to the estate of her son by the former husband who died after her remarriage has been upheld. In Lakshmana Sasamallo v. Siva Sasamllayani, ILR (1905) Mad 425, also it has been held that the right of a Hindu widow who remarried during the lifetime of her son to succeed by inheritance to the ancestral properties of such son on his death, is not within any of the exceptions referred to in Section 2 and that she is entitled to succeed notwithstanding her remarriage as heir to the son. Thayamma v. Giriyamma, AIR 1960 Mys 176, has also dealt with this question and it has been held therein that a Hindu widow notwithstanding her remarriage is entitled to succeed to the estate of her son or daughter by her first marriage who dies after her second marriage, as a widow, even after remarriage, does not cease to be the mother of the son or the daughter because she has taken a second husband, and that in such cases she is tracing her right through her husband's offspring. The learned Judges had clearly expressed the view that, even if a contrary view is possible on the interpretation of Section 2 and 5, they would not disturb a position of law which has held the filed ever since the decision in 1868 2 Beng LR 199. In view of the preponderance of judicial opinion which has held the field from the year 1868 in respect of which no contrary view has been expressed so far, I am not inclined to disregard a rule dealing with a right of property established so far without any dissent from any quarter.
7A. The learned counsel for the respondents points out the following passage from Mayne's Treatise on Hindu Law and Usage XI, Edition, paragraph 533:
'It has been held that a Hindu widow notwithstanding her remarriage is entitled to succeed as heir to the estate of a son or daughter by her first marriage who dies after her second marriage. This view is assailable,'
and states that this Court might consider the scope of Section 2 and 5 independently of the decisions above referred to. The view expressed by Peacock C. J., in 1868 2 Beng LR 199, has been consistently followed and it has not been dissented from by any of the High Courts in India so far as I am aware and in such circumstances, I am not inclined to disregard a well-settled rule of law affecting the rights of property established as far back as 1868.
8. Even on the question of adverse possession, I am inclined to agree with the view taken by the lower appellate court. I therefore uphold the view taken by the lower appellate court and dismiss the second appeal. There will, however, be no order as to costs. No leave.
9. Appeal dismissed.