THAYAMMA Vs. GIRIYAMMA

JUDGEMENT

(1.) The facts necessary for the purpose of deciding the point of law argued are:

(2.) One Hanumanthaboyi and his brother Sannaboyi died leaving behind them their mother, the first defendant and two sisters, who were originally plaintiffs in the suit. The suit properties belonged to Hanumanthaboyi and Sannaboyi. The first defendant (1st respondent in this appeal) had taken a second husband after the death of her previous husband, the father of Hanumanthaboyi and Sannaboyi. Subsequent to the death of the last owners disputes arose between the mother and daughters as regards the succession to the properties of the deceased Hanumanthaboyi and Sannaboyi. The Courts below have come to the conclusion that the respondent (1st defendant) had succeeded to the properties of her deceased sons. But it is contended on behalf of the appellant that the 1st defendant (Respondent) is not entitled to succeed to her sons as he had taken a second husband. The right of a mother who had taken a second husband to the estate of her deceased son or daughter has been considered by several High Courts and they have uniformly come to the conclusion that notwithstanding her remarriage she is entitled to succeed as heir to the estate of her son or daughter by her first husband, the son having died after remarriage. This question came up before a Full Bench of the Bombay high Court in Basappa v. Rayava, ILR 29 Bom 91. In that case, the Full Bench held that:

(3.) Sri V. Krishna Murthy, the learned Counsel appearing for the appellant has not invited our attention to any decision which has taken a contrary view. But, he tried to seek support from the observations found in Mayne's Treatise on Hindu Law and Usage. XIth Edition, by Sri N. Chandrasekhara Aiyar. The relevant observations are found in paragraph 533 and they are as follows: