CASE NO.:
Appeal (civil) 425 of 1982
PETITIONER:
VELAMURI VENKATA SIVAPRASAD (DEAD) BY L.RS.
RESPONDENT:
KOTHURI VENKATESWARLU (DEAD) BY L.RS. AND ORS.
DATE OF JUDGMENT: 24/11/1999
BENCH:
S.B. MAJMUDAR & M. SRINIVASAN & UMESH C. BANERJEE
JUDGMENT:
JUDGMENT
1999 Supp(4) SCR 522
The Judgment of the Court was delivered by
BANERJEE, J. Two specific questions arise for determination in this appeal
by the grant of special leave against a Bench decision of the Andhra
Pradesh High Court: Firstly, whether re-marriage of a widow prior to Hindu
Succession Act, 1956 would divest her of even the limited ownership of her
deceased husband's property, having due regard to the provisions of Section
2 of Hindu Widow's Re-marriage Act, 1856 (hereinafter referred to as `the
Act of 1856'); and secondly, whether disqualification of inheritance, if
any, by reason of re-marriage would stand obliterated by reason of the
provisions of the Madras Hindu (Bigamy Prevention and Divorce) Act, 1949.
The factual score in the Appeal presently before us reveals that one
Rosaiah was the owner of a large extent of properties. He died in February,
1937 leaving behind him his wife Lakshmamma and mother Venkayamma. Rosaiah
executed a will on 11th January, 1937 wherein he bequeathed all his
properties to his mother Venkayamma. Apart from providing some maintenance,
Rosaiah did not provide anything else to his wife Lakshmamma. As a matter
of fact in the will he stated that his wife Lakshmamma was not obedient to
him and that her father with her aid was trying to knock off all his
properties and that his wife was also not living with him. He however in
the will provided that, in case his wife was prepared to take a boy of his
mother's choice, in adoption, she could do so but the boy so adopted should
be under the guardianship of his mother until attainment of majority and in
that event would be entitled to certain properties as specified in the
will. Factual score further depicts that after the death of Rosaiah,
Lakshmamma filed a suit (OS No. 52 of 1939) for a declaration as regards
her entitlement to all the properties of her husband. The mother, in her
turn, also filed another suit for administration of the estate, on the
basis of the will mentioned above (OS No. 42 of 1940). It appears from the
records that there was in fact a compromise decree between both the mother
and the wife of Rossiah which was recorded by the Court on 19th April 1942.
In the compromise memo Lakshmamma has been referred to as the plaintiff,
while Venkayamma, the mother as the first defendant. Clause (a) of the said
compromise expressly affirmed the will put forward by the mother,
Venkayamma as true and valid and the properties of Rosaiah were categorised
into three schedules, appended to the said Memo of compromise. Properties
mentioned in Schedule-1 were jointly given to both the said ladies with
absolute rights. While properties mentioned in Schedule-II were given to
both of them jointly with a life estate only. Schedule-Ill contains three
items. Items 1 and 2 were given to the mother, while item 3 was given to
the wife. Clause (f) of the said memo of compromise provided as follows:-
"(f) The 1st defendant is agreeable that plaintiff shall continue the
lineage of late Rosaiah by adopting a boy of her choice within 7 years from
now, from the family of Velamuri people or from the family of any other
person of the (same) Gotram or from out of the boys of her younger sister
as provided within the will executed on 11.1.1937 by the late Rosaiah and
receiving him as the adopted son of her husband. As soon as the adoption
takes place, the immovable property mentioned in Schedule-II, attached
hereto and retained by the plaintiff and the 1st defendant with life-
interest the 2nd item in its entirety and half of 3rd item mentioned in
Schedule III other than the portion necessary for the residence of the
plaintiff and the 1st defendant till their life-time and the plate and cup
being used by the plaintiff and the iron safe, pot ( ) and `Panakapu Binde'
being used by the 1st . defendant present out of the silverage given to
Late Rosaiya at the time of the marriage shall be developed on the adopted
son himself and he himself shall have absolute rights to the said
items......"
Admittedly there is no adoption by Lakshamamma within the period prescribed
as contemplated in clause (f) above and by reason therefore, Venkayamma the
mother, filed a fresh suit (OS 93 of 1950) for a declaration that since
Lakshmamma failed to take on adoption, as provided by clause (f) above, she
was not entitled to do so thereafter, and for a further declaration that
she herself was entitled to adopt a boy. In the plaint filed and as the
records depict, Venkayamma levelled specific allegations of unchastity
against Lakshmamma and contended that by reason of the fact of leading a
life of unchastity, Lakshmamma lost all her rights in her husband's estate.
The said suit was however dismissed and an appeal being AS No. 344 of 1953
was preferred to the High Court against the dismissal of the suit (No. 93
of 1950). The facts reveal that the appeal came up for hearing on 8th
March, 1958 and it is on the date of hearing counsel for the appellant
Venkayamma conceded that by reason of the provisions of the Hindu Adoption
and Maintenance Act, 1956 (Act No. 78 of 1956) even a success in the appeal
would not entitle the appellant to adopt. The Appellate Court on the wake
of the aforesaid, dismissed the appeal.
In 1969 as the records depict, the present suit (O.S. No. 44 of 1969) was
filed by Venkayamma and her daughter Sitarammamma asking for a declaration
of title to the suit properties and for possession of the properties
mentioned in the plaint Schedule `A' and `B' and for mesne profits on the
ground that since Lakshmamma did not take the adoption and also because of
her re-marriage in 1953, she had lost all her rights and the same in any
event stood forfeited so far as the husband's properties were concerned and
that Venkayamma was otherwise exclusively entitled to the same.
Incidentally, be it noted that Venkayamma in the suit elated that she has
relinquished all her rights in favour of Sitharamamma and therefore the
latter was impleaded as the second plaintiff. Besides, the allegation of
re-marriage, Venkayamma also attributed unchastity to Lakshmamma. In the
said suit, nine defendants were impleaded. 1st defendant is Lakshmamma
while defendants 2 to 4 were impleaded on the ground that they have been
inducted into possession of the `B' schedule properties in suit by the 1st
defendant. Defendants 5 to 7 were impleaded on the ground that they were
the alienees from the first defendant and the 8th defendant was impleaded
because he was supposed to be the adopted son of the first defendant, while
the 9th defendant was said to be the joint purchaser along with defendants
3 and 4 of some of the suit properties.
