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Lakshmi Ammal and ors. Vs. Thangavel Asari - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtChennai High Court
Decided On
Case NumberSecond Appeal No. 531 of 1949
Judge
Reported inAIR1953Mad977; (1953)1MLJ699
ActsHindu Widows Remarriage Act, 1856 - Sections 2 and 5
AppellantLakshmi Ammal and ors.
RespondentThangavel Asari
Appellant AdvocateK.S. Sankara Iyer and ;V. Sundaresan, Advs.
Respondent AdvocateR. Ramamurthy Iyer, Adv.
DispositionAppeal allowed
Cases ReferredAkkamma v. Pichamma
Excerpt:
family - estate - sections 2 and 5 of hindu widows remarriage act, 1856 - appeal against order of lower court that defendant not forfeited her right to properties given to her under compromise decree by reason of her second marriage - not possible to predicate that compromise based upon assumption that properties were self acquired properties of defendant's husband - court can construe document having regards to circumstances to ascertain intention of parties in case of any ambiguity - as per section 2 plaintiff entitled to property on remarriage of defendant - compromise decree would not preclude plaintiff from asserting his right to property - appeal allowed. - .....the learned judge having regard to the aforesaid circumstances held that venkamma got only a widow's estate. the learned judge observed at page 528:'there is no such indication in the compromise with which we are now concerned. there was apparently no finding that venkamma's ease was a bad one, nor was there any admission by her from which it could be inferred that she took what she got as a gift from persons who were absolutely entitled. the very fact that under the compromise she is merely given possession of 1.56 acres, while the defendants are to be absolute owners of the balance, seems a positive indication that the compromise merely acknowledged the title which she claimed to the extent of 1.58 acres. it purports to confer no new title upon her.'the observations make it clear.....
Judgment:

Subba Rao, J.

1. The second appeal raises a question of the interpretation of Section 2, Hindu Widows Remarriage Act (15 of 1856), hereafter called the Act, and its application to the facts of the case. The facts are simple & are not in dispute. They may be briefly stated. One Mookan Asari, the elder brother of the plaintiff and the first husband of the defendant died. Alter his death, the plaintiff Instituted O.S. No. 239 of 1944 on the file of the Court of the District Munsif of Ambasamudram claiming that the properties were joint family properties and that he was entitled to the same by survivorship. The defendant contended that the properties were the separate properties of Mookan Assari and that she succeeded to the same as his widow. The suit was ultimately compromised and Ex. A. 6 dated 11-6-1945 was the compromise decree made therein. Under the compromise decree, the properties described in Schedule 1 annexed to that decree were given absolutely to the plaintiff and the properties particularised in Schedule 2 annexed thereto were given absolutely to the defendant. The plaintiff and the defendant were put in possession of the properties allotted to their shares. After Mookan Asari's death on 28-10-1943, the defendant married one Somasundar ram Asari on 24-9-1945, The plaintiff filed O.S. No. 323 of 1946 on the file of the District Munsif, Ambasamudram, for recovery of possession of the items of property given to the defendant under the compromise decree on the ground that she forfeited all her rights in the said properties under the Act by reason of her second marriage. The learned District Munsif held that the defendant did not forfeit her rights to the properties given, to her under the compromise decree by reason of her second marriage, whereas on appeal the District Judge held contra. The result was that the suit was decreed with costs throughout. The defendant preferred the above appeal.

2. At the outset it may be convenient to consider what would have been the legal position apart from the Act if the widow had died and the succession opened. The plaintiff having been a party to the compromise decree and taken a benefit thereunder would have been estopped from questioning the binding nature of the decree. As the terms of the decree were, clear and unambiguous and the parties thereto got absolute interest in the properties allotted to their respective shares, the plaintiff could not have questioned the defendant's absolute interest in the plaint schedule properties. The plaintiff and defendant would have been bound by the terms of the decree. It is not necessary to speculate what would have been the position if a person other than the plaintiff was the nest revei'sioner.

3. Would the provisions of the Act make any difference? The governing provisions are Sections 2 and 5 which read:

Section 2: 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 or to his lineal successors, or by virtue of any Will or testamentary disposition conferring upon her, without express permission to remarry, 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; end 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: 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; and every widow who has remarried shall have the same rights of inheritance as she would have had, had such marriage been her first marriage.

