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Faguniswari Dasi Vs. Dhum Lal Pal - Court Judgment

LegalCrystal Citation
SubjectFamily;Property
CourtKolkata High Court
Decided On
Case NumberA.F.A.D. No. 1568 of 1946
Judge
Reported inAIR1951Cal269
ActsHindu Widows' Re-marriage Act, 1856 - Sections 2 and 5; ;Transfer of Property Act, 1882 - Section 106; ;Code of Civil Procedure (CPC) , 1908 - Section 100
AppellantFaguniswari Dasi
RespondentDhum Lal Pal
Appellant AdvocateRajendra Bhusan Bakshi and ;Satya Priya Ghosh, Advs.
Respondent AdvocateNirmal Chandra Chakravarty and ;Syamapada Mazumdar, Advs.
DispositionAppeal dismissed
Cases ReferredPratab Narain v. Harihar
Excerpt:
- .....suit which came to her as heir to her son koka.3. it is now well settled that a widow even after remarriage is not disentitled thereby to succeed to the property left by her son by the first marriage. in akorah sook v boreanee, 11 w. r. 82 : (2 beng. l. r. a. c. 199) it was held that a widow would under section 2, hindu widows' remarriage act (xv [15] of 1856) lose only such rights as she had at the time of that marriage in properties left by her first husband. section 2 did not circumscribe the rights of the widow to succeed to property which might be left there, after by a son by the first marriage. there had been a difference of opinion between kemp j. and jackson j. the two differing judgments are reported in okhorah soot v. bhaen barionee, 10 w. r. 34. on letters patent appeal the.....
Judgment:

R.P. Mookerjee, J.

1. The property is suit originally belonged to one Kanto Pal. He died leaving a widow Pano Bewa and an only son, Koka. After Kanto's death Pano remarried Jadu Pal. Koka died thereafter without any issue and the property came to be in possession of his mother Pano. After Jadu's death Pano took a third husband Indra Mohan Pal. Pano gave away the property by a deed of gift to the plaintiff Dhumlal who 13 the son of the daughter of Pano by the second husband Jadu.

2. The only question in issue in this appeal is whether Pano Bewa had forfeited her right to the land in suit which came to her as heir to her son Koka.

3. It is now well settled that a widow even after remarriage is not disentitled thereby to succeed to the property left by her son by the first marriage. In Akorah Sook v Boreanee, 11 W. R. 82 : (2 Beng. L. R. A. C. 199) it was held that a widow would under Section 2, Hindu Widows' Remarriage Act (XV [15] of 1856) lose only such rights as she had at the time of that marriage in properties left by her first husband. Section 2 did not circumscribe the rights of the widow to succeed to property which might be left there, after by a son by the first marriage. There had been a difference of opinion between Kemp J. and Jackson J. The two differing judgments are reported in Okhorah Soot v. Bhaen Barionee, 10 W. R. 34. On Letters Patent appeal the views expressed by Kemp J. were affirmed. That has been the law ever since and one of the recent cases on the point is Jamini Kumar v. Thakur Dhan Baishnab, 39 C. L. J. 88 : (A. I. R. (9) 1922 Cal. 740). This has been accepted by the - Bombay High Court and reference need be made only to Chamar Haru Dalmel v. Kashi,

26 Bom. 388: (4 Bom. L. R. 73) and to Basappa v. Ragava, 29 Bom. 91 : (6 Bom. L. R. 779 F. B.). In this latter case Jenkins C. J. observed that whatever might have been his personal view as to the interpretation of the law on this point, had the matter been uncovered by authority, it would be wrong to disregard a rule affecting rights of property which had been settled by the Calcutta High Court so far back as 1863. This has also been followed by the Madras High Court in Lakshmana Sasamallo v. Siva Sasamallyani, 28 Mad. 425 : (15 M. L. J. 245). The Allahabad High Court has expressed differently and this is not in consonance with the views of the other three High Courts. If a widow remarries under a custom of the caste, Section 2 of Act XV [15] of 1856 will not be attracted at all. She will not be divested even of her widow's right upon remarriage unless it is proved upon evidence that in addition to there being a custom of remarriage of widows, there is also a custom of forfeiture of the first husband's estate upon such remarriage. One of the latest authorities on this point is Md. Abdul v. Girdhari Lal, I. L. R. (1942) ALL. 259: (A. I. R. (29) 1942 ALL. 175).

4. On the facts of the present case, therefore, when Pano Bewa after remarriage got into possession of the properties belonging to her husband which had on the death of the latter vested in the only son Koka, that was in conformity with the law as interpreted in Bengal.

5. Vesting of the property in Pano Bewa after Koka's death has not been questioned and cannot be controverted. It is, however, contended on behalf of the appellant that when Pano Bewa after the vesting of Koka's estate married for the third time, such marriage had the effect of divesting her son's estate which had already vested in her. We have in the first instance to consider whether the provisions contained in the two relevant sections viz. 2 and 5 of the Act XV [15] of 1856 are attracted. Section 2 is in the following terms:

'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 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 been 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.'