In the written statement, Lakshmamma's defence was that she did take a boy
being the 8th defendant by way of a valid adoption. While denying the re-
marriage she pleaded the bar of res-judicata with respect to the allegation
of unchastity. The 8th defendant in his written statement asserted his own
adoption whereas the other alienees substantially adopted the defence taken
by Lakshmamma. The Trial Court on final disposal recorded a definite
finding as regards the issue on unchastity being barred by the doctrine of
res-judicata. But in regard to the issue of re-marriage in August, 1953,
the same was found to be otherwise correct as a matter of fact. Trial Court
further held that whatever properties were given to Lakshmamma under the
memo of compromise became her absolute properties by virtue of Section 14
of Hindu Succession Act.'Two other issues were raised before the Trial
Court namely; the issue of adoption of 8th defendant and the suit being
barred by the laws of limitation. The last issue of limitation was answered
in the affirmative, the plea of adoption was negatived and the Trial Court
came to a conclusion that no such adoption can even be valid also.
The factual score further reveals that Venkayamma died pending the suit and
the 3rd plaintiff was brought on record as her adopted son: The 2nd
plaintiff Sitharamamma also died after the judgment of the trial court and
before the filing of the appeal. The appeal before the learned Single Judge
of the Andhra Pradesh High Court was preferred only by the 3rd plaintiff in
the suit being the adopted son of Venkayamma.
We may now deal with the twin issues noted at the beginning of the
judgment.
Re-first Issue:
Conversion of limited ownership into an absolute one under Section 14(1) of
the Hindu Succession Act did come up for judicial scrutiny intermittently
before this Court and the law in regard thereto stands settled by the
decision in Tulasamma's case V. Tulasamma &Ors. v. Sesha Reddy (d) by LRs.,
[1977] 3 SCC 99.
Admittedly the decision in Tulasamma's case (supra) is holding the field
till date without even any semblance of dissention in all subsequent
decisions. We also do not wish to sound any different note in that regard.
In paragraph 20 of the Report Fajal Ali, J. laid down certain propositions
as regards Hindu women's rights to maintenance and we cannot resist but to
quote the same herein below in extenso as useful refresher:
"(1) that a Hindu woman's right to maintenance is a personal obligation so
far as the husband is concerned, and it is his duty to maintain her even if
he has no property. If the husband has property then the right of the widow
to maintenance becomes an equitable charge on his property and any person
who succeeds to the property cares with it the legal obligation to maintain
the widow.
(2) though the widow's right to maintenance is not a right to property but
it is undoubtedly a pre-existing right in property, i.e. it is a jus ad rem
not jus in rem and it can be enforced by the widow who can get a charge
created for her maintenance on the property either by an agreement or by
obtaining a decree from the civil court;
(3) that the right of maintenance is a matter of moment and is of such
importance that even if the joint property is sold and the purchaser has
notice of the widow's right to maintenance, the purchaser is legally bound
to provide for her maintenance;
(4) that the right to maintenance is undoubtedly a pre-existing right
which existed in the Hindu Law long before the passing of the Act of 1937
or the Act of 1946, and is, therefore, a pre-existing right;
(5) that the right to maintenance flows from the social and temporal
relationship between the husband and the wife by virtue of which the wife
becomes a sort of co-owner in the property of her husband, though her co-
ownership is of a subordinate nature; and
(6) that where a Hindu widow is in possession of the property of her
husband, she is entitled to retain the possession in lieu of her
maintenance unless the person who succeeds to the property or purchases the
same is in a position to make due arrangements for her maintenance."
Undisputably the Hindu Succession Act, 1956 in particular Section 14 has
introduced far reaching changes having due regard to the role and place of
womanhood in the country on the basis of the prevailing socio-economic
perspective. It is now a well-settled principle of law that legislations
having socio-economic perspective ought to be interpreted with widest
possible connotation as otherwise, the intent of the legislature would
stand frustrated. Recognition of Rights and protection thereof thus ought
to be given its full play for which the particular legislation has been
introduced in the Statute Book. Gender bias is being debated throughout the
globe and the basic structure of the Constitution permeates equality of
status and thus negates gender bias. Gender equality is one of the basic
principles of our Constitution. The endeavour of the law court should thus
be to give due weightage to the requirement of the Constitution in the
matter of interpretation of statutes wherein specially the women folk would
otherwise be involved. The legislation of 1956 therefore, ought to receive
an interpretation which would be in consonance with the wishes and desires
of framers of our Constitution. We ourselves have given this Constitution
to us and as such it is a bounden duty and an obligation to honour the
mandate of the Constitution in every sphere and interpretation which would
go in consonance therewith ought to be had without any departure therefrom.
Tulasamma's case obviously having this in mind decided the issue and
attributed the widest possible connotation to the words used in Section
14(1) of the Act of 1956. The decision in Tulasamma's case from time to
time came up for consideration before this Court and the same stands
accepted without any variation as noted herein before. One of the latest
decisions where Tulasamma's case has been considered, is the decision of
this Court in the case of Raghubir Singh v. Gulab Singh, [1998] 6 SCC 324,
wherein Dr. Justice A.S. Anand, Chief Justice speaking for the Bench in
paragraphs 24 and 26 of the Report observed:-
"24. Accordingly, we hold that the right to maintenance of a Hindu female
flows from the social and temporal relationship between the husband and the
wife and that right in the case of a widow is "a pre-existing right", which
existed under the Shastric Hindu Law long before the passing of the 1937 or
the 1946 Acts. Those Acts merely recognised the position as was existing
under the Shastric Hindu law and gave it a "statutory" backing. Where a
Hindu widow is in possession of the property of her husband she has a right
to be maintained out of it and she is entitled to retain the possession of
that property in lieu of her right to maintenance.
26. It is by force of Section 14(1) of the Act, that the widow's limited
interest gets automatically enlarged into an absolute right notwithstanding
any restriction placed under the document or the instrument. So far as sub-
section (2) of Section 14 is concerned, it applies to instruments, decrees,
awards, gifts etc., which create an independent or a new title in favour of
the female for the first time. It has no application to cases where the
instrument/document either declares or recognises or confirms her share in
the property or her "pre-existing right to maintenance" out of that
property. As held in Tulasamma case sub-section (2) of Section 14 is in the
nature of a proviso and has a field of its own, without interfering with
the operation of Section 14(1) of the Act."
