CASE NO.: Appeal (civil) 1323 of 2008 PETITIONER: Cherotte Sugathan (Died through LRs) & Ors. RESPONDENT: Cherotte Bharathi & Ors. DATE OF JUDGMENT: 15/02/2008 BENCH: S.B. Sinha & V.S. Sirpurkar JUDGMENT:
J U D G M E N T
(Arising out of SLP (C) No. 236 of 2004)
S.B. Sinha, J.
1. Leave granted.
2. Whether Section 2 of the Hindu Widows Re-Marriage Act, 1856
would apply to the facts of the present case is the question in this appeal.
3. The fact involved herein is as under :
The properties in dispute belonged to one Sri Pervakutty. He had
three sons and two daughters, namely, Sugathan, Surendran, Sukumaran @
Soman, Soumini and Karhiayani. He allegedly executed a will on
11.10.1975 bequeathing the said properties in favour of his sons. In the said
Will, provisions were allegedly made for payment of monthly allowance to
the wife of Sri Pervakutty, defendant No.3 (since deceased) as also right of
residence in the house situated therein. Sri Pervakutty died on 20.10.1975.
Sukumaran died on 2.8.1976.
4. First respondent is his widow. First respondent remarried one
Elambilakkat Sudharkaran. Sudhakaran died on 12.9.1979.
She filed a suit on 31.12.1985 for partition claiming 1/3rd share in the
suit property. Appellant herein, inter alia, contended that she, in terms of
Section 2 of the Hindu Widows Re-marriage Act, 1856, having ceased to
have any right in the properties inherited by her from her husband
Sukumaran, the suit was not maintainable.
Respondent Nos. 2 and 3, the daughter of Sri Pervakutty, inter alia,
raised a contention that the purported Will dated 11.10.1975 was not a valid
one.
5. By a judgment and order dated 31.3.1992, the said suit for partition
was decreed declaring 1/3rd share in the suit properties in favour of the first
respondent. It was opined that since the testator bequeathed the tenancy
right as contained in item No.2 of the schedule, the same was available for
partition.
Appellants preferred an appeal thereagainst. Respondent Nos.2 and 3
(defendants No. 4 and 5) also preferred separate appeals.
6. By reason of the impugned judgment, the High Court allowed the
appeals preferred by the respondent Nos. 2 and 3 holding :
In this case, the plaintiff has claimed succession
on the basis of Will. If that be so, the lower court
was correct in holding that Section 23 of the Hindu
Succession Act is not applicable to defendants 1
and 2. But if the succession is not on the basis of
Will, then defendants 1 and 2 will be entitled to the
benefit of Section 23 of the Hindu Succession
Act.
In regard to the applicability of the 1856 Act, it was held :
So far this case is concerned, according to us,
Section 24 of the Hindu Succession Act applies
and the plaintiff is entitled to succeed.
It was directed :
In the above view of the matter, the appeals are
disposed of as follows :
The case is remanded to the lower court to frame
issue regarding the validity of the Will and to give
an opportunity to the parties to adduce evidence
regarding the same and decide the issue whether
the Will is valid or not. The other findings in the
judgment are upheld except the finding regarding
the building house in Item No.1 of A schedule. If
the court below takes the view that the Will is not
valid, then the contention of defendants 1 and 2
regarding residence in the building house should
be considered again.
7. Mr. K. Rajeev, learned counsel appearing on behalf of the appellant,
in support of the appeals, would submit that keeping in view the provisions
of Section 2 of the 1856 Act, Respondent No.1 could not have been held to
have any right in the properties inherited by her from her husband as she
remarried on 12.2.1979.
8. Mr. Raghunath, learned counsel appearing on behalf of the
respondent, however, would support the judgment.
9. Hindu Widows Remarriage Act was enacted to remove all legal
obstacles to the marriage of Hindu widows.
Section 1 of the said Act encompasses within its fold the said legal
policy. Section 2 reads as under :
2. Rights of widow in deceased husbands
property to cease on her re-marriage.All
rights and interests which any widow may have in
her deceased husbands property by way of
maintenance, or by inheritance to her husband 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 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.