Special emphasis is laid on the expression that her right will cease in properties which are in the widow's possession either 'by inheritance to her husband or to his lineal successors' and upon her re-marriage her such rights will

'cease and determine as if she had then died.' Whether re-marriage of a widow has the effect of a civil death came up for consideration in this Court in Ganga, Prosad Sahu v. Jhalo, 38 Cal. 862 : (10 I. C. 69). The actual point for decision in that case was whether a mother who had been appointed a certificated guardian of her minor son automatically ceased by operation of law to be so on her re-marriage. It was pointed out that unless there be any specific provision in the statute law, a guardian who is appointed as such, does not cease to be so. There is no such provision either in the Hindu Widows' Remarriage Act or in any other statute. The right which the widow has as guardian will accordingly, even after her re-marriage, continue to be exercised by her until the guardianship is terminated by order of Court.

6. Reference may in this connection be made to Section 5, Hindu Widows' Re-marriage Act, which reserves the rights of a widow marrying except as provided in Sections 2 to 4 of that Act. A widow shall not, except as provided in the three preceding sections, forfeit by reason of her remarriage

'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 as she would have had, had such marriage been her first marriage.'

7. Section 2, Hindu Widows' Remarriage Act, refers to the rights and disabilities of a 'widow' at the time of her 're-marriage.' This section makes a clear provision about the divesting of certain kinds of estate or rights which were vested in the widow at the time when she re-marries and does not affect any right which she had not at the time of remarriage. After marrying a second husband, she ceases to be a widow of the first husband. She does not continue to be a sapinda of the husband's family. She is attached to the family of the second husband. The reference in this section is unmistakably to the marriage immediately following the death of a husband, whose estate, though vested in her, is to be divested. The marriage of a woman for the third time after the death of the second husband is not, so far as Section 2, Hindu Widows' Remarriage Act, is concerned, a remarriage of the widow of her first husband. This third marriage is technically speaking the remarriage of the widow of the second husband.

8. The source and the nature of the right which a remarried widowed mother has in the property left by her son are described by Peacock C. J. in the following terms in Akorah v. Boreanee; 11 W. R. 82 : (12 Beng. L. R. A. C. 199).

'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 the property. It came to her by Inheritance from her son who died after re-marriage. If the son had pleased, he might have given the property to his mother notwithstanding her re-marriage. At the time of 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 remarried the property would never have descended to her.'

Such right was held not to be affected by the provisions of Section 5 of the Act.

9. It has been pointed out repeatedly that this Act is an enabling one which does not take away the rights which were in existence from before unless such divesting is clearly stated ins the statute itself. Section 5 of the Act saves the rights of a widow which she might have had from before and which are not taken away under this or any other Act.

10. We have next to consider whether there is any provision in the Hindu law which divests the estate which had vested in her after the death of Koka. No doubt there are various authorities in support of the contention that after re-marriage a widow loses all her rights in the estate or in the family of the firsts husband. There are difficulties, however, in applying that principle here specially in view of the decisions referred to under which the widow after re-marriage has been held to be entitled to succeed to the estate of her son by the first husband. The title to properties which come to her from her son after re-marriage has not been dealt with in, and is not the subject matter of, any text which I have been able to find out under which such divesting may take effect after the third marriage. In the absence of any other provisions in the Hindu law which would govern a particular case of this nature it must be held that there is no law which would support the divesting of an estate which had already vested. Under the provisions of the Hindu law an estate once vested cannot be divested ordinarily except when there are specific provisions therefor. If this particular case is not covered by any authority supporting the divesting of an estate already vested, there is no escape from the conclusion that the property which had vested in Pano Bewa could not be divested after her third marriage. The decision by the learned District Judge on this point is accordingly affirmed.

11. The next point urged on behalf of the appellant is that the notice to quit which had been served on the defendant is not reasonably sufficient. No doubt the notice was served in the month of Falgun to take effect from the 1st of Baisakh following. The learned Judge has pointed out, and I may say, correctly, that whether a particular notice is reasonable or not must depend on the facts of each particular case. What is a reasonable notice is largely a question of fact : Dhukhiram v. Matabi, 39 I.C. 795 : (A.I.R. (5) 1918 Cal. 355); Pratab Narain v. Harihar, 36 Cal. 927 : (2 I. C. 656). It has been found that the notice bad been given at such a time when there were no crops standing on the land and before any steps could be taken for the cultivation of the next year. The notice was accordingly held to be reasonable in the present case. I do not see any reason to differ from the same.

12. An attempt was also made to connect the land in suit to the lands which were admittedly held by the defendant under EX. A. The Court below has held on the evidence that there are no sufficient materials on the record to connect the land of EX. A with the disputed land. The rights, if any, under EX. A, cannot therefore be proved to have been attracted to the lands in suit.

13. This appeal is accordingly dismissed but in the circumstances of the case there will be no order for costs.


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