It would be convenient, however, at this juncture to note the exact
language of Section 14. Section 14 reads as below: "14. Property of a
female Hindu to be her absolute property-
(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.
Explanation- 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 manner whatsoever and also any such property
held by her as stridhana 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 of a civil court or order 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."
Having due regard to the language as above introduced by Section 14
question of attributing a different interpretation, apart from what has
been given in Tulasamma's case, does not arise but needless however to note
that in order to have the provision applicable there shall have to be some
right existing and not de hors the same. In Raghubir's case (supra) the
Shastric law has been taken recourse to in order to ascribe a pre-existing
right so far as the widow is concerned by reason of the social and temporal
relationship between the husband and the wife during the life time of the
husband and the solemn obligation of the husband towards the wife. Hindu
marriage is not a mere formality or a contract but has its due religious
sanctity even in the present day society. Homam i.e. oblation to fire and
Saptapadi (seven steps together ) are being observed in order to have a
holy union between the husband and the wife. In this context, the
observations in the decision of Raghubir Singh's case seem to be apposite
and in paragraph 14 of the Report, Dr. Anand, CJ observed:-
"According to the old Shastric Hindu law, marriage between two Hindus is a
sacrament-a religious ceremony which results in a sacred and a holy union
of man and wife by virtue of which the wife becomes a part and parcel of
the body of the husband. She is, therefore, called ardhangani. It is on
account of this status of a Hindu wife, under the Shastric Hindu law, that
a husband was held to be under a personal obligation to maintain his wife
and where he dies possessed of properties, then his widow was entitled as
of right, to be maintained out of those properties. The right of a Hindu
widow to be maintained out of the properties of her deceased husband is,
thus a spiritual and moral right, which flows from the spiritual and
temporal relationship of husband and wife, though the right is available
only so long as the wife continues to remain chaste and does not remarry."
There is therefore no difficulty in appreciating the observations of this
Court in Tulasamma's case or in Raghubir's case but the issue here as
noticed above, is slightly different on the factual score and neither of
the decisions can lend any assistance to the respondents herein.
The Division Bench of the Andhra Pradesh High Court unfortunately has not
been able to appreciate the admitted re-marriage of Lakshmamma in the year
1953. Re-marriage is a fact which ought to be taken note of in the matter
under consideration and it is this change of status, by reason of
remarriage, falls for determination in the present appeal. While there is
no amount of doubt that by reason of the well settled law as laid down by
this Court, to the effect that a limited right of maintenance permeated
into an absolute right under Section 14 (1) of the Hindu Succession Act but
would the effect be the same, in the event of there being a re-marriage of
the widow prior to 1956? The Act of 1956, incidentally is prospective in
its operation and no element of retrospectivity can be attributed therein.
The effect of remarriage is available in the Act of 1856. Section 2 thereof
reads as below:
"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 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."
Incidentally, the Act of 1856 was in the Statute Book until the year 1983
and it only stands repealed by Act 24 of 1983. Section 2 of the Act 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 loses 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 statutary recognition of a well reasoned pre-existing shastric
law.
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-(l) 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."
Mr. Nageshwara Rao, learned counsel appearing for the respondents contended
that by reason of the overriding effect of the Act of 1956, question of
reliance on Section 2 of the Act of 1856 does not arise. On the next count
it was contended that re-marriage envisaged under Section 2 must be a valid
re-marriage and since Lakshmamma got married to a person while he was
having a spouse living, being Lakshmamma's own sister's husband, that is to
say Lakshmamma got married to her own brother-in-law in the year 1953,
question of there being a valid re-marriage does not and cannot arise. It
is on this count, the learned counsel contended that the act of 1949 (The
Madras Hindu Bigamy Prevention and Divorce Act) which declares all
marriages wherein one spouse has a spouse living, be a nullity and as such
question of there being any valid marriage in terms of the Act of 1856 does
not and cannot arise.
The above contentions fall squarely within the ambit of the second issue
noticed above and as such we refrain ourselves from making any comment
thereon at this juncture and reserve the same for consideration in the
later part of this judgment.
On the issue as regards the applicability of Section 14(1) of the Act of
1956, B.P. Jeevan Reddy, J. (as His Lordship then was) hearing out the
first appeal has the following to observe:-
"The next question arises is, whether the life estate created in Lakshmamma
under Ex.A-1 gets enlarged by virtue of Section 14( 1) of the Hindu
Succession Act. For a proper appreciation of this question, it is necessary
to notice a few dates. The Hindu Women's right to Property Act, 1937 came
into force on 1st April, 1937. However, it was not applicable to
agricultural properties. It was made applicable to agricultural properties
only in 1946 by virtue of the Act passed by the Madras Legislature. In any
event, Rosaiah having died in February, 1937, prior to the enforcement of
the Principal Act itself, Lakshmamma cannot claim any right under the said
Act. She would have been entitled to widow's estate according to Hindu
Law. but she was deprived of even that, by virtue of the will (Ex. A-3)
executed by Rosaiah, and the truth and validity of which will was affirmed
by Lakshmamma hereself in the Memo of Compromise, Ex.A-1. Once that will is
true it has to be given effect to and, according to it, Lakshmamma had only
a right to maintenance, and nothing more. Therefore, when she was given
certain properties, either absolute or for her life, under the said Memo of
Compromise, it must be said that rights in her in respect of the said
properties were created for the first time under and by the said Memo of
Compromise that she had no pre-existing rights in the said properties. If
so, according to the decisions of this Court and other High Courts,
emphasising the distinction between and applicability of sub-section (1)
and sub-section (2) of Section 14 of the Hindu Succession Act, it is sub-
section (2) alone that applies, and not sub-section (1). In other words,
there is no more question of enlargement of her right vide G.Konraiah v. G.