10. Applicability of the said provision must be tested having regard to the
provisions contained in Hindu Succession Act, 1956. Section 4 of the Act
provides for the overriding effect of the Act stating :
4. Overriding effect of Act.(1) Save as
otherwise expressly provided in this Act,–
(a) any text, rule or interpretation of Hindu Law
or any custom or usage as part of that law in
force immediately before the
commencement of this Act, shall cease to
have effect with respect to any matter for
which provision is made in this Act;
(b) any other law in force immediately before
the commencement of this Act shall cease to
apply to Hindus in so far as it is inconsistent
with any of the provisions contained in this
Act.
11. The Act brought about a sea change in Shastric Hindu Law. Hindu
widows were brought on equal footing in the matter of inheritance and
succession along with the male heirs. Section 14(1) stipulates that any
property possessed by a female Hindu, whether acquired before or after the
commencement of the Act, will be held by her as a full owner thereof.
Section 24, as it then stood, reads as under :
24. Certain widows remarrying may not
inherit as widows.Any heir who is related to an
intestate as the widow of a pre-deceased son, the
widow of a pre-deceased son of a pre-deceased son
or the widow of a brother shall not be entitled to
succeed to the property of the intestate as such
widow, if on the date the succession opens, she has
remarried.
12. Upon the death of Sukumaran, his share vested in the first respondent
absolutely. Such absolute vesting of property in her could not be subjected
to divestment, save and except by reason of a statute.
13. Succession had not opened in this case when the 1956 Act came into
force. Section 2 of the 1856 Act speaks about a limited right but when
succession opened on 2.8.1976, first respondent became an absolute owner
of the property by reason of inheritance from her husband in terms of sub-
section (1) of Section 14 of the 1956 Act.
Section 4 of the 1956 Act has an overriding effect. The provisions of
1956 Act, thus, shall prevail over the text of any Hindu Law or the
provisions of 1856 Act. Section 2 of the 1856 Act would not prevail over
the provisions of the 1956 Act having regard to Section 4 and 24 thereof.
14. The question posed before us is no longer res integra.
In Chando Mehtain & Ors. v. Khublal Mahto & Ors. [AIR 1983 Patna
33], the Patna High Court opined :
The Hindu Widows Remarriage Act, 1856 has not
been repealed by the Hindu Succession Act, 1956
but Section 4 of the latter Act has an overriding
effect and in effect abrogates the operation of the
Hindu Widows Remarriage Act, 1856. According
to Section 4 of the Hindu Succession Act all
existing laws whether in the shape of enactments
or otherwise shall cease to apply to Hindus in so
far as they are inconsistent with any of the
provisions contained in this Act.
In Kasturi Devi v. Deputy Director of Consolidation [AIR 1976 SC
2595], this Court categorically held that a mother cannot be divested of her
interest in the deceased sons property either on the ground of unchastity or
remarriage.
Kerala High Court, in Thankam v. Rajan [AIR 1999 Kerala 62], held
that remarriage of the wife cannot be a ground for her loosing right to
succeed to her deceased husbands property.
15. Yet again this Court, in Velamuri Venkata Sivaprasad (Dead) by LRs.
v. Kothuri Venkateswarlu (Dead) by LRs & Ors. [(2000) 2 SCC 139], held :
52. Incidentally, Section 24 of the Succession Act
of 1956 placed certain restrictions on certain
specified widows in the event of there being a
remarriage; while it is true that the section speaks
of a pre-deceased son or son of a pre-deceased son
but this in our view is a reflection of the Shastric
law on to the statute. The Act of 1956 in terms of
Section 8 permits the widow of a Hindu male to
inherit simultaneously with the son, daughter and
other heirs specified in Class I of the Schedule. As
a matter of fact she takes her share absolutely and
not the widows estate only in terms of Section 14.
Remarriage of a widow stands legalised by reason
of the incorporation of the Act of 1956 but on her
remarriage she forfeits the right to obtain any
benefit from out of her deceased husbands estate
and Section 2 of the Act of 1856 as noticed above
is very specific that the estate in that event would
pass on to the next heir of her deceased husband as
if she were dead. Incidentally, the Act of 1856
does not stand abrogated or repealed by the
Succession Act of 1956 and it is only by Act 24 of
1983 that the Act stands repealed. As such the Act
of 1856 had its fullest application in the contextual
facts in 1956 when Section 14(1) of the Hindu
Succession Act was relied upon by Defendant 1.
We respectfully agree with the said view.
22. For the reasons aforementioned, we do not find any infirmity in the
judgment of the High Court. The appeal, therefore, is dismissed without any
order as to costs.