Learned counsel for the respondent relying upon the provisions of the aforesaid sections contended that the defendant forfeited her rights in the properties given to her by reason of her re-marriage. His argument involved four steps:

1. Under the compromise decree the properties allotted to the defendant were in virtue of her pre-existing title;

2. She therefore came into possession of her husband's property by inheritance.

3. If she secured the properties by inheritance from her husband, the quantum of interest she possessed therein is Immaterial for the application of the provisions or Section 2 of the Act.

4. Even if she had got an absolute interest under the compromise decree, the compromise to so far as it gave her an interest beyond her lifetime would not bind the plaintiff and the property as there could not be an estoppel against the statute.

It may be useful at this stage to construe the relevant provisions of the Act unhampered by the facts of the case. A combined reading of Sections 2 and 5 indicates that the forfeiture of the property by a widow on re-marriage is only confined to the category of cases detailed in Section 2, Under Section 2 she forfeits her rights only in her husband's property which she is entitled tq by way of maintenance, or by inheritance or by virtue of any will. In the case of a will she does not forfeit if under the will she is authorised to remarry or an absolute interest is conferred on her. The words 'shall upon her remarriage 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', afford the clue to the scope of the section. They indicate that the interest contemplated by the section is confined or limited to her lifetime. The section will not apply to an absolute interest legally acquired by the widow. This interpretation was accepted by Rajamannar J. as he then was in -- 'Bangaru Beddi v. Mangammal', AIR 1947 Mad 163 (A). After reading the provisions of Section 2 of the Act, the learned Judge said as follows;

'If, is clear that this section has no effect on property belonging to the widow absolutely on the date of the remarriage. The rights and interests which she may have in her deceased husband's property by way of maintenance obviously refer to recurring rights as for example to payment of maintenance by the enforcement of a charge on her deceased husband's property. In the case of wills and other testamentary dispositions it is only the limited interest that ceases and detcimines. The wordy 'as if the had then died' supply the criterion for adjudicating on the rights and disabilities of the widow on remarriage. All the results which would follow the remarriage are results which would ensue if she had died on the date of the remarriage. In other words, if she had only a limited and life interest then that would cease; but if she had an absolute estate that would not cease.'

I respectfully agree with the aforesaid observations.

4. But this would not conclude the point against the respondent for his contentions, as stated above, namely, that under the compromise decree the defendant secured her rights which she acquired by inheritance to her husband and that the decree in so far it gave her absolute interest would not bind him, require to be countered. In support of his contention that a title conferred under a compromise decree is only an affirmation of a pre-existing the, the learned counsel appearing for the respondent cited before me a long catena of cases. I shall briefly deal with some of them. The leading case on the point is --' Rani Mewa Kuwar v. Rani Hulas Kuwar', 1 Ind. App. 157 (B). The facts there were: Immoveaole property partly situated in Rohilcund and partly in Oudh belonged to the common ancestor of the appellant and the respondent. By a deed of compromise they agreed to divide it in certain proportions, and the agreement was carried out in Rohilcund but not in Oudh, where the respondent was, and continued in possession. At the end of nine years from the date of the deed of compromise, the appellant sued for possession of her share of the property in Oudh. The Judicial Committee held that the claim rested on a title to the land acknowledged and defined by the contract and therefore the suit for possession was within time. The passage relied upon is found on p. 166 of the report, and it reads:

'The compromise is based on the assumption that there was an antecedent title of some kind in the parties and the agreement acknowledges and defines what that title is.'

I cannot understand the said statement as laying down a proposition of law that under all circumstances a title acknowledged under a compromise must necessarily refer to the title asserted. There may be cases where the conflict of claims may be resolved by a compromise creating a new root of title. Indeed the decision of the Judicial Committee in -- Mt. Hiran Bibi v. Mt. Sohan Bibi', AIR 1914 PC 44 (C), is an illustration of the other class of cases. There, the widow of a Hindu, adopted a son but remained in possession of the property of her husband. The adopted son died before her. On the death of the widow, the widow of the adopted son succeeded to her, whereupon one of the daughters of the original owner brought a suit for her share, of the property belonging to her father, questioning the adoption. The suit was compromised. In a subsequent suit a daughter of the adopted son challenged the compromise decree on the ground that her mother had no power to come to a compromise as it amounted to an alienation. The Judicial committee held that the compromise was in no sense of the word an alienation but a family settlement in which each party took a share of the family property by virtue of the independent title which was to that extent and by way of compromise admitted by the other parties and therefore binding on them.