Subbrabayudu, (1968) II An.......455 were the earlier decisions of this
Court and other High
Courts also are noted and referred to. To the similar effect is the
Decision of the Madras High Court in Hussain Uduman v. Venkatachal
Mudaliar, (1974) II, MLJ 275. Similarly the decision of the Supreme Court,
Karmi v. Amrru, AIR 1971. Supreme Court 745 affirms that where a life
estate is created by a will executed by a husband in favour of his wife,
such a life estate does not got enlarged by virtue of Section 14(1) but
that it is governed by sub-section (2) only."
As regards the issue of re-marriage and the validity of the adoption so far
as the 8th defendant is concerned, learned Single Judge observed that the
findings have not been questioned in the appeal by anyone and as such no
exception can be taken in regard thereto. Insofar as the question of the
suit being barred under Section 113 of the Limitation Act, the learned
Single judge has been pleased to answer the issue in the negative and on
the basis of the aforesaid, the learned Single Judge allowed the appeal in
the manner following:-
"It is declared that the 1st defendant has only a life-interest alongwith
the 1st plaintiff, in the properties mentioned in Schedule II to Ex.A-1 and
that, she has a life interest only even in item 3 of Schedule III to Ex.A-1
and that, the alienations made by her in favour of the other defendants are
not binding upon the plaintiffs, insofar as the said alienations pertain to
the properties mentioned in Schedule II or to item 3 in Schedule III,
appended to Ex.A-1. In so far as the properties mentioned in Schedule 1 to
Ex.A-1 are concerned, the 1st defendant has an absolute interest, alongwith
the 1st plaintiff herein. Plaintiffs are, however, not entitled to
immediate possession of the properties mentioned in Schedule II and item 3
in Schedule III to ExA-1, inasmuch as the 1st defendant has a life-interest
therein. They shall, however, be entitled to the possession of the said
properties after the life-time of the 1st defendant. The relief of mesne
profits too accordingly fails."
Subsequently, however, the matter was taken up in Letters Patent Appeals
and the Appellate Court by a judgment dated 31st March, 1978 in LPA Nos. 19
and 20 of 1977 was pleased to reverse the judgment of B.P. Jeevan Reddy, J.
and confirmed the decree in Original Suit No. 87 of 1966. As regards the
LPA No. 19 of 1977 the Appellate Bench has the following to observe:-
"First we will take up LPA No. 19/1977. Shri M. Chandrasekhara Rao has
submitted that the adoption of the 8th defendant by the 1st defendant is
true and valid and, therefore, the sale deed executed by him in favour of
defendants 3,4 and 9 is also valid. On a consideration of the evidence on
record we hold that the 1st defendant had re-married in August, 1953. If
so, there is no question of her making an adoption to her first husband,
late Rosaiah. Consequently, we affirm the findings of Jeevan Reddy, J., and
dismiss LPA No. 19/1977."
As regards LPA No.20/1977 the Appellate Court relying upon Tulasamma's case
(supra) came to a conclusion that pre-existing rights of Lakshmamma for
maintenance from out of the property of her late husband cannot be disputed
and as such came to the conclusion that Lakshmamma got an absolute right in
the properties given to her in Schedule II and item 3 of Schedule III by
virtue of sub-section (1) of Section 14 and as such the alienation made by
her under the sale deed in favour of defendant Nos. 2,3 and 4 is otherwise
valid and it is this judgment which is presently in appeal under discussion
before this Court.
It has to be kept in view that Section 14(1) of the Hindu Succession Act,
in the light of the explanation thereto, clearly indicates that if a Hindu
widow is given in lieu of her pre-existing right of maintenance, any
property with limited interest, the, said interest would mature into full
ownership under Section 14(1) of the Act. It has further to be kept in view
that under the will of Rosaiah, the first wife's pre-existing right of
maintenance was recognised and in recognition of the very same right by the
compromise decree she was given limited interest to recover maintenance
from the earmarked properties mentioned in the same decree. It has,
therefore, to be held in the light of the judgment in Tulasamma's case that
if her right of maintenance had survived till the coming into operation of
Section 14(1) of the Act, then her limited interest on the properties
concerned over which the said right was exercised as per consent term could
have matured under Section 14(1) of the Act and to that extent the Division
Bench judgment upsetting the view of the learned Single Judge cannot be
found fault with. However, in the light of the admitted fact on record on
re-marriage of Rosaiah's widow in 1953, her right to claim maintenance from
the ex-husband's properties got extinguished prior to 1956, as will be
further seen from our discussion on the second issue. Hence, the ultimate
decision rendered by the learned Single Judge will remain well-sustained
and the Division Bench judgment upsetting the same cannot be sustained on
this ground. Issue No. 1, therefore, will have to be answered in favour of
the appellant and against the respondent.
Re: Second Issue: Addressing on this issue, Mr. Rao contended that the re-
marriage, spoken of in Section 2 of the Act of 1856, cannot but mean a
valid re-marriage and since Lakshmamma got married to her brother-in-law in
the year 1953, the marriage, Mr. Rao contended cannot but be termed to be a
void marriage as such a nullity and thus application of Section 2 does not
and cannot arise. At first blush the submission seemed to be attractive but
on a closer scrutiny of the matter in issue we are afraid we cannot lend
concurrence to the submission of the respondent in that regard, the reasons
for the same being as below:
I. In the contextual facts the doctrine of sincerity has its due
application. Lakshmamma cannot take advantage of her own immoral conduct
and illegality to confer upon herself a right to continue to get
maintenance from the properties of her deceased husband under the consent
decree.
II. The Act of 1949 being penal in nature, was introduced in the
Statute Book to prohibit bigamous marriages and to provide for a right of
divorce on certain grounds as mentioned therein statutory prohibition
cannot be treated to be in aid of conferment of right: it is a prohibitory
statute and not a conferring statute.
III. Any mechanical and literal applicability of the Act of 1949 would
lead to incongruity as well as absurdity since in the event the widow is
married to a person without having a spouse living-the widow divests
herself of any right to deceased's properties by reason of Section 2 of the
Act of 1856, but in the event the widow is married to a person with a
spouse living, the same tantamounts to no marriage and resultantly
entitlement under the general law would be available to the widow: what has
been prohibited would, in effect, amount to conferment of a right of
inheritance on the deceased husband's property- this is contrary to all
cannons of law.
In detailing out the reasons as noticed above, reference may be made at
this stage itself to a decision of the House of Lords in the case of G.
