- 1 - 905-sa-978-2005 srj IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL NO.978 OF 2005 Sitabai Narhari Rakshe ] @ Sitabai Gangaram Shete ] (since deceased) through her ] heirs and legal representatives ] 1-a Smt. Janabai R. Bhondwe ] Age-Adult. Occupation- Household. ] 1-b Smt. Manabai R.Panmand ] Age- Adult, Occupation- Household. ] both residing at Ravet, Tal. Haveli, ] District- Pune. ] .. Appellants V/s. 1 Hari Laxman Rakshe ] Age- Adult, Occupation- Agriculture. ] 2 Tukaram L. Rakshe ] Age- Adult, Occupation- Agriculture ] R/at: Sangavade, Tal. Maval, ] District – Pune. ] .. Respondents. Mr. M. S. Lagu, for the Appellants. Mr. A.S. Shitole, for Respondent No.1. Mrs. Rutuja Ambekar, for Respondent No.2. CORAM : G.S.GODBOLE,J. DATED : 20th OCTOBER, 2011. JUDGMENT: - 2 - 905-sa-978-2005 1 By consent, the Second Appeal is taken on board for final hearing and heard forthwith, since a very short question of law is involved. 2 The Second Appeal has been admitted on 12th September, 2005 by framing following questions:- “(a) Whether the lower courts considered properly and interpreted properly Sec.14 of Hindu Succession Act, 1956? (b) Whether the lower courts considered properly that appellant being a widow of late Narhari Laxman Rakshe, is entitled for share in the suit properties and also entitled to the benefit of Sec.14 of Hindu Succession Act.?” 3 The facts which are not in dispute are as under:- (i) Laxman Rakshe who died in the year 1942 was the original ancestor / propositor. He had left behind him three sons - namely Hari (Respondent No.1), Tukaram (Respondent No.2) and Narhari (husband of Original Appellant- Sitabai). Admittedly, Narhari died in the year 1952, leaving behind his widow- Sitabai and two daughters namely Janabai Rakshe and - 3 - 905-sa-978-2005 Manabai Rakshe. It is also admitted that the widow- Sitabai re- married Gangaram R.Shete in the year 1952 itself. (iii) The said Sitabai filed RCS No.164 of 2002 against the Respondents for partition and separate possession, which was dismissed by learned Jt. Civil Judge, Junior Division, Vadgaon, Maval on 30th September, 2003. The re-marriage had admittedly taken place in the year 1952 and, hence, the Trial Court held that provision of Section 14 of the Hindu Succession Act, 1956 will not benefit the Original Plaintiff/ Appellant. The Original Plaintiff/ Appellant filed Civil Appeal No.781 of 2003 which had been dismissed by the learned 13th Ad-hoc Additional District Judge, Pune on 18th December, 2004, leading to filing of this Second Appeal. 4 The Second Appeal was admitted with the aforesaid questions being framed. 5 Section 2 of Hindu Widow's Remarriage Act, 1856 reads thus:- “2. Right of widow in deceased husband's property to cease on her re-marriage.- 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 - 4 - 905-sa-978-2005 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 has then died; and the next heir of her deceased husband, or other persons entitled to the property on her death, shall thereupon succeed to the same.” 6 The law in this regard is fairly well settled. The Hindu Women's Right to Property Act, 1937 (Act of XVIII, 1937) reads thus:- “ WHEREAS it is expedient to amend the Hindu law to give better right to women in respect of property:- It is hereby enacted as follows:- 1. The Act may be called the Hindu Women's Right to Property Act, 1937. 2. Notwithstanding any rule of Hindu law or custom to the contrary the provisions of section 3 shall apply where as Hindu died intestate. 3.(1) When a Hindu governed by the Dayabhaga School of Hindu law dies intestate leaving any property and when a Hindu governed by any other School of Hindu law or by customary law dies intestate leaving separate property, his widow (c), or if there is more than one widow all his widows together, shall subject to the provisions of sub-section (3), be entitled in respect of property in respect of which he dies intestate to the same share as a son: Provided that the widow of a predeceased son (c1) shall inherit in like manner as a son if there is no son surviving of such predeceased son, and shall inherit in like manner as a son's son if there is surviving a son or son's son of such predeceased son; Provided further that the same provision shall apply mutais mutandis to the widow of a predeceased son of a predeceased son. (2) When a Hindu governed by any school of Hindu law other than the Dayabhaga School or by customary law dies having at the time of his death an interest in a Hindu Joint family property, his widow shall, subject to the provisions of sub-section (3), have in the property the same interest as he - 5 - 905-sa-978-2005 himself had. (3) Any interest devolving on a Hindu widow under the provisions of this section shall be the limited interest known as a Hindu Woman's estate, provided however that she shall have the same right of claiming partition as a male owner. (4) The provisions of this section shall not apply to an estate which by a customary or other rule of succession or by the terms of the grant applicable thereto descends on a single heir or to any property to which the Indian Succession Act, 1925 applies. 