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Lalit Mohan Vs. Shyamapada Das - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtKolkata High Court
Decided On
Case NumberA.F.A.D. No. 440 of 1948
Judge
Reported inAIR1952Cal771
ActsHindu Widow's Remarriage Act, 1856 - Sections 1 and 2; ; Hindu Women's Right to Property Act, 1937 - Section 3; ; Hindu Law
AppellantLalit Mohan
RespondentShyamapada Das
Appellant AdvocateMuktipada Chatterjee, Adv.
Respondent AdvocatePanchanan Choudhury and ; Nirmal Chandra Choudhury, Advs.
DispositionAppeal dismissed
Cases ReferredRasul Jehan Begam v. Ram Suran Singh
Excerpt:
- .....plaintiff's allegation that kalimati remarried in 1344 b. s. it is therefore alleged that by such remarriage kalimati lost her interest in her husband's estate that is, in tarapada's estate to which the disputed property appertains, that by the sale by kalimati after remarriage defendant 2 acquired no title and that the plaintiff is accordingly entitled to possession on declaration of title.3. the trial court decreed the plaintiff's suit. there was an appeal by defendant 2 which was dismissed by the lower appellate court. hence this second appeal by defendant 2.4. mr. muktipada chatterjee, learned advocate for the appellant has raised three contentions. in the first place he contends that as there is a custom of remarriage among the bairagis to which caste tarapada and his family.....
Judgment:

G.N. Das, J.

1. This is an appeal by defendant 2 in a suit for declaration of the plaintiff's title and for recovery of possession.

2. The plaintiff is the reversioner to the estate of one Tarapada. Tarapada died in Agrahayan, 1342 B. S. leaving a widow Kalimati. Defendant 2 claims title to a part of the property in suit on the strength of a conveyance executed by Kalimati in Magh, 1350 B. s. It is the plaintiff's allegation that Kalimati remarried in 1344 B. S. It is therefore alleged that by such remarriage Kalimati lost her interest in her husband's estate that is, in Tarapada's estate to which the disputed property appertains, that by the sale by Kalimati after remarriage defendant 2 acquired no title and that the plaintiff is accordingly entitled to possession on declaration of title.

3. The trial court decreed the plaintiff's suit. There was an appeal by defendant 2 which was dismissed by the lower appellate court. Hence this second appeal by defendant 2.

4. Mr. Muktipada Chatterjee, learned Advocate for the appellant has raised three contentions. In the first place he contends that as there is a custom of remarriage among the Bairagis to which caste Tarapada and his family belong, the disqualifying provisions of the Hindu Widows' Remarriage Act (Act XV of 1856) have no application. Mr. Choudhury, learned Advocate appearing for the plaintiff-respondent, has referred to a host of decisions which are referred to in Mayne's Hindu Law, Article 533 and Mulla's Hindu LaAv, Article 563. Mr. Chatterjee relies on the Full Bench decision in the case of Bhola Umar v. Kausilla, 55 ALL. 24 (F.B.). It is pointed out in the above text books that the Allahabad Court and the Oudh Court have taken a view different from that of other High Courts. In this court there is a consistent body of authorities starting with the case of Rasul Jehan Begam v. Ram Suran Singh, 22 Cal. 589, where this point precisely arose for consideration. A Bench of this court (Ghose and Gordon JJ.) was of opinion that even if the widow remarried according to the custom of the sect to which she belonged, nevertheless on her remarriage she lost her interest in her husband's property. This Bench decision has been followed in a long line of cases. I am accordingly unable to accede to the submission raised by Mr. Chatterjee that in all these cases no attention was paid to the Preamble to the Hindu Widows'1 Remarriage Act, 1S56 and that I should refer this case to a larger Bench in view of the Allahabad Pull Bench decision. The decision in Rasul's case has now been followed for over half a century. The result is that this contention of Mr. Chatterjee must be overruled.

5. The next contention of Mr. Chatterjee is that the Hindu Widows' Remarriage Act, 1856 has been superseded by Act XVIII [18] of 1937 and the disqualification imposed by the 1856 Act has now been taken away. Assuming that this is so, the remarriage in this case took place in 1344 B.S. long before the 1937 Act came into operation. The divesting took place in this case in 1344 B. S. (1927 A. D.). Accordingly, 1937 Act can have no manner of application and unsettle rights which had been crystallised ten years earlier.

6. In the third place Mr. Chatterjee contends that Kalimati was a minor at the date of her remarriage and that the remarriage in the present case was according to the system of Kanthibadal which is prevalent among the Bairagis. Mr. Chatterjee contends that Kanthibadal marriage is really Gandharva form of marriage and therefore consent of the widow remarrying was necessary and that as Kalimati was a minor her consent was wanting and the remarriage must not be regarded as a valid marriage in law. It is well known that the only forms of marriage which are prevalent now are the Brahma and Ashura forms of marriage and the other forms of marriage which were recognised by the Hindu Law have fallen into disuse. Ghose, Hindu Law, Edn. 3 vol. 1 pp.- 798-799 Mulla Hindu Law p. 428, Mayne Hindu Law, 83. Gandharva form of marriage is obsolete now and the marriage in the present case canno't be regarded as Gandharva form of marriage. It is a special form of marriage which is validated by custom among the Bairagis; Bairagi Marriage and ,Stridhana, Edn. 2 p. 248. In my opinion the third contention of Mr. Chatferjee cannot, therefore, be accepted.

7. The result, therefore, is that this appeal fails and it is dismissed with costs.


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