(The Husband) v. M. (The Wife) (LR 10 AC 171), wherein, EARI OF SELBORNE LC
observed:
"I think I can perceive that the real basis of reasoning which underlies
that phraseology (sincerity) is this, and nothing more than this, that
there may be conduct on the part of the person seeking this remedy which
ought to estop that person from having it: as, for instance, any act from
which the inference ought to be drawn that during the antecedent time the
party has, with a knowledge of the facts and of the law; approbated the
marriage which he or she afterwards seeks to get rid of, or has taken
advantages and derived benefits from the matrimonial relation which it
would be unfair and inequitable to permit on her, after having received
them, to treat as if no such relation had ever existed. Well now, that
explanation can be referred to known principles of equitable, and, I may
say, of general jurisprudence. The circumstances which may justify it are
various, and in cases of this kind many sorts of conduct might exist,
taking pecuniary benefits for example, living for a long time together in
the same house or family with the status and character of husband and wife,
after knowledge of everything which it is material to know. I do not at all
mean to say that there may not be other circumstances which would produce
the same effect; but it appears to me that in order to justify any such
doctrine as that which has been insisted upon at the bar, there must be a
foundation of substantial justice, depending upon the acts and conduct of
the party sought to be barred."
There must thus have to be a foundation of substantial justice depending
upon the acts and conduct of the party sought to be barred-as stated by the
Lord Chancellor.
It is in this context the will is to be noticed: In the will Rosaiah being
the testator stated that his wife Lakshmamma was not obedient to him and
that her father with her aid was also trying to knock off all his
properties and that his wife was also not living with him.
The learned Subordinate Judge Narasaraopet in paragraph 21 of the judgment
in the main suit recorded as below:
"21. Smt. G. Samanthakamani, P.W. 2, deposed that the first defendant bore
a child to Sri Veeraraghava Sastri in 1952 and that the name of that child
is Kasi Visweswara Hanumath Prasad. She stated further that in the year
1954 she gave birth to a daughter and that some time thereafter, the first
defendant gave birth to a son in the same year. She deposed that in the
year 1953, her husband Veeraraghava Sastri married the first defendant
Seelanagaram in a choultry near the temple. After hearing the contents of
Ex.A.11, P.W.2 stated that it is not true that Kasi Visweswara Hanumath
prasad is her natural son and that it is not true that he was given in
adoption to first defendant's husband, the adoption being made by the first
defendant. The evidence of Sri A. Sreeramchandra Murthy, P.W. 4, is to the
effect that Sri G. Veeraraghava Sastry has two wives that Smt. Laxmidevamma
is one of them, that the said Laxmidevamma has a son called Prasad or
Prasad Babu and she was delivered of a male child in February or March
1954."
The factual score therefore, depicts that the sister of Lakshmamma in no
uncertain terms stated before the Court that the first defendant bore a
baby son through Sri Veeraraghava Sastri in 1952 and her (the sister's)
husband married Lakshmamma in 1953. Thereafter Lakshmamma gave birth in
1954 to a daughter and subsequently to another son in the same year-this is
the person who is said to have retained the right of maintenance from the
deceased husband's estate by reason of the Act of 1949: This is, to say the
least, a travesty of correct legal position. There is some moral estoppel
also. It is only the estate which was attractive to her and the subsequent
purported adoption by Lakshmamma to her late husband when there were
already two sons, through the brother-in-law bore ample testimony of her
immorality disentitling her any continued maintenance from her deceased
husband's estate.
On the score of adoption the learned Subordinate Judge on a consideration
of the materials available, found "that the adoption of the 8th defendant
by the 1st defendant to late Veeraragahava Sastri is neither true nor
valid." Incidentally P.W.I before the learned Subordinate Judge stated that
the 8th defendant is the natural son of the first defendant: the lady has
thus three children and in spite thereof attempted to have an adoption
established in favour of her own son before a court of law in the name of
the deceased husband, simply by reason of the fact that deceased Rosaiah
permitted certain properties to be given to the adopted son-the interest is
only property: In our view the tests as laid down by Lord chancellor in G.
v. M. (supra) stands amply satisfied in the contextual facts. The doctrine
of sincerity, therefore, plays as a bar to such a construction being put on
a prohibitory statute.
It is pertinent to note here that the courts ought always to adopt a
construction of the statute which will enure to the benefit of the society
and eschew such a construction which may adversely affect the society.
Morality and law cannot but be equated with each other: what is legal is
moral and as such morality cannot be differentiated from the law. One
School of thought recorded that while it is true that what is legal is
moral but the converse is not true. We however, do not dilate on this issue
excepting reiterating what is stated herein before in this judgment.
The general doctrine of approbation and reprobation which is an aspect of
equitable estoppel is not peculiar to English law and as a matter of fact
Section 23 (1) (a) of the Act of 1956 does gives statutory recognition to
the
said equitable principle. The language used in Section 23(1) (a) to wit-
"......
is not in any way taking advantage of his or her own wrong...." is rather
significant.,Indeed, Derett in his book "Critique of Modern Hindu Law" at
page 314 holds the view that "It is a rule of justice, equity and good
conscience and is international".
In Mulla's Principles of Hindu Law, the learned author has the following to
state:
"The latter part of clause (a) read with the words at the end of sub-
section (1) "then and in such a case, but not otherwise" makes it
abundantly clear that the court cannot pass a decree granting any
relief under the Act in favour of a petitioner who is in any way taking
advantage of his or her own wrong or disability for the purpose of such
relief and it is not enough that the petitioner has established the ground
on which relief is sought; and if that is so his or her own wrong or
disability is an absolute bar to the relief sought by the petitioner. The
rule is based on the principle of justice that a wrongdoer should not be
permitted to take advantage of his or her own wrong or disability while
seeking relief at the hands of the court in any matrimonial proceeding."
(Mulla's Principles of Hindu Law, 16th Edn. Page 713)
Interestingly this Court also applied the latin maxim `qui approbat man
reprobat' (one who approbates cannot reprobate) in Indian conditions as a
basic inhibitory principles of law. (see in this context New Bihar Biri
leaves Co. and Ors. v. State of Bihar & Ors., AIR (1981) SC 679 at 692
paragraphs 50 and 51).
The present case is not strictly concerned with petitions for determination
of status under the Hindu Marriage Act but rather with questions of Hindu
personal inheritance in the context of the conduct of one of the parties.