4. Nothing in this Act shall apply to the property of any Hindu dying intestate before the commencement of this Act. 5. For the purposes of this Act, a person shall be deemed to die intestate in respect of all property of which he has not made a testamentary disposition which is capable of taking effect.” 7 It is thus clear that the limited/ life interest which the widow Sitabai got after the death of her husband- Narhari called as “Hindu Women's Estate” was limited interest. This Act was repealed by Section 34 of the Hindu Succession Ac, 1956. Section 14 of the Hindu Succession Act, 1956 enlarge the limited interest conferred on a Hindu Widow and the said limited interest was converted in to an absolute interest. Section 14 of the Hindu Succession Act, 1956 reads thus:- “(1) Any property possessed by a female Hindu, whether acquired before or after the commencement of this Act, shall be held by her as full owner thereof and not as a limited owner. In this sub-section, “property” includes both movable and immovable property acquired by a female Hindu by inheritance or devise, or at a partition, or in lieu of maintenance or arrears of maintenance, or by gift from any person, whether a relative or not, before, at or after her marriage, or by her own skill or exertion, or by purchase or by prescription or in any other - 6 - 905-sa-978-2005 manner whatsoever, and also any such property held by her as stidhan immediately before the commencement of this Act. (2) Nothing contained in sub-section (1) shall apply to any property acquired by way of gift or under a will or any other instrument or under a decree or order or a civil court or under an award where the terms of the gift, will or other instrument or the decree, order or award prescribe a restricted estate in such property.” 8 In this case, if Sitabai had filed suit for partition and separate possession which she was entitled to file, and in case, such a suit had been decreed, prior to re-marriage or in case, her share was separated by a partition between Hari, Tukaram and Sitabai; then Section 2 of the aforesaid Hindu Widow's Remarriage Act, 1856 would have had no effect whatsoever. However, admittedly, no partition has taken place and the legal effect of the Widow's Remarriage has fairly well settled. The learned Advocate for Respondent Nos.1 and 2, therefore, contended that the widow will not get any right in view of her remarriage. 9 Mrs. Ambekar is justified in relying upon the following judgments:- (i) The Division Bench Judgment of Justice Y. V. Chandrachud and Justice Malvankar in the case of Pandurang Narayan Salunke v/s. Sindhu and Another, reported in AIR 1971 Bom. 413a. There the Division Bench had specifically framed two questions in para 1 of the said Judgment a AIR 1971 Bom. 413 - 7 - 905-sa-978-2005 which are almost identical to the question of law framed while admitting the present Second Appeal, which reads thus:- (a) Two important questions arise in this appeal:(1) Whether Section 2 of the Hindu Widows' Re-marriage Act, 1856 (Act XV of 1856) hereinafter called “the Act of 1856” is restricted in its application to property in which Hindu widows have a limited estate and (2) whether Section 2 of the Act of 1856 is inconsistent with Section 14(1) of the Hindu Succession Act, 1956 (Act XXX of 1956) hereinafter called” the Act of 1956.” The said questions have been answered in paragraphs 14 to 16 which read thus:- “14:- On the first question, we are, therefore, of the view that Section 2 of the Act of 1956 applies only to limited estates of Hindu widows and that it cannot operate on property of which they are full of absolute owners. 