APPA SAHEB Vs. GURUBASAWWA AND

JUDGEMENT

(1.) The second appeal raises an important question of law. The plaintiff who is respondent now, filed the suit against defendant 1 who is her adopted son, and against defendant 2 who is the wife of defendant 1, claiming that she is entitled to one half share in the properties originally belonging to her husband. There were several contentions raised for defendant 1 but the only one that now survives for consideration is that the plaintiff was leading an unchaste life prior to her husband's death and also of the time of her husband's death and that, therefore she is disqualified from inheriting her husband's properties. It is admitted that the plaintiff's husband Basappa died in 1944 and that thereafter on 3-8-1945 she adopted defendant 1. The trial court came to the conclusion that she was unchaste. Still it decreed the plaintiff's suit for partition and possession. In appeal, the decree was confirmed and the appeal was dismissed. It is against this decision that defendant 1 has come up in second appeal.

(2.) The main point urged by the learned Advocate for the appellant is that by reason of unchastity which has been held proved by both the lower courts, she is disqualified from inheriting the properties. In the lower appellate court, it was held that by reason of section 2 of the Hindu Women's Rights to Property Act No. XVIII of 1937, the said disability does not affect the right of a widow claiming a share in the property as contemplated under section 3 of that Act. It is urged by the learned advocate for the appellant that this is not a proper construction. According to him, what is provided by section 2 is that only such portion of the Hindu Law or custom that goes contrary to the provisions of section 3 will not be held to be applicable. In other respects, he urges that the earlier Hindu Law does stand, meaning thereby that the disability on account of unchastity does ensure to the disadvantage of the widow, with the result that she cannot inherit the properties of her husband. In support of this contention, he relies on the Full Bench decision of the Madras High Court in Ramaiya v. Mottayya, AIR1951 Mad 954 . The exact question which is not involved in this case, had come up for consideration before their Lordships. Their Lordships observed:

(3.) A similar question came up for consideration before the Calcutta High Court in Kanailal Mitra v. Pannasashi Mitra, AIR1954 Cal 588 , 58 CWN743 . Dissenting from an earlier decision of the same High Court, reported in Surja Kumar v. Manmatha Nath, AIR1953 Cal 200 , 56 CWN845 ., which was itself based upon the above said Bombay decision, their Lordships of the Calcutta High Court came to the conclusion that :