No doubt the `doctrine of insincerity' must be applied with great care and
even where approbation is proved, the Court has discretion as to what
weight is to be given to it.
The contention on behalf of the respondent as regards the marriage being
void in terms of the provisions of the Act of 1949 on the wake of the
observations as above, thus, cannot hold good in any event. Voidness of a
marriage cannot be termed to be an absolute nullity. A lucid discussion on
the topic is available in Wade's Administrative Law 7th Ed. Wherein it is
stated as below:
"...Here also there is a logical difficulty, since unless an order of the
court is obtained, there is no means of establishing the nullity of the
list. It enjoys a presumption of validity, and will have to be obeyed
unless a court invalidates it. In this sense every unlawful administrative
act, however invalid, is merely voidable. But this is no more than the
truism that in most situations the only way to resist unlawful action is by
recourse to the law. In a well-known passage Lord Radcliffe said:
"An order, even if not made in good faith, is still an act capable of legal
consequences. It bears no brand of invalidity upon its forehead. Unless the
necessary proceedings are taken at law to establish the cause of invalidity
and to get it quashed or otherwise upset, it will remain as effective for
its ostensible purpose as the most impeccable of orders."
Void is therefore meaningless in any absolute sense. Its meaning is
relative, depending upon the court's willingness to grant relief in any
particular situation. If this principle of legal relativity is borne in
mind, confusion over `void or voidable' can be avoided."
The passage above stands approved by this Court in R. Thiruvirkolam v.
Presiding Officer and another, [1997] 1 SCC 9.
In the case of State of Kerala v. M.K. Kunhikannan Nambiar Manjeri Manikoth
Naduvil (dead) and others, [1996] 1 SCC 435 this Court in no uncertain
terms laid down that the word `void' has a relative rather than an absolute
meaning. This Court observed:
"It only conveys the idea that the order is invalid or illegal. It can be
avoided. There are degrees of invalidity depending upon the gravity of the
infirmity, as to whether it is fundamental or otherwise..."
It is in this context one may also consider that Hindu Marriage Act
provides annulment of the marriage under Section 11 and the same statute
under Section 16 legitmised the children of otherwise void marriages. It is
thus a statutory recognition of limited voidness and not a nullity. The
reliance was placed on the decision of this Court in the case of Bhaurao
Shankar Lokhande and Anr. v. The State of Maharashtra and Anr., AIR (1965)
SC 1564, wherein this Court while dealing with the prosecution under
Section 494 read with 114 I.P.C. observed that in the event the marriage is
not a valid marriage, it is no marriage in the eye of law. The Court was
considering as to whether the subsequent marriage needs to be a valid
marriage in order to impose punishment under Section 494 I.P.C. In
paragraph 15 of the report this Court observed:
."(15) It follows, therefore, that the marriage between appellant No.l and
Kamlabai does not come within the expression `solmenised marriage'
occurring in S.I7 of the Act and consequently does not come within the
mischief of S.494,I.P.C. even though the first wife of appellant No.l was
living when he married Kamlabai in February, 1962."
The decision in our view does not lend any support to the contention of the
respondent herein and the same is clearly distinguishable on facts. The
observations of this Court were made in the context of a prosecution,
wherein the punishment would be seven years imprisonment together with fine
and it is in this perspective that the nitti natti of marriages were dealt
with and the Court came to a conclusion that marriage was not properly
solmenised and as such the accused cannot be said to be guilty of an
offence under Section 494. The liability is criminal and the burden of
proof is beyond all reasonable doubts- such however is not the case
presently under consideration. It is this perspective that the matter has
to be considered as to whether prohibitive statute ought to be read as
conferring statute and in view of the discussion above we answer the first
and the second point of reasons as noted above so as not to confer any
entitlement in favour of Lakshmamma.
On the third count also let it be noted that this prohibitive statute can
not possibly have its operation extended in the contextual facts as
otherwise the same would lead to a total absurdity in the facts of the
present case and which in any event ought always to be avoided. Finally and
in any event this issue however cannot be re-agitated at this juncture by
reason of the fact that the same stands concluded by the Trial Court as
well as by the first appellate court. It may also be noted that in the
companion Letters Patent Appeal No. 19 of 1977, the Division Bench has
confirmed the finding that 1st defendant remarried in 1953 and hence she
could not validly adopt defendant No. 2. Accordingly, Letters Patent Appeal
No. 19 of 1977 was dismissed. This judgment inter partes has become final.
No Special leave Petition is filed by the appellants against the said
decision even though they claim their interest through defendant No.l.
Hence, the finding that defendant No.l remarried in 1953 has become res
judicata between the parties. In any case at this point of time no factual
controversies can be raised, neither can be decided in the jurisdiction
conferred onto this Court by the Constitution. In that view of the matter,
we are also not inclined to lend any concurrence to the submissions on
behalf of the respondents.
Turning attention to the issue of vesting of the property and subsequent
divestation if there be any, by reason of any unchastity or re-marriage, it
would be profitable for us to notice the decision of the Madras High Court
in the case of Ramaiya v. Mottayya, AIR (1951) Madras 954. In a very
illuminating judgment, in paragraph 12 Viswanatha Sastri, J. observed:
"It is a well settled rule of Hindu Law- a rule that is inconformity with
popular sentiment that-unchastity disqualifies a widow from succession to
her husband's estate. The textual authorities on this point will be found
assembled in the judgment inkery Kolitany v. Monscram Kolita, 13 Beng.
L.B.I, the text requires that the widow must be chaste not only when the
inheritance of her deceased husband opens but also thereafter. A text
attributed to Vridha Manu says:
"The wife alone, being sonless and keeping the bed of her lord unsullied
and leading a life of religious observance, may take his entire estate."