15:- In view of this conclusion, the second question does not really arise because that question assumes that there is an inconsistency between Section 2 of the Act of 1856 and Section 14(1) of the Act of 1956 under, which “Any property possessed by a female Hindu, whether acquired before or after the commencement of this Act, shall be held by her as full owner thereof and not as a limited owner”. There is therefore no scope for applying the provision contained in Section 4(1) (b) of the Act of 1956 which says that save as otherwise expressly provided in the Act, any law in force immediately before the commencement of the Act “shall cease to apply to Hindus in so far as it is inconsistent with any of the provisions contained in this Act.” 16:- Mr. Oak, appearing for the respondent, says that even if Section 2 of the Act of 1856 were to operate on property held by a Hindu widow as a full owner, there would be no inconsistency between it and Section 14(1) of the Act of 1956 because even if the widow would forfeit her interest in that property on her remarriage, she would still form a fresh stock of descent under Section 15(1) of the Act of 1956 and therefore, - 8 - 905-sa-978-2005 an essential attribute of her full ownership in her husband's property shall have been preserved. Strictly, it is unnecessary to consider this argument because we have taken the view that Section 2 does not operate on property held by a Hindu widow as a full owner, But we would like to say that the argument is unsustainable. In the first place, Section 15(1) of the Act of 1956 would have no application because if on remarriage the widow forfeited her interest in her husband's property, that property would cease to be hers and the rules of devolution laid down in Section 15 could not be invoked so as to treat her as a fresh stock of descent. Secondly, it Section 2 operated on full ownership also, the widow would forfeit her right to deal with property of which she is an absolute owner, which would mean destroying an important attribute of full ownership. Full ownership connotes a free right of disposal. Therefore, if Section 2 of the Act of 1856 were to be construed so as to govern property of which the Hindu widow is a full owner, there would be a fundamental inconsistency between it and Section 14(1) of the Act of 1856. In that event Section 4 (1)(b) of the latter Act would have come into play. As observed by the Supreme Court in Punithavalli Ammla v. Ramlingam, AIR 1970 SC 1730 the rights conferred on a Hindu female under Section 14(1) of the Act of 1856 constitute a clear departure from the Hindu law; texts or rules and that from a plain reading of that section it is clear that the estate taken by a Hindu female under it is an absolute one and is not defeasible under any circumstances. “The ambit of that estate cannot be cut by an text, rule or interpretation of Hindu law.” 10 The learned Advocate for Respondent No.2 is also right in placing reliance on the Judgment of the learned Single Judge (Shah,J.) in the case of Rama Appa Patil v/s. Sakhu Dattu Gharal, reported in AIR-1954, Bombay -315: (1954) 56 LVI, BLR 227b wherein the following observation is made in paragraph 7:- “ It is true true that custom recognized among certain b AIR-1954, Bombay -315: (1954) 56 LVI, BLR 227 - 9 - 905-sa-978-2005 communities remarriage by widows, and the Legislature has not recognized remarriage by Hindu widows belonging to all communities. But it is difficult from that circumstance to infer that because either by custom or by legislation remarriage of Hindu widow is permitted, the right in which a widow inherits the property and takes a limited estate under the Hindu law is altered. The widow's right to inherit to the husbands' property is by the texts founded on the view that she is the surviving half of her husband. That foundation does not disappear merely because certain communities recognize a custom or remarriage statute made valid, even in communities in which it was not recognized. If the estate a Hindu widow inherits from her husband, ensures during her widowhood and reverts on the termination of he state of widowhood to the heirs of her husband, it must follow that on the widow renouncing her status as a widow she extinguishes her interest in the property inherited by her. It is difficult to appreciate how the limitations inherent in the estate of a Hindu widow can be discarded by her.” A similar view was taken in the very old Judgment of Full Bench of our High Court in the case of Vitthal v/s. Govind (1898) 22, ILR-Bombay 321 (FB)c. 11 Mrs. Ambekar, learned Advocate for Respondent No.2 and Mr. Shitole, learned Advocate for Respondent No.1 have placed reliance on the Judgment of Supreme Court in the case of Velamuri Venkata Sivaprasad (dead) by LRs v/s. Kothuri Venkateshwarly (dead) by LRs and others, reported in AIR 2000 SCC-434d. After quoting Section 2 of the 1856 Act, the Supreme Court has observed this in paragraphs 17, 18, c ILR-Bombay 321 (FB) d AIR 2000 SCC-434 - 10 - 905-sa-978-2005 19, 49, 54 and 57 as under:- “17:- Incidentally, the Act of 1856 was in the Statute Book until the year 1983 and it only stands repealed by Act 24 of 1983. 