5. The same principle was applied by the Judicial Committee in -- 'Wathulal v. Baburam', . In that case there was a dispute between a widow and her husband's alleged coparcener. The dispute was referred to arbitrators who gave an award. Under the award a share was given to the widow. Their Lordships held that though the properties were originally claimed by the widow through her husband and though the gift was in settlement of a dispute arising therefrom, she got an absolute estate under the award. This case was explained by Wadsworth J. in -- 'Nagafahushanam v. Anandayya', AIR 1939 Mad 179 (E), on the ground that the compromise was based upon an admission made by the widow that her husband and brother-in-law were undivided. Even so, this affords another illustration of an independent title acquired by a widow under a compromise decree.

In -- 'Khunnilal v. Gobind Krishna Narain', 33 All 356 (F) their Lordships of the Judicial Committee followed their observations in -- 'I Ind. App. 157 (B)'. The facts in that case may be briefly noticed. A father and son constituted members of a joint Hindu family. The father was converted to Mahomedanism in 1945. The father survived the son. After the death of the father and the widows of the father, and son, a compromise was effected between the two daughters of the son on the one side and the grandson of the father on the other, under which a 81/2 annas share was allotted to the daughters and a 71/2 annas share to the grandson. The daughters' share eventually devolved upon the respondents. In a suit by them for possession of the share allotted to the grandson of the father against the appellant who was his successor in title, the aforesaid compromise was relied upon to non-suit the plaintiffs. The plaintiffs contended that the said compromise was in effect and in substance an alienation, and therefore it was not binding on them. In overruling the said contention their Lordships made the following observations at p. 367:

'The true test to apply to a transaction which is challenged by the reversioners as an alienation not binding on them is, whether the alienee derives title from the holder of the limited interest or life tenant. In the present case Khairati Lal acquired no right from the daughters of Daulat, for 'the compromise' to use their Lordships language in -- 1 Ind. App. 167 (B), is based on the assumption that there was an antecedent title of some kind in the parties, and the agreement acknowledges and defines what that title is.'

These observations were made to counter the argument that the grandson of the father derived title under the widow of the son. A compromise of conflicting claims may be based upon a recognition of a pre-existing title; but the compromise in resolving the conflict may create a title in a party either more or less than the interest claimed. Wadsworth J. considered the aforesaid cases in : AIR1939Mad179 '. The headnote gives a summary of the facts as follows:

'A (brother of E) claimed properties which were alleged to belong to the joint family, by survivorship and C and D claimed those properties as daughters of B who was alleged to have died as divided member. As a result of a compromise between them, the claims of C and D were in part recognised and they were given some properties to be enjoyed by them as of right (the terms used being kakku and Bhuktham).'

The learned Judge on a construction of the document and having regard to the observations of the Judicial Committee in some of the aforesaid decisions, held that the daughters got an estate similar to the one which they claimed, that is, the limited estate of a female. I do not think the learned Judge meant to lay down that even in a case where under the terms of a compromise decree an absolute interest is clearly created, a Court should hold that the daughter got only an estate similar to the one she claimed. That was made clear by the learned Judge in explaining the decision of the Privy Council in . The learned Judge observed:

'I 'do not think that this case is authority for holding that when a female puts forward a claim consistent only with the claim to a limited estate and that claim is in part recognised by a compromise, the estate which would be conveyed by the compromise would in the absence of anything to the contrary be presumed to be anything else than an estate similar to that which was claimed.'

After noticing the cases cited by the learned counsel the learned Judge summarised the law on the subject as follows:

'The general result of decisions such as these is, that when a person puts forward a claim based on a pre-existing estate and that claim is to some extent recognised by a compromise that compromise will be interpreted in the light of the claim which was put forward and the estate which will pass will be an estate similar to that which was claimed.'