Katyayana also declares:
"Let the sonless widow, preserving unsulled the bed of her lord and bidding
with her venerable protector, enjoy with moderation the (husband's)
property until her death"
Other texts state as "half the body" of her deceased husband the widow
takes his property in default of male issue. The above text show that not
only that the sonless widow's right in her husband's property is a mere
right of enjoyment but that the exercise of that right is dependent on her
chastity. The use of the present participle form
implies that chastity is imposed as a permanent condition of the widow's
enjoyment of her husband's estate and that: a violation of that condition
would involve a forfeiture of the right. But European writers, like
Colebrooke and English Judges who had to administer the Hindu law, in
their concern for ensuring certainty of titles to property and their
leanings against a divestiture of estates once vested, declared the law to
be that a sonless widow who was chaste at the time of her husband's death
inherited his estate and that a widow who had once inherited the estate of
her husband was not liable to forfeit it by reason of her subsequent
unchastity. The law was, thus settled by the
Judicial Committees in Maniram Kolita v. Keri Kolitany, 5 Cal. 776 P.C.
and this has been the accepted rule of Hindu law ever since. Unchastity
disentitles a Hindu widow to maintenance. Maintenance being a recurring
right her continued chastity is a condition of her right to receive
maintenance and she would forfeit her right by reason of her unchastity
even though maintenance has been decreed to her by a Court. Lakshmichand
v. Mt. Anandi, 57 All 672 P.C. Kandasami v. Murugammal, 19 Mad. 6 and
Nagamma v. Virabhadra, 17 Mad. 392. If there has been a lapse from
chastity the widow would be entitled only if she reforms her ways, and
even then only to a starving maintenance. Satyabhama v. Kesavacharya, 39
Mad. 658. The widows of coparceners in a joint Hindu family are in fact
and in law members of the family with rights in or over the family
property by way of maintenance. Raghunanda Deo v. Brozokishore Patta Deo,
1 Mad 69 at p.81; Kalyani Vittaldas v. Commissioner of income-tax, l.L.B.
(1937) 1 Cal 653 (PC) and Vedathunni v. Commissioner of Income-tax, 56 Mad
1 at pp.4, 5. The requirement of Chastity as a condition of their
maintenance from the family property is therefore intelligible.
The observations of the learned Judge in paragraph 13 of the judgment
pertaining to the issue as regards the effect of unchastity vis a vis the
husband's separate or self acquired property under the Shastric Law and the
effect of subsequent legislation thereon are also worth noting. Paragraph
13 reads as below:-
"13. The Act was doubtless intended to "give better rights to women in
respect of property" as stated in the preamble. But in what cases and to
what extent? The rights of a Hindu widow in relation to the property or
interest of her husband, as they stood before the Act, and as they now
stand, have to be considered. A Hindu widow succeeded to the self-acquired
property of her husband or the property held by him as the last surviving
coparcener or as the holder of a share on partition if he happened to die
without leaving sons (including in that term grandsons and great
grandsons). The sonless widow was disqualified from inheriting her
husband's separate or self acquired property if she was unchaste or living
in adultery at the time the inheritance opened. The Act did not touch this
class of cases and did not abrogate the rule of Hindu law as to
disqualification of a widow arising out of her unchastity in such cases. If
in the cases above mentioned the husband had left sons (in comprehensive
sense) the widow would before the Act have been excluded by the sons from
inheriting her husband's estate and would only be entitled to maintenance
for her life out of that estate. If her husband had died as a member of a
joint Hindu Family owning property, his interest in the family property
ceased on his death. The widow would but for the Act; be excluded from
succession to the undivided interest of her husband which passed by
survivorship to the remaining coparceners. She would have had a right,
however, to be maintained from the joint family property in the hands of
the surviving coparceners, who might be her son or her husband's uncles,
brothers, nephews or other agnatic relations. With reference to these two
classes of cases above specified, S.3 of the Act conferred new rights of
succession on widows in supersession of the above mentioned rules of Hindu
law. The rule that a widow succeeded only on failure of male issue was
abrogated and she was given the same share as a son in her husband's
separate or self acquired property. Where the husband died a member of an
undivided Hindu family, his undivided interest in the family property
passes to his widow even if he left male issues. The rule of survivorship
was to this extent abrogated. The interest taken by a widow in her
husband's estate by virtue of S.3 of the Act was the same as the interest
which she look in her husband's separate or self acquired property in the
absence of male issue, that is to say a Hindu widow's estate with all the
incidents attached by law to that estate. The liability to forfeiture on
remarriage would attach to that estate from its commencement and continue
throughout the widow's life. The condition of chastity however attaches to
the estate only at its commencement. Through the Act conferred new rights
of succession on Hindu widows in the two classes of cases referred to above
it did not purport to abrogate the pre-existing rule of Hindu law excluding
an unchaste widow from succession to the property of her husband. It would
be a queer state of law that sonless widow has to be chaste ` in order to
inherit her husband's separate or self acquired property but a widow need
not be chaste if she happens to have sons or other coparceners of her
husband in competition with whom she claims to take her husband's estate.
This however, would be the result of the argument of the appellant as
regards the construction of Ss.2 and 3 of the Act."
, *
Be that as it may the law as declared by Privy Council has been
consistently followed that subsequent unchastity will not make a widow
forfeit the property which she has succeeded to her husband on his death
neither we express any contra view in regard thereto. In the contextual
facts of the matter under consideration however, and since the factual
situation of re-marriage of Lakshmamma in the year 1953, stands proved, it
has to be held that Section 2 of the Hindu Widow's Re-marriage Act, 1956
gets attracted. As a result thereof, Defendant No.l's right to get
maintenance from their deceased husband's property came to an end on civil
death qua her ex-husband's estate latest by 1953. Hence there was no
subsisting legal right of maintenance available to Defendant No.l qua her
deceased husband's estate in any of his properties nor was there a
subsisting limited interest of hers in any of those properties which get
matured into full ownership under Section 14(1) of the Hindu Succession Act
when it came into force. As such the legal situation is different in the
present case and the law as laid down and as noticed above does not render
any assistance to the Respondent herein. Similar is the situation in regard
to another decision of the Madras High Court in the case of Chinnappavu
Naidu v. Meenakshi Ammal and another, AIR (1971) Mad.453. The decision last
noted dealt with the effect of Section 2 of the Hindu Widows Re-marriage
Act, 1856 and the Division Bench of the Madras High Court came to a
conclusion that by reason of Section 4(1)(b) of the latter Act, of the
Hindu Succession Act, 1956. Section 14 prevails over Section 2 of the 1856
Act and as such re-marriage will not create any divestation. The re-
marriage spoken of in the Madras High Court decision however, did take
place after introduction of the Succession Act of 1956, as such this
decision also does not lend any assistance to the respondent by reason of
the factual differentiation in the matter presently before us.