18:- Section 2 of the Act of 1856, therefore, has taken away the right of widow in the event of re-marriage and the Statute is very specific to the effect that the widow on re- marriage would be deemed to be otherwise dead. The words “as if she had then died” (emphasis supplied) are rather significant. The legislature intended therefore that in the event of a re-marriage, one looses the rights of even the limited interest in such property and after re-marriage the next heirs of her deceased's husband shall thereupon succeed to the same. It is thus a statutory recognition of a well reasoned pre-existing Shastric Law. “19:- An attempt has however been made as regards overriding effect of Hindu Succession Act in terms of Section 4(1) thereof. Section 4(1) provides as below:- 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 insofar as it is inconsistent with any of the provisions contained in this Act. (2) For the removal of doubts it is hereby declared that nothing contained in this Act shall be deemed to affect the provisions of any law for the time being in force providing for the prevention of fragmentation of agricultural holdings or for the fixation of ceilings or for the devolution of tenancy rights in respect of such holdings.” “49:- Incidentally, be it noted that the Succession Act of 1956 obviously is prospective in operation and in the event of a divestation prior to 1956,question of applicability of Section 14(1) would not arise since on the date when it applied, there - 11 - 905-sa-978-2005 was already a remarriage disentitling the widow to inherit the property of the deceased husband. The Act of 1856 had its full play on the date of re-marriage itself, as such Succession Act, could not confer the widow who has already re-married, any right in terms of Section 14(1) of the Act of 1956. The Succession Act has transformed a limited ownership to an absolute ownership but it cannot be made applicable in the event of there being a factum of pre-divestation of estate as a limited owner. If there existed a limited estate or interest for the widow, it could become absolute but if she had no such limited estate or interest in lieu of her right of maintenance from out of deceased husband's estate, there would be no occasion to get such non-existing limited right converted into full ownership right. “54”- Incidentally, Section 24 of the Succession Act of 1956, placed certain restrictions on certain specified widows in the event of there being a re-marriage; while it is true that Section speaks of a predeceased son or son of a pre-deceased son but this in out 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 male Hindu 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 widow's estate only in terms of Section 14. Re- marriage of a widow stands legalized by reason of the incorporation of Act of 1956 but on her re-marriage she forfeits the right to obtain any benefit from out of her deceased husband's estate and Section 2 of the Act of 1856 as noticed above is very specific that the estate in that event would pass on 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 No.1. “57:- Having considered the matter from all perspectives, we do feel it expedient to record that the Division Bench of the Andhra Pradesh High Court clearly fell into an error in not considering the true effect of Section 2 of the Act of 1856. According to us, final decision rendered by - 12 - 905-sa-978-2005 the learned single Judge on non-applicability of Section 14(1) of the Hindu Succession Act remains well sustained, though on a different line of reasoning as indicated herein above. Accordingly, it must be held that the Division Bench was in error in applying Section 14(1) of the Hindu Succession Act on the fact situation in the present case.” 12 Thus, it is clear that the question of law framed at the time of admitting this Second Appeal is squarely covered by atleast three Judgments. 13 In view of the conclusive and binding Judgments of the Division Bench and of the Supreme Court in Velamuri Venkata Sivaprasad (supra), there is no merit in the Second Appeal and the same is accordingly dismissed. 14 It is clarified that since daughters of Original Plaintiff namely- Janabai and Manabai are brought on record in this Second Appeal, since they had independently filed RCS No.5 of 1998 which was partly decreed by the Trial Court, but the said decre was reversed in C.A.No.185 of 2000 against which they have filed Second Appeal No.733 of 2004 which is admitted and is pending for final hearing; their right to prosecute their Second Appeal is not in any manner abridged by virtue of passing of this order. - 13 - 905-sa-978-2005 15 Second Appeal No.978 of 2005 disposed off in aforesaid terms with no orders as to costs. (G.S.GODBOLE,J.)