I understand these observations to mean that where the terms of a compromise or compromise decree are ambiguous it is open for a Court to interpret the terms of the said document, having regard to the circumstances such as the claim put forward and the nature of the estate that would pass on the basis of that claim.

6. The same learned Judge reiterated his view in 'Akkamma v. Pichamma', AIR 1945 Mad 527 (G). There the last maleholder, Venkayya, died leaving awidow and two daughters. The widow made two gift deeds, comprising the whole of the properties which she had got from her husband, in favour of her two daughters, defendant 1 and the plaintiff. Thereafter, Venkamma filed a suit against the nephews of Picnamma, the deceased widow of her brother-in-law, claiming possession of 3.80 acres alleged to have been given by the late Venkayya to Pichamma with a stipulation that she should enjoy the and during her lifetime and that thereafter it should pass to the plaintiffs family. The nephews of Pichamma contended that Pichamma was absolutely entitled to the land and had conveyed it to one of them by a deed of gift The suit was compromised. Under the compromise the nephews of Pichamma were directed to deliver to Venkamma 1.56 acres out of the land in dispute and that they (the nephews) should be absolute owners of the remaining land. After the death of Venkamma, the appellant filed the suit for recovery of possession of the land got under the compromise decree. The learned Judge having regard to the aforesaid circumstances held that Venkamma got only a widow's estate. The learned Judge observed at page 528:

'There is no such indication in the compromise with which we are now concerned. There was apparently no finding that Venkamma's ease was a bad one, nor was there any admission by her from which it could be inferred that she took what she got as a gift from persons who were absolutely entitled. The very fact that under the compromise she is merely given possession of 1.56 acres, while the defendants are to be absolute owners of the balance, seems a positive indication that the compromise merely acknowledged the title which she claimed to the extent of 1.58 acres. It purports to confer no new title upon her.'

The observations make it clear that the learned Judge came to the conclusion on a construction of the compromise decree having regard to the surrounding circumstances.

7. From the aforesaid discussion of the cases the law on the subject may be stated thus: The well-settled rules of construction will apply to a compromise decree just like to any other document. If the terms of the compromise decree are clear and unambiguous it is not open to Courts to read into them words which are not there. The entire document must be read together and the expressed intention of the parties is the guiding factor. A compromise decree in resolving the conflicting claims may itself be a foundation of a new root of title. It may allot properties to the parties in affirmation of their respective claims. It may create an absolute interest or only a life estate. Where the document is ambiguous it is open to a Court to construe the document having regard to the surrounding circumstances to ascertain the intention of the parties. A Court, therefore, to clear an ambiguity, may consider the claims of the parties, the quantum of interest they would derive on the basis of those claims and similar other circumstances. In construing the document the binding nature of the document or the validity of the clauses contained therein are not relevant.

8. Bearing the aforesaid principles in view, if the terms of the document are looked into, there is no scope for any argument. Under the compromise decree Ex. A. 6, the conflicting claims of the plaintiff and the defendant were resolved. Bach of them was given the properties particularised in the schedules annexed to the decree absolutely. The quantum of interest was defined by the same terms in the case of the plaintiff & the deft. It is not suggested that the plaintiff did not get) art. absolute interest in the property allotted to him. I would, therefore, hold that under Ex. A. 6 the first defendant got an absolute interest in the plaint schedule properties..

9. Under Ex. A. 6 the claims set up were not confirmed but a new title was created in deciding the conflicting claims. It is not possible to predicate that the compromise was based upon the assumption that the properties were the self acquired properties of the defendant's husband.

10. There is no scope in this case for the application of the doctrine that there could not be an estoppel against the statute. The plaintiff, being the next heir of Mookan Asari, it was contended that under Section 2 of the Act he would be entitled to the property on the remarriage of the defendant and therefore, the compromise decree would not preclude him from asserting his right to the same. But the plaintiff has not established that the properties were the self acquisitions of Mookan Asari.

11. In the result the decree of the lower Courtis set aside and that of the District Munsif is restored with ' costs throughout. Leave granted.


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