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 was already a re-marriage 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.
Strong reliance was also placed on the decision of this Court in the case
of C. Masilamani Mudaliar and Ors. v. The Idol of Shri Swaminathaswami
Swaminathaswsami Thirukoli and Ors., AIR [1996] SC 1697. The facts in the
last noted decision depict that Somasundaram Pillai died in September,
1950. The Legatees Sellathachi and another had come into possession of the
properties. Janaka Thathachi died in the year 1960. In 1970, Sellathachi
had appointed a power of attorney-holder who had alienated the suit
properties and the appellants had purchased them under registered sale
deed. The suit was filed for declaration that the legatees having succeeded
to limited estate under the will, the alienations made by Sellathachi were
illegal. The Trial Court decreed the suit. The learned Single Judge allowed
the appeal and dismissed the suit and in LPA No. 161/88 dated July 2, 1992,
the Division Bench of the High Court set aside the decree of the single
Judge holding that the legatees had suceeded to restricted estate under
sub-section 2 of Section 14 of the Hindu Succession Act. 1956 (for short,
the "Act") and that, therefore, their rights have not blossomed into
absolute estate. The question before this Court was whether the widow had
become the absolute owner under Section 14(1). This Court held that the
right to maintenance stands as a charge on her husband's property and can
be termed to be pre-existing legal right which stands transformed into
absolute right in terms of Section 14(1) of the Act of 1956. This Court
held that the right to maintenance to a Hindu female receives statutory
recognition under the Hindu Adoption and Maintenance Act, 1956 and she is
entitled to realise maintenance from the property of her husband and even
in the hands of stranger except the bonafide purchaser for value. It may be
noted here that even though strong reliance was placed on this decision but
by reason of the contextual facts as noticed above the decision is clearly
distinguishable since re-marriage in 1953 as noted above makes all the
difference having due regard to the Act of 1856.
In Lakhmi Chand v. Mt. Anandi, AIR (1935) Privy Council 180 similar is the
treatment of Hindu Law about the widow's estate by reason of subsequent
unchastity. The law as declared by the Privy Council in ILR 5 Calcutta thus
stands well accepted.
Two other decisions of this Court were strongly relied upon by the
Respondent. The first of the two is the decision in the case of Vimala (K)
v. Veeraswamy (K), [1991] 2 SCC 375. This Court while dealing with an
application under Section 125 of the Criminal Procedure Code observed that
the object of Section 125 is to prevent vagrancy and destitution and
provides a remedy for supply of food, clothing and shelter to the deserted
wife and when an attempt is made by the husband to negative the claim of a
neglected wife depicitng her as a kept-mistress on the subsequent specious
plea that he was already married, the Court would insist on strict proof of
earlier marriage. This Court observed: "Therefore, the law which
disentitles the second wife from receiving maintenance from her husband
under Section 125 Cr.P.C. for the sole reason that the marriage ceremony
though performed in the customary form lacks legal sanctity can be applied
only when the husband satisfactorily proves the subsistence of a legal and
valid marriage particularly when the provision in the Code is a measure of
social justice intended to protect women and children. We are unable to
find that the Respondent herein has discharged the heavy burden by
tendering strict proof of the fact in issue. We are, therefore, unable to
agree that the appellant is not entitled to maintenance." Relying upon the
observation of this Court the learned Advocate contended that the social
obligation to maintain the wife thus, cannot be negated. We, however, while
concurring with the broad principles of law, express our inability to agree
with the contentions as raised in the present appeal in the present factual
situation as discussed above. The observations of this Court were made vis-
a-vis Section 125 of Cr.P.C. and cannot possibly lend any assistance in the
matter of interpretation of Section 14(1) of 1956 Act or Section 2 of the
Act of 1856.
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 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 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 legalised 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.
The other ground of objection raised by Mr. Nageshwara Rao i.e. the plea of
limitation: Limitation is a mixed question of law and fact and on the issue
of limitation B.P. Jeevan Reddy, J. as the first appellate Court in the
instant matter had the following to state:
"The last question that remains to be considered, pertains to bar of
limitation. This issue has been considered by the trial court under issue
No. 12 and it found that the suit is not barred, in-so-far as defendants
1-7 are concerned, but that it is barred as against the 8th defendant
(alleged adopted son of the 1st defendant) and 9th defendant. This is for
the reason that the 8th defendant was not originally impleaded only on
29.12.1971 in pursuance to an order of the court in IA No. 2657/71. But it
must be noticed that the alleged adoption was made on 30.11.1965, while the
present suit was instituted on 1.10.1965. The sale deed in favour of
defendants 3,4 and 9, is dated 10.1.1966 under a notice (Ex.B-36) and that,
once they came to know of the adoption, they ought to have filed a suit for
declaration (that the said adoption is not true or valid) within three
years of the adoptions or at any rate, within three years of their
knowledge of the adoption; since the 8th defendant has been impleaded only
on 29.12.1971, and because of Section 21 of the Limitation Act the suit
must be deemed to have been instituted as against the 8th defendant only on
the date of such imp leading, the suit must be held to be barred as against
the 8th defendant. The said argument, however, fails to take notice of the
provisions contained in sub-section (2) of Section 21, which provides that
nothing in sub-section (1) of Section 21 shall apply to a case where a
party is added or substituted owing to assignment or devolution of any
interest during the pendency of a suit. Since the adoption has been made
pending the suit, and also because the alienation in favour of the 9th
defendant is pending the suit, the provisions contained in sub-section (1)
of section 21 that the suit shall be deemed to be instituted as against the
impleaded party only on the date of such impleadings, is inapplicable. If
so, it cannot be said that the suit is barred by Article 113 of the
Limitation Act. In . fact, the Trial Court has found that no such adoption
ever took place, and which finding is not questioned in this appeal. It
cannot therefore, be said that the suit is barred by limitation."
We do feel it expedient to record our concurrence therewith and as such
come to the conclusion that the suit cannot be termed to be barred by the
laws of limitation.
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 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 hereinabove. 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.
We, therefore, allow this appeal and set aside the order of the Division
bench. The order as passed by the learned Single Judge stands restored. No
order as to costs. .
.
